In the Matter of the Complaint Against: 

 SIERRA F. KIRTLEY,
 708 Panama Drive,
 at
 Westerville, OH  43081-4130

 P.S. Docket No. PF-12

 1/25/91

 Mason, Randolph D., Administrative Law Judge

 APPEARANCES FOR THE POSTAL SERVICE: Stephen E. Alpern, Esq.,
 Janet E. Noble, Esq., Office of Labor Law, United States Postal Service,
 475 L'Enfant Plaza, S.W., Washington, DC 20260-1133

This proceeding arises out of a Complaint issued by the Reviewing Official of the United States Postal Service under the Program Fraud Civil Remedies Act of 1986, Pub. L. 99-509, 31 U.S.C. § 3801-3812, and 39 CFR Parts 273 and 962. The Complaint was received by Sierra F. Kirtley ("Respondent") on December 8, 1990. To date, Respondent has failed to file a Petition as required by 39 CFR § 962.3.

By Order dated January 16, 1991, the Judicial Officer referred the Complaint to the Administrative Law Judge for processing in accordance with 39 CFR § 962.4.

In the Complaint, the Reviewing Official alleged that Respondent is liable to the Postal Service for an assessment of $1,715.48 plus a civil penalty of $5,000 under 31 U.S.C § 3802(a) (1).

In accordance with 39 CFR § 962.4(a), this Initial Decision is based upon the information contained in the Complaint.

1. Respondent Sierra F. Kirtley, 3708 Panama Drive, Westerville, Ohio, is an individual previously employed as a Station Manager in Columbus, Ohio.

2. On August 15, 1988, Respondent was detailed to the position of Manager of Claims and Inquiry in Philadelphia. The detail was terminated on September 28, 1988. During her detail she was entitled to reimbursement for normal business expenses, such as lodging, per diem, and transportation.

3. On November 9, 1988, Respondent submitted a PS Form 1012, Travel Voucher, which included claims for per diem and other expenses to which she was not entitled, as follows:

(a) Respondent claimed two periods of per diem at $16.50 for September 5, 1988. She stated that her automobile had broken down en route to Philadelphia and that she had to be towed back to her residence. In fact, Respondent never attempted to leave Columbus on September 5, 1988, but drove to Philadelphia in a rental car on September 6, 1988.

(b) Respondent claimed three periods of per diem, at $8.25 each, for September 6, 1988. In fact, she was not entitled to one of the periods of per diem because she did not leave Columbus at the time she claimed she did.

(c) For the period September 16, 1988 and September 17, 1988, Respondent claimed five periods of per diem for a trip to Columbus which she claimed was for official business. She also claimed mileage and road tolls, for a total of $310.87. In fact, Respondent was not on official duty during this period, but traveled to Columbus to attend the wedding of a close personal friend.

(d) Respondent claimed two periods of per diem for September 29 and 30, 1988, in the amount of $16.50, stating that she left Philadelphia late on September 29 and arrived in Columbus on September 30, following the termination of her detail on September

28. In fact, Respondent left Philadelphia on September 28 and arrived in Columbus in the afternoon of September 29.

1. The first issue is whether Respondent is subject to a $5,000 penalty under 31 U.S.C. § 3802(a)(1) n1 for making a false claim for various items on her travel voucher. As set forth in the Findings of Fact, it is concluded that certain statements on her travel voucher were materially false. Also, she submitted those statements in support of her claim knowing, or having reason to know, that they were false.

n1 Section 3802(a)(1) provides as follows:

3802. -False Claims and statements; liability

(a)(1) Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a claim that the person knows or has reason to know--

(A) is false, fictitious, or fraudulent;

(B) includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;

(C) includes or is supported by any written statement that--

(i) omits a material fact;

(ii) is false, fictitious, or fraudulent as a result of such omission; and

(iii) is a statement in which the person making, presenting, or submitting such statement has a duty to include such material fact; or

(D) is for payment for the provision of property or services which the person has not provided as claimed, shall be subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than $5,000 for each such claim. [Unless no payment has been made by the Government on the claim] ..., such person shall also be subject to an assessment, in lieu of damages sustained by the United States because of such claim, of not more than twice the amount of such claim, or the portion of such claim, which is determined under this chapter to be in violation of the preceding sentence.

2. Under these circumstances, Respondent is subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than $5,000 for her false claim. Since Respon- dent has failed to file a Petition in opposition to the Complaint, the allegation of liability for a $5,000 penalty is deemed admitted. See 39 CFR § 962.4(a) and § 962.15(a)(2) & (d). Moreover, no mitigating circumstances have been presented, and the amount of the penalty is further justified by the amount of compensation falsely claimed. Accordingly, Respondent is liable for the requested penalty of $5,000.

3. The next issue is the amount of the assessment to be imposed upon Respondent under § 3802(a)(1). The statute provides, in pertinent part, that a person making such a false claim shall be subject to an assessment, in lieu of damages sustained by the United States because of such claim, of not more than twice the amount of such claim. Since Respondent made a false claim for a total of $857.74, she is liable for an assessment of not more than $1,715.48. Again, her liability for the maximum assessment is deemed admitted, and no mitigating circumstances have been presented. Accordingly, Respondent is liable for the maximum assessment of $1,715.48.

4. In conclusion, Respondent is liable to the Postal Service under 31 U.S.C. § 3802(a)(1) for a civil penalty of $5,000 plus an assessment of $1,715.48.