In the Matter of the Complaint Against: SIERRA F. KIRTLEY, 3708 Panama Drive, Westerville, OH 43081-4130 P.S. Docket No. PF-12 04/26/91 Cohen, James A., Judicial Officer 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, SW, Washington, DC 20260-1133 APPEARANCE FOR RESPONDENT: Andrew J. Ruzicho, Esq., Suite 201, 3040 Riverside Drive, Columbus, OH 43221-2551
Respondent has filed an appeal from an Initial Decision of an Administrative Law Judge in which it was concluded that Respondent submitted false statements on a travel voucher and as a result is liable for an assessment and civil penalties totalling $6,715.48 under the Program Fraud Civil Remedies Act (hereafter PFCRA or Act), 31 U.S.C. § 3801 et seq. The Postal Service opposes the appeal and argues that the Initial Decision should be affirmed.
This proceeding was initiated by a Complaint issued by the United States Postal Service alleging that Respondent had submitted claims on a P.S. Form 1012, Travel Voucher, for per diem and travel expenses to which she was not entitled. The Complaint sought from Respondent an assessment of $1,715.48, or twice the amount of the per diem and expenses which were alleged to be falsely claimed on the travel voucher, plus a civil penalty of $5,000.
The Complaint was received by Respondent on December 8, 1990. By letter dated December 14, 1990, Respondent requested that Postal Service counsel stay the proceeding under the PFCRA during the pendency of a related United States District Court proceeding. Postal Service counsel declined to stay the action and so advised Respondent by letter dated December 19, 1990. Respondent did not file a petition for hearing within thirty days from the date of receipt of the Complaint as required by the Act and implementing regulations. On January 15, 1991, the Complaint was transmitted to the Judicial Officer for referral to an Administrative Law Judge for issuance of an Initial Decision in accordance with 39 C.F.R. § 962.4.
By Order dated January 16, 1991, the Complaint was referred to an Administrative Law Judge, who, on January 25, 1991, issued an Initial Decision based on the information contained in the Complaint (I.D. p. 2). The Administrative Law Judge found that Respondent had submitted a travel voucher containing statements which she knew, or had reason to know, were false and therefore was liable under 31 U.S.C. § 3802(a)(1) for a civil penalty of $5,000, and an assessment of $1,715.48. n1
n1 The Administrative Law Judge failed to make findings with respect to the amounts claimed in paragraphs 4(e) and 4(f) of the Complaint. However, as required by 39 C.F.R. § 962.4, the Initial Decision was based on the allegations of the Complaint, and the Administrative Law Judge concluded that Respondent was liable for the full amount of the assessment sought in the Complaint. Therefore, the Administrative Law Judge is deemed to have found that Respondent made false claims on her travel voucher for the amounts claimed in paragraphs 4(e) and 4(f) of the Complaint. Accordingly, the Administrative Law Judge's conclusion as to the total amount of the assessment against Respondent is affirmed.
In her appeal Respondent alleges the PFCRA is unconstitutional, the Postal Service proceeding is improper and has no force and effect because it interferes with the concurrent District Court proceeding, the thirty day period in which Respondent could request a hearing has been tolled, the Initial Decision is arbitrary and capricious and not supported by the facts and law, and finally, that this proceeding is a continuation of harassing and retaliatory conduct by the Postal Service in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. The Postal Service, on the other hand, argues that the Initial Decision was timely and valid, that the issues in the District Court proceeding are not identical to the issues raised in this case, and that Respondent's letter requesting a stay of the proceeding did not toll the period for filing a Petition for Hearing.
Respondent has not established that the Initial Decision is in error or that she should be permitted to present her objections at this stage of the proceeding. The filing of a timely petition for hearing would have afforded Respondent a full opportunity to present evidence and argument in response to the allegations of the Complaint. However, Respondent did not file a petition and has not shown that extraordinary circumstances or good cause existed for such failure (39 C.F.R. $S962.21(b)(3) & (4)). Respondent's request that Postal Service counsel stay this proceeding during the pendency of the District Court action did not toll the time period for the filing of her Petition, and Postal Service counsel was not required to interpret Respondent's letter as a motion which should be brought to the attention of the Judicial Officer or the assigned Administrative Law Judge. Further, Respondent has not shown that the PFCRA is unconstitutional, n2 that this proceeding is improper or interferes with the District Court proceeding, that the Initial Decision is arbitrary and capricious, or that this action is a continuation of harassing and retaliatory conduct by the Postal Service against Respondent.
n2 Even if such a showing had been made, the Judicial Officer has no authority to consider the constitutionality of the PFCRA. Cf., Columbia Flier, P.S. Docket No. 26/17 at pp. 2-3 (P.S.D. May 11, 1988); Health Care Products, Inc., P.S. Docket No. 28/90 at p. 9 (P.S.D. March 3, 1989); Athena Products, Ltd., P.S. Docket No. 11/107 at p. 20 (P.S.D. Aug. 31, 1982).
Accordingly, since the Initial Decision is supported by the record and no reasonable grounds or extraordinary circumstances have been shown, the appeal is denied and the Initial Decision is affirmed.