In the Matter of the Complaint Against:

 CLARENCE LYONS, Apt. 201
 1816 New Hampshire Avenue, N.W.,
 Washington, DC  20009-3239

 P.S. Docket No. PF-13

 07/01/91

 Grant, Quentin E.

 APPEARANCE FOR POSTAL SERVICE: Joseph F. Wackerman, Esq.,
 Anna Lee, Esq., Office of Postal Rates and Mailing Rules,
 United States Postal Service, Washington, DC  20260-1141

 APPEARANCE FOR RESPONDENT: None.

The Complainant, General Counsel of the Postal Service and Reviewing Official under the Program Fraud Civil Remedies Act (Act), requests reconsideration of the Initial Decision herein, dated March 29, 1991.

The Initial Decision dismissed the proceeding on the ground that the complaint failed to allege and establish a false, fictitious or fraudulent claim within the scope of the Act. Because the Respondent had failed to request a hearing, in accordance with the Rules of Practice the Initial Decision was based on the information contained in the complaint, without benefit of briefs. As indicated in the decision, my reading of the Act and its legislative history persuaded me that the sale of stamps by the Postal Service is not a "program" which the Act is intended to cover and that the bad check and identification given by Respondent in his purchase of stamps did not constitute a request, demand or submission and, therefore, a claim to which the Act applies.

Complainant's memorandum of points and authorities in support of the request for reconsideration presents cogent arguments for reconsideration, particularly since this is a case of first impression and, under the rules, Complainant has no right of appeal from an adverse decision. The memorandum does not convince me that the Initial Decision was clearly erroneous but raises sufficient doubt as to its correctness to warrant reversal, thus leaving the question of applicability of the Act to this fact situation open to determination on appeal should Respondent wish to exercise that right.

In accordance with the foregoing, on reconsideration of the Initial Decision, I reach the following conclusions of law in place of those in the original Initial Decision:

1. Respondent Clarence Lyons, in violation of the Program Fraud Civil Remedies Act, on August 16, 1988, knowingly, or having reason to know, submitted to the Postal Service a false, fraudulent and fictitious claim for property, in the form of a check in the amount of $2,900.00, presented in payment for postage stamps, such check having been drawn on an overdrawn and closed checking account and being subsequently dishonored.

2. Complainant seeks an order imposing on Respondent, under 31 U.S.C. § 3802(a)(1), an assessment in the amount of $5,800.00 (double the amount of the dishonored check), and a civil penalty in the amount of $5,000 for the false claim. These requests conform to the statute and, without opposition by Respondent in this proceeding and no apparent mitigating factors, are allowed.

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. 3. Respondent is liable to the Postal Service under 31 U.S.C. § 3802(a)(1) for a civil penalty of $5,000.00 and an assessment of $5,800.00.

Grant, Quentin E.,
Chief Administrative Law Judge