In the Matter of the Complaint Against ) May 8, 1996 ) RAYMOND URBANSKI ) 520 Chester River Beach Road ) ) at ) ) Grasonville, MD 21638-1001 ) P.S. Docket No. PF 96-34 APPEARANCE FOR POSTAL SERVICE: Geoffrey A. Drucker, Esq. Enforcement Division United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-1148 APPEARANCE FOR RESPONDENT: Raymond Urbanski, Pro Se 520 Chester River Beach Road Grasonville, MD 21638-1001
INITIAL DECISION
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 C.F.R. Parts 273 and 962. In the Complaint, the Postal Service alleged that Respondent violated 31 U.S.C. §3802(a)(1) by submitting a false claim for damage to a vehicle (jeep) owned by Respondent. The Complaint asks for a civil penalty of $5,000.
Respondent filed a timely Petition for Hearing on January 24, 1996, denying that he had submitted a false claim. A hearing was held in Annapolis, Maryland on April 2, 1996. The Postal Service called the Postal Inspector who investigated this case, and an employee of the Stevensville, Maryland Post Office, who had been a co-worker of Respondent. Mr. Urbanski, representing himself, testified in his own behalf. The only documentary evidence introduced was the claim form (Standard Form 95) alleged to be false, and several photographs of Respondent's jeep, taken by the Postal Inspector. Both parties filed post-hearing briefs. The following Findings of Fact and Conclusions of Law are based on the entire record, as well as on observation of the witnesses and their demeanor.
FINDINGS OF FACT
1. Respondent, Raymond Urbanski, is an individual who resides at 520 Chester River Beach Road in Grasonville, Maryland. (Complaint ¶ 2; Petition ¶ 2).(1)
2. Mr. Urbanski became a rural letter carrier at the post office in Stevensville, Maryland in July 1990. (Cmplt. ¶ 3; Pet. ¶ 3).
3. In 1991, Mr. Urbanski purchased an old jeep from the Postal Service for $400. He used the jeep for carrying mail on his rural delivery route. When not in use the jeep was parked in front of the Stevensville Post Office, which is located in a shopping mall. (Cmplt. ¶ 6; Pet. ¶ 5; Tr. 50, 70, 76).
4. On November 17, 1993, Mr. Urbanski suffered an on-the-job injury and began an extended absence from work. His jeep remained parked at the Stevensville Post Office. (PS Ex. 1; Tr. 46-47, 77).
5. On April 27, 1994, Mr. Gunther, the Stevensville Postmaster, asked Sharon Retallack, his administrative clerk, to call Mr. Urbanski and tell him that his vehicle, the jeep, had to be removed from where it was parked. Ms. Retallack left a message on Mr. Urbanski's answering machine. On May 12, 1994, Ms. Retallack called again and spoke with Mr. Urbanski, telling him that Mr. Gunther wanted the vehicle removed. (Tr. 86-87, 90).
6. Mr. Urbanski did not remove the vehicle and, on or about August 24, 1994, the vehicle was towed to Merrill's Recycling Yard in Dominion, Maryland, approximately three to five miles away.(2) (Tr. 8-9, 85).
7. On or about August 25, 1994, Mr. Urbanski, having been told by either his wife or his son, or noticing himself, that the jeep was missing, called Mr. Gunther to ask about it. (Tr. 52, 60-62). Mr. Gunther said he knew nothing about it. (Tr. 54, 68). Mr. Urbanski then reported to the Maryland State Police that his vehicle was missing. (PS Ex. 1; Tr. 54).
8. At about this same time, one of the other carriers at Stevensville told Ms. Retallack that she had seen Mr. Urbanski's jeep being unloaded at Merrill's Recycling Yard. Ms. Retallack passed this information to Mr. Gunther, who instructed her to pass it on to Mr. Urbanski. (Tr. 85-86).
9. Ms. Retallack called Mr. Urbanski on August 26, 1994 and told him the jeep had been taken to Merrill's. She did not know the address or telephone number, but Mr. Urbanski did not ask for either, nor did he ask about the condition of the jeep. His only response was that Kevin (Mr. Gunther) should go get it. (Tr. 55, 63, 86-88, 99, 109).
10. At about this same time, probably after the call from Ms. Retallack, Mr. Urbanski got a return call from the State Police, who told him that the shopping center management, Butterworth Corporation, had information about the vehicle. Mr. Urbanski called the number provided by the police, but the record is unclear as to what information he received.(3)
11. On September 6, 1994, Mr. Urbanski submitted to the Postal Service a claim for $2,083.50, on Standard Form 95, for loss of his jeep and tools contained therein. He stated on the form that the vehicle had been "totally destroyed," and that its location was "unknown." On the form, and on an attached page, Mr. Urbanski stated that he believed Mr. Gunther had the vehicle destroyed in retaliation for Mr. Urbanski having filed an EEO (Equal Employment Opportunity) complaint. (PS Ex. 1; Tr. 49).
12. In October 1994, Postal Inspector LuAnn Ashmen was assigned to investigate Mr. Urbanski's claim. After interviewing Mr. Gunther, and Deanna Parsons of the Butterworth Corporation, Inspector Ashmen went to Merrill's Recycling Yard on October 26, 1994, and took several photographs of Mr. Urbanski's jeep. (Tr. 6-11; PS Ex. 2).
13. The photographs show a Maryland license tag on the rear of the vehicle, matching the tag number identified on the claim form (PS Ex. 1), and show the vehicle to be intact and in essentially the same condition as when it was removed from the Stevensville Post Office. (Tr. 12, 72).
14. The Postal Service denied Mr. Urbanski's claim. (Cmplt. ¶ 14; Pet. ¶ 11).
Relevant Collateral Facts
15. On April 26, 1994, Mr. Gunther issued a Notice of Removal (from employment by the Postal Service) to Mr. Urbanski, alleging failure to include pertinent medical information on his employment application. (Cmplt. ¶ 4; Pet. ¶ 3). This matter is still pending. (Tr. 47, 81).
16. Mr. Gunther had also issued two disciplinary letters to Mr. Urbanski at some time before the jeep towing incident. These letters, which were later revoked, alleged that Mr. Urbanski had been unavailable for work while he was a substitute carrier. (Tr. 47).
17. Mr. Urbanski had filed an EEO complaint against Mr. Gunther at some time before Mr. Gunther had the jeep towed. (Tr. 68-69; PS Ex. 1).
Contentions of the Parties
18. Respondent contends that his claim was not false because, at the time he submitted the claim, he believed his jeep had been destroyed and used for parts. He testified that this is what he was told on the telephone by Ms. Parsons, the Butterworth manager. (Tr. 55-56, 58-59). He argues that it would not have made sense for him to file the claim if he knew the Postal Service still had the jeep or knew where it was. (Tr. 70, 112).
19. The Postal Service contends that Respondent knew the claim was false when he submitted it, because he had been told where the jeep was located and had the opportunity to retrieve it, or at least examine it.
Further Findings of Fact
20. Respondent's story is not credible. On the claim form he described the jeep as "totally destroyed," and "location unknown," but there is no reason to doubt the testimony of Ms. Retallack that she called Mr. Urbanski and told him where the jeep had been taken. His present assertion that "Merrill's Recycling," or any similar name is not in the telephone book is not persuasive. This is an "afterthought" argument made in 1996. Had he wanted to know where Merrill's was in August 1994, he clearly could have found out, by asking either Ms. Retallack, or someone at Butterworth. Ms. Retallack herself did not know the address or telephone number, but would have found either, had Mr. Urbanski asked. (Tr. 88).
21. Likewise, Respondent wrote in a note attached to the claim form that, "I still cannot locate my license plates." (PS Ex. 1). The photographs show the license plate attached to the rear of the vehicle, and the evidence indicates not that he couldn't locate them, but that he never attempted to find them, or the vehicle.
22. The credibility of Respondent's argument is further weakened by inconsistencies in his own testimony. He specifically stated that his reason for believing the jeep had been destroyed was that Ms. Parsons had told him this. (Tr. 55-56, 58-59). On cross-examination, however, he admitted that when he testified at an E.E.O.C. hearing on these same matters in February 1996, he said that Ms. Parsons was unavailable when he called Butterworth, and that some other person told him the jeep had been used for parts. (Tr. 66-67).
23. Likewise, he testified that his son told him the jeep was missing from its parking space (Tr. 52, 60), but acknowledged his earlier testimony in February 1996, when he said "either my wife had went by and told me, okay, or I was with her, I'm not exactly sure." (Tr. 61). Although who told him the jeep was missing is not a critical fact, Mr. Urbanski's inconsistent stories do detract from his credibility.
24. This case is a product of some underlying animosity between Respondent and the postmaster, Mr. Gunther. At least that is true from Mr. Urbanski's side - we have not heard from Mr. Gunther. Mr. Urbanksi testified that he believed Gunther "was out to get me." (Tr. 76). From Mr. Urbanski's point of view, there were plenty of parking spaces available, and there was no need for his jeep to be moved. He saw his damage claim as a means of striking back at Mr. Gunther. In his cross-examination of Inspector Ashmen, he described the claim as being "against" Mr. Gunther (Tr. 18), and in the claim itself he accused Mr. Gunther of lying on several accounts in connection with the removal of the vehicle.
25. Respondent's argument that it would not have made sense for him to file this claim if he knew the jeep had not really been destroyed is not persuasive. If the absence of logic and good sense on the part of the accused were enough to disprove allegations of unlawful conduct, most would probably go unproved.
CONCLUSIONS OF LAW
1. The Program Fraud Civil Remedies Act defines a "claim" as: "any request, demand, or submission - (A) made to an authority for property, services, or money . . .." 31 U.S.C. §3801 (a)(3). The Standard Form 95 submitted by Respondent on September 6, 1994 fits this definition.
2. Respondent's claim was false because he could not have truly believed that his jeep had been destroyed, or that its location was "unknown." Under the definition of terms used in the Statute, 31 U.S.C. §3801(a)(5) and §3802(a)(1), he knew, or had reason to know, that his claim was false.
3. Respondent is subject, therefore, under the Statute, 31 U.S.C. §3802(a)(1), for a penalty of up to $5,000 for submitting a false claim. The General Counsel has asked for the maximum penalty - $5,000.
4. The appropriate amount of penalty must be determined by examining all the surrounding circumstances, including all aggravating and mitigating factors. Linda P. Phipps, P.S. Docket No. PF-48 (P.S.D. November 18, 1994); Neldie E. Nelson, P.S. Docket No. PF-3 (P.S.D. August 19, 1992). Many Government agencies have adopted a set of model regulations proposed by the President's Council on Integrity and Efficiency, which contain a list of factors that, although not binding on the Presiding Officer, may be considered as guidance. See 45 C.F.R. §79.31, promulgated by the Department of Health and Human Services; 52 Fed Reg. 27423-32 (1987).
5. Among the factors to consider are the number of false claims and the time period over which they were made, the amount of money claimed, the value of the agency's actual loss, including the expense of investigation and litigation, the relationship of the penalty sought to that loss, the degree of Respondent's culpability, whether there has been a pattern of similar misconduct, whether Respondent attempted to conceal the misconduct, the potential or actual impact on public confidence in the management of government programs, whether Respondent cooperated in the investigation, and the need to deter Respondent and others from future similar misconduct.
6. In this case, the amount of the claim was relatively small, and the agency did not have a direct loss because the claim was not paid. There was only one claim, and no evidence of any pattern of similar misconduct by Respondent. The General Counsel argues that Respondent's use of the claims process as a means to make a personal attack upon the postmaster is an aggravating factor. It could also be argued, I suppose, that Respondent's filing the claim as a response to a wrong he believed had been done to him is less aggravating than simply attempting, by fraudulent means, to get money one is not entitled to.
7. One of the purposes of the Program Fraud Civil Remedies Act is to deter people from filing false claims with government agencies, both to protect the integrity of government programs, and to avoid the cost to the public of having to investigate and process such claims. Pub. L. 99-509, Section 6102(b); S. Rep. No. 99-212, 99th Cong., 1st Sess. (1985). The need for deterrence is a strong factor in this case.
8. Compensation to the Postal Service for the costs of investigation and litigation, while those costs are not exceptionally large in this case, must also be considered. United States v. Halper, 490 U.S. 435, 445 (1989); Helvering v. Mitchell, 303 U.S. 391, 401 (1938); Sharon Boddie, P.S. Docket No. PF-6 (P.S.D. at 8, October 27, 1992). The General Counsel argues that the maximum penalty is necessary to compensate for those costs and also accomplish the deterrent purpose of the statute.
9. Considering all the facts and circumstances of this case, I find that a penalty of $1,500 is appropriate.
CONCLUSION
The findings and conclusions herein are based on the preponderance of
the evidence. 31 U.S.C. §3803(f). Respondent is liable to the Postal Service
under 31 U.S.C. §3802(a)(1) for a civil penalty of $1,500.
Bruce R. Houston Acting Chief Administrative Law Judge
2. The Postal Inspector testified that the shopping center manager called the towing company, at the request of the postmaster, and that the manager arranged the details. Through cross-examination, Mr. Urbanski implied that he had been given conflicting information as to who had called the towing company, and as to some other details in the removal of the jeep. I do not find these matters to be relevant. It is clear that the vehicle was taken to Merrill's Recycling Yard, and that it was removed from the post office at the behest of the postmaster.
3. Mr. Urbanski's testimony on this point was inconsistent, and the Butterworth witness requested by the Postal Service failed to appear. (Tr. 55-56, 59, 66-67, 111).