In the Matter of the Complainant Against) March 14, 1997 ) JAMES L. DANIELS ) 3674 Silsby Road ) ) at ) ) University Heights, OH 44118-3658 ) P. S. Docket No. PF 96-187 APPEARANCE FOR POSTAL SERVICE: Geoffrey A. Drucker, Esq. Elizabeth P. Martin, Esq.Enforcement Division United States Postal Service 475 L’Enfant Plaza, SW Washington, DC 20260-1148 APPEARANCE FOR RESPONDENT: James L. Daniels 3674 Silsby Road University Heights, OH 44118-3658
POSTAL SERVICE DECISION
Respondent, James L. Daniels, has filed an appeal from an Initial Decision in which an Administrative Law Judge denied Respondent’s request to accept his untimely filed Petition and concluded on the merits that Respondent was liable to the United States Postal Service (Complainant) for an assessment and civil penalty totaling $17,845.64 under the Program Fraud Civil Remedies Act (PFCRA or the Act), 31 U.S.C. §§3801, et seq. The Postal Service opposes the appeal and argues that the Initial Decision should be affirmed.
Background
Complainant’s General Counsel initiated this proceeding by serving on Respondent a Complaint alleging that between May 22, 1990 and October 8, 1991, Respondent submitted 22 false claims for workers’ compensation benefits to the Office of Workers’ Compensation Program (OWCP), United States Department of Labor. According to the Complaint, the false claims were submitted on OWCP Forms CA-8 on which Respondent omitted any mention of his self-employment as a barber during the period he was receiving workers’ compensation benefits. The Complaint requested that Respondent be held liable for an assessment of $26,891.28 (twice the $13,445.64 paid in benefits), plus a civil penalty of $22,000 ($1,000 for each false claim) for a total assessment and penalty of $48,891.28.
The Complaint was received by Respondent on April 19, 1996, thus establishing May 20, 1996 as the date on which the Petition for Hearing was required to be filed.1 The Complaint and accompanying transmittal letter notified Respondent that in the absence of a timely filed petition, he might be held in default and ordered to pay a substantial amount of money.2 Respondent did not file a Petition for Hearing by May 20, 1996, and at the request of the General Counsel, the Complaint was referred to an Administrative Law Judge on June 6, 1996 for the issuance of an Initial Decision in accordance with 39 C.F.R. §962.4(a).3 On June 20, 1996, Respondent filed a Petition for Hearing together with a request that his untimeliness be excused and that he be allowed to oppose the allegations of the Complaint. Respondent claimed he was being represented by Congressman Louis Stokes’ office and that an assistant in that office had instructed him not to do anything until he received a response from her. Therefore, he contended his delay was excusable and that he should be allowed to present his defenses to the Postal Service’s allegations.
On June 25, 1996, the assigned Administrative Law Judge issued a Ruling on Motion to Accept Late Filing of Petition and Initial Decision in which he concluded that Respondent’s delay was not excusable and that his Petition would not be considered. Based on the information contained in the Complaint, the Administrative Law Judge found that Respondent had submitted 22 false claims within the Act’s six year statute of limitations and was liable for an assessment of $13,445.64 and a civil penalty of $4,400 ($200 per claim) for a total assessment and penalty of $17,845.64.
Decision
Respondent filed a timely Notice of Appeal in which he contends his reliance on the advice he received from Congressman Stokes’ office excused his late filing. Therefore, he contends he should be permitted to present his defenses to the allegations of the Complaint. On the merits, Respondent argues he was a good employee who was never given instructions on how to fill out the OWCP forms and that the Postal Service itself did not properly fill out its part of the forms. In addition, Respondent contends that because of the injury he sustained, he was physically unable to work as a barber during the relevant periods. The Postal Service filed a timely response opposing the appeal.
Respondent has not shown that the Administrative Law Judge’s Ruling on Motion to Accept Late Filing of Petition and Initial Decision is erroneous as a matter of fact or law, that his failure to file a timely Petition was excusable,4 or that there is any other basis for permitting him to present his defenses to the allegations of the Complaint. Respondent has not persuasively established that he was in fact advised to take no action by the Congressman’s office or that it was reasonable for him to disregard the clear warnings in the Complaint and transmittal letter that he was to file his Petition for Hearing within 30 days from the date of receipt of the Complaint. Accordingly, the Administrative Law Judge properly concluded that Respondent’s Petition should not be considered in this proceeding.
On the merits, the Administrative Law Judge properly determined that Respondent is liable to the Postal Service for an assessment and penalty under the PFCRA. The record and Respondent’s Petition for Appeal do not establish that Respondent has a meritorious defense to the allegations of the Complaint. The record reflects that Respondent was self-employed as a barber during the period covered by the OWCP forms, and that he failed to report his self-employment as required by those forms. Moreover, contrary to Respondent’s contention, the record also does not establish that his injury prevented him from working as a barber or that any action of the Postal Service contributed to his submission of the false claims. Finally, while Respondent may have been an exemplary employee, he nonetheless submitted false claims to OWCP5 and is liable to the Postal Service for the assessment and penalty authorized by the PFCRA.
CONCLUSION
After consideration of the entire record and Respondent’s exceptions on appeal, it is concluded that Respondent is liable to the Postal Service under the PFCRA for an assessment of $13,445.64 and a civil penalty of $4,400 for a total of $17,845.64. Accordingly, Respondent’s appeal is denied, and the Initial Decision is affirmed.
James A. Cohen Judicial Officer