Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ June 26, 1998 __________________ GSBCA 14400-TRAV In the Matter of ROBERT E. GREEN Robert E. Green, Redding, CA, Claimant. Lisa Peer, Defense Finance and Accounting Service, Rock Island, IL, appearing for Department of Defense. NEILL, Board Judge. Mr. Robert E. Green, a former civilian employee of the Department of the Army, asks that we reconsider a decision rendered by the Claims Group of the General Accounting Office (GAO) on January 12, 1994. In that decision, GAO denied a claim by Mr. Green for reimbursement of travel per diem previously paid to him but collected back after the agency concluded that his original vouchers were tainted by fraud. Robert E. Green, Z- 2868607 (Jan. 12, 1994). For the reasons set out below, we deny the request. Background The record indicates that on November 18, 1983, Mr. Green was removed from his position as an electronics technician assigned to the Sacramento Army Depot (SAAD) in California. While employed there he was often sent elsewhere on temporary duty (TDY). When on TDY he occupied a mobile home and, upon return, would claim reimbursement for rental paid on the mobile home as well as for related expenses. The Army subsequently determined after an official investigation that the mobile home in question had been rented from a company which was owned by Mr. Green and his family, that the company owned only that one mobile home, and that the money received from the Government by Mr. Green was not used to pay actual expenses but, rather, was placed in a money market account for his own benefit. On November 9, 1983, the Army issued a Standard Form 50 (SF50) (Notification of Personnel Action) advising Mr. Green that he was being removed effective November 18, 1983. In the "Remarks" block of the form, Item 37, the following statement appeared: "Removal for falsification of official records in order to gain monetary remunerations to which you were not entitled." Mr. Green appealed the removal action to the Merit Systems Protection Board (MSPB). In the proceedings which followed, the agency charged Mr. Green with four offenses: (1) submitting false representations of lodging costs on official documentation, (2) being absent without official leave (AWOL), (3) violating agency leave regulations, and (4) being insubordinate by failing to comply with a direct order of his supervisor. On April 10, 1984, the MSPB affirmed the agency's decision to remove Mr. Green. Mr. Green promptly filed a petition for review of that decision. The petition was granted. On December 18, 1984, the MSPB affirmed the original decision but with modification. The decision of December 18 found that the evidence presented did not support a charge of falsification of official documents, but rather, a failure to disclose an apparent conflict of interest. This, however, was not a charge brought by the agency. Accordingly, the MSPB declined to sustain removal for a charge which, it noted, the agency could have properly brought but did not. Nevertheless, the Board did sustain the agency's removal of Mr. Green on the basis of the other three charges, namely, absence without leave for over two months, insubordination, and violation of agency leave regulations. Green v. Department of the Army, 25 M.S.P.R. 42 (1984). Claimant appealed the final decision of the MSPB to the Court of Appeals for the Federal Circuit. By decision dated December 23, 1985, the Court of Appeals affirmed the MSPB's final decision. Green v. Merit Systems Protection Board, 785 F.2d 326 (Fed. Cir. 1985). Shortly thereafter, in January 1986, Mr. Green wrote the commanding officer at SAAD. He noted that the MSPB had determined that he had not submitted false travel voucher claims. He, therefore asked that wages previously withheld to recoup disallowed reimbursements be restored to him. By letter dated January 22, 1986, the SAAD commanding officer replied that Mr. Green's request would be handled as a claim for money due in accordance with applicable Army regulation. The letter further explained that the finding of the MSPB that there was insufficient evidence of fraudulent intent to support a charge of fraud as a basis for removal did not constitute a finding that Mr. Green was entitled to monies withheld to satisfy disallowed claims already paid to him. The commanding officer advised that the SAAD Finance and Accounting Office planned to refer the matter to the Army Finance and Accounting Command for decision and that any decision of the Command could be appealed to the GAO if Mr. Green elected to do so. A second letter to Mr. Green from the commanding officer at SAAD, this one dated March 3, 1986, again advised him that his case would be forwarded to the Finance and Accounting Command for action and that the review process would probably take a minimum of ninety days. Mr. Green was asked to sign and return an enclosed voucher intended for inclusion in the agency's claim package.[foot #] 1 On that same date, March 3, 1986, the original Standard Form 50 (Notification of Personnel Action) of November 9, 1983, which had advised Mr. Green of his removal for falsification of official record was amended. The "Remarks" block of the form, i.e. Item 37, was changed to read: "Corrects Item 37 to delete remarks and to add the following: Removed for extended AWOL." After being advised of the Government's intention to remove him but before November 18, 1983, the effective date of his removal, Mr. Green had filed a claim for worker compensation benefits, claiming that he was suffering from disabling tinnitus because of stress from work. The Office of Workers' Compensation Programs (OWCP) of the Department of Labor initially denied his claim. On February 19, 1987, however, OWCP vacated its original decision and notified Mr. Green that he was found to be totally disabled from July 1, 1983, through March 1, 1986. He, thereupon, petitioned the Army to reinstate him with priority consideration. The request was denied. Once more, Mr. Green appealed to the MSPB. By decision dated January 6, 1989, an MSPB administrative judge directed the agency to reinstate Mr. Green. The decision noted that Mr. Green's AWOL period fell entirely within the period during which the OWCP found him to be completely disabled. The MSPB judge, therefore, concluded that the AWOL and related charges would not have been sustained by the Board initially had the OWCP decision been available at the time. This decision was affirmed by the MSPB in July 1991. Green v. Department of the Army, 49 M.S.P.R. 289 (1991). Mr. Green was thereafter reinstated and eventually reported to work on July 13, 1992. By letter dated July 30, 1992, he was advised of the agency's intention to continue to collect, with interest, the amounts still deemed due as a result of previously disallowed TDY reimbursements. This amount was said to total $49,628.34. The letter indicated, however, that the agency intended to seek a waiver of the interest and penalties from the Defense Finance and Accounting Service (DFAS). This was in fact done. The waiver was granted by DFAS and Mr. Green, through regular biweekly salary deductions and personal checks, paid, under protest, the remaining indebtedness by the close of 1992. ----------- FOOTNOTE BEGINS --------- [foot #] 1 This request for a signed voucher was repeated in a subsequent letter of March 19, 1986, from the SAAD Finance and Accounting Office. The agency contends that Mr. Green never provided the signed voucher and that, for this reason, the claim package was never forwarded to the Army Finance and Accounting Command for review. ----------- FOOTNOTE ENDS ----------- In October 1992, Mr. Green submitted to GAO a claim for restitution of the amount the agency had already taken and had now resumed taking from his regular salary. In April 1993, after the claimed indebtedness was finally satisfied, Mr. Green updated his claim and asked for restitution of a total of $26,114.87. By letter dated May 6, 1993, the agency submitted to GAO its own comments regarding Mr. Green's claim. In commenting on the claim, the agency repeated its contention that Mr. Green's travel vouchers were tainted with fraud. In support of this allegation, the agency included a copy of the official investigative report. On January 12, 1994, GAO's Claims Group denied Mr. Green's claim. The decision, relying on a well established precedent, stated: Where an agency investigation clearly reveals that an employee included fraudulent statements in a travel voucher in order to obtain funds from the government, the agency has met its burden of proving that the claims for subsistence expenses for those days are tainted by fraud. 68 Comp. Gen. 108 (1988). The decision then went on to state: We believe that your former agency has met its burden. The . . .[i]nvestigative [s]ervice report shows that you admitted to a Special Agent of the Federal Bureau of Investigation that you falsified documents that were provided to the Finance and Accounting Office, and that your company[,] "Travelin Homes[,]" was owned by you and your family. The record also indicates that your wife utilized her maiden name as agent for "Travelin Homes". There is also no indication that you incurred any reimbursable expenses since the money you received from the government was not used to pay your expenses, but rather, was placed in a Money Market Account for your benefit. By letter dated October 8, 1997, Mr. Green submitted to the GAO Claims Group a request for reconsideration of the decision issued in January of 1994. He stated that his request was prompted by discovery of the amended SF-50 (Notification of Personnel Action), dated March 3, 1986, which advised that the "Remarks" block of the form, i.e. Item 37, was changed to read: "Corrects Item 37 to delete remarks and to add the following: Removed for extended AWOL." He explained that he discovered the document among other documents furnished to him in response to a request filed under the Freedom of Information Act (FOIA). He further stated: "[T]his is the first time in all of the years that this document has appeared. It was never been [sic] presented by the Agency to any judicial hearing that occurred through the years." This amended SF-50, in the opinion of Mr. Green, represents the agency's "abandonment of the falsification issues" and thus should narrow the focus of the GAO inquiry to the issue of whether he was entitled to reimbursement of rental costs paid for the use of corporation owned lodging. Upon receipt of Mr. Green's request for reconsideration, GAO advised him that pursuant to 211 of Public Law 104-53 of November 19, 1995, its authority to resolve claims such as his had been transferred to this Board. The matter was, thereafter, referred to us for resolution. Discussion Had the decision denying Mr. Green's claim been rendered by this Board, Mr. Green s request for reconsideration, coming as it does over three years and eight months from the date of the original decision, would clearly be untimely. Under Board Rules, requests for reconsideration must be received by the Board within thirty calendar days after the date the decision was issued (or within sixty calendar days after the date the decision was issued, if the claimant or the agency office making the request is located outside the fifty states and the District of Columbia). 48 CFR 6104.7 (1997). Procedurally speaking, Mr. Green's case is somewhat unique. It is one of the few cases which span the transfer of the authority to decide travel claims from the GAO to this Board. The decision in question was rendered by GAO, but, owing to the transfer of responsibility for travel claims, the request for reconsideration now comes to us for action. Our rules on timeliness do not address the few transitional cases such as this. For these cases, we have required only that requests to reconsider be submitted within a reasonable length of time. As the time of transfer of these cases from GAO to this Board recedes further into the past, however, the task of establishing the timeliness of any requests for reconsideration naturally becomes increasingly difficult. Mr. Green's request is an example of a request which, on balance, we conclude is not timely filed. We say this for two reasons. First, the length of time since the original decision was issued -- over three years and eight months -- is, in and of itself, an exceedingly long period of time for a request of this nature. Second, the particular circumstances attendant to this case only render justification of such a long delay even more difficult. At the time GAO s decision was issued, the claimant was well aware that the underlying relevant facts in this case were already extraordinarily stale. The alleged misrepresentation and fraud and the official investigation of them occurred in the early eighties. The proceedings growing out of these incidents were lengthy and complex. Furthermore, the claimant was undoubtedly aware that, at the time his claim was being processed by GAO, the SAAD was already scheduled for closure. Relevant records and personnel with knowledge of relevant facts have long since been transferred or retired. There comes a time in judicial and administrative proceedings when, for purposes of the common good and specifically for reasons of judicial and administrative economy, decisions made by judicial or administrative officials must be considered final.[foot #] 2 We realize that no specific rule of this Board or of the GAO provides a fixed period of time after which the GAO decision in this case would be deemed final. Nevertheless, given the circumstances of this case, we consider it unreasonable for Mr. Green to have assumed that, after three years and eight months, the GAO decision denying his claim would not by then have become final. We, therefore, deem his request untimely filed. In requesting reconsideration of GAO's denial of his claim, Mr. Green contends that the amended SF-50 which he received in response to an FOIA request is "newly discovered." We are not told when the FOIA request was filed or precisely when the material in which it was found was delivered to him. Nevertheless, even if we were to conclude that his failure to request reconsideration at an earlier date was attributable solely to the Government's failure to respond to his inquiries in a timely fashion, we would still deny the request for reconsideration. We say this not only because we consider it reasonable to conclude that by October 1997, a decision rendered in January 1994 should be looked upon as final but also because we find the "newly discovered" evidence to be of little or no significance. We are not persuaded that it is probable that GAO would have decided Mr. Green's claim differently had it had the opportunity to examine the SF-50 as amended in March 1986. The amendment was prepared in early March 1986, after the first series of MSPB decisions, when, according to the SAAD Commander, the depot was preparing a submission of Mr. Green's claim to the Army Finance and Accounting Command. We assume the agency intended to include the SF-50 in the claim package. At that point in time, however, the reason given for Mr. Green's removal in the original SF-50, namely falsification of Government documents, had been rejected by the MSPB. The agency, therefore, undertook to amend the SF-50 to reflect a charge which had been upheld by the MSPB. We see the amendment, therefore, as nothing more than a change in the SF-50 to have it track with the outcome of the MSPB proceedings. This amendment of the SF-50, however, has no real significance for GAO s review of Mr. Green's subsequent claim for restitution of the amounts withheld by the Army. The agency, in amending the original SF-50, was obviously prepared to ----------- FOOTNOTE BEGINS --------- [foot #] 2 We note, for example, that under Rule 60 of the Federal Rules of Civil Procedure, in cases where new evidence comes to light which could not have been discovered previously by due diligence, the amount of time deemed reasonable for a judgement or order to become final is no more than one year. ----------- FOOTNOTE ENDS ----------- acknowledge that the MSPB did not judge the evidence provided sufficient to justify removal of Mr. Green on the charge of falsifying records. Nevertheless, nothing in the record suggests that the agency ever retreated from its contention that Mr. Green s travel vouchers were tainted by misrepresentation and fraud. In early 1986, following the Federal Circuit s affirmance of the MSPB decision, the SAAD commanding officer rejected Mr. Green s contention that moneys previously withheld should now be returned to him. Instead, he advised Mr. Green that his claim would have to be referred to a higher level for resolution. Similarly, in commenting on Mr. Green s claim to GAO, the agency continued to allege fraud and misrepresentation and provided a copy of the official investigative report in support of its allegation. Neither should it be assumed that the findings of the MSPB with regard to the propriety of a personnel action were necessarily binding on the GAO when the GAO exercised its independent authority to settle travel claims of federal employees. In a case such as this, it is important to recognize that, even where the MSPB and the GAO have reviewed similar evidence, the questions before them and the legal precedents they are expected to apply can differ significantly and, on occasion, may lead to contrasting results. Here the MSPB reviewed the evidence presented by the Army to determine if, according to MSPB precedents, this was sufficient to justify removal of Mr. Green from his position at SAAD. The MSPB eventually concluded that, in submitting his TDY vouchers, Mr. Green had failed to disclose an apparent conflict of interest but that this was not enough to justify removal on the ground that he had intentionally falsified Government documents. The GAO, on the other hand, reviewed the evidence put forward by the Army to determine whether, in accordance with prior decisions of the GAO, it was sufficient to justify disallowance of Mr. Green s TDY vouchers. GAO concluded, based on the evidence presented and on prior GAO rulings, that the Army had established a persuasive case that the claims in question were tainted by fraud and, therefore, properly disallowed. In short, because we are convinced that the amended SF-50 is of no real relevance to the GAO decision which Mr. Green would have us reconsider, we most certainly would not look upon its alleged recent discovery as a reasonable ground for reconsidering that decision -- even if we were to conclude the request for reconsideration was timely filed. The request for reconsideration is, therefore, denied. _______________________ EDWIN B. NEILL Board Judge