[Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
[Rules and Regulations]
[Pages 7891-7900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3347]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 /
Rules and Regulations
[[Page 7891]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 185
RIN 3206-AF43
Implementation of the Program Fraud Civil Remedies Act of 1986
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is publishing
regulations to implement the Program Fraud Civil Remedies Act (PFCRA).
Publication of these regulations will enable OPM to institute
administrative proceedings against persons who have presented false
claims or statements to OPM.
EFFECTIVE DATE: March 13, 1995.
FOR FURTHER INFORMATION CONTACT:
Murray M. Meeker, Attorney, Office of the General Counsel, (202) 606-
1980.
SUPPLEMENTARY INFORMATION: On October 21, 1986, Congress enacted the
Program Fraud Civil Remedies Act (PFCRA), Public Law 99-509, 31 U.S.C.
3801-3812. Public Law 99-509 provides a statutory right for the Federal
Government to take direct action against fraud, provided that proper
notification is provided and that the procedures provided for in this
part are followed. On May 12, 1994, OPM published these regulations as
a proposed rule. 59 FR 24661. OPM received several oral comments from
officials of other Federal agencies who were unclear about the scope of
OPM's PFCRA regulations, i.e., they did not know whether the proposed
regulations had Government-wide applicability. These commenters were
advised that the proposed regulations were limited to programs
administered by OPM. One commenter noted that on November 5, 1990,
Congress enacted section 101(c)(1)(A)(ii) of Public Law 101-509 which
provides that any reference outside of title 5 of the United States
Code to ``the minimum rate of pay for grade GS-16 of the General
Schedule'' shall be considered a reference to the minimum rate payable
under section 5376 of title 5 of the United States Code. We have
amended the definition of reviewing official in section 185.102 of the
proposed regulations to reflect this enactment. OPM also received a
written comment from an employee organization in which the organization
commented that the proposed regulations were inconsistent with judicial
decisions which have held that actions may only be taken against
bargaining unit members in accordance with negotiated grievance
procedures. In response to this comment, OPM requested guidance from
the Justice Department and was advised that in implementing the PFCRA,
there was no need to make an exception for bargaining unit employees,
and that unlike overtime pay disputes, PFCRA proceedings are not
processed as grievances. The Department of Justice did confirm the
organization's recommendation that proposed section 185.108(a) refer to
Rule 4 of the Federal Rules of Civil Procedure rather than Rule 4(d).
This change has been made in the final regulations.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because the
effects are limited primarily to federal employees and other entities
who do business with OMB.
List of Subjects in 5 CFR Part 185
Claims.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
Accordingly, OPM is adding part 185 of title 5, Code of Federal
Regulations as follows:
PART 185--PROGRAM FRAUD CIVIL REMEDIES
Sec.
185.101 Purpose.
185.102 Definitions.
185.103 Basis for civil penalties and assessments.
185.104 Investigation.
185.105 Review by the reviewing official.
185.106 Prerequisites for issuing a complaint.
185.107 Complaint.
185.108 Service of complaint.
185.109 Answer.
185.110 Default upon failure to file an answer.
185.111 Referral of complaint and answer to the ALJ.
185.112 Notice of hearing.
185.113 Location of hearing.
185.114 Parties to the hearing.
185.115 Separation of functions.
185.116 Ex parte contacts.
185.117 Disqualification of reviewing official or ALJ.
185.118 Rights of parties.
185.119 Authority of the ALJ.
185.120 Prehearing conferences.
185.121 Disclosure of documents.
185.122 Discovery.
185.123 Exchange of witness lists, statements and exhibits.
185.124 Subpoenas for attendance at hearing.
185.125 Protective order.
185.126 Evidence.
185.127 Fees.
185.128 Form, filing and service of papers.
185.129 Computation of time.
185.130 Motions.
185.131 Sanctions.
185.132 The hearing and burden of proof.
185.133 Determining the amount of penalties and assessments.
185.134 Witnesses.
185.135 The record.
185.136 Post-hearing briefs.
185.137 Initial decision.
185.138 Reconsideration of initial decision.
185.139 Appeal to authority head.
185.140 Stays ordered by the Department of Justice.
185.141 Stay pending appeal.
185.142 Judicial review.
185.143 Collection of civil penalties and assessments.
185.144 Right to administrative offset.
185.145 Deposit in Treasury of the United States.
185.146 Compromise or settlement.
185.147 Limitations.
Authority: 31 U.S.C. 3801-3812.
Sec. 185.101 Purpose.
This subpart implements the Program Fraud Civil Remedies Act of
1986, Public Law 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986),
codified [[Page 7892]] at 31 U.S.C. 3801-3812. Section 3809 requires
each authority head to promulgate regulations necessary to implement
the provisions of the statute. The subpart establishes administrative
procedures for imposing civil penalties and assessments against persons
who make, submit, or present, or cause to be made, submitted, or
presented, false, fictitious, or fraudulent claims or written
statements to authorities or to their agents, and specifies the hearing
and appeal rights of persons subject to allegations of liability for
such penalties and assessments. The moneys collected as a result of
these procedures are deposited as miscellaneous receipts in the
Treasury of the United States.
Sec. 185.102 Definitions.
For the purposes of this part--
ALJ means an Administrative Law Judge in the authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5
U.S.C. 3344.
Authority means the Office of Personnel Management (OPM).
Authority head means the Director of the Office of Personnel
Management or the Director's designee.
Benefit is very broad, and is intended to cover anything of value,
including but not limited to any advantage, preference, privilege,
license, permit, favorable decision, ruling, status or loan guarantee.
Claim means any request, demand, or submission--
(a) Made to the authority for property, services, or money
(including money representing benefits, grants, loans or insurance);
(b) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority:
(1) For property or services if the United States--
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such
property or services; or
(iii) Will reimburse such recipient or party for the purchase of
such property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States:
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
Complaint means the administrative complaint served by the
reviewing official on the defendant under Sec. 185.107.
Defendant means any person alleged in a complaint under
Sec. 185.107 to be liable for a civil penalty or assessment under
Sec. 185.103.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
Sec. 185.110 or Sec. 185.137, and includes a revised initial decision
issued following a remand or a motion for reconsideration.
Investigating Official means the Inspector General or the Inspector
General's designee.
Knows or has reason to know means that a person, with respect to a
claim or statement:
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or falsity of the
claim or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim
or statement.
Makes shall include the terms presents, submits, and causes to be
made, presented, or submitted. As the context requires, making or made,
shall likewise include the corresponding forms of such terms.
Person means any individual, partnership, corporation, association,
or private organization, and includes the plural of that term.
Representative means an attorney who is in good standing of the bar
of any State, Territory, or possession of the United States or of the
District of Columbia or the Commonwealth of Puerto Rico or other
individual designated in writing by the defendant.
Reviewing Official means the General Counsel of OPM or the General
Counsel's designee. For the purposes of Sec. 185.105 of these rules,
the General Counsel personally, or members of the General Counsel's
immediate staff, shall perform the functions of the reviewing official
provided that such person or persons serve in a position for which the
rate of basic pay is not less than the minimum rate payable under
section 5376 of title 5 of the United States Code. All other functions
of the reviewing official, including administrative prosecution under
these rules, shall be performed on behalf of the General Counsel by
members of the Office of the General Counsel.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made:
(a) With respect to a claim or to obtain the approval or payment of
a claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from, the authority, or any State,
political subdivision of a State, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the Government will
reimburse such State, political subdivision, or party for any portion
of the money or property under such contract or for such grant, loan,
or benefit.
Sec. 185.103 Basis for civil penalties and assessments.
(a) In addition to any other remedy that may be prescribed by law,
any person shall be subject to a civil penalty of not more than $5,000,
where the person makes a claim and knows or has reason to know that the
claim:
(1) In false, fictitious, or fraudulent;
(2) Includes, or is supported by, any written statement which
asserts a material fact which is false, fictitious, or fraudulent;
(3) 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 such statement has
a duty to include such material fact; or
(4) Is for payment for the provision of property or services which
the person has not provided as claimed.
(b) Each voucher, invoice, claim form, or other individual request
or demand for property, services, or money constitutes a separate
claim.
(c) A claim shall be considered made to the authority, recipient,
or party when such claim is actually made to an agent, fiscal
intermediary, or other entity, including any State or political
subdivision thereof, acting for or on behalf of the authority,
recipient, or party.
(d) Each claim for property, services, or money is subject to a
civil penalty regardless of whether such property, services, or money
is actually delivered or paid.
(e) If the Government has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section may also be subject to
an assessment of not more than twice the amount of such claim or
[[Page 7893]] that portion thereof that is determined to be in
violation of paragraph (a)(1) of this section. Such assessment shall be
in lieu of damages sustained by the Government because of such claim.
(f) Any person who makes a written statement that:
(1) The person knows or has reason to know:
(i) Asserts a material fact which is false, fictitious, or
fraudulent; or
(ii) Is false, fictitious, or fraudulent because it omits a
material fact that the person making the statement has a duty to
include in such statement; and
(2) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement may be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
(g) Each written representation, certification, or affirmation
constitutes a separate statement.
(h) A statement shall be considered made to the authority when such
statement is actually made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting
for or on behalf of the authority.
(i) No proof of specific intent to defraud is required to establish
liability under this section.
(j) In any case in which it is determined that more than one person
is liable for making a claim or statement under this section, each such
person may be held liable for a civil penalty under this section.
(k) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the Government
has made payment (including transferred property or provided services),
an assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
Sec. 185.104 Investigation.
(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted, he or she
may issue a subpoena.
(1) The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
(2) The investigating official may designate a person to act on his
or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender
to the investigating official, or the person designated to receive the
documents, a certification that
(i) The documents sought have been produced;
(ii) Such documents are not available and the reasons therefor; or
(iii) Such documents, suitably identified, have been withheld based
upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under
the Program Fraud Civil Remedies Act may be warranted, the
investigating official shall submit a report containing the findings
and conclusions of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an
investigating official's discretion to refer allegations directly to
the Department of Justice for suit under the False Claims Act or other
civil relief, or to defer or postpone a report or referral to the
reviewing official to avoid interference with a criminal investigation
or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
Sec. 185.105 Review by the reviewing official.
If, based on the report of the investigating official under
Sec. 185.104(b), the reviewing official determines that there is
adequate evidence to believe that a person is liable under
Sec. 185.103, the reviewing official shall transmit to the Attorney
General a written notice of the reviewing official's intention to have
a complaint issued under Sec. 185.107. Such notice shall include:
(a) A statement of the reviewing official's reasons for issuing a
complaint;
(b) A statement specifying the evidence that supports the
allegations of liability;
(c) A description of the claims or statements upon which the
allegations of liability are based;
(d) An estimate of the amount of money, or the value of property,
services, or other benefits, requested or demanded in violation of
Sec. 185.103;
(e) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(f) A statement that there is a reasonable prospect of collecting
an appropriate amount of penalties and assessments.
Sec. 185.106 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under Sec. 185.107
only if:
(1) The Department of Justice approves the issuance of a complaint
in a written statement described in section 3803(b)(1) of title 31 of
the United States Code, and
(2) In the case of allegations of liability under Sec. 185.103(a)
with respect to a claim, the reviewing official determines that, with
respect to such claim or a group of related claims submitted at the
same time such claim is submitted (as defined in paragraph (b) of this
section), the amount of money, or the value of property or services,
demanded or requested in violation of Sec. 185.103(a) does not exceed
$150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section shall be construed to limit the
reviewing official's authority to join in a single complaint against a
person, claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or
services, demanded or requested.
Sec. 185.107 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with section 3803(b)(1) of title
31 of the United States Code, the reviewing official may serve a
complaint on the defendant, as provided in Sec. 185.108.
(b) The complaint shall state the following:
(1) The allegations of liability against the defendant, including
the statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the
reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer, including a specific
statement of the defendant's right to request a hearing and to be
represented by a representative; and
(4) The fact that failure to file an answer within 30 days of
service of the complaint will result in the imposition of the maximum
amount of penalties and assessments without right to appeal, as
provided in Sec. 185.110.
[[Page 7894]]
(c) At the same time the reviewing official serves the complaint,
he or she shall serve the defendant with a copy of these regulations.
Sec. 185.108 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4 of the Federal
Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by:
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card
acknowledging receipt; or
(3) Written acknowledgment of receipt by the defendant or his or
her representative.
Sec. 185.109 Answer.
(a) The defendant may request a hearing in the answer filed with
the reviewing official within 30 days of service of the complaint.
(b) In the answer, the defendant:
(1) Shall admit or deny each of the allegations of liability made
in the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Shall state the name, address, and telephone number of the
person authorized by the defendant to act as defendant's
representative, if any.
(c) If the defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the defendant may, before the expiration of 30 days from service of the
complaint, file with the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to file an answer meeting the requirements of
paragraph (b) of this section. The reviewing official shall file
promptly with the ALJ the complaint, the general answer denying
liability, and the request for an extension of time as provided in
Sec. 185.110. For good cause shown, the ALJ may grant the defendant up
to 30 additional days within which to file an answer meeting the
requirements of paragraph (b) of this section. The ALJ shall decide
expeditiously whether the dependent shall be granted an additional
period of time to file such answer.
Sec. 185.110 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time
prescribed in Sec. 185.109(a), the reviewing official may refer the
complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly
serve on the defendant in the manner prescribed in Sec. 185.108, a
notice that an initial decision will be issued under this section.
(c) The ALJ shall assume the facts alleged in the complaint to be
true and, if such facts establish liability under Sec. 185.103, the ALJ
shall issue an initial decision imposing the maximum amount of
penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to
file a timely answer the defendant waives any right to further review
of the penalties and assessments imposed under paragraph (c) of this
section and the initial decision shall become final and binding upon
the parties 30 days after it is issued.
(e) If, before such an initial decision becomes final, the
defendant files a motion with the ALJ seeking to reopen on the grounds
that extraordinary circumstances prevented the defendant from filing an
answer, the initial decision shall be stayed pending the ALJ's decision
on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to file a timely answer, the ALJ
shall withdraw the initial decision in paragraph (c) of this section,
if such a decision has been issued, and shall grant the defendant an
opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
Sec. 185.138.
(h) The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal shall stay the initial decision
until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(j) The authority head shall decide expeditiously whether
extraordinary circumstances excuse the defendant's failure to file a
timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances
excused the defendant's failure to file a timely answer, the authority
head shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to answer.
(l) If the authority head decides that the defendant's failure to
file a timely answer is not excused, the authority head shall reinstate
the initial decision of the ALJ, which shall become final and binding
upon the parties 30 days after the authority head issues such decision.
Sec. 185.111 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.
Sec. 185.112 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant in the manner
prescribed by Sec. 185.108. At the same time, the ALJ shall send a copy
of such notice to the reviewing official or his or her designee.
(b) Such notice shall include:
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative
of the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
Sec. 185.113 Location of hearing.
(a) The hearing may be held:
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the
claim or statement in issue was made; or
(3) In such other place as may be agreed upon by the parties and
the ALJ.
(b) Each party shall have the opportunity to present argument with
respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered
by the ALJ.
Sec. 185.114 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and OPM.
(b) Except where the authority head designates another, OPM shall
be represented by the members of the Office of the General Counsel.
(c) Pursuant to section 3730(c)(5) of title 31, United States Code,
a private [[Page 7895]] plaintiff under the False Claims Act may
participate in these proceedings to the extent authorized by the
provisions of that Act.
Sec. 185.115 Separation of functions.
(a) The investigating official, the reviewing official, and any
employee or agent of the authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case:
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the authority head, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under section
3806 of title 31, United States Code.
(b) The ALJ shall not be responsible to or subject to the
supervision or direction of the investigating official or the reviewing
official.
Sec. 185.116 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 185.117 Disqualifications of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of
a reviewing official or an ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It shall be accompanied by a certificate of the representative
of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with this section.
(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head
may determine the matter only as part of his or her review of the
initial decision upon appeal, if any.
Sec. 185.118 Rights of parties.
Except as otherwise limited by this part, all parties may:
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery as provided under Sec. 185.122;
(d) Agree to stipulations of fact or law, which shall be made a
part of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
Sec. 185.119 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid
delay, maintain order, and assure that a record of the proceeding is
made.
(b) The ALJ has the authority to:
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or
regulations invalid.
Sec. 185.120 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least
one prehearing conference at a reasonable time in advance of the
hearing.
(c) The ALJ may use prehearing conferences to discuss the
following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon
by the parties or ordered by the ALJ at a prehearing conference.
Sec. 185.121 Disclosure of documents.
(a) Upon written request to the reviewing official, generally prior
to the filing of an answer, the defendant may review any relevant and
material documents, transcripts, records, and other materials that
relate to the allegations set out in the complaint and upon which the
findings and conclusions of the investigating official under
Sec. 185.104(b) are based, unless such documents are subject to a
privilege under Federal law. Upon payment of fees for duplication, the
defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant,
may [[Page 7896]] also obtain a copy of all exculpatory information in
the possession of the reviewing official or investigating official
relating to the allegations in the complaint, even if it is contained
in a document that would otherwise be privileged. If the document would
otherwise be privileged, only that portion containing exculpatory
information must be disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in Sec. 185.105 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant
to Sec. 185.109.
Sec. 185.122 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and
copying;
(2) Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and Sec. 185.123, the term
documents includes information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence. Nothing
contained herein shall be interpreted to require the creation of a
document.
(c) Unless mutually agreed to by the parties, discovery is
available only as ordered by the ALJ. The ALJ shall regulate the timing
of discovery.
(d) Motions for discovery are to be handled according to the
following procedures:
(1) A party seeking discovery may file a motion with the ALJ. Such
a motion shall be accompanied by a copy of the requested discovery, or
in the case of depositions, a summary of the scope of the proposed
deposition.
(2) Within 10 days of service, a party may file an opposition to
the motion and/or a motion for protective order as provided in
Sec. 185.125.
(3) The ALJ may grant a motion for discovery only if he or she
finds that the discovery sought:
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) the burden of showing that discovery should be allowed is on
the party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
Sec. 185.125.
(e) Depositions are to be handled in the following manner:
(1) If a motion for deposition is granted, the ALJ shall issue a
subpoena for the deponent, which may require the deponent to produce
documents. The subpoena shall specify the time and place at which the
deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the
manner prescribed in Sec. 185.108.
(3) The deponent may file with the ALJ within 10 days of service a
motion to quash the subpoena or a motion for a protective order.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
Sec. 185.123 Exchange of witness lists, statements and exhibits.
(a) At least 15 days before the hearing or at such other time as
may be ordered by the ALJ, the parties shall exchange witness lists,
copies of prior statements of proposed witnesses, and copies of
proposed hearing exhibits, including copies of any written statements
that the party intends to offer in lieu of live testimony in accordance
with Sec. 185.133(b). At the time the above documents are exchanged,
any party that intends to rely on the transcript or deposition
testimony in lieu of live testimony at the hearing, if permitted by the
ALJ, shall provide each party with a copy of the specific pages of the
transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ may not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.
Sec. 185.124 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena shall file a written request
therefor not less than 15 days before the date fixed for the hearing
unless otherwise allowed by the ALJ upon a showing of good cause. Such
request shall specify any documents to be produced and shall designate
the witnesses and describe the address and location thereof with
sufficient particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in Sec. 185.108. A subpoena on a party or upon an individual
under the control of a party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within 10 days after
service or on or before the time specified in the subpoena for
compliance if it is less than 10 days after service.
Sec. 185.125 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of
discovery other than that requested;
(4) That certain matters not be the subject of inquiry, or that the
scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a sealed deposition be opened only by order of the ALJ;
(8) That a trade secret or other confidential research,
development, [[Page 7897]] commercial information, or facts pertaining
to any criminal investigation, proceeding, or other administrative
investigation not be disclosed or be disclosed only in a designated
way; or
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the ALJ.
Sec. 185.126 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ shall not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g. to exclude unreliable
evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or
needless presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal
witnesses and evidence.
(h) All documents and other evidence offered or taken for the
record shall be open to examination by all parties, unless otherwise
ordered by the ALJ pursuant to Sec. 185.125.
Sec. 185.127 Fees.
The party requesting a subpoena shall pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage shall accompany the subpoena when served,
except that when a subpoena is issued on behalf of the authority, a
check for witness fees and mileage need not accompany the subpoena.
Sec. 185.128 Form, filing and service of papers.
(a) Form. Documents filed with the ALJ shall include an original
and two copies. Every pleading and paper filed in the proceeding shall
contain a caption setting forth the title of the action, the case
number assigned by the ALJ, and a designation of the paper (e.g.,
motion to quash subpoena). Every pleading and paper shall be signed by,
and shall contain the address and telephone number of the party or the
person on whose behalf the paper was filed, or his or her
representative.
(b) Filing. Papers are considered filed when they are mailed. Date
of mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(c) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than those required to be
served as prescribed in Sec. 185.108 shall be made by delivering a copy
or by placing a copy of the document in the United States mail, postage
prepaid and addressed, to the party's last known address. When a party
is represented by a representative, service shall be made upon such
representative in lieu of the actual party.
(d) Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
Sec. 185.129 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it
is a Saturday, Sunday, or legal holiday observed by the Federal
Government, in which event it includes the next business day.
(b) When the period of time allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal Government shall be excluded from the computation.
(c) Where a document has been served or issued by placing it in the
mail, an additional 5 days will be added to the time permitted for any
response.
Sec. 185.130 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with the ALJ and served
on all other parties.
(b) Except for motions made during a prehearing conference or at
the hearing, all motions shall be in writing. The ALJ may require that
oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for
filing responses thereto has expired, except upon consent of the
parties or following a hearing on the motion, but may overrule or deny
such motion without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose or all
outstanding motions prior to the beginning of the hearing.
Sec. 185.131 Sanctions.
(a) The ALJ may sanction a person including any party or
representative for the following reasons:
(1) Failure to comply with an order, rule, or procedure governing
the proceeding;
(2) Failure to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the proceeding.
(b) Any such sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate
to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, deem each matter of
which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this
part commenced by service of a notice of hearing, the ALJ may dismiss
the action or may issue an initial decision imposing penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
Sec. 185.132 The hearing and burden of proof.
(a) Where requested in accordance with Sec. 185.109 the ALJ shall
conduct a hearing on the record in order to determine whether the
defendant is liable for a civil penalty or assessment under
Sec. 185.103 and, if so, the appropriate amount of any such civil
penalty or assessment considering any aggravating or mitigating
factors. [[Page 7898]]
(b) The authority shall prove defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise closed
by the ALJ for good cause shown.
Sec. 185.133 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the authority head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, double damages and a
significant civil penalty ordinarily should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, or fraudulent claims or
statements) charged in the complaint;
(1) The number of false, fictitious or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs
of investigation;
(6) The relationship of the amount imposed as civil penalties to
the amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon public
confidence in the management of Government programs and operations;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree
of the defendant's sophistication with respect to it, including the
extent of the defendant's prior participation in the program or in
similar transactions;
(15) Whether the defendant has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or
to have dealt dishonestly with the Government of the United States or
of a State, directly or indirectly;
(16) The need to deter the defendant and others from engaging in
the same or similar misconduct; and
(17) The potential impact of the misconduct on the rights of
others.
(c) Nothing in this section shall be construed to limit the ALJ or
the authority head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
Sec. 185.134 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. Any such written statement
must be provided to all others parties along with the last known
address of such witness, in a manner which allows sufficient time for
other parties to subpoena such witness for cross-examination at the
hearing. Prior written statements of witnesses proposed to testify at
the hearing and deposition transcripts shall be exchanged as provided
in Sec. 185.123(a).
(c) The ALJ shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to--
(1) Make the interrogation and presentation effective for the
ascertainment of the truth,
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the
facts.
(e) At the discretion of the ALJ, a witness may be cross-examined
on matters relevant to the proceedings without regard to the scope of
his or her direct examination. To the extent permitted by the ALJ,
cross-examination on matters outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses
excluded so that they cannot hear the testimony of other witnesses.
This rule does not authorize exclusion of the following:
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party designated by the party's representative; or
(3) An individual whose presence is shown by a party to be
essential to the presentation of its case, including an individual
employed by the Government engaged in assisting the representative for
the Government.
Sec. 185.135 The record.
(a) The hearing shall be recorded and transcribed. Transcripts may
be obtained following the hearing from the ALJ at a cost not to exceed
the actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence
admitted at the hearing, and all papers and requests filed in the
proceeding constitute the record for the decision by the ALJ and the
authority head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to Sec. 185.125.
Sec. 185.136 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ shall fix the
time for filing such briefs, not to exceed 60 days from the date the
parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.
Sec. 185.137 Initial decision.
(a) The ALJ shall issue an initial decision based only on the
record, which shall contain findings of fact, conclusions of law, and
the amount of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the
following issues: [[Page 7899]]
(1) Whether the claims or statements identified in the complaint,
or any portions thereof, violate Sec. 185.103.
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case,
such as those described in Sec. 185.133.
(c) The ALJ shall promptly serve the initial decision on all
parties within 90 days after the time for submission of post-hearing
briefs and reply briefs (if permitted) has expired. The ALJ shall at
the same time serve all parties with a statement describing the right
of any defendant determined to be liable for a civil penalty or
assessment to file a motion for reconsideration with the ALJ or a
notice of appeal with the authority head. If the ALJ fails to meet the
deadline contained in this paragraph, he or she shall notify the
parties of the reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to
the authority head, or a motion for reconsideration of the initial
decision is timely filed, the initial decision shall constitute the
final decision of the authority head and shall be final and binding on
the parties 30 days after it is issued by the ALJ.
Sec. 185.138 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be 5 days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged errors. Such
motion shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final decision of the authority head and
shall be final and binding on all parties 30 days after the ALJ denies
the motion, unless the initial decision is timely appealed to the
authority head in accordance with Sec. 185.139.
(g) If the ALJ issues a revised initial decision, that decision
shall constitute the final decision of the authority head and shall be
final and binding on the parties 30 days after it is issued, unless it
is timely appealed to the authority head in accordance with
Sec. 185.139.
Sec. 185.139 Appeal to authority head.
(a) Any defendant who has filed a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal such decision to the authority head by filing a
notice of appeal with the authority head in accordance with this
section.
(1) A notice of appeal may be filed at any time within 30 days
after the ALJ issues an initial decision. However, if another party
files a motion for reconsideration under Sec. 185.138, consideration of
the appeal shall be stayed automatically pending resolution of the
motion for reconsideration.
(2) If a motion for reconsideration is timely filed, a notice of
appeal shall be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The authority head may extend the initial 30-day period for an
additional 30 days if the defendant files with the authority head a
request for an extension within the initial 30-day period and shows
good cause.
(b) If the defendant files a timely notice of appeal with the
authority head and the time for filing motions for reconsideration
under Sec. 185.138 has expired, the ALJ shall forward the record of the
proceeding to the authority head.
(c) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting
the exceptions.
(d) The representative for OPM may file a brief in opposition to
exceptions within 30 days of receiving the notice of appeal and
accompanying brief.
(e) There is no right to appear personally before the authority
head.
(f) There is no right to appeal an interlocutory ruling by the ALJ.
(g) In reviewing the initial decision the authority head shall not
consider any objection that was not raised before the ALJ unless the
objecting party can demonstrate extraordinary
(h) If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the ALJ for consideration of such additional evidence.
(i) The authority head may affirm, reduce, reverse, compromise,
remand or settle any penalty or assessment determined by the ALJ in any
initial decision.
(j) The authority head shall promptly serve each party to the
appeal with a copy of the decision of the authority head and a
statement describing the right of any person determined to be liable
for a penalty or assessment to seek judicial review.
(k) Unless a petition for review is filed as provided in section
3805 of title 31, United States Code, after a defendant has exhausted
all administrative remedies under this part and within 60 days after
the date on which the authority head serves the defendant with a copy
of the authority head's decision, a determination that a defendant is
liable under Sec. 185.103 is final and not subject to judicial review.
Sec. 185.140 Stays ordered by the Department of Justice.
If, at any time, the Attorney General or an Assistant Attorney
General designated by the Attorney General transmits to the authority
head a written finding that continuation of the administrative process
described in this part with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General
or of the Assistant Attorney General who ordered the stay.
Sec. 185.141 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision
of the authority head.
Sec. 815.142 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the authority head imposing penalties and/or assessments
under this part and specifies the procedures for such review.
Sec. 185.143 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code,
authorize actions [[Page 7900]] for collection of civil penalties and
assessments imposed under this part and specify the procedures for such
actions.
Sec. 185.144 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under Sec. 185.142 or
Sec. 185.143, or any amount agreed upon in a compromise or settlement
under Sec. 185.146, may be collected by administrative offset under
section 3716 of title 31, United States Code, except that an
administrative offset may not be made under section 3716 against a
refund of an overpayment of Federal taxes, then or later owing by the
United States to the defendant.
Sec. 185.145 Deposit in Treasury of the United States.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in section 3806(g) of title 31, United States Code.
Sec. 185.146 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any
time.
(b) The reviewing official has the exclusive authority to
compromise or settle a case under this part at any time after the date
on which the reviewing official is permitted to issue a complaint and
before the date on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any
review under Sec. 185.142 or during the pendency of any action to
collect penalties and assessments under Sec. 185.143.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
Sec. 185.142 or of any action to recover penalties and assessments
under section 3806 to title 31, United States Code.
(e) The investigating official may recommend settlement terms to
the reviewing official, the authority head, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
Sec. 185.147 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in Sec. 185.108 within 6 years after
the date on which such a claim or statement is made.
(b) If the defendant fails to file a timely answer, service of a
notice under Sec. 185.110(b) shall be deemed a notice of hearing for
purposes of this section.
(c) the statute of limitations may be executed by written agreement
of the parties.
[FR Doc. 95-3347 Filed 2-9-95; 8:45 am]
BILLING CODE 6325-01-M
