§ 3803. — Hearing and determinations.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 31USC3803]
TITLE 31--MONEY AND FINANCE
SUBTITLE III--FINANCIAL MANAGEMENT
CHAPTER 38--ADMINISTRATIVE REMEDIES FOR FALSE CLAIMS AND STATEMENTS
Sec. 3803. Hearing and determinations
(a)(1) The investigating official of an authority may investigate
allegations that a person is liable under section 3802 of this title and
shall report the findings and conclusions of such investigation to the
reviewing official of the authority. The preceding sentence does not
modify any responsibility of an investigating official to report
violations of criminal law to the Attorney General.
(2) If the reviewing official of an authority determines, based upon
the report of the investigating official under paragraph (1) of this
subsection, that there is adequate evidence to believe that a person is
liable under section 3802 of this title, the reviewing official shall
transmit to the Attorney General a written notice of the intention of
such official to refer the allegations of such liability to a presiding
officer of such authority. Such notice shall include--
(A) a statement of the reasons of the reviewing official for the
referral of such allegations;
(B) a statement specifying the evidence which supports such
allegations;
(C) a description of the claims or statements for which
liability under section 3802 of this title is alleged;
(D) an estimate of the amount of money or the value of property
or services requested or demanded in violation of section 3802 of
this title; and
(E) a statement of any exculpatory or mitigating circumstances
which may relate to such claims or statements.
(b)(1) Within 90 days after receipt of a notice from a reviewing
official under paragraph (2) of subsection (a), the Attorney General or
an Assistant Attorney General designated by the Attorney General shall
transmit a written statement to the reviewing official which specifies--
(A) that the Attorney General or such Assistant Attorney General
approves or disapproves the referral to a presiding officer of the
allegations of liability stated in such notice;
(B) in any case in which the referral of allegations is
approved, that the initiation of a proceeding under this section
with respect to such allegations is appropriate; and
(C) in any case in which the referral of allegations is
disapproved, the reasons for such disapproval.
(2) A reviewing official may refer allegations of liability to a
presiding officer only if the Attorney General or an Assistant Attorney
General designated by the Attorney General approves the referral of such
allegations in a written statement described in paragraph (1) of this
subsection.
(3) If the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to an authority head a
written finding that the continuation of any hearing under this section
with respect to a claim or statement may adversely affect any pending or
potential criminal or civil action related to such claim or statement,
such hearing shall be immediately stayed and may be resumed only upon
written authorization of the Attorney General.
(c)(1) No allegations of liability under section 3802 of this title
with respect to any claim made, presented, or submitted by any person
shall be referred to a presiding officer under paragraph (2) of
subsection (b) if the reviewing official determines that--
(A) an amount of money in excess of $150,000; or
(B) property or services with a value in excess of $150,000,
is requested or demanded in violation of section 3802 of this title in
such claim or in a group of related claims which are submitted at the
time such claim is submitted.
(2)(A) Except as provided in subparagraph (B) of this paragraph, no
allegations of liability against an individual under section 3802 of
this title with respect to any claim or statement made, presented, or
submitted, or caused to be made, presented, or submitted, by such
individual relating to any benefits received by such individual shall be
referred to a presiding officer under paragraph (2) of subsection (b).
(B) Allegations of liability against an individual under section
3802 of this title with respect to any claim or statement made,
presented, or submitted, or caused to be made, presented, or submitted,
by such individual relating to any benefits received by such individual
may be referred to a presiding officer under paragraph (2) of subsection
(b) if--
(i) such claim or statement is made by such individual in making
application for such benefits;
(ii) such allegations relate to the eligibility of such
individual to receive such benefits; and
(iii) with respect to such claim or statement, the individual--
(I) has actual knowledge that the claim or statement is
false, fictitious, or fraudulent;
(II) acts in deliberate ignorance of the truth or falsity of
the claim or statement; or
(III) acts in reckless disregard of the truth or falsity of
the claim or statement.
(C) For purposes of this subsection, the term ``benefits'' means--
(i) benefits under the supplemental security income program
under title XVI of the Social Security Act;
(ii) old age, survivors, and disability insurance benefits under
title II of the Social Security Act;
(iii) benefits under title XVIII of the Social Security Act;
(iv) assistance under a State program funded under part A of
title IV of the Social Security Act;
(v) medical assistance under a State plan approved under section
1902(a) of the Social Security Act;
(vi) benefits under title XX of the Social Security Act;
(vii) benefits under the food stamp program (as defined in
section 3(h) of the Food Stamp Act of 1977);
(viii) benefits under chapters 11, 13, 15, 17, and 21 of title
38;
(ix) benefits under the Black Lung Benefits Act;
(x) benefits under the special supplemental nutrition program
for women, infants, and children established under section 17 of the
Child Nutrition Act of 1966;
(xi) benefits under section 336 of the Older Americans Act;
(xii) any annuity or other benefit under the Railroad Retirement
Act of 1974;
(xiii) benefits under the Richard B. Russell National School
Lunch Act;
(xiv) benefits under any housing assistance program for lower
income families or elderly or handicapped persons which is
administered by the Secretary of Housing and Urban Development or
the Secretary of Agriculture;
(xv) benefits under the Low-Income Home Energy Assistance Act of
1981; and
(xvi) benefits under part A of the Energy Conservation in
Existing Buildings Act of 1976,
which are intended for the personal use of the individual who receives
the benefits or for a member of the individual's family.
(d)(1) On or after the date on which a reviewing official is
permitted to refer allegations of liability to a presiding officer under
subsection (b) of this section, the reviewing official shall mail, by
registered or certified mail, or shall deliver, a notice to the person
alleged to be liable under section 3802 of this title. Such notice shall
specify the allegations of liability against such person and shall state
the right of such person to request a hearing with respect to such
allegations.
(2) If, within 30 days after receiving a notice under paragraph (1)
of this subsection, the person receiving such notice requests a hearing
with respect to the allegations contained in such notice--
(A) the reviewing official shall refer such allegations to a
presiding officer for the commencement of such hearing; and
(B) the presiding officer shall commence such hearing by mailing
by registered or certified mail, or by delivery of, a notice which
complies with paragraphs (2)(A) and (3)(B)(i) of subsection (g) to
such person.
(e)(1)(A) Except as provided in subparagraph (B) of this paragraph,
at any time after receiving a notice under paragraph (2)(B) of
subsection (d), the person receiving such notice shall be entitled to
review, and upon payment of a reasonable fee for duplication, shall be
entitled to obtain a copy of, all relevant and material documents,
transcripts, records, and other materials, which relate to such
allegations and upon which the findings and conclusions of the
investigating official under paragraph (1) of subsection (a) are based.
(B) A person is not entitled under subparagraph (A) to review and
obtain a copy of any document, transcript, record, or material which is
privileged under Federal law.
(2) At any time after receiving a notice under paragraph (2)(B) of
subsection (d), the person receiving such notice shall be entitled to
obtain all exculpatory information in the possession of the
investigating official or the reviewing official relating to the
allegations contained in such notice. The provisions of subparagraph (B)
of paragraph (1) do not apply to any document, transcript, record, or
other material, or any portion thereof, in which such exculpatory
information is contained.
(f) Any hearing commenced under paragraph (2) of subsection (d)
shall be conducted by the presiding officer on the record in order to
determine--
(1) the liability of a person under section 3802 of this title;
and
(2) if a person is determined to be liable under such section,
the amount of any civil penalty or assessment to be imposed on such
person.
Any such determination shall be based on the preponderance of the
evidence.
(g)(1) Each hearing under subsection (f) of this section shall be
conducted--
(A) in the case of an authority to which the provisions of
subchapter II of chapter 5 of title 5 apply, in accordance with--
(i) the provisions of such subchapter to the extent that
such provisions are not inconsistent with the provisions of this
chapter; and
(ii) procedures promulgated by the authority head under
paragraph (3) of this subsection; or
(B) in the case of an authority to which the provisions of such
subchapter do not apply, in accordance with procedures promulgated
by the authority head under paragraphs (2) and (3) of this
subsection.
(2) An authority head of an authority described in subparagraph (B)
of paragraph (1) shall by regulation promulgate procedures for the
conduct of hearings under this chapter. Such procedures shall include:
(A) The provision of written notice of the hearing to any person
alleged to be liable under section 3802 of this title, including
written notice of--
(i) the time, place, and nature of the hearing;
(ii) the legal authority and jurisdiction under which the
hearing is to be held; and
(iii) the matters of facts and law to be asserted.
(B) The provision to any person alleged to be liable under
section 3802 of this title of opportunities for the submission of
facts, arguments, offers of settlement, or proposals of adjustment.
(C) Procedures to ensure that the presiding officer shall not,
except to the extent required for the disposition of ex parte
matters as authorized by law--
(i) consult a person or party on a fact in issue, unless on
notice and opportunity for all parties to the hearing to
participate; or
(ii) be responsible to or subject to the supervision or
direction of the investigating official or the reviewing
official.
(D) Procedures to ensure that the investigating official and the
reviewing official do not participate or advise in the decision
required under subsection (h) of this section or the review of the
decision by the authority head under subsection (i) of this section,
except as provided in subsection (j) of this section.
(E) The provision to any person alleged to be liable under
section 3802 of this title of opportunities to present such person's
case through oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required
for a full and true disclosure of the facts.
(F) Procedures to permit any person alleged to be liable under
section 3802 of this title to be accompanied, represented, and
advised by counsel or such other qualified representative as the
authority head may specify in such regulations.
(G) Procedures to ensure that the hearing is conducted in an
impartial manner, including procedures to--
(i) permit the presiding officer to at any time disqualify
himself; and
(ii) permit the filing, in good faith, of a timely and
sufficient affidavit alleging personal bias or another reason
for disqualification of a presiding officer or a reviewing
official.
(3)(A) Each authority head shall promulgate by regulation procedures
described in subparagraph (B) of this paragraph for the conduct of
hearings under this chapter. Such procedures shall be in addition to the
procedures described in paragraph (1) or paragraph (2) of this
subsection, as the case may be.
(B) The procedures referred to in subparagraph (A) of this paragraph
are:
(i) Procedures for the inclusion, in any written notice of a
hearing under this section to any person alleged to be liable under
section 3802 of this title, of a description of the procedures for
the conduct of the hearing.
(ii) Procedures to permit discovery by any person alleged to be
liable under section 3802 of this title only to the extent that the
presiding officer determines that such discovery is necessary for
the expeditious, fair, and reasonable consideration of the issues,
except that such procedures shall not apply to documents,
transcripts, records, or other material which a person is entitled
to review under paragraph (1) of subsection (e) or to information to
which a person is entitled under paragraph (2) of such subsection.
Procedures promulgated under this clause shall prohibit the
discovery of the notice required under subsection (a)(2) of this
section.
(4) Each hearing under subsection (f) of this section shall be
held--
(A) in the judicial district of the United States in which the
person alleged to be liable under section 3802 of this title resides
or transacts business;
(B) in the judicial district of the United States in which the
claim or statement upon which the allegation of liability under such
section was made, presented, or submitted; or
(C) in such other place as may be agreed upon by such person and
the presiding officer who will conduct such hearing.
(h) The presiding officer shall issue a written decision, including
findings and determinations, after the conclusion of the hearing. Such
decision shall include the findings of fact and conclusions of law which
the presiding officer relied upon in determining whether a person is
liable under this chapter. The presiding officer shall promptly send to
each party to the hearing a copy of such decision and a statement
describing the right of any person determined to be liable under section
3802 of this title to appeal the decision of the presiding officer to
the authority head under paragraph (2) of subsection (i).
(i)(1) Except as provided in paragraph (2) of this subsection and
section 3805 of this title, the decision, including the findings and
determinations, of the presiding officer issued under subsection (h) of
this section are final.
(2)(A)(i) Except as provided in clause (ii) of this subparagraph,
within 30 days after the presiding officer issues a decision under
subsection (h) of this section, any person determined in such decision
to be liable under section 3802 of this title may appeal such decision
to the authority head.
(ii) If, within the 30-day period described in clause (i) of this
subparagraph, a person determined to be liable under this chapter
requests the authority head for an extension of such 30-day period to
file an appeal of a decision issued by the presiding officer under
subsection (h) of this section, the authority head may extend such
period if such person demonstrates good cause for such extension.
(B) Any authority head reviewing under this section the decision,
findings, and determinations of a presiding officer shall not consider
any objection that was not raised in the hearing conducted pursuant to
subsection (f) of this section unless a demonstration is made of
extraordinary circumstances causing the failure to raise the objection.
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
presiding officer for consideration of such additional evidence.
(C) The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment determined by the presiding
officer pursuant to this section. The authority head shall promptly send
to each party to the appeal a copy of the decision of the authority head
and a statement describing the right of any person determined to be
liable under section 3802 of this title to judicial review under section
3805 of this title.
(j) The reviewing official has the exclusive authority to compromise
or settle any allegations of liability under section 3802 of this title
against a person without the consent of the presiding officer at any
time after the date on which the reviewing official is permitted to
refer allegations of liability to a presiding officer under subsection
(b) of this section and prior to the date on which the presiding officer
issues a decision under subsection (h) of this section. Any such
compromise or settlement shall be in writing.
(Added Pub. L. 99-509, title VI, Sec. 6103(a), Oct. 21, 1986, 100 Stat.
1939; amended Pub. L. 103-448, title II, Sec. 204(w)(2)(C), Nov. 2,
1994, 108 Stat. 4746; Pub. L. 104-193, title I, Sec. 110(o), Aug. 22,
1996, 110 Stat. 2175; Pub. L. 106-78, title VII, Sec. 752(b)(13), Oct.
22, 1999, 113 Stat. 1169.)
References in Text
The Social Security Act, referred to in subsec. (c)(2)(C)(i) to
(vi), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles
II, XVI, XVIII, and XX of the Act are classified generally to
subchapters II (Sec. 401 et seq.), XVI (Sec. 1381 et seq.), XVIII
(Sec. 1395 et seq.), and XX (Sec. 1397 et seq.), respectively, of
chapter 7 of Title 42, The Public Health and Welfare. Part A of title IV
of the Act is classified generally to part A (Sec. 601 et seq.) of
subchapter IV of chapter 7 of Title 42. Section 1902(a) of the Act is
classified to section 1396a(a) of Title 42. For complete classification
of this Act to the Code, see section 1305 of Title 42 and Tables.
Section 3(h) of the Food Stamp Act of 1977, referred to in subsec.
(c)(2)(C)(vii), is classified to section 2012(h) of Title 7,
Agriculture.
The Black Lung Benefits Act, referred to in subsec. (c)(2)(C)(ix),
is title IV of Pub. L. 91-173, Dec. 30, 1969, 83 Stat. 792, as amended,
which is classified generally to subchapter IV (Sec. 901 et seq.) of
chapter 22 of Title 30, Mineral Lands and Mining. For complete
classification of this Act to the Code, see section 901(b) of Title 30
and Tables.
Section 17 of the Child Nutrition Act of 1966, referred to in
subsec. (c)(2)(C)(x), is classified to section 1786 of Title 42, The
Public Health and Welfare.
Section 336 of the Older Americans Act, referred to in subsec.
(c)(2)(C)(xi), probably means section 336 of the Older Americans Act of
1965, which is classified to section 3030f of Title 42.
The Railroad Retirement Act of 1974, referred to in subsec.
(c)(2)(C)(xii), is act Aug. 29, 1935, ch. 812, as amended generally by
Pub. L. 93-445, title I, Sec. 101, Oct. 16, 1974, 88 Stat. 1305, which
is classified generally to subchapter IV (Sec. 231 et seq.) of chapter 9
of Title 45, Railroads. For further details and complete classification
of this Act to the Code, see Codification note set out preceding section
231 of Title 45, section 231t of Title 45, and Tables.
The Richard B. Russell National School Lunch Act, referred to in
subsec. (c)(2)(C)(xiii), is act June 4, 1946, ch. 281, 60 Stat. 230, as
amended, which is classified generally to chapter 13 (Sec. 1751 et seq.)
of Title 42, The Public Health and Welfare. For complete classification
of this Act to the Code, see Short Title note set out under section 1751
of Title 42 and Tables.
The Low-Income Home Energy Assistance Act of 1981, referred to in
subsec. (c)(2)(C)(xv), is title XXVI of Pub. L. 97-35, Aug. 13, 1981, 95
Stat. 893, as amended, which is classified generally to subchapter II
(Sec. 8621 et seq.) of chapter 94 of Title 42. For complete
classification of this Act to the Code, see Short Title note set out
under section 8621 of Title 42 and Tables.
The Energy Conservation in Existing Buildings Act of 1976, referred
to in subsec. (c)(2)(C)(xvi), is title IV of Pub. L. 94-385, Aug. 14,
1976, 90 Stat. 1150, as amended. Part A of the Energy Conservation in
Existing Buildings Act of 1976 is classified generally to Part A
(Sec. 6861 et seq.) of subchapter III of chapter 81 of Title 42. For
complete classification of this Act to the Code, see Short Title note
set out under section 6801 of Title 42 and Tables.
Amendments
1999--Subsec. (c)(2)(C)(xiii). Pub. L. 106-78 substituted ``Richard
B. Russell National School Lunch Act'' for ``National School Lunch
Act''.
1996--Subsec. (c)(2)(C)(iv). Pub. L. 104-193 amended cl. (iv)
generally. Prior to amendment, cl. (iv) read as follows: ``aid to
families with dependent children under a State plan approved under
section 402(a) of the Social Security Act;''.
1994--Subsec. (c)(2)(C)(x). Pub. L. 103-448 substituted ``special
supplemental nutrition program'' for ``special supplemental food
program''.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-193 effective July 1, 1997, with transition
rules relating to State options to accelerate such date, rules relating
to claims, actions, and proceedings commenced before such date, rules
relating to closing out of accounts for terminated or substantially
modified programs and continuance in office of Assistant Secretary for
Family Support, and provisions relating to termination of entitlement
under AFDC program, see section 116 of Pub. L. 104-193, as amended, set
out as an Effective Date note under section 601 of Title 42, The Public
Health and Welfare.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-448 effective Oct. 1, 1994, see section 401
of Pub. L. 103-448, set out as a note under section 1755 of Title 42,
The Public Health and Welfare.
Section Referred to in Other Sections
This section is referred to in sections 1352, 3801, 3802, 3804,
3805, 3806, 3807, 3808, 3809 of this title; title 42 section 7385e;
title 50 App. sections 1989b-4, 1989c-5.
