Hearing and determinations

31 U.S.C. § 3803

• Title: 31 — Money and Finance
• Chapter: 38 — ADMINISTRATIVE REMEDIES FOR FALSE CLAIMS AND STATEMENTS

Text

(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 $1,000,000; or
(B) property or services with a value in excess of $1,000,000,
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 supplemental nutrition assistance program (as defined in section 3 of the Food and Nutrition Act of 2008);
(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.
(3) Adjustment for Inflation.—The maximum amount in paragraph (1) shall be adjusted for inflation in the same manner and to the same extent as civil monetary penalties under the Federal Civil Penalties Inflation Adjustment Act 1 (28 U.S.C. 2461 note).
(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;
(B)(i) in the case of a referral to a presiding officer described in subparagraph (A) or (B) of section 3801(a)(7), 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; or
(ii) in the case of a referral to a presiding officer described in subparagraph (C) of section 3801(a)(7)—
(I) the reviewing official shall submit a copy of the notice required by under paragraph (1) and of the response of the person receiving such notice requesting a hearing—
(aa) to the board of contract appeals that has jurisdiction over matters arising from the agency of the reviewing official pursuant to section 7105(e)(1) of title 41; or
(bb) if the Chair of the board of contract appeals declines to accept the referral, to any other board of contract appeals; and
(II) the reviewing official shall simultaneously mail, by registered or certified mail, or shall deliver, notice to the person alleged to be liable under section 3802 that the referral has been made to an agency board of contract appeals with an explanation as to where the person may obtain the relevant rules of procedure promulgated by the board; and
(C) in the case of a hearing conducted by a presiding officer described in subparagraph (C) of section 3801(a)(7)—
(i) the presiding officer shall conduct the hearing according to the rules and procedures promulgated by the board of contract appeals; and
(ii) the hearing shall not be subject to the provisions in subsection (g)(2), (h), or (i).
(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)(1) 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.
(2) A reviewing official shall notify the Attorney General in writing not later than 30 days before entering into any agreement to compromise or settle allegations of liability under section 3802 and before the date on which the reviewing official is permitted to refer allegations of liability to a presiding officer under subsection (b).

History

(Added Pub. L. 99–509, title VI, §6103(a), Oct. 21, 1986, 100 Stat. 1939; amended Pub. L. 103–448, title II, §204(w)(2)(C), Nov. 2, 1994, 108 Stat. 4746; Pub. L. 104–193, title I, §110(o), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 106–78, title VII, §752(b)(13), Oct. 22, 1999, 113 Stat. 1169; Pub. L. 110–234, title IV, §§4002(b)(1)(A), (B), (2)(S), 4115(c)(2)(E), May 22, 2008, 122 Stat. 1095–1097, 1110; Pub. L. 110–246, §4(a), title IV, §§4002(b)(1)(A), (B), (2)(S), 4115(c)(2)(E), June 18, 2008, 122 Stat. 1664, 1857, 1858, 1871; Pub. L. 113–79, title IV, §4030(o), Feb. 7, 2014, 128 Stat. 815; Pub. L. 118–159, div. E, title LII, §5203(c), (f), (g)(1)(B), Dec. 23, 2024, 138 Stat. 2440–2442.)

Editorial Notes

Editorial Notes

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. Titles II, XVI, XVIII, and XX of the Act are classified generally to subchapters II (§401 et seq.), XVI (§1381 et seq.), XVIII (§1395 et seq.), and XX (§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 (§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 of the Food and Nutrition Act of 2008, referred to in subsec. (c)(2)(C)(vii), is classified to section 2012 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, which is classified generally to subchapter IV (§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, §101, Oct. 16, 1974, 88 Stat. 1305, which is classified generally to subchapter IV (§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, which is classified generally to chapter 13 (§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, which is classified generally to subchapter II (§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. Part A of the Energy Conservation in Existing Buildings Act of 1976 is classified generally to Part A (§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.
The Federal Civil Penalties Inflation Adjustment Act of 1990, referred to in subsec. (c)(3), is Pub. L. 101–410, Oct. 5, 1990, 104 Stat. 890, which is set out as a note under section 2461 of Title 28, Judiciary and Judicial Procedure.

Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.

Amendments
2024—Subsec. (c)(1)(A), (B). Pub. L. 118–159, §5203(c)(1), substituted "$1,000,000" for "$150,000".
Subsec. (c)(3). Pub. L. 118–159, §5203(c)(2), added par. (3).
Subsec. (d)(2)(B). Pub. L. 118–159, §5203(g)(1)(B)(ii), designated existing provisions as cl. (i), substituted "in the case of a referral to a presiding officer described in subparagraph (A) or (B) of section 3801(a)(7), the presiding" for "the presiding" and "person; or" for "person.", and added cl. (ii)
Subsec. (d)(2)(C). Pub. L. 118–159, §5203(g)(1)(B)(i), (iii), added subpar. (C).
Subsec. (j). Pub. L. 118–159, §5203(f), designated existing provisions as par. (1) and added par. (2).
2014—Subsec. (c)(2)(C)(vii). Pub. L. 113–79 substituted "section 3" for "section 3(l)".
2008—Subsec. (c)(2)(C)(vii). Pub. L. 110–246, §4115(c)(2)(E), substituted "section 3(l)" for "section 3(h)".
Pub. L. 110–246, §4002(b)(1)(A), (B), (2)(S), substituted "supplemental nutrition assistance program" for "food stamp program" and "Food and Nutrition Act of 2008" for "Food Stamp Act of 1977".
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".

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture.
Amendment by sections 4002(b)(1)(A), (B), (2)(S), and 4115(c)(2)(E) of Pub. L. 110–246 effective Oct. 1, 2008, see section 4407 of Pub. L. 110–246, set out as a note under section 1161 of Title 2, The Congress.

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.