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(3) That the discovery may be had (4) Papers are considered filed when only through a method of discovery they are mailed. Date of mailing may other than that requested;

be established by a certificate from (4) That certain matters not be in the party or its representative or by quired into, or that the scope of dis proof that the document was sent by covery be limited to certain matters; certified or registered mail.

(5) That discovery be conducted with (b) Service. A party filing a docuno one present except persons desig. ment with the presiding officer shall, nated by the presiding officer;

at the time of filing, serve a copy of (6) That the contents of discovery or such document on every other party. evidence be sealed;

Service upon any party of any docu(7) That a deposition after being ment other than those required to be sealed be opened only by order of the served as prescribed in § 1264.107 shall presiding officer;

be made by delivering a copy or by (8) That a trade secret or other con placing a copy of the document in the fidential research, development, com U.S. mail, postage prepaid, and admercial information, or facts pertain dressed to the party's last known ading to any criminal investigation, pro- dress. When a party is represented by ceeding, or other administrative inves- a representative, service shall be made tigation not be disclosed or be dis upon such representative. closed only in a designated way; or

(c) Proof of service. A certificate of (9) That the parties simultaneously the individual serving the document file specified documents or informa

by personal delivery or by mail, setting tion enclosed in sealed envelopes to be forth the manner of service, shall be opened as directed by the presiding of proof of service. ficer.

(52 FR 39498, Oct. 22, 1987, as amended at 8 1264.124 Fees.

54 FR 600, Jan. 9, 1989) The party requesting a supoena 8 1264.126 Computation of time. shall pay the cost of the fees and mileage of any witness supoenaed in the

(a) In computing any period of time amounts that would be payable to a

under this part or in an order issued witness in a proceeding in United

thereunder, the time begins with the States District Court. A check for wit

day following the act, event, or deness fees and mileage shall accompany

fault, and includes the last day of the

period, unless it is a Saturday, Sunday, the subpoena when served, except that

or legal holiday observed by the Fedwhen a subpoena is issued on behalf of the authority, a check for witness fees

eral government, in which event it in: and mileage need not accompany the

cludes the next business day.

(b) When the period of time allowed subpoena.

is less than 7 days, intermediate Satur8 1264.125 Form, filing, and service of days, Sundays, and legal holidays obpapers.

served by the Federal government

shall be excluded from the computa(a) Form. (1) Documents filed with

tion. the presiding officer shall include an

(c) Where a document has been original and two copies.

served or issued by placing it in the (2) Every pleading and paper filed in

mail, an additional 5 days will be the proceeding shall contain a caption setting forth the title of the action,

added to the time permitted for any the case number assigned by the pre

response. siding officer, and a designation of the (52 FR 39498, Oct. 22, 1987, as amended at paper (e.g., motion to quash subpoe- 54 FR 600, Jan. 9, 1989) na). (3) Every pleading and paper shall

8 1264.127 Motions. be signed by, and shall contain the ado (a) Any application to the presiding dress and telephone number of the officer for an order or ruling shall be party or the person on whose behalf by motion. Motions shall state the the paper was filed, or his or her rep- relief sought, the authority relied resentative.

upon, and the facts alleged, and shall

be filed with the presiding officer and relying upon testimony relating to, the served on all other parties.

information sought; and (b) Except for motions made during (4) Strike any part of the pleadings à prehearing conference or at the or other submissions of the party failhearing, all motions shall be in writ- ing to comply with such request. ing. The presiding officer may require (d) If a party fails to prosecute or that oral motions be reduced to writ defend an action under this part coming.

menced by service of a notice of hear(c) Within 15 days after a written ing, the presiding officer may dismiss motion is served, or such other time as the action or may issue an initial decimay be fixed by the presiding officer, sion imposing penalties and assessany party may file a response to such ments. motion.

(e) The presiding officer may refuse (d) The presiding officer may not to consider any motion, request, regrant a written motion before the time sponse, brief, or other document for filing responses thereto has ex- which is not filed in a timely fashion. pired, except upon consent of the parties or following a hearing on the 8 1264.129 The hearing and burden of motion, but may overrule or deny such proof. motion without awaiting a response.

(a) The presiding officer shall con(e) The presiding officer shall make

duct a hearing on the record in order à reasonable effort to dispose of all to determine whether the defendant is outstanding motions prior to the be liable for a civil penalty or assessment ginning of the hearing.

under 1264.102 and, if so, the appro

priate amount of any such civil penal8 1264.128 Sanctions.

ty or assessment considering any ag(a) The presiding officer may sanc gravating or mitigating factors. tion a person, including any party or (b) The authority shall prove derepresentative for

fendant's liability and any aggravating (1) Failing to comply with an order, factors by a preponderance of the evirule, or procedure governing the pro dence.

(c) The defendant shall prove any (2) Failing to prosecute or defend an affirmative defenses and any mitigataction; or

ing factors by a preponderance of the (3) Engaging in other misconduct evidence. that interferes with the speedy, order (d) The hearing shall be open to the ly, or fair conduct of the hearing.

public unless otherwise ordered by the (b) Any such sanction, including but presiding officer for good cause shown. not limited to those listed in paragraphs (c), (d), and (e) of this section,

8 1264.130 Determining the amount of shall reasonably relate to the severity penalties and assessments. and nature of the failure or miscon- (a) In determining an appropriate duct.

amount of civil penalties and assess(c) When a party fails to comply ments, the presiding officer, and the with an order, including an order for authority head upon appeal, should taking a deposition, the production of evaluate any circumstances that mitievidence within the party's control, or gate or aggravate the violation and a request for admission, the presiding should articulate in their opinions the officer may

reasons that support the penalties and (1) Draw an inference in favor of the assessments they impose. Because of requesting party with regard to the in the intangible costs of fraud, the exformation sought;

pense of investigating such conduct, (2) In the case of requests for admis and the need to deter others who sion, deem each matter of which an might be similarly tempted, ordinarily admission is requested to be admitted; double damages and a significant civil

(3) Prohibit the party failing to penalty should be imposed. comply with such order from introduc- (b) Although not exhaustive, tile foling evidence concerning, or otherwise lowing factors are among those that


may influence the presiding officer administrative proceeding to have enand the authority head in determining gaged in similar misconduct or to have the amount of penalties and assess dealt dishonestly with the Governments to impose with respect to the ment of the United States or of a misconduct (i.e., the false, fictitious, or State, directly or indirectly; and fraudulent claims or statements) (16) The need to deter the defendant charged in the complaint:

and others from engaging in the same (1) The number of false, fictitious, or similar misconduct. or fraudulent claims or statements;

(c) Nothing in this section shall be (2) The time period over which such construed to limit the presiding officer claims or statements were made;

or the authority head from consider(3) The degree of the defendant's ing any other factors that in any given culpability with respect to the miscon case may mitigate or aggravate the ofduct;

fense for which penalties and assess(4) The amount of money or the ments are imposed. value of the property, services, or benefit falsely claimed;

8 1264.131 Location of hearing. (5) The value of the Government's

(a) The hearing may be heldactual loss as a result of the miscon

(1) In any judicial district of the duct, including foreseeable consequen

United States in which the defendant tial damages and the costs of investi

resides or transacts business; gation;

(2) In any judicial district of the (6) The relationship of the amount imposed as civil penalties to the

United States in which the claim or

statement in issue was made; or amount of the Government's loss; (7) The potential or actual impact of

(3) In such other place as may be the misconduct upon national defense,

agreed upon by the defendant and the public health or safety, or public con

presiding officer. fidence in the management of Govern

(b) Each party shall have the opporment programs and operations, includ.

tunity to present argument with reing particularly the impact on the in

spect to the location of the hearing. tended beneficiaries of such programs;

(c) The hearing shall be held at the (8) Whether the defendant has en

place and at the time ordered by the gaged in a pattern of the same or simi

presiding officer. lar misconduct; (9) Whether the defendant attempt

8 1264.132 Witnesses. ed to conceal the misconduct;

(a) Except as provided in paragraph (10) The degree to which the defend. (b) of this section, testimony at the ant has involved others in the miscon- hearing shall be given orally by witduct or in concealing it;

nesses under oath or affirmation. (11) Where the misconduct of em. (b) At the discretion of the presiding ployees or agents is imputed to the de officer, testimony may be admitted in fendant, the extent to which the de the form of a written statement or fendant's practices fostered or at deposition. Any such written statetempted to preclude such misconduct; ment must be provided to all other

(12) Whether the defendant cooper parties along with the last known adated in or obstructed an investigation dress of such witness, in a manner of the misconduct;

which allows sufficient time for other (13) Whether the defendant assisted parties to subpoena such witness for in identifying and prosecuting other cross-examination at the hearing. wrongdoers;

Prior written statements of witnesses (14) The complexity of the program proposed to testify at the hearing and or transaction, and the degree of the deposition transcripts shall be exdefendant's sophistication with re- changed as provided in § 1264.121(a). spect to it, including the extent of the (c) The presiding officer shall exerdefendant's prior participation in the cise reasonable control over the mode program or in similar transactions; and order of interrogating witnesses

(15) Whether the defendant has and presenting evidence so as to make been found, in any criminal, civil, or the interrogation and presentation ef

fective for the ascertainment of the danger of unfair prejudice, confusion truth, avoid needless consumption of of the issues, or by considerations of time, and protect witnesses from har undue delay or needless presentation assment or undue embarrassment. of cumulative evidence.

(d) The presiding officer shall (e) Although relevant, evidence may permit the parties to conduct such be excluded if it is privileged under cross-examination as may be required Federal law. for a full and true disclosure of the (f) Evidence concerning offers of facts.

compromise or settlement shall be in(e) At the discretion of the presiding

admissible to the extent provided in officer, a witness may be cross-exam

Rule 408 of the Federal Rules of Eviined on matters relevant to the pro

dence. ceeding without regard to the scope of

(g) The presiding officer shall his or her direct examination. To the

permit the parties to introduce rebutextent permitted by the presiding offi

tal witnesses and evidence. cer, cross-examination on matters out

(h) All documents and other eviside the scope of direct examination

dence offered or taken for the record shall be conducted in the manner of direct examination and may proceed

shall be open to examination by all by leading questions only if the wit

parties, unless otherwise ordered by ness is a hostile witness, an adverse

the presiding officer pursuant to

§ 1264.123. party, or a witness identified with an adverse party.

§ 1264.134 The record. (f) Upon motion of any party, the presiding officer shall order witnesses

(a) The hearing will be recorded and excluded so that they cannot hear the transcribed. Transcripts may be obtestimony of other witnesses. This rule tained following the hearing from the does not authorize exclusion of

presiding officer at a cost not to (1) A party who is an individual; exceed the actual cost of duplication.

(2) In the case of a party that is not (b) The transcript of testimony, exan individual, an officer or employee hibits, and other evidence admitted at of the party appearing for the entity the hearing, and all papers and repro se or designated by the party's quests filed in the proceeding constirepresentative; or

tute the record for the decision by the (3) An individual whose presence is presiding officer and the authority shown by a party to be essential to the head. presentation of its case, including an (c) The record may be inspected and individual employed by the Govern copied (upon payment of a reasonable ment engaged in assisting the repre fee) by anyone, unless otherwise orsentative for the Government.

dered by the presiding officer pursu(52 FR 39498, Oct. 22, 1987, as amended at

ant to § 1264.123. 54 FR 600, Jan. 9, 1989)

8 1264.135 Post-hearing briefs. 8 1264.133 Evidence.

The presiding officer may require (a) The presiding officer shall deter- the parties to file post-hearing briefs. mine the admissibility of evidence. In any event, upon approval of the

(b) Except as provided herein, the presiding officer, any party may file a presiding officer shall not be bound by post-hearing brief. The presiding offithe Federal Rules of Evidence. Howev cer shall fix the time for filing such er, the presiding officer may apply the briefs, not to exceed 60 days from the Federal Rules of Evidence where ap date the parties receive the transcript propriate, e.g., to exclude unreliable of the hearing or, if applicable, the evidence.

stipulated record. Such briefs may be (c) The presiding officer shall ex accompanied by proposed findings of clude irrelevant and immaterial evi- fact and conclusions of law. The predence.

siding officer may permit the parties (d) Although relevant, evidence may to file reply briefs, and may grant an be excluded if its probative value is extension of the 60-day time period or substantially outweighed by the other time for good cause shown.

8 1264.136 Initial decision.

ceipt of the initial decision. If service (a) The presiding officer shall issue

was made by mail, receipt will be prean initial decision based solely on the

sumed to be 5 days from the date of

su record, which shall contain findings of

mailing in the absence of contrary fact, conclusions of law, and the

proof. amount of any penalties and assess

(b) Every such motion must set ments imposed.

forth the matters claimed to have (b) The findings of fact shall include

been erroneously decided and the a finding on each of the following

nature of the alleged errors. Such issues:

motion shall be accompanied by a sup(1) Whether the claims or state

porting brief. ments identified in the complaint, or

(c) Responses to such motions shall any portions thereof, violate

be allowed only upon request of the § 1264.102;

presiding officer. (2) If the person is liable for penal

(d) No party may file a motion for ties or assessments, the appropriate

reconsideration of an initial decision amount of any such penalties or as

that has been revised in response to a sessments considering any mitigating

previous motion for reconsideration. or aggravating factors found in the (e) The presiding officer may dispose case, such as those described in

of a motion for reconsideration by de$ 1264.130.

nying it or by issuing a revised initial (c) The presiding

officer shall


decision. promptly serve the initial decision on (f) If the presiding officer denies a all parties within 90 days after the motion for reconsideration, the initial time for submission of post-hearing decision shall constitute the final deci. briefs and reply briefs (if permitted) sion of the authority head and shall has expired or upon notification that be final and binding on the parties 30 the record is now closed. The presiding days after the presiding officer denies officer shall at the same time serve all the motion, unless the initial decision parties with a statement describing is timely appealed to the authority the right of any defendant determined head in accordance with § 1264.138. to be liable for a civil penalty or as- (g) If the presiding officer issues a sessment to file a motion for reconsid- revised initial decision, the revised de. eration with the presiding officer or a cision shall constitute the final deci. notice of appeal with the authority sion of the authority head and shall head. If the presiding officer fails to be final and binding on the parties 30 meet the deadline contained in this days after it is issued, unless it is paragraph, he or she shall notify the timely appealed to the authority head parties of the reason for the delay and in accordance with § 1264.138. shall set a new deadline.

(52 FR 39498, Oct. 22, 1987, as amended at (d) Unless the initial decision of the

54 FR 600, Jan. 9, 1989) presiding officer is timely appealed to the authoirty head, or a motion for re- & 1264.138 Appeal to authority head. consideration of the initial decision is

(a) Any defendant who has filed a timely filed, the initial decision shall

timely answer and who is determined consititute the final decision of the au

in an initial decision to be liable for a thority head and shall be final and

civil penalty or assessment may appeal binding on the parties 30 days after it

such decision to the authority head by is issued by the presiding officer.

filing a notice of appeal with the au(52 FR 39498, Oct. 22, 1987, as amended at thority head in accordance with this 54 FR 600, Jan. 9, 1989)


(b) The time for appeal to the au8 1264.137 Reconsideration of initial deci. thority head is as follows: sion.

(1) A notice of appeal may be filed at (a) Except as provided in paragraph any time within 30 days after the pre(d) of this section, any party may file siding officer issues an initial decision. a motion for reconsideration of the However, if any other party files a initial decision within 20 days of re- motion for a reconsideration under

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