[Code of Federal Regulations]
[Title 38, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR42.39]

[Page 753]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
          CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)
 
PART 42--STANDARDS IMPLEMENTING THE PROGRAM FRAUD CIVIL REMEDIES ACT--Table 
of Contents
 
Sec. 42.39  Appeal to the Secretary of Veterans Affairs.

    (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 the decision to the Secretary of Veterans Affairs 
by filing a notice of appeal with the Secretary in accordance with this 
section.
    (b)(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. 42.8 of this part, 
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 may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The Secretary may extend the initial 30 day period for an 
additional 30 days if the defendant files with the Secretary a request 
for an extension within the initial 30 day period and shows good cause.
    (c) If the defendant files a timely notice of appeal with the 
Secretary, and the time for filing motions for reconsideration under 
Sec. 42.38 of this part has expired, the ALJ shall forward the record of 
the proceeding to the Secretary.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Secretary.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the Secretary shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Secretary 
that additional evidence not presented at the hearing is material and 
that there were reasonable grounds for the failure to present the 
evidence at the hearing, the Secretary shall remand the matter to the 
ALJ for consideration of such additional evidence.
    (j) The Secretary may affirm, reduce, reverse, compromise, remand, 
or settle any penalty or assessment, determined by the ALJ in any 
initial decision.
    (k) The Secretary shall promptly serve each party to the appeal with 
a copy of the decision of the Secretary and a statement describing the 
right of any person to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Secretary 
serves the defendant with a copy of the Secretary's decision, a 
determination that a defendant is liable under Sec. 42.3 of this part is 
final and is not subject to judicial review.