[Code of Federal Regulations]
[Title 5, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR185.139]

[Page 61-62]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
 
PART 185_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
 
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 circumstances causing the 
failure to raise the objection.
    (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.

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    (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.

[60 FR 7891, Feb. 10, 1995; 60 FR 22249, May 5, 1995]