[Code of Federal Regulations]

[Title 28, Volume 2]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR45.3]



[Page 13-14]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

              CHAPTER I--DEPARTMENT OF JUSTICE (CONTINUED)

 

PART 45_EMPLOYEE RESPONSIBILITIES--Table of Contents

 

Sec.  45.3  Disciplinary proceedings under 18 U.S.C. 207(j).



    (a) Upon a determination by the Assistant Attorney General in charge 

of the Criminal Division (Assistant Attorney General), after 

investigation, that there is reasonable cause to believe that a former 

officer or employee, including a former special Government employee, of 

the Department of Justice (former departmental employee) has violated 18 

U.S.C. 207 (a), (b) or (c), the Assistant Attorney General shall cause a 

copy of written charges of the violation(s) to be served upon such 

individual, either personally or by registered mail. The charges shall 

be accompanied by a notice to the former departmental employee to show 

cause within a specified time of not less than 30 days after receipt of 

the notice why he or she should not be prohibited from engaging in 

representational activities in relation to matters pending in the 

Department of Justice, as authorized by 18 U.S.C. 207(j), or subjected 

to other appropriate disciplinary action under that statute. The notice 

to show cause shall include:

    (1) A statement of allegations, and their basis, sufficiently 

detailed to enable the former departmental employee to prepare an 

adequate defense,

    (2) Notification of the right to a hearing, and

    (3) An explanation of the method by which a hearing may be 

requested.

    (b) If a former departmental employee who submits an answer to the 

notice to show cause does not request a hearing or if the Assistant 

Attorney General does not receive an answer within five days after the 

expiration of the time prescribed by the notice, the Assistant Attorney 

General shall forward the record, including the report(s) of 

investigation, to the Attorney General. In the case of a failure to 

answer, such failure shall constitute a waiver of defense.



[[Page 14]]



    (c) Upon receipt of a former departmental employee's request for a 

hearing, the Assistant Attorney General shall notify him or her of the 

time and place thereof, giving due regard both to such person's need for 

an adequate period to prepare a suitable defense and an expeditious 

resolution of allegations that may be damaging to his or her reputation.

    (d) The presiding officer at the hearing and any related proceedings 

shall be a federal administrative law judge or other federal official 

with comparable duties. He shall insure that the former departmental 

employee has, among others, the rights:

    (1) To self-representation or representation by counsel,

    (2) To introduce and examine witnesses and submit physical evidence,

    (3) To confront and cross-examine adverse witnesses,

    (4) To present oral argument, and

    (5) To a transcript or recording of the proceedings, upon request.

    (e) The Assistant Attorney General shall designate one or more 

officers or employees of the Department of Justice to present the 

evidence against the former departmental employee and perform other 

functions incident to the proceedings.

    (f) A decision adverse to the former departmental employee must be 

sustained by substantial evidence that he violated 18 U.S.C. 207 (a), 

(b) or (c).

    (g) The presiding officer shall issue an initial decision based 

exclusively on the transcript of testimony and exhibits, together with 

all papers and requests filed in the proceeding, and shall set forth in 

the decision findings and conclusions, supported by reasons, on the 

material issues of fact and law presented on the record.

    (h) Within 30 days after issuance of the initial decision, either 

party may appeal to the Attorney General, who in that event shall issue 

the final decision based on the record of the proceedings or those 

portions thereof cited by the parties to limit the issues. If the final 

decision modifies or reverses the initial decision, the Attorney General 

shall specify the findings of fact and conclusions of law that vary from 

those of the presiding officer.

    (i) If a former departmental employee fails to appeal from an 

adverse initial decision within the prescribed period of time, the 

presiding officer shall forward the record of the proceedings to the 

Attorney General.

    (j) In the case of a former departmental employee who filed an 

answer to the notice to show cause but did not request a hearing, the 

Attorney General shall make the final decision on the record submitted 

to him by the Assistant Attorney General pursuant to subsection (b) of 

this section.

    (k) The Attorney General, in a case where:

    (1) The defense has been waived,

    (2) The former departmental employee has failed to appeal from an 

adverse initial decision, or

    (3) The Attorney General has issued a final decision that the former 

departmental employee violated 18 U.S.C. 207 (a), (b) or (c),



may issue an order:

    (i) Prohibiting the former departmental employee from making, on 

behalf of any other person (except the United States), any informal or 

formal appearance before, or, with the intent to influence, any oral or 

written communication to, the Department of Justice on a pending matter 

of business for a period not to exceed five years, or

    (ii) Prescribing other appropriate disciplinary action.

    (l) An order issued under either paragraph (k)(3) (i) or (ii) of 

this section may be supplemented by a directive to officers and 

employees of the Department of Justice not to engage in conduct in 

relation to the former departmental employee that would contravene such 

order.



[Order No. 889-80, 45 FR 31717, May 14, 1980. Redesignated at 61 FR 

59815, Nov. 25, 1996, and further redesignated at 62 FR 23943, May 2, 

1997]