[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

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

[CITE: 34CFR33.10]



[Page 75-76]

 

                           TITLE 34--EDUCATION

 

PART 33_PROGRAM FRAUD CIVIL REMEDIES ACT--Table of Contents

 

Sec.  33.10  Default upon failure to file an answer.



    (a) If the defendant does not file an answer within the time 

prescribed in Sec.  33.9(a), the reviewing official may refer the 

complaint to the ALJ.

    (b) Upon the referral of the complaint, the ALJ shall promptly serve 

on defendant in the manner prescribed in Sec.  33.8, a notice that an 

initial decision will be issued under this section.

    (c) The ALJ shall assume the facts alleged in the complaint to be 

true and, if those facts establish liability under Sec.  33.3, the ALJ 

shall issue an initial decision imposing the maximum amount of penalties 

and assessments allowed under the statute.

    (d) Except as otherwise provided in this section, by failing to file 

a timely answer the defendant waives any right to further review of the 

penalties and assessments imposed under paragraph (c) of this section, 

and the initial decision becomes final and binding upon the parties 30 

days after it is issued.

    (e) If, before such an initial decision becomes final, the defendant 

files a



[[Page 76]]



motion with the ALJ seeking to reopen on the grounds that extraordinary 

circumstances prevented the defendant from filing an answer, the initial 

decision must be stayed pending the ALJ's decision on the motion.

    (f) If, on such a motion, the defendant can demonstrate 

extraordinary circumstances excusing the failure to file a timely 

answer, the ALJ shall withdraw the initial decision under paragraph (c) 

of this section, if such a decision has been issued, and shall grant the 

defendant an opportunity to answer the complaint.

    (g) A decision of the ALJ denying a defendant's motion under 

paragraph (e) of this section is not subject to reconsideration under 

Sec.  33.38.

    (h) The defendant may appeal to the Department head the decision 

denying a motion to reopen by filing a notice of appeal with the 

Department head within 15 days after the ALJ denies the motion. The 

timely filing of a notice of appeal stays the initial decision until the 

Department head decides the issue.

    (i) If the defendant files a timely notice of appeal with the 

Department head, the ALJ shall forward the record of the proceeding to 

the Department head.

    (j) The Department head decides expeditiously whether extraordinary 

circumstances excuse the defendant's failure to file a timely answer 

based solely on the record before the ALJ.

    (k) If the Department head decides that extraordinary circumstances 

excuse the defendant's failure to file a timely answer, the Department 

head remands the case to the ALJ with instructions to grant the 

defendant an opportunity to answer.

    (l) If the Department head decides that the defendant's failure to 

file a timely answer is not excused, the Department head reinstates the 

initial decision of the ALJ, which becomes final and binding upon the 

parties 30 days after the Department head issues that decision.



(Authority: 31 U.S.C. 3809)