[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: 34CFR33.39]



[Page 85]

 

                           TITLE 34--EDUCATION

 

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

 

Sec.  33.39  Appeal to Department 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 the decision to the Department head by filing a 

notice of appeal with the Department head in accordance with this 

section.

    (b)(1) A notice of appeal may be filed at any time within 30 days 

after the ALJ issues a final decision. However, if another party files a 

motion for reconsideration under Sec.  33.38, 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 Department head may extend the initial 30-day period for an 

additional 30 days if the defendant files with the Department head 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 

Department head, and the time for filing motions for reconsideration 

under Sec.  33.38 has expired, the ALJ shall forward the record of the 

proceeding to the Department head.

    (d) A notice of appeal must 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 Department 

head.

    (g) There is no right to appeal any interlocutory ruling by the ALJ.

    (h) In reviewing the initial decision, the Department head does 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 Department 

head that additional evidence not presented at such hearing is material 

and that there were reasonable grounds for the failure to present that 

evidence at the hearing, the Department head shall remand the matter to 

the ALJ for consideration of the additional evidence.

    (j) The Department head affirms, reduces, reverses, compromises, 

remands, or settles any penalty or assessment, determined by the ALJ in 

any initial decision.



(Authority: 31 U.S.C. 3803(i))



    (k) The Department head promptly serves each party to the appeal 

with a copy of the decision of the Department head and a statement 

describing the right of any person determined to be liable for a penalty 

or assessment to seek judicial review.



(Authority: 31 U.S.C. 3803(i)(2))



    (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 Department head 

serves the defendant with a copy of the Department head's decision, a 

determination that a defendant is liable under Sec.  33.3 is final and 

is not subject to judicial review.



(Authority: 31 U.S.C. 3805(a)(2))



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