IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT PHASE 01: INVESTIGATION

USE FAX OR CERTIFIED MAIL OR EMAIL SO THAT YOU HAVE A RECORD OF ALL COMMUNICATION
TELL ME WHO IS AN AUTHORITY
PHASE 04: TO DEPARTMENT OF JUSTICE
1. SCOPE & PURPOSE
  1. 28 CFR § 71.51 The Act authorizes the Attorney General, or certain officials whom the Attorney General may designate, to make determinations or otherwise act with respect to another agency's exercise of the provisions of the Program Fraud Civil Remedies Act. See, e.g., 31 U.S.C. 3803(a)(2), 3803(b), 3805.
    1. 31 U.S.C. 3803(a)(2) (2) If the reviewing official of an authority determines, based upon the report of the investigating official under paragraph (1) of this subsection, that there is adequate evidence to believe that a person is liable under section 3802 of this title, the reviewing official shall transmit to the Attorney General a written notice of the intention of such official to refer the allegations of such liability to a presiding officer of such authority. Such notice shall include—
      1. I NEED DETERMINATION FROM REVIEWING OFFICIAL OF AN AUTHORITY
      2. IF
      3. REVIEWING OFFICIAL OF AN AUTHORITY
      4. TELL ME WHO IS THE REVIEWING OFFICIAL OF AN AUTHORITY?
      5. DETERMINES
      6. DETERMINATION ON SUFFICIENT EVIDENCE OF PROBABLE CAUSE
      7. LIABILITY UNDER 31 U.S.C. 3802
      8. TELL ME WHO IS AN AUTHORITY?
      9. BASED UPON THE REPORT OF THE INVESTIGATING OFFICIAL
      10. WHO WILL MAKE THE REPORT?
      11. 31 U.S.C. 3803(a)(1) The investigating official of an authority may investigate allegations that a person is liable under section 3802 of this title and shall report the findings and conclusions of such investigation to the reviewing official of the authority. The preceding sentence does not modify any responsibility of an investigating official to report violations of criminal law to the Attorney General.
      12. INVESTIGATING OFFICIAL OF AN AUTHORITY
      13. 28 C.F.R. §71.2 Investigating Official means the Inspector General.
      14. 31 U.S.C. §3801 (a) For purposes of this chapter— (4) “investigating official” means an individual who— (A)
      15. 31 U.S.C. §3801 (a)(4) “investigating official” means an individual who— (A)(i) in the case of an authority in which an Office of Inspector General is established by the Inspector General Act of 1978 or by any other Federal law, is the Inspector General of that authority or an officer or employee of such Office designated by the Inspector General;
      16. 31 U.S.C. §3801 (a)(4) “investigating official” means an individual who— (A)(ii) in the case of an authority in which an Office of Inspector General is not established by the Inspector General Act of 1978 or by any other Federal law, is an officer or employee of the authority designated by the authority head to conduct investigations under section 3803 (a)(1) of this title; or
      17. 31 U.S.C. §3801 (a)(4) “investigating official” means an individual who— (A)(iii) in the case of a military department, is the Inspector General of the Department of Defense or an officer or employee of the Office of Inspector General of the Department of Defense who is designated by the Inspector General; and (B) who, if a member of the Armed Forces of the United States on active duty, is serving in grade O–7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS–16 under the General Schedule;
      18. MAY
      19. INVESTIGATE
      20. ALLEGATIONS OF LIABILITY
      21. AND
      22. SHALL REPORT
      23. FINDINGS & CONCLUSIONS
      24. UNDER 31 U.S. Code § 3802 - False claims and statements; liability
      25. TO REVIEWING OFFICIAL OF THE AUTHORITY
      26. TO ATTORNEY GENERAL
      27. RESPONSIBILITY OF INSPECTOR GENERAL TO REPORT
    2. 31 U.S.C. § 3803(b) (1) Within 90 days after receipt of a notice from a reviewing official under paragraph (2) of subsection (a), the Attorney General or an Assistant Attorney General designated by the Attorney General shall transmit a written statement to the reviewing official which specifies—
      1. (A) that the Attorney General or such Assistant Attorney General approves or disapproves the referral to a presiding officer of the allegations of liability stated in such notice;
      2. (B) in any case in which the referral of allegations is approved, that the initiation of a proceeding under this section with respect to such allegations is appropriate; and
      3. (C) in any case in which the referral of allegations is disapproved, the reasons for such disapproval.
    3. 31 U.S.C. 3805
      1. PHASE 05: RECEIPT OF ANSWER; APPELLATE ACTION; TRIAL
RESULTS OF INVESTIGATION
WHO WILL MAKE THE NOTICE?
1. ALWAYS START WITH A NOTICE & DEMAND
2. NOTICE OF ALLEGATIONS OF LIABILITY TO INSPECTOR GENERAL
3. REPORT TO REVIEWING OFFICIAL
4. DETERMINATION ON SUFFICIENT EVIDENCE OF PROBABLE CAUSE OF LIABILITY
5. REFERRAL TO PRESIDING OFFICER
28 U.S.C. § 3002(1) “Counsel for the United States” means— (A) a United States attorney, an assistant United States attorney designated to act on behalf of the United States attorney, or an attorney with the United States Department of Justice or with a Federal agency who has litigation authority; and (B) any private attorney authorized by contract made in accordance with section 3718 of title 31 to conduct litigation for collection of debts on behalf of the United States.
28 C.F.R. §71.2 Reviewing Official means the Assistant Attorney General for Administration. For purposes of § 71.5 of these rules, the Assistant Attorney General for Administration, personally or through his immediate staff, shall perform the functions of the reviewing official provided that such person is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS–16 under the General Schedule. All other functions of the reviewing official, including administrative prosecution under these rules, shall be performed with respect to the components listed below by the individuals listed below acting on behalf of the Assistant Attorney General for Administration: (a) For the offices, boards, divisions and any other components not covered below, the General Counsel, Justice Management Division; (b) For the Bureau of Prisons (BOP), the General Counsel, BOP; (c) For the Drug Enforcement Administration (DEA), the Chief Counsel, DEA; (d) For the Federal Bureau of Investigation (FBI), the Assistant Director, Legal Counsel Division; (e) For the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the Chief Counsel, ATF; (f) For the Immigration and Naturalization Service (INS), the General Counsel, INS; and (g) For the United States Marshals Service (USMS), the Associate Director for Administration.
1. 7 CFR § 1.302(t) Reviewing official means an officer or employee of USDA— (1) Who is designated by the Secretary to make the determination required under §1.305 of this part; (2) Who is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule; and (3) Who is— (i) Not subject to supervision by, or required to report to, the investigating official; and (ii) Not employed in the organizational unit of USDA in which the investigating official is employed.
28 CFR § 71.4(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official. (c) Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations within the Department of Justice for suit under the False Claims Act or other civil relief, or to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution. (d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the appropriate component of the Department.
31 U.S.C. 3803(a)(2) the reviewing official shall transmit to the Attorney General a written notice of the intention of such official to refer the allegations of such liability to a presiding officer of such authority. Such notice shall include— (A) a statement of the reasons of the reviewing official for the referral of such allegations; (B) a statement specifying the evidence which supports such allegations; (C) a description of the claims or statements for which liability under section 3802 of this title is alleged; (D) an estimate of the amount of money or the value of property or services requested or demanded in violation of section 3802 of this title; and (E) a statement of any exculpatory or mitigating circumstances which may relate to such claims or statements.
THE NOTICE SHALL INCLUDE:
1. 1
  1. 31 U.S.C. 3803(a)(2) (2)(A) a statement of the reasons of the reviewing official for the referral of such allegations;
2. 2
  1. 31 U.S.C. 3803(a)(2) (2)(B) a statement specifying the evidence which supports such allegations;
3. 3
  1. 31 U.S.C. 3803(a)(2) (2)(C) a description of the claims or statements for which liability under section 3802 of this title is alleged;
4. 4
  1. 31 U.S.C. 3803(a)(2) (2)(D) an estimate of the amount of money or the value of property or services requested or demanded in violation of section 3802 of this title; and
5. 5
  1. 31 U.S.C. 3803(a)(2) (2)(E) a statement of any exculpatory or mitigating circumstances which may relate to such claims or statements.
7 CFR § 1.302(g) Complaint means the written notice served by the reviewing official on the respondent under § 1.307 of this part.
31 U.S.C. § 3801(8) ‘‘reviewing official’’ means any officer or employee of an authority— (A) who is designated by the authority head to make the determination required under section 3803(a)(2) of this title; (B) who, if a member of the Armed Forces of the United States on active duty, is serving in grade O–7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS–16 under the General Schedule; and (C) who is— (i) not subject to supervision by, or required to report to, the investigating official; and (ii) not employed in the organizational unit of the authority in which the investigating official is employed;
<3 ~ A.J.
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PHASE ONE IS REALLY A MIX OF ALL FIVE PHASES AND ALL BODIES OF LAW
1. DOJ Issues Rule Expanding Authority to Issue Civil Investigative Demands Under the False Claims Act BY LAURA L. FLIPPIN, THOMAS O' BRIEN AND JOHN J. O'KANE, IV
  1. Civil Investigative Demands-A New Rule Expands Prosecutors' Power to Depose Witnesses and Issue Interrogatories in False Claims Act Investigations Roderick L. Thomas and Mark B. Sweet March 24, 2010
    1. Litigation: Examining the False Claims Act and civil investigative demands The increased ease of issuing civil investigative demands makes them a more effective, and likely, government procedure BY TY HOWARD September 5, 2013
      1. CIVIL INVESTIGATION
      2. TELL ME WHO IS INVESTIGATOR
      3. PRIVATE; I AM
      4. PRIVATE; IN-HOUSE INSPECTOR GENERAL
      5. AND OR
      6. WRITTEN DEMANDS FOR THE DATA PURSUANT TO
      7. AUTHORITIES
      8. Find your state statute on civil investigative demands.
      9. 15 U.S. Code § 57b–1 - Civil investigative demands
      10. 15 U.S. Code § 1312 - Civil investigative demands
      11. 31 U.S. Code § 3733 - Civil investigative demands
      12. 18 U.S. Code § 1968 - Civil investigative demand
      13. F.R.C.P. TITLE V. DISCLOSURES AND DISCOVERY
      14. Rule 26. Duty to Disclose; General Provisions Governing Discovery
      15. Rule 27. Depositions to Perpetuate Testimony
      16. Rule 28. Persons Before Whom Depositions May Be Taken
      17. Rule 29. Stipulations About Discovery Procedure
      18. Rule 30. Depositions by Oral Examination
      19. Rule 31. Depositions by Written Questions
      20. Rule 32. Using Depositions in Court Proceedings
      21. Rule 33. Interrogatories to Parties
      22. Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
      23. Rule 35. Physical and Mental Examinations
      24. Rule 36. Requests for Admission
      25. Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
      26. I CAN MAKE YOU SHOW ME
      27. 28 CFR § 71.19 — Prehearing conferences.
      28. 28 CFR § 71.20 — Disclosure of documents.
      29. 28 CFR § 71.21 — Discovery.
      30. 28 CFR § 71.22 — Exchange of witness lists, statements, and exhibits.
      31. 28 CFR § 71.23 — Subpoenas for attendance at hearing.
      32. Your state Data Practices Act.
      33. Your state Data Privacy Act.
      34. FREEDOM OF INFORMATION ACT
      35. 28 CFR PART 71 - IMPLEMENTATION OF THE PROVISIONS OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986
      36. SUBPART A — Implementation for Actions Initiated by the Department of Justice (§§ 71.1 - 71.48-71.50)
      37. SUBPART B — Assignment of Responsibilities Regarding Actions by Other Agencies (§§ 71.51 - 71.54)
2. IMPLEMENTATION PHASE 2: ALLEGATIONS TO INVESTIGATIVE OFFICIAL
  1. WHO WILL CRAFT & DRAFT
    1. ALLEGATIONS OF LIABILITY
      1. WHO IS MAKER OF FALSE CLAIMS & STATEMENTS?
      2. IDENTIFICATION OF CLAIMS IDENTIFICATION OF STATEMENTS
      3. FALSE CLAIM
      4. 28 C.F.R. §71.2 Claim means any request, demand, or submission— (a) Made to the authority for property, services, or money (including money representing grants, loans or insurance); (b) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority— (1) For property or services if the United States: (i) Provided such property or services; (ii) Provided any portion of the funds for the purchase of such property or services; or (iii) Will reimburse such recipient or party for the purchase of such property or services; or (2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States: (i) Provided any portion of the money requested or demanded; or (ii) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (c) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services, or money.
      5. FALSE STATEMENT
      6. 28 C.F.R. §71.2 Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made: (a) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or (b) With respect to (including relating to eligibility for): (1) A contract with, or a bid or proposal for a contract with; or (2) A grant, loan, or benefit from, the authority, or any State, political subdivision of a State, or other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
      7. 28 C.F.R. §71.2 Benefit means in the context of statement, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status or loan guarantee.
      8. IDENTIFICATION OF MAKER
      9. 28 C.F.R. §71.2 Knows or has reason to know means that a person, with respect to a claim or statement: (a) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; (b) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or (c) Acts in reckless disregard of the truth or falsity of the claim or statement.
      10. 28 C.F.R. §71.2 Makes shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made, shall likewise include the corresponding forms of such terms.
      11. PHASE 2 ALLEGATIONS TO INSPECTOR GENERAL
      12. RESULTS OF INVESTIGATION
      13. REPORT CRIMINAL VIOLAIONS
      14. INSPECTOR GENERAL ACT OF 1978 § 4. Duties and responsibilities; report of criminal violations to Attorney General
      15. INSPECTOR GENERAL ACT OF 1978 § 4(a) It shall be the duty and responsibility of each Inspector General, with respect to the establishment within which his Office is established
      16. INSPECTOR GENERAL ACT OF 1978 § 4(a)(4) to recommend policies for, and to conduct, supervise, or coordinate relationships between such establishment and other Federal agencies, State and local governmental agencies, and nongovernmental entities with respect to (A) all matters relating to the promotion of economy and efficiency in the administration of, or the prevention and detection of fraud and abuse in, programs and operations administered or financed by such establishment, or (B) the identification and prosecution of participants in such fraud or abuse;
      17. INSPECTOR GENERAL ACT OF 1978 § 4(a)(4)(B) the identification and prosecution of participants in such fraud or abuse; and
      18. IDENTIFICATION
      19. PROSECUTION
      20. OF
      21. FRAUD
      22. ABUSE
      23. REPORT RESULTS OF INVESTIGATION
      24. NOTICE
      25. BECOMES
      26. REPORT
      27. BECOMES
      28. REFERRAL
3. REFERRAL
  1. Why you always ask for a REFERRAL. The VALUE & IMPORTANCE of a REFERRAL
    1. WRITTEN NOTICE OF INTENT TO REFER
    2. CRAFT & MAKE
      1. 1
      2. 31 U.S.C. 3803(a)(2)(A) a statement of the reasons of the reviewing official for the referral of such allegations;
      3. 2
      4. 31 U.S.C. 3803(a)(2)(B) a statement specifying the evidence which supports such allegations;
      5. TABLE OF EXHIBITS
      6. 3
      7. 31 U.S.C. 3803(a)(2)(C) a description of the claims or statements for which liability under section 3802 of this title is alleged;
      8. 4
      9. 31 U.S.C. 3803(a)(2)(D) an estimate of the amount of money or the value of property or services requested or demanded in violation of section 3802 of this title; and
      10. 5
      11. 31 U.S.C. 3803(a)(2)(E) a statement of any exculpatory or mitigating circumstances which may relate to such claims or statements.
STATEMENT
1. 45 CFR § 2554.4 — What is a statement? § 2554.4 What is a statement? A “statement” means any written representation, certification, affirmation, document, record, or accounting or bookkeeping entry made with respect to a claim or with respect to a contract, bid or proposal for a contract, grant, loan or other benefit from the Corporation. “From the Corporation” means that the Corporation provides some portion of the money or property in connection with the contract, bid, grant, loan, or benefit, or is potentially liable to another party for some portion of the money or property under such contract, bid, grant, loan, or benefit. A statement is made, presented, or submitted to the Corporation when it is received by the Corporation or an agent, fiscal intermediary, or other entity acting for the Corporation.