§ 185.133 Determining the amount of penalties and assessments

5 CFR 185.133(a)(a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, double damages and a significant civil penalty ordinarily should be imposed.

5 CFR 185.133(b)(b) Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint;

5 CFR 185.133(b)(1)(1) The number of false, fictitious or fraudulent claims or statements;

5 CFR 185.133(b)(2)(2) The time period over which such claims or statements were made;

5 CFR 185.133(b)(3)(3) The degree of the defendant's culpability with respect to the misconduct;

5 CFR 185.133(b)(4)(4) The amount of money or the value of the property, services, or benefit falsely claimed;

5 CFR 185.133(b)(5)(5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;

5 CFR 185.133(b)(6)(6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss;

5 CFR 185.133(b)(7)(7) The potential or actual impact of the misconduct upon public confidence in the management of Government programs and operations;

5 CFR 185.133(b)(8)(8) Whether the defendant has engaged in a pattern of the same or similar misconduct;

5 CFR 185.133(b)(9)(9) Whether the defendant attempted to conceal the misconduct;

5 CFR 185.133(b)(10)(10) The degree to which the defendant has involved others in the misconduct or in concealing it;

5 CFR 185.133(b)(11)(11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct;

5 CFR 185.133(b)(12)(12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;

5 CFR 185.133(b)(13)(13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;

5 CFR 185.133(b)(14)(14) The complexity of the program or transaction, and the degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in similar transactions;

5 CFR 185.133(b)(15)(15) Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly;

5 CFR 185.133(b)(16)(16) The need to deter the defendant and others from engaging in the same or similar misconduct; and

5 CFR 185.133(b)(17)(17) The potential impact of the misconduct on the rights of others.

5 CFR 185.133(c)(c) Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.