,,ii #aaeth ,,congress #b;d ,session ,s4 #ccih ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,august #bh1 #bjah ,mr4 ,carper 7for himself1 ,ms4 ,hirono1 ,ms4 ,warren1 and ,mr4 ,peters7 introduced the following bill2 which was read twice and referred to the ,committee on ,homeland ,security and ,governmental ,affairs ,a ,,bill ,to require repayment of wasteful agency spending1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,executive ,branch ,waste and ,fraud ,recovery ,act4 #b4 ,definitions ,in this ,act3 7#a7 ,agency ,the term agency has the meaning given the term in section #eea of title #e1 ,united ,states ,code4 7#b7 ,authority head ,the term authority head means1 with respect to an agency-- 7,a7 the head of the agency2 or 7,b7 if the political appointee being investigated under this ,act is the head of the agency-- 7i7 the second most senior individual in the agency2 or 7ii7 if applicable1 the individual serving as the acting officer under section #ccde of title #e1 ,united ,states ,code4 7#c7 ,political appointee ,the term political appointee has the meaning given the term in section #gad7;h7 of title #ch1 ,united ,states ,code4 7#d7 ,presiding officer ,the term presiding officer has the meaning given the term in section #chja of title #ca1 ,united ,states ,code4 7#e7 ,reviewing official ,the term reviewing official means any officer or employee of an agency who is designated by the authority head of the agency to make the determination required under section #d7;b77#a74 #c4 ,repayment of wasteful agency spending 7a7 ,in general ,if the ,inspector ,general of an agency determines that a current or former political appointee of the agency directed the agency1 or agency component over which the political appointee had authority1 to spend ,federal funds available to the agency or component in a manner that is unlawful or inconsistent with applicable regulations or agency policies or procedures1 the authority head of the agency shall investigate the spending1 assess appropriate penalties1 and require the political appointee to repay those funds to the ,united ,states ,government4 7b7 ,treatment as claim ,any funds required to be repaid under subsection 7a7 shall be treated as a claim of the ,united ,states ,government subject to subchapter ,,ii of chapter #cg of title #ca1 ,united ,states ,code4 7c7 ,limitation ,an agency may not require a current or former political appointee to repay a claim for more than #cjj1jjj under this ,act4 #d4 ,due process and submission to ,attorney ,general 7a7 ,reviewing official ,the authority head of an agency shall appoint a reviewing official to review the determination of an ,inspector ,general of an agency under section #c7;a74 7b7 ,transmission to ,attorney ,general 7#a7 ,in general ,if the reviewing official of an agency determines1 based on information provided by the ,inspector ,general of the agency under section #c7;a71 that there is adequate evidence to believe that a current or former political appointee is required to repay funds under section #c1 the reviewing official shall transmit to the ,attorney ,general a written notice of the intention of the reviewing official to refer the allegations of liability to a presiding officer of the agency1 which shall include-- 7,a7 a statement of the reasons of the reviewing official for the referral of the allegations2 7,b7 a statement specifying the evidence that supports the allegations2 7,c7 a description of the claims or statements for which liability under section #c is alleged2 7,d7 an estimate of the amount of money that the political appointee shall be required to repay under section #c2 and 7,e7 a statement of any exculpatory or mitigating circumstances that may relate to the claims or statements described in subparagraph 7,c74 7#b7 ,approval or disapproval of referral 7,a7 ,in general ,not later than #ij days after the date on which the ,attorney ,general receives a notice from a reviewing official under paragraph 7#a71 the ,attorney ,general or an ,assistant ,attorney ,general designated by the ,attorney ,general shall transmit a written statement to the reviewing official that specifies-- 7i7 that the ,attorney ,general or the ,assistant ,attorney ,general approves or disapproves the referral to a presiding officer of the allegations of liability stated in the notice2 7ii7 in any case in which the referral of allegations is approved1 that the initiation of a proceeding with respect to the allegations is appropriate2 and 7iii7 in any case in which the referral of allegations is disapproved1 the reasons for the disapproval4 7,b7 ,limitation ,a reviewing official may refer allegations of liability to a presiding officer of the agency only if the ,attorney ,general or an ,assistant ,attorney ,general designated by the ,attorney ,general approves the referral of the allegations in a written statement described in subparagraph 7,a74 7,c7 ,delay of hearing ,if the ,attorney ,general or an ,assistant ,attorney ,general designated by the ,attorney ,general transmits to the authority head of an agency a written finding that the continuation of any hearing with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to the claim or statement1 the hearing shall be immediately stayed and may be resumed only upon written authorization of the ,attorney ,general4 7c7 ,notice and hearing 7#a7 ,notice 7,a7 ,in general ,on or after the date on which a reviewing official is permitted to refer allegations of liability under subsection 7b77#b71 the reviewing official shall mail1 by registered or certified mail1 or shall deliver1 a notice to the current or former political appointee alleged to be liable to repay funds under section #c1 which shall specify the allegations of liability against the individual and shall state the right of the individual to request a hearing with respect to those allegations4 7,b7 ,request for hearing ,if1 within #cj days after receiving a notice subparagraph 7,a71 the individual receiving the notice requests a hearing with respect to the allegations contained in the notice-- 7i7 the reviewing official shall refer the allegations to a presiding officer for the commencement of the hearing2 and 7ii7 the presiding officer shall commence the hearing by mailing by registered or certified mail1 or by delivery of1 a notice that complies with clauses 7ii77,i7 and 7iii77,i7 of paragraph 7#c77;,b7 to that individual4 7#b7 ,relevant documents 7,a7 ,in general ,except as provided in subparagraph 7,b71 at any time after receiving a notice under paragraph 7#a77;,a71 the individual receiving the notice shall be entitled to review1 and upon payment of a reasonable fee for duplication1 shall be entitled to obtain a copy of1 all relevant and material documents1 transcripts1 records1 and other materials1 which relate to the allegations and upon which the findings and conclusions of the reviewing official are based4 7,b7 ,privileged information ,an individual is not entitled under subparagraph 7,a7 to review and obtain a copy of any document1 transcript1 record1 or material that is privileged under ,federal law4 7,c7 ,exculpatory information ,at any time after receiving a notice under paragraph 7#a77;,a71 the individual receiving the notice shall be entitled to obtain all exculpatory information in the possession of the reviewing official relating to the allegations contained in the notice4 ,subparagraph 7,b7 shall not apply to any document1 transcript1 record1 or other material1 or any portion thereof1 in which such exculpatory information is contained4 7#c7 ,hearings 7,a7 ,in general ,any hearing commenced under paragraph 7#a77;,b77ii7 shall be conducted by the presiding officer on the record in order to determine1 based on the preponderance of the evidence-- 7i7 the liability of an individual under section #c2 and 7ii7 if an individual is determined to be liable to repay funds under such section1 the amount of any civil penalty or assessment to be imposed on the individual4 7,b7 ,procedures 7i7 ,in general ,each hearing under this subsection shall be conducted-- 7,i7 in the case of an agency to which the provisions of subchapter ,,ii of chapter #e of title #e1 ,united ,states apply1 in accordance with-- 7aa7 the provisions of such subchapter to the extent that such provisions are not inconsistent with the provisions of this ,act2 and 7bb7 procedures promulgated by the authority head of the agency under clause 7iii72 or 7,,ii7 in the case of an agency to which the provisions of such subchapter do not apply1 in accordance with procedures promulgated by the authority head of the agency4 7ii7 ,agencies to which subchapter ,,ii of chapter #e does not apply ,the authority head of an agency shall by regulation promulgate procedures for the conduct of hearings under this subsection1 which shall include the following3 7,i7 ,the provision of written notice of the hearing to any individual alleged to be liable to repay funds under section #c1 including written notice of-- 7aa7 the time1 place1 and nature of the hearing2 7bb7 the legal authority and jurisdiction under which the hearing is to be held2 and 7cc7 the matters of facts and law to be asserted4 7,,ii7 ,the provision to any individual alleged to be liable to repay funds under section #c of opportunities for the submission of facts1 arguments1 offers of settlement1 or proposals of adjustment4 7,,iii7 ,procedures to ensure that the presiding officer shall not1 except to the extent required for the disposition of ex parte matters as authorized by law-- 7aa7 consult a person or party on a fact in issue1 unless on notice and opportunity for all parties to the hearing to participate2 or 7bb7 be responsible to or subject to the supervision or direction of the reviewing official4 7,,iv7 ,procedures to ensure that the reviewing official does not participate or advise in the decision required under subparagraph 7,d74 7,v7 ,the provision to any individual alleged to be liable to repay funds under section #c of opportunities to present the individual's case through oral or documentary evidence1 to submit rebuttal evidence1 and to conduct such cross-examination as may be required for a full and true disclosure of the facts4 7,,vi7 ,procedures to permit any individual alleged to be liable to repay funds under section #c to be accompanied1 represented1 and advised by counsel or such other qualified representative as authority head of the agency may specify by regulation4 7,,vii7 ,procedures to ensure that the hearing is conducted in an impartial manner1 including procedures to-- 7aa7 permit the presiding officer to at any time disqualify himself or herself2 and 7bb7 permit the filing1 in good faith1 of a timely and sufficient affidavit alleging personal bias or another reason for disqualification of a presiding officer or a reviewing official4 7iii7 ,all agencies ,the authority head of an agency shall promulgate by regulation the following procedures for the conduct of hearings under this subsection1 which shall be in addition to any procedures described in clauses 7i7 and 7ii73 7,i7 ,procedures for the inclusion1 in any written notice of a hearing under this section to any individual alleged to be liable to repay funds under section #c1 of a description of the procedures for the conduct of the hearing4 7,,ii7 ,procedures to permit discovery by any individual alleged to be liable to repay funds under section #c1 only to the extent that the presiding officer determines that the discovery is necessary for the expeditious1 fair1 and reasonable consideration of the issues1 except that the procedures shall not apply to documents1 transcripts1 records1 or other material which an individual is entitled to review under paragraph 7#b77;,a7 or to information to which an individual is entitled under paragraph 7#b77;,c74 ,procedures promulgated under this subclause shall prohibit the discovery of the notice required under paragraph 7#a74 7,c7 ,venue ,each hearing under this subsection shall be held-- 7i7 in the judicial district of the ,united ,states in which the individual alleged to be liable to repay funds under section #c resides or transacts business2 7ii7 in the judicial district of the ,united ,states in which the claim or statement upon which the allegation of liability under such section was made1 presented1 or submitted2 or 7iii7 in such other place as may be agreed upon by the individual and the presiding officer who will conduct the hearing4 7,d7 ,written decision 7i7 ,in general ,the presiding officer shall issue a written decision after the conclusion of a hearing under this subsection1 which shall include the findings of fact and conclusions of law which the presiding officer relied upon in determining whether an individual is liable to repay funds under section #c4 7ii7 ,appeal ,the presiding officer shall promptly send to each party to the hearing a copy of the written decision and a statement describing the right of any individual determined to be liable to repay funds under section #c to appeal the decision of the presiding officer in accordance with section #e4 #e4 ,judicial review 7a7 ,in general 7#a7 ,determination by reviewing official ,a determination by a reviewing official under section #d7;b77#a7 shall be final and shall not be subject to judicial review4 7#b7 ,determination of liability ,unless a petition is filed under this section1 a determination by a presiding officer under section #d7;c77#c77;,d7 that an individual is required to repay funds shall be final and shall not be subject to judicial review4 7b7 ,petition 7#a7 ,in general ,an individual who has been determined under section #d to be liable to repay funds may obtain review of the determination in-- 7,a7 the ,united ,states district court for the district in which the individual resides or transacts business2 7,b7 the ,united ,states district court for the district in which the claim or statement upon which the determination of liability is based was made1 presented1 or submitted2 or 7,c7 the ,united ,states ,district ,court for the ,district of ,columbia4 7#b7 ,deadline ,a review under paragraph 7#a7 may be obtained by filing in any court described in such paragraph a written petition that the determination be modified or set aside4 ,the petition shall be filed-- 7,a7 only after the individual has exhausted all administrative remedies under this ,act2 and 7,b7 within #fj days after the date on which the presiding officer sends the individual a copy of the written decision under section #d7;c77#c77;,d74 7#c7 ,transmission to ,attorney ,general ,the clerk of the court shall transmit a copy of a petition filed under this subsection to the agency and to the ,attorney ,general4 ,upon receipt of the copy of the petition1 the authority head of the agency shall transmit to the ,attorney ,general the record in the proceeding resulting in the determination of liability under this ,act4 ,except as otherwise provided in this section1 the district courts of the ,united ,states shall have jurisdiction to review the decision1 findings1 and determinations in issue and to affirm1 modify1 remand for further consideration1 or set aside1 in whole or in part1 the decision1 findings1 and determinations of the agency and to enforce such decision1 findings1 and determinations to the extent that the decision1 findings1 and determinations are affirmed or modified4 7c7 ,questions of fact ,the decisions1 findings1 and determinations of an agency with respect to questions of fact shall be final and conclusive1 and shall not be set aside unless the decisions1 findings1 and determinations are found by the court to be unsupported by substantial evidence4 ,in concluding whether the decisions1 findings1 and determinations of the agency are unsupported by substantial evidence1 the court shall review the whole record or those parts of it cited by a party1 and due account shall be taken of the rule of prejudicial error4 7d7 ,hearing proceedings ,any district court reviewing under this section the decision1 findings1 and determinations of an agency shall not consider any objection that was not raised in the hearing conducted under section #d unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection4 ,if any party demonstrates to the satisfaction of the court that additional evidence not presented at the hearing is material and that there were reasonable grounds for the failure to present such evidence at the hearing1 the court shall remand the matter to the authority for consideration of such additional evidence4 7e7 ,final judgment ,upon a final determination by the district court that an individual is liable to repay funds under this ,act1 the court shall enter a final judgment for the appropriate amount in favor of the ,united ,states4 #f4 ,collection of penalties 7a7 ,in general ,the ,attorney ,general shall be responsible for judicial enforcement of any civil penalty or assessment with respect to the repayment of funds imposed pursuant to the provisions of this ,act4 7b7 ,civil action ,any penalty or assessment imposed in a determination which has become final pursuant to this ,act may be recovered in a civil action brought by the ,attorney ,general4 ,in any such action1 no matter that was raised or that could have been raised in a hearing conducted under section #d or pursuant to judicial review under section #e may be raised as a defense1 and the determination of liability and the determination of amounts of penalties and assessments shall not be subject to review4 7c7 ,jurisdiction ,the district courts of the ,united ,states shall have jurisdiction of any action commenced by the ,united ,states under subsection 7b74 7d7 ,consolidation ,any action under subsection 7b7 may1 without regard to venue requirements1 be joined and consolidated with or asserted as a counterclaim1 cross-claim1 or setoff by the ,united ,states in any other civil action which includes as parties the ,united ,states and the individual against whom such action may be brought4 7e7 ,court of ,federal ,claims ,the ,united ,states ,court of ,federal ,claims shall have jurisdiction of any action under subsection 7b7 of this section to recover any penalty or assessment if the cause of action is asserted by the ,united ,states as a counterclaim in a matter pending in such court4 7f7 ,compromise or settlement ,the ,attorney ,general shall have exclusive authority to compromise or settle any penalty or assessment the determination of which is the subject of a pending petition pursuant to section #e or a pending action to recover such penalty or assessment pursuant to this section4 7g7 ,deposits 7#a7 ,in general ,except as provided in paragraph 7#b71 any amount of penalty or assessment collected under this ,act shall be deposited as miscellaneous receipts in the ,treasury of the ,united ,states4 7#b7 ,exceptions 7,a7 ,any amount of a penalty or assessment imposed by the ,united ,states ,postal ,service under this ,act shall be deposited in the ,postal ,service ,fund established by section #bjjc of title #ci1 ,united ,states ,code4 7,b7 ,any amount of a penalty or assessment imposed by the ,secretary of ,health and ,human ,services under this ,act with respect to a claim or statement made in connection with old age and survivors benefits under title ,,ii of the ,social ,security ,act shall be deposited in the ,federal ,old-,age and ,survivors ,insurance ,trust ,fund4 7,c7 ,any amount of a penalty or assessment imposed by the ,secretary of ,health and ,human ,services under this ,act with respect to a claim or statement made in connection with disability benefits under title ,,ii of the ,social ,security ,act shall be deposited in the ,federal ,disability ,insurance ,trust ,fund4 7,d7 ,any amount of a penalty or assessment imposed by the ,secretary of ,health and ,human ,services under this ,act with respect to a claim or statement made in connection with benefits under part ,a of title ,,xviii of the ,social ,security ,act shall be deposited in the ,federal ,hospital ,insurance ,trust ,fund4 7,e7 ,any amount of a penalty or assessment imposed by the ,secretary of ,health and ,human ,services under this ,act with respect to a claim or statement made in connection with benefits under part ,b of title ,,xviii of the ,social ,security ,act shall be deposited in the ,federal ,supplementary ,medical ,insurance ,trust ,fund4 #g4 ,administrative offset 7a7 ,in general ,the amount of any penalty or assessment which has become final under section #d1 or for which a judgment has been entered under section #e or #f1 or any amount agreed upon in a settlement or compromise under section #f7;f71 may be collected by administrative offset under section #cgaf of title #ca1 ,united ,states ,code1 except that an administrative offset may not be made under this subsection against a refund of an overpayment of ,federal taxes1 then or later owing by the ,united ,states to the individual liable for the penalty or assessment4 7b7 ,deposit ,all amounts collected pursuant to this section shall be remitted to the ,secretary of the ,treasury for deposit in accordance with section #f7;g74