31 U.S.C. § 3733 — Civil investigative demands

Page 342 TITLE 31—MONEY AND FINANCE § 3733 1 So in original. Probably should be ‘‘law’’. action or occurrence as an action brought under section 3730. (c) SERVICE ON STATE OR LOCAL AUTHORITIES.— With respect to any State or local government that is named as a co-plaintiff with the United States in an action brought under subsection (b), a seal on the action ordered by the court under section 3730(b) shall not preclude the Gov- ernment or the person bringing the action from serving the complaint, any other pleadings, or the written disclosure of substantially all mate- rial evidence and information possessed by the person bringing the action on the law enforce- ment authorities that are authorized under the law of that State or local government to inves- tigate and prosecute such actions on behalf of such governments, except that such seal applies to the law enforcement authorities so served to the same extent as the seal applies to other par- ties in the action. (Added Pub. L. 99–562, § 6(a), Oct. 21, 1986, 100 Stat. 3158; amended Pub. L. 111–21, § 4(e), May 20, 2009, 123 Stat. 1625.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure. AMENDMENTS 2009—Subsec. (c). Pub. L. 111–21 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–21 effective May 20, 2009, and applicable to conduct on or after May 20, 2009, ex- cept that this section, as amended by Pub. L. 111–21, ap- plicable to cases pending on May 20, 2009, see section 4(f) of Pub. L. 111–21, set out as a note under section 3729 of this title. § 3733. Civil investigative demands (a) IN GENERAL.— (1) ISSUANCE AND SERVICE.—Whenever the At- torney General, or a designee (for purposes of this section), has reason to believe that any person may be in possession, custody, or con- trol of any documentary material or informa- tion relevant to a false claims law investiga- tion, the Attorney General, or a designee, may, before commencing a civil proceeding under section 3730(a) or other false claims law, or making an election under section 3730(b), issue in writing and cause to be served upon such person, a civil investigative demand re- quiring such person— (A) to produce such documentary material for inspection and copying, (B) to answer in writing written interrog- atories with respect to such documentary material or information, (C) to give oral testimony concerning such documentary material or information, or (D) to furnish any combination of such ma- terial, answers, or testimony. The Attorney General may delegate the au- thority to issue civil investigative demands under this subsection. Whenever a civil inves- tigative demand is an express demand for any product of discovery, the Attorney General, the Deputy Attorney General, or an Assistant Attorney General shall cause to be served, in any manner authorized by this section, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served. Any information obtained by the Attorney General or a designee of the Attorney General under this section may be shared with any qui tam relator if the Attorney General or designee de- termine it is necessary as part of any false claims act 1 investigation. (2) CONTENTS AND DEADLINES.— (A) Each civil investigative demand issued under paragraph (1) shall state the nature of the conduct constituting the alleged viola- tion of a false claims law which is under in- vestigation, and the applicable provision of law alleged to be violated. (B) If such demand is for the production of documentary material, the demand shall— (i) describe each class of documentary material to be produced with such defi- niteness and certainty as to permit such material to be fairly identified; (ii) prescribe a return date for each such class which will provide a reasonable pe- riod of time within which the material so demanded may be assembled and made available for inspection and copying; and (iii) identify the false claims law investi- gator to whom such material shall be made available. (C) If such demand is for answers to writ- ten interrogatories, the demand shall— (i) set forth with specificity the written interrogatories to be answered; (ii) prescribe dates at which time an- swers to written interrogatories shall be submitted; and (iii) identify the false claims law investi- gator to whom such answers shall be sub- mitted. (D) If such demand is for the giving of oral testimony, the demand shall— (i) prescribe a date, time, and place at which oral testimony shall be commenced; (ii) identify a false claims law investi- gator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted; (iii) specify that such attendance and testimony are necessary to the conduct of the investigation; (iv) notify the person receiving the de- mand of the right to be accompanied by an attorney and any other representative; and (v) describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry, which will be taken pursuant to the demand. (E) Any civil investigative demand issued under this section which is an express de- mand for any product of discovery shall not Page 343 TITLE 31—MONEY AND FINANCE § 3733 be returned or returnable until 20 days after a copy of such demand has been served upon the person from whom the discovery was ob- tained. (F) The date prescribed for the commence- ment of oral testimony pursuant to a civil investigative demand issued under this sec- tion shall be a date which is not less than seven days after the date on which demand is received, unless the Attorney General or an Assistant Attorney General designated by the Attorney General determines that excep- tional circumstances are present which war- rant the commencement of such testimony within a lesser period of time. (G) The Attorney General shall not au- thorize the issuance under this section of more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the Attorney General, after investigation, noti- fies that person in writing that an additional demand for oral testimony is necessary. (b) PROTECTED MATERIAL OR INFORMATION.— (1) IN GENERAL.—A civil investigative de- mand issued under subsection (a) may not re- quire the production of any documentary ma- terial, the submission of any answers to writ- ten interrogatories, or the giving of any oral testimony if such material, answers, or testi- mony would be protected from disclosure under— (A) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of the United States to aid in a grand jury investigation; or (B) the standards applicable to discovery requests under the Federal Rules of Civil Procedure, to the extent that the applica- tion of such standards to any such demand is appropriate and consistent with the provi- sions and purposes of this section. (2) EFFECT ON OTHER ORDERS, RULES, AND LAWS.—Any such demand which is an express demand for any product of discovery super- sedes any inconsistent order, rule, or provision of law (other than this section) preventing or restraining disclosure of such product of dis- covery to any person. Disclosure of any prod- uct of discovery pursuant to any such express demand does not constitute a waiver of any right or privilege which the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials. (c) SERVICE; JURISDICTION.— (1) BY WHOM SERVED.—Any civil investiga- tive demand issued under subsection (a) may be served by a false claims law investigator, or by a United States marshal or a deputy mar- shal, at any place within the territorial juris- diction of any court of the United States. (2) SERVICE IN FOREIGN COUNTRIES.—Any such demand or any petition filed under subsection (j) may be served upon any person who is not found within the territorial jurisdiction of any court of the United States in such manner as the Federal Rules of Civil Procedure prescribe for service in a foreign country. To the extent that the courts of the United States can assert jurisdiction over any such person consistent with due process, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action re- specting compliance with this section by any such person that such court would have if such person were personally within the jurisdiction of such court. (d) SERVICE UPON LEGAL ENTITIES AND NAT- URAL PERSONS.— (1) LEGAL ENTITIES.—Service of any civil in- vestigative demand issued under subsection (a) or of any petition filed under subsection (j) may be made upon a partnership, corporation, association, or other legal entity by— (A) delivering an executed copy of such de- mand or petition to any partner, executive officer, managing agent, or general agent of the partnership, corporation, association, or entity, or to any agent authorized by ap- pointment or by law to receive service of process on behalf of such partnership, cor- poration, association, or entity; (B) delivering an executed copy of such de- mand or petition to the principal office or place of business of the partnership, corpora- tion, association, or entity; or (C) depositing an executed copy of such de- mand or petition in the United States mails by registered or certified mail, with a return receipt requested, addressed to such partner- ship, corporation, association, or entity at its principal office or place of business. (2) NATURAL PERSONS.—Service of any such demand or petition may be made upon any natural person by— (A) delivering an executed copy of such de- mand or petition to the person; or (B) depositing an executed copy of such de- mand or petition in the United States mails by registered or certified mail, with a return receipt requested, addressed to the person at the person’s residence or principal office or place of business. (e) PROOF OF SERVICE.—A verified return by the individual serving any civil investigative de- mand issued under subsection (a) or any petition filed under subsection (j) setting forth the man- ner of such service shall be proof of such service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such de- mand. (f) DOCUMENTARY MATERIAL.— (1) SWORN CERTIFICATES.—The production of documentary material in response to a civil investigative demand served under this sec- tion shall be made under a sworn certificate, in such form as the demand designates, by— (A) in the case of a natural person, the per- son to whom the demand is directed, or (B) in the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on be- half of such person. The certificate shall state that all of the docu- mentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has Page 344 TITLE 31—MONEY AND FINANCE § 3733 been produced and made available to the false claims law investigator identified in the de- mand. (2) PRODUCTION OF MATERIALS.—Any person upon whom any civil investigative demand for the production of documentary material has been served under this section shall make such material available for inspection and copying to the false claims law investigator identified in such demand at the principal place of busi- ness of such person, or at such other place as the false claims law investigator and the per- son thereafter may agree and prescribe in writing, or as the court may direct under sub- section (j)(1). Such material shall be made so available on the return date specified in such demand, or on such later date as the false claims law investigator may prescribe in writ- ing. Such person may, upon written agreement between the person and the false claims law investigator, substitute copies for originals of all or any part of such material. (g) INTERROGATORIES.—Each interrogatory in a civil investigative demand served under this sec- tion shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the demand designates, by— (1) in the case of a natural person, the person to whom the demand is directed, or (2) in the case of a person other than a nat- ural person, the person or persons responsible for answering each interrogatory. If any interrogatory is objected to, the reasons for the objection shall be stated in the certifi- cate instead of an answer. The certificate shall state that all information required by the de- mand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the informa- tion shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished. (h) ORAL EXAMINATIONS.— (1) PROCEDURES.—The examination of any person pursuant to a civil investigative de- mand for oral testimony served under this sec- tion shall be taken before an officer author- ized to administer oaths and affirmations by the laws of the United States or of the place where the examination is held. The officer be- fore whom the testimony is to be taken shall put the witness on oath or affirmation and shall, personally or by someone acting under the direction of the officer and in the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly trans- mit a copy of the transcript of the testimony to the custodian. This subsection shall not preclude the taking of testimony by any means authorized by, and in a manner con- sistent with, the Federal Rules of Civil Proce- dure. (2) PERSONS PRESENT.—The false claims law investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other rep- resentative of the person giving the testi- mony, the attorney for the Government, any person who may be agreed upon by the attor- ney for the Government and the person giving the testimony, the officer before whom the testimony is to be taken, and any stenog- rapher taking such testimony. (3) WHERE TESTIMONY TAKEN.—The oral testi- mony of any person taken pursuant to a civil investigative demand served under this sec- tion shall be taken in the judicial district of the United States within which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the false claims law investigator conducting the examination and such person. (4) TRANSCRIPT OF TESTIMONY.—When the testimony is fully transcribed, the false claims law investigator or the officer before whom the testimony is taken shall afford the wit- ness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless such examination and reading are waived by the witness. Any changes in form or substance which the wit- ness desires to make shall be entered and iden- tified upon the transcript by the officer or the false claims law investigator, with a state- ment of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the wit- ness in writing waives the signing, is ill, can- not be found, or refuses to sign. If the tran- script is not signed by the witness within 30 days after being afforded a reasonable oppor- tunity to examine it, the officer or the false claims law investigator shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reasons, if any, given there- for. (5) CERTIFICATION AND DELIVERY TO CUSTO- DIAN.—The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testi- mony given by the witness, and the officer or false claims law investigator shall promptly deliver the transcript, or send the transcript by registered or certified mail, to the custo- dian. (6) FURNISHING OR INSPECTION OF TRANSCRIPT BY WITNESS.—Upon payment of reasonable charges therefor, the false claims law investi- gator shall furnish a copy of the transcript to the witness only, except that the Attorney General, the Deputy Attorney General, or an Assistant Attorney General may, for good cause, limit such witness to inspection of the official transcript of the witness’ testimony. (7) CONDUCT OF ORAL TESTIMONY.—(A) Any person compelled to appear for oral testimony under a civil investigative demand issued under subsection (a) may be accompanied, rep- resented, and advised by counsel. Counsel may advise such person, in confidence, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall Page 345 TITLE 31—MONEY AND FINANCE § 3733 briefly state for the record the reason for the objection. An objection may be made, re- ceived, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privi- lege, including the privilege against self-in- crimination. Such person may not otherwise object to or refuse to answer any question, and may not directly or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, a petition may be filed in the district court of the United States under subsection (j)(1) for an order compelling such person to answer such ques- tion. (B) If such person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with the provisions of part V of title 18. (8) WITNESS FEES AND ALLOWANCES.—Any person appearing for oral testimony under a civil investigative demand issued under sub- section (a) shall be entitled to the same fees and allowances which are paid to witnesses in the district courts of the United States. (i) CUSTODIANS OF DOCUMENTS, ANSWERS, AND TRANSCRIPTS.— (1) DESIGNATION.—The Attorney General shall designate a false claims law investigator to serve as custodian of documentary mate- rial, answers to interrogatories, and tran- scripts of oral testimony received under this section, and shall designate such additional false claims law investigators as the Attorney General determines from time to time to be necessary to serve as deputies to the custo- dian. (2) RESPONSIBILITY FOR MATERIALS; DISCLO- SURE.—(A) A false claims law investigator who receives any documentary material, answers to interrogatories, or transcripts of oral testi- mony under this section shall transmit them to the custodian. The custodian shall take physical possession of such material, answers, or transcripts and shall be responsible for the use made of them and for the return of docu- mentary material under paragraph (4). (B) The custodian may cause the preparation of such copies of such documentary material, answers to interrogatories, or transcripts of oral testimony as may be required for official use by any false claims law investigator, or other officer or employee of the Department of Justice. Such material, answers, and tran- scripts may be used by any such authorized false claims law investigator or other officer or employee in connection with the taking of oral testimony under this section. (C) Except as otherwise provided in this sub- section, no documentary material, answers to interrogatories, or transcripts of oral testi- mony, or copies thereof, while in the posses- sion of the custodian, shall be available for ex- amination by any individual other than a false claims law investigator or other officer or em- ployee of the Department of Justice author- ized under subparagraph (B). The prohibition in the preceding sentence on the availability of material, answers, or transcripts shall not apply if consent is given by the person who produced such material, answers, or tran- scripts, or, in the case of any product of dis- covery produced pursuant to an express de- mand for such material, consent is given by the person from whom the discovery was ob- tained. Nothing in this subparagraph is in- tended to prevent disclosure to the Congress, including any committee or subcommittee of the Congress, or to any other agency of the United States for use by such agency in fur- therance of its statutory responsibilities. (D) While in the possession of the custodian and under such reasonable terms and condi- tions as the Attorney General shall prescribe— (i) documentary material and answers to interrogatories shall be available for exam- ination by the person who produced such material or answers, or by a representative of that person authorized by that person to examine such material and answers; and (ii) transcripts of oral testimony shall be available for examination by the person who produced such testimony, or by a representa- tive of that person authorized by that person to examine such transcripts. (3) USE OF MATERIAL, ANSWERS, OR TRAN- SCRIPTS IN OTHER PROCEEDINGS.—Whenever any attorney of the Department of Justice has been designated to appear before any court, grand jury, or Federal agency in any case or proceeding, the custodian of any documentary material, answers to interrogatories, or tran- scripts of oral testimony received under this section may deliver to such attorney such ma- terial, answers, or transcripts for official use in connection with any such case or pro- ceeding as such attorney determines to be re- quired. Upon the completion of any such case or proceeding, such attorney shall return to the custodian any such material, answers, or transcripts so delivered which have not passed into the control of such court, grand jury, or agency through introduction into the record of such case or proceeding. (4) CONDITIONS FOR RETURN OF MATERIAL.—If any documentary material has been produced by any person in the course of any false claims law investigation pursuant to a civil inves- tigative demand under this section, and— (A) any case or proceeding before the court or grand jury arising out of such investiga- tion, or any proceeding before any Federal agency involving such material, has been completed, or (B) no case or proceeding in which such material may be used has been commenced within a reasonable time after completion of the examination and analysis of all docu- mentary material and other information as- sembled in the course of such investigation, the custodian shall, upon written request of the person who produced such material, return to such person any such material (other than copies furnished to the false claims law inves- tigator under subsection (f)(2) or made for the Department of Justice under paragraph (2)(B)) which has not passed into the control of any court, grand jury, or agency through introduc- tion into the record of such case or pro- ceeding. Page 346 TITLE 31—MONEY AND FINANCE § 3733 (5) APPOINTMENT OF SUCCESSOR CUSTODIANS.— In the event of the death, disability, or separa- tion from service in the Department of Justice of the custodian of any documentary material, answers to interrogatories, or transcripts of oral testimony produced pursuant to a civil investigative demand under this section, or in the event of the official relief of such custo- dian from responsibility for the custody and control of such material, answers, or tran- scripts, the Attorney General shall promptly— (A) designate another false claims law in- vestigator to serve as custodian of such ma- terial, answers, or transcripts, and (B) transmit in writing to the person who produced such material, answers, or testi- mony notice of the identity and address of the successor so designated. Any person who is designated to be a successor under this paragraph shall have, with regard to such material, answers, or transcripts, the same duties and responsibilities as were im- posed by this section upon that person’s prede- cessor in office, except that the successor shall not be held responsible for any default or dere- liction which occurred before that designa- tion. (j) JUDICIAL PROCEEDINGS.— (1) PETITION FOR ENFORCEMENT.—Whenever any person fails to comply with any civil in- vestigative demand issued under subsection (a), or whenever satisfactory copying or repro- duction of any material requested in such de- mand cannot be done and such person refuses to surrender such material, the Attorney Gen- eral may file, in the district court of the United States for any judicial district in which such person resides, is found, or trans- acts business, and serve upon such person a pe- tition for an order of such court for the en- forcement of the civil investigative demand. (2) PETITION TO MODIFY OR SET ASIDE DE- MAND.—(A) Any person who has received a civil investigative demand issued under sub- section (a) may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, and serve upon the false claims law investigator identified in such de- mand a petition for an order of the court to modify or set aside such demand. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the district court of the United States for the judicial district in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this subparagraph must be filed— (i) within 20 days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand. (B) The petition shall specify each ground upon which the petitioner relies in seeking re- lief under subparagraph (A), and may be based upon any failure of the demand to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person. During the pendency of the pe- tition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the peti- tion shall comply with any portions of the de- mand not sought to be modified or set aside. (3) PETITION TO MODIFY OR SET ASIDE DEMAND FOR PRODUCT OF DISCOVERY.—(A) In the case of any civil investigative demand issued under subsection (a) which is an express demand for any product of discovery, the person from whom such discovery was obtained may file, in the district court of the United States for the judicial district in which the proceeding in which such discovery was obtained is or was last pending, and serve upon any false claims law investigator identified in the demand and upon the recipient of the demand, a petition for an order of such court to modify or set aside those portions of the demand requiring production of any such product of discovery. Any petition under this subparagraph must be filed— (i) within 20 days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand. (B) The petition shall specify each ground upon which the petitioner relies in seeking re- lief under subparagraph (A), and may be based upon any failure of the portions of the demand from which relief is sought to comply with the provisions of this section, or upon any con- stitutional or other legal right or privilege of the petitioner. During the pendency of the pe- tition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand. (4) PETITION TO REQUIRE PERFORMANCE BY CUSTODIAN OF DUTIES.—At any time during which any custodian is in custody or control of any documentary material or answers to in- terrogatories produced, or transcripts of oral testimony given, by any person in compliance with any civil investigative demand issued under subsection (a), such person, and in the case of an express demand for any product of discovery, the person from whom such dis- covery was obtained, may file, in the district court of the United States for the judicial dis- trict within which the office of such custodian is situated, and serve upon such custodian, a petition for an order of such court to require the performance by the custodian of any duty imposed upon the custodian by this section. (5) JURISDICTION.—Whenever any petition is filed in any district court of the United States under this subsection, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry out the provisions of this section. Any final order so entered shall be subject to appeal under section 1291 of title 28. Any disobedience of any final order Page 347 TITLE 31—MONEY AND FINANCE § 3733 entered under this section by any court shall be punished as a contempt of the court. (6) APPLICABILITY OF FEDERAL RULES OF CIVIL PROCEDURE.—The Federal Rules of Civil Proce- dure shall apply to any petition under this subsection, to the extent that such rules are not inconsistent with the provisions of this section. (k) DISCLOSURE EXEMPTION.—Any documen- tary material, answers to written interrog- atories, or oral testimony provided under any civil investigative demand issued under sub- section (a) shall be exempt from disclosure under section 552 of title 5. (l) DEFINITIONS.—For purposes of this section— (1) the term ‘‘false claims law’’ means— (A) this section and sections 3729 through 3732; and (B) any Act of Congress enacted after the date of the enactment of this section which prohibits, or makes available to the United States in any court of the United States any civil remedy with respect to, any false claim against, bribery of, or corruption of any offi- cer or employee of the United States; (2) the term ‘‘false claims law investigation’’ means any inquiry conducted by any false claims law investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of a false claims law; (3) the term ‘‘false claims law investigator’’ means any attorney or investigator employed by the Department of Justice who is charged with the duty of enforcing or carrying into ef- fect any false claims law, or any officer or em- ployee of the United States acting under the direction and supervision of such attorney or investigator in connection with a false claims law investigation; (4) the term ‘‘person’’ means any natural person, partnership, corporation, association, or other legal entity, including any State or political subdivision of a State; (5) the term ‘‘documentary material’’ in- cludes the original or any copy of any book, record, report, memorandum, paper, commu- nication, tabulation, chart, or other docu- ment, or data compilations stored in or acces- sible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or in- terpret such data compilations, and any prod- uct of discovery; (6) the term ‘‘custodian’’ means the custo- dian, or any deputy custodian, designated by the Attorney General under subsection (i)(1); (7) the term ‘‘product of discovery’’ in- cludes— (A) the original or duplicate of any deposi- tion, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission, which is ob- tained by any method of discovery in any ju- dicial or administrative proceeding of an ad- versarial nature; (B) any digest, analysis, selection, com- pilation, or derivation of any item listed in subparagraph (A); and (C) any index or other manner of access to any item listed in subparagraph (A); and (8) the term ‘‘official use’’ means any use that is consistent with the law, and the regu- lations and policies of the Department of Jus- tice, including use in connection with internal Department of Justice memoranda and re- ports; communications between the Depart- ment of Justice and a Federal, State, or local government agency, or a contractor of a Fed- eral, State, or local government agency, un- dertaken in furtherance of a Department of Justice investigation or prosecution of a case; interviews of any qui tam relator or other wit- ness; oral examinations; depositions; prepara- tion for and response to civil discovery re- quests; introduction into the record of a case or proceeding; applications, motions, memo- randa and briefs submitted to a court or other tribunal; and communications with Govern- ment investigators, auditors, consultants and experts, the counsel of other parties, arbitra- tors and mediators, concerning an investiga- tion, case or proceeding. (Added Pub. L. 99–562, § 6(a), Oct. 27, 1986, 100 Stat. 3159; amended Pub. L. 111–21, § 4(c), May 20, 2009, 123 Stat. 1623.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsecs. (b)(1)(B), (c)(2), (h)(1), and (j)(6), are set out in the Appendix to Title 28, Judiciary and Judicial Proce- dure. The date of enactment of this section, referred to in subsec. (l)(1)(B), is the date of enactment of Pub. L. 99–562, which was approved Oct. 27, 1986. AMENDMENTS 2009—Subsec. (a)(1). Pub. L. 111–21, § 4(c)(1)(A), in in- troductory provisions, inserted ‘‘, or a designee (for purposes of this section),’’ after ‘‘Whenever the Attor- ney General’’ and substituted ‘‘the Attorney General, or a designee, may, before commencing a civil pro- ceeding under section 3730(a) or other false claims law, or making an election under section 3730(b),’’ for ‘‘the Attorney General may, before commencing a civil pro- ceeding under section 3730 or other false claims law,’’ and, in concluding provisions, substituted ‘‘may dele- gate’’ for ‘‘may not delegate’’ and inserted at end ‘‘Any information obtained by the Attorney General or a des- ignee of the Attorney General under this section may be shared with any qui tam relator if the Attorney General or designee determine it is necessary as part of any false claims act investigation.’’ Subsec. (a)(2)(G). Pub. L. 111–21, § 4(c)(1)(B), struck out at end ‘‘The Attorney General may not, notwith- standing section 510 of title 28, authorize the perform- ance, by any other officer, employee, or agency, of any function vested in the Attorney General under this sub- paragraph.’’ Subsec. (i)(2)(B). Pub. L. 111–21, § 4(c)(2)(A), struck out ‘‘, who is authorized for such use under regulations which the Attorney General shall issue’’ after ‘‘Jus- tice’’. Subsec. (i)(2)(C). Pub. L. 111–21, § 4(c)(2)(B), struck out at end ‘‘Disclosure of information to any such other agency shall be allowed only upon application, made by the Attorney General to a United States district court, showing substantial need for the use of the information by such agency in furtherance of its statutory respon- sibilities.’’ Subsec. (l)(8). Pub. L. 111–21, § 4(c)(3), added par. (8). Page 348 TITLE 31—MONEY AND FINANCE § 3801 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–21 effective May 20, 2009, and applicable to conduct on or after May 20, 2009, ex- cept that this section, as amended by Pub. L. 111–21, ap- plicable to cases pending on May 20, 2009, see section 4(f) of Pub. L. 111–21, set out as a note under section 3729 of this title. CHAPTER 38—ADMINISTRATIVE REMEDIES FOR FALSE CLAIMS AND STATEMENTS Sec. 3801. Definitions. 3802. False claims and statements; liability. 3803. Hearing and determinations. 3804. Subpoena authority. 3805. Judicial review. 3806. Collection of civil penalties and assessments. 3807. Right to administrative offset. 3808. Limitations. 3809. Regulations. [3810. Repealed.] 3811. Effect on other law. 3812. Prohibition against delegation. Editorial Notes AMENDMENTS 1995—Pub. L. 104–66, title III, § 3001(c)(2), Dec. 21, 1995, 109 Stat. 734, struck out item 3810 ‘‘Reports’’. § 3801. Definitions (a) For purposes of this chapter— (1) ‘‘authority’’ means— (A) an executive department; (B) a military department; (C) an establishment (as such term is de- fined in section 401 of title 5) which is not an executive department; (D) the United States Postal Service; (E) the National Science Foundation; and (F) a designated Federal entity (as such term is defined under section 415(a) of title 5); (2) ‘‘authority head’’ means— (A) the head of an authority; or (B) an official or employee of the author- ity designated, in regulations promulgated by the head of the authority, to act on be- half of the head of the authority; (3) ‘‘claim’’ means any request, demand, or submission— (A) made to an authority for property, services, or money (including money rep- resenting grants, loans, insurance, or bene- fits); (B) made to a recipient of property, serv- ices, or money from an authority or to a party to a contract with an authority— (i) 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 (ii) for the payment of money (including money representing grants, loans, insur- ance, 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 an authority which has the ef- fect of concealing or improperly avoiding or decreasing an obligation to pay or transmit property, services, or money to the author- ity, except that such term does not include any claim made in any return of tax imposed by the Internal Revenue Code of 1986; (4) ‘‘investigating official’’ means an indi- vidual who— (A)(i) in the case of an authority in which an Office of Inspector General is established by chapter 4 of title 5 or by any other Fed- eral law, is the Inspector General of that au- thority or an officer or employee of such Of- fice designated by the Inspector General; (ii) in the case of an authority in which an Office of Inspector General is not established by chapter 4 of title 5 or by any other Fed- eral law, is an officer or employee of the au- thority designated by the authority head to conduct investigations under section 3803(a)(1) of this title; or (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 Depart- ment of Defense who is designated by the In- spector General; and (B) who, if a member of the Armed Forces of the United States on active duty, is serv- ing in grade O–7 or above or, if a civilian em- ployee, is serving in a position for which the rate of basic pay is not less than the min- imum rate of basic pay for grade GS–16 under the General Schedule; (5) ‘‘knows or has reason to know’’, for pur- poses of establishing liability under section 3802, 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, and no proof of specific intent to defraud is re- quired; (6) ‘‘person’’ means any individual, partner- ship, corporation, association, or private orga- nization; (7) ‘‘presiding officer’’ means— (A) in the case of an authority to which the provisions of subchapter II of chapter 5 of title 5 apply, an administrative law judge appointed in the authority pursuant to sec- tion 3105 of such title or detailed to the au- thority pursuant to section 3344 of such title; (B) in the case of an authority to which the provisions of such subchapter do not apply, an officer or employee of the author- ity who— (i) is selected under chapter 33 of title 5 pursuant to the competitive examination