16.31—Determining the amount of penalties and assessments.
(a)
In determining an appropriate amount of
civil penalties and assessements, the ALJ and upon
appeal, the authority head, 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.
(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)
The value of the Government's actual loss
as a result of the misconduct, including
foreseeable consequential damages and the costs of
investigation;
(6)
The relationship of the amount imposed as
civil penalties to the amount of the Government's
loss;
(7)
The potential or actual impact of the
misconduct upon national defense, public health or
safety, or public confidence in the management of
Government programs and operations;
(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;
(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;
(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; and
(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.