Page:United States Statutes at Large Volume 103 Part 2.djvu/986

 103 STAT. 1996 PUBLIC LAW 101-235—DEC. 15, 1989 "(ii) shall provide for the imposition of a penalty only after the employee has been given an opportunity for a hearing on the record; and "(iii) may provide for review of any determination or order, or interlocutory ruling, arising from a hearing. "(B) P^AL ORDERS.—If no hearing is requested within 15 days of receipt of the notice of opportunity for hearing, the imposition of the penalty shall constitute a final and unappealable order. If the Secretary reviews the determina- tion or order, the Secretary may affirm, modify, or reverse that determination or order. If the Secretary does not review the determination or order within 90 days of the issuance of the determination or order, the determination or order shall be final. "(O FACTORS IN DETERMINING AMOUNT OF PENALTY.— In determining the amount of a penalty under paragraph (2), consideration shall be given to such factors as the gravity of the offense, any history of prior disclosures of information on pending funding decisions made after the date of enact- ment of tMs section, ability to pay the penalty, injury to the public, benefits received, deterrence of future violations, and such other factors as the Secretary may determine in r^ulations to be appropriate. "(D) REVIEWABILITy OF IMPOSITION OF A PENALTY. —The Secretary's determination or order imposing a penalty under paragraph (1) shall not be subject to review, except as provided in paragraph (4). "(4) JUDICIAL REVIEW OF AGENCY DETERMINATION.— " (A) IN GENERAL. —After exhausting all administrative remedies established by the Secretary under paragraph (3)(A), an employee against whom the Secretary has im- posed a civil money penalty under paragraph (1) may obtain a review of the penalty and such ancillary issues (such as - any administrative sanctions under 24 C.F.R. part 25) as may be addressed in the notice of determination to impose a penalty under paragraph (3)(A)(i) in the appropriate court of appeals of the United States, by filing in such court, within 20 days after the entry of such order or determina- tion, a written petition praying that the Secretary's order or determination be modified or be set aside in whole or in part. "(B) OBJECTIONS NOT RAISED IN HEARING. —The court shall not consider any objection that was not raised in the hear- ing conducted pursuant to paragraph (3)(A) unless a dem- onstration is made of extraordinaxy circumstances causing the failure to raise the objection. If any party demonstrates to the satisfaction of the court that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at the hearing, the court shall remand the matter to the Secretary for consideration of such additional evidence. "(O SCOPE OF REVIEW. —The decisions, findings, and determinations of the Secretary shall be reviewed pursuant to section 706 of title 5, United States Code. "(D) ORDER TO PAY PENALTY. — Notwithstanding any other provision of law, in any such review, the court shall have

�