§ 4161. — Remedies for noncompliance.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 25USC4161]
TITLE 25--INDIANS
CHAPTER 43--NATIVE AMERICAN HOUSING ASSISTANCE AND SELF-DETERMINATION
SUBCHAPTER IV--COMPLIANCE, AUDITS, AND REPORTS
Sec. 4161. Remedies for noncompliance
(a) Actions by Secretary affecting grant amounts
(1) In general
Except as provided in subsection (b) of this section, if the
Secretary finds after reasonable notice and opportunity for hearing
that a recipient of assistance under this chapter has failed to
comply substantially with any provision of this chapter, the
Secretary shall--
(A) terminate payments under this chapter to the recipient;
(B) reduce payments under this chapter to the recipient by
an amount equal to the amount of such payments that were not
expended in accordance with this chapter;
(C) limit the availability of payments under this chapter to
programs, projects, or activities not affected by such failure
to comply; or
(D) in the case of noncompliance described in section
4162(b) of this title, provide a replacement tribally designated
housing entity for the recipient, under section 4162 of this
title.
(2) Continuance of actions
If the Secretary takes an action under subparagraph (A), (B), or
(C) of paragraph (1), the Secretary shall continue such action until
the Secretary determines that the failure to comply has ceased.
(3) Exception for certain actions
(A) In general
Notwithstanding any other provision of this subsection, if
the Secretary makes a determination that the failure of a
recipient of assistance under this chapter to comply
substantially with any material provision (as that term is
defined by the Secretary) of this chapter is resulting, and
would continue to result, in a continuing expenditure of Federal
funds in a manner that is not authorized by law, the Secretary
may take an action described in paragraph (1)(C) before
conducting a hearing.
(B) Procedural requirement
If the Secretary takes an action described in subparagraph
(A), the Secretary shall--
(i) provide notice to the recipient at the time that the
Secretary takes that action; and
(ii) conduct a hearing not later than 60 days after the
date on which the Secretary provides notice under clause
(i).
(C) Determination
Upon completion of a hearing under this paragraph, the
Secretary shall make a determination regarding whether to
continue taking the action that is the subject of the hearing,
or take another action under this subsection.
(b) Noncompliance because of technical incapacity
(1) In general
If the Secretary makes a finding under subsection (a) of this
section, but determines that the failure to comply substantially
with the provisions of this chapter--
(A) is not a pattern or practice of activities constituting
willful noncompliance, and
(B) is a result of the limited capability or capacity of the
recipient,
the Secretary may provide technical assistance for the recipient
(directly or indirectly) that is designed to increase the capability
and capacity of the recipient to administer assistance provided
under this chapter in compliance with the requirements under this
chapter, if the recipient enters into a performance agreement with
the Secretary that specifies the compliance objectives that the
recipient will be required to achieve by the termination date of the
performance agreement.
(2) Performance agreement
The period of a performance agreement described in paragraph (1)
shall be for 1 year.
(3) Review
Upon the termination of a performance agreement entered into
under paragraph (1), the Secretary shall review the performance of
the recipient that is a party to the agreement.
(4) Effect of review
If, on the basis of a review under paragraph (3), the Secretary
determines that the recipient--
(A) has made a good faith effort to meet the compliance
objectives specified in the agreement, the Secretary may enter
into an additional performance agreement for the period
specified in paragraph (2); and
(B) has failed to make a good faith effort to meet
applicable compliance objectives, the Secretary shall determine
the recipient to have failed to comply substantially with this
chapter, and the recipient shall be subject to an action under
subsection (a) of this section.
(c) Referral for civil action
(1) Authority
In lieu of, or in addition to, any action authorized by
subsection (a) of this section, if the Secretary has reason to
believe that a recipient has failed to comply substantially with any
provision of this chapter, the Secretary may refer the matter to the
Attorney General of the United States with a recommendation that an
appropriate civil action be instituted.
(2) Civil action
Upon such a referral, the Attorney General may bring a civil
action in any United States district court having venue thereof for
such relief as may be appropriate, including an action to recover
the amount of the assistance furnished under this chapter that was
not expended in accordance with it, or for mandatory or injunctive
relief.
(d) Review
(1) In general
Any recipient who receives notice under subsection (a) of this
section of the termination, reduction, or limitation of payments
under this chapter--
(A) may, not later than 60 days after receiving such notice,
file with the United States Court of Appeals for the circuit in
which such State is located, or in the United States Court of
Appeals for the District of Columbia, a petition for review of
the action of the Secretary; and
(B) upon the filing of any petition under subparagraph (A),
shall forthwith transmit copies of the petition to the Secretary
and the Attorney General of the United States, who shall
represent the Secretary in the litigation.
(2) Procedure
The Secretary shall file in the court a record of the proceeding
on which the Secretary based the action, as provided in section 2112
of title 28. No objection to the action of the Secretary shall be
considered by the court unless such objection has been urged before
the Secretary.
(3) Disposition
(A) Court proceedings
The court shall have jurisdiction to affirm or modify the
action of the Secretary or to set it aside in whole or in part.
The findings of fact by the Secretary, if supported by
substantial evidence on the record considered as a whole, shall
be conclusive. The court may order additional evidence to be
taken by the Secretary, and to be made part of the record.
(B) Secretary
The Secretary--
(i) may modify the findings of fact of the Secretary, or
make new findings, by reason of the new evidence so taken
and filed with the court; and
(ii) shall file--
(I) such modified or new findings, which findings
with respect to questions of fact shall be conclusive if
supported by substantial evidence on the record
considered as a whole; and
(II) the recommendation of the Secretary, if any,
for the modification or setting aside of the original
action of the Secretary.
(4) Finality
Upon the filing of the record with the court, the jurisdiction
of the court shall be exclusive and its judgment shall be final,
except that such judgment shall be subject to review by the Supreme
Court of the United States upon writ of certiorari or certification
as provided in section 1254 of title 28.
(Pub. L. 104-330, title IV, Sec. 401, Oct. 26, 1996, 110 Stat. 4037;
Pub. L. 106-568, title X, Sec. 1003(h), (i), Dec. 27, 2000, 114 Stat.
2928, 2929; Pub. L. 106-569, title V, Sec. 503(g), (h), Dec. 27, 2000,
114 Stat. 2964, 2965.)
References in Text
This chapter, referred to in text, was in the original ``this Act'',
meaning Pub. L. 104-330, Oct. 26, 1996, 110 Stat. 4016, as amended,
known as the Native American Housing Assistance and Self-Determination
Act of 1996. For complete classification of this Act to the Code, see
Short Title note set out under section 4101 of this title and Tables.
Amendments
2000--Subsec. (a). Pub. L. 106-568, Sec. 1003(h), and Pub. L. 106-
569, Sec. 503(g), amended subsec. (a) identically, designating existing
provisions as par. (1), inserting heading, redesignating former pars.
(1) to (4) as subpars. (A) to (D), respectively, of par. (1), realigning
margins, designating concluding provisions as par. (2), inserting
heading, substituting ``If the Secretary takes an action under
subparagraph (A), (B), or (C) of paragraph (1)'' for ``If the Secretary
takes an action under paragraph (1), (2), or (3)'', and adding par. (3).
Subsec. (b). Pub. L. 106-568, Sec. 1003(i), and Pub. L. 106-569,
Sec. 503(h), amended subsec. (b) identically, designating existing
provisions as par. (1), inserting heading, redesignating former pars.
(1) and (2) as subpars. (A) and (B), respectively, of par. (1),
realigning margins of concluding provisions, inserting ``, if the
recipient enters into a performance agreement with the Secretary that
specifies the compliance objectives that the recipient will be required
to achieve by the termination date of the performance agreement'' before
period at end of concluding provisions, and adding pars. (2) to (4).
Effective Date
Section effective Oct. 1, 1997, except as otherwise expressly
provided, see section 107 of Pub. L. 104-330, set out as a note under
section 4101 of this title.
Section Referred to in Other Sections
This section is referred to in sections 4139, 4165 of this title.
