§ 4237. — 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: 25USC4237]
TITLE 25--INDIANS
CHAPTER 43--NATIVE AMERICAN HOUSING ASSISTANCE AND SELF-DETERMINATION
SUBCHAPTER VIII--HOUSING ASSISTANCE FOR NATIVE HAWAIIANS
Sec. 4237. 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 a
hearing that the Department of Hawaiian Home Lands has failed to
comply substantially with any provision of this subchapter, the
Secretary shall--
(A) terminate payments under this subchapter to the
Department;
(B) reduce payments under this subchapter to the Department
by an amount equal to the amount of such payments that were not
expended in accordance with this subchapter; or
(C) limit the availability of payments under this subchapter
to programs, projects, or activities not affected by such
failure to comply.
(2) Actions
If the Secretary takes an action under subparagraph (A), (B), or
(C) of paragraph (1), the Secretary shall continue that action until
the Secretary determines that the failure by the Department to
comply with the provision has been remedied by the Department and
the Department is in compliance with that provision.
(b) Noncompliance because of a technical incapacity
The Secretary may provide technical assistance for the Department,
either directly or indirectly, that is designed to increase the
capability and capacity of the Director of the Department to administer
assistance provided under this subchapter in compliance with the
requirements under this subchapter if the Secretary makes a finding
under subsection (a) of this section, but determines that the failure of
the Department to comply substantially with the provisions of this
subchapter--
(1) is not a pattern or practice of activities constituting
willful noncompliance; and
(2) is a result of the limited capability or capacity of the
Department of Hawaiian Home Lands.
(c) Referral for civil action
(1) Authority
In lieu of, or in addition to, any action that the Secretary may
take under subsection (a) of this section, if the Secretary has
reason to believe that the Department of Hawaiian Home Lands has
failed to comply substantially with any provision of this
subchapter, 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 receiving a referral under paragraph (1), the Attorney
General may bring a civil action in any United States district court
of appropriate jurisdiction for such relief as may be appropriate,
including an action--
(A) to recover the amount of the assistance furnished under
this subchapter that was not expended in accordance with this
subchapter; or
(B) for mandatory or injunctive relief.
(d) Review
(1) In general
If the Director receives notice under subsection (a) of this
section of the termination, reduction, or limitation of payments
under this chapter, the Director--
(A) may, not later than 60 days after receiving such notice,
file with the United States Court of Appeals for the Ninth
Circuit, 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
(A) In general
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.
(B) Objections
No objection to the action of the Secretary shall be
considered by the court unless the Department has registered the
objection before the Secretary.
(3) Disposition
(A) Court proceedings
(i) Jurisdiction of court
The court shall have jurisdiction to affirm or modify
the action of the Secretary or to set the action aside in
whole or in part.
(ii) Findings of fact
If supported by substantial evidence on the record
considered as a whole, the findings of fact by the Secretary
shall be conclusive.
(iii) Addition
The court may order evidence, in addition to the
evidence submitted for review under this subsection, to be
taken by the Secretary, and to be made part of the record.
(B) Secretary
(i) In general
The Secretary, by reason of the additional evidence
referred to in subparagraph (A) and filed with the court--
(I) may--
(aa) modify the findings of fact of the
Secretary; or
(bb) make new findings; and
(II) shall file--
(aa) such modified or new findings; and
(bb) the recommendation of the Secretary, if
any, for the modification or setting aside of the
original action of the Secretary.
(ii) Findings
The findings referred to in clause (i)(II)(bb) shall,
with respect to a question of fact, be considered to be
conclusive if those findings are--
(I) supported by substantial evidence on the record;
and
(II) considered as a whole.
(4) Finality
(A) In general
Except as provided in subparagraph (B), upon the filing of
the record under this subsection with the court--
(i) the jurisdiction of the court shall be exclusive;
and
(ii) the judgment of the court shall be final.
(B) Review by Supreme Court
A judgment under subparagraph (A) 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 VIII, Sec. 818, as added Pub. L. 106-568, title
II, Sec. 203, Dec. 27, 2000, 114 Stat. 2891, and Pub. L. 106-569, title
V, Sec. 513, Dec. 27, 2000, 114 Stat. 2985.)
Codification
Pub. L. 106-568, Sec. 203, and Pub. L. 106-569, Sec. 513, enacted
identical sections 818 of Pub. L. 104-330. This section is based on the
text of section 818 of Pub. L. 104-330, as added by Pub. L. 106-569,
Sec. 513.
