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U.S. Code as of:
01/19/04
Section 1416. Withholding and judicial review
(a) Withholding of payments
(1) In general
Whenever the Secretary, after reasonable notice and opportunity
for hearing to the State educational agency involved (and to any
local educational agency or State agency affected by any failure
described in subparagraph (B)), finds -
(A) that there has been a failure by the State to comply
substantially with any provision of this subchapter; or
(B) that there is a failure to comply with any condition of a
local educational agency's or State agency's eligibility under
this subchapter, including the terms of any agreement to
achieve compliance with this subchapter within the timelines
specified in the agreement;
the Secretary shall, after notifying the State educational
agency, withhold, in whole or in part, any further payments to
the State under this subchapter, or refer the matter for
appropriate enforcement action, which may include referral to the
Department of Justice.
(2) Nature of withholding
If the Secretary withholds further payments under paragraph
(1), the Secretary may determine that such withholding will be
limited to programs or projects, or portions thereof, affected by
the failure, or that the State educational agency shall not make
further payments under this subchapter to specified local
educational agencies or State agencies affected by the failure.
Until the Secretary is satisfied that there is no longer any
failure to comply with the provisions of this subchapter, as
specified in subparagraph (A) or (B) of paragraph (1), payments
to the State under this subchapter shall be withheld in whole or
in part, or payments by the State educational agency under this
subchapter shall be limited to local educational agencies and
State agencies whose actions did not cause or were not involved
in the failure, as the case may be. Any State educational agency,
State agency, or local educational agency that has received
notice under paragraph (1) shall, by means of a public notice,
take such measures as may be necessary to bring the pendency of
an action pursuant to this subsection to the attention of the
public within the jurisdiction of such agency.
(b) Judicial review
(1) In general
If any State is dissatisfied with the Secretary's final action
with respect to the eligibility of the State under section 1412
of this title, such State may, not later than 60 days after
notice of such action, file with the United States court of
appeals for the circuit in which such State is located a petition
for review of that action. A copy of the petition shall be
forthwith transmitted by the clerk of the court to the Secretary.
The Secretary thereupon shall file in the court the record of the
proceedings upon which the Secretary's action was based, as
provided in section 2112 of title 28.
(2) Jurisdiction; review by United States Supreme Court
Upon the filing of such petition, the court shall have
jurisdiction to affirm the action of the Secretary or to set it
aside, in whole or in part. The judgment of the court shall be
subject to review by the Supreme Court of the United States upon
certiorari or certification as provided in section 1254 of title
28.
(3) Standard of review
The findings of fact by the Secretary, if supported by
substantial evidence, shall be conclusive, but the court, for
good cause shown, may remand the case to the Secretary to take
further evidence, and the Secretary may thereupon make new or
modified findings of fact and may modify the Secretary's previous
action, and shall file in the court the record of the further
proceedings. Such new or modified findings of fact shall likewise
be conclusive if supported by substantial evidence.
(c) Divided State agency responsibility
For purposes of this section, where responsibility for ensuring
that the requirements of this subchapter are met with respect to
children with disabilities who are convicted as adults under State
law and incarcerated in adult prisons is assigned to a public
agency other than the State educational agency pursuant to section
1412(a)(11)(C) of this title, the Secretary, in instances where the
Secretary finds that the failure to comply substantially with the
provisions of this subchapter are related to a failure by the
public agency, shall take appropriate corrective action to ensure
compliance with this subchapter, except -
(1) any reduction or withholding of payments to the State is
proportionate to the total funds allotted under section 1411 of
this title to the State as the number of eligible children with
disabilities in adult prisons under the supervision of the other
public agency is proportionate to the number of eligible
individuals with disabilities in the State under the supervision
of the State educational agency; and
(2) any withholding of funds under paragraph (1) shall be
limited to the specific agency responsible for the failure to
comply with this subchapter.
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