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U.S. Code as of:
01/19/04
Section 3537a. Prohibition of advance disclosure of funding decisions
(a) Prohibited actions
During any selection process, no officer or employee of the
Department of Housing and Urban Development shall knowingly
disclose any covered selection information regarding such
selection, directly or indirectly, to any person other than a
person authorized by the Secretary to receive such information.
(b) Administrative remedies
If the Secretary receives or obtains information providing a
reasonable basis to believe that a violation of subsection (a) of
this section has occurred, the Secretary shall -
(1) in the case of a selection that has not been made,
determine whether to terminate the selection process or take
other appropriate actions; and
(2) in the case of a selection that has been made, determine
whether to -
(A) void or rescind the selection, subject to review and
determination on the record after opportunity for a hearing;
(B) impose sanctions upon the violating applicant selected,
subject to review and determination on the record after
opportunity for a hearing;
(C) permit the violating applicant selected to continue to
participate in the program; or
(D) take any other actions that the Secretary considers
appropriate.
(c) Civil money penalties
(1) In general
Whenever any employee of the Department knowingly and
materially violates the prohibition in subsection (a) of this
section, the Secretary may impose a civil money penalty on the
employee in accordance with the provisions of this subsection.
This penalty shall be in addition to any other available civil
remedy or any available criminal penalty and may be imposed
whether or not the Secretary takes other disciplinary actions.
(2) Amount
The amount of the penalty, as determined by the Secretary, may
not exceed $10,000 for each violation.
(3) Agency procedures
(A) Establishment
The Secretary shall establish standards and procedures
governing the imposition of civil money penalties under this
subsection. The standards and procedures -
(i) shall provide for the Secretary or other official of
the Department to make the determination to impose a penalty
or to use an administrative entity to make the determination;
(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) Final 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 determination 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.
(C) 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 December 15, 1989, 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 regulations 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 imposed 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 determination,
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 hearing conducted pursuant to paragraph (3)(A)
unless a demonstration is made of extraordinary 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.
(C) Scope of review
The decisions, findings, and determinations of the Secretary
shall be reviewed pursuant to section 706 of title 5.
(D) Order to pay penalty
Notwithstanding any other provision of law, in any such
review, the court shall have the power to order payment of the
penalty imposed by the Secretary.
(5) Action to collect penalty
If any employee fails to comply with the Secretary's
determination or order imposing a civil money penalty under
paragraph (1), after the determination or order is no longer
subject to review as provided by paragraphs (3)(A) and (4), the
Secretary may request the Attorney General of the United States
to bring an action in an appropriate United States district court
to obtain a monetary judgment against the employee and such other
relief as may be available. The monetary judgment may, in the
court's discretion, include the attorneys' fees and other
expenses incurred by the United States in connection with the
action. In an action under this subsection, the validity and
appropriateness of the Secretary's determination or order
imposing the penalty shall not be subject to review.
(6) Settlement by Secretary
The Secretary may compromise, modify, or remit any civil money
penalty which may be, or has been, imposed under this subsection.
(7) Deposit of penalties
The Secretary shall deposit all civil money penalties collected
under this subsection into miscellaneous receipts of the
Treasury.
(d) Criminal penalties
Whoever willfully violates subsection (a) of this section by
making a disclosure prohibited by subsection (a) of this section to
any applicant, or any officer, employee, representative, agent, or
consultant of any applicant, shall be imprisoned not more than 5
years, or fined in accordance with title 18, or both.
(e) Definitions
For purposes of this section:
(1) Applicant
The term "applicant" means any applicant or candidate that is
being considered for receiving assistance.
(2) Assistance
The term "assistance" means any grant, loan, subsidy,
guarantee, or other financial assistance under a program
administered by the Secretary that provides by statute,
regulation, or otherwise for the competitive distribution of such
assistance. The term does not include any mortgage insurance
provided under a program administered by the Secretary.
(3) Covered selection information
The term "covered selection information" means -
(A) any information that is contained in any application or
request for assistance, or any information regarding the
decision of the Secretary to make available assistance or other
information that is determined by the Secretary to be
information that is not generally available to the public (not
including program requirements and timing of the decision to
make assistance available); and
(B) any information that is required by statute, regulation,
or order to be confidential.
(4) Knowingly
The term "knowingly" means having actual knowledge of or acting
with deliberate ignorance of or reckless disregard for the
prohibitions under this section.
(5) Selection
The term "selection" means the determination of which
applicants for assistance are to receive assistance under the
program.
(6) Selection process
The term "selection process" means the period with respect to a
selection for assistance that begins with the development,
preparation, and issuance of a solicitation or request for
applications for the assistance and concludes with the selection
of recipients of assistance, and includes the evaluation of
applications.
(f) Regulations
The Secretary shall issue such regulations as the Secretary deems
appropriate to implement this section.
(g) Applicability
This section shall apply only with respect to violations that
occur on or after December, 15, 1989.
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