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U.S. Code as of:
01/19/04
Section 3612. Enforcement by Secretary
(a) Election of judicial determination
When a charge is filed under section 3610 of this title, a
complainant, a respondent, or an aggrieved person on whose behalf
the complaint was filed, may elect to have the claims asserted in
that charge decided in a civil action under subsection (o) of this
section in lieu of a hearing under subsection (b) of this section.
The election must be made not later than 20 days after the receipt
by the electing person of service under section 3610(h) of this
title or, in the case of the Secretary, not later than 20 days
after such service. The person making such election shall give
notice of doing so to the Secretary and to all other complainants
and respondents to whom the charge relates.
(b) Administrative law judge hearing in absence of election
If an election is not made under subsection (a) of this section
with respect to a charge filed under section 3610 of this title,
the Secretary shall provide an opportunity for a hearing on the
record with respect to a charge issued under section 3610 of this
title. The Secretary shall delegate the conduct of a hearing under
this section to an administrative law judge appointed under section
3105 of title 5. The administrative law judge shall conduct the
hearing at a place in the vicinity in which the discriminatory
housing practice is alleged to have occurred or to be about to
occur.
(c) Rights of parties
At a hearing under this section, each party may appear in person,
be represented by counsel, present evidence, cross-examine
witnesses, and obtain the issuance of subpoenas under section 3611
of this title. Any aggrieved person may intervene as a party in the
proceeding. The Federal Rules of Evidence apply to the presentation
of evidence in such hearing as they would in a civil action in a
United States district court.
(d) Expedited discovery and hearing
(1) Discovery in administrative proceedings under this section
shall be conducted as expeditiously and inexpensively as possible,
consistent with the need of all parties to obtain relevant
evidence.
(2) A hearing under this section shall be conducted as
expeditiously and inexpensively as possible, consistent with the
needs and rights of the parties to obtain a fair hearing and a
complete record.
(3) The Secretary shall, not later than 180 days after September
13, 1988, issue rules to implement this subsection.
(e) Resolution of charge
Any resolution of a charge before a final order under this
section shall require the consent of the aggrieved person on whose
behalf the charge is issued.
(f) Effect of trial of civil action on administrative proceedings
An administrative law judge may not continue administrative
proceedings under this section regarding any alleged discriminatory
housing practice after the beginning of the trial of a civil action
commenced by the aggrieved party under an Act of Congress or a
State law, seeking relief with respect to that discriminatory
housing practice.
(g) Hearings, findings and conclusions, and order
(1) The administrative law judge shall commence the hearing under
this section no later than 120 days following the issuance of the
charge, unless it is impracticable to do so. If the administrative
law judge is unable to commence the hearing within 120 days after
the issuance of the charge, the administrative law judge shall
notify the Secretary, the aggrieved person on whose behalf the
charge was filed, and the respondent, in writing of the reasons for
not doing so.
(2) The administrative law judge shall make findings of fact and
conclusions of law within 60 days after the end of the hearing
under this section, unless it is impracticable to do so. If the
administrative law judge is unable to make findings of fact and
conclusions of law within such period, or any succeeding 60-day
period thereafter, the administrative law judge shall notify the
Secretary, the aggrieved person on whose behalf the charge was
filed, and the respondent, in writing of the reasons for not doing
so.
(3) If the administrative law judge finds that a respondent has
engaged or is about to engage in a discriminatory housing practice,
such administrative law judge shall promptly issue an order for
such relief as may be appropriate, which may include actual damages
suffered by the aggrieved person and injunctive or other equitable
relief. Such order may, to vindicate the public interest, assess a
civil penalty against the respondent -
(A) in an amount not exceeding $10,000 if the respondent has
not been adjudged to have committed any prior discriminatory
housing practice;
(B) in an amount not exceeding $25,000 if the respondent has
been adjudged to have committed one other discriminatory housing
practice during the 5-year period ending on the date of the
filing of this charge; and
(C) in an amount not exceeding $50,000 if the respondent has
been adjudged to have committed 2 or more discriminatory housing
practices during the 7-year period ending on the date of the
filing of this charge;
except that if the acts constituting the discriminatory housing
practice that is the object of the charge are committed by the same
natural person who has been previously adjudged to have committed
acts constituting a discriminatory housing practice, then the civil
penalties set forth in subparagraphs (B) and (C) may be imposed
without regard to the period of time within which any subsequent
discriminatory housing practice occurred.
(4) No such order shall affect any contract, sale, encumbrance,
or lease consummated before the issuance of such order and
involving a bona fide purchaser, encumbrancer, or tenant without
actual notice of the charge filed under this subchapter.
(5) In the case of an order with respect to a discriminatory
housing practice that occurred in the course of a business subject
to a licensing or regulation by a governmental agency, the
Secretary shall, not later than 30 days after the date of the
issuance of such order (or, if such order is judicially reviewed,
30 days after such order is in substance affirmed upon such review)
-
(A) send copies of the findings of fact, conclusions of law,
and the order, to that governmental agency; and
(B) recommend to that governmental agency appropriate
disciplinary action (including, where appropriate, the suspension
or revocation of the license of the respondent).
(6) In the case of an order against a respondent against whom
another order was issued within the preceding 5 years under this
section, the Secretary shall send a copy of each such order to the
Attorney General.
(7) If the administrative law judge finds that the respondent has
not engaged or is not about to engage in a discriminatory housing
practice, as the case may be, such administrative law judge shall
enter an order dismissing the charge. The Secretary shall make
public disclosure of each such dismissal.
(h) Review by Secretary; service of final order
(1) The Secretary may review any finding, conclusion, or order
issued under subsection (g) of this section. Such review shall be
completed not later than 30 days after the finding, conclusion, or
order is so issued; otherwise the finding, conclusion, or order
becomes final.
(2) The Secretary shall cause the findings of fact and
conclusions of law made with respect to any final order for relief
under this section, together with a copy of such order, to be
served on each aggrieved person and each respondent in the
proceeding.
(i) Judicial review
(1) Any party aggrieved by a final order for relief under this
section granting or denying in whole or in part the relief sought
may obtain a review of such order under chapter 158 of title 28.
(2) Notwithstanding such chapter, venue of the proceeding shall
be in the judicial circuit in which the discriminatory housing
practice is alleged to have occurred, and filing of the petition
for review shall be not later than 30 days after the order is
entered.
(j) Court enforcement of administrative order upon petition by
Secretary
(1) The Secretary may petition any United States court of appeals
for the circuit in which the discriminatory housing practice is
alleged to have occurred or in which any respondent resides or
transacts business for the enforcement of the order of the
administrative law judge and for appropriate temporary relief or
restraining order, by filing in such court a written petition
praying that such order be enforced and for appropriate temporary
relief or restraining order.
(2) The Secretary shall file in court with the petition the
record in the proceeding. A copy of such petition shall be
forthwith transmitted by the clerk of the court to the parties to
the proceeding before the administrative law judge.
(k) Relief which may be granted
(1) Upon the filing of a petition under subsection (i) or (j) of
this section, the court may -
(A) grant to the petitioner, or any other party, such temporary
relief, restraining order, or other order as the court deems just
and proper;
(B) affirm, modify, or set aside, in whole or in part, the
order, or remand the order for further proceedings; and
(C) enforce such order to the extent that such order is
affirmed or modified.
(2) Any party to the proceeding before the administrative law
judge may intervene in the court of appeals.
(3) No objection not made before the administrative law judge
shall be considered by the court, unless the failure or neglect to
urge such objection is excused because of extraordinary
circumstances.
(l) Enforcement decree in absence of petition for review
If no petition for review is filed under subsection (i) of this
section before the expiration of 45 days after the date the
administrative law judge's order is entered, the administrative law
judge's findings of fact and order shall be conclusive in
connection with any petition for enforcement -
(1) which is filed by the Secretary under subsection (j) of
this section after the end of such day; or
(2) under subsection (m) of this section.
(m) Court enforcement of administrative order upon petition of any
person entitled to relief
If before the expiration of 60 days after the date the
administrative law judge's order is entered, no petition for review
has been filed under subsection (i) of this section, and the
Secretary has not sought enforcement of the order under subsection
(j) of this section, any person entitled to relief under the order
may petition for a decree enforcing the order in the United States
court of appeals for the circuit in which the discriminatory
housing practice is alleged to have occurred.
(n) Entry of decree
The clerk of the court of appeals in which a petition for
enforcement is filed under subsection (l) or (m) of this section
shall forthwith enter a decree enforcing the order and shall
transmit a copy of such decree to the Secretary, the respondent
named in the petition, and to any other parties to the proceeding
before the administrative law judge.
(o) Civil action for enforcement when election is made for such
civil action
(1) If an election is made under subsection (a) of this section,
the Secretary shall authorize, and not later than 30 days after the
election is made the Attorney General shall commence and maintain,
a civil action on behalf of the aggrieved person in a United States
district court seeking relief under this subsection. Venue for such
civil action shall be determined under chapter 87 of title 28.
(2) Any aggrieved person with respect to the issues to be
determined in a civil action under this subsection may intervene as
of right in that civil action.
(3) In a civil action under this subsection, if the court finds
that a discriminatory housing practice has occurred or is about to
occur, the court may grant as relief any relief which a court could
grant with respect to such discriminatory housing practice in a
civil action under section 3613 of this title. Any relief so
granted that would accrue to an aggrieved person in a civil action
commenced by that aggrieved person under section 3613 of this title
shall also accrue to that aggrieved person in a civil action under
this subsection. If monetary relief is sought for the benefit of an
aggrieved person who does not intervene in the civil action, the
court shall not award such relief if that aggrieved person has not
complied with discovery orders entered by the court.
(p) Attorney's fees
In any administrative proceeding brought under this section, or
any court proceeding arising therefrom, or any civil action under
this section, the administrative law judge or the court, as the
case may be, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee and
costs. The United States shall be liable for such fees and costs to
the extent provided by section 504 of title 5 or by section 2412 of
title 28.
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