12 U.S.C. § 4585 — Civil money penalties

Page 1685 TITLE 12—BANKS AND BANKING § 4585 1 See References in Text note below. case has been submitted to the Director for final decision, the Director shall render the decision (which shall include findings of fact upon which the decision is predicated) and shall issue and serve upon the enterprise an order or orders consistent with the provisions of this subpart. (2) Modification Judicial review of any such order shall be exclusively as provided in section 4583 of this title. Unless such a petition for review is time- ly filed as provided in section 4583 of this title, and thereafter until the record in the pro- ceeding has been filed as so provided, the Di- rector may at any time, modify, terminate, or set aside any such order, upon such notice and in such manner as the Director considers prop- er. Upon such filing of the record, the Director may modify, terminate, or set aside any such order with permission of the court. (Pub. L. 102–550, title XIII, § 1342, Oct. 28, 1992, 106 Stat. 3965; Pub. L. 110–289, div. A, title I, § 1130(e)(3)(A), July 30, 2008, 122 Stat. 2711.) Editorial Notes AMENDMENTS 2008—Subsec. (b). Pub. L. 110–289 substituted ‘‘Direc- tor’’ for ‘‘Secretary’’ wherever appearing. § 4583. Judicial review (a) Commencement An enterprise that is a party to a proceeding under section 4581 or 4585 of this title may ob- tain review of any final order issued under such section by filing in the United States Court of Appeals for the District of Columbia Circuit, within 30 days after the date of service of such order, a written petition praying that the order of the Director be modified, terminated, or set aside. The clerk of the court shall transmit a copy of the petition to the Director. (b) Filing of record Upon receiving a copy of a petition, the Direc- tor shall file in the court the record in the pro- ceeding, as provided in section 2112 of title 28. (c) Jurisdiction Upon the filing of a petition, such court shall have jurisdiction, which upon the filing of the record by the Director shall (except as provided in the last sentence of section 4582(b)(2) of this title) be exclusive, to affirm, modify, terminate, or set aside, in whole or in part, the order of the Director. (d) Review Review of such proceedings shall be governed by chapter 7 of title 5. (e) Order to pay penalty Such court shall have the authority in any such review to order payment of any penalty im- posed by the Director under this subpart. (f) No automatic stay The commencement of proceedings for judicial review under this section shall not, unless spe- cifically ordered by the court, operate as a stay of any order issued by the Director. (Pub. L. 102–550, title XIII, § 1343, Oct. 28, 1992, 106 Stat. 3966; Pub. L. 110–289, div. A, title I, § 1130(e)(3)(B), July 30, 2008, 122 Stat. 2711.) Editorial Notes AMENDMENTS 2008—Pub. L. 110–289 substituted ‘‘Director’’ for ‘‘Sec- retary’’ wherever appearing. § 4584. Enforcement and jurisdiction (a) Enforcement The Director may bring a civil action in the United States District Court for the District of Columbia for the enforcement of any effective notice or order issued under section 4581 or 4585 of this title. Such court shall have jurisdiction and power to order and require compliance here- with. (b) Limitation on jurisdiction Except as otherwise provided in this subpart, no court shall have jurisdiction to affect, by in- junction or otherwise, the issuance or enforce- ment of any notice or order under section 4581 or 4585 of this title, or to review, modify, suspend, terminate, or set aside any such notice or order. (Pub. L. 102–550, title XIII, § 1344, Oct. 28, 1992, 106 Stat. 3966; Pub. L. 110–289, div. A, title I, § 1130(e)(1), July 30, 2008, 122 Stat. 2711.) Editorial Notes AMENDMENTS 2008—Subsec. (a). Pub. L. 110–289, which directed sub- stitution of ‘‘The Director may bring a civil action’’ for ‘‘The Secretary may request the Attorney General of the United States to bring a civil action’’, was executed by making the substitution for ‘‘The Secretary may re- quest the Attorney General of the United States to bring an action’’ to reflect the probable intent of Con- gress. § 4585. Civil money penalties (a) Authority The Director may impose a civil money pen- alty, in accordance with the provisions of this section, on any enterprise that has failed to— (1) submit a report under section 4547 1 of this title, following a notice of such failure, an opportunity for comment by the enterprise, and a final determination by the Director; (2) submit the information required under subsection (m) or (n) of section 1723a of this title or subsection (e) or (f) of section 1456 of this title; (3) solely with respect to the housing goals established under sections 4562(a) and 4563(a)(1) of this title, submit a housing plan or perform its responsibilities under a reme- dial order issued pursuant to section 4566(c) of this title within the required period; or (4) solely with respect to the housing goals established under sections 4562(a) and 4563(a)(1) of this title, comply with a housing plan for the enterprise under section 4566(c) of this title. (b) Amount of penalty The amount of a penalty under this section, as determined by the Director, may not exceed— Page 1686 TITLE 12—BANKS AND BANKING § 4586 1 So in original. Probably should be ‘‘Director’s’’. (1) for any failure described in paragraph (1), (5), or (6) of subsection (a), $100,000 for each day that the failure occurs; and (2) for any failure described in paragraph (2), (3), or (4) of subsection (a), $50,000 for each day that the failure occurs. (c) Procedures (1) Establishment The Director shall establish standards and procedures governing the imposition of civil money penalties under this section. Such standards and procedures— (A) shall provide for the Director to notify the enterprise in writing of the determina- tion of the Director to impose the penalty, which shall be made on the record; (B) shall provide for the imposition of a penalty only after the enterprise has been given an opportunity for a hearing on the record pursuant to section 4582 of this title; and (C) may provide for review by the Director of any determination or order, or interlocu- tory ruling, arising from a hearing. (2) Factors in determining amount of penalty In determining the amount of a penalty under this section, the Director shall give con- sideration to factors including— (A) the gravity of the offense; (B) any history of prior offenses; (C) ability to pay the penalty; (D) injury to the public; (E) benefits received; (F) deterrence of future violations; (G) the length of time that the enterprise should reasonably take to achieve the goal; and (H) such other factors as the Director may determine, by regulation, to be appropriate. (d) Action to collect penalty If an enterprise fails to comply with an order by the Director imposing a civil money penalty under this section, after the order is no longer subject to review, as provided in sections 4582 and 4583 of this title, the Director may bring an action in the United States District Court for the District of Columbia to obtain a monetary judgment against the enterprise, and such other relief as may be available. The monetary judg- ment 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 order imposing the penalty shall not be subject to review. (e) Settlement by Director The Director may compromise, modify, or remit any civil money penalty which may be, or has been, imposed under this section. (f) Deposit of penalties The Director shall use any civil money pen- alties collected under this section to help fund the Housing Trust Fund established under sec- tion 4568 of this title. (Pub. L. 102–550, title XIII, § 1345, as added Pub. L. 110–289, div. A, title I, § 1130(d)(2), July 30, 2008, 122 Stat. 2709.) Editorial Notes REFERENCES IN TEXT Section 4547 of this title, referred to in subsec. (a)(1), was repealed by Pub. L. 110–289, div. A, title I, § 1104(b), July 30, 2008, 122 Stat. 2667. PRIOR PROVISIONS A prior section 4585, Pub. L. 102–550, title XIII, § 1345, Oct. 28, 1992, 106 Stat. 3966, related to civil money pen- alties, prior to repeal by Pub. L. 110–289, div. A, title I, § 1130(d)(1), July 30, 2008, 122 Stat. 2709. § 4586. Public disclosure of final orders and agreements (a) In general The Director shall make available to the pub- lic— (1) any written agreement or other written statement for which a violation may be re- dressed by the Director or any modification to or termination thereof, unless the Director, in the Secretary’s 1 discretion, determines that public disclosure would be contrary to the public interest or determines under subsection (c) that public disclosure would seriously threaten the financial health or security of the enterprise; (2) any order that is issued with respect to any administrative enforcement proceeding initiated by the Director under this subpart and that has become final in accordance with sections 4582 and 4583 of this title; and (3) any modification to or termination of any final order made public pursuant to this subsection. (b) Hearings All hearings with respect to any notice of charges issued by the Director shall be open to the public, unless the Director, in the Sec- retary’s 1 discretion, determines that holding an open hearing would be contrary to the public in- terest. (c) Delay of public disclosure under exceptional circumstances If the Director makes a determination in writ- ing that the public disclosure of any final order pursuant to subsection (a) would seriously threaten the financial soundness of the enter- prise, the Director may delay the public disclo- sure of such order for a reasonable time. (d) Documents filed under seal in public enforce- ment hearings The Director may file any document or part thereof under seal in any hearing under this sub- part if the Director determines in writing that disclosure thereof would be contrary to the pub- lic interest. (e) Retention of documents The Director shall keep and maintain a record, for not less than 6 years, of all docu- ments described in subsection (a) and all en- forcement agreements and other supervisory ac- tions and supporting documents issued with re- spect to or in connection with any enforcement proceeding initiated by the Director under this subpart.