42 U.S.C. § 6104 — Enforcement

Page 6646 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6104 Editorial Notes REFERENCES IN TEXT The Age Discrimination in Employment Act of 1967 (29 U.S.C. 621–634), as amended, referred to in subsec. (c)(2), is Pub. L. 90–202, Dec. 15, 1967, 81 Stat. 602, which is classified generally to chapter 14 (§ 621 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 621 of Title 29 and Tables. AMENDMENTS 1998—Subsec. (c)(1). Pub. L. 105–277 substituted ‘‘Nothing’’ for ‘‘Except with respect to any program or activity receiving Federal financial assistance for pub- lic service employment under the Job Training Part- nership Act, nothing’’. 1978—Subsec. (a)(4). Pub. L. 95–478, § 401(b)(1), provided that the regulations shall not become effective until approved by the Secretary. Subsec. (a)(5). Pub. L. 95–478, § 401(b)(2), substituted ‘‘July 1, 1979’’ for ‘‘January 1, 1979’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (a)(1) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–478 effective at the close of Sept. 30, 1978, see section 504 of Pub. L. 95–478, set out as a note under section 3001 of this title. § 6104. Enforcement (a) Methods of achieving compliance with regu- lations The head of any Federal department or agency who prescribes regulations under section 6103 of this title may seek to achieve compliance with any such regulation— (1) by terminating, or refusing to grant or to continue, assistance under the program or ac- tivity involved to any recipient with respect to whom there has been an express finding on the record, after reasonable notice and oppor- tunity for hearing, of a failure to comply with any such regulation; or (2) by any other means authorized by law. (b) Limitations on termination of, or on refusal to grant or to continue, assistance; disburse- ment of withheld funds to achiever agencies Any termination of, or refusal to grant or to continue, assistance under subsection (a)(1) shall be limited to the particular political enti- ty or other recipient with respect to which a finding has been made under subsection (a)(1). Any such termination or refusal shall be limited in its effect to the particular program or activ- ity, or part of such program or activity, with re- spect to which such finding has been made. No such termination or refusal shall be based in whole or in part on any finding with respect to any program or activity which does not receive Federal financial assistance. Whenever the head of any Federal department or agency who pre- scribes regulations under section 6103 of this title withholds funds pursuant to subsection (a), he may, in accordance with regulations he shall prescribe, disburse the funds so withheld di- rectly to any public or nonprofit private organi- zation or agency, or State or political subdivi- sion thereof, which demonstrates the ability to achieve the goals of the Federal statute author- izing the program or activity while complying with regulations issued under section 6103 of this title. (c) Advice as to failure to comply with regula- tion; determination that compliance cannot be secured by voluntary means No action may be taken under subsection (a) until the head of the Federal department or agency involved has advised the appropriate per- son of the failure to comply with the regulation involved and has determined that compliance cannot be secured by voluntary means. (d) Report to Congressional committees In the case of any action taken under sub- section (a), the head of the Federal department or agency involved shall transmit a written re- port of the circumstances and grounds of such action to the committees of the House of Rep- resentatives and the Senate having legislative jurisdiction over the program or activity in- volved. No such action shall take effect until thirty days after the transmission of any such report. (e) Injunctions; notice of violations; costs; condi- tions for actions (1) When any interested person brings an ac- tion in any United States district court for the district in which the defendant is found or trans- acts business to enjoin a violation of this Act by any program or activity receiving Federal finan- cial assistance, such interested person shall give notice by registered mail not less than 30 days prior to the commencement of that action to the Secretary of Health and Human Services, the Attorney General of the United States, and the person against whom the action is directed. Such interested person may elect, by a demand for such relief in his complaint, to recover rea- sonable attorney’s fees, in which case the court shall award the costs of suit, including a reason- able attorney’s fee, to the prevailing plaintiff. (2) The notice referred to in paragraph (1) shall state the nature of the alleged violation, the re- lief to be requested, the court in which the ac- tion will be brought, and whether or not attor- ney’s fees are being demanded in the event that the plaintiff prevails. No action described in paragraph (1) shall be brought (A) if at the time the action is brought the same alleged violation by the same defendant is the subject of a pend- ing action in any court of the United States; or (B) if administrative remedies have not been ex- hausted. (f) Exhaustion of administrative remedies With respect to actions brought for relief based on an alleged violation of the provisions of this chapter, administrative remedies shall be deemed exhausted upon the expiration of 180 days from the filing of an administrative com- plaint during which time the Federal depart- ment or agency makes no finding with regard to the complaint, or upon the day that the Federal department or agency issues a finding in favor of the recipient of financial assistance, which- ever occurs first. Page 6647 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6106 (Pub. L. 94–135, title III, § 305, Nov. 28, 1975, 89 Stat. 730; Pub. L. 95–478, title IV, § 401(c), (d), Oct. 18, 1978, 92 Stat. 1555, 1556; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (e)(1), probably means Pub. L. 94–135, Nov. 28, 1975, 89 Stat. 713, known as the Older Americans Amendments of 1975. For complete classification of this Act to the Code, see Short Title of 1975 Amendment note set out under section 3001 of this title and Tables. AMENDMENTS 1978—Subsec. (b). Pub. L. 95–478, § 401(d), authorized disbursement of withheld funds directly to organization or agency demonstrating ability to achieve the goals of the Federal statute authorizing the program or activ- ity while complying with the regulations. Subsec. (e). Pub. L. 95–478, § 401(c), substituted provi- sions relating to injunctions, notice of violations, and costs for provision making this section the exclusive remedy for the enforcement of the provisions of this chapter. Subsec. (f). Pub. L. 95–478, § 401(c), added subsec. (f). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (e)(1) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–478 effective at the close of Sept. 30, 1978, see section 504 of Pub. L. 95–478, set out as a note under section 3001 of this title. § 6105. Judicial review (a) Provisions of other laws Any action by any Federal department or agency under section 6104 of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by any such department or agency on other grounds. (b) Provisions of chapter 7 of title 5; reviewable agency discretion In the case of any action by any Federal de- partment or agency under section 6104 of this title which is not otherwise subject to judicial review, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with the provisions of chapter 7 of title 5. For purposes of this sub- section, any such action shall not be considered committed to unreviewable agency discretion within the meaning of section 701(a)(2) of such title. (Pub. L. 94–135, title III, § 306, Nov. 28, 1975, 89 Stat. 730.) § 6106. Study of discrimination based on age (a) Study by Commission on Civil Rights The Commission on Civil Rights shall (1) un- dertake a study of unreasonable discrimination based on age in programs and activities receiv- ing Federal financial assistance; and (2) identify with particularity any such federally assisted program or activity in which there is found evi- dence of persons who are otherwise qualified being, on the basis of age, excluded from partici- pation in, denied the benefits of, or subjected to discrimination under such program or activity. (b) Public hearings As part of the study required by this section, the Commission shall conduct public hearings to elicit the views of interested parties, including Federal departments and agencies, on issues re- lating to age discrimination in programs and ac- tivities receiving Federal financial assistance, and particularly with respect to the reasonable- ness of distinguishing, on the basis of age, among potential participants in, or beneficiaries of, specific federally assisted programs. (c) Publication of results of analyses, research and studies by independent experts; services of voluntary or uncompensated personnel The Commission is authorized to obtain, through grant or contract, analyses, research and studies by independent experts of issues re- lating to age discrimination and to publish the results thereof. For purposes of the study re- quired by this section, the Commission may ac- cept and utilize the services of voluntary or un- compensated personnel, without regard to the provisions of section 105(b) of the Civil Rights Act of 1957 (42 U.S.C. 1975d(b)). (d) Report to President and Congress; copies to affected Federal departments and agencies; information and technical assistance Not later than two years after November 28, 1975, the Commission shall transmit a report of its findings and its recommendations for statu- tory changes (if any) and administrative action, including suggested general regulations, to the Congress and to the President and shall provide a copy of its report to the head of each Federal department and agency with respect to which the Commission makes findings or recommenda- tions. The Commission is authorized to provide, upon request, information and technical assist- ance regarding its findings and recommenda- tions to Congress, to the President, and to the heads of Federal departments and agencies for a ninety-day period following the transmittal of its report. (e) Comments and recommendations of Federal departments and agencies; submission to President and Congressional committees Not later than forty-five working days after receiving a copy of the report required by sub- section (d), each Federal department or agency with respect to which the Commission makes findings or recommendations shall submit its comments and recommendations regarding such report to the President and to the Committee on Labor and Human Resources of the Senate and the Committee on Education and Labor of the House of Representatives. (f) Cooperation of Federal departments and agencies with Commission The head of each Federal department or agen- cy shall cooperate in all respects with the Com-