42 U.S.C. § 3611 — Subpoenas; giving of evidence

Page 5960 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3611 (f)(2) with respect to a complaint, within 100 days after the commencement of such further action), determine based on the facts whether reasonable cause exists to believe that a dis- criminatory housing practice has occurred or is about to occur, unless it is impracticable to do so, or unless the Secretary has approved a con- ciliation agreement with respect to the com- plaint. If the Secretary is unable to make the determination within 100 days after the filing of the complaint (or, when the Secretary takes fur- ther action under subsection (f)(2) with respect to a complaint, within 100 days after the com- mencement of such further action), the Sec- retary shall notify the complainant and re- spondent in writing of the reasons for not doing so. (2)(A) If the Secretary determines that reason- able cause exists to believe that a discrimina- tory housing practice has occurred or is about to occur, the Secretary shall, except as provided in subparagraph (C), immediately issue a charge on behalf of the aggrieved person, for further pro- ceedings under section 3612 of this title. (B) Such charge— (i) shall consist of a short and plain state- ment of the facts upon which the Secretary has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur; (ii) shall be based on the final investigative report; and (iii) need not be limited to the facts or grounds alleged in the complaint filed under subsection (a). (C) If the Secretary determines that the mat- ter involves the legality of any State or local zoning or other land use law or ordinance, the Secretary shall immediately refer the matter to the Attorney General for appropriate action under section 3614 of this title, instead of issuing such charge. (3) If the Secretary determines that no reason- able cause exists to believe that a discrimina- tory housing practice has occurred or is about to occur, the Secretary shall promptly dismiss the complaint. The Secretary shall make public dis- closure of each such dismissal. (4) The Secretary may not issue a charge under this section regarding an alleged discrimi- natory housing practice after the beginning of the trial of a civil action commenced by the ag- grieved party under an Act of Congress or a State law, seeking relief with respect to that discriminatory housing practice. (h) Service of copies of charge After the Secretary issues a charge under this section, the Secretary shall cause a copy there- of, together with information as to how to make an election under section 3612(a) of this title and the effect of such an election, to be served— (1) on each respondent named in such charge, together with a notice of opportunity for a hearing at a time and place specified in the notice, unless that election is made; and (2) on each aggrieved person on whose behalf the complaint was filed. (Pub. L. 90–284, title VIII, § 810, as added Pub. L. 100–430, § 8(2), Sept. 13, 1988, 102 Stat. 1625.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (e)(1), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. PRIOR PROVISIONS A prior section 3610, Pub. L. 90–284, title VIII, § 810, Apr. 11, 1968, 82 Stat. 85, related to enforcement, prior to repeal by Pub. L. 100–430, § 8(2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on 180th day beginning after Sept. 13, 1988, see section 13(a) of Pub. L. 100–430, set out as an Effective Date of 1988 Amendment note under sec- tion 3601 of this title. § 3611. Subpoenas; giving of evidence (a) In general The Secretary may, in accordance with this subsection, issue subpoenas and order discovery in aid of investigations and hearings under this subchapter. Such subpoenas and discovery may be ordered to the same extent and subject to the same limitations as would apply if the sub- poenas or discovery were ordered or served in aid of a civil action in the United States district court for the district in which the investigation is taking place. (b) Witness fees Witnesses summoned by a subpoena under this subchapter shall be entitled to the same witness and mileage fees as witnesses in proceedings in United States district courts. Fees payable to a witness summoned by a subpoena issued at the request of a party shall be paid by that party or, where a party is unable to pay the fees, by the Secretary. (c) Criminal penalties (1) Any person who willfully fails or neglects to attend and testify or to answer any lawful in- quiry or to produce records, documents, or other evidence, if it is in such person’s power to do so, in obedience to the subpoena or other lawful order under subsection (a), shall be fined not more than $100,000 or imprisoned not more than one year, or both. (2) Any person who, with intent thereby to mislead another person in any proceeding under this subchapter— (A) makes or causes to be made any false entry or statement of fact in any report, ac- count, record, or other document produced pursuant to subpoena or other lawful order under subsection (a); (B) willfully neglects or fails to make or to cause to be made full, true, and correct entries in such reports, accounts, records, or other documents; or (C) willfully mutilates, alters, or by any other means falsifies any documentary evi- dence; shall be fined not more than $100,000 or impris- oned not more than one year, or both. (Pub. L. 90–284, title VIII, § 811, as added Pub. L. 100–430, § 8(2), Sept. 13, 1988, 102 Stat. 1628.) Page 5961 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3612 Editorial Notes PRIOR PROVISIONS A prior section 3611, Pub. L. 90–284, title VIII, § 811, Apr. 11, 1968, 82 Stat. 87, related to evidence, prior to re- peal by Pub. L. 100–430, § 8(2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on 180th day beginning after Sept. 13, 1988, see section 13(a) of Pub. L. 100–430, set out as an Effective Date of 1988 Amendment note under sec- tion 3601 of this title. § 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 ag- grieved 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) in lieu of a hearing under sub- section (b). 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 mak- ing 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) with respect to a charge filed under section 3610 of this title, the Secretary shall provide an op- portunity for a hearing on the record with re- spect to a charge issued under section 3610 of this title. The Secretary shall delegate the con- duct of a hearing under this section to an ad- ministrative law judge appointed under section 3105 of title 5. The administrative law judge shall conduct the hearing at a place in the vicin- ity 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 coun- sel, present evidence, cross-examine witnesses, and obtain the issuance of subpoenas under sec- tion 3611 of this title. Any aggrieved person may intervene as a party in the proceeding. The Fed- eral 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 expedi- tiously and inexpensively as possible, consistent with the need of all parties to obtain relevant evidence. (2) A hearing under this section shall be con- ducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a com- plete record. (3) The Secretary shall, not later than 180 days after September 13, 1988, issue rules to imple- ment 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 hous- ing practice. (g) Hearings, findings and conclusions, and order (1) The administrative law judge shall com- mence 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 re- spondent, 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 sec- tion, unless it is impracticable to do so. If the administrative law judge is unable to make find- ings of fact and conclusions of law within such period, or any succeeding 60-day period there- after, 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 admin- istrative law judge shall promptly issue an order for such relief as may be appropriate, which may include actual damages suffered by the ag- grieved person and injunctive or other equitable relief. Such order may, to vindicate the public interest, assess a civil penalty against the re- spondent— (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 com- mitted one other discriminatory housing prac- tice 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 com- mitted 2 or more discriminatory housing prac- tices during the 7-year period ending on the date of the filing of this charge; except that if the acts constituting the discrimi- natory housing practice that is the object of the charge are committed by the same natural per- son 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 im-