42 U.S.C. § 3610 — Administrative enforcement; preliminary

Page 5958 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3609 Rights Act of 1964. Title VI of the Civil Rights Act of 1964 is classified generally to subchapter V (§ 2000d et seq.) of chapter 21 of this title. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables. Title VIII of Public Law 90–284, referred to in subsec. (a), is title VIII of Pub. L. 90–284, Apr. 11, 1968, 82 Stat. 81, known as the Fair Housing Act, which is classified principally to subchapter I (§ 3601 et seq.) of this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 3601 of this title and Tables. CODIFICATION Section was enacted as part of the Housing and Com- munity Development Act of 1987, and not as part of title VIII of Pub. L. 90–284, popularly known as the Fair Housing Act, which comprises this subchapter. AMENDMENTS 1995—Subsec. (a). Pub. L. 104–66, § 1071(e)(1), struck out ‘‘the Secretary of Housing and Urban Development and’’ before ‘‘the Secretary of Agriculture’’, ‘‘each’’ be- fore ‘‘collect, not less than annually’’, and ‘‘involved’’ before ‘‘determines such collection’’. Subsec. (b). Pub. L. 104–66, § 1071(e)(2), substituted ‘‘The’’ for ‘‘The Secretary of Housing and Urban Devel- opment and the’’ before ‘‘Secretary of Agriculture’’ and struck out ‘‘each’’ before ‘‘include in the’’. § 3609. Education and conciliation; conferences and consultations; reports Immediately after April 11, 1968, the Secretary shall commence such educational and concilia- tory activities as in his judgment will further the purposes of this subchapter. He shall call conferences of persons in the housing industry and other interested parties to acquaint them with the provisions of this subchapter and his suggested means of implementing it, and shall endeavor with their advice to work out pro- grams of voluntary compliance and of enforce- ment. He may pay per diem, travel, and trans- portation expenses for persons attending such conferences as provided in section 5703 of title 5. He shall consult with State and local officials and other interested parties to learn the extent, if any, to which housing discrimination exists in their State or locality, and whether and how State or local enforcement programs might be utilized to combat such discrimination in con- nection with or in place of, the Secretary’s en- forcement of this subchapter. The Secretary shall issue reports on such conferences and con- sultations as he deems appropriate. (Pub. L. 90–284, title VIII, § 809, Apr. 11, 1968, 82 Stat. 85.) § 3610. Administrative enforcement; preliminary matters (a) Complaints and answers (1)(A)(i) An aggrieved person may, not later than one year after an alleged discriminatory housing practice has occurred or terminated, file a complaint with the Secretary alleging such discriminatory housing practice. The Sec- retary, on the Secretary’s own initiative, may also file such a complaint. (ii) Such complaints shall be in writing and shall contain such information and be in such form as the Secretary requires. (iii) The Secretary may also investigate hous- ing practices to determine whether a complaint should be brought under this section. (B) Upon the filing of such a complaint— (i) the Secretary shall serve notice upon the aggrieved person acknowledging such filing and advising the aggrieved person of the time limits and choice of forums provided under this subchapter; (ii) the Secretary shall, not later than 10 days after such filing or the identification of an additional respondent under paragraph (2), serve on the respondent a notice identifying the alleged discriminatory housing practice and advising such respondent of the proce- dural rights and obligations of respondents under this subchapter, together with a copy of the original complaint; (iii) each respondent may file, not later than 10 days after receipt of notice from the Sec- retary, an answer to such complaint; and (iv) the Secretary shall make an investiga- tion of the alleged discriminatory housing practice and complete such investigation within 100 days after the filing of the com- plaint (or, when the Secretary takes further action under subsection (f)(2) with respect to a complaint, within 100 days after the com- mencement of such further action), unless it is impracticable to do so. (C) If the Secretary is unable to complete the investigation 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. (D) Complaints and answers shall be under oath or affirmation, and may be reasonably and fairly amended at any time. (2)(A) A person who is not named as a respond- ent in a complaint, but who is identified as a re- spondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice, under paragraph (1), to such person, from the Secretary. (B) Such notice, in addition to meeting the re- quirements of paragraph (1), shall explain the basis for the Secretary’s belief that the person to whom the notice is addressed is properly joined as a respondent. (b) Investigative report and conciliation (1) During the period beginning with the filing of such complaint and ending with the filing of a charge or a dismissal by the Secretary, the Secretary shall, to the extent feasible, engage in conciliation with respect to such complaint. (2) A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant, and shall be subject to approval by the Secretary. (3) A conciliation agreement may provide for binding arbitration of the dispute arising from the complaint. Any such arbitration that results from a conciliation agreement may award ap- propriate relief, including monetary relief. (4) Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the Secretary determines that disclosure is not required to further the purposes of this subchapter. Page 5959 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 3610 (5)(A) At the end of each investigation under this section, the Secretary shall prepare a final investigative report containing— (i) the names and dates of contacts with wit- nesses; (ii) a summary and the dates of correspond- ence and other contacts with the aggrieved person and the respondent; (iii) a summary description of other perti- nent records; (iv) a summary of witness statements; and (v) answers to interrogatories. (B) A final report under this paragraph may be amended if additional evidence is later discov- ered. (c) Failure to comply with conciliation agree- ment Whenever the Secretary has reasonable cause to believe that a respondent has breached a con- ciliation agreement, the Secretary shall refer the matter to the Attorney General with a rec- ommendation that a civil action be filed under section 3614 of this title for the enforcement of such agreement. (d) Prohibitions and requirements with respect to disclosure of information (1) Nothing said or done in the course of con- ciliation under this subchapter may be made public or used as evidence in a subsequent pro- ceeding under this subchapter without the writ- ten consent of the persons concerned. (2) Notwithstanding paragraph (1), the Sec- retary shall make available to the aggrieved person and the respondent, at any time, upon re- quest following completion of the Secretary’s investigation, information derived from an in- vestigation and any final investigative report relating to that investigation. (e) Prompt judicial action (1) If the Secretary concludes at any time fol- lowing the filing of a complaint that prompt ju- dicial action is necessary to carry out the pur- poses of this subchapter, the Secretary may au- thorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint under this section. Upon receipt of such an authorization, the Attorney General shall promptly commence and maintain such an action. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with the Fed- eral Rules of Civil Procedure. The commence- ment of a civil action under this subsection does not affect the initiation or continuation of ad- ministrative proceedings under this section and section 3612 of this title. (2) Whenever the Secretary has reason to be- lieve that a basis may exist for the commence- ment of proceedings against any respondent under sections 3614(a) and 3614(c) of this title or for proceedings by any governmental licensing or supervisory authorities, the Secretary shall transmit the information upon which such belief is based to the Attorney General, or to such au- thorities, as the case may be. (f) Referral for State or local proceedings (1) Whenever a complaint alleges a discrimina- tory housing practice— (A) within the jurisdiction of a State or local public agency; and (B) as to which such agency has been cer- tified by the Secretary under this subsection; the Secretary shall refer such complaint to that certified agency before taking any action with respect to such complaint. (2) Except with the consent of such certified agency, the Secretary, after that referral is made, shall take no further action with respect to such complaint unless— (A) the certified agency has failed to com- mence proceedings with respect to the com- plaint before the end of the 30th day after the date of such referral; (B) the certified agency, having so com- menced such proceedings, fails to carry for- ward such proceedings with reasonable promptness; or (C) the Secretary determines that the cer- tified agency no longer qualifies for certifi- cation under this subsection with respect to the relevant jurisdiction. (3)(A) The Secretary may certify an agency under this subsection only if the Secretary de- termines that— (i) the substantive rights protected by such agency in the jurisdiction with respect to which certification is to be made; (ii) the procedures followed by such agency; (iii) the remedies available to such agency; and (iv) the availability of judicial review of such agency’s action; are substantially equivalent to those created by and under this subchapter. (B) Before making such certification, the Sec- retary shall take into account the current prac- tices and past performance, if any, of such agen- cy. (4) During the period which begins on Sep- tember 13, 1988, and ends 40 months after Sep- tember 13, 1988, each agency certified (including an agency certified for interim referrals pursu- ant to 24 CFR 115.11, unless such agency is sub- sequently denied recognition under 24 CFR 115.7) for the purposes of this subchapter on the day before September 13, 1988, shall for the purposes of this subsection be considered certified under this subsection with respect to those matters for which such agency was certified on September 13, 1988. If the Secretary determines in an indi- vidual case that an agency has not been able to meet the certification requirements within this 40-month period due to exceptional cir- cumstances, such as the infrequency of legisla- tive sessions in that jurisdiction, the Secretary may extend such period by not more than 8 months. (5) Not less frequently than every 5 years, the Secretary shall determine whether each agency certified under this subsection continues to qualify for certification. The Secretary shall take appropriate action with respect to any agency not so qualifying. (g) Reasonable cause determination and effect (1) The Secretary shall, within 100 days after the filing of the complaint (or, when the Sec- retary takes further action under subsection 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.)