42 U.S.C. § 291h

Judicial review

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(a) Refusal to approve application; procedure; jurisdiction of court of appeals

If the Surgeon General refuses to approve any application for a project submitted under section 291e of this title or section 291j of this title, the State agency through which such application was submitted, or if any State is dissatisfied with his action under section 291g of this title such State may appeal to the United States court of appeals for the circuit in which such State is located, by filing a petition with such court within sixty days after such action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Surgeon General, or any officer designated by him for that purpose. The Surgeon General shall thereupon file in the court the record of the proceedings on which he based his action, as provided in section 2112 of title 28. Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Surgeon General or to set it aside, in whole or in part, temporarily or permanently, but until the filing of the record, the Surgeon General may modify or set aside his order.

(b) Conclusiveness of Surgeon General’s findings; remand; new or modified findings

The findings of the Surgeon General as to the facts, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Surgeon General to take further evidence, and the Surgeon General may thereupon make new or modified findings of fact and may modify his previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

The judgment of the court affirming or setting aside, in whole or in part, any action of the Surgeon General shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. The commencement of proceedings under this section shall not, unless so specifically ordered by the court, operate as a stay of the Surgeon General’s action.

(July 1, 1944, ch. 373, title VI, § 608, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 456.)Editorial NotesPrior Provisions

A prior section 291h, act July 1, 1944, ch. 373, title VI, § 625, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended Oct. 25, 1949, ch. 722, §§ 3(b–d), 8, 63 Stat. 899, 901; July 12, 1954, ch. 471, § 4(b), 68 Stat. 464, related to projects for construction, the application required and its contents and approval by the Surgeon General, and provided for a hearing prior to disapproval of the application, prior to the general amendment of this subchapter by Pub. L. 88–443. See section 291e of this title.

Provisions similar to those comprising this section were contained in former section 291j(b), act July 1, 1944, ch. 373, title VI, § 632, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended June 28, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107; July 12, 1954, ch. 471, § 4(g), 68 Stat. 466; Aug. 28, 1958, Pub. L. 85–791, § 27, 72 Stat. 950, prior to the general amendment of this subchapter by Pub. L. 88–443.

Statutory Notes and Related SubsidiariesChange of Name

“Secretary of Health and Human Services” substituted for “Secretary of Health, Education, and Welfare” pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education.

Executive DocumentsTransfer of Functions

Office of Surgeon General abolished by section 3 of Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Office of Surgeon General reestablished within the Office of the Assistant Secretary for Health, see Notice of Department of Health and Human Services, Office of the Assistant Secretary for Health, Mar. 30, 1987, 52 F.R. 11754.

Notes of Decisions

Cited in 6 cases, 1963–1981 · leading case: Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959 (4th Cir. 1963).

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Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959 (4th Cir. 1963). · cites it 3× “111 , and project applications, 42 U.S.C.A. § 291h(a); 42 C.F.R. § 53.127 (d) (4), are subject to this general nondiscrimination requirement.”

Nat'l Ass'n of Neighborhood Health Centers, Inc. v. David Mathews, as U. S. Sec'y of Health, Educ. & Welfare, 551 F.2d 321 (D.C. Cir. 1976). “115 42 U S C § 291h(a) ' ' ' 116 . Court 0rder of 4 May 1976 j A 82 117 .”

Newsom v. Vanderbilt Univ., 653 F.2d 1100 (6th Cir. 1981). “See 42 U.S.C. § 291h(b). The Administrative Procedure Act authorizes a court reviewing agency action to set aside the agency action if it finds the action is unsupported by substantial evidence in certain cases or i§ unwarranted by the facts to the extent the facts are subject…”

Poirrier v. St. James Par. Police Jury, 372 F. Supp. 1021 (E.D. La. 1974). “The act expressly provides, 42 U.S.C. § 291h, for judicial review of the Secretary’s refusal to approve an application for funds.”

Carman v. Richardson, 357 F. Supp. 1148 (D. Vt. 1973). “Without deciding whether the provisions of 42 U.S.C. § 291h (1971) provide judicial review of applications for loan guarantees under 42 U.”

Smith v. Hampton Training Sch. for Nurses, 243 F. Supp. 403 (E.D. Va. 1965). “It is conceded that the Dixie Hospital has been' the recipient of federal funds under the Hill-Burton Act, 42 U.S.C. § 291h(b), which, at all times pertinent with respect to when plaintiffs’ causes of action arose, contained the subsequently declared unconstitutional portion of…”

— 42 U.S.C. § 291h(a) — 2 cases

Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959 (4th Cir. 1963). “111 , and project applications, 42 U.S.C.A. § 291h(a); 42 C.F.R. § 53.127 (d) (4), are subject to this general nondiscrimination requirement.”

— 42 U.S.C. § 291h(b) — 2 cases

— 42 U.S.C. § 291h(e) — 1 case

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