28 U.S.C. § 2347 — Petitions to review; proceedings

Page 592 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2344 (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 622.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1033. Dec. 29, 1950, ch. 1189, § 3, 64 Stat. 1130. The section is reorganized for clarity and concise- ness. The word ‘‘is’’ is substituted for ‘‘shall be’’. The word ‘‘petitioner’’ is substituted for ‘‘party or any of the parties filing the petition for review’’ in view of the definition of ‘‘petitioner’’ in section 2341 of this title. § 2344. Review of orders; time; notice; contents of petition; service On the entry of a final order reviewable under this chapter, the agency shall promptly give no- tice thereof by service or publication in accord- ance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of— (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attor- ney General by registered mail, with request for a return receipt. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 622.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1034. Dec. 29, 1950, ch. 1189, § 4, 64 Stat. 1130. The section is reorganized, with minor changes in phraseology. The words ‘‘as prescribed by section 1033 of this title’’ are omitted as surplusage. The words ‘‘of the United States’’ following ‘‘Attorney General’’ are omitted as unnecessary. § 2345. Prehearing conference The court of appeals may hold a prehearing conference or direct a judge of the court to hold a prehearing conference. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 622.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1035. Dec. 29, 1950, ch. 1189, § 5, 64 Stat. 1130. § 2346. Certification of record on review Unless the proceeding has been terminated on a motion to dismiss the petition, the agency shall file in the office of the clerk the record on review as provided by section 2112 of this title. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 623.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1036. Dec. 29, 1950, ch. 1189, § 6, 64 Stat. 1130. Aug. 28, 1958, Pub. L. 85–791, § 31(a), 72 Stat. 951. The words ‘‘of the court of appeals in which the pro- ceeding is pending’’ are omitted as unnecessary in view of the definition of ‘‘clerk’’ in section 2341 of this title, and by reason of the exclusive jurisdiction of the court of appeals set forth in section 2342 of this title. § 2347. Petitions to review; proceedings (a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law. (b) When the agency has not held a hearing be- fore taking the action of which review is sought by the petition, the court of appeals shall deter- mine whether a hearing is required by law. After that determination, the court shall— (1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law; (2) pass on the issues presented, when a hear- ing is not required by law and it appears from the pleadings and affidavits filed by the par- ties that no genuine issue of material fact is presented; or (3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The proce- dure in these cases in the district court is gov- erned by the Federal Rules of Civil Procedure. (c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evi- dence and shows to the satisfaction of the court that— (1) the additional evidence is material; and (2) there were reasonable grounds for failure to adduce the evidence before the agency; the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evi- dence, the modified findings or new findings, and the modified order or the order setting aside the original order. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 623.) Page 593 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2349 HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1037. Dec. 29, 1950, ch. 1189, § 7, 64 Stat. 1130. Aug. 28, 1958, Pub. L. 85–791, § 31(b), 72 Stat. 951. The headnotes of the subsections are omitted as un- necessary and to conform to the style of title 28. In subsection (a), the words ‘‘the petition’’ following ‘‘on a motion to dismiss’’ are omitted as unnecessary. The word ‘‘are’’ is substituted for ‘‘shall be’’. The words ‘‘in fact’’ following ‘‘when the agency has’’ are omitted as unnecessary. In subsection (b)(3), the words ‘‘United States’’ pre- ceding ‘‘district court’’ are omitted as unnecessary be- cause the term ‘‘district court’’ as used in title 28 means a United States district court. See section 451 of title 28, United States Code. The words ‘‘or any peti- tioner’’ are omitted as unnecessary in view of the defi- nition of ‘‘petitioner’’ in section 2341 of this title. In the last sentence, the word ‘‘is’’ is substituted for ‘‘shall be’’. In subsection (c), the words ‘‘applies’’ and ‘‘shows’’ are substituted for ‘‘shall apply’’ and ‘‘shall show’’, re- spectively. Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(3), are set out in the Appendix to this title. § 2348. Representation in proceeding; interven- tion The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the pro- ceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any pro- ceeding to review the order. Communities, asso- ciations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to re- view the order. The Attorney General may not dispose of or discontinue the proceeding to re- view over the objection of any party or inter- venor, but any intervenor may prosecute, de- fend, or continue the proceeding unaffected by the action or inaction of the Attorney General. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 623.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1038. Dec. 29, 1950, ch. 1189, § 8, 64 Stat. 1131. In the first sentence, the words ‘‘is responsible for and has control’’ are substituted for ‘‘shall be respon- sible for and have charge and control’’. In the last sentence, the word ‘‘may’’ is substituted for ‘‘shall’’. The word ‘‘aforesaid’’ following ‘‘any party or intervenor’’ is omitted as unnecessary. The words ‘‘any intervenor’’ and ‘‘inaction’’ are substituted for ‘‘said intervenor or intervenors’’ and ‘‘nonaction’’, re- spectively. § 2349. Jurisdiction of the proceeding (a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has juris- diction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment de- termining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency. (b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the peti- tion. When the petitioner makes application for an interlocutory injunction restraining or sus- pending the enforcement, operation, or execu- tion of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days’ notice of the hearing thereon shall be given to the agency and to the Attorney Gen- eral. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reason- able notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the ap- plication for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evi- dence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and speci- fying the nature of the damage. The court of ap- peals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the appli- cation. (Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 624; amended Pub. L. 98–620, title IV, § 402(29)(F), Nov. 8, 1984, 98 Stat. 3359.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 1039. Dec. 29, 1950, ch. 1189, § 9, 64 Stat. 1131. Sept. 13, 1961, Pub. L. 87–225, § 1, 75 Stat. 497. The headnotes of the subsections are omitted as un- necessary and to conform to the style of title 28. In subsection (a), the words ‘‘has jurisdiction’’ and ‘‘has exclusive jurisdiction’’ are substituted for ‘‘shall have jurisdiction’’ and ‘‘shall have exclusive jurisdic- tion’’, respectively. The words ‘‘previously granted’’ are substituted for ‘‘theretofore granted’’ as the pre- ferred expression. In subsection (b), the words ‘‘does not’’ are sub- stituted for ‘‘shall not’’. The words ‘‘of the United States’’ following ‘‘Attorney General’’ are omitted as unnecessary. The words ‘‘In a case in which’’ are sub- stituted for ‘‘In cases where’’. The word ‘‘result’’ is sub- stituted for ‘‘ensue’’. In the fourth sentence, the words ‘‘provided for above’’ following the last word ‘‘applica-