28 U.S.C. § 2346 — Certification of record on review

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.)