28 U.S.C. § 2323 — Duties of Attorney General; intervenors

Page 588 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2321 1975—Pub. L. 93–584, § 8, Jan. 2, 1975, 88 Stat. 1918, sub- stituted ‘‘Judicial Review of Commission’s orders and decisions; procedure generally; process’’ for ‘‘Procedure generally; process’’ in item 2321 and struck out item 2324 ‘‘Stay of Commission’s order’’ and item 2325 ‘‘In- junction; three-judge court required’’. § 2321. Judicial review of Board’s orders and de- cisions; procedure generally; process (a) Except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the Surface Transportation Board shall be brought in the court of appeals as provided by and in the manner prescribed in chapter 158 of this title. (b) The procedure in the district courts in ac- tions to enforce, in whole or in part, any order of the Surface Transportation Board other than for payment of money or the collection of fines, penalties, and forfeitures, shall be as provided in this chapter. (c) The orders, writs, and process of the dis- trict courts may, in the cases specified in sub- section (b) and in enforcement actions and ac- tions to collect civil penalties under subtitle IV of title 49, run, be served and be returnable any- where in the United States. (June 25, 1948, ch. 646, 62 Stat. 969; May 24, 1949, ch. 139, § 115, 63 Stat. 105; Pub. L. 93–584, § 5, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 95–473, § 2(a)(3)(B), Oct. 17, 1978, 92 Stat. 1465; Pub. L. 104–88, title III, § 305(c)(1)(B), (C), Dec. 29, 1995, 109 Stat. 945.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., § 44 (Oct. 22, 1913, ch. 32, 38 Stat. 220.) Word ‘‘actions’’ was substituted for ‘‘cases,’’ in view of rule 2 of the Federal Rules of Civil Procedure. The exception as to procedure in the infliction of criminal punishment was omitted as unnecessary, as Title 18, U.S.C., Crimes and Criminal Procedure, and the Federal Rules of Criminal Procedure govern proce- dure in criminal matters. Changes were made in phraseology. 1949 ACT This section corrects, in section 2321 of title 28, U.S.C., the reference to certain sections in title 49, U.S.C. The provisions which were formerly set out as section 49 of such title 49, are now set out as section 23 of such title. Editorial Notes AMENDMENTS 1995—Pub. L. 104–88 substituted ‘‘Board’s’’ for ‘‘Com- mission’s’’ in section catchline and ‘‘Surface Transpor- tation Board’’ for ‘‘Interstate Commerce Commission’’ in subsecs. (a) and (b). 1978—Subsec. (c). Pub. L. 95–473 substituted ‘‘enforce- ment actions and actions to collect civil penalties under subtitle IV of title 49’’ for ‘‘actions under section 20 of the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19, 1903, as amended (32 Stat. 848; 49 U.S.C. 43)’’. 1975—Subsec. (a). Pub. L. 93–584 designated existing provisions as subsecs. (b) and (c) and added subsec. (a). Subsec. (b). Pub. L. 93–584 designated existing first par. as subsec. (b) and substituted ‘‘in whole or in part, any order of the Interstate Commerce Commission other than for’’, for ‘‘suspend, enjoin, annual or set aside in whole or in part any order of the Interstate Commerce Commission other than for the’’. Subsec. (c). Pub. L. 93–584 designated existing second par. as subsec. (c), substituted reference to subsec. (b) of this section for reference to this section, and in- serted references to the dates of enactment, statute ci- tations and code references of sections 20, 23 and 43 of Title 49. 1949—Act May 24, 1949, substituted ‘‘20, 23, and 43’’ for ‘‘20, 43, and 49’’ in second par. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–88 effective Jan. 1, 1996, see section 2 of Pub. L. 104–88, set out as an Effective Date note under section 1301 of Title 49, Transpor- tation. EFFECTIVE DATE OF 1975 AMENDMENT Pub. L. 93–584, § 10, Jan. 2, 1975, 88 Stat. 1918, provided that: ‘‘This Act [amending this section, sections 1336, 1398, 2323, 2341, and 2342 of this title, and section 305 of former Title 49, Transportation, and repealing sections 2324 and 2325 of this title] shall not apply to any action commenced on or before the last day of the first month beginning after the date of enactment [Jan. 2, 1975]. However, actions to enjoin or suspend orders of the Interstate Commerce Commission which are pending when this Act becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced.’’ § 2322. United States as party All actions specified in section 2321 of this title shall be brought by or against the United States. (June 25, 1948, ch. 646, 62 Stat. 969.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 48 (Mar. 3, 1911, ch. 231, § 211, 36 Stat. 1150; Oct. 22, 1913, ch. 32, 38 Stat. 219). Word ‘‘actions’’ was substituted for ‘‘cases and pro- ceedings’’, in view of Rule 2 of the Federal Rules of Civil Procedure. A provision authorizing intervention by the United States was omitted. The United States, under the pro- visions of this section, is a necessary and indispensable original party, and hence intervention is unnecessary. (See Lambert Run Coal Co. v. Baltimore & O. R. Co., 1922, 42 S.Ct. 349, 258 U.S. 377, 66 L.Ed. 671.) § 2323. Duties of Attorney General; intervenors The Attorney General shall represent the Gov- ernment in the actions specified in section 2321 of this title and in enforcement actions and ac- tions to collect civil penalties under subtitle IV of title 49. The Surface Transportation Board and any party or parties in interest to the proceeding be- fore the Board, in which an order or requirement is made, may appear as parties of their own mo- tion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party. Communities, associations, corporations, firms, and individuals interested in the con- troversy or question before the Board, or in any action commenced under the aforesaid sections may intervene in said action at any time after commencement thereof. The Attorney General shall not dispose of or discontinue said action or proceeding over the Page 589 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2341 objection of such party or intervenor, who may prosecute, defend, or continue said action or proceeding unaffected by the action or non- action of the Attorney General therein. (June 25, 1948, ch. 646, 62 Stat. 970; May 24, 1949, ch. 139, § 116, 63 Stat. 105; Pub. L. 93–584, § 6, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 95–473, § 2(a)(3)(C), Oct. 17, 1978, 92 Stat. 1465; Pub. L. 104–88, title III, § 305(c)(1)(C), (D), Dec. 29, 1995, 109 Stat. 945.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., § 45a (Mar. 3, 1911, ch. 231, §§ 212, 213, 36 Stat. 1150, 1151; Oct. 22, 1913, ch. 32, 38 Stat. 220). The provision in the second sentence of section 45a of title 28, U.S.C., 1940 ed., authorizing the Attorney Gen- eral to employ and compensate special attorneys was omitted as covered by sections 503 and 508 [now 543 and 548] of this title. The provision in the same sentence authorizing the court to make rules for the conduct and procedure of actions under this section were omit- ted as covered by the Federal Rules of Civil Procedure and section 2071 of this title relating to authority of district courts to promulgate local rules of procedure. The last paragraph of section 45a of title 28, U.S.C., 1940 ed., was omitted as merely repetitive of the lan- guage immediately following the first proviso. Word ‘‘action’’ was substituted for ‘‘suit’’ in con- formity with Rule 2 of the Federal Rules of Civil Proce- dure. Changes were made in phraseology. 1949 ACT This section corrects, in section 2323 of title 28, U.S.C., the reference to certain sections in title 49, U.S.C. The provisions which were formerly set out as section 49 of such title 49 are now set out as section 23 of such title. Editorial Notes AMENDMENTS 1995—Pub. L. 104–88 substituted ‘‘Surface Transpor- tation Board’’ for ‘‘Interstate Commerce Commission’’ and substituted ‘‘the Board’’ for ‘‘the Commission’’ in two places. 1978—Pub. L. 95–473 substituted ‘‘enforcement actions and actions to collect civil penalties under subtitle IV of title 49’’ for ‘‘actions under section 20 of the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of Feb- ruary 19, 1903, as amended (32 Stat. 848; 49 U.S.C. 43)’’ in first par. 1975—Pub. L. 93–584 struck out reference to the dis- trict courts and the Supreme Court of the United States upon appeal from the district courts as the courts in which the Attorney General can represent the United States in first par. 1949—Act May 24, 1949, substituted ‘‘20, 23, and 43’’ for ‘‘20, 43, and 49’’ in first par. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–88 effective Jan. 1, 1996, see section 2 of Pub. L. 104–88, set out as an Effective Date note under section 1301 of Title 49, Transpor- tation. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93–584 not applicable to ac- tions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effec- tive shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93–584, set out as a note under section 2321 of this title. [§§ 2324, 2325. Repealed. Pub. L. 93–584, § 7, Jan. 2, 1975, 88 Stat. 1918] Section 2324, act June 25, 1948, ch. 646, 62 Stat. 970, re- lated to power of court to restrain or suspend operation of orders of Interstate Commerce Commission pending final hearing and determination of action. Section 2325, act June 25, 1948, ch. 646, 62 Stat. 970, re- lated to requirement of a three judge district court to hear and determine interlocutory or permanent injunc- tions restraining enforcement, operation or execution of orders of Interstate Commerce Commission. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Com- merce Commission which are pending when this repeal becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93–584, set out as an Effective Date of 1975 Amendment note under section 2321 of this title. CHAPTER 158—ORDERS OF FEDERAL AGENCIES; REVIEW Sec. 2341. Definitions. 2342. Jurisdiction of court of appeals. 2343. Venue. 2344. Review of orders; time; notice; contents of pe- tition; service. 2345. Prehearing conference. 2346. Certification of record on review. 2347. Petitions to review; proceedings. 2348. Representation in proceeding; intervention. 2349. Jurisdiction of the proceeding. 2350. Review in Supreme Court on certiorari or cer- tification. 2351. Enforcement of orders by district courts. [2352, 2353. Repealed.] Editorial Notes AMENDMENTS 1982—Pub. L. 97–164, title I, § 138, Apr. 2, 1982, 96 Stat. 42, struck out item 2353 ‘‘Decision of the Plant Variety Protection Office’’. 1966—Pub. L. 89–773, § 4, Nov. 6, 1966, 80 Stat. 1323, struck out item 2352 ‘‘Rules’’. § 2341. Definitions As used in this chapter— (1) ‘‘clerk’’ means the clerk of the court in which the petition for the review of an order, reviewable under this chapter, is filed; (2) ‘‘petitioner’’ means the party or parties by whom a petition to review an order, review- able under this chapter, is filed; and (3) ‘‘agency’’ means— (A) the Commission, when the order sought to be reviewed was entered by the Federal Communications Commission, the Federal Maritime Commission, or the Atom- ic Energy Commission, as the case may be; (B) the Secretary, when the order was en- tered by the Secretary of Agriculture or the Secretary of Transportation;