US (United States) Code. Part VI: Particular proceedings. Chapter 158: Orders of federal agencies; review

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Judiciary and judicial procedure

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-CITE-

28 USC CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-MISC1-

Sec.

2341. Definitions.

2342. Jurisdiction of court of appeals.

2343. Venue.

2344. Review of orders; time; notice; contents of petitions;

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

certification.

2351. Enforcement of orders by district courts.

[2352, 2353. Repealed.]

AMENDMENTS

1982 - Pub. L. 97-164, title I, Sec. 138, Apr. 2, 1982, 96 Stat.

42, struck out item 2353 "Decision of the Plant Variety Protection

Office".

1966 - Pub. L. 89-773, Sec. 4, Nov. 6, 1966, 80 Stat. 1323,

struck out item 2352 "Rules".

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 2321 of this title; title

2 section 1407; title 7 sections 2279e, 7734, 8309, 8313; title 8

section 1252; title 31 section 755; title 39 section 3628; title 42

sections 2000e-16c, 2239, 2242, 3612; title 45 section 431; title

46 App. section 1712; title 47 section 402; title 49 sections

13907, 20114; title 50 section 167h.

-End-

-CITE-

28 USC Sec. 2341 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2341. Definitions

-STATUTE-

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, reviewable 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 Atomic Energy Commission, as the

case may be;

(B) the Secretary, when the order was entered by the

Secretary of Agriculture or the Secretary of Transportation;

(C) the Administration, when the order was entered by the

Maritime Administration;

(D) the Secretary, when the order is under section 812 of the

Fair Housing Act; and

(E) the Board, when the order was entered by the Surface

Transportation Board.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622;

amended Pub. L. 93-584, Sec. 3, Jan. 2, 1975, 88 Stat. 1917; Pub.

L. 100-430, Sec. 11(b), Sept. 13, 1988, 102 Stat. 1635; Pub. L.

102-365, Sec. 5(c)(1), Sept. 3, 1992, 106 Stat. 975; Pub. L.

104-88, title III, Sec. 305(d)(1)-(4), Dec. 29, 1995, 109 Stat.

945.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1031. Dec. 29, 1950, ch. 1189, Sec. 1,

64 Stat. 1129.

Aug. 30, 1954, ch. 1073, Sec.

2(a), 68 Stat. 961.

--------------------------------------------------------------------

Subsection (a) of former section 1031 of title 5 is omitted as

unnecessary because the term "court of appeals" as used in title 28

means a United States Court of Appeals and no additional definition

is necessary.

In paragraph (3), reference to the United States Maritime

Commission is omitted because that Commission was abolished by 1950

Reorg. Plan No. 21, Sec. 306, eff. May 24, 1950, 64 Stat. 1277.

Reference to "Federal Maritime Commission" is substituted for

"Federal Maritime Board" on authority of 1961 Reorg. Plan No. 7,

eff. Aug. 12, 1961, 75 Stat. 840.

-REFTEXT-

REFERENCES IN TEXT

Section 812 of the Fair Housing Act, referred to in par. (3)(D),

is classified to section 3612 of Title 42, The Public Health and

Welfare.

-MISC2-

AMENDMENTS

1995 - Par. (3)(A). Pub. L. 104-88, Sec. 305(d)(1), struck out

"the Interstate Commerce Commission," after "Maritime Commission,".

Par. (3)(E). Pub. L. 104-88, Sec. 305(d)(2)-(4), added subpar.

(E).

1992 - Par. (3)(B). Pub. L. 102-365 inserted "or the Secretary of

Transportation" after "Secretary of Agriculture".

1988 - Par. (3)(D). Pub. L. 100-430 added subpar. (D).

1975 - Par. (3)(A). Pub. L. 93-584 inserted reference to the

Interstate Commerce Commission.

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

701 of Title 49, Transportation.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-430 effective on the 180th day beginning

after Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out

as a note under section 3601 of Title 42, The Public Health and

Welfare.

EFFECTIVE DATE OF 1975 AMENDMENT

Amendment by Pub. L. 93-584 not 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 Commerce

Commission which are pending when this amendment 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 a note under section

2321 of this title.

-TRANS-

TRANSFER OF FUNCTIONS

Atomic Energy Commission abolished and functions transferred by

sections 5814 and 5841 of Title 42, The Public Health and Welfare.

See, also, Transfer of Functions notes set out under those

sections.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805.

-End-

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28 USC Sec. 2342 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2342. Jurisdiction of court of appeals

-STATUTE-

The court of appeals (other than the United States Court of

Appeals for the Federal Circuit) has exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or to determine

the validity of -

(1) all final orders of the Federal Communication Commission

made reviewable by section 402(a) of title 47;

(2) all final orders of the Secretary of Agriculture made under

chapters 9 and 20A of title 7, except orders issued under

sections 210(e), 217a, and 499g(a) of title 7;

(3) all rules, regulations, or final orders of -

(A) the Secretary of Transportation issued pursuant to

section 2, 9, 37, or 41 of the Shipping Act, 1916 (46 U.S.C.

App. 802, 803, 808, 835, 839, and 841a) (!1) or pursuant to

part B or C of subtitle IV of title 49; and

(B) the Federal Maritime Commission issued pursuant to -

(i) section 19 of the Merchant Marine Act, 1920 (46 U.S.C.

App. 876);

(ii) section 14 or 17 of the Shipping Act of 1984 (46

U.S.C. App. 1713 or 1716); or

(iii) section 2(d) or 3(d) of the Act of November 6, 1966

(46 U.S.C. App. 817d(d) or 817e(d) (!2);

(4) all final orders of the Atomic Energy Commission made

reviewable by section 2239 of title 42;

(5) all rules, regulations, or final orders of the Surface

Transportation Board made reviewable by section 2321 of this

title;

(6) all final orders under section 812 of the Fair Housing Act;

and

(7) all final agency actions described in section 20114(c) of

title 49.

Jurisdiction is invoked by filing a petition as provided by section

2344 of this title.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622;

amended Pub. L. 93-584, Sec. 4, Jan. 2, 1975, 88 Stat. 1917; Pub.

L. 95-454, title II, Sec. 206, Oct. 13, 1978, 92 Stat. 1144; Pub.

L. 96-454, Sec. 8(b)(2), Oct. 15, 1980, 94 Stat. 2021; Pub. L.

97-164, title I, Sec. 137, Apr. 2, 1982, 96 Stat. 41; Pub. L.

98-554, title II, Sec. 227(a)(4), Oct. 30, 1984, 98 Stat. 2852;

Pub. L. 99-336, Sec. 5(a), June 19, 1986, 100 Stat. 638; Pub. L.

100-430, Sec. 11(a), Sept. 13, 1988, 102 Stat. 1635; Pub. L.

102-365, Sec. 5(c)(2), Sept. 3, 1992, 106 Stat. 975; Pub. L.

103-272, Sec. 5(h), July 5, 1994, 108 Stat. 1375; Pub. L. 104-88,

title III, Sec. 305(d)(5)-(8), Dec. 29, 1995, 109 Stat. 945; Pub.

L. 104-287, Sec. 6(f)(2), Oct. 11, 1996, 110 Stat. 3399.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1032. Dec. 29, 1950, ch. 1189, Sec. 2,

64 Stat. 1129.

Aug. 30, 1954, ch. 1073, Sec.

2(b), 68 Stat. 961.

--------------------------------------------------------------------

The words "have exclusive jurisdiction" are substituted for

"shall have exclusive jurisdiction".

In paragraph (1), the word "by" is substituted for "in accordance

with".

In paragraph (3), the word "now" is omitted as unnecessary. The

word "under" is substituted for "pursuant to the provisions of".

Reference to "Federal Maritime Commission" is substituted for

"Federal Maritime Board" on authority of 1961 Reorg. Plan No. 7,

eff. Aug. 12, 1961, 75 Stat. 840. Reference to the United States

Maritime Commission is omitted because that Commission was

abolished by 1950 Reorg. Plan No. 21, Sec. 306, eff. May 24, 1951,

64 Stat. 1277, and any existing rights are preserved by technical

sections 7 and 8.

-REFTEXT-

REFERENCES IN TEXT

Section 812 of the Fair Housing Act, referred to in par. (6), is

classified to section 3612 of Title 42, The Public Health and

Welfare.

-MISC2-

AMENDMENTS

1996 - Par. (3)(A). Pub. L. 104-287 amended Pub. L. 104-88, Sec.

305(d)(6). See 1995 Amendment note below.

1995 - Par. (3)(A). Pub. L. 104-88, Sec. 305(d)(6), as amended by

Pub. L. 104-287, inserted "or pursuant to part B or C of subtitle

IV of title 49" before the semicolon.

Pub. L. 104-88, Sec. 305(d)(5), substituted "or 41" for "41, or

43".

Par. (3)(B). Pub. L. 104-88, Sec. 305(d)(7), redesignated cls.

(ii), (iv), and (v) as (i), (ii), and (iii), respectively, and

struck out former cls. (i) and (iii) which read as follows:

"(i) section 23, 25, or 43 of the Shipping Act, 1916 (46 U.S.C.

App. 822, 824, or 841a);

"(iii) section 2, 3, 4, or 5 of the Intercoastal Shipping Act,

1933 (46 U.S.C. App. 844, 845, 845a, or 845b);".

Par. (5). Pub. L. 104-88, Sec. 305(d)(8), added par. (5) and

struck out former par. (5) which read as follows: "all rules,

regulations, or final orders of the Interstate Commerce Commission

made reviewable by section 2321 of this title and all final orders

of such Commission made reviewable under section 11901(j)(2) of

title 49, United States Code;".

1994 - Par. (7). Pub. L. 103-272 substituted "section 20114(c) of

title 49" for "section 202(f) of the Federal Railroad Safety Act of

1970".

1992 - Par. (7). Pub. L. 102-365, which directed the addition of

par. (7) at end, was executed by adding par. (7) after par. (6) and

before concluding provisions, to reflect the probable intent of

Congress.

1988 - Par. (6). Pub. L. 100-430 added par. (6).

1986 - Par. (3). Pub. L. 99-336 amended par. (3) generally. Prior

to amendment, par. (3) read as follows: "such final orders of the

Federal Maritime Commission or the Maritime Administration entered

under chapters 23 and 23A of title 46 as are subject to judicial

review under section 830 of title 46;".

1984 - Par. (5). Pub. L. 98-554 substituted "11901(j)(2)" for

"11901(i)(2)".

1982 - Pub. L. 97-164 inserted "(other than the United States

Court of Appeals for the Federal Circuit)" after "court of appeals"

in provisions preceding par. (1), and struck out par. (6) which had

given the court of appeals jurisdiction in cases involving all

final orders of the Merit Systems Protection Board except as

provided for in section 7703(b) of title 5. See section 1295(a)(9)

of this title.

1980 - Par. (5). Pub. L. 96-454 inserted "and all final orders of

such Commission made reviewable under section 11901(i)(2) of title

49, United States Code" after "section 2321 of this title".

1978 - Par. (6). Pub. L. 95-454 added par. (6).

1975 - Par. (5). Pub. L. 93-584 added par. (5).

EFFECTIVE DATE OF 1996 AMENDMENT

Section 6(f) of Pub. L. 104-287 provided that the amendment made

by that section is effective Dec. 29, 1995.

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

701 of Title 49, Transportation.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-430 effective on 180th day beginning

after Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out

as a note under section 3601 of Title 42, The Public Health and

Welfare.

EFFECTIVE DATE OF 1986 AMENDMENT

Section 5(b) of Pub. L. 99-336 provided that: "The amendment made

by this section [amending this section] shall apply with respect to

any rule, regulation, or final order described in such amendment

which is issued on or after the date of the enactment of this Act

[June 19, 1986]."

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment by Pub. L. 95-454 effective 90 days after Oct. 13,

1978, see section 907 of Pub. L. 95-454, set out as a note under

section 1101 of Title 5, Government Organization and Employees.

EFFECTIVE DATE OF 1975 AMENDMENT

Amendment by Pub. L. 93-584 not 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 Commerce

Commission which are pending when this amendment 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 a note under section

2321 of this title.

-TRANS-

TRANSFER OF FUNCTIONS

Atomic Energy Commission abolished and functions transferred by

sections 5814 and 5841 of Title 42, The Public Health and Welfare.

See, also, Transfer of Functions notes set out under those

sections.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 46 App. section 1710a.

-FOOTNOTE-

(!1) So in original. The reference to "841a" probably should not

appear.

(!2) So in original. Probably should be followed by a closing

parenthesis.

-End-

-CITE-

28 USC Sec. 2343 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2343. Venue

-STATUTE-

The venue of a proceeding under this chapter is in the judicial

circuit in which the petitioner resides or has its principal

office, or in the United States Court of Appeals for the District

of Columbia Circuit.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1033. Dec. 29, 1950, ch. 1189, Sec. 3,

64 Stat. 1130.

--------------------------------------------------------------------

The section is reorganized for clarity and conciseness. 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2344 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2344. Review of orders; time; notice; contents of petition;

service

-STATUTE-

On the entry of a final order reviewable under this chapter, the

agency shall promptly give notice thereof by service or publication

in accordance 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 Attorney

General by registered mail, with request for a return receipt.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1034. Dec. 29, 1950, ch. 1189, Sec. 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2342 of this title; title

2 section 1407; title 7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2345 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2345. Prehearing conference

-STATUTE-

The court of appeals may hold a prehearing conference or direct a

judge of the court to hold a prehearing conference.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1035. Dec. 29, 1950, ch. 1189, Sec. 5,

64 Stat. 1130.

--------------------------------------------------------------------

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2346 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2346. Certification of record on review

-STATUTE-

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.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1036. Dec. 29, 1950, ch. 1189, Sec. 6,

64 Stat. 1130.

Aug. 28, 1958, Pub. L. 85-791,

Sec. 31(a), 72 Stat. 951.

--------------------------------------------------------------------

The words "of the court of appeals in which the proceeding 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2347 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2347. Petitions to review; proceedings

-STATUTE-

(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 before taking the

action of which review is sought by the petition, the court of

appeals shall determine 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 hearing is not

required by law and it appears from the pleadings and affidavits

filed by the parties 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 procedure in these cases in the district court is

governed 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 evidence 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

evidence, the modified findings or new findings, and the modified

order or the order setting aside the original order.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1037. Dec. 29, 1950, ch. 1189, Sec. 7,

64 Stat. 1130.

Aug. 28, 1958, Pub. L. 85-791,

Sec. 31(b), 72 Stat. 951.

--------------------------------------------------------------------

The headnotes of the subsections are omitted as unnecessary 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" preceding

"district court" are omitted as unnecessary because 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 petitioner" are omitted as unnecessary in view of the

definition 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", respectively.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec.

(b)(3), are set out in the Appendix to this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805;

title 8 section 1252.

-End-

-CITE-

28 USC Sec. 2348 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2348. Representation in proceeding; intervention

-STATUTE-

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 proceeding

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 proceeding to review the order.

Communities, associations, corporations, firms, and individuals,

whose interests are affected by the order of the agency, may

intervene in any proceeding to review the order. The Attorney

General may not dispose of or discontinue the proceeding to review

over the objection of any party or intervenor, but any intervenor

may prosecute, defend, or continue the proceeding unaffected by the

action or inaction of the Attorney General.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1038. Dec. 29, 1950, ch. 1189, Sec. 8,

64 Stat. 1131.

--------------------------------------------------------------------

In the first sentence, the words "is responsible for and has

control" are substituted for "shall be responsible 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",

respectively.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 section 1407; title 7

sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2349 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2349. Jurisdiction of the proceeding

-STATUTE-

(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

jurisdiction 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 determining 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 petition. When the petitioner makes

application for an interlocutory injunction restraining or

suspending the enforcement, operation, or execution 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 General. In a case in which

irreparable damage would otherwise result to the petitioner, the

court of appeals may, on hearing, after reasonable 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 application for the interlocutory

injunction, in which case the order of the court of appeals shall

contain a specific finding, based on evidence submitted to the

court of appeals, and identified by reference thereto, that

irreparable damage would result to the petitioner and specifying

the nature of the damage. The court of appeals, 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 application.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624;

amended Pub. L. 98-620, title IV, Sec. 402(29)(F), Nov. 8, 1984, 98

Stat. 3359.)

-MISC1-

HISTORICAL AND REVISION NOTES

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Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1039. Dec. 29, 1950, ch. 1189, Sec. 9,

64 Stat. 1131.

Sept. 13, 1961, Pub. L. 87-225,

Sec. 1, 75 Stat. 497.

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The headnotes of the subsections are omitted as unnecessary 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 jurisdiction",

respectively. The words "previously granted" are substituted for

"theretofore granted" as the preferred expression.

In subsection (b), the words "does not" are substituted for

"shall not". The words "of the United States" following "Attorney

General" are omitted as unnecessary. The words "In a case in which"

are substituted for "In cases where". The word "result" is

substituted for "ensue". In the fourth sentence, the words

"provided for above" following the last word "application" are

omitted as unnecessary. In the last sentence, the word "applies" is

substituted for "shall apply".

AMENDMENTS

1984 - Subsec. (b). Pub. L. 98-620 struck out provisions that the

hearing on an application for an interlocutory injunction be given

preference and expedited and heard at the earliest practicable date

after the expiration of the notice of hearing on the application,

and that on the final hearing of any proceeding to review any order

under this chapter, the same requirements as to precedence and

expedition was to apply.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-620 not applicable to cases pending on

Nov. 8, 1984, see section 403 of Pub. L. 98-620 set out as an

Effective Date note under section 1657 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2350 of this title; title

7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2350 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2350. Review in Supreme Court on certiorari or certification

-STATUTE-

(a) An order granting or denying an interlocutory injunction

under section 2349(b) of this title and a final judgment of the

court of appeals in a proceeding to review under this chapter are

subject to review by the Supreme Court on a writ of certiorari as

provided by section 1254(1) of this title. Application for the writ

shall be made within 45 days after entry of the order and within 90

days after entry of the judgment, as the case may be. The United

States, the agency, or an aggrieved party may file a petition for a

writ of certiorari.

(b) The provisions of section 1254(2) of this title, regarding

certification, and of section 2101(f) of this title, regarding

stays, also apply to proceedings under this chapter.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624;

amended Pub. L. 100-352, Sec. 5(e), June 27, 1988, 102 Stat. 663.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1040. Dec. 29, 1950, ch. 1189, Sec.

10, 64 Stat. 1132.

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The words "of the United States" following "Supreme Court" are

omitted as unnecessary because the term "Supreme Court" as used in

title 28 means the Supreme Court of the United States.

The words "section 2101(f) of this title" are substituted for

"section 2101(e) of Title 28" on authority of the Act of May 24,

1949, ch. 139, Sec. 106(b), 63 Stat. 104, which redesignated

subsection (e) of section 2101 as subsection (f).

AMENDMENTS

1988 - Subsec. (b). Pub. L. 100-352 substituted "1254(2)" for

"1254(3)".

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-352 effective ninety days after June 27,

1988, except that such amendment not to apply to cases pending in

Supreme Court on such effective date or affect right to review or

manner of reviewing judgment or decree of court which was entered

before such effective date, see section 7 of Pub. L. 100-352, set

out as a note under section 1254 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 7 sections 2149, 3804, 3805.

-End-

-CITE-

28 USC Sec. 2351 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

Sec. 2351. Enforcement of orders by district courts

-STATUTE-

The several district courts have jurisdiction specifically to

enforce, and to enjoin and restrain any person from violating any

order issued under section 193 of title 7.

-SOURCE-

(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

--------------------------------------------------------------------

5 U.S.C. 1042. Dec. 29, 1950, ch. 1189, Sec.

12, 64 Stat. 1132.

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The words "United States" preceding "district court" are omitted

as unnecessary because 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 "have jurisdiction" are

substituted for "are vested with jurisdiction". The words

"heretofore or hereafter" following "order" are omitted as

unnecessary and any existing rights and liabilities are preserved

by technical sections 7 and 8.

-End-

-CITE-

28 USC Sec. 2352 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

[Sec. 2352. Repealed. Pub. L. 89-773, Sec. 4, Nov. 6, 1966, 80

Stat. 1323]

-MISC1-

Section, Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624,

directed the several courts of appeals to adopt and promulgate

rules, subject to the approval of the Judicial Conference of the

United States, governing the practice and procedure, including

prehearing conference procedure, in proceedings to review orders

under this chapter. See section 2072 of this title.

SAVINGS PROVISION

Section 4 of Pub. L. 89-773 provided in part that the repeal of

this section shall not operate to invalidate or repeal rules

adopted under the authority of this section prior to the enactment

of Pub. L. 89-773, which rules shall remain in effect until

superseded by rules prescribed under authority of section 2072 of

this title as amended by Pub. L. 89-773.

-End-

-CITE-

28 USC Sec. 2353 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW

-HEAD-

[Sec. 2353. Repealed. Pub. L. 97-164, title I, Sec. 138, Apr. 2,

1982, 96 Stat. 42]

-MISC1-

Section, added Pub. L. 91-577, title III, Sec. 143(c), Dec. 24,

1970, 84 Stat. 1559, gave the court of appeals nonexclusive

jurisdiction to hear appeals under section 71 of the Plant Variety

Protection Act (7 U.S.C. 2461). See section 1295(a)(8) of this

title.

EFFECTIVE DATE OF REPEAL

Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,

set out as an Effective Date of 1982 Amendment note under section

171 of this title.

-End-