§2349 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

When a person files and serves a petition to review an agency’s order, the court of appeals takes control of the case. The appeals court where the review record is filed can cancel earlier temporary court orders and, using the record on review, can decide if the agency’s order is valid. That court alone can issue a judgment that blocks, sets aside, or pauses the agency order, in whole or in part. Filing the petition does not automatically pause the agency order. The appeals court may, at its choice, temporarily stop or limit the order while the case is decided. If someone asks for an emergency injunction, the court must give at least 5 days’ notice to the agency and the Attorney General. If not acting would cause irreparable harm, the court can, after reasonable notice, order a temporary stay for up to 60 days before the injunction hearing. The court must state specific findings, based on evidence, that explain the irreparable harm and may extend the stay while it decides the injunction.

Title 28, §2349

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(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.

Notes & Related Subsidiaries

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes 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 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”.

Editorial Notes

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.

Statutory Notes and Related Subsidiaries

Effective Date

of 1984 AmendmentAmendment 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.

§2349 Jurisdiction of the proceeding

Summary

Title 28, §2349

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

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