§5405 — Title 42 The Public Health and Welfare | U.S. Code

Summary

People who will be hurt by an order can ask a U.S. court of appeals to review it. They must file the petition within 60 days after the order is issued. They file in the circuit where they live or where their main business is. The court clerk sends a copy to the Secretary, who must send the official record to the court. If the person asks to add new evidence and the court agrees it is important and there was a good reason it wasn't shown earlier, the court can order that evidence to be taken before the Secretary. The Secretary can change or add findings because of the new evidence and must file those changes. The court reviews the order under the usual federal rules and can give relief. The court’s decision is final unless the U.S. Supreme Court agrees to review it. The case continues even if the Secretary changes, and these rights do not replace other legal remedies. The Secretary must give any interested person a certified copy of the record if they ask and pay the cost. That copy can be used in criminal cases, import-exclusion cases, or other proceedings under this law, even if court review has not been started or finished.

Title 42, §5405

The Public Health and Welfare — Source: USLM XML via OLRC

(a)(1)In a case of actual controversy as to the validity of any order under section 5403 of this title, any person who may be adversely affected by such order when it is effective may at any time prior to the sixtieth day after such order is issued file a petition with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for judicial review of such order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary or other officer designated by him for that purpose. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based his order, as provided in section 2112 of title 28.

(2)If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Secretary, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Secretary, and to be adduced upon the hearing, in such manner and upon such terms and conditions as to the court may seem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original order, with the return of such additional evidence.

(3)Upon the filing of the petition referred to in paragraph (1) of this subsection, the court shall have jurisdiction to review the order in accordance with the provisions of sections 701 through 706 of title 5, and to grant appropriate relief.

(4)The judgment of the court affirming or setting aside, in whole or in part, any such order of the Secretary shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

(5)Any action instituted under this subsection shall survive, notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.

(6)The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.

(b)A certified copy of the transcript of the record and proceedings under this section shall be furnished by the Secretary to any interested party at his request and payment of the costs thereof, and shall be admissible in any criminal, exclusion of imports, or other proceeding arising under or in respect of this chapter, irrespective of whether proceedings with respect to the order have previously been initiated or become final under subsection (a).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective upon the expiration of 180 days following Aug. 22, 1974, see section 627 of Pub. L. 93–383, set out as a note under section 5401 of this title.

§5405 Judicial review of orders establishing standards; petition; additional evidence before Secretary; certified copy of transcript

Summary

Title 42, §5405

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Citations & Metadata