15 U.S.C. § 2618: Judicial review

Summary

People have 60 days to ask a federal appeals court to review a rule made under this law or some listed orders (including orders under sections 2603, 2604(e), 2604(f), and 2605(i)(1)). The petition can be filed in the U.S. Court of Appeals for the District of Columbia or in the appeals court for the circuit where the person lives or has their main business. If a district court would otherwise have had the case, then only the federal appeals courts can hear it. For a challenge to a designation under section 2605(b)(1)(B)(ii), a person also has 60 days and must file in the D.C. Circuit. The court clerk must send copies of any petition right away to the agency head (the Administrator) and to the Attorney General. Section 2112 of title 28 applies to filing the record and to moving cases between appeals courts. If the court allows extra written or oral material that was not given to the agency, the agency may change or replace the rule or order and must file the new material and rule with the court, which will then review that new rule. The appeals court can give relief, including temporary relief, and normally reviews under chapter 7 of title 5 and section 706 of title 5. But for certain listed rules and orders (see sections 2603(a), 2604(b)(4), 2605(a) including 2605(b)(4)(A), 2605(e), and orders under 2603, 2604(e), 2604(f), 2605(i)(1)), the court must set aside a rule or order if it is not supported by substantial evidence in the record as a whole. The court generally cannot second-guess the agency’s written “basis and purpose” except as part of the full record. The court’s decision is final, subject to Supreme Court review by certiorari under section 1254 of title 28. If appropriate, the court (or the Supreme Court on review) may order payment of court costs and reasonable attorney and expert fees. These remedies are in addition to any other legal remedies.

Title 15, §2618

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(a)In general

(1)(A)Except as otherwise provided in this subchapter, not later than 60 days after the date on which a rule is promulgated under this subchapter, subchapter II, or subchapter IV, or the date on which an order is issued under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title,, any person may file a petition for judicial review of such rule or order with the United States Court of Appeals for the District of Columbia Circuit or for the circuit in which such person resides or in which such person’s principal place of business is located. Courts of appeals of the United States shall have exclusive jurisdiction of any action to obtain judicial review (other than in an enforcement proceeding) of such a rule or order if any district court of the United States would have had jurisdiction of such action but for this subparagraph.

(B)Except as otherwise provided in this subchapter, courts of appeals of the United States shall have exclusive jurisdiction of any action to obtain judicial review (other than in an enforcement proceeding) of an order issued under this subchapter, other than an order under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title, if any district court of the United States would have had jurisdiction of such action but for this subparagraph.

(C)(i)Not later than 60 days after the publication of a designation under section 2605(b)(1)(B)(ii) of this title, any person may commence a civil action to challenge the designation.

(ii)The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over a civil action filed under this subparagraph.

(2)Copies of any petition filed under paragraph (1)(A) shall be transmitted forthwith to the Administrator and to the Attorney General by the clerk of the court with which such petition was filed. The provisions of section 2112 of title 28 shall apply to the filing of the record of proceedings on which the Administrator based the rule or order being reviewed under this section and to the transfer of proceedings between United States courts of appeals.

(b)Additional submissions and presentations; modifications

If in an action under this section to review a rule, or an order under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title, the petitioner or the Administrator applies to the court for leave to make additional oral submissions or written presentations respecting such rule or order and shows to the satisfaction of the court that such submissions and presentations would be material and that there were reasonable grounds for the submissions and failure to make such submissions and presentations in the proceeding before the Administrator, the court may order the Administrator to provide additional opportunity to make such submissions and presentations. The Administrator may modify or set aside the rule or order being reviewed or make a new rule or order by reason of the additional submissions and presentations and shall file such modified or new rule or order with the return of such submissions and presentations. The court shall thereafter review such new or modified rule or order.

(c)Standard of review

(1)(A)Upon the filing of a petition under subsection (a)(1) for judicial review of a rule or order, the court shall have jurisdiction (i) to grant appropriate relief, including interim relief, as provided in chapter 7 of title 5, and (ii) except as otherwise provided in subparagraph (B), to review such rule or order in accordance with chapter 7 of title 5.

(B)Section 706 of title 5 shall apply to review of a rule or order under this section, except that—

(i)in the case of review of—

(I)a rule under section 2603(a), 2604(b)(4), 2605(a) (including review of the associated determination under section 2605(b)(4)(A)), or 2605(e) of this title, the standard for review prescribed by paragraph (2)(E) of such section 706 shall not apply and the court shall hold unlawful and set aside such rule if the court finds that the rule is not supported by substantial evidence in the rulemaking record taken as a whole; and

(II)an order under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title, the standard for review prescribed by paragraph (2)(E) of such section 706 shall not apply and the court shall hold unlawful and set aside such order if the court finds that the order is not supported by substantial evidence in the record taken as a whole; and

(ii)the court may not review the contents and adequacy of any statement of basis and purpose required by section 553(c) of title 5 to be incorporated in the rule or order, except as part of the record, taken as a whole.

(2)The judgment of the court affirming or setting aside, in whole or in part, any rule or order reviewed in accordance with this section 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.

(d)Fees and costs

The decision of the court in an action commenced under subsection (a), or of the Supreme Court of the United States on review of such a decision, may include an award of costs of suit and reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.

(e)Other remedies

The remedies as provided in this section shall be in addition to and not in lieu of any other remedies provided by law.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2016—Subsec. (a)(1)(A). Pub. L. 114–182, § 19(m)(1)(A), substituted “Except as otherwise provided in this subchapter, not later than 60 days after the date on which a rule is promulgated under this subchapter, subchapter II, or subchapter IV, or the date on which an order is issued under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title,” for “Not later than 60 days after the date of the promulgation of a rule under section 2603(a), 2604(a)(2), 2604(b)(4), 2605(a), 2605(e), or 2607 of this title, or under subchapter II or IV”, “such rule or order” for “such rule”, and “such a rule or order” for “such a rule”. Subsec. (a)(1)(B). Pub. L. 114–182, § 19(m)(1)(B), substituted “Except as otherwise provided in this subchapter, courts” for “Courts” and “this subchapter, other than an order under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title,” for “subparagraph (A) or (B) of section 2605(b)(1) of this title”. Subsec. (a)(1)(C). Pub. L. 114–182, § 14(1), added subpar. (C). Subsec. (a)(2). Pub. L. 114–182, § 19(m)(1)(C), substituted “record” for “rulemaking record” and “based the rule or order” for “based the rule”. Subsec. (a)(3). Pub. L. 114–182, § 14(2), struck out par. (3) which defined “rulemaking record”. Subsec. (b). Pub. L. 114–182, § 19(m)(2), substituted “review a rule, or an order under section 2603, 2604(e), 2604(f), or 2605(i)(1) of this title,” for “review a rule”, “such rule or order” for “such rule”, “the rule or order” for “the rule”, “new rule or order” for “new rule” in two places, and “modified rule or order” for “modified rule”. Subsec. (c)(1)(A). Pub. L. 114–182, § 19(m)(3)(A)(i), substituted “a rule or order” for “a rule” and “such rule or order” for “such rule”. Subsec. (c)(1)(B). Pub. L. 114–182, § 19(m)(3)(A)(ii)(I), substituted “a rule or order” for “a rule” in introductory provisions. Pub. L. 114–182, § 19(m)(3)(A)(ii)(III), struck out concluding provisions which read as follows: “The term ‘evidence’ as used in clause (i) means any matter in the rulemaking record.” Subsec. (c)(1)(B)(i). Pub. L. 114–182, § 19(m)(3)(A)(ii)(II), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “in the case of review of a rule under section 2603(a), 2604(b)(4), 2605(a), or 2605(e) of this title, the standard for review prescribed by paragraph (2)(E) of such section 706 shall not apply and the court shall hold unlawful and set aside such rule if the court finds that the rule is not supported by substantial evidence in the rulemaking record (as defined in subsection (a)(3)) taken as a whole;”. Subsec. (c)(1)(B)(ii), (iii). Pub. L. 114–182, § 19(m)(3)(A)(ii)(III), added cl. (ii) and struck out former cls. (ii) and (iii) which related to review of rules under section 2605(a) of this title and statements not subject to court review, respectively. Subsec. (c)(1)(C). Pub. L. 114–182, § 19(m)(3)(A)(iii), struck out subpar. (C) which read as follows: “A determination, rule, or ruling of the Administrator described in subparagraph (B)(ii) may be reviewed only in an action under this section and only in accordance with such subparagraph.” Subsec. (c)(2). Pub. L. 114–182, § 19(m)(3)(B), substituted “any rule or order” for “any rule”. 1992—Subsec. (a)(1)(A). Pub. L. 102–550, § 1021(b)(8)(A), substituted “subchapter II or IV” for “subchapter II”. Subsec. (a)(3)(B). Pub. L. 102–550, § 1021(b)(8)(B), inserted before semicolon at end “and in the case of a rule under subchapter IV, the finding required for the issuance of such a rule”. 1986—Subsec. (a)(1)(A). Pub. L. 99–519 inserted reference to subchapter II of this chapter.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1977, see section 31 of Pub. L. 94–469, set out as a note under section 2601 of this title.

§2618 Judicial Review