28 U.S.C. § 2347: Petitions to review…

Summary

The court of appeals must decide petitions that challenge agency orders by looking at the agency’s file — the papers, proof, and anything that happened at an agency hearing, if there was one. If the agency did not hold a hearing before acting, the court must first decide whether the law required a hearing. If a hearing is required, the court sends the case back to the agency for a hearing. If no hearing is required and the papers and affidavits show no real factual dispute, the court decides the issues itself. If no hearing is required but a real factual dispute exists, the court sends the case to the district court where the petitioner lives or has its main office for a hearing under the Federal Rules of Civil Procedure. A party can ask the court of appeals to allow new evidence. The court may allow it only if the party shows the new evidence matters and there was a good reason it was not given to the agency earlier. If the court allows it, the agency will take the new evidence, may change its facts or its order, and must file the new evidence, any new or changed findings, and any changed order with the court.

Title 28, §2347

Judiciary and Judicial Procedure, Source: USLM XML via OLRC

(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.

Notes & Related Subsidiaries

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large 5 U.S.C. 1037.Dec. 29, 1950, ch. 1189, § 7, 64 Stat. 1130. Aug. 28, 1958, Pub. L. 85–791, § 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.

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (b)(3), are set out in the Appendix to this title.

§2347 Petitions to Review; Proceedings