28 U.S.C. § 2349: Jurisdiction of the proceeding

Summary

When someone files and serves a petition to review an agency order, the federal court of appeals takes control of the case. The appeals court that gets the record can cancel earlier temporary stays or injunctions from other courts. That same court is the only one that can, using the record, decide if the agency’s order is valid and can block, set aside, or pause the order in whole or in part. Filing the petition does not automatically stop the agency’s order. The court can choose to pause the order while it decides the case. If a person asks for an interim injunction to stop enforcement, they must give at least 5 days’ notice to the agency and to the Attorney General. If the petitioner would suffer harm that cannot be fixed, the court may, after reasonable notice, order a temporary stay for not more than 60 days while the injunction request is heard. That temporary stay must include a written finding, based on evidence, saying the harm would be irreparable and describing it. At the injunction hearing, the court can extend the stay, on the same kind of finding, until it rules.

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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