§ 2112. — Record on review and enforcement of agency orders.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2112]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 133--REVIEW--MISCELLANEOUS PROVISIONS
Sec. 2112. Record on review and enforcement of agency orders
(a) The rules prescribed under the authority of section 2072 of this
title may provide for the time and manner of filing and the contents of
the record in all proceedings instituted in the courts of appeals to
enjoin, set aside, suspend, modify, or otherwise review or enforce
orders of administrative agencies, boards, commissions, and officers.
Such rules may authorize the agency, board, commission, or officer to
file in the court a certified list of the materials comprising the
record and retain and hold for the court all such materials and transmit
the same or any part thereof to the court, when and as required by it,
at any time prior to the final determination of the proceeding, and such
filing of such certified list of the materials comprising the record and
such subsequent transmittal of any such materials when and as required
shall be deemed full compliance with any provision of law requiring the
filing of the record in the court. The record in such proceedings shall
be certified and filed in or held for and transmitted to the court of
appeals by the agency, board, commission, or officer concerned within
the time and in the manner prescribed by such rules. If proceedings are
instituted in two or more courts of appeals with respect to the same
order, the following shall apply:
(1) If within ten days after issuance of the order the agency,
board, commission, or officer concerned receives, from the persons
instituting the proceedings, the petition for review with respect to
proceedings in at least two courts of appeals, the agency, board,
commission, or officer shall proceed in accordance with paragraph
(3) of this subsection. If within ten days after the issuance of the
order the agency, board, commission, or officer concerned receives,
from the persons instituting the proceedings, the petition for
review with respect to proceedings in only one court of appeals, the
agency, board, commission, or officer shall file the record in that
court notwithstanding the institution in any other court of appeals
of proceedings for review of that order. In all other cases in which
proceedings have been instituted in two or more courts of appeals
with respect to the same order, the agency, board, commission, or
officer concerned shall file the record in the court in which
proceedings with respect to the order were first instituted.
(2) For purposes of paragraph (1) of this subsection, a copy of
the petition or other pleading which institutes proceedings in a
court of appeals and which is stamped by the court with the date of
filing shall constitute the petition for review. Each agency, board,
commission, or officer, as the case may be, shall designate by rule
the office and the officer who must receive petitions for review
under paragraph (1).
(3) If an agency, board, commission, or officer receives two or
more petitions for review of an order in accordance with the first
sentence of paragraph (1) of this subsection, the agency, board,
commission, or officer shall, promptly after the expiration of the
ten-day period specified in that sentence, so notify the judicial
panel on multidistrict litigation authorized by section 1407 of this
title, in such form as that panel shall prescribe. The judicial
panel on multidistrict litigation shall, by means of random
selection, designate one court of appeals, from among the courts of
appeals in which petitions for review have been filed and received
within the ten-day period specified in the first sentence of
paragraph (1), in which the record is to be filed, and shall issue
an order consolidating the petitions for review in that court of
appeals. The judicial panel on multidistrict litigation shall, after
providing notice to the public and an opportunity for the submission
of comments, prescribe rules with respect to the consolidation of
proceedings under this paragraph. The agency, board, commission, or
officer concerned shall file the record in the court of appeals
designated pursuant to this paragraph.
(4) Any court of appeals in which proceedings with respect to an
order of an agency, board, commission, or officer have been
instituted may, to the extent authorized by law, stay the effective
date of the order. Any such stay may thereafter be modified,
revoked, or extended by a court of appeals designated pursuant to
paragraph (3) with respect to that order or by any other court of
appeals to which the proceedings are transferred.
(5) All courts in which proceedings are instituted with respect
to the same order, other than the court in which the record is filed
pursuant to this subsection, shall transfer those proceedings to the
court in which the record is so filed. For the convenience of the
parties in the interest of justice, the court in which the record is
filed may thereafter transfer all the proceedings with respect to
that order to any other court of appeals.
(b) The record to be filed in the court of appeals in such a
proceeding shall consist of the order sought to be reviewed or enforced,
the findings or report upon which it is based, and the pleadings,
evidence, and proceedings before the agency, board, commission, or
officer concerned, or such portions thereof (1) as the rules prescribed
under the authority of section 2072 of this title may require to be
included therein, or (2) as the agency, board, commission, or officer
concerned, the petitioner for review or respondent in enforcement, as
the case may be, and any intervenor in the court proceeding by written
stipulation filed with the agency, board, commission, or officer
concerned or in the court in any such proceeding may consistently with
the rules prescribed under the authority of section 2072 of this title
designate to be included therein, or (3) as the court upon motion of a
party or, after a prehearing conference, upon its own motion may by
order in any such proceeding designate to be included therein. Such a
stipulation or order may provide in an appropriate case that no record
need be filed in the court of appeals. If, however, the correctness of a
finding of fact by the agency, board, commission, or officer is in
question all of the evidence before the agency, board, commission, or
officer shall be included in the record except such as the agency,
board, commission, or officer concerned, the petitioner for review or
respondent in enforcement, as the case may be, and any intervenor in the
court proceeding by written stipulation filed with the agency, board,
commission, or officer concerned or in the court agree to omit as wholly
immaterial to the questioned finding. If there is omitted from the
record any portion of the proceedings before the agency, board,
commission, or officer which the court subsequently determines to be
proper for it to consider to enable it to review or enforce the order in
question the court may direct that such additional portion of the
proceedings be filed as a supplement to the record. The agency, board,
commission, or officer concerned may, at its option and without regard
to the foregoing provisions of this subsection, and if so requested by
the petitioner for review or respondent in enforcement shall, file in
the court the entire record of the proceedings before it without
abbreviation.
(c) The agency, board, commission, or officer concerned may transmit
to the court of appeals the original papers comprising the whole or any
part of the record or any supplemental record, otherwise true copies of
such papers certified by an authorized officer or deputy of the agency,
board, commission, or officer concerned shall be transmitted. Any
original papers thus transmitted to the court of appeals shall be
returned to the agency, board, commission, or officer concerned upon the
final determination of the review or enforcement proceeding. Pending
such final determination any such papers may be returned by the court
temporarily to the custody of the agency, board, commission, or officer
concerned if needed for the transaction of the public business.
Certified copies of any papers included in the record or any
supplemental record may also be returned to the agency, board,
commission, or officer concerned upon the final determination of review
or enforcement proceedings.
(d) The provisions of this section are not applicable to proceedings
to review decisions of the Tax Court of the United States or to
proceedings to review or enforce those orders of administrative
agencies, boards, commissions, or officers which are by law reviewable
or enforceable by the district courts.
(Added Pub. L. 85-791, Sec. 2, Aug. 28, 1958, 72 Stat. 941; amended Pub.
L. 89-773, Sec. 5(a), (b), Nov. 6, 1966, 80 Stat. 1323; Pub. L. 100-236,
Sec. 1, Jan. 8, 1988, 101 Stat. 1731.)
Amendments
1988--Subsec. (a). Pub. L. 100-236 substituted ``If proceedings are
instituted in two or more courts of appeals with respect to the same
order, the following shall apply:'' and pars. (1) to (5) for ``If
proceedings have been instituted in two or more courts of appeals with
respect to the same order the agency, board, commission, or officer
concerned shall file the record in that one of such courts in which a
proceeding with respect to such order was first instituted. The other
courts in which such proceedings are pending shall thereupon transfer
them to the court of appeals in which the record has been filed. For the
convenience of the parties in the interest of justice such court may
thereafter transfer all the proceedings with respect to such order to
any other court of appeals.''
1966--Subsec. (a). Pub. L. 89-773, Sec. 5(a), substituted ``The
rules prescribed under the authority of section 2072 of this title may
provide for the time and manner of filing'' for ``The several courts of
appeal shall have power to adopt, with the approval of the Judicial
Conference of the United States, rules, which so far as practicable
shall be uniform in all such courts prescribing the time and manner of
filing.'' See section 2072 of this title.
Subsec. (b). Pub. L. 89-773, Sec. 5(b), substituted ``the rules
prescribed under the authority of section 2072 of this title'' for ``the
said rules of the court of appeals'' and for ``the rules of such
court''.
Effective Date of 1988 Amendment
Section 3 of Pub. L. 100-236 provided that: ``The amendments made by
this Act [amending this section and section 1369 of Title 33, Navigation
and Navigable Waters] take effect 180 days after the date of the
enactment of this Act [Jan 8, 1988], except that the judicial panel on
multidistrict litigation may issue rules pursuant to subsection (a)(3)
of section 2112 of title 28, United States Code (as added by section 1),
on or after such date of enactment.''
Savings Provision
Section 5(c) of Pub. L. 89-773 provided that: ``The amendments of
section 2112 of title 28 of the United States Code made by this Act
shall not operate to invalidate or repeal rules adopted under the
authority of that section prior to the enactment of this Act [Nov. 6,
1966], which rules shall remain in effect until superseded by rules
prescribed under the authority of section 2072 of title 28 of the United
States Code as amended by this Act.''
Section Referred to in Other Sections
This section is referred to in section 2346 of this title; title 5
section 7123; title 7 sections 8, 9, 136n, 194, 228b-3, 1115, 1600,
1601; title 12 sections 1467a, 1786, 1818, 1848, 2266, 2268, 4583, 4634;
title 15 sections 21, 45, 57a, 78y, 79x, 80a-42, 80b-13, 687e, 717r,
1193, 1262, 1474, 1710, 1825, 2060, 2618, 3416; title 16 sections 773f,
825l, 1536, 1858, 2437, 3142, 3373, 5010, 5507; title 19 sections 81r,
1677f; title 20 sections 1234g, 1412, 1416, 7217a, 7711, 7884; title 21
sections 346a, 348, 355, 360g, 360kk, 371; title 22 section 1631f; title
25 sections 4161, 4237; title 26 section 3310; title 27 section 204;
title 29 sections 160, 210, 660, 667, 727, 2937; title 30 sections 816,
1462; title 31 section 1263; title 33 section 921; title 39 section
3628; title 42 sections 263a, 263b, 291h, 504, 1316, 1320a-7a, 1320a-8,
2022, 3027, 3785, 5311, 5405, 6306, 6869, 7525, 8412, 9152, 15028; title
43 sections 355, 1349; title 46 App. section 1181; title 47 section 402;
title 49 section 46110.
