§ 2347. — Petitions to review; proceedings.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2347]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 158--ORDERS OF FEDERAL AGENCIES; REVIEW
Sec. 2347. Petitions to review; proceedings
(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.
(Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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5 U.S.C. 1037. Dec. 29, 1950, ch.
1189, Sec. 7, 64
Stat. 1130.
......................... Aug. 28, 1958, Pub. L.
85-791, Sec. 31(b),
72 Stat. 951.
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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.
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b)(3),
are set out in the Appendix to this title.
Section Referred to in Other Sections
This section is referred to in title 7 sections 2149, 3804, 3805;
title 8 section 1252.
