
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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
------------------------------------------------------------------------
                                                   Revised Statutes and
      Derivation               U.S. Code             Statutes at Large
------------------------------------------------------------------------
                       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.
------------------------------------------------------------------------

    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.
