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U.S. Code as of:
01/19/04
Section 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.
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