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