U.S. Code
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Title 28
» Part PART VI— PARTICULAR PROCEEDINGS › Chapter CHAPTER 158— ORDERS OF FEDERAL AGENCIES; REVIEW
28 U.S.C. § 2349
Jurisdiction of the proceeding
(a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.(b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days’ notice of the hearing thereon shall be given to the agency and to the Attorney General. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the application for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evidence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and specifying the nature of the damage. The court of appeals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the application.(Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 624; amended Pub. L. 98–620, title IV, § 402(29)(F), Nov. 8, 1984, 98 Stat. 3359.)The headnotes of the subsections are omitted as unnecessary and to conform to the style of title 28.
In subsection (a), the words “has jurisdiction” and “has exclusive jurisdiction” are substituted for “shall have jurisdiction” and “shall have exclusive jurisdiction”, respectively. The words “previously granted” are substituted for “theretofore granted” as the preferred expression.
In subsection (b), the words “does not” are substituted for “shall not”. The words “of the United States” following “Attorney General” are omitted as unnecessary. The words “In a case in which” are substituted for “In cases where”. The word “result” is substituted for “ensue”. In the fourth sentence, the words “provided for above” following the last word “application” are omitted as unnecessary. In the last sentence, the word “applies” is substituted for “shall apply”.
Editorial NotesAmendments1984—Subsec. (b). Pub. L. 98–620 struck out provisions that the hearing on an application for an interlocutory injunction be given preference and expedited and heard at the earliest practicable date after the expiration of the notice of hearing on the application, and that on the final hearing of any proceeding to review any order under this chapter, the same requirements as to precedence and expedition was to apply.
Statutory Notes and Related SubsidiariesEffective Date of 1984 AmendmentAmendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620 set out as an Effective Date note under section 1657 of this title.
Notes of Decisions
Nken v. Holder, 556 U.S. 418 (2009).
· cites it 2× “§ 1252 (a)(1) (making a final order of removal subject to 28 U. S. C. § 2349 (b), which provides that an “interlocutory injunction” can “restrain” the “execution of” a final order).”
In Re Gte Serv. Corp., 762 F.2d 1024 (D.C. Cir. 1985).
· cites it 3× “See 28 U.S.C. § 2349 (a) (1982) (“The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review.”
Bocova v. Gonzales, 412 F.3d 257 (1st Cir. 2005).
“We conclude, therefore, that the statutory provision relied on by the government cannot override the clear grant of authority contained in 28 U.S.C. § 2349 (b). The government has one last arrow in its quiver.”
Gulf Power Co. v. United States, 187 F.3d 1324 (11th Cir. 1999).
· cites it 3× “28 U.S.C. § 2349 (a). As mentioned earlier, the plaintiffs are seven electric utility companies.”
Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003).
“This distinction between “enjoin” and “restrain” mirrors an identical distinction expressly made in the Hobbs Act, 28 U.S.C. § 2349 (a) & (b) — a statute that INA § 242(a)(1) explicitly incorporates.”
Sierra Vidal v. Gonzales, 491 F.3d 250 (5th Cir. 2007).
· cites it 2× “See 28 U.S.C. § 2349 (b), incorporated by reference in 8 U.”
Alex Nicolay Rife Yulia Rife Yola Rife v. John Ashcroft, 374 F.3d 606 (8th Cir. 2004).
“See 28 U.S.C. § 2349 (b) (“the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the [agency] order pending the final hearing and determination of *616 the petition”), a statute made applicable to removal cases by 8 U.”
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