28 USC ( 1506. Repealed. Pub. L. 97-164, title I, 133(h), Apr. 2,
1982, 96 Stat. 41)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 86-770, 2(a), Sept. 13, 1960, 74 Stat.
912, provided that if a case within the exclusive jurisdiction of the
district courts was filed in the Court of Claims, the Court of Claims,
if it were in the interest of justice, had to transfer such case to any
district court in which it could have been brought at the time such case
was filed, where the case would proceed as if it had been filed in the
district court on the date it was filed in the Court of Claims.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC 1507. Jurisdiction for certain declaratory judgments
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States Court of Federal Claims shall have jurisdiction to
hear any suit for and issue a declaratory judgment under section 7428 of
the Internal Revenue Code of 1986.
(Added Pub. L. 94-455, title XIII, 1306(b)(9)(A), Oct. 4, 1976, 90
Stat. 1720; amended Pub. L. 97-164, title I, 133(i), Apr. 2, 1982, 96
Stat. 41; Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L.
102-572, title IX, 902(a)(1), Oct. 29, 1992, 106 Stat. 4516.)
Section 7428 of the Internal Revenue Code of 1986, referred to in
text, is classified to section 7428 of Title 26, Internal Revenue Code.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1986 -- Pub. L. 99-514 substituted ''Internal Revenue Code of 1986''
for ''Internal Revenue Code of 1954''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Section applicable with respect to pleadings filed with the United
States Tax Court, the district court of the United States for the
District of Columbia, or the United States Court of Claims more than 6
months after Oct. 4, 1976, but only with respect to determinations (or
requests for determinations) made after Jan. 1, 1976, see section
1306(c) of Pub. L. 94-455, set out as a note under section 7428 of
Title 26, Internal Revenue Code.
28 USC 1508. Jurisdiction for certain partnership proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Court of Federal Claims shall have jurisdiction to hear and to
render judgment upon any petition under section 6226 or 6228(a) of the
Internal Revenue Code of 1986.
(Added Pub. L. 97-248, title IV, 402(c)(18)(A), Sept. 3, 1982, 96
Stat. 669; amended Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095;
Pub. L. 102-572, title IX, 902(a)(2), Oct. 29, 1992, 106 Stat. 4516.)
Sections 6226 and 6228(a) of the Internal Revenue Code of 1986,
referred to in text, are classified to sections 6226 and 6228(a) of
Title 26, Internal Revenue Code.
1992 -- Pub. L. 102-572 substituted ''Court of Federal Claims'' for
''Claims Court''.
1986 -- Pub. L. 99-514 substituted ''Internal Revenue Code of 1986''
for ''Internal Revenue Code of 1954''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Section applicable to partnership taxable years beginning after Sept.
3, 1982, with provision for the applicability of this section to any
partnership taxable year ending after Sept. 3, 1982, if the
partnership, each partner, and each indirect partner requests such
application and the Secretary of the Treasury or his delegate consents
to such application, see section 407(a)(1), (3) of Pub. L. 97-248, set
out as a note under section 6221 of Title 26, Internal Revenue Code.
28 USC 1509. No jurisdiction in cases involving refunds of tax shelter
promoter and understatement penalties
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States Court of Federal Claims shall not have jurisdiction
to hear any action or proceeding for any refund or credit of any penalty
imposed under section 6700 of the Internal Revenue Code of 1986
(relating to penalty for promoting abusive tax shelters, etc.) or
section 6701 of such Code (relating to penalties for aiding and abetting
understatement of tax liability).
(Added Pub. L. 98-369, div. A, title VII, 714(g)(2), July 18, 1984,
98 Stat. 962; amended Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat.
2095; Pub. L. 102-572, title IX, 902(a)(1), Oct. 29, 1992, 106 Stat.
4516.)
Sections 6700 and 6701 of the Internal Revenue Code of 1986, referred
to in text, are classified to sections 6700 and 6701, respectively, of
Title 26, Internal Revenue Code.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1986 -- Pub. L. 99-514 substituted ''Internal Revenue Code of 1986''
for ''Internal Revenue Code of 1954''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Section 714(g)(4) of Pub. L. 98-369 provided that: ''The amendments
made by this subsection (enacting this section and amending section 7422
of Title 26, Internal Revenue Code) shall apply to any claim for refund
or credit filed after the date of the enactment of this Act (July 18,
1984).''
28 USC (CHAPTER 93 -- REPEALED)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
28 USC ( 1541 to 1546. Repealed. Pub. L. 97-164, title I, 134, Apr.
2, 1982, 96 Stat. 41)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section 1541, acts June 25, 1948, ch. 646, 62 Stat. 942; June 2,
1970, Pub. L. 91-271, title I, 102, 84 Stat. 274; July 26, 1979,
Pub. L. 96-39, title X, 1001(b)(4)(A), 93 Stat. 305; Oct. 10, 1980,
Pub. L. 96-417, title IV, 401(a), title V, 501(23), (24), 94 Stat.
1740, 1742, gave the Court of Customs and Patent Appeals exclusive
jurisdiction of appeals from all final decisions of the Court of
International Trade and from interlocutory orders of the Court of
International Trade granting, continuing, modifying, refusing, or
dissolving injunctions, or refusing to dissolve or modify injunctions,
and with discretion to entertain appeals from certain orders of the
Court of International Trade. See section 1295(a)(5) of this title.
Section 1542, acts June 25, 1948, ch. 646, 62 Stat. 942; May 24,
1949, ch. 139, 89(b), 63 Stat. 102, gave the Court of Customs and
Patent Appeals jurisdiction of appeals from decisions of the Board of
Appeals and the Board of Interference Examiners of the Patent Office as
to patent applications and interferences, at the instance of an
applicant for a patent or any party to a patent interference, with such
appeal by an applicant to waive his right to proceed under section 63 of
Title 35, and the Commissioner of Patents as to trademark applications
and proceedings as provided in section 1071 of Title 15. See section
1295(a)(4) of this title.
Section 1543, acts June 25, 1948, ch. 646, 62 Stat. 943; Oct. 10,
1980, Pub. L. 96-417, title IV, 401(b)(1), 94 Stat. 1740, gave the
Court of Customs and Patent Appeals jurisdiction to review final
determinations of the United States International Trade Commission made
under section 337 of the Tariff Act of 1930 relating to unfair trade
practices in import trade. See section 1295(a)(6) of this title.
Section 1544, added Pub. L. 89-651, 8(c)(1), Oct. 14, 1966, 80
Stat. 901, gave the Court of Customs and Patent Appeals jurisdiction to
review, by appeal on questions of law only, findings of the Secretary of
Commerce under headnote 6 to schedule 8, part 4, of the Tariff Schedules
of the United States (relating to importation of instruments or
apparatus). See section 1295(a)(7) of this title.
Section 1545, added Pub. L. 91-577, title III, 143(a), Dec. 24,
1970, 84 Stat. 1558, gave the Court of Customs and Patent Appeals
nonexclusive jurisdiction of appeals under section 71 of the Plant
Variety Protection Act, classified to section 2461 of Title 7,
Agriculture. See section 1295(a)(8) of this title.
Section 1546, added Pub. L. 96-417, title IV, 402(a), Oct. 10,
1980, 94 Stat. 1740, gave the Court of Customs and Patent Appeals all
of the powers in law and in equity of, or conferred by statute upon, a
court of appeals of the United States.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC CHAPTER 95 -- COURT OF INTERNATIONAL TRADE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1581. Civil actions against the United States and agencies and
officers thereof.
1582. Civil actions commenced by the United States.
1583. Counterclaims, cross-claims, and third-party actions.
1584. Civil actions under the United States-Canada Free-Trade
Agreement.
1585. Powers in law and equity.
1988 -- Pub. L. 100-449, title IV, 402(d)(2), Sept. 28, 1988, 102
Stat. 1884, added item 1584.
1982 -- Pub. L. 97-164, title I, 135, Apr. 2, 1982, 96 Stat. 41,
struck out item 1584 ''Cure of defects''.
1980 -- Pub. L. 96-417, title II, 201, Oct. 10, 1980, 94 Stat.
1728, substituted ''COURT OF INTERNATIONAL TRADE'' for ''CUSTOMS COURT''
in heading for chapter 95, ''Civil actions against the United States and
agencies and officers thereof'' for ''Powers generally'' in item 1581,
''Civil actions commenced by the United States'' for ''Jurisdiction of
the Customs Court'' in item 1582, and added items 1583 to 1585.
See Appendix to this title.
Procedure in Court of International Trade, see section 2631 et seq.
of this title.
28 USC 1581. Civil actions against the United States and agencies and
officers thereof
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to contest the denial of a
protest, in whole or in part, under section 515 of the Tariff Act of
1930.
(b) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced under section 516 of the
Tariff Act of 1930.
(c) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced under section 516A of the
Tariff Act of 1930.
(d) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to review --
(1) any final determination of the Secretary of Labor under section
223 of the Trade Act of 1974 with respect to the eligibility of workers
for adjustment assistance under such Act;
(2) any final determination of the Secretary of Commerce under
section 251 of the Trade Act of 1974 with respect to the eligibility of
a firm for adjustment assistance under such Act; and
(3) any final determination of the Secretary of Commerce under
section 271 of the Trade Act of 1974 with respect to the eligibility of
a community for adjustment assistance under such Act.
(e) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to review any final
determination of the Secretary of the Treasury under section 305(b)(1)
of the Trade Agreements Act of 1979.
(f) The Court of International Trade shall have exclusive
jurisdiction of any civil action involving an application for an order
directing the administering authority or the International Trade
Commission to make confidential information available under section
777(c)(2) of the Tariff Act of 1930.
(g) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to review --
(1) any decision of the Secretary of the Treasury to deny a customs
broker's license under section 641(b)(2) or (3) of the Tariff Act of
1930, or to deny a customs broker's permit under section 641(c)(1) of
such Act, or to revoke a license or permit under section 641(b)(5) or
(c)(2) of such Act; and
(2) any decision of the Secretary of the Treasury to revoke or
suspend a customs broker's license or permit, or impose a monetary
penalty in lieu thereof, under section 641(d)(2)(B) of the Tariff Act of
1930.
(h) The Court of International Trade shall have exclusive
jurisdiction of any civil action commenced to review, prior to the
importation of the goods involved, a ruling issued by the Secretary of
the Treasury, or a refusal to issue or change such a ruling, relating to
classification, valuation, rate of duty, marking, restricted
merchandise, entry requirements, drawbacks, vessel repairs, or similar
matters, but only if the party commencing the civil action demonstrates
to the court that he would be irreparably harmed unless given an
opportunity to obtain judicial review prior to such importation.
(i) In addition to the jurisdiction conferred upon the Court of
International Trade by subsections (a)-(h) of this section and subject
to the exception set forth in subsection (j) of this section, the Court
of International Trade shall have exclusive jurisdiction of any civil
action commenced against the United States, its agencies, or its
officers, that arises out of any law of the United States providing for
--
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of
merchandise for reasons other than the raising of revenue;
(3) embargoes or other quantitative restrictions on the importation
of merchandise for reasons other than the protection of the public
health or safety; or
(4) administration and enforcement with respect to the matters
referred to in paragraphs (1)-(3) of this subsection and subsections
(a)-(h) of this section.
This subsection shall not confer jurisdiction over an antidumping or
countervailing duty determination which is reviewable either by the
Court of International Trade under section 516A(a) of the Tariff Act of
1930 or by a binational panel under article 1904 of the United
States-Canada Free-Trade Agreement and section 516A(g) of the Tariff Act
of 1930.
(j) The Court of International Trade shall not have jurisdiction of
any civil action arising under section 305 of the Tariff Act of 1930.
(Added Pub. L. 96-417, title II, 201, Oct. 10, 1980, 94 Stat. 1728;
amended Pub. L. 98-573, title II, 212(b)(1), Oct. 30, 1984, 98 Stat.
2983; Pub. L. 99-514, title XVIII, 1891(1), Oct. 22, 1986, 100 Stat.
2926; Pub. L. 100-449, title IV, 402(a), Sept. 28, 1988, 102 Stat.
1883.)
The United States Customs Court, the predecessor of the Court of
International Trade, was omitted in the general revision of this chapter
by Pub. L. 96-417.
The predecessor of the United States Customs Court was the Board of
General Appraisers which was created by the Customs Administrative Act
of June 10, 1890. The Board was under the administrative supervision of
the Secretary of the Treasury.
From 1890 to 1926, the Board of General Appraisers had jurisdiction
over all protests from decisions of the collectors of customs and
appeals for reappraisement under sections 13 and 14 of the Customs
Administrative Act of June 10, 1890, ch. 407, 26 Stat. 136.
The Customs Court was established by act May 28, 1926, ch. 411, 1,
2, 44 Stat. 669, sections 405a and 405b of Title 19, Customs Duties,
and said act transferred to it all the jurisdiction and powers of the
former Board of General Appraisers. The Tariff Act of June 1930, ch.
497, title IV, 518, 46 Stat. 737, section 1518 of Title 19, continued
the Customs Court as constituted on June 17, 1930 with, however, several
important changes.
Section 515 of the Tariff Act of 1930, referred to in subsec. (a),
is classified to section 1515 of Title 19, Customs Duties.
Section 516 of the Tariff Act of 1930, referred to in subsec. (b),
is classified to section 1516 of Title 19.
Section 516A of the Tariff Act of 1930, referred to in subsecs. (c)
and (i), is classified to section 1516a of Title 19.
The Trade Act of 1974, referred to in subsec. (d)(1) to (3), is Pub.
L. 93-618, Jan. 3, 1975, 88 Stat. 1978, as amended, which is
classified principally to chapter 12 ( 2101 et seq.) of Title 19.
Sections 223, 251, and 271 of the Trade Act of 1974 are classified to
sections 2273, 2341, and 2371, respectively, of Title 19. For complete
classification of this Act to the Code, see References in Text note set
out under section 2101 of Title 19 and Tables.
Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in
subsec. (e), is classified to section 2515(b)(1) of Title 19.
Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec.
(f), is classified to section 1677f(c)(2) of Title 19.
Section 641 of the Tariff Act of 1930, referred to in subsec.
(g)(1), (2), is classified to section 1641 of Title 19.
Section 305 of the Tariff Act of 1930, referred to in subsec. (j),
is classified to section 1305 of Title 19.
A prior section 1581, act June 25, 1948, ch. 646, 62 Stat. 943,
related to powers of the Customs Court generally and was omitted in the
general revision of this chapter by Pub. L. 96-417. See section 1585 of
this title.
1988 -- Subsec. (i). Pub. L. 100-449 inserted at end ''This
subsection shall not confer jurisdiction over an antidumping or
countervailing duty determination which is reviewable either by the
Court of International Trade under section 516A(a) of the Tariff Act of
1930 or by a binational panel under article 1904 of the United
States-Canada Free-Trade Agreement and section 516A(g) of the Tariff Act
of 1930.''
1986 -- Subsec. (g)(1). Pub. L. 99-514 substituted ''(3)'' for ''(3)
or (c)''.
1984 -- Subsec. (g)(1). Pub. L. 98-573 amended par. (1) generally,
substituting ''a customs broker's license under section 641(b)(2) or (3)
or (c) of the Tariff Act of 1930, or to deny a customs broker's permit
under section 641(c)(1) of such Act, or to revoke a license or permit
under section 641(b)(5) or (c)(2) of such Act'' for ''or revoke a
customhouse broker's license under section 641(a) of the Tariff Act of
1930''.
Subsec. (g)(2). Pub. L. 98-573 amended par. (2) generally,
substituting ''any decision of the Secretary of the Treasury to revoke
or suspend a customs broker's license or permit, or impose a monetary
penalty in lieu thereof, under section 641(d)(2)(B) of the Tariff Act of
1930'' for ''any order of the Secretary of the Treasury to revoke or
suspend a customhouse broker's license under section 641(b) of the
Tariff Act of 1930''.
Amendment by Pub. L. 100-449 effective on date United States-Canada
Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to
have effect on date Agreement ceases to be in force, see section 501(a),
(c) of Pub. L. 100-449, set out in a note under section 2112 of Title
19, Customs Duties.
Amendment by Pub. L. 98-573 effective on close of 180th day after
Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note
under section 1304 of Title 19, Customs Duties.
Chapter effective Nov. 1, 1980, and applicable with respect to civil
actions pending on or commenced on or after such date, see section
701(a) of Pub. L. 96-417, set out as an Effective Date of 1980
Amendment note under section 251 of this title.
Subsecs. (d) and (g) to (i) of this section applicable with respect
to civil actions commenced on or after Nov. 1, 1980, see section
701(b)(1)(A) of Pub. L. 96-417.
Additional duties for failure to mark article or container of foreign
origin, see section 1304 of Title 19, Customs Duties.
Appeals --
By American manufacturers, producers, or wholesalers on value of
classification, see section 1516 of Title 19.
Decisions of Court of International Trade, see section 1295 of this
title.
Procedure on appeal, see section 2631 et seq. of this title.
Protests from determination of appropriate customs officer under
Anti-Dumping Law, see section 1516a of Title 19, Customs Duties.
Finality of decision of Court of International Trade, see section
2645 of this title.
Liability of consignee for additional or increased duties, see
section 1485 of Title 19, Customs Duties.
28 USC 1582. Civil actions commenced by the United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Court of International Trade shall have exclusive jurisdiction of
any civil action which arises out of an import transaction and which is
commenced by the United States --
(1) to recover a civil penalty under section 592, 641(b)(6),
641(d)(2)(A), 704(i)(2), or 734(i)(2) of the Tariff Act of 1930;
(2) to recover upon a bond relating to the importation of merchandise
required by the laws of the United States or by the Secretary of the
Treasury; or
(3) to recover customs duties.
(Added Pub. L. 96-417, title II, 201, Oct. 10, 1980, 94 Stat. 1729;
amended Pub. L. 98-573, title II, 212(b)(2), Oct. 30, 1984, 98 Stat.
2983; Pub. L. 99-514, title XVIII, 1891(2), Oct. 22, 1986, 100 Stat.
2926.)
Sections 592, 641(b)(6), 641(d)(2)(A), 704(i)(2), and 734(i)(2) of
the Tariff Act of 1930, referred to in par. (1), are classified to
sections 1592, 1641(b)(6), 1641(d)(2)(A), 1671c(i)(2), and 1673c(i)(2),
respectively, of Title 19, Customs Duties.
A prior section 1582, acts June 25, 1948, ch. 646, 62 Stat. 943;
June 2, 1970; Pub. L. 91-271, title I, 110, 84 Stat. 278; July 26,
1979, Pub. L. 96-39, title X, 1001(b)(4)(B), 93 Stat. 305, related to
the jurisdiction of the Customs Court and was omitted in the general
revision of this chapter by Pub. L. 96-417.
1986 -- Par. (1). Pub. L. 99-514 substituted ''641(b)(6)'' for
''641(a)(1)(C)''.
1984 -- Par. (1). Pub. L. 98-573 inserted references to section
641(a)(1)(C) and 641(d)(2)(A) of the Tariff Act of 1930.
Amendment by Pub. L. 98-573 effective on close of 180th day after
Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note
under section 1304 of Title 19, Customs Duties.
Section applicable with respect to civil actions commenced on or
after the 90th day after Nov. 1, 1980, see section 701(c)(1)(A) of Pub.
L. 96-417, set out as an Effective Date of 1980 Amendment note under
section 251 of this title.
2639, 2640, 2643 of this title.
28 USC 1583. Counterclaims, cross-claims, and third-party actions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any civil action in the Court of International Trade, the court
shall have exclusive jurisdiction to render judgment upon any
counterclaim, cross-claim, or third-party action of any party, if (1)
such claim or action involves the imported merchandise that is the
subject matter of such civil action, or (2) such claim or action is to
recover upon a bond or customs duties relating to such merchandise.
(Added Pub. L. 96-417, title II, 201, Oct. 10, 1980, 94 Stat.
1729.)
A prior section 1583, act June 25, 1948, ch. 646, 62 Stat. 943,
related to certain cases of exclusive jurisdiction of the Customs Court
and was repealed by Pub. L. 91-271, title I, 111, June 2, 1970, 84
Stat. 278.
Section applicable with respect to civil actions commenced on or
after Nov. 1, 1980, see section 701(b)(1)(A) of Pub. L. 96-417, set
out as an Effective Date of 1980 Amendment note under section 251 of
this title.
28 USC 1584. Civil actions under the United States-Canada Free-Trade
Agreement
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States Court of International Trade shall have exclusive
jurisdiction of any civil action which arises under section 777(d) of
the Tariff Act of 1930 and is commenced by the United States to enforce
administrative sanctions levied for violation of a protective order or
an undertaking.
(Added Pub. L. 100-449, title IV, 402(d)(1), Sept. 28, 1988, 102
Stat. 1884.)
Section 777(d) of the Tariff Act of 1930, referred to in text, is
classified to section 1677f(d) of Title 19, Customs Duties.
A prior section 1584, added Pub. L. 96-417, title II, 201, Oct.
10, 1980, 94 Stat. 1729, which provided that if a civil action within
the exclusive jurisdiction of the Court of International Trade was
commenced in a district court of the United States, the district court,
in the interest of justice, was to transfer such civil action to the
Court of International Trade, where such action would proceed as if it
had been commenced in the Court of International Trade in the first
instance, and that if a civil action within the exclusive jurisdiction
of a district court, a court of appeals, or the Court of Customs and
Patent Appeals was commenced in the Court of International Trade, the
Court of International Trade, in the interest of justice, would transfer
such civil action to the appropriate district court or court of appeals
or to the Court of Customs and Patent Appeals where such action was to
proceed as if it had been commenced in such court in the first instance,
was repealed by Pub. L. 97-164, title I, 135, Apr. 2, 1982, 96 Stat.
41, effective Oct. 1, 1982.
Section effective on date United States-Canada Free-Trade Agreement
enters into force (Jan. 1, 1989), and to cease to have effect on date
Agreement ceases to be in force, see section 501(a), (c) of Pub. L.
100-449, set out in a note under section 2112 of Title 19, Customs
Duties.
28 USC 1585. Powers in law and equity
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Court of International Trade shall possess all the powers in law
and equity of, or as conferred by statute upon, a district court of the
United States.
(Added Pub. L. 96-417, title II, 201, Oct. 10, 1980, 94 Stat.
1730.)
Power of court to issue writs, see section 1651 of this title.
Protests from determinations of appropriate customs officer under
Anti-Dumping Law, jurisdiction of Court of International Trade, see
section 1516a of Title 19, Customs Duties.
Punishment for contempt, see section 401 of Title 18, Crimes and
Criminal Procedure.
28 USC CHAPTER 97 -- JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1602. Findings and declaration of purpose.
1603. Definitions.
1604. Immunity of a foreign state from jurisdiction.
1605. General exceptions to the jurisdictional immunity of a foreign
state.
1606. Extent of liability.
1607. Counterclaims.
1608. Service; time to answer default. /1/
1609. Immunity from attachment and execution of property of a
foreign state.
1610. Exceptions to the immunity from attachment or execution.
1611. Certain types of property immune from execution.
/1/ So in original. Does not conform to section catchline.
28 USC 1602. Findings and declaration of purpose
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Congress finds that the determination by United States courts of
the claims of foreign states to immunity from the jurisdiction of such
courts would serve the interests of justice and would protect the rights
of both foreign states and litigants in United States courts. Under
international law, states are not immune from the jurisdiction of
foreign courts insofar as their commercial activities are concerned, and
their commercial property may be levied upon for the satisfaction of
judgments rendered against them in connection with their commercial
activities. Claims of foreign states to immunity should henceforth be
decided by courts of the United States and of the States in conformity
with the principles set forth in this chapter.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2892.)
Section 8 of Pub. L. 94-583 provided that: ''This Act (enacting
this chapter and section 1330 of this title, amending sections 1332,
1391, and 1441 of this title, and enacting provisions set out as notes
under this section and section 1 of this title) shall take effect ninety
days after the date of its enactment (Oct. 21, 1976).''
For short title of Pub. L. 94-583 as the ''Foreign Sovereign
Immunities Act of 1976'', see section 1 of Pub. L. 94-583, set out as a
Short Title of 1976 Amendments note under section 1 of this title.
Section 7 of Pub. L. 94-583 provided that: ''If any provision of
this Act (enacting this chapter and section 1330 of this title, amending
sections 1332, 1391, and 1441 of this title, and enacting provisions set
out as notes under this section and section 1 of this title) or the
application thereof to any foreign state is held invalid, the invalidity
does not affect other provisions or applications of the Act which can be
given effect without the invalid provision or application, and to this
end the provisions of this Act are severable.''
28 USC 1603. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For purposes of this chapter --
(a) A ''foreign state'', except as used in section 1608 of this
title, includes a political subdivision of a foreign state or an agency
or instrumentality of a foreign state as defined in subsection (b).
(b) An ''agency or instrumentality of a foreign state'' means any
entity --
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision
thereof, or a majority of whose shares or other ownership interest is
owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as
defined in section 1332 (c) and (d) of this title, nor created under the
laws of any third country.
(c) The ''United States'' includes all territory and waters,
continental or insular, subject to the jurisdiction of the United
States.
(d) A ''commercial activity'' means either a regular course of
commercial conduct or a particular commercial transaction or act. The
commercial character of an activity shall be determined by reference to
the nature of the course of conduct or particular transaction or act,
rather than by reference to its purpose.
(e) A ''commercial activity carried on in the United States by a
foreign state'' means commercial activity carried on by such state and
having substantial contact with the United States.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2892.)
28 USC 1604. Immunity of a foreign state from jurisdiction
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Subject to existing international agreements to which the United
States is a party at the time of enactment of this Act a foreign state
shall be immune from the jurisdiction of the courts of the United States
and of the States except as provided in sections 1605 to 1607 of this
chapter.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2892.)
The time of enactment of this Act, referred to in text, probably
means the time of enactment of Pub. L. 94-583, which was approved Oct.
21, 1976.
28 USC 1605. General exceptions to the jurisdictional immunity of a
foreign state
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case --
(1) in which the foreign state has waived its immunity either
explicitly or by implication, notwithstanding any withdrawal of the
waiver which the foreign state may purport to effect except in
accordance with the terms of the waiver;
(2) in which the action is based upon a commercial activity carried
on in the United States by the foreign state; or upon an act performed
in the United States in connection with a commercial activity of the
foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in the United
States;
(3) in which rights in property taken in violation of international
law are in issue and that property or any property exchanged for such
property is present in the United States in connection with a commercial
activity carried on in the United States by the foreign state; or that
property or any property exchanged for such property is owned or
operated by an agency or instrumentality of the foreign state and that
agency or instrumentality is engaged in a commercial activity in the
United States;
(4) in which rights in property in the United States acquired by
succession or gift or rights in immovable property situated in the
United States are in issue;
(5) not otherwise encompassed in paragraph (2) above, in which money
damages are sought against a foreign state for personal injury or death,
or damage to or loss of property, occurring in the United States and
caused by the tortious act or omission of that foreign state or of any
official or employee of that foreign state while acting within the scope
of his office or employment; except this paragraph shall not apply to
--
(A) any claim based upon the exercise or performance or the failure
to exercise or perform a discretionary function regardless of whether
the discretion be abused, or
(B) any claim arising out of malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract
rights; or
(6) in which the action is brought, either to enforce an agreement
made by the foreign state with or for the benefit of a private party to
submit to arbitration all or any differences which have arisen or which
may arise between the parties with respect to a defined legal
relationship, whether contractual or not, concerning a subject matter
capable of settlement by arbitration under the laws of the United
States, or to confirm an award made pursuant to such an agreement to
arbitrate, if (A) the arbitration takes place or is intended to take
place in the United States, (B) the agreement or award is or may be
governed by a treaty or other international agreement in force for the
United States calling for the recognition and enforcement of arbitral
awards, (C) the underlying claim, save for the agreement to arbitrate,
could have been brought in a United States court under this section or
section 1607, or (D) paragraph (1) of this subsection is otherwise
applicable.
(b) A foreign state shall not be immune from the jurisdiction of the
courts of the United States in any case in which a suit in admiralty is
brought to enforce a maritime lien against a vessel or cargo of the
foreign state, which maritime lien is based upon a commercial activity
of the foreign state: Provided, That --
(1) notice of the suit is given by delivery of a copy of the summons
and of the complaint to the person, or his agent, having possession of
the vessel or cargo against which the maritime lien is asserted; and if
the vessel or cargo is arrested pursuant to process obtained on behalf
of the party bringing the suit, the service of process of arrest shall
be deemed to constitute valid delivery of such notice, but the party
bringing the suit shall be liable for any damages sustained by the
foreign state as a result of the arrest if the party bringing the suit
had actual or constructive knowledge that the vessel or cargo of a
foreign state was involved; and
(2) notice to the foreign state of the commencement of suit as
provided in section 1608 of this title is initiated within ten days
either of the delivery of notice as provided in paragraph (1) of this
subsection or, in the case of a party who was unaware that the vessel or
cargo of a foreign state was involved, of the date such party determined
the existence of the foreign state's interest.
(c) Whenever notice is delivered under subsection (b)(1), the suit to
enforce a maritime lien shall thereafter proceed and shall be heard and
determined according to the principles of law and rules of practice of
suits in rem whenever it appears that, had the vessel been privately
owned and possessed, a suit in rem might have been maintained. A decree
against the foreign state may include costs of the suit and, if the
decree is for a money judgment, interest as ordered by the court, except
that the court may not award judgment against the foreign state in an
amount greater than the value of the vessel or cargo upon which the
maritime lien arose. Such value shall be determined as of the time
notice is served under subsection (b)(1). Decrees shall be subject to
appeal and revision as provided in other cases of admiralty and maritime
jurisdiction. Nothing shall preclude the plaintiff in any proper case
from seeking relief in personam in the same action brought to enforce a
maritime lien as provided in this section.
(d) A foreign state shall not be immune from the jurisdiction of the
courts of the United States in any action brought to foreclose a
preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46 U.S.C.
911 and following). Such action shall be brought, heard, and determined
in accordance with the provisions of that Act and in accordance with the
principles of law and rules of practice of suits in rem, whenever it
appears that had the vessel been privately owned and possessed a suit in
rem might have been maintained.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2892; amended
Pub. L. 100-640, 1, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669,
2, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III,
325(b)(8), Dec. 1, 1990, 104 Stat. 5121.)
The Ship Mortgage Act, 1920, referred to in subsec. (d), is section
30 of act June 5, 1920, ch. 250, 41 Stat. 1000, as amended, which was
classified generally to chapter 25 ( 911 et seq.) of former Title 46,
Shipping, and was repealed by Pub. L. 100-710, title I, 106(b)(2),
Nov. 23, 1988, 102 Stat. 4752, and reenacted by section 102(c) thereof
as chapters 301 and 313 of Title 46, Shipping.
1990 -- Subsec. (a)(6). Pub. L. 101-650 substituted ''state'' for
''State'' after ''foreign''.
1988 -- Subsec. (a)(6). Pub. L. 100-669 added par. (6).
Subsec. (b). Pub. L. 100-702, 1(3), struck out at end ''Whenever
notice is delivered under subsection (b)(1) of this section, the
maritime lien shall thereafter be deemed to be an in personam claim
against the foreign state which at that time owns the vessel or cargo
involved: Provided, That a court may not award judgment against the
foreign state in an amount greater than the value of the vessel or cargo
upon which the maritime lien arose, such value to be determined as of
the time notice is served under subsection (b)(1) of this section.''
Subsec. (b)(1). Pub. L. 100-640, 1(1), substituted ''and if the
vessel or cargo is arrested pursuant to process obtained on behalf of
the party bringing the suit, the service of process of arrest shall be
deemed to constitute valid delivery of such notice, but the party
bringing the suit shall be liable for any damages sustained by the
foreign state as a result of the arrest if the party bringing the suit
had actual or constructive knowledge that the vessel or cargo of a
foreign state was involved'' for ''but such notice shall not be deemed
to have been delivered, nor may it thereafter be delivered, if the
vessel or cargo is arrested pursuant to process obtained on behalf of
the party bringing the suit -- unless the party was unaware that the
vessel or cargo of a foreign state was involved, in which event the
service of process of arrest shall be deemed to constitute valid
delivery of such notice''.
Subsec. (b)(2). Pub. L. 100-640, 1(2), substituted ''paragraph (1)
of this subsection'' for ''subsection (b)(1) of this section''.
Subsecs. (c), (d). Pub. L. 100-702, 1(3), added subsecs. (c) and
(d).
Section 3 of Pub. L. 100-640 provided that: ''The amendments made
by this Act (amending this section and section 1610 of this title) shall
apply to actions commenced on or after the date of the enactment of this
Act (Nov. 9, 1988).''
28 USC 1606. Extent of liability
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As to any claim for relief with respect to which a foreign state is
not entitled to immunity under section 1605 or 1607 of this chapter, the
foreign state shall be liable in the same manner and to the same extent
as a private individual under like circumstances; but a foreign state
except for an agency or instrumentality thereof shall not be liable for
punitive damages; if, however, in any case wherein death was caused,
the law of the place where the action or omission occurred provides, or
has been construed to provide, for damages only punitive in nature, the
foreign state shall be liable for actual or compensatory damages
measured by the pecuniary injuries resulting from such death which were
incurred by the persons for whose benefit the action was brought.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2894.)
28 USC 1607. Counterclaims
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any action brought by a foreign state, or in which a foreign state
intervenes, in a court of the United States or of a State, the foreign
state shall not be accorded immunity with respect to any counterclaim --
(a) for which a foreign state would not be entitled to immunity under
section 1605 of this chapter had such claim been brought in a separate
action against the foreign state; or
(b) arising out of the transaction or occurrence that is the subject
matter of the claim of the foreign state; or
(c) to the extent that the counterclaim does not seek relief
exceeding in amount or differing in kind from that sought by the foreign
state.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2894.)
28 USC 1608. Service; time to answer; default
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Service in the courts of the United States and of the States
shall be made upon a foreign state or political subdivision of a foreign
state:
(1) by delivery of a copy of the summons and complaint in accordance
with any special arrangement for service between the plaintiff and the
foreign state or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the
summons and complaint in accordance with an applicable international
convention on service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending
a copy of the summons and complaint and a notice of suit, together with
a translation of each into the official language of the foreign state,
by any form of mail requiring a signed receipt, to be addressed and
dispatched by the clerk of the court to the head of the ministry of
foreign affairs of the foreign state concerned, or
(4) if service cannot be made within 30 days under paragraph (3), by
sending two copies of the summons and complaint and a notice of suit,
together with a translation of each into the official language of the
foreign state, by any form of mail requiring a signed receipt, to be
addressed and dispatched by the clerk of the court to the Secretary of
State in Washington, District of Columbia, to the attention of the
Director of Special Consular Services -- and the Secretary shall
transmit one copy of the papers through diplomatic channels to the
foreign state and shall send to the clerk of the court a certified copy
of the diplomatic note indicating when the papers were transmitted.
As used in this subsection, a ''notice of suit'' shall mean a notice
addressed to a foreign state and in a form prescribed by the Secretary
of State by regulation.
(b) Service in the courts of the United States and of the States
shall be made upon an agency or instrumentality of a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance
with any special arrangement for service between the plaintiff and the
agency or instrumentality; or
(2) if no special arrangement exists, by delivery of a copy of the
summons and complaint either to an officer, a managing or general agent,
or to any other agent authorized by appointment or by law to receive
service of process in the United States; or in accordance with an
applicable international convention on service of judicial documents;
or
(3) if service cannot be made under paragraphs (1) or (2), and if
reasonably calculated to give actual notice, by delivery of a copy of
the summons and complaint, together with a translation of each into the
official language of the foreign state --
(A) as directed by an authority of the foreign state or political
subdivision in response to a letter rogatory or request or
(B) by any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to the agency or
instrumentality to be served, or
(C) as directed by order of the court consistent with the law of the
place where service is to be made.
(c) Service shall be deemed to have been made --
(1) in the case of service under subsection (a)(4), as of the date of
transmittal indicated in the certified copy of the diplomatic note; and
(2) in any other case under this section, as of the date of receipt
indicated in the certification, signed and returned postal receipt, or
other proof of service applicable to the method of service employed.
(d) In any action brought in a court of the United States or of a
State, a foreign state, a political subdivision thereof, or an agency or
instrumentality of a foreign state shall serve an answer or other
responsive pleading to the complaint within sixty days after service has
been made under this section.
(e) No judgment by default shall be entered by a court of the United
States or of a State against a foreign state, a political subdivision
thereof, or an agency or instrumentality of a foreign state, unless the
claimant establishes his claim or right to relief by evidence
satisfactory to the court. A copy of any such default judgment shall be
sent to the foreign state or political subdivision in the manner
prescribed for service in this section.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2894.)
28 USC 1609. Immunity from attachment and execution of property of a
foreign state
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Subject to existing international agreements to which the United
States is a party at the time of enactment of this Act the property in
the United States of a foreign state shall be immune from attachment
arrest and execution except as provided in sections 1610 and 1611 of
this chapter.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2895.)
The time of enactment of this Act, referred to in text, probably
means the time of enactment of Pub. L. 94-583, which was approved Oct.
21, 1976.
28 USC 1610. Exceptions to the immunity from attachment or execution
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The property in the United States of a foreign state, as defined
in section 1603(a) of this chapter, used for a commercial activity in
the United States, shall not be immune from attachment in aid of
execution, or from execution, upon a judgment entered by a court of the
United States or of a State after the effective date of this Act, if --
(1) the foreign state has waived its immunity from attachment in aid
of execution or from execution either explicitly or by implication,
notwithstanding any withdrawal of the waiver the foreign state may
purport to effect except in accordance with the terms of the waiver, or
(2) the property is or was used for the commercial activity upon
which the claim is based, or
(3) the execution relates to a judgment establishing rights in
property which has been taken in violation of international law or which
has been exchanged for property taken in violation of international law,
or
(4) the execution relates to a judgment establishing rights in
property --
(A) which is acquired by succession or gift, or
(B) which is immovable and situated in the United States: Provided,
That such property is not used for purposes of maintaining a diplomatic
or consular mission or the residence of the Chief of such mission, or
(5) the property consists of any contractual obligation or any
proceeds from such a contractual obligation to indemnify or hold
harmless the foreign state or its employees under a policy of automobile
or other liability or casualty insurance covering the claim which merged
into the judgment, or
(6) the judgment is based on an order confirming an arbitral award
rendered against the foreign state, provided that attachment in aid of
execution, or execution, would not be inconsistent with any provision in
the arbitral agreement.
(b) In addition to subsection (a), any property in the United States
of an agency or instrumentality of a foreign state engaged in commercial
activity in the United States shall not be immune from attachment in aid
of execution, or from execution, upon a judgment entered by a court of
the United States or of a State after the effective date of this Act, if
--
(1) the agency or instrumentality has waived its immunity from
attachment in aid of execution or from execution either explicitly or
implicitly, notwithstanding any withdrawal of the waiver the agency or
instrumentality may purport to effect except in accordance with the
terms of the waiver, or
(2) the judgment relates to a claim for which the agency or
instrumentality is not immune by virtue of section 1605(a)(2), (3), or
(5), or 1605(b) of this chapter, regardless of whether the property is
or was used for the activity upon which the claim is based.
(c) No attachment or execution referred to in subsections (a) and (b)
of this section shall be permitted until the court has ordered such
attachment and execution after having determined that a reasonable
period of time has elapsed following the entry of judgment and the
giving of any notice required under section 1608(e) of this chapter.
(d) The property of a foreign state, as defined in section 1603(a) of
this chapter, used for a commercial activity in the United States, shall
not be immune from attachment prior to the entry of judgment in any
action brought in a court of the United States or of a State, or prior
to the elapse of the period of time provided in subsection (c) of this
section, if --
(1) the foreign state has explicitly waived its immunity from
attachment prior to judgment, notwithstanding any withdrawal of the
waiver the foreign state may purport to effect except in accordance with
the terms of the waiver, and
(2) the purpose of the attachment is to secure satisfaction of a
judgment that has been or may ultimately be entered against the foreign
state, and not to obtain jurisdiction.
(e) The vessels of a foreign state shall not be immune from arrest in
rem, interlocutory sale, and execution in actions brought to foreclose a
preferred mortgage as provided in section 1605(d).
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2896; amended
Pub. L. 100-640, 2, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669,
3, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III,
325(b)(9), Dec. 1, 1990, 104 Stat. 5121.)
The effective date of this Act, referred to in subsecs. (a) and (b),
is 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set
out as an Effective Date note under section 1602 of this title.
1990 -- Subsecs. (a)(6), (e). Pub. L. 101-650 substituted ''state''
for ''State'' after ''foreign''.
1988 -- Subsec. (a)(6). Pub. L. 100-669 added par. (6).
Subsec. (e). Pub. L. 100-640 added subsec. (e).
Amendment by Pub. L. 100-640 applicable to actions commenced on or
after Nov. 9, 1988, see section 3 of Pub. L. 100-640, set out as a
note under section 1605 of this title.
28 USC 1611. Certain types of property immune from execution
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Notwithstanding the provisions of section 1610 of this chapter,
the property of those organizations designated by the President as being
entitled to enjoy the privileges, exemptions, and immunities provided by
the International Organizations Immunities Act shall not be subject to
attachment or any other judicial process impeding the disbursement of
funds to, or on the order of, a foreign state as the result of an action
brought in the courts of the United States or of the States.
(b) Notwithstanding the provisions of section 1610 of this chapter,
the property of a foreign state shall be immune from attachment and from
execution, if --
(1) the property is that of a foreign central bank or monetary
authority held for its own account, unless such bank or authority, or
its parent foreign government, has explicitly waived its immunity from
attachment in aid of execution, or from execution, notwithstanding any
withdrawal of the waiver which the bank, authority or government may
purport to effect except in accordance with the terms of the waiver; or
(2) the property is, or is intended to be, used in connection with a
military activity and
(A) is of a military character, or
(B) is under the control of a military authority or defense agency.
(Added Pub. L. 94-583, 4(a), Oct. 21, 1976, 90 Stat. 2897.)
The International Organizations Immunities Act, referred to in
subsec. (a), is title I of act Dec. 29, 1945, ch. 652, 59 Stat. 669,
as amended, which is classified principally to subchapter XVIII ( 288 et
seq.) of chapter 7 of Title 22, Foreign Relations and Intercourse. For
complete classification of this Act to the Code, see Short Title note
set out under section 288 of Title 22 and Tables.
28 USC CHAPTER 99 -- GENERAL PROVISIONS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1631. Transfer to cure want of jurisdiction.
28 USC 1631. Transfer to cure want of jurisdiction
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever a civil action is filed in a court as defined in section 610
of this title or an appeal, including a petition for review of
administrative action, is noticed for or filed with such a court and
that court finds that there is a want of jurisdiction, the court shall,
if it is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have been
brought at the time it was filed or noticed, and the action or appeal
shall proceed as if it had been filed in or noticed for the court to
which it is transferred on the date upon which it was actually filed in
or noticed for the court from which it is transferred.
(Added Pub. L. 97-164, title III, 301(a), Apr. 2, 1982, 96 Stat.
55.)
Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC PART V -- PROCEDURE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Chap. Sec.
111. General Provisions 1651
113. Process 1691
115. Evidence; Documentary 1731
117. Evidence; Depositions 1781
119. Evidence; Witnesses 1821
121 Juries; Trial by Jury 1861
123. Fees and Costs 1911
125. Pending Actions and Judgments 1961
127. Executions and Judicial Sales 2001
129. Moneys Paid into Court 2041
131. Rules of Courts 2071
133. Review -- Miscellaneous Provisions 2101
28 USC CHAPTER 111 -- GENERAL PROVISIONS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1651. Writs.
1652. State laws as rules of decision.
1653. Amendment of pleadings to show jurisdiction.
1654. Appearance personally or by counsel.
1655. Lien enforcement; absent defendants.
1656. Creation of new district or division or transfer of territory;
lien enforcement.
1657. Priority of civil actions.
1658. Time limitations on the commencement of civil actions arising
under Acts of Congress.
1990 -- Pub. L. 101-650, title III, 313(b), Dec. 1, 1990, 104
Stat. 5115, added item 1658.
1984 -- Pub. L. 98-620, title IV, 401(b), Nov. 8, 1984, 98 Stat.
3357, added item 1657.
Criminal procedure, see section 3001 et seq. of Title 18, Crimes and
Criminal Procedure.
Removal of cases from State courts, procedure, see section 1446 of
this title.
28 USC 1651. Writs
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or
judge of a court which has jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, 90,
63 Stat. 102.)
Based on title 28, U.S.C., 1940 ed., 342, 376, 377 (Mar. 3, 1911,
ch. 231, 234, 261, 262, 36 Stat. 1156, 1162).
Section consolidates sections 342, 376, and 377 of title 28, U.S.C.,
1940 ed., with necessary changes in phraseology.
Such section 342 provided:
''The Supreme Court shall have power to issue writs of prohibition to
the district courts, when proceeding as courts of admiralty and maritime
jurisdiction; and writs of mandamus, in cases warranted by the
principles and usages of law, to any courts appointed under the
authority of the United States, or to persons holding office under the
authority of the United States, where a State, or an ambassador, or
other public minister, or a consul, or vice consul is a party.''
Such section 376 provided:
''Writs of ne exeat may be granted by any justice of the Supreme
Court, in cases where they might be granted by the Supreme Court; and
by any district judge, in cases where they might be granted by the
district court of which he is a judge. But no writ of ne exeat shall be
granted unless a suit in equity is commenced, and satisfactory proof is
made to the court or judge granting the same that the defendant designs
quickly to depart from the United States.''
Such section 377 provided:
''The Supreme Court and the district courts shall have power to issue
writs of scire facias. The Supreme Court, the circuit courts of
appeals, and the district courts shall have power to issue all writs not
specifically provided for by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable to the usages
and principles of law.''
The special provisions of section 342 of title 28, U.S.C., 1940 ed.,
with reference to writs of prohibition and mandamus, admiralty courts
and other courts and officers of the United States were omitted as
unnecessary in view of the revised section.
The revised section extends the power to issue writs in aid of
jurisdiction, to all courts established by Act of Congress, thus making
explicit the right to exercise powers implied from the creation of such
courts.
The provisions of section 376 of title 28, U.S.C., 1940 ed., with
respect to the powers of a justice or judge in issuing writs of ne exeat
were changed and made the basis of subsection (b) of the revised section
but the conditions and limitations on the writ of ne exeat were omitted
as merely confirmatory of well-settled principles of law.
The provision in section 377 of title 28, U.S.C., 1940 ed.,
authorizing issuance of writs of scire facias, was omitted in view of
rule 81(b) of the Federal Rules of Civil Procedure abolishing such writ.
The revised section is expressive of the construction recently placed
upon such section by the Supreme Court in U.S. Alkali Export Assn. v.
U.S., 65 S.Ct. 1120, 325 U.S. 196, 89 L.Ed. 1554, and De Beers Consol.
Mines v. U.S., 65 S.Ct. 1130, 325 U.S. 212, 89 L.Ed. 1566.
This section corrects a grammatical error in subsection (a) of
section 1651 of title 28, U.S.C.
1949 -- Subsec. (a). Act May 24, 1949, inserted ''and'' after
''jurisdictions''.
Act Jan. 31, 1928, ch. 14, 2, 45 Stat. 54, as amended Apr. 26,
1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, 23, 62 Stat.
990, provided that: ''All Acts of Congress referring to writs of error
shall be construed as amended to the extent necessary to substitute
appeal for writ of error.''
Procedure on petition for an extraordinary writ, see rule 20,
Appendix to this title.
Remedies for seizure of person and property, including arrest,
attachment, garnishment, replevin, and sequestration, see rule 64,
Appendix to this title.
Writs of coram nobis, coram vobis, audita querela, bills of review,
and bills in the nature of bills of review abolished, see rule 60.
Writs of mandamus and scire facias abolished in district courts, see
rule 81.
Mandamus; statutory provisions giving district courts jurisdiction
to grant relief in the nature of writs of mandamus include --
Bridges over navigable waters, removal of, see sections 495 and 519
of Title 33, Navigation and Navigable Waters.
Federal Communications Act and orders of Commission, enforcement of,
see sections 11, 401, and 406 of Title 47, Telegraphs, Telephones, and
Radiotelegraphs.
Federal Power Act, and orders thereunder, enforcement and prevention
of violations, see sections 820 and 825m of Title 16, Conservation.
Federal Trade Commission Act, and orders thereunder, enforcement of,
see section 49 of Title 15, Commerce and Trade.
Interstate Commerce Act, enforcement of, see section 11703 of Title
49, Transportation.
National Railroad Adjustment Board, enforcement of orders, see
section 153 of Title 45, Railroads.
Securities and Public Utilities Holding Companies Acts and orders of
Securities and Exchange Commission, enforcement of, see sections 77t,
78u, and 79r of Title 15, Commerce and Trade.
Stockyards Act, adopting by reference section 49 of Title 15, see
section 222 of Title 7, Agriculture.
Tariff Act and orders of Tariff Commission, enforcement of, see
section 1333 of Title 19, Customs Duties.
Union Pacific Railroad, operation of, see section 88 of Title 45,
Railroads.
Puerto Rico, power of supreme and district courts to grant mandamus,
see section 872 of Title 48, Territories and Insular Possessions.
28 USC 1652. State laws as rules of decision
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The laws of the several states, except where the Constitution or
treaties of the United States or Acts of Congress otherwise require or
provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.
(June 25, 1948, ch. 646, 62 Stat. 944.)
Based on title 28, U.S.C., 1940 ed., 725 (R.S. 721).
''Civil actions'' was substituted for ''trials at common law'' to
clarify the meaning of the Rules of Decision Act in the light of the
Federal Rules of Civil Procedure. Such Act has been held to apply to
suits in equity.
Changes were made in phraseology.
28 USC 1653. Amendment of pleadings to show jurisdiction
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Defective allegations of jurisdiction may be amended, upon terms, in
the trial or appellate courts.
(June 25, 1948, ch. 646, 62 Stat. 944.)
Based on title 28, U.S.C., 1940 ed., 399 (Mar. 3, 1911, ch. 231,
274c, as added Mar. 3, 1915, ch. 90, 38 Stat. 956).
Section was extended to permit amendment of all jurisdictional
allegations instead of merely allegations of diversity of citizenship as
provided by section 399 of title 28, U.S.C., 1940 ed.
Changes were made in phraseology.
Amended and supplemental pleadings, see rules 12 and 15, Appendix to
this title.
28 USC 1654. Appearance personally or by counsel
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In all courts of the United States the parties may plead and conduct
their own cases personally or by counsel as, by the rules of such
courts, respectively, are permitted to manage and conduct causes
therein.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, 91,
63 Stat. 103.)
Based on title 28, U.S.C., 1940 ed., 394 (Mar. 3, 1911, ch. 231,
272, 36 Stat. 1164).
Words ''as, by the rules of the said courts respectively, are
permitted to manage and conduct causes therein,'' after ''counsel,''
were omitted as surplusage. The revised section and section 2071 of
this title effect no change in the procedure of the Tax Court before
which certain accountants may be admitted as counsel for litigants under
Rule 2 of the Tax Court.
Changes were made in phraseology.
This section restores in section 1654 of title 28, U.S.C., language
of the original law.
1949 -- Act May 24, 1949, inserted ''as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein''.
28 USC 1655. Lien enforcement; absent defendants
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In an action in a district court to enforce any lien upon or claim
to, or to remove any incumbrance or lien or cloud upon the title to,
real or personal property within the district, where any defendant
cannot be served within the State, or does not voluntarily appear, the
court may order the absent defendant to appear or plead by a day
certain.
Such order shall be served on the absent defendant personally if
practicable, wherever found, and also upon the person or persons in
possession or charge of such property, if any. Where personal service
is not practicable, the order shall be published as the court may
direct, not less than once a week for six consecutive weeks.
If an absent defendant does not appear or plead within the time
allowed, the court may proceed as if the absent defendant had been
served with process within the State, but any adjudication shall, as
regards the absent defendant without appearance. affect only the
property which is the subject of the action. When a part of the
property is within another district, but within the same state, such
action may be brought in either district.
Any defendant not so personally notified may, at any time within one
year after final judgment, enter his appearance, and thereupon the court
shall set aside the judgment and permit such defendant to plead on
payment of such costs as the court deems just.
(June 25, 1948, ch. 646, 62 Stat. 944.)
Based on title 28, U.S.C., 1940 ed., 118 (Mar. 3, 1911, ch. 231,
57, 36 Stat. 1102).
Word ''action'' was substituted for ''suit,'' in view of Rule 2 of
the Federal Rules of Civil Procedure.
In view of Rule 4(f) of the Federal Rules of Civil Procedure
permitting service of process anywhere within the territorial limits of
the States, the word ''State'' was substituted for ''district'' in the
first and third paragraphs.
Changes were made in phraseology.
Process and relief from judgment or order, see rules 4 and 60,
Appendix to this title.
28 USC 1656. Creation of new district or division or transfer of
territory; lien enforcement
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The creation of a new district or division or the transfer of any
territory to another district or division shall not affect or divest any
lien theretofore acquired in a district court upon property within such
district, division or territory.
To enforce such lien, the clerk of the court in which the same is
acquired, upon the request and at the cost of the party desiring the
same, shall make a certified copy of the record thereof, which, when
filed in the proper court of the district or division in which such
property is situated after such creation or transfer shall be evidence
in all courts and places equally with the original thereof; and,
thereafter like proceedings shall be had thereon, and with the same
effect, as though the case or proceeding had been originally instituted
in such court.
(June 25, 1948, ch. 646, 62 Stat. 944; Nov. 6, 1978, Pub. L.
95-598, title II, 242, 92 Stat. 2671.)
Based on title 28, U.S.C., 1940 ed., 122 (Mar. 3, 1911, ch. 231,
60, 36 Stat. 1103).
A provision as to creation of a new district or division or transfer
of territory before March 3, 1911, was omitted as obsolete.
Words descriptive of the lien were omitted as unnecessary.
Changes were made in phraseology.
1978 -- Pub. L. 95-598 directed the amendment of section by
inserting ''or in a bankruptcy court'' after ''a district court'', which
amendment did not become effective pursuant to section 402(b) of Pub.
L. 95-598, as amended, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy.
Effect of rule 69 on this section, see note by Advisory Committee
under rule 69, Appendix to this title.
28 USC 1657. Priority of civil actions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Notwithstanding any other provision of law, each court of the
United States shall determine the order in which civil actions are heard
and determined, except that the court shall expedite the consideration
of any action brought under chapter 153 or section 1826 of this title,
any action for temporary or preliminary injunctive relief, or any other
action if good cause therefor is shown. For purposes of this
subsection, ''good cause'' is shown if a right under the Constitution of
the United States or a Federal Statute (including rights under section
552 of title 5) would be maintained in a factual context that indicates
that a request for expedited consideration has merit.
(b) The Judicial Conference of the United States may modify the rules
adopted by the courts to determine the order in which civil actions are
heard and determined, in order to establish consistency among the
judicial circuits.
(Added Pub. L. 98-620, title IV, 401(a), Nov. 8, 1984, 98 Stat.
3356.)
Section 403 of Pub. L. 98-620 provided that: ''The amendments made
by this subtitle (subtitle A ( 401-403) of title IV of Pub. L. 98-620,
enacting this section, amending sections 596, 636, 1364, 2284, and 2349
of this title, sections 437g, 437h, and 687 of Title 2, The Congress,
section 552 of Title 5, Government Organization and Employees, sections
8, 136d, 136h, 136n, 136w, 194, 1366, 1600, and 1601 of Title 7,
Agriculture, section 1464 of Title 12, Banks and Banking, sections 18a,
21, 45, 57a-1, 78k-1, 687a, 687c, 719h, 1415, 2003, and 2622 of Title
15, Commerce and Trade, sections 1463a, 1910, 3117, and 3168 of Title
16, Conservation, sections 1964 and 1966 of Title 18, Crimes and
Criminal Procedure, sections 346a and 348 of Title 21, Food and Drugs,
section 618 of Title 22, Foreign Relations and Intercourse, section
640d-3 of Title 25, Indians, sections 3310, 6110, 6363, 7609, 9010, and
9011 of Title 26, Internal Revenue Code, sections 110, 160, 660, and
1303 of Title 29, Labor, section 816 of Title 30, Mineral Lands and
Mining, section 2022 (now 4302) of Title 38, Veterans' Benefits, section
3628 of Title 39, Postal Service, sections 300j-9, 504, 6508, and 8514
of Title 42, The Public Health and Welfare, sections 1062, 1349, 1652,
and 2011 of Title 43, Public Lands, sections 355, 745, 1018, and 1205 of
Title 45, Railroads, section 402 of Title 47, Telegraphs, Telephones,
and Radiotelegraphs, section 2305 of Title 49, Appendix, Transportation,
section 792a of Title 50, War and National Defense, and sections 462 and
1984 of Title 50, Appendix, repealing sections 1296 and 2647 of this
title, section 28 of Title 15, and section 3614 of Title 42, and
amending provisions set out as a note under section 2304 of Title 10,
Armed Forces) shall not apply to cases pending on the date of the
enactment of this subtitle (Nov. 8, 1984).''
28 USC 1658. Time limitations on the commencement of civil actions
arising under Acts of Congress
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as otherwise provided by law, a civil action arising under an
Act of Congress enacted after the date of the enactment of this section
may not be commenced later than 4 years after the cause of action
accrues.
(Added Pub. L. 101-650, title III, 313(a), Dec. 1, 1990, 104 Stat.
5114.)
The date of the enactment of this section, referred to in text, is
the date of enactment of Pub. L. 101-650, which was approved Dec. 1,
1990.
Section 313(c) of Pub. L. 101-650 provided that: ''The amendments
made by this section (enacting this section) shall apply with respect to
causes of action accruing on or after the date of the enactment of this
Act (Dec. 1, 1990).''
28 USC CHAPTER 113 -- PROCESS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1691. Seal and teste of process.
1692. Process and orders affecting property in different districts.
1693. Place of arrest in civil action.
1694. Patent infringement action.
1695. Stockholder's derivative action.
1696. Service in foreign and international litigation.
1964 -- Pub. L. 88-619, 4(b), Oct. 3, 1964, 78 Stat. 996, added
item 1696.
Process, see Rule 4, Appendix to this title.
28 USC 1691. Seal and teste of process
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
All writs and process issuing from a court of the United States shall
be under the seal of the court and signed by the clerk thereof.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 721 (R.S. 911; Mar. 3, 1911,
ch. 231, 291, 36 Stat. 1167).
Provisions as to teste of process issuing from the district courts
were omitted as superseded by Rule 4 (b) of the Federal Rules of Civil
Procedure. Provision for teste of the Chief Justice of writs and
process was omitted as unnecessary.
A provision requiring the United States to bear the expense of
providing seals was omitted as unnecessary and obsolete.
Changes were made in phraseology.
Presidential determination of cultural significance of objects and
exhibition or display thereof in the national interest, see section 2459
of Title 22, Foreign Relations and Intercourse.
Assistance, attachment, or sequestration, see rule 70, Appendix to
this title.
Execution, see rule 69.
Form of summons, see rule 4.
Injunction, see rule 65.
Process, see rule 4.
Subpoenas, see rule 45.
Summons, see rule 4.
Writs of scire facias and mandamus abolished, see rule 81.
Habeas corpus, see section 2241 of this title.
Power of courts to issue writs, see section 1651 of this title.
Power of Supreme Court to prescribe rules of procedure and evidence,
see section 2072 of this title.
Writs venire facias abolished, see Historical and Revision Notes
under section 1867 of this title.
28 USC 1692. Process and orders affecting property in different
districts
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In proceedings in a district court where a receiver is appointed for
property, real, personal, or mixed, situated in different districts,
process may issue and be executed in any such district as if the
property lay wholly within one district, but orders affecting the
property shall be entered of record in each of such districts.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 117 (Mar. 3, 1911, ch. 231,
56, 36 Stat. 1102).
Provisions of section 117 of title 28, U.S.C., 1940 ed., as to
jurisdiction and control of a receiver of property in several districts
are the basis of section 754 of this title.
For explanation of revision of section 117 of title 28, U.S.C., 1940
ed., and its extension to include property, not only in the same
judicial circuit, but in any judicial circuit. (See reviser's note
under section 754 of this title.)
Changes were made in phraseology.
Receivers of property in different districts, see section 754 of this
title.
28 USC 1693. Place of arrest in civil action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as otherwise provided by Act of Congress, no person shall be
arrested in one district for trial in another in any civil action in a
district court.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 112 (Mar. 3, 1911, ch. 231,
51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4,
1925, ch. 526, 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat.
1213).
Venue provisions of section 112 of title 28, U.S.C., 1940 ed., appear
in sections 1391 and 1401 of this title. Other provisions are
incorporated in section 1695 of this title.
The exception at the beginning of the section was substituted for
''Except as provided in sections 113-117 of this title.''
Changes were made in phraseology.
Venue generally, see section 1391 of this title.
Waiver of venue, see section 1406 of this title.
28 USC 1694. Patent infringement action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In a patent infringement action commenced in a district where the
defendant is not a resident but has a regular and established place of
business, service of process, summons or subpoena upon such defendant
may be made upon his agent or agents conducting such business.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 109 (Mar. 3, 1911, ch. 231,
48, 36 Stat. 1100).
Venue provisions of section 109 of title 28, U.S.C., 1940 ed., appear
in section 1400 of this title.
Changes were made in phraseology.
Venue in patent infringement action, see section 1400 of this title.
28 USC 1695. Stockholder's derivative action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Process in a stockholder's action in behalf of his corporation may be
served upon such corporation in any district where it is organized or
licensed to do business or is doing business.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 112 (Mar. 3, 1911, ch. 231,
51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4,
1925, ch. 526, 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat.
1213).
The phrase ''is organized or licensed to do business or is doing
business'' was substituted for the words ''resides or is found,'' as
more specific and to conform to section 1391 of this title.
Venue provisions of section 112 of title 28, U.S.C., 1940 ed., appear
in section 1391 and 1401 of this title. Other provisions are
incorporated in section 1693 of this title.
Changes were made in phraseology.
Venue in stockholder's derivative action, see section 1401 of this
title.
28 USC 1696. Service in foreign and international litigation
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The district court of the district in which a person resides or
is found may order service upon him of any document issued in connection
with a proceeding in a foreign or international tribunal. The order may
be made pursuant to a letter rogatory issued, or request made, by a
foreign or international tribunal or upon application of any interested
person and shall direct the manner of service. Service pursuant to this
subsection does not, of itself, require the recognition or enforcement
in the United States of a judgment, decree, or order rendered by a
foreign or international tribunal.
(b) This section does not preclude service of such a document without
an order of court.
(Added Pub. L. 88-619, 4(a), Oct. 3, 1964, 78 Stat. 995.)
28 USC CHAPTER 115 -- EVIDENCE; DOCUMENTARY
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1731. Handwriting.
1732. Record made in regular course of business; photographic
copies.
1733. Government records and papers; copies.
1734. Court record lost or destroyed generally. /1/
1735. Court record lost or destroyed where United States interested.
1736. Congressional Journals.
1737. Copy of officer's bond.
1738. State and Territorial statutes and judicial proceedings; full
faith and credit.
1738A. Full faith and credit given to child custody determinations.
1739. State and Territorial nonjudicial records; full faith and
credit.
1740. Copies of consular papers.
1741. Foreign official documents.
(1742. Repealed.)
1743. Demand on postmaster.
1744. Copies of patent office documents generally. /1/
1745. Copies of foreign patent documents.
1746. Unsworn declarations under penalty of perjury.
1980 -- Pub. L. 96-611, 8(b), Dec. 28, 1980, 94 Stat. 3571, added
item 1738A.
1976 -- Pub. L. 94-550, 1(b), Oct. 18, 1976, 90 Stat. 2534, added
item 1746.
1964 -- Pub. L. 88-619, 5(b), 6(b), 7(b), Oct. 3, 1964, 78 Stat.
996, substituted ''official documents'' for ''documents generally;
copies'' in item 1741, inserted ''(Repealed)'' in item 1742, and
substituted ''documents'' for ''specifications and drawings'' in item
1745.
1951 -- Act Aug. 28, 1951, ch. 351, 2, 65 Stat. 206, inserted '';
photographic copies'' in item 1732.
1949 -- Act May 24, 1949, ch. 139, 92(a), 63 Stat. 103, struck out
item 1745 ''Printed copies of patient specifications and drawings'' and
renumbered item 1746 as 1745.
Civil cases --
Proof of official record, see rule 44, Appendix to this title.
Subpoena for production of documentary evidence, see rule 45.
Criminal cases --
Proof of official record, see rule 27, Title 18, Appendix, Crimes and
Criminal Procedure.
Subpoena for production of documentary evidence, see rule 17.
/1/ So in original. Does not conform to section catchline.
28 USC 1731. Handwriting
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The admitted or proved handwriting of any person shall be admissible,
for purposes of comparison, to determine genuineness of other
handwriting attributed to such person.
(June 25, 1948, ch. 646, 62 Stat. 945.)
Based on title 28, U.S.C., 1940 ed., 638 (Feb. 26, 1913, ch. 79, 37
Stat. 683).
Words ''as a basis for comparison by witnesses, or by the jury,
court, or officer conducting such proceeding'', were omitted as
superfluous.
Changes were made in phraseology.
Evidence, civil actions, see rule 43, Appendix to this title.
Criminal proceedings, see rule 26, Title 18, Appendix, Crimes and
Criminal Procedure.
28 USC 1732. Record made in regular course of business; photographic
copies
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
If any business, institution, member of a profession or calling, or
any department or agency of government, in the regular course of
business or activity has kept or recorded any memorandum, writing,
entry, print, representation or combination thereof, of any act,
transaction, occurrence, or event, and in the regular course of business
has caused any or all of the same to be recorded, copied, or reproduced
by any photographic, photostatic, microfilm, micro-card, miniature
photographic, or other process which accurately reproduces or forms a
durable medium for so reproducing the original, the original may be
destroyed in the regular course of business unless its preservation is
required by law. Such reproduction, when satisfactorily identified, is
as admissible in evidence as the original itself in any judicial or
administrative proceeding whether the original is in existence or not
and an enlargement or facsimile of such reproduction is likewise
admissible in evidence if the original reproduction is in existence and
available for inspection under direction of court. The introduction of
a reproduced record, enlargement, or facsimile does not preclude
admission of the original. This subsection shall not be construed to
exclude from evidence any document or copy thereof which is otherwise
admissible under the rules of evidence.
(June 25, 1948, ch. 646, 62 Stat. 945; Aug. 28, 1951, ch. 351, 1,
3, 65 Stat. 205, 206; Aug. 30, 1961, Pub. L. 87-183, 75 Stat. 413;
Jan. 2, 1975, Pub. L. 93-595, 2(b), 88 Stat. 1949.)
Based on title 28, U.S.C., 1940 ed., 695 (June 20, 1936, ch. 640,
1, 49 Stat. 1561).
Changes in phraseology were made.
1975 -- Pub. L. 93-595 struck out subsec. (a) which had made
admissible as evidence writings or records made as a memorandum or
record of any act, transaction, occurrence, or event if made in the
regular course of business, and struck out designation ''(b)'' preceding
remainder of section. See Federal Rules of Evidence set out in Appendix
to this title.
1961 -- Subsec. (b). Pub. L. 87-183 struck out ''unless held in a
custodial or fiduciary capacity or'' after ''may be destroyed in the
regular course of business''.
1951 -- Act Aug. 29, 1951, 3, inserted reference to photographic
copies in section catchline.
Subsecs. (a), (b). Act Aug. 28, 1951, 1, designated existing
provisions as subsec. (a) and added subsec. (b).
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former section 695 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27 and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1733. Government records and papers; copies
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Books or records of account or minutes of proceedings of any
department or agency of the United States shall be admissible to prove
the act, transaction or occurrence as a memorandum of which the same
were made or kept.
(b) Properly authenticated copies or transcripts of any books,
records, papers or documents of any department or agency of the United
States shall be admitted in evidence equally with the originals thereof.
(c) This section does not apply to cases, actions, and proceedings to
which the Federal Rules of Evidence apply.
(June 25, 1948, ch. 646, 62 Stat. 946; Jan. 2, 1975, Pub. L.
93-595, 2(c), 88 Stat. 1949.)
Based on title 28, U.S.C., 1940 ed., 661-667, 671 (R.S. 882-886,
889; July 31, 1894, ch. 174, 17, 22, 28 Stat. 210; Mar. 2, 1895,
ch. 177, 10, 28 Stat. 809; June 10, 1921, ch. 18, 301, 302, 304,
310, 42 Stat. 23-25; May 10, 1934, ch. 277, 512, 48 Stat. 758; June
19, 1934, ch. 653, 6(a), 48 Stat. 1109).
The consolidation of sections 661-667 and 671 of title 28, U.S.C.,
1940 ed., permitted omission of obsolete, unnecessary and repetitive
provisions in such sections. For example, the provision in section 665
of title 28, U.S.C., 1940 ed., authorizing the court to require
production of documents on a plea of non est factum, was omitted. Such
plea is obsolete in Federal practice.
Numerous provisions with respect to authentication were omitted as
covered by Rule 44 of the Federal Rules of Civil Procedure.
Likewise the provision that official seals shall be judicially
noticed was omitted as unnecessary. Seals of Federal agencies are
judicially noticed by States and Federal courts without statutory
mandate. Gardner v. Barney, 1867, 6 Wall. 499, 73 U.S.C. 499, 18
L.Ed. 890, 31 C.J.S. 599 n. 27-30 and 23 C.J.S. 99 n. 41. The same
principle unquestionably will apply to seals of Government corporations.
Words ''of any corporation all the stock of which is beneficially
owned by the United States, either directly or indirectly'', in section
661 of title 28, U.S.C., 1940 ed., were omitted as covered by ''or
agency''. The revised section was broadened to apply to ''any
department or agency''. (See reviser's note under section 1345 of this
title.)
Changes were made in phraseology.
The Federal Rules of Evidence, referred to in subsec. (c), are set
out in the Appendix to this title.
1975 -- Subsec. (c). Pub. L. 93-595 added subsec. (c).
Proof of official record, see rule 44, Appendix to this title.
Subpoena for production of documentary evidence, see rule 45.
Proof of official record, see rule 27, Title 18, Appendix, Crimes and
Criminal Procedure.
Subpoena for production of documentary evidence, see rule 17.
Authenticated and certified copy of Government record by Archivist
admissible in evidence, see section 2116 of Title 44, Public Printing
and Documents.
Authentication --
Copies of documents, etc., in the office of the Commissioner of
Indian Affairs is made by section 6 of Title 25, Indians.
Original papers on file in the Bureau of Land Management are provided
for by section 13 of Title 43, Public Lands.
Records by Secretary of the Interior, see section 1460 of Title 43.
Records of the Postal Service, see section 207 of Title 39, Postal
Service.
Certified copies of schedules and tariffs of rates, etc., copies as
evidence, see section 10303 of Title 49, Transportation.
Judicial notice of seals --
Departments of Commerce and Labor, see sections 1501 of Title 15,
Commerce and Trade, and 551 of Title 29, Labor.
Department of Defense, see section 112 of Title 10, Armed Forces.
Departments of the Army, Air Force, and Navy, see sections 3012,
5012, and 8012 of Title 10.
Provisions relating to the requisites of the certificates of national
banks, and the acknowledgment and filing thereof, are made by sections
22 and 23 of Title 12, Banks and Banking.
Secretary of the Interior is authorized to furnish transcripts of
records in district land offices for individuals, and such transcripts,
when duly certified, are made admissible as evidence by section 83 of
Title 43, Public Lands.
Verification of official documents by Secretary of Agriculture, see
section 2203 of Title 7, Agriculture.
28 USC 1734. Court record lost or destroyed, generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A lost or destroyed record of any proceeding in any court of the
United States may be supplied on application of any interested party not
at fault, by substituting a copy certified by the clerk of any court in
which an authentic copy is lodged.
(b) Where a certified copy is not available, any interested person
not at fault may file in such court a verified application for an order
establishing the lost or destroyed record.
Every other interested person shall be served personally with a copy
of the application and with notice of hearing on a day stated, not less
than sixty days after service. Service may be made on any nonresident
of the district anywhere within the jurisdiction of the United States or
in any foreign country.
Proof of service in a foreign country shall be certified by a
minister or consul of the United States in such country, under his
official seal.
If, after the hearing, the court is satisfied that the statements
contained in the application are true, it shall enter an order reciting
the substance and effect of the lost or destroyed record. Such order,
subject to intervening rights of third persons, shall have the same
effect as the original record.
(June 25, 1948, ch. 646, 62 Stat. 946.)
Based on title 28, U.S.C., 1940 ed., 681, 682, 683, and 684 (R.S.
899, 900, 901, 902; Jan. 31, 1879, ch. 39, 1, 20 Stat. 277).
Sections 681, 682, and 684 of title 28, U.S.C., 1940 ed., contained
repetitious language which was eliminated by the consolidation.
Section 683 of title 28, U.S.C., 1940 ed., applied only to cases
removed to the Supreme Court, and was revised so as to be applicable to
cases transmitted to other courts not in existence in 1871 when the
section was originally enacted.
Changes were made in phraseology.
Effect of rule 44 on former section 681 of this title, see note by
Advisory Committee under rule 44, Appendix to this title.
Proof of official records, see rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1735. Court record lost or destroyed where United States
interested
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) When the record of any case or matter in any court of the United
States to which the United States is a party, is lost or destroyed, a
certified copy of any official paper of a United States attorney, United
States marshal or clerk or other certifying or recording officer of any
such court, made pursuant to law, on file in any department or agency of
the United States and relating to such case or matter, shall, on being
filed in the court to which it relates, have the same effect as an
original paper filed in such court. If the copy so filed discloses the
date and amount of a judgment or decree and the names of the parties
thereto, the court may enforce the judgment or decree as though the
original record had not been lost or destroyed.
(b) Whenever the United States is interested in any lost or destroyed
records or files of a court of the United States, the clerk of such
court and the United States attorney for the district shall take the
steps necessary to restore such records or files, under the direction of
the judges of such court.
(June 25, 1948, ch. 646, 62 Stat. 946.)
Based on title 28, U.S.C., 1940 ed., 685, 686 (R.S. 903, 904;
Jan. 31, 1879, ch. 39, 2, 3, 20 Stat. 277).
A provision of section 686 of title 28, U.S.C., 1940 ed., relating to
allowances to clerks and United States attorneys for their services, and
disbursements incidental to restoring lost records under such section
was deleted as obsolete, in view of sections 508, 509, and 604 of this
title, placing such officers on a salary basis and providing for their
expenses.
Words ''And in all cases where any of the files, papers, or records
of any court of the United States have been or shall be lost or
destroyed, the files, records and papers which, pursuant to law, may
have been or may be restored or supplied in place of such records,
files, and papers, shall have the same force and effect, to all intents
and purposes, as the originals thereof would have been entitled to,'' at
the end of section 685 of title 28, U.S.C., 1940 ed., were omitted as
fully covered by the remainder of this section and by section 1734 of
this title.
Words ''or agency of the United States'' were substituted for ''of
the Government'' so as to eliminate any possible ambiguity as to the
scope of this section. See definitive section 451 of this title.
The phrase ''so far as the judges of such courts respectively shall
deem it essential to the interests of the United States that such
records and files be restored or supplied,'' was omitted as unnecessary.
Changes were made in phraseology.
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former section 685 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1736. Congressional Journals
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Extracts from the Journals of the Senate and the House of
Representatives, and from the Executive Journal of the Senate when the
injunction of secrecy is removed, certified by the Secretary of the
Senate or the Clerk of the House of Representatives shall be received in
evidence with the same effect as the originals would have.
(June 25, 1948, ch. 646, 62 Stat. 947.)
Based on title 28, U.S.C., 1940 ed., 676 (R.S. 895).
Changes in phraseology were made.
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former section 676 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1737. Copy of officer's bond
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any person to whose custody the bond of any officer of the United
States has been committed shall, on proper request and payment of the
fee allowed by any Act of Congress, furnish certified copies thereof,
which shall be prima facie evidence in any court of the execution,
filing and contents of the bond.
(June 25, 1948, ch. 646, 62 Stat. 947.)
Based on title 28, U.S.C., 1940 ed., 326, 499, 513, and 514 (R.S.
783, 795; Feb. 22, 1875, ch. 95, 3, 18 Stat. 333; Mar. 3, 1911, ch.
231, 220, 291, 36 Stat. 1152, 1167).
Sections 326, 499, 513, and 514 of title 28, U.S.C., 1940 ed., were
consolidated. They related to the bonds of particular officers, namely
the Clerk of the Supreme Court, the United States marshals, and the
clerks of the district courts. The revised section eliminates all
inconsistent provisions of such sections.
The requirement that certified copies be furnished is new.
The other provisions of sections 326, 499, 513, and 514 of title 28,
U.S.C., 1940 ed., are now incorporated in sections 544 and 952 of this
title.
Changes were made in phraseology.
28 USC 1738. State and Territorial statutes and judicial proceedings;
full faith and credit
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Acts of the legislature of any State, Territory, or Possession of
the United States, or copies thereof, shall be authenticated by affixing
the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such State,
Territory or Possession, or copies thereof, shall be proved or admitted
in other courts within the United States and its Territories and
Possessions by the attestation of the clerk and seal of the court
annexed, if a seal exists, together with a certificate of a judge of the
court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or
Possession from which they are taken.
(June 25, 1948, ch. 646, 62 Stat. 947.)
Based on title 28, U.S.C., 1940 ed., 687 (R.S. 905).
Words ''Possession of the United States'' were substituted for ''of
any country subject to the jurisdiction of the United States''.
Words ''or copies thereof'' were added in three places. Copies have
always been used to prove statutes and judicial proceedings under
section 687 of title 28, U.S.C., 1940 ed. The added words will cover
expressly such use.
Words ''and its Territories and Possessions'' were added in two
places so as to make this section and section 1739 of this title
uniform, the basic section of the latter having provided that
nonjudicial records or books of any State, Territory, or ''country
subject to the jurisdiction of the United States'' should be admitted in
any court or office in any other State, Territory, or ''such country.''
Words ''a judge of the court'' were substituted for ''the judge,
chief justice or presiding magistrate'' without change of substance.
At the beginning of the last paragraph, words ''Such Acts'' were
substituted for ''And the said''. This follows the language of Article
IV, section 1 of the Constitution.
For additional provisions as to authentication, see Rule 44 of the
Federal Rules of Civil Procedure.
Changes were made in phraseology.
Authentication of copy of official record, see rule 44, Appendix to
this title.
Effect of rule 44 on former section 687 of this title, see note by
Advisory Committee under rule 44.
Criminal cases, proof of official record, see rule 27, Title 18,
Appendix, Crimes and Criminal Procedure.
Full faith and credit, see Const., art. 4, 1.
28 USC 1738A. Full faith and credit given to child custody
determinations
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as provided in
subsection (f) of this section, any child custody determination made
consistently with the provisions of this section by a court of another
State.
(b) As used in this section, the term --
(1) ''child'' means a person under the age of eighteen;
(2) ''contestant'' means a person, including a parent, who claims a
right to custody or visitation of a child;
(3) ''custody determination'' means a judgment, decree, or other
order of a court providing for the custody or visitation of a child, and
includes permanent and temporary orders, and initial orders and
modifications;
(4) ''home State'' means the State in which, immediately preceding
the time involved, the child lived with his parents, a parent, or a
person acting as parent, for at least six consecutive months, and in the
case of a child less than six months old, the State in which the child
lived from birth with any of such persons. Periods of temporary absence
of any of such persons are counted as part of the six-month or other
period;
(5) ''modification'' and ''modify'' refer to a custody determination
which modifies, replaces, supersedes, or otherwise is made subsequent
to, a prior custody determination concerning the same child, whether
made by the same court or not;
(6) ''person acting as a parent'' means a person, other than a
parent, who has physical custody of a child and who has either been
awarded custody by a court or claims a right to custody;
(7) ''physical custody'' means actual possession and control of a
child; and
(8) ''State'' means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or a territory or possession
of the United States.
(c) A child custody determination made by a court of a State is
consistent with the provisions of this section only if --
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the
commencement of the proceeding, or (ii) had been the child's home State
within six months before the date of the commencement of the proceeding
and the child is absent from such State because of his removal or
retention by a contestant or for other reasons, and a contestant
continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under
subparagraph (A), and (ii) it is in the best interest of the child that
a court of such State assume jurisdiction because (I) the child and his
parents, or the child and at least one contestant, have a significant
connection with such State other than mere physical presence in such
State, and (II) there is available in such State substantial evidence
concerning the child's present or future care, protection, training, and
personal relationships;
(C) the child is physically present in such State and (i) the child
has been abandoned, or (ii) it is necessary in an emergency to protect
the child because he has been subjected to or threatened with
mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under
subparagraph (A), (B), (C), or (E), or another State has declined to
exercise jurisdiction on the ground that the State whose jurisdiction is
in issue is the more appropriate forum to determine the custody of the
child, and (ii) it is in the best interest of the child that such court
assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d)
of this section.
(d) The jurisdiction of a court of a State which has made a child
custody determination consistently with the provisions of this section
continues as long as the requirement of subsection (c)(1) of this
section continues to be met and such State remains the residence of the
child or of any contestant.
(e) Before a child custody determination is made, reasonable notice
and opportunity to be heard shall be given to the contestants, any
parent whose parental rights have not been previously terminated and any
person who has physical custody of a child.
(f) A court of a State may modify a determination of the custody of
the same child made by a court of another State, if --
(1) it has jurisdiction to make such a child custody determination;
and
(2) the court of the other State no longer has jurisdiction, or it
has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any
proceeding for a custody determination commenced during the pendency of
a proceeding in a court of another State where such court of that other
State is exercising jurisdiction consistently with the provisions of
this section to make a custody determination.
(Added Pub. L. 96-611, 8(a), Dec. 28, 1980, 94 Stat. 3569.)
Section 7 of Pub. L. 96-611 provided that:
''(a) The Congress finds that --
''(1) there is a large and growing number of cases annually involving
disputes between persons claiming rights of custody and visitation of
children under the laws, and in the courts, of different States, the
District of Columbia, the Commonwealth of Puerto Rico, and the
territories and possessions of the United States;
''(2) the laws and practices by which the courts of those
jurisdictions determine their jurisdiction to decide such disputes, and
the effect to be given the decisions of such disputes by the courts of
other jurisdictions, are often inconsistent and conflicting;
''(3) those characteristics of the law and practice in such cases,
along with the limits imposed by a Federal system on the authority of
each such jurisdiction to conduct investigations and take other actions
outside its own boundaries, contribute to a tendency of parties involved
in such disputes to frequently resort to the seizure, restraint,
concealment, and interstate transportation of children, the disregard of
court orders, excessive relitigation of cases, obtaining of conflicting
orders by the courts of various jurisdictions, and interstate travel and
communication that is so expensive and time consuming as to disrupt
their occupations and commercial activities; and
''(4) among the results of those conditions and activities are the
failure of the courts of such jurisdictions to give full faith and
credit to the judicial proceedings of the other jurisdictions, the
deprivation of rights of liberty and property without due process of
law, burdens on commerce among such jurisdictions and with foreign
nations, and harm to the welfare of children and their parents and other
custodians.
''(b) For those reasons it is necessary to establish a national
system for locating parents and children who travel from one such
jurisdiction to another and are concealed in connection with such
disputes, and to establish national standards under which the courts of
such jurisdictions will determine their jurisdiction to decide such
disputes and the effect to be given by each such jurisdiction to such
decisions by the courts of other such jurisdictions.
''(c) The general purposes of sections 6 to 10 of this Act (enacting
this section and section 663 of Title 42, The Public Health and Welfare,
amending sections 654 and 655 Title 42, and enacting provisions set out
as notes under this section, sections 663 and 1305 of Title 42, and
section 1073 of Title 18, Crimes and Criminal Procedure) are to --
''(1) promote cooperation between State courts to the end that a
determination of custody and visitation is rendered in the State which
can best decide the case in the interest of the child;
''(2) promote and expand the exchange of information and other forms
of mutual assistance between States which are concerned with the same
child;
''(3) facilitate the enforcement of custody and visitation decrees of
sister States;
''(4) discourage continuing interstate controversies over child
custody in the interest of greater stability of home environment and of
secure family relationships for the child;
''(5) avoid jurisdictional competition and conflict between State
courts in matters of child custody and visitation which have in the past
resulted in the shifting of children from State to State with harmful
effects on their well-being; and
''(6) deter interstate abductions and other unilateral removals of
children undertaken to obtain custody and visitation awards.''
Section 8(c) of Pub. L. 96-611 provided that: ''In furtherance of
the purposes of section 1738A of title 28, United States Code, as added
by subsection (a) of this section, State courts are encouraged to --
''(1) afford priority to proceedings for custody determinations; and
''(2) award to the person entitled to custody or visitation pursuant
to a custody determination which is consistent with the provisions of
such section 1738A, necessary travel expenses, attorneys' fees, costs of
private investigations, witness fees or expenses, and other expenses
incurred in connection with such custody determination in any case in
which --
''(A) a contestant has, without the consent of the person entitled to
custody or visitation pursuant to a custody determination which is
consistent with the provisions of such section 1738A, (i) wrongfully
removed the child from the physical custody of such person, or (ii)
wrongfully retained the child after a visit or other temporary
relinquishment of physical custody; or
''(B) the court determines it is appropriate.''
28 USC 1739. State and Territorial nonjudicial records; full faith
and credit
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
All nonjudicial records or books kept in any public office of any
State, Territory, or Possession of the United States, or copies thereof,
shall be proved or admitted in any court or office in any other State,
Territory, or Possession by the attestation of the custodian of such
records or books, and the seal of his office annexed, if there be a
seal, together with a certificate of a judge of a court of record of the
county, parish, or district in which such office may be kept, or of the
Governor, or secretary of state, the chancellor or keeper of the great
seal, of the State, Territory, or Possession that the said attestation
is in due form and by the proper officers.
If the certificate is given by a judge, it shall be further
authenticated by the clerk or prothonotary of the court, who shall
certify, under his hand and the seal of his office, that such judge is
duly commissioned and qualified; or, if given by such Governor,
secretary, chancellor, or keeper of the great seal, it shall be under
the great seal of the State, Territory, or Possession in which it is
made.
Such records of books, or copies thereof, so authenticated, shall
have the same full faith and credit in every court and office within the
United States and its Territories and Possessions as they have by law or
usage in the courts or offices of the State, Territory, or Possession
from which they are taken.
(June 25, 1948, ch. 646, 62 Stat. 947.)
Based on title 28, U.S.C., 1940 ed., 688 (R.S. 906).
Words ''Possession of the United States'' were substituted for ''or
any country subject to the jurisdiction of the United States.''
Words ''or copies thereof'' were added in two places. Copies have
always been used to prove records and books under section 688 of title
28, U.S.C., 1940 ed., and the addition of these words clarifies the
former implied meaning of such section.
In the first paragraph of the revised section words ''a judge of a
court of record'' were substituted for words ''the presiding justice of
the court'' and in the second paragraph ''judge'' was substituted for
''presiding justice'' for convenience and without change of substance.
Words ''and its Territories and Possessions'' were added after
''United States'', near the end of the section, in view of provisions of
section 688 of title 28, U.S.C., 1940 ed., for the admission of records
and books in any court or office in any other State, Territory, or ''in
any such country.'' (Changed to ''Possession'' in this section.)
See also Rule 44 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Authentication of copy of official record, see rule 44, Appendix to
this title.
Effect of rule 44 on former section 688 of this title, see note by
Advisory Committee under rule 44.
Criminal cases, proof of official record, see rule 27, Title 18,
Appendix, Crimes and Criminal Procedure.
28 USC 1740. Copies of consular papers
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Copies of all official documents and papers in the office of any
consul or vice consul of the United States, and of all official entries
in the books or records of any such office, authenticated by the consul
or vice consul, shall be admissible equally with the originals.
(June 25, 1948, ch. 646, 62 Stat. 947.)
Based on title 28, U.S.C., 1940 ed., 677 (R.S. 896; Apr. 5, 1906,
ch. 1366, 3, 34 Stat. 100).
Words ''authenticated by the consul or vice consul'' were substituted
for ''certified under the hand and seal of such officer'', for clarity.
Words ''in the courts of the United States'', were omitted after
''admissible''. Such papers should be so admitted in all courts
consistently with sections 1738 and 1739 of this title.
See also Rule 44 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Authentication of copy of official record see rule 44 Appendix to
this title.
Effect of rule 44 on former section 677 of this title, see note by
Advisory Committee under rule 44.
Criminal cases, proof of official record, see rule 27, Title 18,
Appendix, Crimes and Criminal Procedure.
28 USC 1741. Foreign official documents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
An official record or document of a foreign country may be evidenced
by a copy, summary, or excerpt authenticated as provided in the Federal
Rules of Civil Procedure.
(June 25, 1948, ch. 646, 62 Stat. 948; May 24, 1949, ch. 139,
92(b), 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, 5(a) 78 Stat.
996.)
Based on title 28, U.S.C., 1940 ed., 695e (June 20, 1936, ch. 640,
6, 49 Stat. 1563).
Words ''Nothing contained in this section shall be deemed to alter,
amend, or repeal section 689 of this title,'' at the end of section 695e
of title 28, U.S.C., 1940 ed., were omitted. Although significant in
the original Act, such words are unnecessary in a revision wherein both
sections in question, as revised, are enacted at the same time.
See also Rule 44 of the Federal Rules of Civil Procedure.
Section 695e-1 of title 28, U.S.C., 1940 ed., providing for
certification of Vatican City Documents will be incorporated in title
22, U.S.C., Foreign Relations and Intercourse.
Changes were made in phraseology.
This section corrects a typographical error in section 1741 of title
28, U.S.C.
1964 -- Pub. L. 88-619 substituted ''An official record or document
of a foreign country may be evidenced by a copy, summary, or excerpt
authenticated as provided in the Federal Rules of Civil Procedure'' for
''A copy of any foreign document of record or on file in a public office
of a foreign country or political subdivision thereof, certified by the
lawful custodian thereof, shall be admissible in evidence when
authenticated by a certificate of a consular officer of the United
States resident in such foreign country, under the seal of his office,
that the copy has been certified by the lawful custodian'' in text, and
''official documents'' for ''documents, generally; copies'' in section
catchline.
1949 -- Act May 24, 1949, corrected spelling of ''admissible''.
Authentication of copy of official record, see rule 44 Appendix to
this title.
Effect of rule 44 on former section 695e of this title, see note by
Advisory Committee under rule 44.
Criminal cases, proof of official record, see rule 27, Title 18,
Appendix, Crimes and Criminal Procedure.
28 USC ( 1742. Repealed. Pub. L. 88-619, 6(a), Oct. 3, 1964, 78 Stat.
996)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, act June 25, 1948, ch. 646, 62 Stat. 948, related to
authentication and certification of copies of documents relating to land
titles, by persons having custody of such of any foreign government or
its agents, certification by an American minister or consul that they be
true copies of the originals, the recording of such copies in the office
of the General Counsel for the Department of the Treasury, and to the
evidentiary value of such copies.
28 USC 1743. Demand on postmaster
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The certificate of the Postmaster General or the General Accounting
Office of the mailing to a postmaster of a statement of his account and
that payment of the balance stated has not been received shall be
sufficient evidence of a demand notwithstanding any allowances or
credits subsequently made. A copy of such statement shall be attached
to the certificate.
(June 25, 1948, ch. 646, 62 Stat. 948.)
Based on title 28, U.S.C., 1940 ed., 670 (R.S. 890; June 10, 1921,
ch. 18, 301, 42 Stat. 23).
Provisions in section 670 of title 28, U.S.C., 1940 ed., that the
statement should recite that a letter has been mailed to a described
post office and sufficient time has elapsed for it to have reached its
destination, was omitted as superfluous.
The last clause of section 670 of title 28, U.S.C., 1940 ed., was
omitted as covered by the phrase ''notwithstanding any allowances or
credits subsequently made'' in the revised section.
Changes were made in phraseology.
The office of Postmaster General of the Post Office Department was
abolished and all functions, powers, and duties of the Postmaster
General were transferred to the United States Postal Service by Pub. L.
91-375, 4(a), Aug. 12, 1970, 84 Stat. 773, set out as a note under
section 201 of Title 39, Postal Service.
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former section 670 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1744. Copies of Patent Office documents, generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Copies of letters patent or of any records, books, papers, or
drawings belonging to the Patent Office and relating to patents,
authenticated under the seal of the Patent Office and certified by the
Commissioner of Patents, or by another officer of the Patent Office
authorized to do so by the Commissioner, shall be admissible in evidence
with the same effect as the originals.
Any person making application and paying the required fee may obtain
such certified copies.
(June 25, 1948, ch. 646, 62 Stat. 948; May 24, 1949, ch. 139,
92(c), 63 Stat. 103.)
Based on section 127 of title 15, U.S.C., 1940 ed., Commerce and
Trade, and title 28, U.S.C., 1940 ed., 673 (R.S. 892; Mar. 19, 1920,
ch. 104, 7, 41 Stat. 535; Mar. 4, 1925, ch. 535, 2, 43 Stat. 1269).
For purposes of uniformity, words ''written or printed,'' at the
beginning of the section, were omitted. Similar sections in this
chapter do not contain such words.
Words ''or in his name attested by a chief of division duly
designated by the commissioner,'' after ''Commissioner of Patents,''
were omitted as unnecessary.
Changes in phraseology were made.
1949 -- Act May 24, 1949, substituted ''patents'' after ''relating
to'' for ''registered trade-marks, labels, or prints'', and inserted
''or by another officer of the Patent Office authorized to do so by the
Commissioner'' after ''Commissioner of Patents''.
Patent Office and Commissioner of Patents redesignated Patent and
Trademark Office and Commissioner of Patents and Trademarks,
respectively, by section 3 of Pub. L. 93-596, Jan. 2, 1975, 88 Stat.
1949, set out as a note under section 1 of Title 35, Patents.
Functions of all officers of Department of Commerce and all functions
of all agencies and employees of Department, with a few exceptions,
transferred to Secretary of Commerce, with power vested in him to
authorize their performance or the performance of any of his functions
by any of those officers, agencies, and employees, by Reorg. Plan No.
5 of 1950, 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set
out in the Appendix to Title 5, Government Organization and Employees.
The Patent Office (now Patent and Trademark Office), referred to in this
section, is an agency of the Department of Commerce, and the
Commissioner of Patents (now Commissioner of Patents and Trademarks),
referred to in this section, is an officer of that Department.
Proof of official record, see rule 44, Appendix to this title.
Effect of rule 44 on former section 673 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 44, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1745. Copies of foreign patent documents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Copies of the specifications and drawings of foreign letters patent,
or applications for foreign letters patent, and copies of excerpts of
the official journals and other official publications of foreign patent
offices belonging to the United States Patent Office, certified in the
manner provided by section 1744 of this title are prima facie evidence
of their contents and of the dates indicated on their face.
(June 25, 1948, ch. 646, 62 Stat. 948, 1746; renumbered 1745 and
amended May 24, 1949, ch. 139, 92(d), (e), 63 Stat. 103; Oct. 3, 1964,
Pub. L. 88-619, 7(a), 78 Stat. 996.)
Based on title 28, U.S.C., 1940 ed., 674 (R.S. 893).
Changes were made in phraseology.
1964 -- Pub. L. 88-619, among other changes, inserted ''or
applications for foreign letters patent, and copies of excerpts of the
official journals and other official publications of foreign patent
offices belonging to the United States Patent Office'' in text, and
substituted ''documents'' for ''specifications and drawings'' in section
catchline.
1949 -- Act May 24, 1949, 92(d), repealed section 1745 relating to
printed copies of patent specifications and drawings, and by section
92(e) of act May 24, 1949, renumbered section 1746 as 1745.
Patent Office redesignated Patent and Trademark Office, by section 3
of Pub. L. 93-596, Jan. 2, 1975, 88 Stat. 1949, set out as a note
under section 1 of Title 35, Patents.
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former section 675 of this title, see note by
Advisory Committee under rule 44.
Proof of official records, see rule 27, and note of the Advisory
Committee under rule 27, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1746. Unsworn declarations under penalty of perjury
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Wherever, under any law of the United States or under any rule,
regulation, order, or requirement made pursuant to law, any matter is
required or permitted to be supported, evidenced, established, or proved
by the sworn declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same (other than a
deposition, or an oath of office, or an oath required to be taken before
a specified official other than a notary public), such matter may, with
like force and effect, be supported, evidenced, established, or proved
by the unsworn declaration, certificate, verification, or statement, in
writing of such person which is subscribed by him, as true under penalty
of perjury, and dated, in substantially the following form:
(1) If executed without the United States: ''I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. Executed on
(date).
(Signature)''.
(2) If executed within the United States, its territories,
possessions, or commonwealths: ''I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature)''.
(Added Pub. L. 94-550, 1(a), Oct. 18, 1976, 90 Stat. 2534.)
A prior section 1746 was renumbered section 1745 of this title by act
May 24, 1949.
1621, 1623; title 25 section 399.
28 USC CHAPTER 117 -- EVIDENCE; DEPOSITIONS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1781. Transmittal of letter rogatory or request.
1782. Assistance to foreign and international tribunals and to
litigants before such tribunals.
1783. Subpoena of person in foreign country.
1784. Contempt.
(1785. Repealed.)
1964 -- Pub. L. 88-619, 8(b), 9(b), 10(b), 12(b), Oct. 3, 1964,
78 Stat. 997, 998, substituted ''Transmittal of letter rogatory or
request'' for ''Foreign witnesses'' in item 1781, ''Assistance to
foreign and international tribunals and to litigants before such
tribunals'' for ''Testimony for use in foreign countries'' in item 1782,
''person'' for ''witness'' in item 1783, and struck out item 1785
''Privilege against incrimination''.
Prior to the general unification of civil and admiralty procedure and
the recision of the Admiralty Rules on July 1, 1966, Revised Statutes
863 to 865, as amended, which related to depositions de bene esse, when
and how taken, notice, mode of taking, and transmission to court,
provided as follows:
''Sec. 863. The testimony of any witness may be taken in any civil
cause depending in a district court by deposition de bene esse, when the
witness lives at a greater distance from the place of trial than one
hundred miles, or is bound on a voyage to sea, or is about to go out of
the United States, or out of the district in which the case is to be
tried, and to a greater distance than one hundred miles from the place
of trial, before the time of trial, or when he is ancient and infirm.
The deposition may be taken before any judge of any court of the United
States, or any clerk of a district court, or any chancellor, justice, or
judge of a supreme or superior court, mayor or chief magistrate of a
city, judge of a county court or court of common pleas of any of the
United States, or any notary public, not being of counsel or attorney to
either of the parties, nor interested in the event of the cause.
Reasonable notice must first be given in writing by the party or his
attorney proposing to take such deposition, to the opposite party or his
attorney of record, as either may be nearest, which notice shall state
the name of the witness and the time and place of the taking of his
deposition; and in all cases in rem, the person having the agency or
possession of the property at the time of seizure shall be deemed the
adverse party, until a claim shall have been put in; and whenever, by
reason of the absence from the district and want of an attorney of
record or other reason, the giving of the notice herein required shall
be impracticable, it shall be lawful to take such depositions as there
shall be urgent necessity for taking, upon such notice as any judge
authorized to hold courts in such district shall think reasonable and
direct. Any person may be compelled to appear and depose as provided by
this section, in the same manner as witnesses may be compelled to appear
and testify in court.
''Sec. 864. Every person deposing as provided in the preceding
section (R.S. 863) shall be cautioned and sworn to testify the whole
truth, and carefully examined.
''His testimony shall be reduced to writing or typewriting by the
officer taking the deposition, or by some person under his personal
supervision, or by the deponent himself in the officer's presence, and
by no other person, and shall, after it has been reduced to writing or
typewriting, be subscribed by the deponent. (As amended May 23, 1900,
ch. 541, 31 Stat. 182.)
''Sec. 865. Every deposition taken under the two preceding sections
(R.S. 863, 864) shall be retained by the magistrate taking it, until
he delivers it with his own hand into the court for which it is taken;
or it shall, together with a certificate of the reasons as aforesaid of
taking it and of the notice, if any, given to the adverse party, be by
him sealed up and directed to such court, and remain under his seal
until opened in court. But unless it appears to the satisfaction of the
court that the witness is then dead, or gone out of the United States,
or to a greater distance than one hundred miles from the place where the
court is sitting, or that, by reason of age, sickness, bodily infirmity,
or imprisonment, he is unable to travel and appear at court, such
deposition shall not be used in the cause.''
R.S. 863 to 865, as amended, quoted above, were applicable to
admiralty proceedings only. Proceedings in bankruptcy and copyright are
governed by rule 26 et seq. of Federal Rules of Civil Procedure. See
also Rules of Bankruptcy Procedure set out in the Appendix to Title 11,
Bankruptcy.
Depositions and discovery, see rules 26 to 37, Appendix to this
title.
Persons before whom depositions may be taken in foreign countries,
see rule 28.
Subpoena for taking depositions, see rule 45.
Subpoena for taking depositions in criminal cases, see rule 17, Title
18, Appendix, Crimes and Criminal Procedure.
Subpoena to witness in foreign country, see rule 45, Appendix to this
title.
28 USC 1781. Transmittal of letter rogatory or request
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Department of State has power, directly, or through suitable
channels --
(1) to receive a letter rogatory issued, or request made, by a
foreign or international tribunal, to transmit it to the tribunal,
officer, or agency in the United States to whom it is addressed, and to
receive and return it after execution; and
(2) to receive a letter rogatory issued, or request made, by a
tribunal in the United States, to transmit it to the foreign or
international tribunal, officer, or agency to whom it is addressed, and
to receive and return it after execution.
(b) This section does not preclude --
(1) the transmittal of a letter rogatory or request directly from a
foreign or international tribunal to the tribunal, officer, or agency in
the United States to whom it is addressed and its return in the same
manner; or
(2) the transmittal of a letter rogatory or request directly from a
tribunal in the United States to the foreign or international tribunal,
officer, or agency to whom it is addressed and its return in the same
manner.
(June 25, 1948, ch. 646, 62 Stat. 948; Oct. 3, 1964, Pub. L.
88-619, 8(a), 78 Stat. 996.)
Based on title 28, U.S.C., 1940 ed., 653 (R.S. 875; Feb. 27, 1877,
ch. 69, 1, 19 Stat. 241; Mar. 3, 1911, ch. 231, 291, 36 Stat. 1167).
Word ''officer'' was substituted for ''commissioner'' to obviate
uncertainty as to the person to whom the letters or commissioned may be
issued.
The third sentence of section 653 of title 28, U.S.C., 1940 ed.,
providing for admission of testimony ''so taken and returned'' without
objection as to the method of return, was omitted as unnecessary.
Obviously, if the method designated by Congress is followed, it cannot
be objected to.
The last sentence of section 653 of title 26, U.S.C., 1940 ed.,
relating to letters rogatory from courts of foreign countries, is
incorporated in section 1782 of this title.
The revised section extends the provisions of section 653 of title
28, U.S.C., 1940 ed., which applied only to cases wherein the United
States was a party or was interested, so as to insure a uniform method
of taking foreign depositions in all cases.
Words ''courts of the United States'' were inserted to make certain
that the section is addressed to the Federal rather than the State
courts as obviously intended by Congress.
Changes were made in phraseology.
1964 -- Pub. L. 88-619 substituted provisions authorizing the
Department of State to transmit a letter rogatory or request by a
foreign or international tribunal, or by a tribunal in the United
States, to the tribunal, officer or agency in the United States or its
foreign or international counterpart, to whom addressed, and to return
it after execution, and providing that this section does not preclude
direct transmission of letters rogatory or requests between interested
tribunals, officers or agencies of foreign, international and of United
States origin, for provisions authorizing United States ministers or
consuls, whenever a United States court issues letters rogatory or a
commission to take a deposition, to receive the executed letters or
commissions from foreign courts or officers, endorse them with the place
and date of receipt and any change in the deposition, and transmit it to
the clerk of the issuing court in the same manner as his official
dispatches, in text and ''Transmittal of letter rogatory or request''
for ''Foreign witnesses'' in section catchline.
Persons before whom depositions may be taken in foreign countries,
see rule 28, Appendix to this title.
28 USC 1782. Assistance to foreign and international tribunals and to
litigants before such tribunals
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The district court of the district in which a person resides or
is found may order him to give his testimony or statement or to produce
a document or other thing for use in a proceeding in a foreign or
international tribunal. The order may be made pursuant to a letter
rogatory issued, or request made, by a foreign or international tribunal
or upon the application of any interested person and may direct that the
testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court. By virtue of his
appointment, the person appointed has power to administer any necessary
oath and take the testimony or statement. The order may prescribe the
practice and procedure, which may be in whole or part the practice and
procedure of the foreign country or the international tribunal, for
taking the testimony or statement or producing the document or other
thing. To the extent that the order does not prescribe otherwise, the
testimony or statement shall be taken, and the document or other thing
produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or
to produce a document or other thing in violation of any legally
applicable privilege.
(b) This chapter does not preclude a person within the United States
from voluntarily giving his testimony or statement, or producing a
document or other thing, for use in a proceeding in a foreign or
international tribunal before any person and in any manner acceptable to
him.
(June 25, 1948, ch. 646, 62 Stat. 949; May 24, 1949, ch. 139, 93,
63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, 9(a), 78 Stat. 997.)
Based on title 28, U.S.C., 1940 ed., 649-653, 701, 703, 704 (R.S.
871-875, 4071, 4073, 4074; Feb. 27, 1877, ch. 69, 1, 19 Stat. 241;
Mar. 3, 1911, ch. 231, 291, 36 Stat. 1167; June 25, 1936, ch. 804, 49
Stat. 1921).
Sections 649-652 of title 28, U.S.C., 1940 ed., applied only to the
District of Columbia and contained detailed provisions for issuing
subpoenas, payment of witness fees and procedure for ordering and taking
depositions. These matters are all covered by Federal Rules of Civil
Procedure, Rules 26-32.
Provisions in sections 649-652 of title 28, U.S.C., 1940 ed.,
relating to the taking of testimony in the District of Columbia for use
in State and Territorial courts were omitted as covered by section
14-204 of the District of Columbia Code, 1940 ed., and Rules 26 et seq.,
and 46 of the Federal Rules of Civil Procedure.
Only the last sentence of section 653 of title 28, U.S.C., 1940 ed.,
is included in this revised section. The remaining provisions relating
to depositions of witnesses in foreign countries form the basis of
section 1781 of this title.
Sections 701, 703, and 704 of title 28, U.S.C., 1940 ed., were
limited to ''suits for the recovery of money or property depending in
any court in any foreign country with which the United States are at
peace, and in which the government of such foreign country shall be a
party or shall have an interest.''
The revised section omits this limitation in view of the general
application of the last sentence of section 653 of title 28, U.S.C.,
1940 ed., consolidated herein. The improvement of communications and
the expected growth of foreign commerce will inevitably increase
litigation involving witnesses separated by wide distances.
Therefore the revised section is made simple and clear to provide a
flexible procedure for the taking of depositions. The ample safeguards
of the Federal Rules of Civil Procedure, Rules 26-32, will prevent
misuse of this section.
The provisions of section 703 of title 28, U.S.C., 1940 ed., for
punishment of disobedience to subpoena or refusal to answer is covered
by Rule 37(b)(1) of Federal Rules or Civil Procedure.
The provisions of section 704 of title 28, U.S.C., 1940 ed., with
respect to fees and mileage of witnesses are covered by Rule 45(c) of
Federal Rules of Civil Procedure.
Changes were made in phraseology.
This amendment corrects restrictive language in section 1782 of title
28, U.S.C., in conformity with original law and permits depositions in
any judicial proceeding without regard to whether the deponent is
''residing'' in the district or only sojourning there.
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
1964 -- Pub. L. 88-619 substituted provisions which empowered
district courts to order residents to give testimony or to produce
documents for use in a foreign or international tribunal, pursuant to a
letter rogatory, or request, of a foreign or international tribunal or
upon application of any interested person, and to direct that the
evidence be presented before a person appointed by the court, provided
that such person may administer oaths and take testimony, that the
evidence be taken in accordance with the Federal Rules of Civil
Procedure unless the order prescribes using the procedure of the foreign
or international tribunal, that a person may not be compelled to give
legally privileged evidence, and that this chapter doesn't preclude a
person from voluntarily giving evidence for use in a foreign or
international tribunal, for provisions permitting depositions of
witnesses within the United States for use in any court in a foreign
country with which the United States was at peace to be taken before a
person authorized to administer oaths designated by the district court
of the district where the witness resides or is found, and directing
that the procedure used be that generally used in courts of the United
States, in text, and ''Assistance to foreign and international tribunals
and to litigants before such tribunals'' for ''Testimony for use in
foreign countries'' in section catchline.
1949 -- Act May 24, 1949, struck out ''residing'' after ''witness'',
and substituted ''judicial proceeding'' for ''civil action'' after ''to
be used in any''.
Fees of witnesses in the United States courts, see section 1821 of
this title.
Letters rogatory from United States courts, see section 1781 of this
title.
28 USC 1783. Subpoena of person in foreign country
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A court of the United States may order the issuance of a subpoena
requiring the appearance as a witness before it, or before a person or
body designated by it, of a national or resident of the United States
who is in a foreign country, or requiring the production of a specified
document or other thing by him, if the court finds, that particular
testimony or the production of the document or other thing by him is
necessary in the interest of justice, and, in other than a criminal
action or proceeding, if the court finds, in addition, that it is not
possible to obtain his testimony in admissible form without his personal
appearance or to obtain the production of the document or other thing in
any other manner.
(b) The subpoena shall designate the time and place for the
appearance or for the production of the document or other thing.
Service of the subpoena and any order to show cause, rule, judgment, or
decree authorized by this section or by section 1784 of this title shall
be effected in accordance with the provisions of the Federal Rules of
Civil Procedure relating to service of process on a person in a foreign
country. The person serving the subpoena shall tender to the person to
whom the subpoena is addressed his estimated necessary travel and
attendance expenses, the amount of which shall be determined by the
court and stated in the order directing the issuance of the subpoena.
(June 25, 1948, ch. 646, 62 Stat. 949; Oct. 3, 1964, Pub. L.
88-619, 10(a), 78 Stat. 997.)
Based on title 28, U.S.C., 1940 ed., 711, 712, and 713 (July 3,
1926, ch. 762, 1-3, 44 Stat. 835).
Word ''resident'' was substituted for ''or domiciled therein.'' (See
reviser's note under section 1391 of this title.)
Words ''or any assistant or district attorney acting under him,''
after ''Attorney General'' in section 712 of title 28, U.S.C., 1940 ed.,
were omitted, since, in any event, the approval of the Attorney General
would be required. (See section 507 of this title.)
Changes were made in phraseology.
The Federal Rules of Civil Procedure, referred to in subsec. (b),
are set out in the Appendix to this title.
1964 -- Pub. L. 88-619 amended section generally, and among other
changes, authorized a United States court to issue a subpoena to require
the appearance of a witness before it or a person or body designated by
it, and the production of documents or other tangible evidence, when
necessary in the interest of justice, and in other than criminal actions
or proceedings, if the court finds, in addition, that its not possible
to obtain admissible evidence in any other manner, and provided that the
procedure relating to the subpoena shall be in accordance with the
Federal Rules of Civil Procedure, and struck out provisions which
authorized the issuance of a subpoena when a personally notified
individual failed to appear to testify pursuant to letter rogatory, or
failed to answer any question he would have to answer in any examination
before the court or if such person was beyond United States jurisdiction
and the testimony was desired by the Attorney General in a criminal
proceeding, provided that the subpoena issue to any United States
consul, that the consul make personal service of the subpoena and of any
order, rule, judgment or decree, that he make return of the subpoena and
tender expenses to the witness, and substituted ''person'' for
''witness'' in section catchline.
Civil case, subpoena of witness in foreign country, see Rule 45,
Appendix to this title.
Criminal case, subpoena of witness in foreign country, see Rule 17
Title 18, Appendix, Crimes and Criminal Procedure.
Subpoena to witness in foreign country, see rule 45, Appendix to this
title.
28 USC 1784. Contempt
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The court of the United States which has issued a subpoena served
in a foreign country may order the person who has failed to appear or
who has failed to produce a document or other thing as directed therein
to show cause before it at a designated time why he should not be
punished for contempt.
(b) The court, in the order to show cause, may direct that any of the
person's property within the United States be levied upon or seized, in
the manner provided by law or court rules governing levy or seizure
under execution, and held to satisfy any judgment that may be rendered
against him pursuant to subsection (d) of this section if adequate
security, in such amount as the court may direct in the order, be given
for any damage that he might suffer should he not be found in contempt.
Security under this subsection may not be required of the United States.
(c) A copy of the order to show cause shall be served on the person
in accordance with section 1783(b) of this title.
(d) On the return day of the order to show cause or any later day to
which the hearing may be continued, proof shall be taken. If the person
is found in contempt, the court, notwithstanding any limitation upon its
power generally to punish for contempt, may fine him not more than
$100,000 and direct that the fine and costs of the proceedings be
satisfied by a sale of the property levied upon or seized, conducted
upon the notice required and in the manner provided for sales upon
execution.
(June 25, 1948, ch. 646, 62 Stat. 949; Oct. 3, 1964, Pub. L.
88-619, 11, 78 Stat. 998.)
Based on title 28, U.S.C., 1940 ed., 714, 715, 716, 717, and 718
(July 3, 1926, ch. 762, 4-8, 44 Stat. 836).
Sections 714-718 of title 28, U.S.C., 1940 ed., were consolidated,
since all relate to contempt by a witness served personally in a foreign
country.
The last sentence omits specific reference to section 118 of title
28, U.S.C., 1940 ed., now incorporated in section 1655 of this title,
which provides for the method of opening judgments rendered on
publication of process. (See also Rule 60(b) of the Federal Rules of
Civil Procedure.)
Changes were made in phraseology.
1964 -- Pub. L. 88-619 amended section generally, and among other
changes, authorized the court to order a person to show cause for
failing to produce a document or other thing in subsec. (a), provided
that a copy of the order to show cause shall be served in accordance
with section 1783(b) of this title, and struck out provisions requiring
the marshal making levy or seizure to forward to any United States
consul in the country where the witness may be, a copy of the order and
a request for its personal service, and to cause publication of the
order in the district where the issuing court sits, in subsec. (c), and
struck out provisions in subsec. (d) permitting any judgment rendered
upon service by publication only to be opened for answer within one
year.
Civil cases, contempt for failure to obey subpoena, see Rule 45,
Appendix to this title.
Criminal cases, contempt for failure to obey subpoena, see Rule 17,
Title 18, Appendix, Crimes and Criminal Procedure.
28 USC ( 1785. Repealed. Pub. L. 88-619, 12(a), Oct. 3, 1964, 78
Stat. 998)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, act June 25, 1948, ch. 646, 62 Stat. 950, provided a
privilege against self-incrimination on examination under letters
rogatory. See section 1782(a) of this title.
28 USC CHAPTER 119 -- EVIDENCE; WITNESSES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1821. Per diem and mileage generally; subsistence.
1822. Competency of interested persons; share of penalties payable.
(1823. Repealed.)
1824. Mileage fees under summons as both witness and juror.
1825. Payment of fees.
1826. Recalcitrant witnesses.
1827. Interpreters in courts of the United States.
1828. Special interpretation services.
1978 -- Pub. L. 95-539, 2(b), Oct. 28, 1978, 92 Stat. 2042, added
items 1827 and 1828.
1970 -- Pub. L. 91-563, 5(b), Dec. 19, 1970, 84 Stat. 1478,
struck out item 1823 ''United States officers and employees''.
Pub. L. 91-452, title III, 301(b), Oct. 15, 1970, 84 Stat. 932,
added item 1826.
Civil cases --
Evidence, see Rules of Evidence for United States Courts and
Magistrates, Appendix to this title.
Subpoena for attendance of witnesses, see Rule 45.
Subpoena for attendance of witnesses, see Rule 17, Title 18,
Appendix, Crimes and Criminal Procedure.
Evidence, see Rule 26, Title 18, Appendix, Crimes and Criminal
Procedure, and Rules of Evidence for United States Courts and
Magistrates, Appendix to this title.
Expert witnesses, see Art. VII, Rules of Evidence for United States
Courts and Magistrates.
Criminal cases, witnesses and evidence, see sections 3481 et seq. of
Title 18, Crimes and Criminal Procedure.
28 USC 1821. Per diem and mileage generally; subsistence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) Except as otherwise provided by law, a witness in attendance
at any court of the United States, or before a United States Magistrate,
or before any person authorized to take his deposition pursuant to any
rule or order of a court of the United States, shall be paid the fees
and allowances provided by this section.
(2) As used in this section, the term ''court of the United States''
includes, in addition to the courts listed in section 451 of this title,
any court created by Act of Congress in a territory which is invested
with any jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $40 per day for each
day's attendance. A witness shall also be paid the attendance fee for
the time necessarily occupied in going to and returning from the place
of attendance at the beginning and end of such attendance or at any time
during such attendance.
(c)(1) A witness who travels by common carrier shall be paid for the
actual expenses of travel on the basis of the means of transportation
reasonably utilized and the distance necessarily traveled to and from
such witness's residence by the shortest practical route in going to and
returning from the place of attendance. Such a witness shall utilize a
common carrier at the most economical rate reasonably available. A
receipt or other evidence of actual cost shall be furnished.
(2) A travel allowance equal to the mileage allowance which the
Administrator of General Services has prescribed, pursuant to section
5704 of title 5, for official travel of employees of the Federal
Government shall be paid to each witness who travels by privately owned
vehicle. Computation of mileage under this paragraph shall be made on
the basis of a uniformed table of distances adopted by the Administrator
of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and ferries,
taxicab fares between places of lodging and carrier terminals, and
parking fees (upon presentation of a valid parking receipt), shall be
paid in full to a witness incurring such expenses.
(4) All normal travel expenses within and outside the judicial
district shall be taxable as costs pursuant to section 1920 of this
title.
(d)(1) A subsistence allowance shall be paid to a witness when an
overnight stay is required at the place of attendance because such place
is so far removed from the residence of such witness as to prohibit
return thereto from day to day.
(2) A subsistence allowance for a witness shall be paid in an amount
not to exceed the maximum per diem allowance prescribed by the
Administrator of General Services, pursuant to section 5702(a) of title
5, for official travel in the area of attendance by employees of the
Federal Government.
(3) A subsistence allowance for a witness attending in an area
designated by the Administrator of General Services as a high-cost area
shall be paid in an amount not to exceed the maximum actual subsistence
allowance prescribed by the Administrator, pursuant to section
5702(c)(B) /1/ of title 5, for official travel in such area by employees
of the Federal Government.
(4) When a witness is detained pursuant to section 3144 of title 18
for want of security for his appearance, he shall be entitled for each
day of detention when not in attendance at court, in addition to his
subsistence, to the daily attendance fee provided by subsection (b) of
this section.
(e) An alien who has been paroled into the United States for
prosecution, pursuant to section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)), or an alien who either has
admitted belonging to a class of aliens who are deportable or has been
determined pursuant to section 242(b) of such Act (8 U.S.C. 1252(b)) to
be deportable, shall be ineligible to receive the fees or allowances
provided by this section.
(f) Any witness who is incarcerated at the time that his or her
testimony is given (except for a witness to whom the provisions of
section 3144 of title 18 apply) may not receive fees or allowances under
this section, regardless of whether such a witness is incarcerated at
the time he or she makes a claim for fees or allowances under this
section.
(June 25, 1948, ch. 646, 62 Stat. 950; May 10, 1949, ch. 96, 63
Stat. 65; May 24, 1949, ch. 139, 94, 63 Stat. 103; Oct. 31, 1951, ch.
655, 51(a), 65 Stat. 727; Sept. 3, 1954, ch. 1263, 45, 68 Stat.
1242; Aug. 1, 1956, ch. 826, 70 Stat. 798; Mar. 27, 1968, Pub. L.
90-274, 102(b), 82 Stat. 62; Oct. 27, 1978, Pub. L. 95-535, 1, 92
Stat. 2033; Dec. 1, 1990, Pub. L. 101-650, title III, 314(a), 104
Stat. 5115; Oct. 14, 1992, Pub. L. 102-417, 2(a)-(c), 106 Stat.
2138.)
Based on title 28, U.S.C., 1940 ed., 600c, section 1115(a) of title
26, U.S.C., 1940, Internal Revenue Code, and section 11-1514 of the D.C.
Code, 1940 ed. (R.S. 823, 848; Apr. 26, 1926, ch. 183, 3, 44 Stat.
324; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49
Stat. 1921; Feb. 10, 1939, ch. 2, 1115(a), 53 Stat. 160; Dec. 24,
1942, ch. 825, 1, 56 Stat. 1088.
Section consolidates part of section 600c of title 28, U.S.C., 1940
ed., with section 1115(a) of title 26, U.S.C., 1940 ed., and section
11-1514 of the D.C. Code, 1940 ed.
Words ''or person taking his deposition pursuant to any order of a
court of the United States'' were added to cover that circumstance.
Reference in section 600c of title 28, U.S.C., 1940 ed., and section
11-1514 of the D.C. Code, 1940 ed., to the district courts of Hawaii,
Puerto Rico and the District of Columbia, were omitted as covered by the
words ''any court of the United States''.
Provision of section 600c of title 28, U.S.C., 1940 ed., for payment
of witnesses is incorporated in section 1825 of this title.
Changes were made in phraseology.
By Senate amendments, all provisions relating to the Tax Court were
eliminated. Therefore, as finally enacted, section 1115(a) of Title 26,
U.S.C., Internal Revenue Code, was not one of the sources of this
section. However, no change in the text of this section was necessary.
See 80th Congress Senate Report No. 1559.
This section restores certain provisions of the original statute,
R.S. 848, which were inadvertently omitted from revised title 28,
U.S.C., 1821.
Subsection (c) of section 5702 of title 5, referred to in subsec.
(d)(3), which related to conditions under which an employee could be
reimbursed for actual and necessary expenses of official travel when the
maximum per diem allowance was less than these expenses, was repealed,
and subsec. (e) of section 5702 of title 5, was redesignated as subsec.
(c), by Pub. L. 99-234, title I, 102, Jan. 2, 1986, 99 Stat. 1756.
1992 -- Subsec. (d)(1). Pub. L. 102-417, 2(b), struck out ''(other
than a witness who is incarcerated)'' after ''paid to a witness''.
Subsec. (d)(4). Pub. L. 102-417, 2(c), substituted ''3144'' for
''3149''.
Subsec. (f). Pub. L. 102-417, 2(a), added subsec. (f).
1990 -- Subsec. (b). Pub. L. 101-650 substituted ''$40'' for
''$30''.
1978 -- Pub. L. 95-535 increased the daily witness attendance fee
from $20 to $30, substituted provisions relating to compensation for the
actual expenses of travel based on the form of transportation used, to a
travel allowance equal to the mileage allowance under section 5704 of
Title 5 for a witness travelling by privately owned vehicle, and to
tolls, taxi fares, and parking fees for provisions that a witness would
receive 10 cents per mile and that mileage computation would be based on
a uniform table of distances regardless of the mode of travel employed,
provisions relating to a subsistence allowance in amounts not to exceed
those which Government employees receive for official travel for
provisions that such subsistence allowance would be $16 per day,
provisions relating to a witness detained for want of security for his
appearance being entitled to the daily attendance fee in addition to
subsistence for provisions that such a witness would be entitled to $1
per day in addition to his subsistence, and inserted provisions defining
''court of the United States'' and relating to travel expenses being
taxable as costs and to certain aliens being ineligible to receive fees
and allowances.
1968 -- Pub. L. 90-274 increased the per diem allowance from $4 to
$20, increased the mileage allowance from 8 cents per mile to 10 cents
per mile, increased the daily subsistence allowance from $8 to $16, and
directed that witnesses in the district courts for the districts of the
Canal Zone, Guam, and the Virgin Islands receive the same fees and
allowances provided in this section for witnesses in other district
courts of the United States.
1956 -- Act Aug. 1, 1956, substituted '', or before any person
authorized to take his deposition pursuant to any rule or order'' for
''or person taking his disposition pursuant to any order'', increased
the payments for mileage from 7 to 8 cents per mile and subsistence
allowance from $5 to $8 per day, and authorized the computation of
mileage on the basis of a uniform table of distances adopted by the
Attorney General.
1954 -- Act Sept. 3, 1954, struck out language which had restricted
section's applicability to those depositions taken pursuant to order of
the court.
1951 -- Act Oct. 31, 1951, substituted ''residences'' for
''residence'' in that part of second sentence which precedes first
proviso.
1949 -- Act May 24, 1949, inserted last par.
Act May 10, 1949, increased witnesses' fees from $2 to $4 per day,
mileage allowance from 5 cents to 7 cents a mile, subsistence allowance
from $3 to $5 per day, and inserted provisos.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Section 2(d) of Pub. L. 102-417 provided that: ''The amendments
made by this section (amending this section) shall be effective on and
after the date of the enactment of this act (Oct. 14, 1992) and shall
apply to any witness who testified before such date and has not received
any fee or allowance under section 1821 of title 28, United States Code,
relating to such testimony.''
Section 2 of Pub. L. 95-535 provided that: ''The amendments made by
this Act (amending this section) shall take effect on October 1, 1978,
or on the date of enactment (Oct. 27, 1978), whichever occurs later.''
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
Pub. L. 102-395, title I, 108, Oct. 6, 1992, 106 Stat. 1841,
provided that: ''Notwithstanding 28 U.S.C. 1821, no funds appropriated
to the Department of Justice in fiscal year 1993 or any prior fiscal
year, or any other funds available from the Treasury of the United
States, shall be obligated or expended to pay a fact witness fee to a
person who is incarcerated testifying as a fact witness in a court of
the United States, as defined in 28 U.S.C. 1821(a)(2).''
Similar provisions were contained in the following prior
appropriation acts:
Pub. L. 102-140, title I, 110, Oct. 28, 1991, 105 Stat. 795.
Pub. L. 102-27, title II, 102, Apr. 10, 1991, 105 Stat. 136.
Subpoena, see rule 45, Appendix to this title.
/1/ See References in Text note below.
28 USC 1822. Competency of interested persons; share of penalties
payable
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any person interested in a share of any fine, penalty or forfeiture
incurred under any Act of Congress, may be examined as a witness in any
proceeding for the recovery of such fine, penalty or forfeiture by any
party thereto. Such examination shall not deprive the witness of his
share.
(June 25, 1948, ch. 646, 62 Stat. 950.)
Based on section 644 of title 18, U.S.C., 1940 ed., Criminal Code and
Criminal Procedure, R.S. 5295.
Changes were made in phraseology.
28 USC ( 1823. Repealed. Pub. L. 91-563, 5(a), Dec. 19, 1970, 84
Stat. 1478)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, acts June 25, 1948, ch. 646, 62 Stat. 950; May 24, 1949,
ch. 139, 95, 63 Stat. 103; Oct. 5, 1949, ch. 601, 63 Stat. 704;
July 7, 1952, ch. 581, 66 Stat. 439; July 28, 1955, ch. 424, 3, 69
Stat. 394, related to payment of witnesses fees to officers and
employees of the United States. See sections 5515, 5537, 5751, and 6322
of Title 5, Government Organization and Employees.
28 USC 1824. Mileage fees under summons as both witness and juror
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
No constructive or double mileage fees shall be allowed by reason of
any person being summoned both as a witness and a juror.
(June 25, 1948, ch. 646, 62 Stat. 951.)
Based on title 28, U.S.C., 1940 ed., 602 (May 27, 1908, ch. 200, 1,
35 Stat. 377).
Words ''or as a witness in two or more cases pending in the same
court and triable at the same term thereof'' were omitted as covered by
section 1821 of this title.
Changes were made in phraseology.
Subpoena, see rule 45, Appendix to this title.
28 USC 1825. Payment of fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In any case in which the United States or an officer or agency of
the United States is a party, the United States marshal for the district
shall pay all fees of witnesses on the certificate of the United States
attorney or assistant United States attorney, and in the proceedings
before a United States magistrate, on the certificate of such
magistrate, except that any fees of defense witnesses, other than
experts, appearing pursuant to subpoenas issued upon approval of the
court, shall be paid by the United States marshal for the district --
(1) on the certificate of a Federal public defender or assistant
Federal public defender, in a criminal case in which the defendant is
represented by such Federal public defender or assistant Federal public
defender, and
(2) on the certificate of the clerk of the court upon the affidavit
of such witnesses' attendance given by other counsel appointed pursuant
to section 3006A of title 18, in a criminal case in which a defendant is
represented by such other counsel.
(b) In proceedings in forma pauperis for a writ of habeas corpus, and
in proceedings in forma pauperis under section 2255 of this title, the
United States marshal for the district shall pay, on the certificate of
the district judge, all fees of witnesses for the party authorized to
proceed in forma pauperis, except that any fees of witnesses for such
party, other than experts, appearing pursuant to subpoenas issued upon
approval of the court, shall be paid by the United States marshal for
the district --
(1) on the certificate of a Federal public defender or assistant
Federal public defender, in any such proceedings in which a party is
represented by such Federal public defender or assistant Federal public
defender, and
(2) on the certificate of the clerk of the court upon the affidavit
of such witnesses' attendance given by other counsel appointed pursuant
to section 3006A of title 18, in any such proceedings in which a party
is represented by such other counsel.
(c) Fees and mileage need not be tendered to a witness upon service
of a subpoena issued on behalf of the United States or an officer or
agency of the United States, upon service of a subpoena issued on behalf
of a defendant represented by a Federal public defender, assistant
Federal public defender, or other attorney appointed pursuant to section
3006A of title 18, or upon service of a subpoena issued on behalf of a
party authorized to proceed in forma pauperis, if the payment of such
fees and mileage is to be made by the United States marshal under this
section.
(June 25, 1948, ch. 646, 62 Stat. 951; Sept. 2, 1965, Pub. L.
89-162, 79 Stat. 618; Nov. 14, 1986, Pub. L. 99-651, title I, 104, 100
Stat. 3645.)
Based on title 28, U.S.C., 1940 ed., 600c, 608 (R.S. 236, 823,
848, 855; June 10, 1921, ch. 18, 305, 42 Stat. 24; Apr. 26, 1926, ch.
183, 3, 44 Stat. 324; May 17, 1932, ch. 190, 47 Stat. 158; June 25,
1936, ch. 804, 49 Stat. 1921; Oct. 13, 1941, ch. 431, 2, 55 Stat. 736;
Dec. 24, 1942, ch. 825, 1, 56 Stat. 1088).
Section consolidates parts of sections 600c and 608 of title 28,
U.S.C., 1940 ed., relating to payment of witnesses. Other provisions of
such sections are incorporated in sections 1821 and 1871 of this title.
Provisions in sections 600c and 608 of title 28, U.S.C., 1940 ed.,
for payment or certification on order of court were omitted as
unnecessary and inappropriate on recommendation of the Judicial
Conference Committee on Revision of the Judicial Code.
Words in section 608 of title 28, U.S.C., 1940 ed., ''to which they
appear to be entitled on the certificate of attendance'' following the
words ''all fees'' and the concluding phrase ''which sum shall be
allowed the marshal in the General Accounting Office in his accounts
were omitted as unnecessary.''
The second paragraph is new. It conforms to Rule 45(e) of the
Federal Rules of Civil Procedure but is inconsistent with Rule 17(d) of
the Federal Rules of Criminal Procedure and supersedes that rule as to
Federal criminal cases. The Department of Justice suggests that Rule
17(d) is unworkable. To attempt compliance each deputy marshal serving
process must carry, on the average, $500 in cash on trips to serve
process.
The marshal must advance the money from his personal funds. The
Comptroller General has not been able to set up any procedure to make it
feasible to advance fees to Government witnesses.
If a witness is served but fails or refuses to appear, the marshal is
out of pocket the money advanced and has no recourse. In the
exceptional cases of real necessity, the marshal supplies transportation
to an indigent witness under established regulations which protect the
disbursement.
Changes were made in phraseology.
1986 -- Pub. L. 99-651 amended section generally. Prior to
amendment, section read as follows:
''In any case wherein the United States or an officer or agency
thereof, is a party, the United States marshal for the district shall
pay all fees of witnesses on the certificate of the United States
Attorney or Assistant United States Attorney, and in the proceedings
before a United States Commissioner, on the certificate of such
commissioner.
''In all proceedings, in forma pauperis, for a writ of habeas corpus
or in proceedings under section 2255 of this title, the United States
marshal for the district shall pay all fees of witnesses for the party
authorized to proceed in forma pauperis, on the certificate of the
district judge.
''Fees and mileage need not be tendered to the witness upon service
of a subpena issued in behalf of the United States or an officer or
agency thereof, or upon service of a subpena issued on behalf of a
party, authorized to proceed in forma pauperis, where the payment
thereof is to be made by the United States marshal as authorized in this
section.''
1965 -- Pub. L. 89-162 inserted provisions that, in all proceedings
in forma pauperis, for a writ of habeas corpus, or in proceedings under
section 2255 of this title, the United States marshal for the district
shall pay all fees of witnesses for the party authorized to proceed in
forma pauperis on the certificate of the district judge and that fees
and mileage need not be tendered to the witness upon service of a
subpena issued on behalf of a party authorized to proceed in forma
pauperis where the payment thereof is to be made by the United States
marshal as authorized in this section.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Amendment by Pub. L. 99-651 effective 120 days after Nov. 14, 1986,
see section 105 of Pub. L. 99-651, set out as a note under section
3006A of Title 18, Crimes and Criminal Procedure.
Accounts of marshal, see section 567 of this title.
28 USC 1826. Recalcitrant witnesses
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Whenever a witness in any proceeding before or ancillary to any
court or grand jury of the United States refuses without just cause
shown to comply with an order of the court to testify or provide other
information, including any book, paper, document, record, recording or
other material, the court, upon such refusal, or when such refusal is
duly brought to its attention, may summarily order his confinement at a
suitable place until such time as the witness is willing to give such
testimony or provide such information. No period of such confinement
shall exceed the life of --
(1) the court proceeding, or
(2) the term of the grand jury, including extensions,
before which such refusal to comply with the court order occurred,
but in no event shall such confinement exceed eighteen months.
(b) No person confined pursuant to subsection (a) of this section
shall be admitted to bail pending the determination of an appeal taken
by him from the order for his confinement if it appears that the appeal
is frivolous or taken for delay. Any appeal from an order of
confinement under this section shall be disposed of as soon as
practicable, but not later than thirty days from the filing of such
appeal.
(c) Whoever escapes or attempts to escape from the custody of any
facility or from any place in which or to which he is confined pursuant
to this section or section 4243 of title 18, or whoever rescues or
attempts to rescue or instigates, aids, or assists the escape or attempt
to escape of such a person, shall be subject to imprisonment for not
more than three years, or a fine of not more than $10,000, or both.
(Added Pub. L. 91-452, title III, 301(a), Oct. 15, 1970, 84 Stat.
932; amended Pub. L. 98-473, title II, 1013, Oct. 12, 1984, 98 Stat.
2142.)
1984 -- Subsec. (c). Pub. L. 98-473 added subsec. (c).
28 USC 1827. Interpreters in courts of the United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Director of the Administrative Office of the United States
Courts shall establish a program to facilitate the use of certified and
otherwise qualified interpreters in judicial proceedings instituted by
the United States.
(b)(1) The Director shall prescribe, determine, and certify the
qualifications of persons who may serve as certified interpreters, when
the Director considers certification of interpreters to be merited, for
the hearing impaired (whether or not also speech impaired) and persons
who speak only or primarily a language other than the English language,
in judicial proceedings instituted by the United States. The Director
may certify interpreters for any language if the Director determines
that there is a need for certified interpreters in that language. Upon
the request of the Judicial Conference of the United States for
certified interpreters in a language, the Director shall certify
interpreters in that language. Upon such a request from the judicial
council of a circuit and the approval of the Judicial Conference, the
Director shall certify interpreters for that circuit in the language
requested. The judicial council of a circuit shall identify and
evaluate the needs of the districts within a circuit. The Director
shall certify interpreters based on the results of criterion-referenced
performance examinations. The Director shall issue regulations to carry
out this paragraph within 1 year after the date of the enactment of the
Judicial Improvements and Access to Justice Act.
(2) Only in a case in which no certified interpreter is reasonably
available as provided in subsection (d) of this section, including a
case in which certification of interpreters is not provided under
paragraph (1) in a particular language, may the services of otherwise
qualified interpreters be used. The Director shall provide guidelines
to the courts for the selection of otherwise qualified interpreters, in
order to ensure that the highest standards of accuracy are maintained in
all judicial proceedings subject to the provisions of this chapter.
(3) The Director shall maintain a current master list of all
certified interpreters and otherwise qualified interpreters and shall
report periodically on the use and performance of both certified and
otherwise qualified interpreters in judicial proceedings instituted by
the United States and on the languages for which interpreters have been
certified. The Director shall prescribe, subject to periodic review, a
schedule of reasonable fees for services rendered by interpreters,
certified or otherwise, used in proceedings instituted by the United
States, and in doing so shall consider the prevailing rate of
compensation for comparable service in other governmental entities.
(c)(1) Each United States district court shall maintain on file in
the office of the clerk, and each United States attorney shall maintain
on file, a list of all persons who have been certified as interpreters
by the Director in accordance with subsection (b) of this section. The
clerk shall make the list of certified interpreters for judicial
proceeding available upon request.
(2) The clerk of the court, or other court employee designated by the
chief judge, shall be responsible for securing the services of certified
interpreters and otherwise qualified interpreters required for
proceedings initiated by the United States, except that the United
States attorney is responsible for securing the services of such
interpreters for governmental witnesses.
(d)(1) The presiding judicial officer, with the assistance of the
Director of the Administrative Office of the United States Courts, shall
utilize the services of the most available certified interpreter, or
when no certified interpreter is reasonably available, as determined by
the presiding judicial officer, the services of an otherwise qualified
interpreter, in judicial proceedings instituted by the United States, if
the presiding judicial officer determines on such officer's own motion
or on the motion of a party that such party (including a defendant in a
criminal case), or a witness who may present testimony in such judicial
proceedings --
(A) speaks only or primarily a language other than the English
language; or
(B) suffers from a hearing impairment (whether or not suffering also
from a speech impairment)
so as to inhibit such party's comprehension of the proceedings or
communication with counsel or the presiding judicial officer, or so as
to inhibit such witness' comprehension of questions and the presentation
of such testimony.
(2) Upon the motion of a party, the presiding judicial officer shall
determine whether to require the electronic sound recording of a
judicial proceeding in which an interpreter is used under this section.
In making this determination, the presiding judicial officer shall
consider, among other things, the qualifications of the interpreter and
prior experience in interpretation of court proceedings; whether the
language to be interpreted is not one of the languages for which the
Director has certified interpreters, and the complexity or length of the
proceeding. In a grand jury proceeding, upon the motion of the accused,
the presiding judicial officer shall require the electronic sound
recording of the portion of the proceeding in which an interpreter is
used.
(e)(1) If any interpreter is unable to communicate effectively with
the presiding judicial officer, the United States attorney, a party
(including a defendant in a criminal case), or a witness, the presiding
judicial officer shall dismiss such interpreter and obtain the services
of another interpreter in accordance with this section.
(2) In any judicial proceedings instituted by the United States, if
the presiding judicial officer does not appoint an interpreter under
subsection (d) of this section, an individual requiring the services of
an interpreter may seek assistance of the clerk of court or the Director
of the Administrative Office of the United States Courts in obtaining
the assistance of a certified interpreter.
(f)(1) Any individual other than a witness who is entitled to
interpretation under subsection (d) of this section may waive such
interpretation in whole or in part. Such a waiver shall be effective
only if approved by the presiding judicial officer and made expressly by
such individual on the record after opportunity to consult with counsel
and after the presiding judicial officer has explained to such
individual, utilizing the services of the most available certified
interpreter, or when no certified interpreter is reasonably available,
as determined by the presiding judicial officer, the services of an
otherwise competent interpreter, the nature and effect of the waiver.
(2) An individual who waives under paragraph (1) of this subsection
the right to an interpreter may utilize the services of a noncertified
interpreter of such individual's choice whose fees, expenses, and costs
shall be paid in the manner provided for the payment of such fees,
expenses, and costs of an interpreter appointed under subsection (d) of
this section.
(g)(1) There are authorized to be appropriated to the Federal
judiciary, and to be paid by the Director of the Administrative Office
of the United States Courts, such sums as may be necessary to establish
a program to facilitate the use of certified and otherwise qualified
interpreters, and otherwise fulfill the provisions of this section and
the Judicial Improvements and Access to Justice Act, except as provided
in paragraph (3).
(2) Implementation of the provisions of this section is contingent
upon the availability of appropriated funds to carry out the purposes of
this section.
(3) Such salaries, fees, expenses, and costs that are incurred with
respect to Government witnesses (including for grand jury proceedings)
shall, unless direction is made under paragraph (4), be paid by the
Attorney General from sums appropriated to the Department of Justice.
(4) Upon the request of any person in any action for which
interpreting services established pursuant to subsection (d) are not
otherwise provided, the clerk of the court, or other court employee
designated by the chief judge, upon the request of the presiding
judicial officer, shall, where possible, make such services available to
that person on a cost-reimbursable basis, but the judicial officer may
also require the prepayment of the estimated expenses of providing such
services.
(5) Any moneys collected under this subsection may be used to
reimburse the appropriations obligated and disbursed in payment for such
services.
(h) The presiding judicial officer shall approve the compensation and
expenses payable to interpreters, pursuant to the schedule of fees
prescribed by the Director under subsection (b)(3).
(i) The term ''presiding judicial officer'' as used in this section
refers to any judge of a United States district court, including a
bankruptcy judge, a United States magistrate, and in the case of grand
jury proceedings conducted under the auspices of the United States
attorney, a United States attorney.
(j) The term ''judicial proceedings instituted by the United States''
as used in this section refers to all proceedings, whether criminal or
civil, including pretrial and grand jury proceedings (as well as
proceedings upon a petition for a writ of habeas corpus initiated in the
name of the United States by a relator) conducted in, or pursuant to the
lawful authority and jurisdiction of a United States district court.
The term ''United States district court'' as used in this subsection
includes any court which is created by an Act of Congress in a territory
and is invested with any jurisdiction of a district court established by
chapter 5 of this title.
(k) The interpretation provided by certified or otherwise qualified
interpreters pursuant to this section shall be in the simultaneous mode
for any party to a judicial proceeding instituted by the United States
and in the consecutive mode for witnesses, except that the presiding
judicial officer, sua sponte or on the motion of a party, may authorize
a simultaneous, or consecutive interpretation when such officer
determines after a hearing on the record that such interpretation will
aid in the efficient administration of justice. The presiding judicial
officer, on such officer's motion or on the motion of a party, may order
that special interpretation services as authorized in section 1828 of
this title be provided if such officer determines that the provision of
such services will aid in the efficient administration of justice.
(Added Pub. L. 95-539, 2(a), Oct. 28, 1978, 92 Stat. 2040; amended
Pub. L. 100-702, title VII, 702-710, Nov. 19, 1988, 102 Stat.
4654-4657.)
The date of the enactment of the Judicial Improvements and Access to
Justice Act, referred to in subsec. (b)(1), is the date of enactment of
Pub. L. 100-702, which was approved Nov. 19, 1988.
The Judicial Improvements and Access to Justice Act, referred to in
subsec. (g)(1), is Pub. L. 100-702, Nov. 19, 1988, 102 Stat. 4642.
For complete classification of this Act to the Code, see Short Title
note set out under section 1 of this title and Tables.
1988 -- Subsec. (a). Pub. L. 100-702, 702, amended subsec. (a)
generally, substituting ''certified and otherwise qualified interpreters
in judicial proceedings instituted by the United States'' for
''interpreters in courts of the United States''.
Subsec. (b). Pub. L. 100-702, 703, amended subsec. (b) generally.
Prior to amendment, subsec. (b) read as follows: ''The Director shall
prescribe, determine, and certify the qualifications of persons who may
serve as certified interpreters in courts of the United States in
bilingual proceedings and proceedings involving the hearing impaired
(whether or not also speech impaired), and in so doing, the Director
shall consider the education, training, and experience of those persons.
The Director shall maintain a current master list of all interpreters
certified by the Director and shall report annually on the frequency of
requests for, and the use and effectiveness of, interpreters. The
Director shall prescribe a schedule of fees for services rendered by
interpreters.''
Subsec. (c). Pub. L. 100-702, 704, amended subsec. (c) generally.
Prior to amendment, subsec. (c) read as follows: ''Each United States
district court shall maintain on file in the office of the clerk of
court a list of all persons who have been certified as interpreters,
including bilingual interpreters and oral or manual interpreters for the
hearing impaired (whether or not also speech impaired), by the Director
of the Administrative Office of the United States Courts in accordance
with the certification program established pursuant to subsection (b) of
this section.''
Subsec. (d). Pub. L. 100-702, 705, 710(a), designated existing
provisions as par. (1), in introductory provisions, substituted
''qualified interpreter'' for ''competent interpreter'', ''judicial
proceedings instituted by the United States'' for ''any criminal or
civil action initiated by the United States in a United States district
court (including a petition for a writ of habeas corpus initiated in the
name of the United States by a relator)'', and ''such judicial
proceedings'' for ''such action'', redesignated former pars. (1) and
(2) as subpars. (A) and (B), and added par. (2).
Subsec. (e)(2). Pub. L. 100-702, 710(b), substituted ''judicial
proceedings instituted by the United States'' for ''criminal or civil
action in a United States district court''.
Subsec. (g)(1) to (3). Pub. L. 100-702, 706(a), amended pars. (1)
to (3) generally. Prior to amendment, pars. (1) to (3) read as
follows:
''(1) Except as otherwise provided in this subsection or section 1828
of this title, the salaries, fees, expenses, and costs incident to
providing the services of interpreters under subsection (d) of this
section shall be paid by the Director of the Administrative Office of
the United States Courts from sums appropriated to the Federal
judiciary.
''(2) Such salaries, fees, expenses, and costs that are incurred with
respect to Government witnesses shall, unless direction is made under
paragraph (3) of this subsection, be paid by the Attorney General from
sums appropriated to the Department of Justice.
''(3) The presiding judicial officer may in such officer's discretion
direct that all or part of such salaries, fees, expenses, and costs
shall be apportioned between or among the parties or shall be taxed as
costs in a civil action.''
Subsec. (g)(4), (5). Pub. L. 100-702, 706(b), added par. (4) and
redesignated former par. (4) as (5).
Subsec. (h). Pub. L. 100-702, 707, amended subsec. (h) generally.
Prior to amendment, subsec. (h) read as follows: ''In any action in a
court of the United States where the presiding judicial officer
establishes, fixes, or approves the compensation and expenses payable to
an interpreter from funds appropriated to the Federal judiciary, the
presiding judicial officer shall not establish, fix, or approve
compensation and expenses in excess of the maximum allowable under the
schedule of fees for services prescribed pursuant to subsection (b) of
this section.''
Subsec. (i). Pub. L. 100-702, 708, amended subsec. (i) generally.
Prior to amendment, subsec. (i) read as follows: ''The term 'presiding
judicial officer' as used in this section and section 1828 of this title
includes a judge of a United States district court, a United States
magistrate, and a referee in bankruptcy.''
Subsec. (j). Pub. L. 100-702, 708, amended subsec. (j) generally.
Prior to amendment, subsec. (j) read as follows: ''The term 'United
States district court' as used in this section and section 1828 of this
title includes any court created by Act of Congress in a territory which
is invested with any jurisdiction of a district court of the United
States established by section 132 of this title.''
Subsec. (k). Pub. L. 100-702, 709, amended subsec. (k) generally.
Prior to amendment, subsec. (k) read as follows: ''The interpretation
provided by certified interpreters pursuant to this section shall be in
the consecutive mode except that the presiding judicial officer, with
the approval of all interested parties, may authorize a simultaneous or
summary interpretation when such officer determines that such
interpretation will aid in the efficient administration of justice. The
presiding judicial officer on such officer's motion or on the motion of
a party may order that special interpretation services as authorized in
section 1828 of this title be provided if such officer determines that
the provision of such services will aid in the efficient administration
of justice.''
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Section 712 of title VII of Pub. L. 100-702 provided that: ''This
title (amending this section and enacting provisions set out as notes
under this section and section 1 of this title) shall become effective
upon the date of enactment (Nov. 19, 1988).''
Section effective ninety days after Oct. 28, 1978, see section 10(b)
of Pub. L. 95-539, set out as an Effective Date of 1978 Amendment note
under section 602 of this title.
For short title of Pub. L. 95-539 as ''Court Interpreters Act'', see
Short Title of 1978 Amendments note set out under section 1 of this
title.
Section 711 of title VII of Pub. L. 100-702 provided that:
''Nothing in this title (amending this section and enacting provisions
set out as notes under this section and section 1 of this title) shall
be construed to terminate or diminish existing programs for the
certification of interpreters.''
28 USC 1828. Special interpretation services
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Director of the Administrative Office of the United States
Courts shall establish a program for the provision of special
interpretation services in criminal actions and in civil actions
initiated by the United States (including petitions for writs of habeas
corpus initiated in the name of the United States by relators) in a
United States district court. The program shall provide a capacity for
simultaneous interpretation services in multidefendant criminal actions
and multidefendant civil actions.
(b) Upon the request of any person in any action for which special
interpretation services established pursuant to subsection (a) are not
otherwise provided, the Director, with the approval of the presiding
judicial officer, may make such services available to the person
requesting the services on a reimbursable basis at rates established in
conformity with section 9701 of title 31, but the Director may require
the prepayment of the estimated expenses of providing the services by
the person requesting them.
(c) Except as otherwise provided in this subsection, the expenses
incident to providing services under subsection (a) of this section
shall be paid by the Director from sums appropriated to the Federal
judiciary. A presiding judicial officer, in such officer's discretion,
may order that all or part of the expenses shall be apportioned between
or among the parties or shall be taxed as costs in a civil action, and
any moneys collected as a result of such order may be used to reimburse
the appropriations obligated and disbursed in payment for such services.
(d) Appropriations available to the Director shall be available to
provide services in accordance with subsection (b) of this section, and
moneys collected by the Director under that subsection may be used to
reimburse the appropriations charged for such services. A presiding
judicial officer, in such officer's discretion, may order that all or
part of the expenses shall be apportioned between or among the parties
or shall be taxed as costs in the action.
(Added Pub. L. 95-539, 2(a), Oct. 28, 1978, 92 Stat. 2042; amended
Pub. L. 97-258, 3(g), Sept. 13, 1982, 96 Stat. 1065.)
1982 -- Subsec. (b). Pub. L. 97-258 substituted ''section 9701 of
title 31'' for ''section 501 of the Act of August 31, 1951 (ch. 376,
title 5, 65 Stat. 290; 31 U.S.C. 483a)''.
Section effective ninety days after Oct. 28, 1978, see section 10(b)
of Pub. L. 95-539, set out as an Effective Date of 1978 Amendment note
under section 602 of this title.
28 USC CHAPTER 121 -- JURIES; TRIAL BY JURY
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1861. Declaration of policy.
1862. Discrimination prohibited.
1863. Plan for random jury selection.
1864. Drawing of names from the master jury wheel; completion of
juror qualification form.
1865. Qualifications for jury service.
1866. Selection and summoning of jury panels.
1867. Challenging compliance with selection procedures.
1868. Maintenance and inspection of records.
1869. Definitions.
1870. Challenges.
1871. Fees.
1872. Issues of fact in Supreme Court.
1873. Admiralty and maritime cases.
1874. Actions on bonds and specialties.
1875. Protection of jurors' employment.
1876. Trial by jury in the Court of International Trade.
1877. Protection of jurors.
1878. Optional use of a one-step summoning and qualification
procedure.
1992 -- Pub. L. 102-572, title IV, 403(b), Oct. 29, 1992, 106
Stat. 4512, substituted ''Optional'' for ''Experimental'' in item 1878.
1988 -- Pub. L. 100-702, title VIII, 805(b), Nov. 19, 1988, 102
Stat. 4659, added item 1878.
1983 -- Pub. L. 97-463, 3(2), Jan. 12, 1983, 96 Stat. 2532, added
item 1877.
1980 -- Pub. L. 96-417, title III, 302(b), Oct. 10, 1980, 94 Stat.
1739, added item 1876.
1978 -- Pub. L. 95-572, 6(a)(2), Nov. 2, 1978, 92 Stat. 2456,
added item 1875.
1968 -- Pub. L. 90-274, 101, Mar. 27, 1968, 82 Stat. 53,
substituted ''Declaration of policy'' for ''Qualifications'' as item
1861, ''Discrimination prohibited'' for ''Exemptions'' as item 1862,
''Plan for random jury selection'' for ''Exclusion or excuse from
service'' as item 1863, ''Drawing of names from the master jury wheel;
completion of juror qualification form'' for ''Manner of drawing; jury
commissioners and their compensation'' as item 1864, ''Qualifications
for jury service'' for ''Apportionment within district; additional jury
commissioners'' as item 1865, ''Selection and summoning of jury panels''
for ''Special petit juries; talesmen from bystanders'' as item 1866,
''Challenging compliance with selection procedures'' for ''Summoning
jurors'' as item 1867, ''Maintenance and inspection of records'' for
''Disqualification of marshal or deputy'' as item 1868, ''Definitions''
for ''Frequency of service'' as item 1869, and reenacted items 1870-1874
without change.
28 USC 1861. Declaration of policy
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
It is the policy of the United States that all litigants in Federal
courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in
the district or division wherein the court convenes. It is further the
policy of the United States that all citizens shall have the opportunity
to be considered for service on grand and petit juries in the district
courts of the United States, and shall have an obligation to serve as
jurors when summoned for that purpose.
(June 25, 1948, ch. 646, 62 Stat. 951; Sept. 9, 1957, Pub. L.
85-315, part V, 152, 71 Stat. 638; Mar. 27, 1968, Pub. L. 90-274,
101, 82 Stat. 54.)
Based on title 28, U.S.C., 1940 ed., 411 and 415 (Mar. 3, 1911, ch.
231, 275, 278, 38 Stat. 1164, 1165).
The revised section prescribes uniform standards of qualification for
jurors in Federal Courts instead of making qualifications depend upon
State laws. This is in accord with proposed legislation recommended by
the Judicial Conference of the United States.
The last paragraph is added to exclude jurors incompetent to serve as
jurors in State courts.
1968 -- Pub. L. 90-274 substituted provisions declaring the policy
of the United States with respect to trial by jury and the opportunity
to serve on such juries for provisions setting out the required
qualifications of Federal jurors, including age, citizenship, residence,
freedom from conviction of certain crimes, ability to read, write,
speak, and understand the English language, and capability of rendering
efficient jury service.
1957 -- Pub. L. 85-315 substituted ''Qualifications of Federal
jurors'' for ''Qualifications'' in section catchline.
Pub. L. 85-315 substituted ''and who has resided for a period of one
year within the judicial district'' for ''and resides within the
judicial district'', and struck out provisions which prohibited service
as a grand or petit juror if a person was incompetent to serve as a
grand or petit juror by the law of the State in which the district court
is held.
Section 104 of Pub. L. 90-274 provided that: ''This Act (amending
this section and sections 1821, 1862 to 1869, and 1871 of this title,
repealing section 867 of Title 48, Territories and Insular Possessions,
and enacting provisions set out as notes under this section) shall
become effective two hundred and seventy days after the date of
enactment (Mar. 27, 1968): Provided, That this Act shall not apply in
any case in which an indictment has been returned or petit jury
empaneled prior to such effective date.''
Pub. L. 95-572, 1, Nov. 2, 1978, 92 Stat. 2453, provided that:
''This Act (enacting sections 1363 and 1875 of this title, amending
sections 1863, 1865, 1866, 1869, and 1871 of this title, renumbering
section 1363 (relating to construction of references to laws of the
United States or Acts of Congress) as section 1364 of this title, and
enacting provisions set out as a note under section 1363 of this title)
may be cited as the 'Jury System Improvements Act of 1978'.''
Section 1 of Pub. L. 90-274 provided: ''That this Act (amending
this section and sections 1821, 1862 to 1869, and 1871 of this title,
repealing section 867 of Title 48, Territories and Insular Possessions,
and enacting provisions set out as notes under this section) may be
cited as the 'Jury Selection and Service Act of 1968'.''
Jurors and juries, see Rules 38, 39, and 48, Appendix to this title.
Jurors and juries, see Rules 23 and 24, Title 18, Appendix, Crimes
and Criminal Procedure.
Constitutional provisions relating to trial by jury, see Const.
Amends. 6 and 7.
28 USC 1862. Discrimination prohibited
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
No citizen shall be excluded from service as a grand or petit juror
in the district courts of the United States or in the Court of
International Trade on account of race, color, religion, sex, national
origin, or economic status.
(June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L.
90-274, 101, 82 Stat. 54; Oct. 10, 1980, Pub. L. 96-417, title III,
302(c), 94 Stat. 1739.)
This section makes provision for specific exemption of classes of
citizens usually excused from jury service in the interest of the public
health, safety, or welfare. The inclusion in the jury list of persons
so exempted usually serves only to waste the time of the court.
1980 -- Pub. L. 96-417 prohibited discrimination against service as
juror in the Court of International Trade.
1968 -- Pub. L. 90-274 substituted provisions prohibiting
discrimination against citizens in their service as jurors because of
race, color, religion, sex, national origin, or economic status for
provisions identifying three groups as exempt from jury service,
including members of the armed forces on active duty, members of fire or
police departments, and public officers actively engaged in the
performance of official duties.
Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable
with respect to civil actions pending on or commenced on or after such
date, see section 701(a) of Pub. L. 96-417, set out as a note under
section 251 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
28 USC 1863. Plan for random jury selection
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Each United States district court shall devise and place into
operation a written plan for random selection of grand and petit jurors
that shall be designed to achieve the objectives of sections 1861 and
1862 of this title, and that shall otherwise comply with the provisions
of this title. The plan shall be placed into operation after approval
by a reviewing panel consisting of the members of the judicial council
of the circuit and either the chief judge of the district whose plan is
being reviewed or such other active district judge of that district as
the chief judge of the district may designate. The panel shall examine
the plan to ascertain that it complies with the provisions of this
title. If the reviewing panel finds that the plan does not comply, the
panel shall state the particulars in which the plan fails to comply and
direct the district court to present within a reasonable time an
alternative plan remedying the defect or defects. Separate plans may be
adopted for each division or combination of divisions within a judicial
district. The district court may modify a plan at any time and it shall
modify the plan when so directed by the reviewing panel. The district
court shall promptly notify the panel, the Administrative Office of the
United States Courts, and the Attorney General of the United States, of
the initial adoption and future modifications of the plan by filing
copies therewith. Modifications of the plan made at the instance of the
district court shall become effective after approval by the panel. Each
district court shall submit a report on the jury selection process
within its jurisdiction to the Administrative Office of the United
States Courts in such form and at such times as the Judicial Conference
of the United States may specify. The Judicial Conference of the United
States may, from time to time, adopt rules and regulations governing the
provisions and the operation of the plans formulated under this title.
(b) Among other things, such plan shall --
(1) either establish a jury commission, or authorize the clerk of the
court, to manage the jury selection process. If the plan establishes a
jury commission, the district court shall appoint one citizen to serve
with the clerk of the court as the jury commission: Provided, however,
That the plan for the District of Columbia may establish a jury
commission consisting of three citizens. The citizen jury commissioner
shall not belong to the same political party as the clerk serving with
him. The clerk or the jury commission, as the case may be, shall act
under the supervision and control of the chief judge of the district
court or such other judge of the district court as the plan may provide.
Each jury commissioner shall, during his tenure in office, reside in
the judicial district or division for which he is appointed. Each
citizen jury commissioner shall receive compensation to be fixed by the
district court plan at a rate not to exceed $50 per day for each day
necessarily employed in the performance of his duties, plus
reimbursement for travel, subsistence, and other necessary expenses
incurred by him in the performance of such duties. The Judicial
Conference of the United States may establish standards for allowance of
travel, subsistence, and other necessary expenses incurred by jury
commissioners.
(2) specify whether the names of prospective jurors shall be selected
from the voter registration lists or the lists of actual voters of the
political subdivisions within the district or division. The plan shall
prescribe some other source or sources of names in addition to voter
lists where necessary to foster the policy and protect the rights
secured by sections 1861 and 1862 of this title. The plan for the
District of Columbia may require the names of prospective jurors to be
selected from the city directory rather than from voter lists. The
plans for the districts of Puerto Rico and the Canal Zone may prescribe
some other source or sources of names of prospective jurors in lieu of
voter lists, the use of which shall be consistent with the policies
declared and rights secured by sections 1861 and 1862 of this title.
The plan for the district of Massachusetts may require the names of
prospective jurors to be selected from the resident list provided for in
chapter 234A, Massachusetts General Laws, or comparable authority,
rather than from voter lists.
(3) specify detailed procedures to be followed by the jury commission
or clerk in selecting names from the sources specified in paragraph (2)
of this subsection. These procedures shall be designed to ensure the
random selection of a fair cross section of the persons residing in the
community in the district or division wherein the court convenes. They
shall ensure that names of persons residing in each of the counties,
parishes, or similar political subdivisions within the judicial district
or division are placed in a master jury wheel; and shall ensure that
each county, parish, or similar political subdivision within the
district or division is substantially proportionally represented in the
master jury wheel for that judicial district, division, or combination
of divisions. For the purposes of determining proportional
representation in the master jury wheel, either the number of actual
voters at the last general election in each county, parish, or similar
political subdivision, or the number of registered voters if
registration of voters is uniformly required throughout the district or
division, may be used.
(4) provide for a master jury wheel (or a device similar in purpose
and function) into which the names of those randomly selected shall be
placed. The plan shall fix a minimum number of names to be placed
initially on the master jury wheel, which shall be at least one-half of
1 per centum of the total number of persons on the list used as a source
of names for the district or division; but if this number of names is
believed to be cumbersome and unnecessary, the plan may fix a smaller
number of names to be placed in the master wheel, but in no event less
than one thousand. The chief judge of the district court, or such other
district court judge as the plan may provide, may order additional names
to be placed in the master jury wheel from time to time as necessary.
The plan shall provide for periodic emptying and refilling of the master
jury wheel at specified times, the interval for which shall not exceed
four years.
(5)(A) except as provided in subparagraph (B), specify those groups
of persons or occupational classes whose members shall on individual
request therefor, be excused from jury service. Such groups or classes
shall be excused only if the district court finds, and the plan states,
that jury service by such class or group would entail undue hardship or
extreme inconvenience to the members thereof, and excuse of members
thereof would not be inconsistent with sections 1861 and 1862 of this
title.
(B) specify that volunteer safety personnel, upon individual request,
shall be excused from jury service. For purposes of this subparagraph,
the term ''volunteer safety personnel'' means individuals serving a
public agency (as defined in section 1203(6) of title I of the Omnibus
Crime Control and Safe Streets Act of 1968) in an official capacity,
without compensation, as firefighters or members of a rescue squad or
ambulance crew.
(6) specify that the following persons are barred from jury service
on the ground that they are exempt: (A) members in active service in
the Armed Forces of the United States; (B) members of the fire or
police departments of any State, the District of Columbia, any territory
or possession of the United States, or any subdivision of a State, the
District of Columbia, or such territory or possession; (C) public
officers in the executive, legislative, or judicial branches of the
Government of the United States, or of any State, the District of
Columbia, any territory or possession of the United States, or any
subdivision of a State, the District of Columbia, or such territory or
possession, who are actively engaged in the performance of official
duties.
(7) fix the time when the names drawn from the qualified jury wheel
shall be disclosed to parties and to the public. If the plan permits
these names to be made public, it may nevertheless permit the chief
judge of the district court, or such other district court judge as the
plan may provide, to keep these names confidential in any case where the
interests of justice so require.
(8) specify the procedures to be followed by the clerk or jury
commission in assigning persons whose names have been drawn from the
qualified jury wheel to grand and petit jury panels.
(c) The initial plan shall be devised by each district court and
transmitted to the reviewing panel specified in subsection (a) of this
section within one hundred and twenty days of the date of enactment of
the Jury Selection and Service Act of 1968. The panel shall approve or
direct the modification of each plan so submitted within sixty days
thereafter. Each plan or modification made at the direction of the
panel shall become effective after approval at such time thereafter as
the panel directs, in no event to exceed ninety days from the date of
approval. Modifications made at the instance of the district court
under subsection (a) of this section shall be effective at such time
thereafter as the panel directs, in no event to exceed ninety days from
the date of modification.
(d) State, local, and Federal officials having custody, possession,
or control of voter registration lists, lists of actual voters, or other
appropriate records shall make such lists and records available to the
jury commission or clerks for inspection, reproduction, and copying at
all reasonable times as the commission or clerk may deem necessary and
proper for the performance of duties under this title. The district
courts shall have jurisdiction upon application by the Attorney General
of the United States to compel compliance with this subsection by
appropriate process.
(June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L.
90-274, 101, 82 Stat. 54; Apr. 6, 1972, Pub. L. 92-269, 2, 86 Stat.
117; Nov. 2, 1978, Pub. L. 95-572, 2(a), 92 Stat. 2453; Nov. 19,
1988, Pub. L. 100-702, title VIII, 802(b), (c), 102 Stat. 4657, 4658;
Oct. 29, 1992, Pub. L. 102-572, title IV, 401, 106 Stat. 4511.)
Based on title 28, U.S.C., 1940, ed., 415 (Mar. 3, 1911, ch. 231,
278, 36 Stat. 1165).
Subsections (a) and (b) are new and merely declaratory of existing
practice.
The phrase ''or previous condition of servitude'' was omitted as
obsolete.
Changes were made in phraseology.
Section 1203(6) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968, referred to in subsec. (b)(5)(B), is section
1203(6) of Pub. L. 90-351, which is classified to section 3796b(6) of
Title 42, The Public Health and Welfare.
The date of enactment of the Jury Selection and Service Act of 1968,
referred to in subsec. (c), is the date of enactment of Pub. L.
90-274, which was approved Mar. 27, 1968.
1992 -- Subsec. (b)(2). Pub. L. 102-572 inserted at end ''The plan
for the district of Massachusetts may require the names of prospective
jurors to be selected from the resident list provided for in chapter
234A, Massachusetts General Laws, or comparable authority, rather than
from voter lists.''
1988 -- Subsec. (b)(5). Pub. L. 100-702, 802(b), designated
existing provisions as subpar. (A), inserted ''except as provided in
subparagraph (B),'', and added subpar. (B).
Subsec. (b)(6). Pub. L. 100-702, 802(b), amended par. (6)
generally. Prior to amendment, par. (6) read as follows: ''specify
those groups of persons or occupational classes whose members shall be
barred from jury service on the ground that they are exempt. Such
groups or classes shall be exempt only if the district court finds, and
the plan states, that their exemption is in the public interest and
would not be inconsistent with sections 1861 and 1862 of this title.
The plan shall provide for exemption of the following persons: (i)
members in active service in the Armed Forces of the United States;
(ii) members of the fire or police departments of any State, district,
territory, possession, or subdivision thereof; (iii) public officers in
the executive, legislative, or judicial branches of the Government of
the United States, or any State, district, territory, or possession or
subdivision thereof, who are actively engaged in the performance of
official duties.''
1978 -- Subsec. (b)(7) to (9). Pub. L. 95-572 struck out par. (7)
relating to random jury selection plan provision for fixing the
distance, in miles or in travel time, from each place of holding court
beyond which prospective jurors residing should, on individual request,
be excused from jury service on the ground of undue hardship in
traveling to the place where court was held, now incorporated in
definition of ''undue hardship or extreme inconvenience'' in section
1869(j) of this title, and redesignated pars. (8) and (9) as (7) and
(8), respectively.
1972 -- Subsec. (b)(4). Pub. L. 92-269 inserted provisions requiring
the master jury wheel to be emptied and refilled in not greater than
four years intervals.
1968 -- Subsec. (a). Pub. L. 90-274 substituted provisions requiring
a written plan covering the random selection of jurors by each United
States District Court and the adoption, review, and modification of the
plan for provisions authorizing district judges to exclude or excuse for
good cause persons called as jurors.
Subsec. (b). Pub. L. 90-274 substituted provisions setting out the
nine required features of a plan for random jury selection, including
management by commission or clerk, selection from voter registration
lists, detailed procedures for selecting names, a master jury wheel,
excused or exempted groups, maximum distances of travel, disclosure of
names, and procedures for assigning jurors drawn from the jury wheel to
particular grand and petit jury panels, for provisions authorizing the
district court to excuse, for the public interests, classes or groups
upon a finding that such jury service would entail undue hardship,
extreme inconvenience, or serious obstruction or delay in the fair and
impartial administration of justice.
Subsec. (c). Pub. L. 90-274 substituted provisions covering the
transmittal of the plan to a reviewing panel and the modification
thereof for provisions prohibiting the exclusion of any citizen from
juror service on account of race or color.
Subsec. (d). Pub. L. 90-274 added subsec. (d).
Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section
1101(a) of Pub. L. 102-572, set out as a note under section 905 of
Title 2, The Congress.
Amendment by Pub. L. 95-572 applicable with respect to any grand or
petit juror summoned for service or actually serving on or after Nov.
2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective
Date note under section 1363 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
1973; Refilling of Qualified Jury
Wheel Not Later Than October 1, 1973; Retroactive
Effect
Sections 3 and 4 of Pub. L. 92-269 provided that:
''Sec. 3. (a) Each judicial district and each division or combination
of divisions within a judicial district, for which a separate plan for
random selection of jurors has been adopted pursuant to section 1863 of
title 28, United States Code, other than the District of Columbia and
the districts of Puerto Rico and the Canal Zone, shall not later than
September 1, 1973, refill its master jury wheel with names obtained from
the voter registration lists for, or the lists of actual voters in, the
1972 general election.
''(b) The District of Columbia and the judicial districts of Puerto
Rico and the Canal Zone shall not later than September 1, 1973, refill
their master jury wheels from sources which include the names of persons
eighteen years of age or older.
''(c) The qualified jury wheel in each judicial district, and in each
division or combination of divisions in a judicial district for which a
separate plan for random selection of jurors has been adopted, shall be
refilled from the master jury wheel not later than October 1, 1973.
''Sec. 4. (a) Nothing in this Act amending this section and section
1865 of this title shall affect the composition of any master jury wheel
or qualified jury wheel prior to the date on which it is first refilled
in compliance with the terms of section 3.
''(b) Nothing in this Act shall affect the composition or preclude
the service of any jury empaneled on or before the date on which the
qualified jury wheel from which the jurors' names were drawn is refilled
in compliance with the provisions of section 3.''
28 USC 1864. Drawing of names from the master jury wheel; completion
of juror qualification form
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) From time to time as directed by the district court, the clerk or
a district judge shall publicly draw at random from the master jury
wheel the names of as many persons as may be required for jury service.
The clerk or jury commission may, upon order of the court, prepare an
alphabetical list of the names drawn from the master jury wheel. Any
list so prepared shall not be disclosed to any person except pursuant to
the district court plan or pursuant to section 1867 or 1868 of this
title. The clerk or jury commission shall mail to every person whose
name is drawn from the master wheel a juror qualification form
accompanied by instructions to fill out and return the form, duly signed
and sworn, to the clerk or jury commission by mail within ten days. If
the person is unable to fill out the form, another shall do it for him,
and shall indicate that he has done so and the reason therefor. In any
case in which it appears that there is an omission, ambiguity, or error
in a form, the clerk or jury commission shall return the form with
instructions to the person to make such additions or corrections as may
be necessary and to return the form to the clerk or jury commission
within ten days. Any person who fails to return a completed juror
qualification form as instructed may be summoned by the clerk or jury
commission forthwith to appear before the clerk or jury commission to
fill out a juror qualification form. A person summoned to appear
because of failure to return a juror qualification form as instructed
who personally appears and executes a juror qualification form before
the clerk or jury commission may, at the discretion of the district
court, except where his prior failure to execute and mail such form was
willful, be entitled to receive for such appearance the same fees and
travel allowances paid to jurors under section 1871 of this title. At
the time of his appearance for jury service, any person may be required
to fill out another juror qualification form in the presence of the jury
commission or the clerk of the court, at which time, in such cases as it
appears warranted, the person may be questioned, but only with regard to
his responses to questions contained on the form. Any information thus
acquired by the clerk or jury commission may be noted on the juror
qualification form and transmitted to the chief judge or such district
court judge as the plan may provide.
(b) Any person summoned pursuant to subsection (a) of this section
who fails to appear as directed shall be ordered by the district court
forthwith to appear and show cause for his failure to comply with the
summons. Any person who fails to appear pursuant to such order or who
fails to show good cause for noncompliance with the summons may be fined
not more than $100 or imprisoned not more than three days, or both. Any
person who willfully misrepresents a material fact on a juror
qualification form for the purpose of avoiding or securing service as a
juror may be fined not more than $100 or imprisoned not more than three
days, or both.
(June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L.
90-274, 101, 82 Stat. 57; Nov. 19, 1988, Pub. L. 100-702, title VIII,
803(a), 102 Stat. 4658.)
Based on title 28, U.S.C., 1940 ed., 412, 412a (Mar. 3, 1911, ch.
231, 276, 36 Stat. 1164; Feb. 3, 1917, ch. 27, 39 Stat. 873; May 21,
1945, ch. 129, title IV, 59 Stat. 198; July 5, 1946, ch. 541, title IV,
60 Stat. 478).
The words ''The district court'' were substituted for the phrase
''the judge thereof, or by the judge senior in commission in districts
having more than one judge'' to conform to other sections authorizing
appointment of court officers. See section 751 of this title relating
to appointment of district court clerk.
The limitation in section 412a of title 28, U.S.C., 1940 ed., that
jury commissioners shall serve no more than three days in any one term
of court was omitted as unnecessary. This is a matter that may safely
be left to the discretion of the court.
The last paragraph was added in conformity with section 11-1401 of
the District of Columbia Code, 1940 ed., providing for three jury
commissioners.
Changes were made in phraseology.
As finally enacted, act July 9, 1947, ch. 211, title IV, 61 Stat.
304, which was classified to Title 28, U.S.C., 1946 ed., 412a, was also
a source of this section. Accordingly such act was included by Senate
amendment in the schedule of repeals. See 80th Congress Senate Report
No. 1559.
1988 -- Subsec. (a). Pub. L. 100-702 amended second sentence
generally. Prior to amendment, second sentence read as follows: ''The
clerk or jury commission shall prepare an alphabetical list of the names
drawn, which list shall not be disclosed to any person except pursuant
to the district court plan and to sections 1867 and 1868 of this
title.''
1968 -- Pub. L. 90-274 substituted provisions for the public drawing
of names from the master jury wheel, the completion of the jury
qualification form, and the penalties for failure to appear and for
misrepresentation of material facts for provisions requiring the drawing
of names from a jury box, the refilling of the box by the clerk and a
jury commissioner, the requirements and compensation of the
commissioner, and the alternate placement of names by the clerk and the
commissioner.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
Jurors and juries, see rules 38, 39, 46, 47, and 48, Appendix to this
title.
Jurors and juries, see rules 6, 23, 24, and 51, Title 18, Appendix,
Crimes and Criminal Procedure.
28 USC 1865. Qualifications for jury service
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The chief judge of the district court, or such other district
court judge as the plan may provide, on his initiative or upon
recommendation of the clerk or jury commission, shall determine solely
on the basis of information provided on the juror qualification form and
other competent evidence whether a person is unqualified for, or exempt,
or to be excused from jury service. The clerk shall enter such
determination in the space provided on the juror qualification form and
in any alphabetical list of names drawn from the master jury wheel. If
a person did not appear in response to a summons, such fact shall be
noted on said list.
(b) In making such determination the chief judge of the district
court, or such other district court judge as the plan may provide, shall
deem any person qualified to serve on grand and petit juries in the
district court unless he --
(1) is not a citizen of the United States eighteen years old who has
resided for a period of one year within the judicial district;
(2) is unable to read, write, and understand the English language
with a degree of proficiency sufficient to fill out satisfactorily the
juror qualification form;
(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirmity, to
render satisfactory jury service; or
(5) has a charge pending against him for the commission of, or has
been convicted in a State or Federal court of record of, a crime
punishable by imprisonment for more than one year and his civil rights
have not been restored.
(June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L.
90-274, 101, 82 Stat. 58; Apr. 6, 1972, Pub. L. 92-269, 1, 86 Stat.
117; Nov. 2, 1978, Pub. L. 95-572, 3(a), 92 Stat. 2453; Nov. 19,
1988, Pub. L. 100-702, title VIII, 803(b), 102 Stat. 4658.)
Based on title 28, U.S.C., 1940 ed., 181, 413 (Mar. 3, 1911, ch.
231, 100, 277, 36 Stat. 1121, 1164).
Section consolidates a part of section 181 with section 413 of title
28, U.S.C., 1940 ed. Other provisions of said section 181 are
incorporated in section 115 of this title.
Word ''jurors'' was changed to ''grand and petit jurors'' upon
authority of Agnew v. United States, 1897, 17 S.Ct. 235, 165 U.S. 36,
41 L.Ed. 624, construing such term to include both types of jurors.
The last sentence of subsection (a) was added to conform with
existing practice in many districts. Subsection (b) extends to all
districts a provision of section 181 of title 28, U.S.C., 1940 ed.,
which was designed for the convenience of the districts in Ohio and
permitted jurors drawn for service at Cleveland, Toledo, and Columbus to
serve at Youngstown, Lima, and Steubenville, respectively.
Changes were made in phraseology.
1988 -- Subsec. (a). Pub. L. 100-702 substituted ''in any
alphabetical'' for ''the alphabetical''.
1978 -- Subsec. (b)(5). Pub. L. 95-572 struck out ''by pardon or
amnesty'' after ''civil rights have not been restored''.
1972 -- Subsec. (b)(1). Pub. L. 92-269 substituted ''eighteen years
old'' for ''twenty-one years old''.
1968 -- Subsec. (a). Pub. L. 90-274 substituted provisions for the
excusing of persons from jury service by the chief judge of the district
court or by other district court judge for provisions requiring the
selection of jurors so as to be most favorable to an impartial trial and
so as to minimize the expense and burden of jury service.
Subsec. (b). Pub. L. 90-274 substituted provisions setting out the
conditions of ineligibility for jury service for provisions authorizing
the service of jurors in a place within the district other than the
place for which the jurors were summoned.
Amendment by Pub. L. 95-572 applicable with respect to any grand or
petit juror summoned for service or actually serving on or after Nov.
2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective
Date note under section 1363 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
28 USC 1866. Selection and summoning of jury panels
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The jury commission, or in the absence thereof the clerk, shall
maintain a qualified jury wheel and shall place in such wheel names of
all persons drawn from the master jury wheel who are determined to be
qualified as jurors and not exempt or excused pursuant to the district
court plan. From time to time, the jury commission or the clerk shall
publicly draw at random from the qualified jury wheel such number of
names of persons as may be required for assignment to grand and petit
jury panels. The jury commission or the clerk shall prepare a separate
list of names of persons assigned to each grand and petit jury panel.
(b) When the court orders a grand or petit jury to be drawn, the
clerk or jury commission or their duly designated deputies shall issue
summonses for the required number of jurors.
Each person drawn for jury service may be served personally, or by
registered, certified, or first-class mail addressed to such person at
his usual residence or business address.
If such service is made personally, the summons shall be delivered by
the clerk or the jury commission or their duly designated deputies to
the marshal who shall make such service.
If such service is made by mail, the summons may be served by the
marshal or by the clerk, the jury commission or their duly designated
deputies, who shall make affidavit of service and shall attach thereto
any receipt from the addressee for a registered or certified summons.
(c) Except as provided in section 1865 of this title or in any jury
selection plan provision adopted pursuant to paragraph (5) or (6) of
section 1863(b) of this title, no person or class of persons shall be
disqualified, excluded, excused, or exempt from service as jurors:
Provided, That any person summoned for jury service may be (1) excused
by the court, or by the clerk under supervision of the court if the
court's jury selection plan so authorizes, upon a showing of undue
hardship or extreme inconvenience, for such period as the court deems
necessary, at the conclusion of which such person either shall be
summoned again for jury service under subsections (b) and (c) of this
section or, if the court's jury selection plan so provides, the name of
such person shall be reinserted into the qualified jury wheel for
selection pursuant to subsection (a) of this section, or (2) excluded by
the court on the ground that such person may be unable to render
impartial jury service or that his service as a juror would be likely to
disrupt the proceedings, or (3) excluded upon peremptory challenge as
provided by law, or (4) excluded pursuant to the procedure specified by
law upon a challenge by any party for good cause shown, or (5) excluded
upon determination by the court that his service as a juror would be
likely to threaten the secrecy of the proceedings, or otherwise
adversely affect the integrity of jury deliberations. No person shall
be excluded under clause (5) of this subsection unless the judge, in
open court, determines that such is warranted and that exclusion of the
person will not be inconsistent with sections 1861 and 1862 of this
title. The number of persons excluded under clause (5) of this
subsection shall not exceed one per centum of the number of persons who
return executed jury qualification forms during the period, specified in
the plan, between two consecutive fillings of the master jury wheel.
The names of persons excluded under clause (5) of this subsection,
together with detailed explanations for the exclusions, shall be
forwarded immediately to the judicial council of the circuit, which
shall have the power to make any appropriate order, prospective or
retroactive, to redress any misapplication of clause (5) of this
subsection, but otherwise exclusions effectuated under such clause shall
not be subject to challenge under the provisions of this title. Any
person excluded from a particular jury under clause (2), (3), or (4) of
this subsection shall be eligible to sit on another jury if the basis
for his initial exclusion would not be relevant to his ability to serve
on such other jury.
(d) Whenever a person is disqualified, excused, exempt, or excluded
from jury service, the jury commission or clerk shall note in the space
provided on his juror qualification form or on the juror's card drawn
from the qualified jury wheel the specific reason therefore.
(e) In any two-year period, no person shall be required to (1) serve
or attend court for prospective service as a petit juror for a total of
more than thirty days, except when necessary to complete service in a
particular case, or (2) serve on more than one grand jury, or (3) serve
as both a grand and petit juror.
(f) When there is an unanticipated shortage of available petit jurors
drawn from the qualified jury wheel, the court may require the marshal
to summon a sufficient number of petit jurors selected at random from
the voter registration lists, lists of actual voters, or other lists
specified in the plan, in a manner ordered by the court consistent with
sections 1861 and 1862 of this title.
(g) Any person summoned for jury service who fails to appear as
directed shall be ordered by the district court to appear forthwith and
show cause for his failure to comply with the summons. Any person who
fails to show good cause for noncompliance with a summons may be fined
not more than $100 or imprisoned not more than three days, or both.
(June 25, 1948, ch. 646, 62 Stat. 952; May 24, 1949, ch. 179, 96,
63 Stat. 103; Mar. 27, 1968, Pub. L. 90-274, 101, 82 Stat. 58; Dec.
11, 1970, Pub. L. 91-543, 84 Stat. 1408; Nov. 2, 1978, Pub. L. 95-572,
2(b), 92 Stat. 2453; Jan. 12, 1983, Pub. L. 97-463, 2, 96 Stat. 2531;
Nov. 19, 1988, Pub. L. 100-702, title VIII, 801, 102 Stat. 4657.)
Based on title 28, U.S.C., 1940 ed., 417, 418 (Mar. 3, 1911, ch.
231, 280, 281, 36 Stat. 1165).
Section consolidates parts of sections 417, 418 of title 28, U.S.C.,
1940 ed., with necessary changes in phraseology.
The requirement of section 418 of title 28, U.S.C., 1940 ed., for the
summoning of a special jury in accordance with the law of the state was
omitted as unnecessary and incongruous in view of other sections of this
chapter making adequate provision for summoning jurors.
This section amends section 1866 of title 28, U.S.C., by restoring
provision of original law that special juries be impaneled in accordance
with laws of the respective States.
1988 -- Subsec. (c)(1). Pub. L. 100-702 amended cl. (1) generally.
Prior to amendment, cl. (1) read as follows: ''excused by the court,
upon a showing of undue hardship or extreme inconvenience, for such
period as the court deems necessary, at the conclusion of which such
person shall be summoned again for jury service under subsections (b)
and (c) of this section, or''.
1983 -- Subsec. (b). Pub. L. 97-463, 2, inserted provision in
second par. authorizing service by first-class mail of persons drawn
for jury service, substituted in fourth par. ''If such service is made
by mail, the summons may be served by the marshal or by the clerk, the
jury commission or their duly designated deputies, who shall make
affidavit of service and shall attach thereto any receipt from the
addressee for a registered or certified summons'' for ''If such service
is made by registered or certified mail, the summons may be served by
the clerk or jury commission or their duly designated deputies who shall
make affidavit of service and shall file with such affidavit the
addressee's receipt for the registered or certified summons'' and struck
out provision requiring the marshal, if service was made by the marshal,
to attach to his return the addressee's receipt for the registered or
certified mail.
1978 -- Subsec. (c). Pub. L. 95-572 struck out introductory text
reference to par. (7) of section 1863(b) of this title.
1970 -- Subsec. (b). Pub. L. 91-543 inserted provisions authorizing
duly designated deputies of the clerk or the jury commission to issue
summonses, and deliver them to the marshal for service when personal
service is to be made, and provisions authorizing, if service is made by
registered or certified mail, the clerk or the jury commission or their
duly designated deputies to make service of the summons.
1968 -- Subsec. (a). Pub. L. 90-274 substituted provisions
authorizing the commission or clerk to maintain a jury wheel of
qualified jurors and to draw particular panels therefrom for provisions
authorizing the marshal to summon talesmen from the bystanders when
there is an insufficient number of petit jurors.
Subsec. (b). Pub. L. 90-274 substituted provisions directing the
clerk or jury commission to deliver summonses to the marshal for service
when the court orders a grand or petit jury to be drawn and setting out
the details of service for provisions requiring that, when a special
jury was ordered by a district court, it had to be returned by the
marshal in the same manner and form as was required in such case by the
law of the State in which the district court sat.
Subsecs. (c) to (g). Pub. L. 90-274 added subsecs. (c) to (g).
1949 -- Act May 24, 1949, divided section into subsections and
restored provisions that special juries be impaneled in accordance with
State law.
Amendment by Pub. L. 95-572 applicable with respect to any grand or
petit juror summoned for service or actually serving on or after Nov.
2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective
Date note under section 1363 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
28 USC 1867. Challenging compliance with selection procedures
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In criminal cases, before the voir dire examination begins, or
within seven days after the defendant discovered or could have
discovered, by the exercise of diligence, the grounds therefor,
whichever is earlier, the defendant may move to dismiss the indictment
or stay the proceedings against him on the ground of substantial failure
to comply with the provisions of this title in selecting the grand or
petit jury.
(b) In criminal cases, before the voir dire examination begins, or
within seven days after the Attorney General of the United States
discovered or could have discovered, by the exercise of diligence, the
grounds therefor, whichever is earlier, the Attorney General may move to
dismiss the indictment or stay the proceedings on the ground of
substantial failure to comply with the provisions of this title in
selecting the grand or petit jury.
(c) In civil cases, before the voir dire examination begins, or
within seven days after the party discovered or could have discovered,
by the exercise of diligence, the grounds therefor, whichever is
earlier, any party may move to stay the proceedings on the ground of
substantial failure to comply with the provisions of this title in
selecting the petit jury.
(d) Upon motion filed under subsection (a), (b), or (c) of this
section, containing a sworn statement of facts which, if true, would
constitute a substantial failure to comply with the provisions of this
title, the moving party shall be entitled to present in support of such
motion the testimony of the jury commission or clerk, if available, any
relevant records and papers not public or otherwise available used by
the jury commissioner or clerk, and any other relevant evidence. If the
court determines that there has been a substantial failure to comply
with the provisions of this title in selecting the grand jury, the court
shall stay the proceedings pending the selection of a grand jury in
conformity with this title or dismiss the indictment, whichever is
appropriate. If the court determines that there has been a substantial
failure to comply with the provisions of this title in selecting the
petit jury, the court shall stay the proceedings pending the selection
of a petit jury in conformity with this title.
(e) The procedures prescribed by this section shall be the exclusive
means by which a person accused of a Federal crime, the Attorney General
of the United States or a party in a civil case may challenge any jury
on the ground that such jury was not selected in conformity with the
provisions of this title. Nothing in this section shall preclude any
person or the United States from pursuing any other remedy, civil or
criminal, which may be available for the vindication or enforcement of
any law prohibiting discrimination on account of race, color, religion,
sex, national origin or economic status in the selection of persons for
service on grand or petit juries.
(f) The contents of records or papers used by the jury commission or
clerk in connection with the jury selection process shall not be
disclosed, except pursuant to the district court plan or as may be
necessary in the preparation or presentation of a motion under
subsection (a), (b), or (c) of this section, until after the master jury
wheel has been emptied and refilled pursuant to section 1863(b)(4) of
this title and all persons selected to serve as jurors before the master
wheel was emptied have completed such service. The parties in a case
shall be allowed to inspect, reproduce, and copy such records or papers
at all reasonable times during the preparation and pendency of such a
motion. Any person who discloses the contents of any record or paper in
violation of this subsection may be fined not more than $1,000 or
imprisoned not more than one year, or both.
(June 25, 1948, ch. 646, 62 Stat. 953; Sept. 2, 1957, Pub. L.
85-259, 71 Stat. 583; Mar. 27, 1968, Pub. L. 90-274, 101, 82 Stat.
59.)
Based on title 28, U.S.C., 1940 ed., 416 (Mar. 3, 1911, ch. 231,
279, 36 Stat. 1165; Jan. 31, 1929, ch. 126, 45 Stat. 1145).
Provisions for service by a disinterested person when marshal or his
deputy is disqualified is incorporated in section 1868 of this title.
Provision for payment and reimbursement of postage and registry fee
were omitted as covered by section 560 of this title.
Word ''summons'' was substituted for ''writ of venire facias'' in
harmony with the Federal Rules of Civil Procedure which abolished
unnecessary forms. See Rule 81(b) thereof, and Rule 12 of the Federal
Rules of Criminal Procedure.
Provision of section 416 of title 28, U.S.C., 1940 ed., that the
receipt of the person so addressed by registered mail should be regarded
as personal service, was omitted. Such omission is consistent with Rule
5(b) of the Federal Rules of Civil Procedure providing that service by
mail is complete upon mailing.
Provision for attachment to the return of the addressee's receipt for
the summons, was inserted to cover its disposition.
Provision that no mileage shall be allowed for service by mail was
omitted as unnecessary.
Changes were made in phraseology.
1968 -- Pub. L. 90-274 substituted provisions by which a defendant
may assert noncompliance with the selection procedures of the jury for
provisions covering the issuance of summonses for jurors and service
thereof upon jurors.
1957 -- Pub. L. 85-259 inserted ''or certified'' in second and third
sentences.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
28 USC 1868. Maintenance and inspection of records
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
After the master jury wheel is emptied and refilled pursuant to
section 1863(b)(4) of this title, and after all persons selected to
serve as jurors before the master wheel was emptied have completed such
service, all records and papers compiled and maintained by the jury
commission or clerk before the master wheel was emptied shall be
preserved in the custody of the clerk for four years or for such longer
period as may be ordered by a court, and shall be available for public
inspection for the purpose of determining the validity of the selection
of any jury.
(June 25, 1948, ch. 646, 62 Stat. 953; Mar. 27, 1968, Pub. L.
90-274, 101, 82 Stat. 60.)
Based on title 28, U.S.C., 1940 ed., 416, 417 (Mar. 3, 1911, ch.
231, 279, 280, 36 Stat. 1165, Jan. 31, 1929, ch. 126, 45 Stat. 1145).
Section consolidates parts of sections 416, 417 of title 28, U.S.C.,
1940 ed., with necessary changes in phraseology.
The remaining portion of section 416 of title 28, U.S.C., 1940 ed.,
constitutes section 1867 of this title.
The remainder of section 417 of title 28, U.S.C., 1940 ed., is
incorporated in section 1866 of this title.
Words, ''in the opinion of the court, disqualified'' were substituted
for ''not an indifferent person, or is interested in the event of the
cause''.
1968 -- Pub. L. 90-274 substituted provisions for the maintenance
and inspection of records in the hands of the commission or clerk before
the master wheel was emptied for provisions covering the
disqualification of the United States marshal or his deputy and the
appointment of a disinterested person by the court.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
28 USC 1869. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For purposes of this chapter --
(a) ''clerk'' and ''clerk of the court'' shall mean the clerk of the
district court of the United States, any authorized deputy clerk, and
any other person authorized by the court to assist the clerk in the
performance of functions under this chapter;
(b) ''chief judge'' shall mean the chief judge of any district court
of the United States;
(c) ''voter registration lists'' shall mean the official records
maintained by State or local election officials of persons registered to
vote in either the most recent State or the most recent Federal general
election, or, in the case of a State or political subdivision thereof
that does not require registration as a prerequisite to voting, other
official lists of persons qualified to vote in such election. The term
shall also include the list of eligible voters maintained by any Federal
examiners pursuant to the Voting Rights Act of 1965 where the names on
such list have not been included on the official registration lists or
other official lists maintained by the appropriate State or local
officials. With respect to the districts of Guam and the Virgin
Islands, ''voter registration lists'' shall mean the official records
maintained by territorial election officials of persons registered to
vote in the most recent territorial general election;
(d) ''lists of actual voters'' shall mean the official lists of
persons actually voting in either the most recent State or the most
recent Federal general election;
(e) ''division'' shall mean: (1) one or more statutory divisions of
a judicial district; or (2) in statutory divisions that contain more
than one place of holding court, or in judicial districts where there
are no statutory divisions, such counties, parishes, or similar
political subdivisions surrounding the places where court is held as the
district court plan shall determine: Provided, That each county,
parish, or similar political subdivision shall be included in some such
division;
(f) ''district court of the United States'', ''district court'', and
''court'' shall mean any district court established by chapter 5 of this
title, and any court which is created by Act of Congress in a territory
and is invested with any jurisdiction of a district court established by
chapter 5 of this title;
(g) ''jury wheel'' shall include any device or system similar in
purpose or function, such as a properly programed electronic data
processing system or device;
(h) ''juror qualification form'' shall mean a form prescribed by the
Administrative Office of the United States Courts and approved by the
Judicial Conference of the United States, which shall elicit the name,
address, age, race, occupation, education, length of residence within
the judicial district, distance from residence to place of holding
court, prior jury service, and citizenship of a potential juror, and
whether he should be excused or exempted from jury service, has any
physical or mental infirmity impairing his capacity to serve as juror,
is able to read, write, speak, and understand the English language, has
pending against him any charge for the commission of a State or Federal
criminal offense punishable by imprisonment for more than one year, or
has been convicted in any State or Federal court of record of a crime
punishable by imprisonment for more than one year and has not had his
civil rights restored. The form shall request, but not require, any
other information not inconsistent with the provisions of this title and
required by the district court plan in the interests of the sound
administration of justice. The form shall also elicit the sworn
statement that his responses are true to the best of his knowledge.
Notarization shall not be required. The form shall contain words
clearly informing the person that the furnishing of any information with
respect to his religion, national origin, or economic status is not a
prerequisite to his qualification for jury service, that such
information need not be furnished if the person finds it objectionable
to do so, and that information concerning race is required solely to
enforce nondiscrimination in jury selection and has no bearing on an
individual's qualification for jury service.
(i) ''public officer'' shall mean a person who is either elected to
public office or who is directly appointed by a person elected to public
office;
(j) ''undue hardship or extreme inconvenience'', as a basis for
excuse from immediate jury service under section 1866(c)(1) of this
chapter, shall mean great distance, either in miles or traveltime, from
the place of holding court, grave illness in the family or any other
emergency which outweighs in immediacy and urgency the obligation to
serve as a juror when summoned, or any other factor which the court
determines to constitute an undue hardship or to create an extreme
inconvenience to the juror; and in addition, in situations where it is
anticipated that a trial or grand jury proceeding may require more than
thirty days of service, the court may consider, as a further basis for
temporary excuse, severe economic hardship to an employer which would
result from the absence of a key employee during the period of such
service;
(k) ''publicly draw'', as referred to in sections 1864 and 1866 of
this chapter, shall mean a drawing which is conducted within the
district after reasonable public notice and which is open to the public
at large under the supervision of the clerk or jury commission, except
that when a drawing is made by means of electronic data processing,
''publicly draw'' shall mean a drawing which is conducted at a data
processing center located in or out of the district, after reasonable
public notice given in the district for which juror names are being
drawn, and which is open to the public at large under such supervision
of the clerk or jury commission as the Judicial Conference of the United
States shall by regulation require; and
(l) ''jury summons'' shall mean a summons issued by a clerk of court,
jury commission, or their duly designated deputies, containing either a
preprinted or stamped seal of court, and containing the name of the
issuing clerk imprinted in preprinted, type, or facsimile manner on the
summons or the envelopes transmitting the summons.
(June 25, 1948, ch. 646, 62 Stat. 953; Oct. 16, 1963, Pub. L.
88-139, 2, 77 Stat. 248; Mar. 27, 1968, Pub. L. 90-274, 101, 82 Stat.
61; July 29, 1970, Pub. L. 91-358, title I, 172(b), 84 Stat. 590;
Sept. 29, 1972, Pub. L. 92-437, 1, 86 Stat. 740; Nov. 2, 1978, Pub. L.
95-572, 3(b), 4, 92 Stat. 2453; Nov. 6, 1978, Pub. L. 95-598, title
II, 243, 92 Stat. 2671; Nov. 14, 1986, Pub. L. 99-650, 3, 100 Stat.
3641; Nov. 19, 1988, Pub. L. 100-702, title VIII, 802(a), 804, 102
Stat. 4657, 4658.)
Based on title 28, U.S.C., 1940 ed., 423 (Mar. 3, 1911, ch. 231,
286, 36 Stat. 1166). Changes were made in phraseology.
The Voting Rights Act of 1965, referred to in subsec. (c), is Pub.
L. 89-110, Aug. 6, 1965, 79 Stat. 437, as amended, which is classified
generally to subchapters I-A ( 1973 et seq.), I-B ( 1973aa et seq.), and
I-C ( 1973bb et seq.) of chapter 20 of Title 42, The Public Health and
Welfare. For complete classification of this Act to the Code, see Short
Title note set out under section 1973 of Title 42 and Tables.
1988 -- Subsec. (a). Pub. L. 100-702, 802(a), amended subsec. (a)
generally, substituting '', any authorized deputy clerk, and any other
person authorized by the court to assist the clerk in the performance of
functions under this chapter'' for ''or any authorized deputy clerk''.
Subsec. (f). Pub. L. 100-702, 804, amended subsec. (f) generally.
Prior to amendment, subsec. (f) read as follows: '''district court of
the United States', 'district court', and 'court' shall mean courts
constituted under chapter 5 of title 28, United States Code, section 22
of the Organic Act of Guam, as amended (64 Stat. 389; 48 U.S.C. 1424),
section 21 of the Revised Organic Act of the Virgin Islands (68 Stat.
506; 48 U.S.C. 1611), and section 1 of title 3, Canal Zone Code;;''.
1986 -- Subsec. (f). Pub. L. 99-650 struck out ''except that for
purposes of sections 1861, 1862, 1866(c), 1866(d), and 1867 of this
chapter such terms shall include the Superior Court of the District of
Columbia'' after ''Canal Zone Code;''.
1978 -- Subsec. (f). Pub. L. 95-598 directed the amendment of
subsec. (f) by inserting ''chapter 6 of title 28, United States Code,''
after ''chapter 5 of title 28, United States Code,'', which amendment
did not become effective pursuant to section 402(b) of Pub. L. 95-598,
as amended, set out as an Effective Date note preceding section 101 of
Title 11, Bankruptcy.
Subsec. (h). Pub. L. 95-572, 3(b), struck out ''by pardon or
amnesty'' after ''civil rights restored''.
Subsecs. (j) to (l). Pub. L. 95-572, 4, added subsecs. (j) to (l).
1972 -- Subsec. (h). Pub. L. 92-437 added race and occupation to the
particulars to be elicited on the juror qualification form, in
provisions distinguishing between information to be requested and
information to be required, struck out ''race and occupation of a
potential juror'', and in information to be contained in the form,
struck out ''race, color'' and ''occupation'' from the particulars, and
required additional material to be contained in the form that
information concerning race is required solely to enforce
nondiscrimination in jury selection and that it has no bearing on an
individual's qualification for jury service.
1970 -- Subsec. (f). Pub. L. 91-358 substituted reference to the
Superior Court of the District of Columbia for references to the
District of Columbia Court of General Sessions and the Juvenile Court of
the District of Columbia.
1968 -- Pub. L. 90-274 substituted provisions defining ''clerk'',
''clerk of the court'', ''chief judge'', ''voter registration lists'',
''list of actual voters'', ''division'', ''district court'', ''jury
wheel'', ''juror qualification form'', and ''public officer'' for
provisions allowing the challenge of a petit juror who had been summoned
and attended court as a petit juror at any session held within one year
prior to the challenge.
1963 -- Pub. L. 88-139 substituted ''session'' for ''term''.
Section 4(a) of Pub. L. 99-650 provided in part that: ''The
provisions of this Act (amending this section) shall take effect 180
days after the date of enactment of this Act (Nov. 14, 1986)''.
Amendment by Pub. L. 95-572 applicable with respect to any grand or
petit juror summoned for service or actually serving on or after Nov.
2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective
Date note under section 1363 of this title.
Section 2 of Pub. L. 92-437 provided that: ''This Act (amending
this section) shall take effect on the sixtieth day after the date of
its enactment (Sept. 29, 1972).''
Amendment by Pub. L. 91-358 effective first day of seventh calendar
month which begins after July 29, 1970, see section 199(a) of Pub. L.
91-358, set out as a note under section 1257 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
For termination of the United States District Court for the District
of the Canal Zone at end of the ''transition period'', being the
30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31,
1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977
and sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and
Intercourse.
28 USC 1870. Challenges
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In civil cases, each party shall be entitled to three peremptory
challenges. Several defendants or several plaintiffs may be considered
as a single party for the purposes of making challenges, or the court
may allow additional peremptory challenges and permit them to be
exercised separately or jointly.
All challenges for cause or favor, whether to the array or panel or
to individual jurors, shall be determined by the court.
(June 25, 1948, ch. 646, 62 Stat. 953; Sept. 16, 1959, Pub. L.
86-282, 73 Stat. 565.)
Based on title 28, U.S.C., 1940 ed., 424 (Mar. 3, 1911, ch. 231,
287, 36 Stat. 1166).
Provisions of section 424 of title 28, U.S.C., 1940 ed., relating to
the number of peremptory challenges in criminal cases were deleted as
superseded by Rule 24 of the Federal Rules of Criminal Procedure.
The last sentence of the first paragraph was added to permit the same
flexibility in the matter of challenges in civil cases as is permitted
in criminal cases by said Rule 24.
Words ''without aid of triers'' at end of section 424 of title 28,
U.S.C., 1940 ed., were omitted as surplusage.
Changes were made in phraseology.
1959 -- Pub. L. 86-282 substituted ''may'' for ''shall'' after
''several plaintiffs'', and '', or the court may allow'' for ''. If
there is more than one defendant the court may allow the defendants''.
Alternate jurors, challenges, see rule 47, Appendix to this title.
Jurors and juries, see rules 38, 39, 47 and 48.
Criminal cases, jury challenges, see rule 24, Title 18, Appendix,
Crimes and Criminal Procedure.
Challenges in summary trials, see section 394 of Title 33, Navigation
and Navigable Waters.
28 USC 1871. Fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Grand and petit jurors in district courts appearing pursuant to
this chapter shall be paid the fees and allowances provided by this
section. The requisite fees and allowances shall be disbursed on the
certificate of the clerk of court in accordance with the procedure
established by the Director of the Administrative Office of the United
States Courts. Attendance fees for extended service under subsection
(b) of this section shall be certified by the clerk only upon the order
of a district judge.
(b)(1) A juror shall be paid an attendance fee of $40 per day for
actual attendance at the place of trial or hearing. A juror shall also
be paid the attendance fee for the time necessarily occupied in going to
and returning from such place at the beginning and end of such service
or at any time during such service.
(2) A petit juror required to attend more than thirty days in hearing
one case may be paid, in the discretion of the trial judge, an
additional fee, not exceeding $10 more than the attendance fee, for each
day in excess of thirty days on which he is required to hear such case.
(3) A grand juror required to attend more than forty-five days of
actual service may be paid, in the discretion of the district judge in
charge of the particular grand jury, an additional fee, not exceeding
$10 more than the attendance fee, for each day in excess of forty-five
days of actual service.
(4) A grand or petit juror required to attend more than ten days of
actual service may be paid, in the discretion of the judge, the
appropriate fees at the end of the first ten days and at the end of
every ten days of service thereafter.
(5) Certification of additional attendance fees may be ordered by the
judge to be made effective commencing on the first day of extended
service, without reference to the date of such certification.
(c)(1) A travel allowance not to exceed the maximum rate per mile
that the Director of the Administrative Office of the United States
Courts has prescribed pursuant to section 604(a)(7) of this title for
payment to supporting court personnel in travel status using privately
owned automobiles shall be paid to each juror, regardless of the mode of
transportation actually employed. The prescribed rate shall be paid for
the distance necessarily traveled to and from a juror's residence by the
shortest practical route in going to and returning from the place of
service. Actual mileage in full at the prescribed rate is payable at
the beginning and at the end of a juror's term of service.
(2) The Director shall promulgate rules regulating interim travel
allowances to jurors. Distances traveled to and from court should
coincide with the shortest practical route.
(3) Toll charges for toll roads, bridges, tunnels, and ferries shall
be paid in full to the juror incurring such charges. In the discretion
of the court, reasonable parking fees may be paid to the juror incurring
such fees upon presentation of a valid parking receipt. Parking fees
shall not be included in any tabulation of mileage cost allowances.
(4) Any juror who travels to district court pursuant to summons in an
area outside of the contiguous forty-eight States of the United States
shall be paid the travel expenses provided under this section, or actual
reasonable transportation expenses subject to the discretion of the
district judge or clerk of court as circumstances indicate, exercising
due regard for the mode of transportation, the availability of
alternative modes, and the shortest practical route between residence
and court.
(5) A grand juror who travels to district court pursuant to a summons
may be paid the travel expenses provided under this section or, under
guidelines established by the Judicial Conference, the actual reasonable
costs of travel by aircraft when travel by other means is not feasible
and when certified by the chief judge of the district court in which the
grand juror serves.
(d)(1) A subsistence allowance covering meals and lodging of jurors
shall be established from time to time by the Director of the
Administrative Office of the United States Courts pursuant to section
604(a)(7) of this title, except that such allowance shall not exceed the
allowance for supporting court personnel in travel status in the same
geographical area. Claims for such allowance shall not require
itemization.
(2) A subsistence allowance shall be paid to a juror when an
overnight stay is required at the place of holding court, and for the
time necessarily spent in traveling to and from the place of attendance
if an overnight stay is required.
(3) A subsistence allowance for jurors serving in district courts
outside of the contiguous forty-eight States of the United States shall
be allowed at a rate not to exceed that per diem allowance which is paid
to supporting court personnel in travel status in those areas where the
Director of the Administrative Office of the United States Courts has
prescribed an increased per diem fee pursuant to section 604(a)(7) of
this title.
(e) During any period in which a jury is ordered to be kept together
and not to separate, the actual cost of subsistence shall be paid upon
the order of the court in lieu of the subsistence allowances payable
under subsection (d) of this section. Such allowance for the jurors
ordered to be kept separate or sequestered shall include the cost of
meals, lodging, and other expenditures ordered in the discretion of the
court for their convenience and comfort.
(f) A juror who must necessarily use public transportation in
traveling to and from court, the full cost of which is not met by the
transportation expenses allowable under subsection (c) of this section
on account of the short distance traveled in miles, may be paid, in the
discretion of the court, the actual reasonable expense of such public
transportation, pursuant to the methods of payment provided by this
section. Jurors who are required to remain at the court beyond the
normal business closing hour for deliberation or for any other reason
may be transported to their homes, or to temporary lodgings where such
lodgings are ordered by the court, in a manner directed by the clerk and
paid from funds authorized under this section.
(g) The Director of the Administrative Office of the United States
Courts shall promulgate such regulations as may be necessary to carry
out his authority under this section.
(June 25, 1948, ch. 646, 62 Stat. 953; May 24, 1949, ch. 139, 97,
63 Stat. 103; July 14, 1949, ch. 333, 63 Stat. 411; Sept. 7, 1957,
Pub. L. 85-299, 71 Stat. 618; Sept. 2, 1965, Pub. L. 89-165, 79 Stat.
645; Mar. 27, 1968, Pub. L. 90-274, 102(a), 82 Stat. 62; Nov. 2,
1978, Pub. L. 95-572, 5, 92 Stat. 2454; Dec. 1, 1990, Pub. L.
101-650, title III, 314(b), 104 Stat. 5115; Oct. 29, 1992, Pub. L.
102-572, title IV, 402, 106 Stat. 4511.)
Based on title 28, U.S.C., 1940 ed., 600, 600a, 600b, 608, and
sections 11-1512 and 11-1513 of the D.C. Code, 1940 ed., (R.S. 236,
323; Apr. 26, 1926, ch. 183, 1, 2, 44 Stat. 323; May 17, 1932, ch.
190, 47 Stat. 158; Oct. 13, 1941, ch. 431, 2, 55 Stat. 736).
Section consolidates section 600 of title 28, U.S.C., 1940 ed., and
sections 11-1512 and 11-1513 of the D.C. Code, 1940 ed., with part of
section 608 of title 28, U.S.C., 1940 ed. The remainder of such section
608, relating to payment of witnesses' compensation, is the basis of
section 1825 of this title.
Words ''place of service'' were substituted for references to
attendance at court, in view of the earlier reference to service before
commissioners.
The Advisory Committee to the House Committee on Revision of the Laws
in revision of this title, recommends a careful study of the
compensation of witnesses and jurors. Furthermore, provision should be
made for the subsistence of jurors and witnesses serving at such
distance from their homes as precludes daily travel to and from the
court.
Changes were made in phraseology.
This section incorporates in section 1871 of title 28, U.S.C., with
changes in phraseology, the provisions of act of June 25, 1948 (ch. 652,
62 Stat. 1016), which became law subsequent to the enactment of the
revision.
1992 -- Subsec. (c)(5). Pub. L. 102-572 added par. (5).
1990 -- Subsec. (b). Pub. L. 101-650 substituted ''$40'' for ''$30''
in par. (1) and ''$10'' for ''$5'' in pars. (2) and (3).
1978 -- Subsecs. (a) to (g). Pub. L. 95-572, in revising text,
substituted subsecs. (a) to (g) for prior five unnumbered paragraphs,
and among other changes, deleted reference to fees for service before
United States commissioners, now provided for in chapter 43 (section 631
et seq.) of this title relating to United States magistrates; increased
to $30 from $20 allowance for actual attendance; continued the
discretionary additional fee for extended service, increasing to
forty-five from thirty days the basic service requirement; generalized
travel allowance provisions in place of 10 cents per mile travel
allowance from residence to place of service when commencing and
terminating service and any necessary daily or interim travel, not to
exceed a subsistence allowance of $16 per day; and deleted provision
for same fees for service in districts courts for districts of Guam and
Canal Zone as provided for services in other Federal district courts as
covered in definition of ''district court of the United States'' in
section 1869(f) of this title.
1968 -- Pub. L. 90-274 increased from $10 to $20 the per diem
allowance for grand and petit jurors, increased from $14 to $25 the fee
for extra days in cases requiring attendance in excess of 30 days,
increased from $10 to $16 the daily subsistence rate when travel appears
impracticable, increased from $10 to $20 per day the limit after which
payment of fees by the marshal must be on the certificate of the trial
judge, provided for the allowance of amounts expended for tolls, for
toll roads, for toll tunnels, and for toll bridges, and directed that
grand and petit jurors in the district courts for the districts of Guam
and the Canal Zone receive the same fees and allowances provided for
grand and petit jurors in other district courts of the United States.
1965 -- Pub. L. 89-165 increased from $7 to $10 the per diem
allowance for grand and petit jurors, increased from $10 to $14 the fee
for extra days in cases requiring attendance in excess of 30 days,
prohibited payment for interim or daily travel at the 10-cent-per-mile
rate in excess of the subsistence allowance which would have been paid
if he had remained at the place of holding court overnight or during
temporary recess, increased from $7 to $10 the daily subsistence rate
when travel daily appears impracticable, and increased from $7 to $10
per day the limit after which payment of fees by the marshal must be on
the certificate of the trial judge.
1957 -- Pub. L. 85-299 increased from 7 to 10 cents per mile and $5
to $7 per day the mileage and subsistence allowances of grand and petit
jurors.
1949 -- Act July 14, 1949, increased the per diem fee paid jurors
from $5 to $7, provided for per diem fee payments not to exceed $10 for
each day in excess of thirty days, increased the mileage payment from 5
cents per mile to 7 cents, and provided for the certification of the
judge in cases where the jury fee is in excess of $7 per diem.
Act May 24, 1949, increased jury fees and mileage and subsistence
allowances.
Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section
1101(a) of Pub. L. 102-572, set out as a note under section 905 of
Title 2, The Congress.
Amendment by Pub. L. 95-572 applicable with respect to any grand or
petit juror serving on or after the sixtieth day following Nov. 2,
1978, see section 7(b) of Pub. L. 95-572, set out as an Effective Date
note under section 1363 of this title.
Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968,
except as to cases in which an indictment has been returned or a petit
jury empaneled prior to such effective date, see section 104 of Pub. L.
90-274, set out as a note under section 1861 of this title.
Pub. L. 101-162, title IV, Nov. 21, 1989, 103 Stat. 1012, provided:
''That for fiscal year 1990 and hereafter, funds appropriated under
this heading (Courts of Appeals, District Courts and Other Judicial
Services and fees of jurors and commissioners) shall be available for
refreshment of jurors.''
Accounts of marshal, see section 567 of this title.
28 USC 1872. Issues of fact in Supreme Court
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In all original actions at law in the Supreme Court against citizens
of the United States, issues of fact shall be tried by a jury.
(June 25, 1948, ch. 646, 62 Stat. 953.)
Based on title 28, U.S.C., 1940 ed., 343 (Mar. 3, 1911, ch. 231,
235, 36 Stat. 1156).
Changes were made in phraseology.
28 USC 1873. Admiralty and maritime cases
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any case of admiralty and maritime jurisdiction relating to any
matter of contract or tort arising upon or concerning any vessel of
twenty tons or upward, enrolled and licensed for the coasting trade, and
employed in the business of commerce and navigation between places in
different states upon the lakes and navigable waters connecting said
lakes, the trial of all issues of fact shall be by jury if either party
demands it.
(June 25, 1948, ch. 646, 62 Stat. 953.)
Based on title 28, U.S.C., 1940 ed., 770 (R.S. 566, 648; Mar. 3,
1911, ch. 231, 291, 36 Stat. 1167).
Words ''and Territories'' following words ''in different States''
were omitted as obsolete. The act of February 26, 1845, ch. 20, 5
Stat. 726, from which this language was derived was intended primarily
to cover the Great Lakes regions.
The first sentence of section 770 of title 28, U.S.C., 1940 ed.,
providing generally for the right of jury trials in district courts, was
omitted as covered by Rule 38 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Jury trial of right, see rule 38, Appendix to this title.
Trial by jury, see rule 23, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC 1874. Actions on bonds and specialties
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In all actions to recover the forfeiture annexed to any articles of
agreement, covenant, bond, or other specialty, wherein the forfeiture,
breach, or nonperformance appears by default or confession of the
defendant, the court shall render judgment for the plaintiff for such
amount as is due. If the sum is uncertain, it shall, upon request of
either party, be assessed by a jury.
(June 25, 1948, ch. 646, 62 Stat. 953.)
Based on title 28, U.S.C., 1940 ed., 785 (R.S. 961).
Word ''actions'' was substituted for ''all suits brought,'' in view
of Rule 2 of the Federal Rules of Civil Procedure. For the same reason,
words ''according to equity,'' after ''to recover so much as is due,''
were omitted.
Words ''or upon demurrer,'' after ''default or confession of the
defendant,'' were omitted in view of Federal Rules of Civil Procedure,
Rule 7(c), abolishing demurrers.
Changes were made in phraseology.
28 USC 1875. Protection of jurors' employment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) No employer shall discharge, threaten to discharge, intimidate,
or coerce any permanent employee by reason of such employee's jury
service, or the attendance or scheduled attendance in connection with
such service, in any court of the United States.
(b) Any employer who violates the provisions of this section --
(1) shall be liable for damages for any loss of wages or other
benefits suffered by an employee by reason of such violation;
(2) may be enjoined from further violations of this section and
ordered to provide other appropriate relief, including but not limited
to the reinstatement of any employee discharged by reason of his jury
service; and
(3) shall be subject to a civil penalty of not more than $1,000 for
each violation as to each employee.
(c) Any individual who is reinstated to a position of employment in
accordance with the provisions of this section shall be considered as
having been on furlough or leave of absence during his period of jury
service, shall be reinstated to his position of employment without loss
of seniority, and shall be entitled to participate in insurance or other
benefits offered by the employer pursuant to established rules and
practices relating to employees on furlough or leave of absence in
effect with the employer at the time such individual entered upon jury
service.
(d)(1) An individual claiming that his employer has violated the
provisions of this section may make application to the district court
for the district in which such employer maintains a place of business
and the court shall, upon finding probable merit in such claim, appoint
counsel to represent such individual in any action in the district court
necessary to the resolution of such claim. Such counsel shall be
compensated and necessary expenses repaid to the extent provided by
section 3006A of title 18, United States Code.
(2) In any action or proceeding under this section, the court may
award a prevailing employee who brings such action by retained counsel a
reasonable attorney's fee as part of the costs. The court may tax a
defendant employer, as costs payable to the court, the attorney fees and
expenses incurred on behalf of a prevailing employee, where such costs
were expended by the court pursuant to paragraph (1) of this subsection.
The court may award a prevailing employer a reasonable attorney's fee
as part of the costs only if the court finds that the action is
frivolous, vexatious, or brought in bad faith.
(Added Pub. L. 95-572, 6(a)(1), Nov. 2, 1978, 92 Stat. 2456;
amended Pub. L. 97-463, 1, Jan. 12, 1983, 96 Stat. 2531.)
1983 -- Subsec. (d)(1). Pub. L. 97-463, 1(1), substituted
designation ''(d)(1)'' for ''(d)'' before ''An individual claiming''.
Subsec. (d)(2). Pub. L. 97-463, 1(2), inserted provision empowering
the court to tax a defendant employer, as costs payable to the court,
the attorney fees and expenses incurred on behalf of a prevailing
employee, where such costs were expended by the court pursuant to par.
(1) of this subsection and, in existing provisions, substituted ''only
if the court finds that the action is frivolous'' for ''if the court
determines that the action is frivolous''.
Section applicable with respect to any grand or petit juror summoned
for service or actually serving on or after Nov. 2, 1978, see section
7(a) of Pub. L. 95-572, set out as a note under section 1363 of this
title.
28 USC 1876. Trial by jury in the Court of International Trade
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In any civil action in the Court of International Trade which is
to be tried before a jury, the jury shall be selected in accordance with
the provisions of this chapter and under the procedures set forth in the
jury selection plan of the district court for the judicial district in
which the case is to be tried.
(b) Whenever the Court of International Trade conducts a jury trial
--
(1) the clerk of the district court for the judicial district in
which the Court of International Trade is sitting, or an authorized
deputy clerk, shall act as clerk of the Court of International Trade for
the purposes of selecting and summoning the jury;
(2) the qualifications for jurors shall be the same as those
established by section 1865(b) of this title for jurors in the district
courts of the United States;
(3) each party shall be entitled to challenge jurors in accordance
with section 1870 of this title; and
(4) jurors shall be compensated in accordance with section 1871 of
this title.
(Added Pub. L. 96-417, title III, 302(a), Oct. 10, 1980, 94 Stat.
1739.)
Section applicable with respect to civil actions commenced on or
after Nov. 1, 1980, see section 701(b)(1)(C) of Pub. L. 96-417, set
out as an Effective Date of 1980 Amendment note under section 251 of
this title.
28 USC 1877. Protection of jurors
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Subject to the provisions of this section and title 5 of the
United States Code, subchapter 1 of chapter 81, title 5, United States
Code, applies to a Federal grand or petit juror, except that entitlement
to disability compensation payments does not commence until the day
after the date of termination of service as a juror.
(b) In administering this section with respect to a juror covered by
this section --
(1) a juror is deemed to receive monthly pay at the minimum rate for
grade GS-2 of the General Schedule unless his actual pay as a Government
employee while serving on court leave is higher, in which case monthly
pay is determined in accordance with section 8114 of title 5, United
States Code, and
(2) performance of duty as a juror includes that time when a juror is
(A) in attendance at court pursuant to a summons, (B) in deliberation,
(C) sequestered by order of a judge, or (D) at a site, by order of the
court, for the taking of a view.
(Added Pub. L. 97-463, 3(1), Jan. 12, 1983, 96 Stat. 2531.)
28 USC 1878. Optional use of a one-step summoning and qualification
procedure
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) At the option of each district court, jurors may be summoned and
qualified in a single procedure, if the court's jury selection plan so
authorizes, in lieu of the two separate procedures otherwise provided
for by this chapter. Courts shall ensure that a one-step summoning and
qualification procedure conducted under this section does not violate
the policies and objectives set forth in sections 1861 and 1862 of this
title.
(b) Jury selection conducted under this section shall be subject to
challenge under section 1867 of this title for substantial failure to
comply with the provisions of this title in selecting the jury.
However, no challenge under section 1867 of this title shall lie solely
on the basis that a jury was selected in accordance with a one-step
summoning and qualification procedure authorized by this section.
(Added Pub. L. 100-702, title VIII, 805(a), Nov. 19, 1988, 102 Stat.
4658; amended Pub. L. 102-572, title IV, 403(a), Oct. 29, 1992, 106
Stat. 4512.)
1992 -- Pub. L. 102-572 substituted ''Optional'' for
''Experimental'' in section catchline and amended text generally. Prior
to amendment, text read as follows:
''(a) The Judicial Conference of the United States is hereby
authorized to develop and conduct an experiment in which jurors serving
in a limited number of United States district courts shall be qualified
and summoned in a single procedure, in lieu of the two separate
procedures otherwise provided for by this chapter. The Judicial
Conference shall designate the district courts to participate in this
experiment, but in no event shall the number of courts participating
exceed ten. An experiment may be conducted pursuant to this section for
a period not to exceed 2 years. The Judicial Conference shall ensure
that an experiment conducted pursuant to this section does not violate
the policies and objectives set forth in sections 1861 and 1862 of this
title, and shall terminate the experiment immediately if it determines
that these policies and objectives are being violated or whenever in its
judgment good cause for such termination exists.
''(b) Jury selection conducted pursuant to this section shall be
subject to challenge under section 1867 of this title for substantial
failure to comply with the provisions of this title in selecting the
jury. However, no challenge under section 1867 of this title shall lie
solely on the basis that a jury was selected in accordance with an
experiment conducted pursuant to this section.''
Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section
1101(a) of Pub. L. 102-572, set out as a note under section 905 of
Title 2, The Congress.
Section 403(c) of Pub. L. 102-572 provided that: ''For courts
participating in the experiment authorized under section 1878 of title
28, United States Code (as in effect before the effective date of this
section (Jan. 1, 1993)), the amendment made by subsection (a) of this
section (amending this section) shall be effective on and after January
1, 1992.''
28 USC CHAPTER 123 -- FEES AND COSTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1911. Supreme Court.
1912. Damages and costs on affirmance.
1913. Courts of appeals.
1914. District court; filing and miscellaneous fees; rules of
court.
1915. Proceedings in forma pauperis.
1916. Seamen's suits.
1917. District courts; fee on filing notice of or petition for
appeal.
1918. District courts; fines, forfeitures and criminal proceedings.
1919. Dismissal for lack of jurisdiction.
1920. Taxation of costs.
1921. United States marshal's fees.
1922. Witness fees before United States commissioners.
1923. Docket fees and costs of briefs.
1924. Verification of bill of costs.
1925. Admiralty and maritime cases.
1926. Court of Federal Claims.
1927. Counsel's liability for excessive costs.
1928. Patent infringement action; disclaimer not filed.
1929. Extraordinary expenses not expressly authorized.
1930. Bankruptcy fees.
1931. Disposition of filing fees.
1992 -- Pub. L. 102-572, title IX, 902(b)(2), 908(b)(2), Oct. 29,
1992, 106 Stat. 4516, 4519, substituted ''Dismissal'' for ''District
courts; dismissal'' in item 1919 and ''Court of Federal Claims'' for
''Claims Court'' as item 1926.
1988 -- Pub. L. 100-702, title X, 1020(a)(8), Nov. 19, 1988, 102
Stat. 4672, substituted ''court'' for ''courts'' after ''District'' in
item 1914.
1986 -- Pub. L. 99-500, 101(b) (title IV, 407(d)), Oct. 18, 1986,
100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, 101(b) (title IV,
407(d)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64, added item 1931.
1984 -- Pub. L. 98-353, title I, 111(c), July 10, 1984, 98 Stat.
343, substituted ''fees'' for ''courts'' in item 1930. Notwithstanding
directory language that the amendment be made to the table of sections
for chapter 125 of this title, the amendment was executed to the table
of sections for chapter 123 of this title to reflect the probable intent
of Congress.
1982 -- Pub. L. 97-164, title I, 139(p)(2), Apr. 2, 1982, 96 Stat.
44, substituted ''Claims Court'' for ''Court of Customs and Patent
Appeals'' in item 1926.
1978 -- Pub. L. 95-598, title II, 246(b), Nov. 6, 1978, 92 Stat.
2672, added item 1930.
Jury fees, see section 1871 of this title.
Witnesses, fees and subsistence, see section 1821 et seq. of this
title.
1398.
28 USC 1911. Supreme Court
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Supreme Court may fix the fees to be charged by its clerk.
The fees of the clerk, cost of serving process, and other necessary
disbursements incidental to any case before the court, may be taxed
against the litigants as the court directs.
(June 25, 1948, ch. 646, 62 Stat. 954.)
Based on title 28, U.S.C., 1940 ed., 330 (Mar. 3, 1911, ch. 231,
223, 36 Stat. 1153).
The second paragraph was inserted to give statutory sanction to
existing practice.
Changes were made in phraseology.
Fees to be charged pursuant to this section, see rule 38, Appendix to
this title.
Payment by clerk into Treasury of all fees, costs, and emoluments,
see section 671 of this title.
28 USC 1912. Damages and costs on affirmance
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Where a judgment is affirmed by the Supreme Court or a court of
appeals, the court in its discretion may adjudge to the prevailing party
just damages for his delay, and single or double costs.
(June 25, 1948, ch. 646, 62 Stat. 954.)
Based on title 28, U.S.C., 1940 ed., 878, and section 1141(c)(4) of
title 26 U.S.C., 1940 ed., Internal Revenue Code (R.S. 1010; Mar. 3,
1911, ch. 231, 117, 289, 36 Stat. 1131, 1167; Feb. 10, 1939, ch. 2,
1141(c)(4), 53 Stat. 165).
Section consolidates section 878 of title 28 with section 1141(c)(4)
of title 26, both U.S.C., 1940 ed., with changes in phraseology
necessary to effect consolidation.
Words ''prevailing party'' were substituted for ''the respondents in
error,'' contained in said section 878 of title 28, since writs of error
have been abolished.
By Senate amendment, all provisions relating to the Tax Court were
eliminated. Therefore, section 1141(c)(4) of Title 26, U.S.C., Internal
Revenue Code, was not one of the sources of this section as finally
enacted. However, no change in the text of this section was necessary.
See 80th Congress Senate Report No. 1559.
Interest and damages, see rule 42, Appendix to this title.
Damages and costs in Courts of Appeals, see rules of the various
Courts of Appeals.
28 USC 1913. Courts of appeals
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The fees and costs to be charged and collected in each court of
appeals shall be prescribed from time to time by the Judicial Conference
of the United States. Such fees and costs shall be reasonable and
uniform in all the circuits.
(June 25, 1948, ch. 646, 62 Stat. 954.)
Based on title 28, U.S.C., 1940 ed., 543 (Mar. 3, 1891, ch. 517, 2,
26 Stat. 826; Feb. 19, 1897, ch. 263, 29 Stat. 536; Sept. 27, 1944,
ch. 413, 58 Stat. 743).
Words ''and in the United States Circuit Court of Appeals for the
District of Columbia'' were omitted as covered by ''each court of
appeals.''
Judicial Conference of Senior Circuit Judges was changed to Judicial
Conference ''of the United States'' in conformity with section 331 of
this title.
Changes were made in phraseology.
Pub. L. 102-140, title III, 303, Oct. 28, 1991, 105 Stat. 810,
provided that:
''(a) The Judicial Conference shall hereafter prescribe reasonable
fees, pursuant to sections 1913, 1914, 1926, and 1930 of title 28,
United States Code, for collection by the courts under those sections
for access to information available through automatic data processing
equipment. These fees may distinguish between classes of persons, and
shall provide for exempting persons or classes of persons from the fees,
in order to avoid unreasonable burdens and to promote public access to
such information. The Director of the Administrative Office of the
United States Courts, under the direction of the Judicial Conference of
the United States, shall prescribe a schedule of reasonable fees for
electronic access to information which the Director is required to
maintain and make available to the public.
''(b) The Judicial Conference and the Director shall transmit each
schedule of fees prescribed under paragraph (a) to the Congress at least
30 days before the schedule becomes effective. All fees hereafter
collected by the Judiciary under paragraph (a) as a charge for services
rendered shall be deposited as offsetting collections to the Judiciary
Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A) to reimburse expenses
incurred in providing these services.''
Similar provisions were contained in the following prior
appropriation act:
Pub. L. 101-515, title IV, 404, Nov. 5, 1990, 104 Stat. 2132.
Fees to be charged for services performed by clerks of courts of
appeals (except that no fees are to be charged for services rendered on
behalf of the United States).
1. For docketing a case on appeal or review, or docketing any other
proceeding, $100.00. A separate fee shall be paid by each party filing a
notice of appeal in the district court, but parties filing a joint
notice of appeal in the district court are required to pay only one fee.
A docketing fee shall not be charged for the docketing of an
application for the allowance of an interlocutory appeal under 28 U.S.C.
1292(b), unless the appeal is allowed.
2. For every search of the records of the court and certifying the
results thereof, $15.00.
3. For certification or exemplification of any document or paper,
whether the certification is made directly on the document, or by
separate instrument, $5.00.
4. For reproducing any record or paper, 50 cents per page. This fee
shall apply to paper copies made from either: (1) original documents;
or (2) microfiche or microfilm reproductions of the original records.
5. For reproduction of magnetic tape recordings, either cassette or
reel-to-reel, $15.00 including the cost of materials.
6. For reproduction of the record in any appeal in which the
requirement of an appendix is dispensed with by any court of appeals
pursuant to Rule 30(f), F.R.A.P., a flat fee of $25.00.
7. For each microfiche or microfilm copy of any court record, where
available, $3.00.
8. For retrieval of a record from a Federal Records Center, National
Archives, or other storage location removed from the place of business
of the court, $25.00.
9. For a check paid into the court which is returned for lack of
funds, $25.00.
10. Fees to be charged and collected for copies of opinions shall be
fixed, from time to time, by each court, commensurate with the cost of
printing.
11. The court may charge and collect fees, commensurate with the cost
of printing, for copies of the local rules of court. The court may also
distribute copies of the local rules without charge.
12. The clerk shall assess a charge of up to three percent for the
handling of registry funds, to be assessed from interest earnings and in
accordance with the detailed fee schedule issued by the Director of the
Administrative Office of the United States Courts.
Fees and costs, see rules of the various Courts of Appeals.
Power of Judicial Conference of the United States, see section 331 of
this title.
28 USC 1914. District court; filing and miscellaneous fees; rules of
court
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The clerk of each district court shall require the parties
instituting any civil action, suit or proceeding in such court, whether
by original process, removal or otherwise, to pay a filing fee of $120,
except that on application for a writ of habeas corpus the filing fee
shall be $5.
(b) The clerk shall collect from the parties such additional fees
only as are prescribed by the Judicial Conference of the United States.
(c) Each district court by rule or standing order may require advance
payment of fees.
(June 25, 1948, ch. 646, 62 Stat. 954; Nov. 6, 1978, Pub. L.
95-598, title II, 244, 92 Stat. 2671; June 19, 1986, Pub. L. 99-336,
4(a), 100 Stat. 637; Oct. 18, 1986, Pub. L. 99-500, 101(b) (title IV,
407(a)), 100 Stat. 1783-39, 1783-64, and Oct. 30, 1986, Pub. L. 99-591,
101(b) (title IV, 407(a)), 100 Stat. 3341-39, 3341-64.)
Based on title 28, U.S.C., 1940 ed., 549, 553 and 555 (R.S. 828;
June 28, 1902, ch. 1301, 1, 32 Stat. 476; Feb. 11, 1925, ch. 204,
2, 6, 8, 43 Stat. 857, 858; Jan. 22, 1927, ch. 50, 2, 44 Stat. 1023;
Jan. 31, 1928, ch. 14, 1, 45 Stat. 54; Mar. 3, 1942, ch. 124, 2, 56
Stat. 122; Sept. 27, 1944, ch. 414, 1, 4, 5, 58 Stat. 743, 744).
Section consolidates sections 549, 553, and 555 of title 28, U.S.C.,
1940 ed., as amended with necessary changes of phraseology.
The phrase ''filing fee'' was substituted for the inconsistent and
misleading words of sections 549 and 553 of title 28, U.S.C., 1940 ed.,
''as full payment for all services to be rendered by the clerk'' etc.
thus removing the necessity for including exceptions and referring to
other sections containing provisions for additional fees.
The provision in section 549 of title 28, U.S.C., 1940 ed., for
payment of fees by the parties instituting criminal proceedings by
indictment or information, was omitted. Such proceedings are instituted
only by the United States from which costs cannot be exacted.
The provision in section 549 of title 28, U.S.C., 1940 ed., for
taxation of fees as costs, was omitted as covered by section 1920 of
this title.
Words ''or appeal from a deportation order of a United States
Commissioner'' in section 553 of title 28, U.S.C., 1940 ed., were
omitted as obsolete since repeal of the Chinese Exclusion Act by act
Dec. 17, 1943, ch. 344, 1, 57 Stat. 600. Appeal was formerly
conferred by section 282 of title 8, U.S.C., 1940 ed., Aliens and
Nationality.
Subsection (d) excepting the District of Columbia, was added to
preserve the existing schedule of fees prescribed by section 11-1509 of
the District of Columbia Code, 1940 ed.
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
1986 -- Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591 substituted
''$120'' for ''$60''.
Subsec. (d). Pub. L. 99-336 struck out subsec. (d) which provided
that section was not applicable to District of Columbia.
1978 -- Subsec. (a). Pub. L. 95-598 substituted ''$60'' for ''$15''.
Section 4(c) of Pub. L. 99-336 provided that: ''The amendments made
by this section (amending this section) shall apply with respect to any
civil action, suit, or proceeding instituted on or after the date of the
enactment of this Act (June 19, 1986).''
Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section
402(c) of Pub. L. 95-598, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy.
Judicial Conference to prescribe reasonable fees for collection by
courts under this section for access to information available through
automatic data processing equipment and fees to be deposited in
Judiciary Automation Fund, see section 303 of Pub. L. 102-140, set out
as a note under section 1913 of this title.
Fees to be charged for services to be performed by clerks of the
district courts (except that no fees are to be charged for services
rendered on behalf of the United States).
(1) For filing or indexing any paper not in a case or proceeding for
which a case filing fee has been paid, $20. This fee is applicable to
the filing of a petition to perpetuate testimony, Rule 27(a), Federal
Rules of Civil Procedure, the filing of papers by trustees under 28
U.S.C. 754, the filing of letters rogatory or letters of request, and
registering of a judgment from another district pursuant to 28 U.S.C.
1963.
(2) For every search of the records of the district court conducted
by the clerk of the district court or a deputy clerk, $15 per name or
item searched.
(3) For certification or exemplification of any document or paper,
whether the certification is made directly on the document or by
separate instrument, $5.
(4) For reproducing any record or paper, 50 cents per page. This fee
shall apply to paper copies made from either: (1) original documents;
or (2) microfiche or microfilm reproductions of the original records.
(5) For reproduction of magnetic tape recordings, either cassette or
reel-to-reel, $15 including the cost of materials.
(6) For transcribing a record of any proceeding by a regularly
employed member of the court staff who is not entitled by statute to
retain the transcript fees for his or her own account, a charge shall be
made at the same rate and conditions established by the Judicial
Conference for transcripts prepared and sold to parties by official
court reporters.
(7) For each microfiche sheet of film or microfilm jacket copy of any
court record, where available, $3.
(8) For retrieval of a record from a Federal Records Center, National
Archives, or other storage location removed from the place of business
of the court, $25.
(9) For a check paid into the court which is returned for lack of
funds, $25.
(10) For an appeal to a district judge from a judgment of conviction
by a magistrate in a misdemeanor case, $25.
(11) For admission of attorneys to practice, $20 each, including a
certificate of admission. For a duplicate certificate of admission or
certificate of good standing, $5.
(12) The court may charge and collect fees, commensurate with the
cost of printing, for copies of the local rules of court. The court may
also distribute copies of the local rules without charge.
(13) The clerk shall assess a charge of up to three percent for the
handling of registry funds, to be assessed from interest earnings and in
accordance with the detailed fee schedule issued by the Director of the
Administrative Office of the United States Courts.
(14) For usage of electronic access to court data, $1 per minute of
usage (provided the court may, for good cause, exempt persons or classes
of persons from the fees, in order to avoid unreasonable burdens and to
promote public access to such information). All such fees collected
shall be deposited to the Judiciary Automation Fund.
Advance payment of fees, see local rules of the various district
courts.
Appeal of certiorari, fee of $5 on filing notice of or petition, or
upon receipt of order allowing, or notice of allowance of, see section
1917 of this title.
Exemption of United States from payment of fees, see section 2412 of
this title.
Payment by clerk into Treasury of all fees, costs and other moneys
collected, see section 751 of this title.
Power of Judicial Conference of the United States, see section 331 of
this title.
Reporter's fee for copy of transcript, see section 753 of this title.
Taxation of costs, see section 1920 of this title.
In admiralty and maritime cases, see section 1925 of this title.
28 USC 1915. Proceedings in forma pauperis
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Any court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or
criminal, or appeal therein, without prepayment of fees and costs or
security therefor, by a person who makes affidavit that he is unable to
pay such costs or give security therefor. Such affidavit shall state
the nature of the action, defense or appeal and affiant's belief that he
is entitled to redress.
An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.
(b) Upon the filing of an affidavit in accordance with subsection (a)
of this section, the court may direct payment by the United States of
the expenses of (1) printing the record on appeal in any civil or
criminal case, if such printing is required by the appellate court; (2)
preparing a transcript of proceedings before a United States magistrate
in any civil or criminal case, if such transcript is required by the
district court, in the case of proceedings conducted under section
636(b) of this title or under section 3401(b) of title 18, United States
Code; and (3) printing the record on appeal if such printing is
required by the appellate court, in the case of proceedings conducted
pursuant to section 636(c) of this title. Such expenses shall be paid
when authorized by the Director of the Administrative Office of the
United States Courts.
(c) The officers of the court shall issue and serve all process, and
perform all duties in such cases. Witnesses shall attend as in other
cases, and the same remedies shall be available as are provided for by
law in other cases.
(d) The court may request an attorney to represent any such person
unable to employ counsel and may dismiss the case if the allegation of
poverty is untrue, or if satisfied that the action is frivolous or
malicious.
(e) Judgment may be rendered for costs at the conclusion of the suit
or action as in other cases, but the United States shall not be liable
for any of the costs thus incurred. If the United States has paid the
cost of a stenographic transcript or printed record for the prevailing
party, the same shall be taxed in favor of the United States.
(June 25, 1948, ch. 646, 62 Stat. 954; May 24, 1949, ch. 139, 98,
63 Stat. 104; Oct. 31, 1951, ch. 655, 51(b), (c), 65 Stat. 727; Sept.
21, 1959, Pub. L. 86-320, 73 Stat. 590; Oct. 10, 1979, Pub. L. 96-82,
6, 93 Stat. 645.)
Based on title 28, U.S.C., 1940 ed., 9a(c)(e), 832, 833, 834, 835,
and 836 (July 20, 1892, ch. 209, 1-5, 27 Stat. 252; June 25, 1910,
ch. 435, 36 Stat. 866; Mar. 3, 1911, ch. 231, 5a, as added Jan. 20,
1944, ch. 3, 1, 58 Stat. 5; June 27, 1922, ch. 246, 42 Stat. 666;
Jan. 31, 1928, ch. 14, 1, 45 Stat. 54).
Section consolidates a part of section 9a(c)(e) with sections 832-836
of title 28, U.S.C., 1940 ed.
For distribution of other provisions of section 9a of title 28,
U.S.C., 1940 ed., see Distribution Table.
Section 832 of title 28, U.S.C., 1940 ed., was completely rewritten,
and constitutes subsections (a) and (b).
Words ''and willful false swearing in any affidavit provided for in
this section or section 832 of this title, shall be punishable as
perjury as in other cases,'' in section 833 of title 28, U.S.C., 1940
ed., were omitted as covered by the general perjury statute, title 18,
U.S.C., 1940 ed., 231 (H.R. 1600, 80th Cong., sec. 1621).
A proviso in section 836 of title 28, U.S.C., 1940 ed., that the
United States should not be liable for costs was deleted as covered by
section 2412 of this title.
The provision in section 9a(e) of title 28, U.S.C., 1940 ed.,
respecting stenographic transcripts furnished on appeals in civil cases
is extended by subsection (b) of the revised section to include criminal
cases. Obviously it would be inconsistent to furnish the same to a poor
person in a civil case involving money only and to deny it in a criminal
proceeding where life and liberty are in jeopardy.
The provision of section 832 of title 28, U.S.C., 1940 ed., for
payment when authorized by the Attorney General was revised to
substitute the Director of the Administrative Office of the United
States Courts who now disburses such items.
Changes in phraseology were made.
This amendment clarifies the meaning of subsection (b) of section
1915 of title 28, U.S.C., and supplies, in subsection (e) of section
1915, an inadvertent omission to make possible the recovery of public
funds expended in printing the record for persons successfully suing in
forma pauperis.
1979 -- Subsec. (b). Pub. L. 96-82 substituted ''Upon the filing of
an affidavit in accordance with subsection (a) of this section, the
court may direct payment by the United States of the expenses of (1)
printing the record on appeal in any civil or criminal case, if such
printing is required by the appellate court; (2) preparing a transcript
of proceedings before a United States magistrate in any civil or
criminal case, if such transcript is required by the district court, in
the case of proceedings conducted under section 636(b) of this title or
under section 3401(b) of title 18, United States Code; and (3) printing
the record on appeal if such printing is required by the appellate
court, in the case of proceedings conducted pursuant to section 636(c)
of this title'' and ''Such expenses shall be paid when authorized by the
Director of the Administrative Office of the United States Courts'' for
''In any civil or criminal case the court may, upon the filing of a like
affidavit, direct that the expense of printing the record on appeal, if
such printing is required by the appellate court, be paid by the United
States, and the same shall be paid when authorized by the Director of
the Administrative Office of the United States Courts''.
1959 -- Subsec. (a). Pub. L. 86-320 substituted ''person'' for
''citizen''.
1951 -- Subsec. (b). Act Oct. 31, 1951, struck out ''furnishing a
stenographic transcript and'' after ''expense of''.
Subsec. (e). Act Oct. 31, 1951, inserted provision that the United
States shall not be liable for any of the costs incurred.
1949 -- Subsec. (b). Act May 24, 1949, 98(a), inserted ''such
printing is'' between ''if'' and ''required''.
Subsec. (e). Act May 24, 1949, 98(b), inserted ''or printed record''
after ''stenographic transcript''.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Default judgment, see rule 55, Appendix to this title.
Preservation of former section 785 of this title under rule 55, see
note by Advisory Committee under rule 55.
Fair housing, enforcement by private persons in Federal or State
courts without payment of fees, costs, or security, see section 3613 of
Title 42, The Public Health and Welfare.
Reporters for United States District Court, see section 753 of this
title.
3006A.
28 USC 1916. Seamen's suits
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In all courts of the United States, seamen may institute and
prosecute suits and appeals in their own names and for their own benefit
for wages or salvage or the enforcement of laws enacted for their health
or safety without prepaying fees or costs or furnishing security
therefor.
(June 25, 1948, ch. 646, 62 Stat. 955.)
Based on title 28, U.S.C., 1940 ed., 837 (June 12, 1917, ch. 27, 1,
40 Stat. 157; July 1, 1918, ch. 113, 1, 40 Stat. 683).
Changes in phraseology were made.
28 USC 1917. District courts; fee on filing notice of or petition for
appeal
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Upon the filing of any separate or joint notice of appeal or
application for appeal or upon the receipt of any order allowing, or
notice of the allowance of, an appeal or of a writ of certiorari $5
shall be paid to the clerk of the district court, by the appellant or
petitioner.
(June 25, 1948, ch. 646, 62 Stat. 955.)
Based on title 28, U.S.C., 1940 ed., 552 (Feb. 11, 1925, ch. 204,
5, 43 Stat. 857; Jan. 31, 1928, ch. 14, 1, 45 Stat. 54; Sept. 27,
1944, ch. 414, 3, 58 Stat. 744).
Words ''to the clerk of the district court'' were added to clarify
the intent of Congress, as shown by the title of the 1944 act containing
this section, and by the text of such Act in its entirety.
Words ''as an additional fee in said suit or action, or proceeding in
bankruptcy'' were omitted. The entire text of the basic 1944 act shows
that Congress intended it to apply to all actions, suits and
proceedings, including bankruptcy proceedings, and nowhere else in such
act is any reference made to bankruptcy proceedings.
Changes were made in phraseology.
28 USC 1918. District courts; fines, forfeitures and criminal
proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Costs shall be included in any judgment, order, or decree
rendered against any person for the violation of an Act of Congress in
which a civil fine or forfeiture of property is provided for.
(b) Whenever any conviction for any offense not capital is obtained
in a district court, the court may order that the defendant pay the
costs of prosecution.
(June 25, 1948, ch. 646, 62 Stat. 955.)
Based on title 28, U.S.C., 1940 ed., 822 (R.S. 974).
Changes were made in phraseology.
Docket fees and costs of briefs, see notes under section 1923 of this
title.
Particular items taxable as costs, see section 1920 of this title and
notes thereto.
Witness fees, see notes under sections 1821 and 1825 of this title.
28 USC 1919. Dismissal for lack of jurisdiction
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever any action or suit is dismissed in any district court, the
Court of International Trade, or the Court of Federal Claims for want of
jurisdiction, such court may order the payment of just costs.
(June 25, 1948, ch. 646, 62 Stat. 955; Oct. 10, 1980, Pub. L.
96-417, title V, 510, 94 Stat. 1743; Oct. 29, 1992, Pub. L. 102-572,
title IX, 908(a), (b)(1), 106 Stat. 4519.)
Based on title 28, U.S.C., 1940 ed., 80 (Mar. 3, 1911, ch. 231, 37,
36 Stat. 1098).
Words ''dismissed for want of jurisdiction'' were substituted for
''it shall appear to the satisfaction of the said district court, at any
time after such suit has been brought or removed thereto, that such suit
does not really and substantially involve a dispute or controversy
properly within the jurisdiction of said district court''. The
substituted language is sufficient. (See reviser's note under section
1359 of this title.) The provisions of section 80 of title 28, U.S.C.,
1940 ed., relating to dismissal for improper or collusive joinder in
removal proceedings, are incorporated in section 1359 of this title.
Other provisions of section 80 of title 28, U.S.C., 1940 ed., appear in
section 1447 of this title.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''Dismissal'' for ''District
courts; dismissal'' in section catchline and inserted reference to
Court of Federal Claims in text.
1980 -- Pub. L. 96-417 included dismissals in Court of International
Trade for want of jurisdiction.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 96-417 applicable with respect to civil actions
commenced on or after Nov. 1, 1980, see section 701(b)(1)(E) of Pub.
L. 96-417, set out as a note under section 251 of this title.
28 USC 1920. Taxation of costs
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A judge or clerk of any court of the United States may tax as costs
the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance,
included in the judgment or decree.
(June 25, 1948, ch. 646, 62 Stat. 955; Oct. 28, 1978, Pub. L.
95-539, 7, 92 Stat. 2044.)
Based on title 28, U.S.C., 1940 ed., 9a(a) and 830 (R.S. 983;
Mar. 3, 1911, ch. 231, 5a, as added Jan. 20, 1944, ch. 3, 1, 58 Stat.
5).
For distribution of other provisions of section 9a of title 28,
U.S.C., 1940 ed., see table at end of reviser's notes.
Word ''may'' was substituted for ''shall'' before ''tax as costs,''
in view of Rule 54(d) of the Federal Rules of Civil Procedure, providing
for allowance of costs to the prevailing party as of course ''unless the
court otherwise directs''.
Changes were made in phraseology.
1978 -- Par. (6). Pub. L. 95-539 added par. (6).
Amendment by Pub. L. 95-539 effective Oct. 28, 1978, see section
10(a) of Pub. L. 95-539, set out as a note under section 602 of this
title.
Costs allowed to prevailing party, see rule 54, Appendix to this
title.
Costs of previously dismissed action, see rule 41.
Motion for retaxation of costs by clerk in civil actions, see rule
54.
Offer of judgment affecting costs, see rule 68.
Taxation of costs in civil actions by clerk, see rule 54.
United States agencies, and officers, liability for fees and costs,
see rule 54.
Authority to administer oaths, see section 2903 of Title 5,
Government Organization and Employees.
Costs, denial of to plaintiff where plaintiff recovers less than
$10,000, see section 1332 of this title.
Definition of ''court of the United States,'' see section 451 of this
title.
Exemption of United States for costs except where statute permits
taxation, see section 2412 of this title.
Fees and costs in admiralty and maritime cases, see section 1925 of
this title.
Marshal's fees, see section 1921 of this title.
Per diem, mileage and subsistence of witnesses, see notes under
section 1821 of this title.
Reporter's transcript, fees for, see section 753 of this title.
Taxation of costs in fine, forfeiture and criminal proceedings, see
section 1918 of this title.
28 USC 1921. United States marshal's fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) The United States marshals or deputy marshals shall routinely
collect, and a court may tax as costs, fees for the following:
(A) Serving a writ of possession, partition, execution, attachment in
rem, or libel in admiralty, warrant, attachment, summons, complaints, or
any other writ, order or process in any case or proceeding.
(B) Serving a subpoena or summons for a witness or appraiser.
(C) Forwarding any writ, order, or process to another judicial
district for service.
(D) The preparation of any notice of sale, proclamation in admiralty,
or other public notice or bill of sale.
(E) The keeping of attached property (including boats, vessels, or
other property attached or libeled), actual expenses incurred, such as
storage, moving, boat hire, or other special transportation, watchmen's
or keepers' fees, insurance, and an hourly rate, including overtime, for
each deputy marshal required for special services, such as guarding,
inventorying, and moving.
(F) Copies of writs or other papers furnished at the request of any
party.
(G) Necessary travel in serving or endeavoring to serve any process,
writ, or order, except in the District of Columbia, with mileage to be
computed from the place where service is returnable to the place of
service or endeavor.
(H) Overtime expenses incurred by deputy marshals in the course of
serving or executing civil process.
(2) The marshals shall collect, in advance, a deposit to cover the
initial expenses for special services required under paragraph (1)(E),
and periodically thereafter such amounts as may be necessary to pay such
expenses until the litigation is concluded. This paragraph applies to
all private litigants, including seamen proceeding pursuant to section
1916 of this title.
(3) For purposes of paragraph (1)(G), if two or more services or
endeavors, or if an endeavor and a service, are made in behalf of the
same party in the same case on the same trip, mileage shall be computed
to the place of service or endeavor which is most remote from the place
where service is returnable, adding thereto any additional mileage
traveled in serving or endeavoring to serve in behalf of the party. If
two or more writs of any kind, required to be served in behalf of the
same party on the same person in the same case or proceeding, may be
served at the same time, mileage on only one such writ shall be
collected.
(b) The Attorney General shall from time to time prescribe by
regulation the fees to be taxed and collected under subsection (a).
Such fees shall, to the extent practicable, reflect the actual and
reasonable cost of the service provided.
(c)(1) The United States Marshals Service shall collect a commission
of 3 percent of the first $1,000 collected and 1 1/2 percent on the
excess of any sum over $1,000, for seizing or levying on property
(including seizures in admiralty), disposing of such property by sale,
setoff, or otherwise, and receiving and paying over money, except that
the amount of commission shall be within the range set by the Attorney
General. if 1 the property is not disposed of by marshal's sale, the
commission shall be in such amount, within the range set by the Attorney
General, as may be allowed by the court. In any case in which the
vessel or other property is sold by a public auctioneer, or by some
party other than a marshal or deputy marshal, the commission authorized
under this subsection shall be reduced by the amount paid to such
auctioneer or other party. This subsection applies to any judicially
ordered sale or execution sale, without regard to whether the judicial
order of sale constitutes a seizure or levy within the meaning of State
law. This subsection shall not apply to any seizure, forfeiture, sale,
or other disposition of property pursuant to the applicable provisions
of law amended by the Comprehensive Forfeiture Act of 1984 (98 Stat.
2040).
(2) The Attorney General shall prescribe from time to time
regulations which establish a minimum and maximum amount for the
commission collected under paragraph (1).
(d) The United States marshals may require a deposit to cover the
fees and expenses prescribed under this section.
(e) Notwithstanding section 3302 of title 31, the United States
Marshals Service is authorized, to the extent provided in advance in
appropriations Acts --
(1) to credit to such Service's appropriation all fees, commissions,
and expenses collected by such Service for --
(A) the service of civil process, including complaints, summonses,
subpoenas, and similar process; and
(B) seizures, levies, and sales associated with judicial orders of
execution; and
(2) to use such credited amounts for the purpose of carrying out such
activities.
(June 25, 1948, ch. 646, 62 Stat. 955; Sept. 9, 1950, ch. 937, 64
Stat. 824; Aug. 31, 1962, Pub. L. 87-621, 1, 76 Stat. 417; Nov. 10,
1986, Pub. L. 99-646, 39(a), 100 Stat. 3600; Nov. 18, 1988, Pub. L.
100-690, title VII, 7608(c), 102 Stat. 4515; Nov. 29, 1990, Pub. L.
101-647, title XII, 1212, 104 Stat. 4833.)
Based on title 28, U.S.C., 1940 ed., 574 (R.S. 823, 829; May 28,
1896, ch. 252, 6, 29 Stat. 179; May 29, 1930, ch. 356, 46 Stat. 486;
Aug. 3, 1935, ch. 431, 2, 49 Stat. 513).
Provisions for serving venires and summoning grand and petit jurors
were omitted as useless since marshal's fees are now covered into the
Treasury and there is no basis for apportioning the cost of summoning
jurors for a term of court and taxing the same to individual cases.
The marshal's fee ''for holding a court of inquiry or other
proceedings before a jury, including summoning a jury, $5'' is omitted
as obsolete in the Federal practice. See, Black's Law Dictionary
''Court of Inquiry.'' See, also, Webster's International Dictionary.
A fee of 50 cents ''for each bail bond'' is omitted as covered by the
general provision for taxation of marshal's fees in criminal cases.
The provisions for a fee of $5 for drawing and executing a deed and
$1 for executing a deed prepared by a party or his attorney are omitted
as unnecessary. It is the marshal's duty to execute conveyances of
property which he sells on execution and his salary compensates him
therefor. There is no occasion for him to draw such a deed and no
beneficial purpose in taxing the parties a fee for his signature.
The 2 per centum fee for disbursing moneys is omitted as an
unnecessary burden upon funds belonging to litigants.
The provision that a folio consists of ''100 words or major fraction
thereof'' is inserted to conform with section 607 of title 28, U.S.C.,
1940 ed., which is transferred to title 44, U.S.C., 1940 ed., Public
Printing and Documents, along with section 606 of said title 28, to
which said section 607 also relates.
The provision for a lump sum to be determined by the court and taxed
in criminal cases was added. It fixes a maximum of $25 in misdemeanor
cases and $100 in felony cases. It may be questioned whether costs as
such should ever be taxed against the convicted defendant in a criminal
case. The acquitted defendant is not permitted to tax costs against the
United States. Indeed the allowance of costs in criminal cases is not a
matter of right but rests completely within the discretion of the court.
Morris v. United States, 1911, 185 Fed. 73, 107 C.C.A. 293.
In Alberty v. U.S., C.C.A.9, 1937, 91 F.2d 461, the defendant was
fined $100 on each of 11 accounts of an indictment under the 1906 Food
and Drug Act (title 21, 2, 10, U.S.C., 1934 ed., as amended). Costs
of prosecution were taxed in the sum of $1,499.80. Yet the court in its
discretion might have reached substantially the same result by imposing
a fine of $200 on each count without any taxation of costs.
Changes were made in phraseology.
The Comprehensive Forfeiture Act of 1984, referred to in subsec.
(c)(1), is chapter III of title II of Pub. L. 98-473, Oct. 12, 1984,
98 Stat. 2040, as amended. For complete classification of this Act to
the Code, see Short Title of 1984 Amendment note set out under section
1961 of Title 18, Crimes and Criminal Procedure, and Tables.
1990 -- Subsec. (c)(1). Pub. L. 101-647 substituted ''if the
property is not disposed of by marshal's sale'' for ''If the property is
to be disposed of by marshal's sale''.
1988 -- Pub. L. 100-690 added subsecs. (a) to (d), struck out
former subsecs. (a) and (b), and redesignated former subsec. (c) as
(e).
1986 -- Pub. L. 99-646 designated existing provisions as subsec.
(a) with pars. (1) to (9) and subsec. (b) with pars. (1) and (2),
substituted a period for the semicolon at end of each par., and added
subsec. (c).
1962 -- Pub. L. 87-621 increased fees for serving an attachment in
rem, or libel in admiralty, warrant, attachment, summons, capias, or any
other writ from $2 to $3, for serving a subpoena or summons for a
witness or appraiser from 50 cents to $2, for preparation of a
proclamation in admiralty from 30 cents to $3, and for copies of writs
or other papers furnished at the request of any party from 10 to 30
cents per folio of 100 words or fraction thereof, and mileage for
necessary travel from 10 cents a mile to 12 cents per mile, or fraction
thereof, inserted provisions authorizing a fee of $1, in addition to the
prescribed fee, for forwarding any writ, order, or process to another
judicial district for service, and $3 for preparation of any notice of
sale or other public notice or bill of sale, permitting payment of
travel expenses where there is an endeavor to serve any process, writ,
or order, prohibiting collection of mileage fees for services or
endeavors to serve in the District of Columbia, and empowering marshals
to require a deposit to cover all fees and expenses, and substituted
provisions authorizing a fee of $3 for serving a writ of possession,
partition, execution, order or process, and commissions of 3 per centum
on the first $1,000 collected and 1 1/2 per centum on amounts over
$1,000 for seizing and levying on property (including seizures in
admiralty), disposing of the same and receiving and paying over the
money for provisions which permitted a marshal serving such a writ or
process, and seizing and levying on property, advertising and disposing
of the same and receiving and paying over the money, to receive the same
fees and poundage as allowed for similar services to the sheriffs of the
States in which the service is rendered, and 2 1/2 per centum on any sum
under $500, and 1 1/2 per centum on amounts over $500 for sale of
vessels or other property under process in admiralty, or under the order
of a court of admiralty, and provisions permitting collection of actual
expenses incurred, and $3 per hour for each deputy marshal required, for
the keeping of property attached, and directing the marshal to collect,
in advance, a deposit to cover initial expenses and periodically
thereafter such amounts as necessary to pay expenses until litigation is
concluded, for provisions which allowed only such compensation as the
court, on petition, might allow.
1950 -- Act Sept. 9, 1950, increased mileage fees from 6 to 10 cents
a mile.
Section 39(b) of Pub. L. 99-646 provided that: ''The amendments
made by this section (amending this section) shall take effect 30 days
after the date of enactment of this Act (Nov. 10, 1986).''
Section 3 of Pub. L. 87-621 provided that: ''This Act (amending
this section) shall become effective ninety days after enactment (Aug.
31, 1962).''
Pub. L. 101-162, title II, Nov. 21, 1989, 103 Stat. 997, provided:
''That notwithstanding the provisions of title 31 U.S.C. 3302, for
fiscal year 1990 and hereafter the Director of the United States
Marshals Service may collect fees and expenses for the services
authorized by 28 U.S.C. 1921 as amended by Public Law 100-690, and
credit such fees to this appropriation to be used for salaries and other
expenses incurred in providing these services: Provided further, That
not to exceed $6,000 shall be available for official reception and
representation expenses.''
Admiralty and maritime rules of practice (which included libel
procedures) were superseded, and civil and admiralty procedures in
United States district courts were unified, effective July 1, 1966, see
rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims,
Appendix to this title.
Proceeds of sales under admiralty process, see rule E.
Collection of fees and accounting by marshal, see section 567 of this
title.
Execution of all lawful writs and process, see section 566 of this
title.
Power of State sheriff, see section 564 of this title.
/1/ So in original. Probably should be capitalized.
28 USC 1922. Witness fees before United States commissioners
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The fees of more than four witnesses shall not be taxed against the
United States, in the examination of any criminal case before a United
States commissioner, unless their materiality and importance are first
approved and certified to by the United States attorney for the district
in which the examination is had.
(June 25, 1948, ch. 646, 62 Stat. 956.)
Based on title 28, U.S.C., 1940 ed., 828 (R.S. 981; May 28, 1896,
ch. 252, 19, 29 Stat. 184).
Last clause of section 828 of title 28, U.S.C., 1940 ed., providing
''and such taxation shall be subject to revision, as in other cases''
was omitted as unnecessary in view of the inherent power of the court to
revise costs taxed.
Changes were made in phraseology.
Reference to United States commissioners deemed to be reference to
United States magistrates pursuant to Pub. L. 90-578, title IV, 402,
Oct. 17, 1968, 82 Stat. 1118. See chapter 43 ( 631 et seq.) of this
title.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Compensation of United States magistrates, see section 634 of this
title.
Liability of United States for costs, see section 2412 of this title.
28 USC 1923. Docket fees and costs of briefs
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Attorney's and proctor's docket fees in courts of the United
States may be taxed as costs as follows:
$20 on trial or final hearing (including a default judgment whether
entered by the court or by the clerk) in civil, criminal, or admiralty
cases, except that in cases of admiralty and maritime jurisdiction where
the libellant recovers less than $50 the proctor's docket fee shall be
$10;
$20 in admiralty appeals involving not over $1,000;
$50 in admiralty appeals involving not over $5,000;
$100 in admiralty appeals involving more than $5,000;
$5 on discontinuance of a civil action;
$5 on motion for judgment and other proceedings on recognizances;
$2.50 for each deposition admitted in evidence.
(b) The docket fees of United States attorneys and United States
trustees shall be paid to the clerk of court and by him paid into the
Treasury.
(c) In admiralty appeals the court may allow as costs for printing
the briefs of the successful party not more than:
$25 where the amount involved is not over $1,000;
$50 where the amount involved is not over $5,000;
$75 where the amount involved is over $5,000.
(June 25, 1948, ch. 646, 62 Stat. 956; June 18, 1954, ch. 304, 68
Stat. 253; Nov. 6, 1978, Pub. L. 95-598, title II, 245, 92 Stat.
2671.)
Based on title 28, U.S.C., 1940 ed., 571, 572, and 578 (R.S.
823, 824; May 28, 1896, ch. 252, 6, 24, 29 Stat. 179, 186; Feb. 26,
1919, ch. 49, 1, 40 Stat. 1182; July 19, 1919, ch. 24, 1, 41 Stat.
209; Feb. 11, 1921, ch. 46, 41 Stat. 1099; June 6, 1930, ch. 409, 46
Stat. 522; Aug. 3, 1935, ch. 431, 1, 49 Stat. 513).
Section consolidates sections 571, 572, and 578 of title 28, U.S.C.,
1940 ed.
The phrase ''$20 on trial or final hearing in civil, criminal, or
admiralty cases'' was substituted for the following provisions of
section 572 of title 28, U.S.C., 1940 ed., ''On trial before a jury, in
civil or criminal causes or before referees, or on a final hearing in
equity or admiralty, a docket fee of $20'', and the limitation of $10 in
''cases at law when judgment is rendered without a jury'' was omitted.
This simplified restatement provides for a single docket fee in each
case which reaches final hearing or trial. Since the docket fee is
arbitrary, any limitation or distinction between law cases tried with or
without a jury is unrealistic.
Word ''solicitor'' was omitted as obsolete and inapplicable in civil,
criminal, or admiralty practice.
Words ''motion for judgment'' were substituted for ''scire facias''
to conform to Rules 2 and 81 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Section 408(c) of Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2687, as
amended by Pub. L. 98-166, title II, 200, Nov. 28, 1983, 97 Stat.
1081; Pub. L. 98-353, title III, 323, July 10, 1984, 98 Stat. 358;
Pub. L. 99-429, Sept. 30, 1986, 100 Stat. 985; Pub. L. 99-500,
101(b) (title II, 200), Oct. 18, 1986, 100 Stat. 1783-39, 1783-45,
and Pub. L. 99-591, 101(b) (title II, 200), Oct. 30, 1986, 100 Stat.
3341-39, 3341-45; Pub. L. 99-554, title III, 307(a), Oct. 27, 1986,
100 Stat. 3125, which provided for the deletion of any references to
United States Trustees in this title at a prospective date, was repealed
by Pub. L. 99-554, title III, 307(b), Oct. 27, 1986, 100 Stat. 3125.
1978 -- Subsec. (b). Pub. L. 95-598 inserted ''and United States
trustees'' after ''United States attorneys''.
1954 -- Subsec. (a). Act June 18, 1954, inserted in first item
''including a default judgment whether entered by the court or by the
clerk'' after ''final hearing''.
Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section
402(c) of Pub. L. 95-598, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy.
Admiralty and maritime rules of practice (which included libel
procedures) were superseded, and civil and admiralty procedures in
United States district courts were unified, effective July 1, 1966, see
rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims,
Appendix to this title.
Application of, see rule 81.
Depositions, see rules 26 to 32.
Depositions, see rule 15, Title 18, Appendix, Crimes and Criminal
Procedure.
Taxation of costs --
Admiralty cases, see section 1925 of this title.
Criminal cases, see section 1918 of this title.
28 USC 1924. Verification of bill of costs
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Before any bill of costs is taxed, the party claiming any item of
cost or disbursement shall attach thereto an affidavit, made by himself
or by his duly authorized attorney or agent having knowledge of the
facts, that such item is correct and has been necessarily incurred in
the case and that the services for which fees have been charged were
actually and necessarily performed.
(June 25, 1948, ch. 646, 62 Stat. 957.)
Based on title 28, U.S.C., 1940 ed., 831 (R.S. 984; June 10, 1921,
ch. 18, 304, 42 Stat. 24).
Section as revised conforms to existing Federal Practice. See note
to subdivision (d) of Rule 54 of the Federal Rules of Civil Procedure.
For discussion as to verification of bill of costs under existing
practice, see -- 8 Hughes, Federal Practice, Jurisdiction and Procedure
-- Civil and Criminal, 6441.
Words ''or allowed by the General Accounting Office'' were omitted as
unnecessary. That office will not allow items in a tax bill for costs
against the United States unless such bill has been taxed by the court,
and the court, under this section, cannot tax as costs items in an
unverified bill.
Changes were made in phraseology.
28 USC 1925. Admiralty and maritime cases
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as otherwise provided by Act of Congress, the allowance and
taxation of costs in admiralty and maritime cases shall be prescribed by
rules promulgated by the Supreme Court.
(June 25, 1948, ch. 646, 62 Stat. 957.)
This section was drafted to make possible the promulgation of
comprehensive and uniform rules governing costs in admiralty. Various
enactments of Congress, all over 100 years old, relate to particular
features of such matter, but do not set forth any comprehensive and
uniform procedure. See, for example, sections 818, 826, and 827 of
title 28, U.S.C., 1940 ed.
Fees and costs in admiralty proceedings, see Rules 41, 43, 54 and
Rules C and E, Appendix to this title.
28 USC 1926. Court of Federal Claims
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Judicial Conference of the United States shall prescribe from
time to time the fees and costs to be charged and collected in the
United States Court of Federal Claims.
(b) The court and its officers shall collect only such fees and costs
as the Judicial Conference prescribes. The court may require advance
payment of fees by rule.
(June 25, 1948, ch. 646, 62 Stat. 957; Apr. 2, 1982, Pub. L.
97-164, title I, 139(p)(1), 96 Stat. 44; Oct. 29, 1992, Pub. L.
102-572, title IX, 902(b), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 304 (Mar. 3, 1911, ch. 231,
191, 36 Stat. 1144).
For distribution of other provisions of section 304 of title 28,
U.S.C., 1940 ed., see Distribution Table.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''Court of Federal Claims'' for
''Claims Court'' as section catchline and ''United States Court of
Federal Claims'' for ''United States Claims Court'' in subsec. (a).
1982 -- Pub. L. 97-164 substituted ''Claims Court'' for ''Court of
Customs and Patent Appeals'' as section catchline and, in text
substituted provisions directing the Judicial Conference of the United
States to prescribe from time to time the fees and costs to be charged
and collected in the United States Claims Court and directing the court
and its officers to collect only such fees and costs as the Judicial
Conference prescribes, with the court authorized to require advance
payment of fees by rule for provisions which had directed that fees and
costs in the Court of Customs and Patent Appeals be fixed by a table of
fees adopted by such court and approved by the Supreme Court, that the
fees and costs so fixed not exceed the fees and costs charged in the
Supreme Court, and that the fees be accounted for and paid over to the
Treasury.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Judicial Conference to prescribe reasonable fees for collection by
courts under this section for access to information available through
automatic data processing equipment and fees to be deposited in
Judiciary Automation Fund, see section 303 of Pub. L. 102-140, set out
as a note under section 1913 of this title.
Fees to be charged for services to be performed by the Clerk of the
United States Court of Federal Claims (except that no fees are to be
charged for services rendered on behalf of the United States):
(1) For filing a civil action or proceeding, $120.
(2) For reproducing any record or paper, 50 cents per page. This fee
shall apply to paper copies made from either: (a) original documents;
or (b) microfiche or microfilm reproductions of the original records.
(3) For certification or exemplification of any document or paper,
whether the certification is made directly on the document or by
separate instrument, $5.
(4) For admission of attorneys to practice, $20 each, including a
certificate of admission. For a duplicate certificate of admission or
certificate of good standing, $5.
(5) For receipt of a monthly listing of court orders and opinions,
$10 per year.
(6) The court may charge and collect fees, commensurate with the cost
of printing, for copies of the local rules of court. The court may also
distribute copies of the local rules without charge.
(7) For a check paid into the court which is returned for lack of
funds, $25.
28 USC 1927. Counsel's liability for excessive costs
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any attorney or other person admitted to conduct cases in any court
of the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by
the court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such conduct.
(June 25, 1948, ch. 646, 62 Stat. 957; Sept. 12, 1980, Pub. L.
96-349, 3, 94 Stat. 1156.)
Based on title 28, U.S.C., 1940 ed., 829 (R.S. 982).
Word ''personally'' was inserted upon authority of Motion Picture
Patents Co. v. Steiner et al., 1912, 201 F. 63, 119 C.C.A. 401.
Reference to ''proctor'' was omitted as covered by the revised section.
See definition of ''court of the United States'' in section 451 of
this title.
Changes were made in phraseology.
1980 -- Pub. L. 96-349 substituted judicial authorization to require
attorneys to satisfy excess costs, expenses, and attorneys' fees
reasonably incurred because of multiplication of proceedings for such
prior authority to impose liability for increased costs based on
multiplication of proceedings.
Costs, see rules 11 and 54, Appendix to this title.
28 USC 1928. Patent infringement action; disclaimer not filed
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever a judgment is rendered for the plaintiff in any patent
infringement action involving a part of a patent and it appears that the
patentee, in his specifications, claimed to be, but was not, the
original and first inventor or discoverer of any material or substantial
part of the thing patented, no costs shall be included in such judgment,
unless the proper disclaimer has been filed in the Patent Office prior
to the commencement of the action.
(June 25, 1948, ch. 646, 62 Stat. 957.)
Based on title 28, U.S.C., 1940 ed., 821 (R.S. 973).
Word ''action'' was substituted for ''any suit at law or in equity''
to conform with Rule 2 of the Federal Rules of Civil Procedure.
Words ''or decree'' were omitted after ''judgment,'' because a
judgment under Rule 54(a) of the Federal Rules of Civil Procedure by
definition includes a decree.
Changes were made in phraseology.
Patent Office redesignated Patent and Trademark Office, by section 3
of Pub. L. 93-596, Jan. 2, 1975, 88 Stat. 1949, set out as a note
under section 1 of Title 35, Patents.
Costs, see rule 54, Appendix to this title.
Costs where disclaimer not filed in patent infringement action, see
section 288 of Title 35, Patents.
28 USC 1929. Extraordinary expenses not expressly authorized
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Where the ministerial officers of the United States incur
extraordinary expense in executing Acts of Congress, the payment of
which is not specifically provided for, the Attorney General may allow
the payment thereof.
(June 25, 1948, ch. 646, 62 Stat. 957.)
Based on title 28, U.S.C., 1940 ed., 577 (R.S. 846; Feb. 18, 1875,
ch. 80, 1, Stat. 318; May 28, 1896, ch. 252, 13, 29 Stat. 183; May
27, 1908, ch. 200, 1, 35 Stat. 375; Mar. 3, 1911, ch. 231, 291, 36
Stat. 1167; Feb. 26, 1919, ch. 49, 7, 40 Stat. 1182; Oct. 13, 1941,
ch. 431, 1, 55 Stat. 736).
Provision for payment of expenses under section 577 of title 28,
U.S.C., 1940 ed., from appropriations for expenses of the judiciary was
omitted as unnecessary. Such expenses are carried in the Judiciary
Appropriation Acts and will continue without this provision.
The first sentence of said section 577 is incorporated in section 551
of this title.
The qualifying phrase ''under the special taxation of the district
court in which the said services have been or shall be rendered, to be
paid from the appropriation for defraying the expenses of the
Judiciary,'' was omitted, and the functions of allowing extraordinary
expenses was vested in the Attorney General instead of the President.
Neither the President nor the district judge should be burdened with
such duty since the Attorney General only has the information upon which
to act.
Changes were made in phraseology.
28 USC 1930. Bankruptcy fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Notwithstanding section 1915 of this title, the parties
commencing a case under title 11 shall pay to the clerk of the district
court or the clerk of the bankruptcy court, if one has been certified
pursuant to section 156(b) of this title, the following filing fees:
(1) For a case commenced under chapter 7 or 13 of title 11, $120.
(2) For a case commenced under chapter 9 of title 11, $300.
(3) For a case commenced under chapter 11 of title 11 that does not
concern a railroad, as defined in section 101 of title 11, $600.
(4) For a case commenced under chapter 11 of title 11 concerning a
railroad, as so defined, $1,000.
(5) For a case commenced under chapter 12 of title 11, $200.
(6) In addition to the filing fee paid to the clerk, a quarterly fee
shall be paid to the United States trustee, for deposit in the Treasury,
in each case under chapter 11 of title 11 for each quarter (including
any fraction thereof) until a plan is confirmed or the case is converted
or dismissed, whichever occurs first. The fee shall be $250 for each
quarter in which disbursements total less than $15,000; $500 for each
quarter in which disbursements total $15,000 or more but less than
$150,000; $1,250 or each quarter in which disbursements total $150,000
or more but less than $300,000; $3,750 for each quarter in which
disbursements total $300,000 or more but less than $3,000,000; $5,000
for each quarter in which disbursements total $3,000,000 or more. The
fee shall be payable on the last day of the calendar month following the
calendar quarter for which the fee is owed.
An individual commencing a voluntary case or a joint case under title
11 may pay such fee in installments. For converting, on request of the
debtor, a case under chapter 7, or 13 of title 11, to a case under
chapter 11 of title 11, the debtor shall pay to the clerk of the
district court or the clerk of the bankruptcy court, if one has been
certified pursuant to section 156(b) of this title, a fee of $400.
(b) The Judicial Conference of the United States may prescribe
additional fees in cases under title 11 of the same kind as the Judicial
Conference prescribes under section 1914(b) of this title.
(c) Upon the filing of any separate or joint notice of appeal or
application for appeal or upon the receipt of any order allowing, or
notice of the allowance of, an appeal or a writ of certiorari $5 shall
be paid to the clerk of the court, by the appellant or petitioner.
(d) Whenever any case or proceeding is dismissed in any bankruptcy
court for want of jurisdiction, such court may order the payment of just
costs.
(e) The clerk of the court may collect only the fees prescribed under
this section.
(Added Pub. L. 95-598, title II, 246(a), Nov. 6, 1978, 92 Stat.
2671; amended Pub. L. 98-353, title I, 111(a), (b), July 10, 1984, 98
Stat. 342; Pub. L. 99-500, 101(b) (title IV, 407(b)), Oct. 18, 1986,
100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, 101(b) (title IV,
407(b)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64; Pub. L. 99-554,
title I, 117, 144(f), Oct. 27, 1986, 100 Stat. 3095, 3097; Pub. L.
101-162, title IV, 406(a), Nov. 21, 1989, 103 Stat. 1016; Pub. L.
102-140, title I, 111(a), Oct. 28, 1991, 105 Stat. 795.)
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
1991 -- Subsec. (a)(3). Pub. L. 102-140, 111(a)(1), substituted
''$600'' for ''$500''.
Subsec. (a)(6). Pub. L. 102-140, 111(a)(2), substituted ''$250'' for
''$150'', ''$500'' for ''$300'', ''$1,250'' for ''$750'', ''$3,750'' for
''$2,250'', and ''$5,000'' for ''$3,000''.
1989 -- Subsec. (a)(1). Pub. L. 101-162 substituted ''$120'' for
''$90''.
1986 -- Subsec. (a). Pub. L. 99-554, 117(5), 144(f), in
introductory and closing provisions, substituted ''of the district court
or the clerk of the bankruptcy court, if one has been certified pursuant
to section 156(b) of this title'' for ''of the court'', and in closing
provisions, inserted provision that for conversion, on request of the
debtor, of a case under chapter 7 or 13 of title 11, to a case under
chapter 11 of title 11, the debtor pay to the clerk of the court a fee
of $400.
Subsec. (a)(1). Pub. L. 99-500 and Pub. L. 99-591, Pub. L. 99-554,
117(1), amended par. (1) identically substituting ''$90'' for ''$60''.
Subsec. (a)(3). Pub. L. 99-554, 117(2), substituted ''$500'' for
''$200''.
Subsec. (a)(4). Pub. L. 99-554, 117(3), substituted ''$1,000'' for
''$500''.
Subsec. (a)(5), (6). Pub. L. 99-554, 117(4), added pars. (5) and
(6).
1984 -- Pub. L. 98-353, 111(b), substituted ''fees'' for ''courts''
in section catchline.
Subsecs. (a), (c), (e). Pub. L. 98-353, 111(a), substituted ''clerk
of the court'' for ''clerk of the bankruptcy court''.
Section 111 of Pub. L. 102-140 provided that the amendment made by
that section is effective 60 days after Oct. 28, 1991.
Section 406(a) of Pub. L. 101-162 provided that: ''Section
1930(a)(1) of title 28, United States Code, is amended by striking out
'$90' and inserting in lieu thereof '$120'. Pursuant to section 1930(b)
of title 28, the Judicial Conference of the United States shall
prescribe a fee of $60 on motions seeking relief from the automatic stay
under 11 U.S.C. section 362(b) and motions to compel abandonment of
property of the estate. The fees established pursuant to the preceding
two sentences shall take effect 30 days after the enactment of this Act
(Nov. 21, 1989).''
Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986,
with effective date and applicability of enactment of subsec. (a)(6) of
this section by section 117(4) of Pub. L. 99-554 dependent upon the
judicial district involved, see section 302(a), (d), (e) of Pub. L.
99-554, set out as a note under section 581 of this title.
Amendment by Pub. L. 98-353 effective July 10, 1984, see section
122(a) of Pub. L. 98-353, set out as an Effective Date note under
section 151 of this title.
Section effective Oct. 1, 1979, see section 402(c) of Pub. L.
95-598, set out as a note preceding section 101 of Title 11, Bankruptcy.
Judicial Conference to prescribe reasonable fees for collection by
courts under this section for access to information available through
automatic data processing equipment and fees to be deposited in
Judiciary Automation Fund, see section 303 of Pub. L. 102-140, set out
as a note under section 1913 of this title.
Section 403 of Pub. L. 101-162 provided that: ''Notwithstanding any
other provision of law, for fiscal year 1990 and hereafter, (a) The
Administrative Office of the United States Courts, or any other agency
or instrumentality of the United States, is prohibited from restricting
solely to staff of the Clerks of the United States Bankruptcy Courts the
issuance of notices to creditors and other interested parties. (b) The
Administrative Office shall permit and encourage the preparation and
mailing of such notices to be performed by or at the expense of the
debtors, trustees or such other interested parties as the Court may
direct and approve. (c) The Director of the Administrative Office of
the United States Courts shall make appropriate provisions for the use
of and accounting for any postage required pursuant to such
directives.''
Section 404(a) of Pub. L. 101-162 provided that: ''For fiscal year
1990 and hereafter, such fees as shall be collected for the preparation
and mailing of notices in bankruptcy cases as prescribed by the Judicial
Conference of the United States pursuant to 28 U.S.C. 1930(b) shall be
deposited to the 'Courts of Appeals, District Courts, and Other Judicial
Services, Salaries and Expenses' appropriation to be used for salaries
and other expenses incurred in providing these services.''
Fees to be charged for services to be performed by clerks of the
bankruptcy courts (except that no fees are to be charged for services
rendered on behalf of the United States or to bankruptcy administrators
appointed under Pub. L. No. 99-554, 302(d)(3)(I)).
(1) For reproducing any record or paper, 50 cents per page. This fee
shall apply to paper copies made from either: (1) original documents;
or (2) microfiche or microfilm reproductions of the original records.
(2) For certification or exemplification of any document or paper,
whether the certification is made directly on the document or by
separate instrument, $5.
(3) For reproduction of magnetic tape recordings, either cassette or
reel-to-reel, $15 including the cost of materials.
(4) For amendments to a debtor's schedules of creditors or lists of
creditors after notice to creditors, $20 for each amendment, provided
the bankruptcy judge may, for good cause, waive the charge in any case.
(5) For every search of the records of the bankruptcy court conducted
by the clerk of the bankruptcy court or a deputy clerk, $15 per name or
item searched.
(6) For filing a complaint, a fee should be collected in the same
amount as the filing fee prescribed in 28 U.S.C. 1914(a) for
instituting any civil action other than a writ of habeas corpus. If the
United States, other than a United States trustee acting as a trustee in
a case under Title 11, or a debtor is the plaintiff, no fee is required.
If a trustee or debtor in possession is the plaintiff, the fee should
be payable only from the estate and to the extent there is an estate
realized.
(7) For filing or indexing any paper not in a case or proceeding for
which a filing fee has been paid, including registering a judgment from
another district, $20.
(8) For all notices generated in cases pending on December 1, 1992
under any chapter of Title 11 of the United States Code and in cases
filed after December 1, 1992 under chapters 9, 11, and 12, 50 cents
each. The fee shall be payable only from the estate and only to the
extent there is an estate. In all cases filed under chapter 7 or
chapter 13 on or after December 1, 1992, the clerk shall collect from
the debtor a miscellaneous administrative fee of $30, in lieu of the 50
cents per notice fee prescribed above.
(9) Upon the filing of a notice of appeal with the bankruptcy court
in a proceeding arising under the Bankruptcy Act, $5 shall be paid to
the clerk of the bankruptcy court by the appellant.
(10) For clerical processing of each claim filed in excess of 10, 25
cents each in asset cases filed under Chapters I-VII of the Bankruptcy
Act, in cases filed under the relief chapters of the Bankruptcy Act, and
in asset cases filed under the Bankruptcy Code.
(11) For transcribing a record of any proceeding by a regularly
employed member of the bankruptcy court staff who is not entitled by
statute to retain the transcript fees for his or her own account, a
charge shall be made at the same rate and conditions established by the
Judicial Conference for transcripts prepared and sold to parties by
official court reporters. The party requesting the transcript shall pay
the charge to the clerk of the bankruptcy court for deposit to the
credit of the referees' salary and expense fund if the proceeding is
related to a case commenced prior to October 1, 1979, and to the credit
of the Treasury if the proceeding is related to a case commenced on or
after October 1, 1979. If the trustee in bankruptcy or the debtor in
possession requests a transcript in the performance of his official
duties, the charge shall be paid from the estate to the extent there is
an estate realized.
(12) For each microfiche sheet of film or microfilm jacket copy of
any court record, where available, $3.
(13) For retrieval of a record from a Federal Records Center,
National Archives, or other storage location removed from the place of
business of the court, $25.
(14) For a check paid into the court which is returned for lack of
funds, $25.
(15) For providing mailing labels, $5 per page or portion thereof.
(16) For docketing a proceeding on appeal or review from a final
judgment of a bankruptcy judge pursuant to 28 U.S.C. 158(a) and (b),
$100. A separate fee shall be paid by each party filing a notice of
appeal in the bankruptcy court, but parties filing a joint notice of
appeal in the bankruptcy court are required to pay only one fee.
(17) For filing a petition ancillary to a foreign proceeding under 11
U.S.C. 304, $500.
(18) The court may charge and collect fees, commensurate with the
cost of printing, for copies of the local rules of court. The court may
also distribute copies of the local rules without charge.
(19) The clerk shall assess a charge of up to three percent for the
handling of registry funds, to be assessed from interest earnings and in
accordance with the detailed fee schedule issued by the Director of the
Administrative Office of the United States Courts.
(20) When a joint case filed under 302 of title 11 is divided into
two separate cases at the request of the debtor(s), a fee shall be
charged equal to one-half the current filing fee for the chapter under
which the joint case was commenced.
(21) For filing a motion to terminate, annul, modify, or condition
the automatic stay provided under 362(a) of title 11, a motion to
compel abandonment of property of the estate pursuant to Bankruptcy Rule
6007(b), or a motion to withdraw the reference of a case under 28 U.S.C.
157(d), $60.
(22) For docketing a cross appeal from a bankruptcy court
determination, $100.
(23) For usage of electronic access to court data, $1 per minute of
usage (provided the court may, for good cause, exempt persons or classes
of persons from the fees, in order to avoid unreasonable burdens and to
promote public access to such information). All such fees collected
shall be deposited to the Judiciary Automation Fund.
Filing fees prescribed by 28 U.S.C. 1930(a) must be collected when a
Bankruptcy Code case is reopened, unless the reopening is to correct an
administrative error or for actions related to the debtor's discharge.
If a Bankruptcy Code case is reopened for any other purpose, the
appropriate fee to be charged is the same as the filing fee in effect
for commencing a new case on the date of reopening.
The Director of the Administrative Office of the United States Courts
in a memorandum to the Chief Judges of the United States Courts of
Appeals, United States District Courts, and United States Bankruptcy
Courts, dated April 19, 1988, provided in part that: ''The amendment
establishing a fee for filing a petition ancillary to a foreign
proceeding under 304 of the Bankruptcy Code will become effective May
1, 1988. The amendment expanding the exemption for services rendered
'to the United States' to include services rendered to bankruptcy
administrators simply expresses a policy which has been in effect since
the creation of the bankruptcy administrator program by Congress in the
Bankruptcy Judges, United States Trustees and Family Farmer Bankruptcy
Act of 1986. (Pub. L. No. 99-554, 302(d)(3)(I).)''.
28 USC 1931. Disposition of filing fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Of the amounts paid to the clerk of court as a fee under section
1914(a) or as part of a judgment for costs under section 2412(a)(2) of
this title, $60 shall be deposited into a special fund of the Treasury
to be available to offset funds appropriated for the operation and
maintenance of the courts of the United States.
(b) If the court authorizes a fee under section 1914(a) or an amount
included in a judgment for costs under section 2412(a)(2) of this title
of less than $120, the entire fee or amount, up to $60, shall be
deposited into the special fund provided in this section.
(Added Pub. L. 99-500, 101(b) (title IV, 407(c)), Oct. 18, 1986,
100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, 101(b) (title IV,
407(c)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64; amended Pub. L.
101-162, title IV, 406(d), Nov. 21, 1989, 103 Stat. 1016; Pub. L.
102-572, title III, 301(b), Oct. 29, 1992, 106 Stat. 4511.)
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
1992 -- Pub. L. 102-572 substituted present provisions for former
provisions which read as follows:
''The following portion of moneys paid to the clerk of court as
filing fees under this chapter shall be deposited into a special fund of
the Treasury to be available to offset funds appropriated for the
operation and maintenance of the courts of the United States:
''Under section 1914(a), $60.''
1989 -- Pub. L. 101-162, which directed that ''as provided in annual
appropriation acts'' be struck out before colon, was executed by
striking out ''as provided in annual appropriation Acts'' before colon
as probable intent of Congress.
Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section
1101(a) of Pub. L. 102-572, set out as a note under section 905 of
Title 2, The Congress.
Section 406(b) of Pub. L. 101-162 provided that: ''All fees as
shall be hereafter collected for any service enumerated after item 18 of
the bankruptcy miscellaneous fee schedule prescribed by the Judicial
Conference of the United States pursuant to 28 U.S.C. section 1930(b)
and 25 percent of the fees hereafter collected under 28 U.S.C. section
1930(a)(1) shall be deposited as offsetting receipts to the fund
established under 28 U.S.C. section 1931 and shall remain available to
the Judiciary until expended to reimburse any appropriation for the
amount paid out of such appropriation for expenses of the Courts of
Appeals, District Courts, and other Judicial Services and the
Administrative Office of the United States Courts. The Judicial
Conference shall report to the Committees on Appropriations of the House
of Representatives and the Senate on a quarterly basis beginning on the
first day of each fiscal year regarding the sums deposited in said
fund.''
28 USC CHAPTER 125 -- PENDING ACTIONS AND JUDGMENTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
1961. Interest.
1962. Lien.
1963. Registration of judgments of the district courts and the Court
of International Trade.
(1963A. Repealed.)
1964. Constructive notice of pending actions.
1988 -- Pub. L. 100-702, title X, 1002(b)(3), Nov. 19, 1988, 102
Stat. 4664, substituted ''Registration of judgments of the district
courts and the Court of International Trade'' for ''Registration in
other districts'' in item 1963 and repealed item 1963A ''Registration of
judgments of the Court of International Trade''.
1980 -- Pub. L. 96-417, title V, 511(b), Oct. 10, 1980, 94 Stat.
1743, added item 1963A.
1958 -- Pub. L. 85-689, 1(b), (c), Aug. 20, 1958, 72 Stat. 683,
substituted ''CHAPTER 125 -- PENDING ACTIONS AND JUDGMENTS'' for
''CHAPTER 125 -- JUDGMENTS'' in chapter heading and added item 1964.
Judgments, see rules 54 to 58, Appendix to this title.
Declaratory judgments, see sections 2201 and 2202 of this title.
28 USC 1961. Interest
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Interest shall be allowed on any money judgment in a civil case
recovered in a district court. Execution therefor may be levied by the
marshal, in any case where, by the law of the State in which such court
is held, execution may be levied for interest on judgments recovered in
the courts of the State. Such interest shall be calculated from the
date of the entry of the judgment, at a rate equal to the coupon issue
yield equivalent (as determined by the Secretary of the Treasury) of the
average accepted auction price for the last auction of fifty-two week
United States Treasury bills settled immediately prior to the date of
the judgment. The Director of the Administrative Office of the United
States Courts shall distribute notice of that rate and any changes in it
to all Federal judges.
(b) Interest shall be computed daily to the date of payment except as
provided in section 2516(b) of this title and section 1304(b) of title
31, and shall be compounded annually.
(c)(1) This section shall not apply in any judgment of any court with
respect to any internal revenue tax case. Interest shall be allowed in
such cases at the underpayment rate or overpayment rate (whichever is
appropriate) established under section 6621 of the Internal Revenue Code
of 1986.
(2) Except as otherwise provided in paragraph (1) of this subsection,
interest shall be allowed on all final judgments against the United
States in the United States Court of Appeals for the Federal circuit,
/1/ at the rate provided in subsection (a) and as provided in subsection
(b).
(3) Interest shall be allowed, computed, and paid on judgments of the
United States Court of Federal Claims only as provided in paragraph (1)
of this subsection or in any other provision of law.
(4) This section shall not be construed to affect the interest on any
judgment of any court not specified in this section.
(June 25, 1948, ch. 646, 62 Stat. 957; Apr. 2, 1982, Pub. L.
97-164, title III, 302(a), 96 Stat. 55; Sept. 13, 1982, Pub. L.
97-258, 2(m)(1), 96 Stat. 1062; Jan. 12, 1983, Pub. L. 97-452,
2(d)(1), 96 Stat. 2478; Oct. 22, 1986, Pub. L. 99-514, 2, title XV,
1511(c)(17), 100 Stat. 2095, 2745; Oct. 29, 1992, Pub. L. 102-572,
title IX, 902(b)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 811 (R.S. 966; Mar. 3, 1911,
ch. 231, 291, 36 Stat. 1167).
Changes were made in phraseology.
Section 6621 of the Internal Revenue Code of 1986, referred to in
subsec. (c)(1), is classified to section 6621 of Title 26, Internal
Revenue Code.
1992 -- Subsec. (c)(3). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1986 -- Subsec. (c)(1). Pub. L. 99-514, 1511(c)(17), substituted
''the underpayment rate or overpayment rate (whichever is appropriate)
established'' for ''a rate established''.
Pub. L. 99-514, 2, substituted ''Internal Revenue Code of 1986'' for
''Internal Revenue Code of 1954''.
1983 -- Subsec. (b). Pub. L. 97-452 substituted ''section 1304(b) of
title 31'' for ''section 1302 of the Act of July 27, 1956 (31 U.S.C.
724a)''.
1982 -- Subsec. (a). Pub. L. 97-164, 302(a)(1), (2), designated
existing provisions as subsec. (a), substituted ''at a rate equal to
the coupon issue yield equivalent (as determined by the Secretary of the
Treasury) of the average accepted auction price for the last auction of
fifty-two week United States Treasury bills settled immediately prior to
the date of the judgment'' for ''at the rate allowed by State law'', and
inserted provision that the Director of the Administrative Office of the
United States Courts distribute notice of the rate and any changes in it
to all Federal judges.
Subsec. (b). Pub. L. 97-258 substituted ''this title and section
1304(b)(1) of title 31'' for ''title 28, United States Code, and section
1302 of the Act of July 27, 1956 (31 U.S.C. 724a)''.
Subsecs. (b), (c). Pub. L. 97-164, 302(a)(3), added subsecs. (b)
and (c).
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by section 1511(c)(17) of Pub. L. 99-514 applicable for
purposes of determining interest for periods after Dec. 31, 1986, see
section 1511(d) of Pub. L. 99-514, set out as a note under section 6621
of Title 26, Internal Revenue Code.
Section 2(m) of Pub. L. 97-258 provided that the amendment made by
that section is effective Oct. 1, 1982.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Execution, see rule 69, Appendix to this title.
Interest on --
Affirmed judgments of Court of Federal Claims, see section 2516 of
this title.
Judgments against United States, see section 2411 of this title.
title 26 section 6622.
/1/ So in original. Probably should be capitalized.
28 USC 1962. Lien
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Every judgment rendered by a district court within a State shall be a
lien on the property located in such State in the same manner, to the
same extent and under the same conditions as a judgment of a court of
general jurisdiction in such State, and shall cease to be a lien in the
same manner and time. This section does not apply to judgments entered
in favor of the United States. Whenever the law of any State requires a
judgment of a State court to be registered, recorded, docketed or
indexed, or any other act to be done, in a particular manner, or in a
certain office or county or parish before such lien attaches, such
requirements shall apply only if the law of such State authorizes the
judgment of a court of the United States to be registered, recorded,
docketed, indexed or otherwise conformed to rules and requirements
relating to judgments of the courts of the State.
(June 25, 1948, ch. 646, 62 Stat. 958; Nov. 29, 1990, Pub. L.
101-647, title XXXVI, 3627, 104 Stat. 4965.)
Based on title 28, U.S.C., 1940 ed., 812 and 814 (R.S. 967; Aug.
1, 1888, ch. 729, 1, 25 Stat. 357; Mar. 3, 1911, ch. 231, 291, 36
Stat. 1167; Aug. 17, 1912, ch. 300, 37 Stat. 311).
Section consolidates sections 812 and 814 of title 28, U.S.C., 1940
ed., with changes in phraseology necessary to effect consolidation and
to clarify the meaning of such sections.
Omitted words ''or decree'' after ''judgments'' as unnecessary
inasmuch as Rule 54(a) of the Federal Rules of Civil Procedure by
definition of judgment includes a decree.
Words ''in the State of Louisiana'' after ''or parish'' were omitted
as unnecessary.
A reference to section 813 of title 28, U.S.C., 1940 ed., was
omitted, since such section is omitted from this revision as covered by
Rule 79(c) of the Federal Rules of Civil Procedure.
1990 -- Pub. L. 101-647 inserted after first sentence ''This section
does not apply to judgments entered in favor of the United States.''
Amendment by Pub. L. 101-647 effective 180 days after Nov. 29,
1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date
note under section 3001 of this title.
Judgments, see rules 54 to 58, Appendix to this title.
Declaratory judgments, see sections 2201 and 2202 of this title.
28 USC 1963. Registration of judgments of the district courts and the
Court of International Trade
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A judgment in an action for the recovery of money or property entered
in any district court or in the Court of International Trade may be
registered by filing a certified copy of such judgment in any other
district or, with respect to the Court of International Trade, in any
judicial district, when the judgment has become final by appeal or
expiration of the time for appeal or when ordered by the court that
entered the judgment for good cause shown. Such a judgment entered in
favor of the United States may be so registered any time after judgment
is entered. A judgment so registered shall have the same effect as a
judgment of the district court of the district where registered and may
be enforced in like manner.
A certified copy of the satisfaction of any judgment in whole or in
part may be registered in like manner in any district in which the
judgment is a lien.
(June 25, 1948, ch. 646, 62 Stat. 958; Aug. 23, 1954, ch. 837, 68
Stat. 772; July 7, 1958, Pub. L. 85-508, 12(o), 72 Stat. 349; Nov.
19, 1988, Pub. L. 100-702, title X, 1002(a), (b)(1), 102 Stat. 4664;
Nov. 29, 1990, Pub. L. 101-647, title XXXVI, 3628, 104 Stat. 4965.)
This section follows the recommendation of the Supreme Court's
Advisory Committee on Federal Rules of Civil Procedure (1937) which
included the following rule:
''Rule 77. Registration of judgments in other district courts. A
judgment entered in any district court and which has become final
through expiration of the time for appeal or by mandate on appeal may be
registered in any other district court by filing therein an
authenticated copy of the judgment. When so registered the judgment
shall have the same effect and like proceedings for its enforcement may
be taken thereon in the court in which it is registered as if the
judgment had been originally entered by that court. If in the court in
which the judgment was originally entered, the judgment has been
satisfied in whole or in part or if an order has been made modifying or
vacating it or affecting or suspending its operation, the party
procuring the registration shall and any other party may file
authenticated copies of the satisfaction or order with the court in
which the judgment is registered. This rule shall not be construed to
limit the effect of the Act of February 20, 1905, c. 592, 20 (33 Stat.
729), as amended, U.S.C., title 15, 100; or the Act of March 4, 1909,
c. 320, 36 and 37 (35 Stat. 1084), U.S.C., title 17, 36 and 37; or
56 of the Judicial Code, U.S.C., title 28, 117; or to authorize the
registration elsewhere of an order or a judgment rendered in a divorce
action in the District of Columbia.''
Section 2508 of this title provides for the registration of judgments
of the Court of Claims in favor of the United States in any district.
See, also, section 2413 of this title.
The phrase ''for the recovery of money or property'' was not in the
committee's draft of Rule 77 of Federal Rules of Civil Procedure but was
inserted in the revised section to exclude judgments in divorce actions,
and any other actions, the registration of which would serve no useful
purpose.
1990 -- Pub. L. 101-647 inserted after first sentence ''Such a
judgment entered in favor of the United States may be so registered any
time after judgment is entered.''
1988 -- Pub. L. 100-702 substituted ''Registration of judgments of
the district courts and the Court of International Trade'' for
''Registration in other districts'' in section catchline and amended
first sentence generally. Prior to amendment, first sentence read as
follows: ''A judgment in an action for the recovery of money or
property now or hereafter entered in any district court which has become
final by appeal or expiration of time for appeal may be registered in
any other district by filing therein a certified copy of such
judgment.''
1958 -- Pub. L. 85-508 struck out provisions which extended
provisions of section to District Court for Territory of Alaska. See
section 81A of this title which establishes a United States District
Court for the State of Alaska.
1954 -- Act Aug. 23, 1954, extended provisions of section to
District Court for Territory of Alaska.
Amendment by Pub. L. 101-647 effective 180 days after Nov. 29,
1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date
note under section 3001 of this title.
Section 1002(c) of title X of Pub. L. 100-702 provided that: ''The
amendments made by this section (amending this section and repealing
section 1963A of this title) take effect 90 days after the date of
enactment of this title (Nov. 19, 1988).''
Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of
Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24
F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L.
85-508, see notes set out under section 81A of this title and preceding
section 21 of Title 48, Territories and Insular Possessions.
28 USC ( 1963A. Repealed. Pub. L. 100-702, title X, 1002(b)(2), Nov.
19, 1988, 102 Stat. 4664)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 96-417, title V, 511(a), Oct. 10, 1980, 94
Stat. 1743, provided for registration of judgments of the Court of
International Trade. See section 1963 of this title.
Repeal effective 90 days after Nov. 19, 1988, see section 1002(c) of
Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note
under section 1963 of this title.
28 USC 1964. Constructive notice of pending actions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Where the law of a State requires a notice of an action concerning
real property pending in a court of the State to be registered,
recorded, docketed, or indexed in a particular manner, or in a certain
office or county or parish in order to give constructive notice of the
action as it relates to the real property, and such law authorizes a
notice of an action concerning real property pending in a United States
district court to be registered, recorded, docketed, or indexed in the
same manner, or in the same place, those requirements of the State law
must be complied with in order to give constructive notice of such an
action pending in a United States district court as it relates to real
property in such State.
(Added Pub. L. 85-689, 1(a), Aug. 20, 1958, 72 Stat. 683.)
Section 2 of Pub. L. 85-689 provided that: ''The amendments made by
this Act (enacting this section) shall only be effective with respect to
actions commenced in United States district courts more than one hundred
and eighty days after the date of enactment of this Act (Aug. 20,
1958).''
28 USC CHAPTER 127 -- EXECUTIONS AND JUDICIAL SALES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2001. Sale of realty generally.
2002. Notice of sale of realty.
2003. Marshal's incapacity after levy on or sale of realty.
2004. Sale of personalty generally.
2005. Appraisal of goods taken on execution.
2006. Execution against revenue officer.
2007. Imprisonment for debt.
28 USC 2001. Sale of realty generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Any realty or interest therein sold under any order or decree of
any court of the United States shall be sold as a whole or in separate
parcels at public sale at the courthouse of the county, parish, or city
in which the greater part of the property is located, or upon the
premises or some parcel thereof located therein, as the court directs.
Such sale shall be upon such terms and conditions as the court directs.
Property in the possession of a receiver or receivers appointed by
one or more district courts shall be sold at public sale in the district
wherein any such receiver was first appointed, at the courthouse of the
county, parish, or city situated therein in which the greater part of
the property in such district is located, or on the premises or some
parcel thereof located in such county, parish, or city, as such court
directs, unless the court orders the sale of the property or one or more
parcels thereof in one or more ancillary districts.
(b) After a hearing, of which notice to all interested parties shall
be given by publication or otherwise as the court directs, the court may
order the sale of such realty or interest or any part thereof at private
sale for cash or other consideration and upon such terms and conditions
as the court approves, if it finds that the best interests of the estate
will be conserved thereby. Before confirmation of any private sale, the
court shall appoint three disinterested persons to appraise such
property or different groups of three appraisers each to appraise
properties of different classes or situated in different localities. No
private sale shall be confirmed at a price less than two-thirds of the
appraised value. Before confirmation of any private sale, the terms
thereof shall be published in such newspaper or newspapers of general
circulation as the court directs at least ten days before confirmation.
The private sale shall not be confirmed if a bona fide offer is made,
under conditions prescribed by the court, which guarantees at least a 10
per centum increase over the price offered in the private sale.
(c) This section shall not apply to sales and proceedings under Title
11 or by receivers or conservators of banks appointed by the Comptroller
of the Currency.
(June 25, 1948, ch. 646, 62 Stat. 958; May 24, 1949, ch. 139, 99,
63 Stat. 104.)
Based on title 28, U.S.C., 1940 ed., 847 (Mar. 3, 1893, ch. 225, 1,
27 Stat. 751; June 19, 1934, ch. 662, 48 Stat. 1119; Apr. 24, 1935,
ch. 77, 1, 49 Stat. 159; June 19, 1935, ch. 276, 49 Stat. 390).
A provision making the section applicable to pending proceedings was
deleted as obsolete.
The term ''court of the United States'' is defined in section 451 of
this title.
Changes were made in phraseology.
This section corrects a typographical error in subsection (a) of
section 2001 of title 28, U.S.C.
1949 -- Subsec. (a). Act May 24, 1949, corrected spelling of
''ancillary'' in second par.
Execution, see rule 69, Appendix to this title.
Sale of property in bankruptcy proceedings, see section 363 of Title
11, Bankruptcy.
28 USC 2002. Notice of sale of realty
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A public sale of realty or interest therein under any order, judgment
or decree of any court of the United States shall not be made without
notice published once a week for at least four weeks prior to the sale
in at least one newspaper regularly issued and of general circulation in
the county, state, or judicial district of the United States wherein the
realty is situated.
If such realty is situated in more than one county, state, district
or circuit, such notice shall be published in one or more of the
counties, states, or districts wherein it is situated, as the court
directs. The notice shall be substantially in such form and contain
such description of the property by reference or otherwise as the court
approves. The court may direct that the publication be made in other
newspapers.
This section shall not apply to sales and proceedings under Title 11
or by receivers or conservators of banks appointed by the Comptroller of
the Currency.
(June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, 100,
63 Stat. 104.)
Based on title 28, U.S.C., 1940 ed., 849 (Mar. 3, 1893, ch. 225, 3,
27 Stat. 751; Apr. 24, 1935, ch. 77, 3, 49 Stat. 160; June 19, 1935,
ch. 276, 49 Stat. 390).
A provision making the section applicable to pending proceedings was
deleted as obsolete.
Word ''under'' was substituted for ''ordered pursuant to section 847
of this title by'' after ''A public sale of realty or interest
therein''.
Sections 847 and 848, of title 28, U.S.C., 1940 ed., now sections
2001 and 2004 of this title, relate only to sales under orders or
decrees, without any reference to sales under judgments. In 1921 the
Supreme Court held, in Yazoo & M. V. R. Co. v. City of Clarksdale,
1921, 42 S.Ct. 27, 257 U.S. 10, 66 L.Ed. 104, that such section 847 did
not apply to sales under common law executions. At that time such
section 849 of title 28, U.S.C., 1940 ed., read as it has been revised
above, without any reference to such section 847. However, in 1935,
such sections 847, 848 and 849 were amended by one act, ch. 77, 49
Stat. 159, and, in such section 849, the words ''pursuant to the
provisions of this Act'' were inserted, but the word ''judgment,''
though retained in such section 849, was not inserted in such sections
847 and 848. It is probable that Congress did not intend, in 1935 to
make such sections 847 and 848 applicable to sales under judgments in
law actions. Hence, to make all three sections consistent, the
above-mentioned substitution was made.
Reference to circuit was deleted from first and second paragraphs as
unnecessary and inappropriate. Publication in a newspaper in a large
circuit remote from the county in which the realty is situate, might be
wholly insufficient to give notice to interested parties.
Changes were made in phraseology.
This section corrects a typographical error in section 2002 of title
28, U.S.C.
1949 -- Act May 24, 1949, substituted ''11'' for ''II'' after
''Title'' in third par.
Execution, see rule 69, Appendix to this title.
28 USC 2003. Marshal's incapacity after levy on or sale of realty
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever a United States marshal dies, is removed from office, or the
term of his commission expires, after levying on realty or any interest
therein under a writ of execution issued by a court of the United
States, and before sale or other final disposition thereof, like process
shall issue to the succeeding marshal and the same proceedings shall be
had as if such contingency had not occurred.
Whenever any such contingency arises after a marshal has sold any
realty or interest therein and before a deed is executed, the court may,
on application by the purchaser, or the plaintiff in whose action the
sale was made, setting forth the facts of the case and the reason why
the title was not perfected by such marshal, order the succeeding
marshal to perfect the title and execute a deed to the purchaser, upon
payment of the purchase money and unpaid costs.
(June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, 101,
63 Stat. 104.)
Based on title 28, U.S.C., 1940 ed., 850 (R.S. 994).
Word ''realty'' was substituted for ''lands, tenements, or
hereditaments'' in two places, the two terms being synonymous. (See
Black's Law Dictionary, 3d Ed., p. 1969.)
Word ''action'' was substituted for ''suit'', in view of Rule 2 of
the Federal Rules of Civil Procedure, prescribing but one form of
action.
Changes were made in phraseology.
This section corrects a typographical error in section 2003 of title
28, U.S.C.
1949 -- Act May 24, 1949, corrected spelling of ''realty'' in first
par.
Execution, see rule 69, Appendix to this title.
28 USC 2004. Sale of personalty generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any personalty sold under any order or decree of any court of the
United States shall be sold in accordance with section 2001 of this
title, unless the court orders otherwise.
This section shall not apply to sales and proceedings under Title 11
or by receivers or conservators of banks appointed by the Comptroller of
the Currency.
(June 25, 1948, ch. 646, 62 Stat. 959.)
Based on title 28, U.S.C., 1940 ed., 848 (Mar. 3, 1893, ch. 225, 2,
27 Stat. 751; Apr. 24, 1935, ch. 77, 2, 49 Stat. 160; June 19, 1935,
ch. 276, 49 Stat. 390).
A provision making the section applicable to pending proceedings was
deleted as obsolete.
Changes were made in phraseology.
Execution, see rule 69, Appendix to this title.
28 USC 2005. Appraisal of goods taken on execution
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever State law requires that goods taken on execution be
appraised before sale, goods taken under execution issued from a court
of the United States shall be appraised in like manner.
The United States marshal shall summon the appraisers in the same
manner as the sheriff is required to summon appraisers under State law.
If the appraisers fail to attend and perform their required duties,
the marshal may sell the goods without an appraisal. Appraisers
attending and performing their duties, shall receive the fees allowed
for appraisals under State law.
(June 25, 1948, ch. 646, 62 Stat. 959.)
Based on title 28, U.S.C., 1940 ed., 846 (R.S. 993).
Words ''shall be appraised in like manner'' were substituted for
''the appraisers appointed under the authority of the State may appraise
goods taken in execution on a fieri facias issued out of any court of
the United States''. The change precludes construction that the State
appraisers only are available to appraise such goods in civil actions in
the federal courts.
Changes were made in phraseology.
Execution, see rule 69, Appendix to this title.
28 USC 2006. Execution against revenue officer
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Execution shall not issue against a collector or other revenue
officer on a final judgment in any proceeding against him for any of his
acts, or for the recovery of any money exacted by or paid to him and
subsequently paid into the Treasury, in performing his official duties,
if the court certifies that:
(1) probable cause existed; or
(2) the officer acted under the directions of the Secretary of the
Treasury or other proper Government officer.
When such certificate has been issued, the amount of the judgment
shall be paid out of the proper appropriation by the Treasury.
(June 25, 1948, ch. 646, 62 Stat. 960.)
Based on title 28, U.S.C., 1940 ed., 842 (R.S. 989).
Changes were made in phraseology.
Execution, against certain public officers, see rule 69, Appendix to
this title.
Judgment, see rule 54.
Executions in favor of United States, see section 2413 of this title.
28 USC 2007. Imprisonment for debt
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A person shall not be imprisoned for debt on a writ of execution
or other process issued from a court of the United States in any State
wherein imprisonment for debt has been abolished. All modifications,
conditions, and restrictions upon such imprisonment provided by State
law shall apply to any writ of execution or process issued from a court
of the United States in accordance with the procedure applicable in such
State.
(b) Any person arrested or imprisoned in any State on a writ of
execution or other process issued from any court of the United States in
a civil action shall have the same jail privileges and be governed by
the same regulations as persons confined in like cases on process issued
from the courts of such State. The same requirements governing
discharge as are applicable in such State shall apply. Any proceedings
for discharge shall be conducted before a United States commissioner for
the judicial district wherein the defendant is held.
(June 25, 1948, ch. 646, 62 Stat. 960.)
Based on title 28, U.S.C., 1940 ed., 843, 844, and 845 (R.S.
990, 991, 992; May 28, 1896, ch. 252, 19, 29 Stat. 184; Mar. 2, 1901,
ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231, 291, 36 Stat. 1167).
Changes were made in phraseology.
Reference to United States commissioner deemed to be reference to
United States magistrate, pursuant to Pub. L. 90-578, title IV,
402(b)(2), Oct. 17, 1968, 82 Stat. 1118. See chapter 43 ( 631 et seq.)
of this title.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Execution and seizure of person or property, see rules 64 and 69,
Appendix to this title.
28 USC CHAPTER 129 -- MONEYS PAID INTO COURT
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2041. Deposit of moneys in pending or adjudicated cases.
2042. Withdrawal.
2043. Deposit of other moneys.
2044. Payment of fine with bond money.
1990 -- Pub. L. 101-647, title XXXVI, 3629(b), Nov. 29, 1990, 104
Stat. 4966, which directed the amendment of the table of sections for
chapter 29 by adding item 2044, was executed by adding item 2044 to the
table of sections for chapter 129 to reflect the probable intent of
Congress.
1982 -- Pub. L. 97-258, 2(g)(4)(A), (B), Sept. 13, 1982, 96 Stat.
1060, substituted ''Deposit of moneys in pending or adjudicated cases''
for ''Deposit'' in item 2041 and added item 2043.
28 USC 2041. Deposit of moneys in pending or adjudicated cases
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
All moneys paid into any court of the United States, or received by
the officers thereof, in any case pending or adjudicated in such court,
shall be forthwith deposited with the Treasurer of the United States or
a designated depositary, in the name and to the credit of such court.
This section shall not prevent the delivery of any such money to the
rightful owners upon security, according to agreement of parties, under
the direction of the court.
(June 25, 1948, ch. 646, 62 Stat. 960; Sept. 13, 1982, Pub. L.
97-258, 2(g)(4)(C), 96 Stat. 1061.)
Based on title 28, U.S.C., 1940 ed., 851 (R.S. 995; May 29, 1920,
ch. 214, 1, 41 Stat. 654).
Changes were made in phraseology.
1982 -- Pub. L. 97-258 substituted ''Deposit of moneys in pending or
adjudicated cases'' for ''Deposit'' in section catchline.
Pub. L. 100-459, title IV, 400, Oct. 1, 1988, 102 Stat. 2211,
provided: ''That any funds hereafter collected by the Judiciary as a
charge for services rendered in administering accounts kept in a court's
registry shall be deposited into a separate account entitled 'Registry
Administration Account' in the Treasury of the United States. Such
funds shall remain available to the Judiciary until expended to
reimburse any appropriation for the amount paid out of such
appropriation for expenses of the Courts of Appeals, District Courts and
Other Judicial Services and the Administrative Office of the United
States Courts''.
Bringing funds into court, see rule C, Appendix to this title.
Claims against proceeds in registry, see rule E.
Deposit in court, see rule 67.
Funds in court registry, see rule E.
Condemnation proceedings, deposit in registry of court, see section
258a of Title 40, Public Buildings, Property, and Works.
Court officers depositing registry moneys, see section 646 of Title
18, Crimes and Criminal Procedure.
Depositaries of public moneys and financial agents of Government, see
section 90 of Title 12, Banks and Banking.
Limitation of liability, deposit of value of interest in court, see
section 185 of Title 46, Appendix, Shipping.
Powers upon designation and assignment, exception as to permanent
designation of depository of funds, see section 296 of this title.
28 USC 2042. Withdrawal
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
No money deposited under section 2041 of this title shall be
withdrawn except by order of court.
In every case in which the right to withdraw money deposited in court
under section 2041 has been adjudicated or is not in dispute and such
money has remained so deposited for at least five years unclaimed by the
person entitled thereto, such court shall cause such money to be
deposited in the Treasury in the name and to the credit of the United
States. Any claimant entitled to any such money may, on petition to the
court and upon notice to the United States attorney and full proof of
the right thereto, obtain an order directing payment to him.
(June 25, 1948, ch. 646, 62 Stat. 960; Sept. 13, 1982, Pub. L.
97-258, 2(g)(4)(D), 96 Stat. 1061.)
Based on title 28, U.S.C., 1940 ed., 852 (R.S. 996; Feb. 19, 1897,
ch. 265, 3, 29 Stat. 578; Mar. 3, 1911, ch. 224, 36 Stat. 1083).
Words ''and the money deposited as aforesaid shall constitute and be
a permanent appropriation for payments in obedience to such orders''
were omitted, in view of section 725p(b)(14), of title 31, U.S.C., 1940
ed., which repealed permanent appropriations of unclaimed money accounts
and substituted authorization for annual appropriations effective July
1, 1935.
Changes were made in phraseology.
In U. S. Law Week, Nov. 7, 1939, Rep. Walter Chandler (Author of
Chandler Act, Bankruptcy) observed as to the Judicial Code:
''Among the major subjects needing study and revision are -- Numerous
procedural changes which have been brought about through adoption of the
Federal Rules of Civil Procedure should be codified.'' * * *
1982 -- Pub. L. 97-258 inserted references to section 2041 in two
places.
Deposit in court, see rule 67, Appendix to this title.
Unclaimed moneys, see section 347 of Title 11, Bankruptcy.
28 USC 2043. Deposit of other moneys
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except for public moneys deposited under section 2041 of this title,
each clerk of the United States courts shall deposit public moneys that
the clerk collects into a checking account in the Treasury, subject to
disbursement by the clerk. At the end of each accounting period, the
earned part of public moneys accruing to the United States shall be
deposited in the Treasury to the credit of the appropriate receipt
accounts.
(Added Pub. L. 97-258, 2(g)(4)(E), Sept. 13, 1982, 96 Stat.
The words ''Except for public moneys deposited under section 2041 of
this title . . . public moneys'' are substituted for ''All fees and
other collections other than moneys referred to in subsection (a) of
this section'' for consistency and because 31:725v(a) is superseded by
28:2041 and is not part of the revised title contained in section 1 of
the bill. The word ''Treasury'' is substituted for ''Treasurer of the
United States'' because of section 1 of Reorganization Plan No. 26 of
1950 (eff. July 31, 1950, 64 Stat. 1280), restated as section 321 of the
revised title contained in section 1 of the bill. The text of
31:725v(b)(last sentence) is omitted as obsolete.
28 USC 2044. Payment of fine with bond money
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On motion of the United States attorney, the court shall order any
money belonging to and deposited by or on behalf of the defendant with
the court for the purposes of a criminal appearance bail bond (trial or
appeal) to be held and paid over to the United States attorney to be
applied to the payment of any assessment, fine, restitution, or penalty
imposed upon the defendant. The court shall not release any money
deposited for bond purposes after a plea or a verdict of the defendant's
guilt has been entered and before sentencing except upon a showing that
an assessment, fine, restitution or penalty cannot be imposed for the
offense the defendant committed or that the defendant would suffer an
undue hardship. This section shall not apply to any third party surety.
(Added Pub. L. 101-647, title XXXVI, 3629(a), Nov. 29, 1990, 104
Stat. 4966.)
Section effective 180 days after Nov. 29, 1990, and applicable with
respect to certain actions for debts owed the United States pending in
court on that effective date, see section 3631 of Pub. L. 101-647, set
out as a note under section 3001 of this title.
28 USC CHAPTER 131 -- RULES OF COURTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2071. Rule-making power generally.
2072. Rules of procedure and evidence; power to prescribe.
2073. Rules of procedure and evidence; method of prescribing.
2074. Rules of procedure and evidence; submission to Congress;
effective date.
2075. Bankruptcy rules.
(2076. Repealed.)
2077. Publication of rules; advisory committees.
1988 -- Pub. L. 100-702, title IV, 401(d), Nov. 19, 1988, 102
Stat. 4650, added items 2072 to 2075 and struck out former items 2072
''Rules of civil procedure'', 2075 ''Bankruptcy rules'', and 2076
''Rules of evidence''.
1982 -- Pub. L. 97-164, title II, 208(b), Apr. 2, 1982, 96 Stat.
55, added item 2077.
1975 -- Pub. L. 93-595, 2(a)(2), Jan. 2, 1975, 88 Stat. 1949,
added item 2076.
1966 -- Pub. L. 89-773, 3, Nov. 6, 1966, 80 Stat. 1323, struck
out ''for district courts'' in item 2072 and struck out items 2073 and
2074.
1964 -- Pub. L. 88-623, 2, Oct. 3, 1964, 78 Stat. 1001, added
item 2075.
1954 -- Act July 27, 1954, ch. 583, 2, 68 Stat. 567, added item
2074.
Criminal procedure rules are set out in Title 18, Appendix, Crimes
and Criminal Procedure.
28 USC 2071. Rule-making power generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Supreme Court and all courts established by Act of Congress
may from time to time prescribe rules for the conduct of their business.
Such rules shall be consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072 of this title.
(b) Any rule prescribed by a court, other than the Supreme Court,
under subsection (a) shall be prescribed only after giving appropriate
public notice and an opportunity for comment. Such rule shall take
effect upon the date specified by the prescribing court and shall have
such effect on pending proceedings as the prescribing court may order.
(c)(1) A rule of a district court prescribed under subsection (a)
shall remain in effect unless modified or abrogated by the judicial
council of the relevant circuit.
(2) Any other rule prescribed by a court other than the Supreme Court
under subsection (a) shall remain in effect unless modified or abrogated
by the Judicial Conference.
(d) Copies of rules prescribed under subsection (a) by a district
court shall be furnished to the judicial council, and copies of all
rules prescribed by a court other than the Supreme Court under
subsection (a) shall be furnished to the Director of the Administrative
Office of the United States Courts and made available to the public.
(e) If the prescribing court determines that there is an immediate
need for a rule, such court may proceed under this section without
public notice and opportunity for comment, but such court shall promptly
thereafter afford such notice and opportunity for comment.
(f) No rule may be prescribed by a district court other than under
this section.
(June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, 102,
63 Stat. 104; Nov. 19, 1988, Pub. L. 100-702, title IV, 403(a)(1), 102
Stat. 4650.)
Based on title 28, U.S.C., 1940 ed., 219, 263, 296, 307, 723, 731,
and 761, and section 1111 of title 26, U.S.C., 1940 ed., Internal
Revenue Code (R.S. 913, 918; Mar. 3, 1887, ch. 359, 4, 24 Stat.
506; Mar. 3, 1911, ch. 231, 122, 157, 194, 291, 297, 36 Stat. 1132,
1139, 1145, 1167, 1168; Mar. 3, 1911, ch. 231, 187(a), as added Oct.
10, 1940, ch. 843, 1, 54 Stat. 1101; Feb. 13, 1925, ch. 229, 13, 43
Stat. 941; Mar. 2, 1929, ch. 488, 1, 45 Stat. 1475; Feb. 10, 1939,
ch. 2, 1111, 53 Stat. 160; Oct. 21, 1942, ch. 619, title V, 504(a),
(c), 56 Stat. 957).
Sections 219, 263, 296, 307, 723, and 731 of title 28, U.S.C., 1940
ed., gave specified courts, other than the Supreme Court, power to make
rules. Section 761 of such title related to rules established in the
district courts and Court of Claims. Section 1111 of title 26, U.S.C.,
1940 ed., related to Tax Court. This section consolidates all such
provisions. For other provisions of such sections, see Distribution
Table.
Recognition by Congress of the broad rule-making power of the courts
will make it possible for the courts to prescribe complete and uniform
modes of procedure, and alleviate, at least in part, the necessity of
searching in two places, namely in the Acts of Congress and in the rules
of the courts, for procedural requisites.
Former Attorney General Cummings recently said: ''Legislative bodies
have neither the time to inquire objectively into the details of
judicial procedure nor the opportunity to determine the necessity for
amendment or change. Frequently such legislation has been enacted for
the purpose of meeting particular problems or supposed difficulties, but
the results have usually been confusing or otherwise unsatisfactory.
Comprehensive action has been lacking for the obvious reason that the
professional nature of the task would leave the legislature little time
for matters of substance and statesmanship. It often happened that an
admitted need for change, even in limited areas, could not be secured.''
-- The New Criminal Rules -- Another Triumph of the Democratic Process.
American Bar Association Journal, May 1945.
Provisions of sections 263 and 296 of title 28, U.S.C., 1940 ed.,
authorizing the Court of Claims and Customs Court to punish for
contempt, were omitted as covered by H. R. 1600, 401, 80th Congress,
for revision of the Criminal Code.
Provisions of section 1111 of title 26, U.S.C., 1940 ed., making
applicable to Tax Court Proceedings ''the rules of evidence applicable
in the courts of the District of Columbia in the type of proceeding
which, prior to Sept. 16, 1938, were within the jurisdiction of the
courts of equity of said District,'' were omitted as unnecessary and
inconsistent with other provisions of law relating to the Federal
courts. The rules of evidence in Tax Court proceedings are the same as
those which apply to civil procedure in other courts. See Dempster
Mill. Mfg. Co. v. Burnet, 1931, 46 F.2d 604, 60 App.D.C. 23.
For rule-making power of the Supreme Court in copyright infringement
actions, see section 25(e) of title 17, U.S.C., 1940 ed., Copyrights.
See, also, section 205(a) of title 11, U.S.C., 1940 ed., Bankruptcy,
authorizing the Supreme Court to promulgate rules relating to service of
process in railroad reorganization proceedings.
By Senate amendment, all provisions relating to the Tax Court were
eliminated. Therefore, section 1111 of Title 26, U.S.C., Internal
Revenue Code, was not one of the sources of this section as finally
enacted. However, no change in the text of this section was necessary.
See 80th Congress Senate Report No. 1559.
This amendment clarifies section 2071 of title 28, U.S.C., by giving
express recognition to the power of the Supreme Court to prescribe its
own rules and by giving a better description of its procedural rules.
1988 -- Pub. L. 100-702 designated existing provisions as subsec.
(a), substituted ''under section 2072 of this title'' for ''by the
Supreme Court'', and added subsecs. (b) to (f).
1949 -- Act May 24, 1949, expressed recognition to the Supreme
Court's power to prescribe its own rules and give a better description
of its procedural rules.
Section 407 of title IV of Pub. L. 100-702 provided that: ''This
title (enacting sections 2072 to 2074 of this title, amending this
section, sections 331, 332, 372, 604, 636, and 2077 of this title,
section 460n-8 of Title 16, Conservation, and section 3402 of Title 18,
Crimes and Criminal Procedure, repealing former section 2072 and section
2076 of this title and sections 3771 and 3772 of Title 18, and enacting
provisions set out as notes under this section) shall take effect on
December 1, 1988.''
Pub. L. 97-462, 4, Jan. 12, 1983, 96 Stat. 2530, provided that:
''The amendments made by this Act (enacting provisions set out as notes
below, amending Rule 4 of the Federal Rules of Civil Procedure, set out
in the Appendix to this title, adding Form 18-A in the Appendix of
Forms, and amending section 951 of Title 18, Crimes and Criminal
Procedure) shall take effect 45 days after the enactment of this Act
(Jan. 12, 1983).''
Pub. L. 97-462, 1, Jan. 12, 1983, 96 Stat. 2527, provided: ''That
this Act (enacting provisions set out as notes below, amending Rule 4 of
the Federal Rules of Civil Procedure, set out in the Appendix to this
title, adding Form 18-A in the Appendix of Forms, and amending section
951 of Title 18, Crimes and Criminal Procedure) may be cited as the
'Federal Rules of Civil Procedure Amendments Act of 1982'.''
Section 406 of title IV of Pub. L. 100-702 provided that: ''The
rules prescribed in accordance with law before the effective date of
this title (Dec. 1, 1988) and in effect on the date of such effective
date shall remain in force until changed pursuant to the law as amended
by this title (see Effective Date of 1988 Amendment note above).''
Section 405 of title IV of Pub. L. 100-702 provided that: ''The
amendments made by this title (see Effective Date of 1988 Amendment note
above) shall not affect the authority of the Tax Court to prescribe
rules under section 7453 of the Internal Revenue Code of 1986 (26 U.S.C.
7453).''
The Rules of Practice in Admiralty and Maritime Cases, promulgated by
the Supreme Court on Dec. 20, 1920, effective Mar. 7, 1921, as
revised, amended, and supplemented, were rescinded, effective July 1,
1966, in accordance with the general unification of civil and admiralty
procedure which became effective July 1, 1966. Provision for certain
distinctly maritime remedies were preserved however in the Supplemental
Rules for Certain Admiralty and Maritime Claims, rules A to F, Federal
Rules of Civil Procedure, Appendix to this title.
Rules by district courts, authority to make, see rule 83, Appendix to
this title.
Court of Appeals, rules, see rule 57, Title 18, Appendix, Crimes and
Criminal Procedure.
District court rules, see rule 57.
Court of Appeals --
Designation and assignment of District Court judge to sit on, see
section 292 of this title.
Designation of places for terms or sessions of, see section 48 of
this title.
Participation by members of bar at judicial conference of circuit,
see section 333 of this title.
Court of International Trade --
Assignment or reassignment of cases, see section 253 of this title.
Notice of time and place of hearing before judge or division, see
section 2632 of this title.
District Court --
Advance payment of fees, see section 1914 of this title.
Division of business, see section 137 of this title.
Exercise of judicial powers, see section 132 of this title.
Regular terms, see section 138 of this title.
Special terms, see section 141 of this title.
Tax Court rules, see section 7453 of Title 26, Internal Revenue Code.
28 USC 2072. Rules of procedure and evidence; power to prescribe
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Supreme Court shall have the power to prescribe general rules
of practice and procedure and rules of evidence for cases in the United
States district courts (including proceedings before magistrates
thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100-702, title IV, 401(a), Nov. 19, 1988, 102 Stat.
4648; amended Pub. L. 101-650, title III, 315, Dec. 1, 1990, 104 Stat.
5115.)
A prior section 2072, acts June 25, 1948, ch. 646, 62 Stat. 961;
May 24, 1949, ch. 139, 103, 63 Stat. 104; July 18, 1949, ch. 343,
2, 63 Stat. 446; May 10, 1950, ch. 174, 2, 64 Stat. 158; July 7,
1958, Pub. L. 85-508, 12(m), 72 Stat. 348; Nov. 6, 1966, Pub. L.
89-773, 1, 80 Stat. 1323, which authorized the Supreme Court to
prescribe rules of civil procedure, was repealed by Pub. L. 100-702,
title IV, 401(a), 407, Nov. 19, 1988, 102 Stat. 4648, 4652,
effective Dec. 1, 1988.
1990 -- Subsec. (c). Pub. L. 101-650 added subsec. (c).
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Section effective Dec. 1, 1988, see section 407 of Pub. L.
100-702, set out as an Effective Date of 1988 Amendment note under
section 2071 of this title.
Rules of civil procedure promulgated under this section as applicable
to the District Court of the Virgin Islands, see section 1615 of Title
48, Territories and Insular Possessions.
The Rules of Practice in Admiralty and Maritime Cases, promulgated by
the Supreme Court on Dec. 20, 1920, effective Mar. 7, 1921, as
revised, amended, and supplemented, were rescinded, effective July 1,
1966, in accordance with the general unification of civil and admiralty
procedure which became effective July 1, 1966. Provision for certain
distinctly maritime remedies were preserved however, in the Supplemental
Rules for Certain Admiralty and Maritime Claims, Rules A to F, Federal
Rules of Civil Procedure, Appendix to this title.
Application of rules of procedure, see rules 1, 2, 35, 38, 81,
Appendix to this title.
Evidence, see rule 43.
One form of action, see rules 1 and 2.
section 7482; title 29 section 160; title 38 section
7292.
28 USC 2073. Rules of procedure and evidence; method of prescribing
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under section 2072 of this title. Each such committee shall
consist of members of the bench and the professional bar, and trial and
appellate judges.
(b) The Judicial Conference shall authorize the appointment of a
standing committee on rules of practice, procedure, and evidence under
subsection (a) of this section. Such standing committee shall review
each recommendation of any other committees so appointed and recommend
to the Judicial Conference rules of practice, procedure, and evidence
and such changes in rules proposed by a committee appointed under
subsection (a)(2) of this section as may be necessary to maintain
consistency and otherwise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be open to
the public, except when the committee so meeting, in open session and
with a majority present, determines that it is in the public interest
that all or part of the remainder of the meeting on that day shall be
closed to the public, and states the reason for so closing the meeting.
Minutes of each meeting for the transaction of business under this
chapter shall be maintained by the committee and made available to the
public, except that any portion of such minutes, relating to a closed
meeting and made available to the public, may contain such deletions as
may be necessary to avoid frustrating the purposes of closing the
meeting.
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded by
sufficient notice to enable all interested persons to attend.
(d) In making a recommendation under this section or under section
2072, the body making that recommendation shall provide a proposed rule,
an explanatory note on the rule, and a written report explaining the
body's action, including any minority or other separate views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 of this title.
(Added Pub. L. 100-702, title IV, 401(a), Nov. 19, 1988, 102 Stat.
4649.)
A prior section 2073, acts June 25, 1948, ch. 646, 62 Stat. 961;
May 24, 1949, ch. 139, 104, 63 Stat. 104; May 10, 1950, ch. 174,
3, 64 Stat. 158, which empowered the Supreme Court to prescribe, by
general rules, the practice and procedure in admiralty and maritime
cases in the district courts, was repealed by Pub. L. 89-773, 2, Nov.
6, 1966, 80 Stat. 1323.
Section effective Dec. 1, 1988, see section 407 of Pub. L.
100-702, set out as an Effective Date of 1988 Amendment note under
section 2071 of this title.
28 USC 2074. Rules of procedure and evidence; submission to Congress;
effective date
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Supreme Court shall transmit to the Congress not later than
May 1 of the year in which a rule prescribed under section 2072 is to
become effective a copy of the proposed rule. Such rule shall take
effect no earlier than December 1 of the year in which such rule is so
transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except
that the Supreme Court shall not require the application of such rule to
further proceedings then pending to the extent that, in the opinion of
the court in which such proceedings are pending, the application of such
rule in such proceedings would not be feasible or would work injustice,
in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by Act of
Congress.
(Added Pub. L. 100-702, title IV, 401(a), Nov. 19, 1988, 102 Stat.
4649.)
A prior section 2074, act July 27, 1954, ch. 583, 1, 68 Stat. 567,
which empowered the Supreme Court to prescribe rules for review of
decisions of the Tax Court of the United States, was repealed by Pub.
L. 89-773, 2, Nov. 6, 1966, 80 Stat. 1323.
Section effective Dec. 1, 1988, see section 407 of Pub. L.
100-702, set out as an Effective Date of 1988 Amendment note under
section 2071 of this title.
Pub. L. 102-198, 11, Dec. 9, 1991, 105 Stat. 1626, provided that:
''(a) Technical Amendment. -- Rule 15(c)(3) of the Federal Rules of
Civil Procedure for the United States Courts, as transmitted to the
Congress by the Supreme Court pursuant to section 2074 of title 28,
United States Code, to become effective on December 1, 1991, is amended
by striking 'Rule 4(m)' and inserting 'Rule 4(j)'.
''(b) Amendment to Forms. -- Form 1-A, Notice of Lawsuit and Request
for Waiver of Service of Summons, and Form 1-B, Waiver of Service of
Summons, included in the transmittal by the Supreme Court described in
subsection (a), shall not be effective and Form 18-A, Notice and
Acknowledgment for Service by Mail, abrogated by the Supreme Court in
such transmittal, effective December 1, 1991, shall continue in effect
on or after that date.''
Pub. L. 97-462, 5, Jan. 12, 1983, 96 Stat. 2530, provided that:
''The amendments to the Federal Rules of Civil Procedure (Rule 4), the
effective date of which was delayed by the Act entitled 'An Act to delay
the effective date of proposed amendments to rule 4 of the Federal Rules
of Civil Procedure', approved August 2, 1982 (96 Stat. 246) (Pub. L.
97-227, see below), shall not take effect.''
Pub. L. 97-227, Aug. 2, 1982, 96 Stat. 246, provided: ''That
notwithstanding the provisions of section 2072 of title 28, United
States Code, the amendments to rule 4 of the Federal Rules of Civil
Procedure as proposed by the Supreme Court of the United States and
transmitted to the Congress by the Chief Justice on April 28, 1982,
shall take effect on October 1, 1983, unless previously approved,
disapproved, or modified by Act of Congress.
''Sec. 2. This Act shall be effective as of August 1, 1982, but shall
not apply to the service of process that takes place between August 1,
1982, and the date of enactment of this Act (Aug. 2, 1982).''
Date
Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided: ''That
notwithstanding any provision of section 3771 or 3772 of title 18 of the
United States Code or of section 2072, 2075, or 2076 of title 28 of the
United States Code to the contrary --
''(1) the amendments proposed by the United States Supreme Court and
transmitted by the Chief Justice on April 30, 1979, to the Federal Rules
of Criminal Procedure affecting rules 11(e)(6), 17(h), 32(f), and 44(c),
and adding new rules 26.2 and 32.1, and the amendment so proposed and
transmitted to the Federal Rules of Evidence affecting rule 410, shall
not take effect until December 1, 1980, or until and then only to the
extent approved by Act of Congress, whichever is earlier; and
''(2) the amendment proposed by the United States Supreme Court and
transmitted by the Chief Justice on April 30, 1979, affecting rule 40 of
the Federal Rules of Criminal Procedure shall take effect on August 1,
1979, with the following amendments:
''(A) In the matter designated as paragraph (1) of subdivision (d),
strike out 'in accordance with Rule 32.1(a)'.
''(B) In the matter designated as paragraph (2) of subdivision (d),
strike out 'in accordance with Rule 32.1(a)(1)'.''
Pub. L. 94-426, 1, Sept. 28, 1976, 90 Stat. 1334, provided:
''That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings for the
United States district courts, as proposed by the United States Supreme
Court, which were delayed by the Act entitled 'An Act to delay the
effective date of certain proposed amendments to the Federal Rules of
Criminal Procedure and certain other rules promulgated by the United
States Supreme Court' (Public Law 94-349), are approved with the
amendments set forth in section 2 of this Act and shall take effect as
so amended, with respect to petitions under section 2254 and motions
under section 2255 of title 28 of the United States Code filed on or
after February 1, 1977.''
Pub. L. 94-349, 2, July 8, 1976, 90 Stat. 822, provided: ''That,
notwithstanding the provisions of section 2072 of title 28 of the United
States Code, the rules and forms governing section 2254 (section 2254 of
this title) cases in the United States district courts and the rules and
forms governing section 2255 (section 2255 of this title) proceedings in
the United States district courts which are embraced by the order
entered by the United States Supreme Court on April 26, 1976, and which
were transmitted to the Congress on or about April 26, 1976, shall not
take effect until thirty days after the adjournment sine die of the 94th
Congress, or until and to the extent approved by Act of Congress,
whichever is earlier.''
Pub. L. 93-595, 3, Jan. 2, 1975, 88 Stat. 1949, provided that:
''The Congress expressly approves the amendments to the Federal Rules of
Civil Procedure (Rules 30(c), 32(c), 43, and 44.1) and the amendments to
the Federal Rules of Criminal Procedure (Rules 26, 26.1, and 28), which
are embraced by the orders entered by the Supreme Court of the United
States on November 20, 1972, and December 18, 1972, and such amendments
shall take effect on the one hundred and eightieth day beginning after
the date of the enactment of this Act (Jan. 2, 1975).''
Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9, provided: ''That
notwithstanding any other provisions of law, the Rules of Evidence for
United States Courts and Magistrates, the Amendments to the Federal
Rules of Civil Procedure, and the Amendments to the Federal Rules of
Criminal Procedure, which are embraced by the orders entered by the
Supreme Court of the United States on Monday, November 20, 1972, and
Monday, December 18, 1972, shall have no force or effect except to the
extent, and with such amendments, as they may be expressly approved by
the Act of Congress.''
28 USC 2075. Bankruptcy rules
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Supreme Court shall have the power to prescribe by general rules,
the forms of process, writs, pleadings, and motions, and the practice
and procedure in cases under title 11.
Such rules shall not abridge, enlarge, or modify any substantive
right.
Such rules shall not take effect until they have been reported to
Congress by the Chief Justice at or after the beginning of a regular
session thereof but not later than the first day of May and until the
expiration of ninety days after they have been thus reported.
(Added Pub. L. 88-623, 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub.
L. 95-598, title II, 247, Nov. 6, 1978, 92 Stat. 2672.)
1978 -- Pub. L. 95-598 substituted ''in cases under title 11'' for
''under the Bankruptcy Act'' and struck out provisions directing that
all laws in conflict with bankruptcy rules be of no further force or
effect after such rules have taken effect.
Amendment by Pub. L. 95-598 effective Nov. 6, 1978, see section
402(d) of Pub. L. 95-598, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy.
Pub. L. 98-353, title III, 320, July 10, 1984, 98 Stat. 357,
provided that: ''The Supreme Court shall prescribe general rules
implementing the practice and procedure to be followed under section
707(b) of title 11, United States Code. Section 2075 of title 28,
United States Code, shall apply with respect to the general rules
prescribed under this section.''
Pub. L. 95-598, title IV, 405(d), Nov. 6, 1978, 92 Stat. 2685,
provided that: ''The rules prescribed under section 2075 of title 28 of
the United States Code and in effect on September 30, 1979, shall apply
to cases under title 11, to the extent not inconsistent with the
amendments made by this Act, or with this Act (see Tables for complete
classification of Pub. L. 95-598), until such rules are repealed or
superseded by rules prescribed and effective under such section, as
amended by section 248 of this Act.''
Pub. L. 95-598, title IV, 410, Nov. 6, 1978, 92 Stat. 2687,
provided that: ''The Supreme Court may issue such additional rules of
procedure, consistent with Acts of Congress, as may be necessary for the
orderly transfer of functions and records and the orderly transition to
the new bankruptcy court system created by this Act (see Tables for
complete classification of Pub. L. 95-598).''
28 USC ( 2076. Repealed. Pub. L. 100-702, title IV, 401(c), Nov. 19,
1988, 102 Stat. 4650)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 93-595, 2(a)(1), Jan. 2, 1975, 88 Stat.
1948; amended Pub. L. 94-149, 2, Dec. 12, 1975, 89 Stat. 806,
authorized the Supreme Court to prescribe amendments to Federal Rules of
Evidence. See sections 2072 to 2074 of this title.
Repeal effective Dec. 1, 1988, see section 407 of Pub. L. 100-702,
set out as an Effective Date of 1988 Amendment note under section 2071
of this title.
28 USC 2077. Publication of rules; advisory committees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The rules for the conduct of the business of each court of
appeals, including the operating procedures of such court, shall be
published. Each court of appeals shall print or cause to be printed
necessary copies of the rules. The Judicial Conference shall prescribe
the fees for sales of copies under section 1913 of this title, but the
Judicial Conference may provide for free distribution of copies to
members of the bar of each court and to other interested persons.
(b) Each court, except the Supreme Court, that is authorized to
prescribe rules of the conduct of such court's business under section
2071 of this title shall appoint an advisory committee for the study of
the rules of practice and internal operating procedures of such court
and, in the case of an advisory committee appointed by a court of
appeals, of the rules of the judicial council of the circuit. The
advisory committee shall make recommendations to the court concerning
such rules and procedures. Members of the committee shall serve without
compensation, but the Director may pay travel and transportation
expenses in accordance with section 5703 of title 5.
(Added Pub. L. 97-164, title II, 208(a), Apr. 2, 1982, 96 Stat. 54;
amended Pub. L. 100-702, title IV, 401(b), Nov. 19, 1988, 102 Stat.
4650; Pub. L. 101-650, title IV, 406, Dec. 1, 1990, 104 Stat. 5124.)
1990 -- Subsec. (b). Pub. L. 101-650 inserted before period at end
of first sentence ''and, in the case of an advisory committee appointed
by a court of appeals, of the rules of the judicial council of the
circuit''.
1988 -- Subsec. (b). Pub. L. 100-702 substituted ''Each court,
except the Supreme Court, that is authorized to prescribe rules of the
conduct of such court's business under section 2071 of this title shall
appoint'' for ''Each court of appeals shall appoint'' and ''such court''
for ''the court of appeals''.
Amendment by Pub. L. 101-650 effective 90 days after Dec. 1, 1990,
see section 407 of Pub. L. 101-650, set out as a note under section 332
of this title.
Amendment by Pub. L. 100-702 effective Dec. 1, 1988, see section
407 of Pub. L. 100-702, set out as a note under section 2071 of this
title.
Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC CHAPTER 133 -- REVIEW -- MISCELLANEOUS PROVISIONS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2101. Supreme Court; time for appeal or certiorari; docketing;
stay.
2102. Priority of criminal case on appeal from State court.
(2103. Repealed.)
2104. Reviews of State court decisions.
2105. Scope of review; abatement.
2106. Determination.
2107. Time for appeal to court of appeals.
2108. Proof of amount in controversy.
2109. Quorum of Supreme Court justices absent.
(2110. Repealed.)
2111. Harmless error.
2112. Record on review and enforcement of agency orders.
2113. Definition.
This section inserts in the chapter analysis of chapter 133 of title
28, U.S.C., a new item ''2111,'' in view of the insertion in such title,
by another section of this bill, of a new section 2111.
1988 -- Pub. L. 100-352, 5(c), (d)(2), June 27, 1988, 102 Stat.
663, struck out item 2103 ''Appeal from State court or from a United
States court of appeals improvidently taken regarded as petition for
writ of certiorari'' and substituted ''Reviews of State court
decisions'' for ''Appeals from State courts'' in item 2104.
1982 -- Pub. L. 97-164, title I, 136, Apr. 2, 1982, 96 Stat. 41,
struck out item 2110 ''Time for appeal to Court of Claims in tort claims
cases''.
1970 -- Pub. L. 91-358, title I, 172(a)(2)(B), July 29, 1970, 84
Stat. 590, added item 2113.
1962 -- Pub. L. 87-669, 2, Sept. 19, 1962, 76 Stat. 556,
substituted ''or from a United States court of appeals improvidently
taken regarded as petition for'' for ''improvidently taken regarded as''
in item 2103.
1958 -- Pub. L. 85-791, 1, Aug. 28, 1958, 72 Stat. 941, added
item 2112.
1949 -- Act May 24, 1949, ch. 139, 105, 63 Stat. 104, added item
2111.
See Appendix to this title.
Stay of execution and relief pending review, see rule 38, Title 18,
Appendix, Crimes and Criminal Procedure.
28 USC 2101. Supreme Court; time for appeal or certiorari;
docketing; stay
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A direct appeal to the Supreme Court from any decision under
section 1253 of this title, holding unconstitutional in whole or in
part, any Act of Congress, shall be taken within thirty days after the
entry of the interlocutory or final order, judgment or decree. The
record shall be made up and the case docketed within sixty days from the
time such appeal is taken under rules prescribed by the Supreme Court.
(b) Any other direct appeal to the Supreme Court which is authorized
by law, from a decision of a district court in any civil action, suit or
proceeding, shall be taken within thirty days from the judgment, order
or decree, appealed from, if interlocutory, and within sixty days if
final.
(c) Any other appeal or any writ of certiorari intended to bring any
judgment or decree in a civil action, suit or proceeding before the
Supreme Court for review shall be taken or applied for within ninety
days after the entry of such judgment or decree. A justice of the
Supreme Court, for good cause shown, may extend the time for applying
for a writ of certiorari for a period not exceeding sixty days.
(d) The time for appeal or application for a writ of certiorari to
review the judgment of a State court in a criminal case shall be as
prescribed by rules of the Supreme Court.
(e) An application to the Supreme Court for a writ of certiorari to
review a case before judgment has been rendered in the court of appeals
may be made at any time before judgment.
(f) In any case in which the final judgment or decree of any court is
subject to review by the Supreme Court on writ of certiorari, the
execution and enforcement of such judgment or decree may be stayed for a
reasonable time to enable the party aggrieved to obtain a writ of
certiorari from the Supreme Court. The stay may be granted by a judge
of the court rendering the judgment or decree or by a justice of the
Supreme Court, and may be conditioned on the giving of security,
approved by such judge or justice, that if the aggrieved party fails to
make application for such writ within the period allotted therefor, or
fails to obtain an order granting his application, or fails to make his
plea good in the Supreme Court, he shall answer for all damages and
costs which the other party may sustain by reason of the stay.
(g) The time for application for a writ of certiorari to review a
decision of the United States Court of Military Appeals shall be as
prescribed by rules of the Supreme Court.
(June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, 106,
63 Stat. 104; Dec. 6, 1983, Pub. L. 98-209, 10(b), 97 Stat. 1406;
June 27, 1988, Pub. L. 100-352, 5(b), 102 Stat. 663.)
Based on title 28, U.S.C., 1940 ed., 47, 47a, 349a, 350, 380, 380a,
section 29 of title 15, U.S.C., 1940 ed., Commerce and Trade, and
section 45 of title 49, U.S.C., 1940 ed., Transportation (Feb. 11, 1903,
ch. 544, 2, 32 Stat. 1167; Mar. 3, 1911, ch. 231, 210, 266, 291, 36
Stat. 1150, 1162, 1167; Mar. 4, 1913, ch. 160, 37 Stat. 1013; Oct. 22,
1913, ch. 32, 38 Stat. 220; Sept. 6, 1916, ch. 448, 6, 39 Stat. 727;
Feb. 13, 1925, ch. 229, 1, 8 (a, b, d), 43 Stat. 938, 940; Jan. 31,
1928, ch. 14, 1, 45 Stat. 54; June 7, 1934, ch. 426, 48 Stat. 936;
Aug. 24, 1937, ch. 754, 2, 3, 50 Stat. 752; June 9, 1944, ch. 239, 58
Stat. 272).
Section consolidates section 350 of title 28, U.S.C., 1940 ed., with
those portions of sections 47, 47a, 349a, 380, and 380a, of said title
28, section 29, of title 15, U.S.C., 1940 ed., and section 45 of title
49, U.S.C., 1940 ed., respective time for taking direct appeal. (For
disposition of other provisions of said sections, see Distribution
Table.)
Subsection (a) of the revised section is derived from sections 349a
and 380a of title 28, U.S.C., 1940 ed. The phrase ''under rules
prescribed by the Supreme Court'' was substituted for the phrase ''under
such rules as may be prescribed by the proper courts'' which appeared in
both such sections. The Supreme Court by its revised rules 10-13 has
made adequate provision for filing record and docketing case. (See
Revised Rules of the Supreme Court following section 354 of title 28,
U.S.C., 1940 ed.)
Subsection (b) is in accord with sections 47 and 47a of title 28,
U.S.C., 1940 ed., and section 29 of title 15, U.S.C., 1940 ed., Commerce
and Trade, and section 45 of title 49, U.S.C., 1940 ed., Transportation.
Subsection (c), with respect to the time for taking other appeals or
petitioning for a writ of certiorari, substitutes, as more specific, the
words ''ninety days'' for the words ''three months'' contained in
section 350 of title 28, U.S.C., 1940 ed. The provision in said section
350 for allowance of additional time was retained, notwithstanding the
language of the Supreme Court in Comm'r v. Bedford's Estate, 1945, 65
S.Ct. 1157, 1159, 325 U.S. 283, 89 L.Ed. 1611, to the effect that the 3
months' period is ''more than ample * * * to determine whether to seek
further review''.
In subsection (c), words ''in a civil action, suit, or proceeding''
were added because section 350 of title 28, U.S.C., 1940 ed., was
superseded as to criminal cases by Federal Rules of Criminal Procedure,
Rule 39(a)(2), (b)(2).
Words ''or the United States Court of Appeals for the District of
Columbia'' in section 350 of title 28, U.S.C., 1940 ed., were omitted as
covered by ''court of appeals'' in subsection (d) of this revised
section.
Words in section 350 of title 28, U.S.C., 1940 ed., ''excepting that
writs of certiorari to the Supreme Court of the Philippine Islands may
be granted where application therefor is made within six months'', were
omitted as obsolete, in view of the independence of the Philippines
recognized by section 1240 of title 48, U.S.C., 1940 ed., Territories
and Insular Possessions.
Subsection (e) relates only to supersedeas or stay of execution of
judgments sought to be reviewed in the Supreme Court on writ of
certiorari. Supersedeas or stay of proceedings taken to the Supreme
Court by appeal from courts of appeals, or direct appeals from a
district court or three-judge courts, is governed by Rule 62 of the
Federal Rules of Civil Procedure.
Changes were made in phraseology.
This section clarifies the meaning of subsection (c) of section 2101
of title 28, U.S.C. At present, such subsection, after the words,
''ninety days after entry of such judgment or decree'', reads, ''unless,
upon application for writ of certiorari, for good cause, the Supreme
Court or a justice thereof allows an additional time not exceeding sixty
days.''
The new subsection (d) of section 2101 supplies an omission in
revised title 28, U.S.C., and confirms the authority of the Supreme
Court to regulate the time for seeking review of State criminal cases.
The other amendment merely renumbers subsections (d) and (e) of such
section 2101 as subsections (e) and (f), respectively.
1988 -- Subsec. (a). Pub. L. 100-352 substituted ''section 1253''
for ''sections 1252, 1253, and 2282''.
1983 -- Subsec. (g). Pub. L. 98-209 added subsec. (g).
1949 -- Subsec. (c). Act May 24, 1949, 106(a), clarified the
allowance of an additional 60 days in which to apply for a writ of
certiorari.
Subsecs. (d) to (f). Act May 24, 1949, 106(b), added subsec. (d)
and redesignated former subsecs. (d) and (e) as (e) and (f),
respectively.
Amendment by Pub. L. 100-352 effective ninety days after June 27,
1988, except that such amendment not to apply to cases pending in
Supreme Court on such effective date or affect right to review or manner
of reviewing judgment or decree of court which was entered before such
effective date, see section 7 of Pub. L. 100-352, set out as a note
under section 1254 of this title.
Amendment by Pub. L. 98-209 effective on first day of eighth
calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of
Pub. L. 98-209, set out as a note under section 801 of Title 10, Armed
Forces.
Criminal cases, time for appeal, see rule 4, Appendix to this title.
28 USC 2102. Priority of criminal case on appeal from State court
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Criminal cases on review from State courts shall have priority, on
the docket of the Supreme Court, over all cases except cases to which
the United States is a party and such other cases as the court may
decide to be of public importance.
(June 25, 1948, ch. 646, 62 Stat. 962.)
Based on title 28, U.S.C., 1940 ed., 351 (Mar. 3, 1911, ch. 231,
253, 36 Stat. 1160; Jan. 31, 1928, ch. 14, 1, 45 Stat. 54).
Changes were made in phraseology.
28 USC ( 2103. Repealed. Pub. L. 100-352, 5(c), June 27, 1988, 102
Stat. 663)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, acts June 25, 1948, ch. 646, 62 Stat. 962; Sept. 19,
1962, Pub. L. 87-669, 1, 76 Stat. 556, provided that appeal from
State court or from a United States court of appeals improvidently taken
be regarded as petition for writ of certiorari.
Repeal effective ninety days after June 27, 1988, except that such
repeal not to apply to cases pending in Supreme Court on such effective
date or affect right to review or manner of reviewing judgment or decree
of court which was entered into before such effective date, see section
7 of Pub. L. 100-352, set out as a note under section 1254 of this
title.
28 USC 2104. Reviews of State court decisions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A review by the Supreme Court of a judgment or decree of a State
court shall be conducted in the same manner and under the same
regulations, and shall have the same effect, as if the judgment or
decree reviewed had been rendered in a court of the United States.
(June 25, 1948, ch. 646, 62 Stat. 962; June 27, 1988, Pub. L.
100-352, 5(d)(1), 102 Stat. 663.)
Based on title 28, U.S.C., 1940 ed., 871 (R.S., 1003).
Words ''An appeal to'' were substituted for ''writs of error from'',
in view of the abolition of the writ of error.
Changes were made in phraseology.
1988 -- Pub. L. 100-352 substituted ''Reviews of State court
decisions'' for ''Appeals from State courts'' in section catchline and
amended text generally. Prior to amendment, text read as follows: ''An
appeal to the Supreme Court from a State court shall be taken in the
same manner and under the same regulations, and shall have the same
effect, as if the judgment or decree appealed from had been rendered in
a court of the United States.''
Amendment by Pub. L. 100-352 effective ninety days after June 27,
1988, except that such amendment not to apply to cases pending in
Supreme Court on such effective date or affect right to review or manner
of reviewing judgment or decree of court which was entered before such
effective date, see section 7 of Pub. L. 100-352, set out as a note
under section 1254 of this title.
28 USC 2105. Scope of review; abatement
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
There shall be no reversal in the Supreme Court or a court of appeals
for error in ruling upon matters in abatement which do not involve
jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Based on title 28, U.S.C., 1940 ed., 879 (R.S. 1011; Feb. 18,
1875, ch. 80, 1, 18 Stat. 318).
The revised language is substituted for the provisions of section 879
of title 28, U.S.C., 1940 ed., to avoid any construction that matters of
fact are not reviewable in nonjury cases. Such section 879 related to
review upon a writ of error which applied only to actions at law. (See
Rule 52(a) of the Federal Rules of Civil Procedure limiting the review
of questions of fact which renders unnecessary any statutory
limitation.)
Rule 7(c) of the Federal Rules of Civil Procedure abolished all
pleas, and the rules adopted the motion as a substitute therefor.
Words ''matters in abatement'' were, therefore, substituted for the
abolished ''plea in abatement'' and ''plea to the jurisdiction.''
Changes were made in phraseology.
28 USC 2106. Determination
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or
order of a court lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be just
under the circumstances.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Based on title 28, U.S.C., 1940 ed., 344, 876, 877 (R.S. 701;
Mar. 3, 1891, ch. 517, 10, 11, 26 Stat. 829; Mar. 3, 1911, ch. 231,
231, 236, 237, 291, 36 Stat. 1156, 1167; Dec. 23, 1914, ch. 2, 38 Stat.
790; Sept. 16, 1916, ch. 448, 2, 39 Stat. 726; Feb. 17, 1922, ch. 54,
42 Stat. 366; Feb. 13, 1925, ch. 229, 1, 43 Stat. 937; Jan. 31,
1928, ch. 14, 1, 45 Stat. 54).
Section consolidates part of section 344 of title 28, U.S.C., 1940
ed., with sections 876 and 877 of said title. Other provisions of said
section 344 are incorporated in sections 1257 and 2103 of this title.
Words ''or a court of appeals'' were inserted after ''Supreme Court''
upon authority of United States v. Illinois Surety Co., C.C.A. 1915,
226 F. 653, affirmed 37 S.Ct. 614, 244 U.S. 376, 61 L.Ed. 1206, wherein
it was held that this section also applied to the courts of appeals in
view of section 11 of the Circuit Court of Appeals Act of Mar. 3, 1891,
ch. 517, 28 Stat. 829.
The revised section will cover instances where the Supreme Court
remands a case to the highest court of a State and to the United States
Tax Court. It will also cover a remand of a case to the Court of Claims
or the Court of Customs and Patent Appeals. For authority to remand a
case to The Tax Court, see Equitable Life Assurance Society of U.S. v.
Commissioner of Internal Revenue, 1944, 64 S.Ct. 722, 321 U.S. 560, 88
L.Ed. 927.
Revised section will also permit a remand by the Supreme Court to a
court of appeals inasmuch as such latter court then would be a lower
court. The revised section is in conformity with numerous holdings of
the Supreme Court to the effect that such a remand may be made. See
especially, Maryland Casualty Co. v. United States, 1929, 49 S.Ct.
484, 279 U.S. 792, 73 L.Ed. 960; Krauss Bros. Co. v. Mellon, 1928, 48
S.Ct. 358, 276 U.S. 386, 72 L.Ed. 620 and Buzyuski v. Luckenbach S. S.
Co., 1928, 48 S.Ct. 440, 277 U.S. 226, 72 L.Ed. 860.
The last sentence of section 876 of title 28, U.S.C., 1940 ed.,
providing that the Supreme Court should not issue execution but should
send a special mandate to the inferior court to award execution, was
omitted. See rule 34 of the revised rules of the Supreme Court relating
to Mandates, and section 1651 of this title authorizing the Supreme
Court to issue all writs necessary in aid of its jurisdiction.
Changes were made in phraseology.
28 USC 2107. Time for appeal to court of appeals
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except as otherwise provided in this section, no appeal shall
bring any judgment, order or decree in an action, suit or proceeding of
a civil nature before a court of appeals for review unless notice of
appeal is filed, within thirty days after the entry of such judgment,
order or decree.
(b) In any such action, suit or proceeding in which the United States
or an officer or agency thereof is a party, the time as to all parties
shall be sixty days from such entry.
(c) The district court may, upon motion filed not later than 30 days
after the expiration of the time otherwise set for bringing appeal,
extend the time for appeal upon a showing of excusable neglect or good
cause. In addition, if the district court finds --
(1) that a party entitled to notice of the entry of a judgment or
order did not receive such notice from the clerk or any party within 21
days of its entry, and
(2) that no party would be prejudiced,
the district court may, upon motion filed within 180 days after entry
of the judgment or order or within 7 days after receipt of such notice,
whichever is earlier, reopen the time for appeal for a period of 14 days
from the date of entry of the order reopening the time for appeal.
(d) This section shall not apply to bankruptcy matters or other
proceedings under Title 11.
(June 25, 1948, ch. 646, 62 Stat. 963; May 24, 1949, ch. 139, 107,
108, 63 Stat. 104; Nov. 6, 1978, Pub. L. 95-598, title II, 248, 92
Stat. 2672; Dec. 9, 1991, Pub. L. 102-198, 12, 105 Stat. 1627.)
Based on title 28, U.S.C., 1940 ed., 227a, 230, and section 1142 of
title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1891, ch.
517, 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, 129, 36 Stat. 1134;
Feb. 13, 1925, ch. 229, 8(c), 43 Stat. 940; Feb. 28, 1927, ch. 228, 44
Stat. 1261; Jan. 31, 1928, ch. 14, 1, 45 Stat. 54; Feb. 10, 1939,
ch. 2, 1142, 53 Stat. 165; Oct. 21, 1942, ch. 619, title V, 504(a),
(c), 56 Stat. 957).
Section consolidates sections 227a and 230 of title 28, U.S.C., 1940
ed., with section 1142 of title 26, U.S.C., 1940 ed., Internal Revenue
Code. Other provisions of such section 227a are incorporated in section
1292 of this title.
Section 227a of title 28, U.S.C., 1940 ed., provided a time limit of
30 days for appeals from patent-infringement decisions, and section 230
of title 28, U.S.C., 1940 ed., permitted 3 months for appeals generally.
The revised section adopts the 30-day limit in conformity with
recommendations of members of the Judicial Conference of the United
States and proposed amendment to Rule 73 of the Federal Rules of Civil
Procedure.
Section 1142 of title 26, U.S.C., 1940 ed., provided for 3 months
within which to petition for appeal from a decision of The Tax Court.
The second paragraph of the revised section reduces this to 60 days for
reasons explained above. Other provisions of said section 1142 making a
distinction between decisions before and after June 6, 1932, were
omitted as executed.
Words ''in an action, suit, or proceeding of a civil nature'' were
added in view of Rule 37 of the Federal Rules of Criminal Procedure
prescribing a different limitation for criminal appeals.
Words ''notice of appeal is filed'' were substituted for provisions
of sections 230 of title 28, U.S.C., 1940 ed., and 1142 of title 26,
U.S.C., 1940 ed., for petition and allowance of appeal in order to
eliminate the useless paper work involved in a pro forma application for
appeal and perfunctory allowance of the same. The effect of the section
is to require appeals to the courts of appeals in all cases to be taken
by filing notice of appeal. See Rule 73(b) of Federal Rules of Civil
Procedure.
The case of Mosier v. Federal Reserve Bank of New York, C.C.A.
1942, 132 F.2d 710, holds that the Federal Rules of Civil Procedure
changing the method of ''taking'' an appeal, do not affect the time
limitation prescribed by section 230 of title 28, U.S.C., 1940 ed.
Word ''order'' was added, in two places, after ''judgment'' so as to
make the section cover all appeals of which the courts of appeals have
jurisdiction, as set forth in section 1291 et seq. of this title.
The last paragraph was added in conformity with section 48 of title
11, U.S.C., 1940 ed., Bankruptcy, and other sections of that title
regulating appellate procedure in bankruptcy matters.
The third paragraph was inserted to conform to the existing practice
in Admiralty upon the recommendation of the Committee on the Federal
Courts of the New York County Lawyers Association.
The time for appeal to the Court of Customs and Patent Appeals in
patent and trade-mark cases is governed by section 89 of title 15,
U.S.C., 1940 ed., Commerce and Trade, and section 60 of title 35,
U.S.C., 1940 ed., Patents, and Rule 25 of the Rules of such court, and,
in customs cases, by section 2601 of this title.
Changes were made in phraseology.
By Senate amendment, all provisions relating to the Tax Court were
eliminated. Therefore, section 1142 of title 26, U.S.C., Internal
Revenue Code, was not one of the sources of this section as finally
enacted. However, no change in the text of this section was necessary.
See 80th Congress Senate Report No. 1559.
This amendment to section 2107 of title 28, U.S.C., restores the
former 15-day limitation of time within which to appeal from an
interlocutory order in admiralty.
This amendment eliminates as surplusage the words ''in any such
action, suit or proceeding,'' from the fourth paragraph of section 2107
of title 28, U.S.C., and corrects a typographical error in the same
paragraph.
1991 -- Pub. L. 102-198 designated first and second pars. as
subsecs. (a) and (b), respectively, added subsec. (c), designated
fifth par. as subsec. (d), and struck out third and fourth pars.
which read as follows:
''In any action, suit or proceeding in admiralty, the notice of
appeal shall be filed within ninety days after the entry of the order,
judgment or decree appealed from, if it is a final decision, and within
fifteen days after its entry if it is an interlocutory decree.
''The district court may extend the time for appeal not exceeding
thirty days from the expiration of the original time herein prescribed,
upon a showing of excusable neglect based on failure of a party to learn
of the entry of the judgment, order or decree.''
1978 -- Pub. L. 95-598 directed the amendment of section by
inserting ''or the bankruptcy court'' after ''district court'' and by
striking out the final paragraph, which amendment did not become
effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set
out as an Effective Date note preceding section 101 of Title 11,
Bankruptcy.
1949 -- Act May 24, 1949, restored, in third par., the 15-day
limitation of time within which to appeal from an interlocutory order in
admiralty, and in fourth par., substituted ''The district court may''
for ''The district court, in any such action, suit, or proceeding, may''
and corrected spelling of ''excusable''.
Criminal cases, time for appeal, see rule 4, Appendix to this title.
28 USC 2108. Proof of amount in controversy
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Where the power of any court of appeals to review a case depends upon
the amount or value in controversy, such amount or value, if not
otherwise satisfactorily disclosed upon the record, may be shown and
ascertained by the oath of a party to the case or by other competent
evidence.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Based on title 28, U.S.C., 1940 ed., 231 (Feb. 13, 1925, ch. 229,
9, 43 Stat. 941).
Words ''or in the Supreme Court'' were omitted. Section 7 of the
1925 act containing such words related to review by the Supreme Court of
the United States of decisions of the Supreme Court of the Philippine
Islands and designated a certain jurisdictional amount. Such section 7
has now become obsolete, in view of the recognition of the independence
of the Philippines, title 48 U.S.C., 1940 ed., 1240, Territories and
Insular Possessions, and there is no other case wherein the power of the
Supreme Court to review depends on the amount or value in controversy.
28 USC 2109. Quorum of Supreme Court justices absent
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
If a case brought to the Supreme Court by direct appeal from a
district court cannot be heard and determined because of the absence of
a quorum of qualified justices, the Chief Justice of the United States
may order it remitted to the court of appeals for the circuit including
the district in which the case arose, to be heard and determined by that
court either sitting in banc or specially constituted and composed of
the three circuit judges senior in commission who are able to sit, as
such order may direct. The decision of such court shall be final and
conclusive. In the event of the disqualification or disability of one
or more of such circuit judges, such court shall be filled as provided
in chapter 15 of this title.
In any other case brought to the Supreme Court for review, which
cannot be heard and determined because of the absence of a quorum of
qualified justices, if a majority of the qualified justices shall be of
opinion that the case cannot be heard and determined at the next ensuing
term, the court shall enter its order affirming the judgment of the
court from which the case was brought for review with the same effect as
upon affirmance by an equally divided court.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Based on portions of section 29 of title 15, U.S.C., 1940 ed.,
Commerce and Trade, and section 45 of title 49, U.S.C., 1940 ed.,
Transportation (Feb. 11, 1903, ch. 544, 2, 32 Stat. 823; Mar. 3, 1911,
ch. 231, 291, 36 Stat. 1167; June 9, 1944, ch. 239, 58 Stat. 272).
Section consolidates portions of section 29 of title 15, U.S.C., 1940
ed., and section 45 of title 49, U.S.C., 1940 ed., with changes of
substance and phraseology.
The revised section includes the principal provisions of sections 29
and 45 of titles 15 and 49, U.S.C., 1940 ed., respectively, in case of
the absence of a quorum of qualified Justices of the Supreme Court.
Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed.,
respectively, were identical and were applicable only to decisions of
three-judge courts in antitrust cases under section 107 of said title 15
and Interstate Commerce cases under sections 1, 8, and 12 of said title
49, ''or any other acts having a like purpose that may hereinafter be
enacted.'' The revised section broadens and extends the application of
such provisions to include ''any case involving a direct appeal to the
Supreme Court from the decision of a district court or a district court
of three judges which cannot be heard and determined because of the
absence of a quorum of qualified justices.'' It includes direct appeals
in criminal cases under section 3731 of title 18 (H.R. 1600, 80th
Cong.).
Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed.,
respectively provided that the Supreme Court certify the case to the
Circuit Court of Appeals and that the Senior Circuit Judge, qualified to
participate should designate himself and two other circuit judges next
in order of seniority. Other provisions were made for designation of
circuit judges from other circuits in case of insufficient circuit
judges being available in the circuit.
The revised section permits the Chief Justice of the United States to
designate the ''court of appeals'' to hear the case in banc or by means
of a specially constituted court of appeals composed of the three
circuit judges senior in commission who are able to sit. In case of
disqualification or disability, the court shall be filled by designation
and assignment as provided in chapter 15 of this title.
The provisions of section 29 of title 15, U.S.C., 1940 ed., and
section 45 of title 49, U.S.C., 1940 ed., relating to time for appeal
are incorporated in section 2101 of this title. The provisions of said
sections for direct appeal to the Supreme Court are retained in said
titles 15 and 49.
The second paragraph of the revised section is new. It recognizes
the necessity of final disposition of litigation in which appellate
review has been had and further review by the Supreme Court is
impossible for lack of a quorum of qualified justices.
28 USC ( 2110. Repealed. Pub. L. 97-164, title I, 136, Apr. 2, 1982,
96 Stat. 41)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, acts June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949,
ch. 139, 109, 63 Stat. 105, provided that appeals to the Court of
Claims in tort claims cases, as provided in section 1504 of this title,
be taken within 90 days after the entry of the final judgment of the
district court.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC 2111. Harmless error
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On the hearing of any appeal or writ of certiorari in any case, the
court shall give judgment after an examination of the record without
regard to errors or defects which do not affect the substantial rights
of the parties.
(Added May 24, 1949, ch. 139, 110, 63 Stat. 105.)
Incorporates in title 28, U.S.C., as section 2111 thereof, the
harmless error provisions of section 269 of the Judicial Code (now
repealed), which applied to all courts of the United States and to all
cases therein and therefore was superseded only in part by the Federal
Procedural Rules, which apply only to the United States district courts.
Harmless error, see rule 61, Appendix to this title.
28 USC 2112. Record on review and enforcement of agency orders
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(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.
(Added Pub. L. 85-791, 2, Aug. 28, 1958, 72 Stat. 941; amended Pub.
L. 89-773, 5(a), (b), Nov. 6, 1966, 80 Stat. 1323; Pub. L. 100-236,
1, Jan. 8, 1988, 101 Stat. 1731.)
1988 -- Subsec. (a). Pub. L. 100-236 substituted ''If proceedings
are instituted in two or more courts of appeals with respect to the same
order, the following shall apply:'' and pars. (1) to (5) for ''If
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 that one of such courts in which a
proceeding with respect to such order was first instituted. The other
courts in which such proceedings are pending shall thereupon transfer
them to the court of appeals in which the record has been filed. For
the convenience of the parties in the interest of justice such court may
thereafter transfer all the proceedings with respect to such order to
any other court of appeals.''
1966 -- Subsec. (a). Pub. L. 89-773, 5(a), substituted ''The rules
prescribed under the authority of section 2072 of this title may provide
for the time and manner of filing'' for ''The several courts of appeal
shall have power to adopt, with the approval of the Judicial Conference
of the United States, rules, which so far as practicable shall be
uniform in all such courts prescribing the time and manner of filing.''
See section 2072 of this title.
Subsec. (b). Pub. L. 89-773, 5(b), substituted ''the rules
prescribed under the authority of section 2072 of this title'' for ''the
said rules of the court of appeals'' and for ''the rules of such
court''.
Section 3 of Pub. L. 100-236 provided that: ''The amendments made
by this Act (amending this section and section 1369 of Title 33,
Navigation and Navigable Waters) take effect 180 days after the date of
the enactment of this Act (Jan 8, 1988), except that the judicial panel
on multidistrict litigation may issue rules pursuant to subsection
(a)(3) of section 2112 of title 28, United States Code (as added by
section 1), on or after such date of enactment.''
Section 5(c) of Pub. L. 89-773 provided that: ''The amendments of
section 2112 of title 28 of the United States Code made by this Act
shall not operate to invalidate or repeal rules adopted under the
authority of that section prior to the enactment of this Act (Nov. 6,
1966), which rules shall remain in effect until superseded by rules
prescribed under the authority of section 2072 of title 28 of the United
States Code as amended by this Act.''
136n, 194, 228b-3, 1115, 1600, 1601; title 12
sections 1467a, 1786, 1818, 1848, 2266, 2268, 4583,
4634; title 15 sections 21, 45, 57a, 78y, 79x,
80a-42, 80b-13, 687e, 717r, 1193, 1262, 1394, 1474,
1710, 1825, 1913, 2008, 2060, 2618, 3416; title 16
tions 773f, 825l, 1536, 1858, 2437,
3142, 3373, 5010; title 19 sections 81r, 1677f;
title 20 sections 351d, 1234g, 1413, 1416, 2727, 2834,
2972; title 21 sections 346a, 348, 355, 360g, 360kk,
371; title 22 section 1631f; title 26 section 3310;
title 27 section 204; title 29 sections 160, 210,
660, 667, 727, 1578; title 30 sections 816, 1462;
title 31 section 1263; title 33 section 921; title
39 section 3628; title 40 section 333; title 42
sections 263a, 291h, 504, 1316, 1320a-7a, 2022, 3027,
3785, 5311, 5405, 6029, 6306, 6869, 7525, 8412, 9152;
title 43 sections 355, 1349; title 46 App. section
1181; title 47 section 402; title 49 App. sections
1486, 1674b.
28 USC 2113. Definition
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For purposes of this chapter, the terms ''State court'', ''State
courts'', and ''highest court of a State'' include the District of
Columbia Court of Appeals.
(Added Pub. L. 91-358, title I, 172(a)(2)(A), July 29, 1970, 84
Stat. 590.)
Section effective the first day of the seventh calendar month which
begins after July 29, 1970, see section 199(a) of Pub. L. 91-358, set
out as an Effective Date of 1970 Amendment note under section 1257 of
this title.
28 USC PART VI -- PARTICULAR PROCEEDINGS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Chap. Sec.
151. Declaratory Judgments 2201
153. Habeas Corpus 2241
155. Injunctions; Three-Judge Courts 2281
157. Interstate Commerce Commission Orders; Enforcement and Review
2321
158. Orders of Federal Agencies; Review 2341
159. Interpleader 2361
161. United States as Party Generally 2401
163. Fines, Penalties and Forfeitures 2461
165. United States Court of Federal Claims Procedure 2501
(167. lRepealed.)
169. Court of International Trade Procedure 2631
171. Tort Claims Procedure 2671
173. Attachment in Postal Suits 2710
175. Civil Commitment and Rehabilitation of Narcotic Addicts 2901
176. Federal Debt Collection Procedure 3001
178. Professional and Amateur Sports Protection 3701
Chapters 169, 171 and 173 were renumbered ''167'', ''169'' and
''171'', respectively, without change in their section numbers, by
Senate amendment. See 80th Congress Senate Report No. 1559.
1992 -- Pub. L. 102-572, title IX, 902(b)(1), Oct. 29, 1992, 106
Stat. 4516, substituted ''United States Court of Federal Claims'' for
''United States Claims Court'' in item for chapter 165.
Pub. L. 102-559, 2(b), Oct. 28, 1992, 106 Stat. 4228, substituted
''Procedure'' for ''Procedures'' in item for chapter 176 and added item
for chapter 178.
1990 -- Pub. L. 101-647, title XXXVI, 3302 (3612), Nov. 29, 1990,
104 Stat. 4964, added item for chapter 176.
1982 -- Pub. L. 97-164, title I, 139(o)(1), 140, Apr. 2, 1982, 96
Stat. 44, substituted ''United States Claims Court Procedure'' for
''Court of Claims Procedure'' in item for chapter 165 and struck out
item for chapter 167 ''Court of Customs and Patent Appeals Procedure''.
1980 -- Pub. L. 96-417, title V, 501(25), Oct. 10, 1980, 94 Stat.
1742, substituted ''Court of International Trade Procedure'' for
''Customs Court Procedure'' in item for chapter 169.
1966 -- Pub. L. 89-793, title VI, 603, Nov. 8, 1966, 80 Stat.
1450, added item for chapter 175.
Pub. L. 89-554, 4(d), Sept. 6, 1966, 80 Stat. 621, added item for
chapter 158.
1960 -- Pub. L. 86-682, 10, Sept. 2, 1960, 74 Stat. 708, added
item for chapter 173.
Arbitration proceedings, see section 3 et seq. of Title 9,
Arbitration.
Bankruptcy proceedings, see Bankruptcy Rules and Official Bankruptcy
Forms, Appendix to Title 11, Bankruptcy.
Labor disputes, procedure, see sections 159 and 160 of Title 29,
Labor.
Railway labor disputes, court procedure after arbitration, see
section 159 of Title 45, Railroads.
See, also, rule 81 of the Federal Rules of Civil Procedure, Appendix
to this title.
28 USC CHAPTER 151 -- DECLARATORY JUDGMENTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2201. Creation of remedy.
2202. Further relief.
28 USC 2201. Creation of remedy
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In a case of actual controversy within its jurisdiction, except
with respect to Federal taxes other than actions brought under section
7428 of the Internal Revenue Code of 1986, a proceeding under section
505 or 1146 of title 11, or in any civil action involving an antidumping
or countervailing duty proceeding regarding a class or kind of Canadian
merchandise, as determined by the administering authority, any court of
the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
(b) For limitations on actions brought with respect to drug patents
see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act.
(June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, 111,
63 Stat. 105; Aug. 28, 1954, ch. 1033, 68 Stat. 890; July 7, 1958,
Pub. L. 85-508, 12(p), 72 Stat. 349; Oct. 4, 1976, Pub. L. 94-455,
title XIII, 1306(b)(8), 90 Stat. 1719; Nov. 6, 1978, Pub. L. 95-598,
title II, 249, 92 Stat. 2672; Sept. 24, 1984, Pub. L. 98-417, title
I, 106, 98 Stat. 1597; Sept. 28, 1988, Pub. L. 100-449, title IV,
402(c), 102 Stat. 1884; Nov. 16, 1988, Pub. L. 100-670, title I,
107(b), 102 Stat. 3984.)
Based on title 28, U.S.C., 1940 ed., 400 (Mar. 3, 1911, ch. 231,
274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch.
829, 405, 49 Stat. 1027).
This section is based on the first paragraph of section 400 of title
28, U.S.C., 1940 ed. Other provisions of such section are incorporated
in section 2202 of this title.
While this section does not exclude declaratory judgments with
respect to State taxes, such suits will not ordinarily be entertained in
the courts of the United States where State law makes provision for
payment under protest and recovery back or otherwise affords adequate
remedy in the State courts. See Great Lakes Dredge & Dock Co. v.
Huffman, La. 1943, 63 S.Ct. 1070, 319 U.S. 293, 87 L.Ed. 1407. See also
Spector Motor Service v. McLaughlin, Conn. 1944, 65 S.Ct. 152, 323
U.S. 101, 89 L.Ed. 101. See also section 1341 of this title forbidding
district courts to restrain enforcements of State taxes where State
courts afford plain, speedy, and efficient remedy.
Changes were made in phraseology.
Section corrects a typographical error in section 2201 of title 28,
U.S.C.
Section 7428 of the Internal Revenue Code of 1986, referred to in
subsec. (a), is classified to section 7428 of Title 26, Internal
Revenue Code.
Sections 505 and 512 of the Federal Food, Drug, and Cosmetic Act,
referred to in subsec. (b), are classified to sections 355 and 360b,
respectively, of Title 21, Food and Drugs.
1988 -- Subsec. (a). Pub. L. 100-449 substituted ''1986,'' for
''1954 or'' and inserted ''or in any civil action involving an
antidumping or countervailing duty proceeding regarding a class or kind
of Canadian merchandise, as determined by the administering authority,''
after ''title 11,''.
Subsec. (b). Pub. L. 100-670 inserted ''or 512'' after ''505''.
1984 -- Pub. L. 98-417 designated existing provisions as subsec.
(a) and added subsec. (b).
1978 -- Pub. L. 95-598 inserted reference to proceedings under
section 505 or 1146 of title 11.
1976 -- Pub. L. 94-455 substituted ''taxes other than actions
brought under section 7428 of the Internal Revenue Code of 1954'' for
''taxes''.
1958 -- Pub. L. 85-508 struck out provisions which related to
District Court for Territory of Alaska. See section 81A of this title
which establishes a United States District Court for the State of
Alaska.
1954 -- Act Aug. 28, 1954, extended provisions to Alaska.
1949 -- Act May 24, 1949, corrected spelling of ''or'' in second
sentence.
Amendment by Pub. L. 100-449 effective on date United States-Canada
Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to
have effect on date Agreement ceases to be in force, see section 501(a),
(c) of Pub. L. 100-449, set out in a note under section 2112 of Title
19, Customs Duties.
Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section
402(c) of Pub. L. 95-598, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy.
Amendment by Pub. L. 94-455 applicable with respect to pleadings
filed with the United States Tax Court, the District Court of the United
States for the District of Columbia, or the United States Court of
Claims more than 6 months after Oct. 4, 1976, but only with respect to
determinations (or requests for determinations) made after Jan. 1,
1976, see section 1306(c) of Pub. L. 94-455, set out as an Effective
Date note under section 7428 of Title 26, Internal Revenue Code.
Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of
Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24
F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L.
85-508, see notes set out under section 81A of this title and preceding
section 21 of Title 48, Territories and Insular Possessions.
Jurisdictional amount in diversity of citizenship cases, see section
1332 of this title.
8 sections 1105a, 1503; title 21
sections 355, 360b.
28 USC 2202. Further relief
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Further necessary or proper relief based on a declaratory judgment or
decree may be granted, after reasonable notice and hearing, against any
adverse party whose rights have been determined by such judgment.
(June 25, 1948, ch. 646, 62 Stat. 964.)
Based on title 28, U.S.C., 1940 ed., 400 (Mar. 3, 1911, ch. 231,
274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch.
829, 405, 49 Stat. 1027).
This section is based on the second paragraph of section 400 of title
28, U.S.C., 1940 ed. Other provisions of such section are incorporated
in section 2201 of this title.
Provision in said section 400 that the court shall require adverse
parties whose rights are adjudicated to show cause why further relief
should not be granted forthwith, were omitted as unnecessary and covered
by the revised section.
Provisions relating to submission of interrogatories to a jury were
omitted as covered by rule 49 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
28 USC CHAPTER 153 -- HABEAS CORPUS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2241. Power to grant writ.
2242. Application.
2243. Issuance of writ; return; hearing; decision.
2244. Finality of determination.
2245. Certificate of trial judge admissible in evidence.
2246. Evidence; depositions; affidavits.
2247. Documentary evidence.
2248. Return or answer; conclusiveness.
2249. Certified copies of indictment, plea and judgment; duty of
respondent.
2250. Indigent petitioner entitled to documents without cost.
2251. Stay of State court proceedings.
2252. Notice.
2253. Appeal.
2254. State custody; remedies in Federal courts.
2255. Federal custody; remedies on motion attacking sentence.
(2256. Omitted.)
Chapter catchline was changed by Senate amendment. See 80th Congress
Senate Report No. 1559.
1978 -- Pub. L. 95-598, title II, 250(b), Nov. 6, 1978, 92 Stat.
2672, directed the addition of item 2256 ''Habeas corpus from bankruptcy
courts'', which amendment did not become effective pursuant to section
402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note
preceding section 101 of Title 11, Bankruptcy.
1966 -- Pub. L. 89-711, 3, Nov. 2, 1966, 80 Stat. 1106,
substituted ''Federal courts'' for ''State Courts'' in item 2254.
28 USC 2241. Power to grant writ
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Writs of habeas corpus may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge within their
respective jurisdictions. The order of a circuit judge shall be entered
in the records of the district court of the district wherein the
restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may
decline to entertain an application for a writ of habeas corpus and may
transfer the application for hearing and determination to the district
court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a prisoner unless
--
(1) He is in custody under or by color of the authority of the United
States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an
Act of Congress, or an order, process, judgment or decree of a court or
judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or
treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is
in custody for an act done or omitted under any alleged right, title,
authority, privilege, protection, or exemption claimed under the
commission, order or sanction of any foreign state, or under color
thereof, the validity and effect of which depend upon the law of
nations; or
(5) It is necessary to bring him into court to testify or for trial.
(d) Where an application for a writ of habeas corpus is made by a
person in custody under the judgment and sentence of a State court of a
State which contains two or more Federal judicial districts, the
application may be filed in the district court for the district wherein
such person is in custody or in the district court for the district
within which the State court was held which convicted and sentenced him
and each of such district courts shall have concurrent jurisdiction to
entertain the application. The district court for the district wherein
such an application is filed in the exercise of its discretion and in
furtherance of justice may transfer the application to the other
district court for hearing and determination.
(June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, 112,
63 Stat. 105; Sept. 19, 1966, Pub. L. 89-590, 80 Stat. 811.)
Based on title 28, U.S.C., 1940 ed., 451, 452, 453 (R.S. 751,
752, 753; Mar. 3, 1911, ch. 231, 291, 36 Stat. 1167; Feb. 13, 1925,
ch. 229, 6, 43 Stat. 940).
Section consolidates sections 451, 452 and 453 of title 28, U.S.C.,
1940 ed., with changes in phraseology necessary to effect the
consolidation.
Words ''for the purpose of an inquiry into the cause of restraint of
liberty'' in section 452 of title 28, U.S.C., 1940 ed., were omitted as
merely descriptive of the writ.
Subsection (b) was added to give statutory sanction to orderly and
appropriate procedure. A circuit judge who unnecessarily entertains
applications which should be addressed to the district court, thereby
disqualifies himself to hear such matters on appeal and to that extent
limits his usefulness as a judge of the court of appeals. The Supreme
Court and Supreme Court Justices should not be burdened with
applications for writs cognizable in the district courts.
This section inserts commas in certain parts of the text of
subsection (b) of section 2241 of title 28, U.S.C., for the purpose of
proper punctuation.
1966 -- Subsec. (d). Pub. L. 89-590 added subsec. (d).
1949 -- Subsec. (b). Act May 24, 1949, inserted commas after
''Supreme Court'' and ''any justice thereof''.
Procedure on petitions for writ, see rule 20, Appendix to this title.
28 USC 2242. Application
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Application for a writ of habeas corpus shall be in writing signed
and verified by the person for whose relief it is intended or by someone
acting in his behalf.
It shall allege the facts concerning the applicant's commitment or
detention, the name of the person who has custody over him and by virtue
of what claim or authority, if known.
It may be amended or supplemented as provided in the rules of
procedure applicable to civil actions.
If addressed to the Supreme Court, a justice thereof or a circuit
judge it shall state the reasons for not making application to the
district court of the district in which the applicant is held.
(June 25, 1948, ch. 646, 62 Stat. 965.)
Based on title 28, U.S.C., 1940 ed., 454 (R.S. 754).
Words ''or by someone acting in his behalf'' were added. This
follows the actual practice of the courts, as set forth in United States
ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins v.
Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited.
The third paragraph is new. It was added to conform to existing
practice as approved by judicial decisions. See Dorsey v. Gill
(App.D.C.) 148 F.2d 857, 865, 866. See also Holiday v. Johnston, 61
S.Ct. 1015, 313 U.S. 342, 85 L.Ed. 1392.
Changes were made in phraseology.
28 USC 2243. Issuance of writ; return; hearing; decision
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order directing
the respondent to show cause why the writ should not be granted, unless
it appears from the application that the applicant or person detained is
not entitled thereto.
The writ, or order to show cause shall be directed to the person
having custody of the person detained. It shall be returned within
three days unless for good cause additional time, not exceeding twenty
days, is allowed.
The person to whom the writ or order is directed shall make a return
certifying the true cause of the detention.
When the writ or order is returned a day shall be set for hearing,
not more than five days after the return unless for good cause
additional time is allowed.
Unless the application for the writ and the return present only
issues of law the person to whom the writ is directed shall be required
to produce at the hearing the body of the person detained.
The applicant or the person detained may, under oath, deny any of the
facts set forth in the return or allege any other material facts.
The return and all suggestions made against it may be amended, by
leave of court, before or after being filed.
The court shall summarily hear and determine the facts, and dispose
of the matter as law and justice require.
(June 25, 1948, ch. 646, 62 Stat. 965.)
Based on title 28, U.S.C., 1940 ed., 455, 456, 457, 458, 459, 460,
and 461 (R.S. 755-761).
Section consolidates sections 455-461 of title 28, U.S.C., 1940 ed.
The requirement for return within 3 days ''unless for good cause
additional time, not exceeding 20 days is allowed'' in the second
paragraph, was substituted for the provision of such section 455 which
allowed 3 days for return if within 20 miles, 10 days if more than 20
but not more than 100 miles, and 20 days if more than 100 miles distant.
Words ''unless for good cause additional time is allowed'' in the
fourth paragraph, were substituted for words ''unless the party
petitioning requests a longer time'' in section 459 of title 28, U.S.C.,
1940 ed.
The fifth paragraph providing for production of the body of the
detained person at the hearing is in conformity with Walker v.
Johnston, 1941, 61 S.Ct. 574, 312 U.S. 275, 85 L.Ed. 830.
Changes were made in phraseology.
28 USC 2244. Finality of determination
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention of
a person pursuant to a judgment of a court of the United States if it
appears that the legality of such detention has been determined by a
judge or court of the United States on a prior application for a writ of
habeas corpus and the petition presents no new ground not heretofore
presented and determined, and the judge or court is satisfied that the
ends of justice will not be served by such inquiry.
(b) When after an evidentiary hearing on the merits of a material
factual issue, or after a hearing on the merits of an issue of law, a
person in custody pursuant to the judgment of a State court has been
denied by a court of the United States or a justice or judge of the
United States release from custody or other remedy on an application for
a writ of habeas corpus, a subsequent application for a writ of habeas
corpus in behalf of such person need not be entertained by a court of
the United States or a justice or judge of the United States unless the
application alleges and is predicated on a factual or other ground not
adjudicated on the hearing of the earlier application for the writ, and
unless the court, justice, or judge is satisfied that the applicant has
not on the earlier application deliberately withheld the newly asserted
ground or otherwise abused the writ.
(c) In a habeas corpus proceeding brought in behalf of a person in
custody pursuant to the judgment of a State court, a prior judgment of
the Supreme Court of the United States on an appeal or review by a writ
of certiorari at the instance of the prisoner of the decision of such
State court, shall be conclusive as to all issues of fact or law with
respect to an asserted denial of a Federal right which constitutes
ground for discharge in a habeas corpus proceeding, actually adjudicated
by the Supreme Court therein, unless the applicant for the writ of
habeas corpus shall plead and the court shall find the existence of a
material and controlling fact which did not appear in the record of the
proceeding in the Supreme Court and the court shall further find that
the applicant for the writ of habeas corpus could not have caused such
fact to appear in such record by the exercise of reasonable diligence.
(June 25, 1948, ch. 646, 62 Stat. 965; Nov. 2, 1966, Pub. L.
89-711, 1, 80 Stat. 1104.)
This section makes no material change in existing practice.
Notwithstanding the opportunity open to litigants to abuse the writ, the
courts have consistently refused to entertain successive ''nuisance''
applications for habeas corpus. It is derived from H.R. 4232
introduced in the first session of the Seventy-ninth Congress by
Chairman Hatton Sumners of the Committee on the Judiciary and referred
to that Committee.
The practice of suing out successive, repetitious, and unfounded
writs of habeas corpus imposes an unnecessary burden on the courts. See
Dorsey v. Gill, 1945, 148 F.2d 857, 862, in which Miller, J., notes
that ''petitions for the writ are used not only as they should be to
protect unfortunate persons against miscarriages of justice, but also as
a device for harassing court, custodial, and enforcement officers with a
multiplicity of repetitious, meritless requests for relief. The most
extreme example is that of a person who, between July 1, 1939, and April
1944 presented in the District Court 50 petitions for writs of habeas
corpus; another person has presented 27 petitions; a third, 24; a
fourth, 22; a fifth, 20. One hundred nineteen persons have presented
597 petitions -- an average of 5.''
Section amended to modify original language which denied Federal
judges power to entertain application for writ where legality of
detention had been determined on prior application and later application
presented no new grounds, and to omit reference to rehearing in section
catch line and original provision authorizing hearing judge to grant
rehearing. 80th Congress, Senate Report No. 1559, Amendment No. 45.
1966 -- Pub. L. 89-711 designated existing provisions as subsec.
(a), struck out provision making the subsection's terms applicable to
applications seeking inquiry into detention of persons detained pursuant
to judgments of State courts, and added subsecs. (b) and (c).
28 USC 2245. Certificate of trial judge admissible in evidence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On the hearing of an application for a writ of habeas corpus to
inquire into the legality of the detention of a person pursuant to a
judgment the certificate of the judge who presided at the trial
resulting in the judgment, setting forth the facts occurring at the
trial, shall be admissible in evidence. Copies of the certificate shall
be filed with the court in which the application is pending and in the
court in which the trial took place.
(June 25, 1948, ch. 646, 62 Stat. 966.)
This section makes no substantive change in existing law. It is
derived from H.R. 4232 introduced in the first session of the
Seventy-ninth Congress by Chairman Sumners of the House Committee on the
Judiciary. It clarifies existing law and promotes uniform procedure.
28 USC 2246. Evidence; depositions; affidavits
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On application for a writ of habeas corpus, evidence may be taken
orally or by deposition, or, in the discretion of the judge, by
affidavit. If affidavits are admitted any party shall have the right to
propound written interrogatories to the affiants, or to file answering
affidavits.
(June 25, 1948, ch. 646, 62 Stat. 966.)
This section is derived from H.R. 4232 introduced in the first
session of the Seventy-ninth Congress by Chairman Sumners of the House
Committee on the Judiciary. It clarifies existing practice without
substantial change.
28 USC 2247. Documentary evidence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On application for a writ of habeas corpus documentary evidence,
transcripts of proceedings upon arraignment, plea and sentence and a
transcript of the oral testimony introduced on any previous similar
application by or in behalf of the same petitioner, shall be admissible
in evidence.
(June 25, 1948, ch. 646, 62 Stat. 966.)
Derived from H.R. 4232, Seventy-ninth Congress, first session. It is
declaratory of existing law and practice.
28 USC 2248. Return or answer; conclusiveness
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The allegations of a return to the writ of habeas corpus or of an
answer to an order to show cause in a habeas corpus proceeding, if not
traversed, shall be accepted as true except to the extent that the judge
finds from the evidence that they are not true.
(June 25, 1948, ch. 646, 62 Stat. 966.)
Derived from H.R. 4232, Seventy-ninth Congress, first session. At
common law the return was conclusive and could not be controverted but
it is now almost universally held that the return is not conclusive of
the facts alleged therein. 39 C.J.S. pp. 664-666, 98, 99.
28 USC 2249. Certified copies of indictment, plea and judgment; duty
of respondent
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On application for a writ of habeas corpus to inquire into the
detention of any person pursuant to a judgment of a court of the United
States, the respondent shall promptly file with the court certified
copies of the indictment, plea of petitioner and the judgment, or such
of them as may be material to the questions raised, if the petitioner
fails to attach them to his petition, and same shall be attached to the
return to the writ, or to the answer to the order to show cause.
(June 25, 1948, ch. 646, 62 Stat. 966.)
Derived from H.R. 4232, Seventy-ninth Congress, first session. It
conforms to the prevailing practice in habeas corpus proceedings.
28 USC 2250. Indigent petitioner entitled to documents without cost
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
If on any application for a writ of habeas corpus an order has been
made permitting the petitioner to prosecute the application in forma
pauperis, the clerk of any court of the United States shall furnish to
the petitioner without cost certified copies of such documents or parts
of the record on file in his office as may be required by order of the
judge before whom the application is pending.
(June 25, 1948, ch. 646, 62 Stat. 966.)
Derived from H.R. 4232, Seventy-ninth Congress, first session. It
conforms to the prevailing practice.
28 USC 2251. Stay of State court proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A justice or judge of the United States before whom a habeas corpus
proceeding is pending, may, before final judgment or after final
judgment of discharge, or pending appeal, stay any proceeding against
the person detained in any State court or by or under the authority of
any State for any matter involved in the habeas corpus proceeding.
After the granting of such a stay, any such proceeding in any State
court or by or under the authority of any State shall be void. If no
stay is granted, any such proceeding shall be as valid as if no habeas
corpus proceedings or appeal were pending.
(June 25, 1948, ch. 646, 62 Stat. 966.)
Based on title 28, U.S.C., 1940 ed., 465 (R.S. 766; Mar. 3, 1893,
ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, 8(c), 43 Stat. 940;
June 19, 1934, ch. 673, 48 Stat. 1177).
Provisions relating to proceedings pending in 1934 were deleted as
obsolete.
A provision requiring an appeal to be taken within 3 months was
omitted as covered by sections 2101 and 2107 of this title.
Changes were made in phraseology.
28 USC 2252. Notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Prior to the hearing of a habeas corpus proceeding in behalf of a
person in custody of State officers or by virtue of State laws notice
shall be served on the attorney general or other appropriate officer of
such State as the justice or judge at the time of issuing the writ shall
direct.
(June 25, 1948, ch. 646, 62 Stat. 967.)
Based on title 28, U.S.C., 1940 ed., 462 (R.S. 762).
Section 462 of title 28, U.S.C., 1940 ed., was limited to alien
prisoners described in section 453 of title 28, U.S.C., 1940 ed. The
revised section extends to all cases of all prisoners under State
custody or authority, leaving it to the justice or judge to prescribe
the notice to State officers, to specify the officer served, and to
satisfy himself that such notice has been given.
Provision for making due proof of such service was omitted as
unnecessary. The sheriff's or marshal's return is sufficient.
Changes were made in phraseology.
28 USC 2253. Appeal
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In a habeas corpus proceeding before a circuit or district judge, the
final order shall be subject to review, on appeal, by the court of
appeals for the circuit where the proceeding is had.
There shall be no right of appeal from such an order in a proceeding
to test the validity of a warrant to remove, to another district or
place for commitment or trial, a person charged with a criminal offense
against the United States, or to test the validity of his detention
pending removal proceedings.
An appeal may not be taken to the court of appeals from the final
order in a habeas corpus proceeding where the detention complained of
arises out of process issued by a State court, unless the justice or
judge who rendered the order or a circuit justice or judge issues a
certificate of probable cause.
(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, 113,
63 Stat. 105; Oct. 31, 1951, ch. 655, 52, 65 Stat. 727.)
Based on title 28, U.S.C., 1940 ed., 463(a) and 466 (Mar. 10, 1908,
ch. 76, 36 Stat. 40; Feb. 13, 1925, ch. 229, 6, 13, 43 Stat. 940,
942; June 29, 1938, ch. 806, 52 Stat. 1232).
This section consolidates paragraph (a) of section 463, and section
466 of title 28, U.S.C., 1940 ed.
The last two sentences of section 463(a) of title 28, U.S.C., 1940
ed., were omitted. They were repeated in section 452 of title 28,
U.S.C., 1940 ed. (See reviser's note under section 2241 of this title.)
Changes were made in phraseology.
This section corrects a typographical error in the second paragraph
of section 2253 of title 28.
1951 -- Act Oct. 31, 1951, substituted ''to remove, to another
district or place for commitment or trial, a person charged with a
criminal offense against the United States, or to test the validity of
his'' for ''of removal issued pursuant to section 3042 of Title 18 or
the'' in second par.
1949 -- Act May 24, 1949, substituted ''3042'' for ''3041'' in second
par.
Commitment to another district; removal, see Rule 40, Title 18,
Appendix, Crimes and Criminal Procedure.
28 USC 2254. State custody; remedies in Federal courts
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(b) An application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State, or that there is either an absence
of available State corrective process or the existence of circumstances
rendering such process ineffective to protect the rights of the
prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise, by any
available procedure, the question presented.
(d) In any proceeding instituted in a Federal court by an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination after a hearing on the merits
of a factual issue, made by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ and the State or an
officer or agent thereof were parties, evidenced by a written finding,
written opinion, or other reliable and adequate written indicia, shall
be presumed to be correct, unless the applicant shall establish or it
shall otherwise appear, or the respondent shall admit --
(1) that the merits of the factual dispute were not resolved in the
State court hearing;
(2) that the factfinding procedure employed by the State court was
not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the
State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or
over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel to
represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate
hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the
State court proceeding;
(8) or unless that part of the record of the State court proceeding
in which the determination of such factual issue was made, pertinent to
a determination of the sufficiency of the evidence to support such
factual determination, is produced as provided for hereinafter, and the
Federal court on a consideration of such part of the record as a whole
concludes that such factual determination is not fairly supported by the
record:
And in an evidentiary hearing in the proceeding in the Federal court,
when due proof of such factual determination has been made, unless the
existence of one or more of the circumstances respectively set forth in
paragraphs numbered (1) to (7), inclusive, is shown by the applicant,
otherwise appears, or is admitted by the respondent, or unless the court
concludes pursuant to the provisions of paragraph numbered (8) that the
record in the State court proceeding, considered as a whole, does not
fairly support such factual determination, the burden shall rest upon
the applicant to establish by convincing evidence that the factual
determination by the State court was erroneous.
(e) If the applicant challenges the sufficiency of the evidence
adduced in such State court proceeding to support the State court's
determination of a factual issue made therein, the applicant, if able,
shall produce that part of the record pertinent to a determination of
the sufficiency of the evidence to support such determination. If the
applicant, because of indigency or other reason is unable to produce
such part of the record, then the State shall produce such part of the
record and the Federal court shall direct the State to do so by order
directed to an appropriate State official. If the State cannot provide
such pertinent part of the record, then the court shall determine under
the existing facts and circumstances what weight shall be given to the
State court's factual determination.
(f) A copy of the official records of the State court, duly certified
by the clerk of such court to be a true and correct copy of a finding,
judicial opinion, or other reliable written indicia showing such a
factual determination by the State court shall be admissible in the
Federal court proceeding.
(June 25, 1948, ch. 646, 62 Stat. 967; Nov. 2, 1966, Pub. L.
89-711, 2, 80 Stat. 1105.)
This new section is declaratory of existing law as affirmed by the
Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321, U.S. 114,
88L. Ed. 572.)
Senate amendment to this section, Senate Report No. 1559, amendment
No. 47, has three declared purposes, set forth as follows:
''The first is to eliminate from the prohibition of the section
applications in behalf of prisoners in custody under authority of a
State officer but whose custody has not been directed by the judgment of
a State court. If the section were applied to applications by persons
detained solely under authority of a State officer it would unduly
hamper Federal courts in the protection of Federal officers prosecuted
for acts committed in the course of official duty.
''The second purpose is to eliminate, as a ground of Federal
jurisdiction to review by habeas corpus judgments of State courts, the
proposition that the State court has denied a prisoner a 'fair
adjudication of the legality of his detention under the Constitution and
laws of the United States.' The Judicial Conference believes that this
would be an undesirable ground for Federal jurisdiction in addition to
exhaustion of State remedies or lack of adequate remedy in the State
courts because it would permit proceedings in the Federal court on this
ground before the petitioner had exhausted his State remedies. This
ground would, of course, always be open to a petitioner to assert in the
Federal court after he had exhausted his State remedies or if he had no
adequate State remedy.
''The third purpose is to substitute detailed and specific language
for the phrase 'no adequate remedy available.' That phrase is not
sufficiently specific and precise, and its meaning should, therefore, be
spelled out in more detail in the section as is done by the amendment.''
1966 -- Pub. L. 89-711 substituted ''Federal courts'' for ''State
Courts'' in section catchline, added subsec. (a), designated existing
paragraphs as subsecs. (b) and (c), and added subsecs. (d) to (f).
Pub. L. 94-426, 1, Sept. 28, 1976, 90 Stat. 1334, provided:
''That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings for the
United States district courts, as proposed by the United States Supreme
Court, which were delayed by the Act entitled 'An Act to delay the
effective date of certain proposed amendments to the Federal Rules of
Criminal Procedure and certain other rules promulgated by the United
States Supreme Court' (Public Law 94-349), are approved with the
amendments set forth in section 2 of this Act and shall take effect as
so amended, with respect to petitions under section 2254 and motions
under section 2255 of title 28 of the United States Code filed on or
after February 1, 1977.''
Rules and forms governing proceedings under sections 2254 and 2255 of
this title proposed by Supreme Court order of Apr. 26, 1976, effective
30 days after adjournment sine die of 94th Congress, or until and to the
extent approved by Act of Congress, whichever is earlier, see section 2
of Pub. L. 94-349, set out as a note under section 2074 of this title.
28 USC RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT
COURTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Rule
1. Scope of rules.
2. Petition.
3. Filing petition.
4. Preliminary consideration by judge.
5. Answer; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive petitions.
10. Powers of magistrates.
11. Federal Rules of Civil Procedure; extent of applicability.
Model form for use in applications for habeas corpus under 28 U.S.C.
2254.
Model form for use in 28 U.S.C. 2254 cases involving a Rule 9 issue.
Amendment
Rules governing Section 2254 cases, and the amendments thereto by
Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with respect
to petitions under section 2254 of this title and motions under section
2255 of this title filed on or after Feb. 1, 1977, see section 1 of
Pub. L. 94-426, set out as a note above.
28 USC Rule 1. Scope of Rules
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Applicable to cases involving custody pursuant to a judgment of a
state court. These rules govern the procedure in the United States
district courts on applications under 28 U.S.C. 2254:
(1) by a person in custody pursuant to a judgment of a state court,
for a determination that such custody is in violation of the
Constitution, laws, or treaties of the United States; and
(2) by a person in custody pursuant to a judgment of either a state
or a federal court, who makes application for a determination that
custody to which he may be subject in the future under a judgment of a
state court will be in violation of the Constitution, laws, or treaties
of the United States.
(b) Other situations. In applications for habeas corpus in cases not
covered by subdivision (a), these rules may be applied at the discretion
of the United States district court.
Rule 1 provides that the habeas corpus rules are applicable to
petitions by persons in custody pursuant to a judgment of a state court.
See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether the rules
ought to apply to other situations (e.g., person in active military
service, Glazier v. Hackel, 440 F.2d 592 (9th Cir. 1971); or a
reservist called to active duty but not reported, Hammond v. Lenfest,
398 F.2d 705 (2d Cir. 1968)) is left to the discretion of the court.
The basic scope of habeas corpus is prescribed by statute. 28 U.S.C.
2241(c) provides that the ''writ of habeas corpus shall not extend to a
prisoner unless * * * (h)e is in custody in violation of the
Constitution.'' 28 U.S.C. 2254 deals specifically with state custody,
providing that habeas corpus shall apply only ''in behalf of a person in
custody pursuant to a judgment of a state court * * *.''
In Preiser v. Rodriguez, supra, the court said: ''It is clear . .
. that the essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and that the traditional function of
the writ is to secure release from illegal custody.'' 411 U.S. at 484.
Initially the Supreme Court held that habeas corpus was appropriate
only in those situations in which petitioner's claim would, if upheld,
result in an immediate release from a present custody. McNally v.
Hill, 293 U.S. 131 (1934). This was changed in Peyton v. Rowe, 391
U.S. 54 (1968), in which the court held that habeas corpus was a proper
way to attack a consecutive sentence to be served in the future,
expressing the view that consecutive sentences resulted in present
custody under both judgments, not merely the one imposing the first
sentence. This view was expanded in Carafas v. LaVallee, 391 U.S. 234
(1968), to recognize the propriety of habeas corpus in a case in which
petitioner was in custody when the petition had been originally filed
but had since been unconditionally released from custody.
See also Preiser v. Rodriguez, 411 U.S. at 486 et seq.
Since Carafas, custody has been construed more liberally by the
courts so as to make a 2255 motion or habeas corpus petition proper in
more situations. ''In custody'' now includes a person who is: on
parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large on his own
recognizance but subject to several conditions pending execution of his
sentence, Hensley v. Municipal Court, 411 U.S. 345 (1973); or released
on bail after conviction pending final disposition of his case,
Lefkowitz v. Newsome, 95 S.Ct. 886 (1975). See also United States v.
Re, 372 F.2d 641 (2d Cir.), cert. denied, 388 U.S. 912 (1967) (on
probation); Walker v. North Carolina, 262 F.Supp. 102 (W.D.N.C. 1966),
aff'd per curiam, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917
(1967) (recipient of a conditionally suspended sentence); Burris v.
Ryan, 397 F.2d 553 (7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th
Cir. 1969) (free on bail); United States ex rel. Smith v. Dibella,
314 F.Supp. 446 (D.Conn. 1970) (release on own recognizance); Choung v.
California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state
court sentence); United States ex rel. Meadows v. New York, 426 F.2d
1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971) (subject to
parole detainer warrant); Capler v. City of Greenville, 422 F.2d 299
(5th Cir. 1970) (released on appeal bond); Glover v. North Carolina,
301 F.Supp. 364 (E.D.N.C. 1969) (sentence served, but as convicted felon
disqualified from engaging in several activities).
The courts are not unanimous in dealing with the above situations,
and the boundaries of custody remain somewhat unclear. In Morgan v.
Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court noted:
It is axiomatic that actual physical custody or restraint is not
required to confer habeas jurisdiction. Rather, the term is synonymous
with restraint of liberty. The real question is how much restraint of
one's liberty is necessary before the right to apply for the writ comes
into play. * * *
It is clear however, that something more than moral restraint is
necessary to make a case for habeas corpus.
Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior
''custody'' doctrine and reaffirmed a generalized flexible approach to
the issue. In speaking about 28 U.S.C. 2241, the first section in the
habeas corpus statutes, the court said:
While the language of the Act indicates that a writ of habeas corpus
is appropriate only when a petitioner is ''in custody,'' * * * the Act
''does not attempt to mark the boundaries of 'custody' nor in any way
other than by use of that word attempt to limit the situations in which
the writ can be used.'' * * * And, recent Supreme Court decisions have
made clear that ''(i)t (habeas corpus) is not now and never has been a
static, narrow, formalistic remedy; its scope has grown to achieve its
grand purpose -- the protection of individuals against erosion of their
right to be free from wrongful restraints upon their liberty.'' * * *
''(B)esides physical imprisonment, there are other restraints on a man's
liberty, restraints not shared by the public generally, which have been
thought sufficient in the English-speaking world to support the issuance
of habeas corpus.''
There is, as of now, no final list of the situations which are
appropriate for habeas corpus relief. It is not the intent of these
rules or notes to define or limit ''custody.''
It is, however, the view of the Advisory Committee that claims of
improper conditions of custody or confinement (not related to the
propriety of the custody itself), can better be handled by other means
such as 42 U.S.C. 1983 and other related statutes. In Wilwording v.
Swanson, 404 U.S. 249 (1971), the court treated a habeas corpus petition
by a state prisoner challenging the conditions of confinement as a claim
for relief under 42 U.S.C. 1983, the Civil Rights Act. Compare Johnson
v. Avery, 393 U.S. 483 (1969).
The distinction between duration of confinement and conditions of
confinement may be difficult to draw. Compare Preiser v. Rodriguez,
411 U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809 (9th
Cir. 1974), modified, 510 F.2d 613 (1975).
28 USC Rule 2. Petition
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Applicants in present custody. If the applicant is presently in
custody pursuant to the state judgment in question, the application
shall be in the form of a petition for a writ of habeas corpus in which
the state officer having custody of the applicant shall be named as
respondent.
(b) Applicants subject to future custody. If the applicant is not
presently in custody pursuant to the state judgment against which he
seeks relief but may be subject to such custody in the future, the
application shall be in the form of a petition for a writ of habeas
corpus with an added prayer for appropriate relief against the judgment
which he seeks to attack. In such a case the officer having present
custody of the applicant and the attorney general of the state in which
the judgment which he seeks to attack was entered shall each be named as
respondents.
(c) Form of petition. The petition shall be in substantially the
form annexed to these rules, except that any district court may by local
rule require that petitions filed with it shall be in a form prescribed
by the local rule. Blank petitions in the prescribed form shall be made
available without charge by the clerk of the district court to
applicants upon their request. It shall specify all the grounds for
relief which are available to the petitioner and of which he has or by
the exercise of reasonable diligence should have knowledge and shall set
forth in summary form the facts supporting each of the grounds thus
specified. It shall also state the relief requested. The petition
shall be typewritten or legibly handwritten and shall be signed under
penalty of perjury by the petitioner.
(d) Petition to be directed to judgments of one court only. A
petition shall be limited to the assertion of a claim for relief against
the judgment or judgments of a single state court (sitting in a county
or other appropriate political subdivision). If a petitioner desires to
attack the validity of the judgments of two or more state courts under
which he is in custody or may be subject to future custody, as the case
may be, he shall do so by separate petitions.
(e) Return of insufficient petition. If a petition received by the
clerk of a district court does not substantially comply with the
requirements of rule 2 or rule 3, it may be returned to the petitioner,
if a judge of the court so directs, together with a statement of the
reason for its return. The clerk shall retain a copy of the petition.
(As amended Pub. L. 94-426, 2(1), (2), Sept. 28, 1976, 90 Stat.
1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
Rule 2 describes the requirements of the actual petition, including
matters relating to its form, contents, scope, and sufficiency. The
rule provides more specific guidance for a petitioner and the court than
28 U.S.C. 2242, after which it is patterned.
Subdivision (a) provides that an applicant challenging a state
judgment, pursuant to which he is presently in custody, must make his
application in the form of a petition for a writ of habeas corpus. It
also requires that the state officer having custody of the applicant be
named as respondent. This is consistent with 28 U.S.C. 2242, which
says in part, ''(Application for a writ of habeas corpus) shall allege *
* * the name of the person who has custody over (the applicant) * * *.''
The proper person to be served in the usual case is either the warden of
the institution in which the petitioner is incarcerated (Sanders v.
Bennett, 148 F.2d 19 (D.C.Cir. 1945)) or the chief officer in charge of
state penal institutions.
Subdivision (b) prescribes the procedure to be used for a petition
challenging a judgment under which the petitioner will be subject to
custody in the future. In this event the relief sought will usually not
be released from present custody, but rather for a declaration that the
judgment being attacked is invalid. Subdivision (b) thus provides for a
prayer for ''appropriate relief.'' It is also provided that the attorney
general of the state of the judgment as well as the state officer having
actual custody of the petitioner shall be named as respondents. This is
appropriate because no one will have custody of the petitioner in the
state of the judgment being attacked, and the habeas corpus action will
usually be defended by the attorney general. The attorney general is in
the best position to inform the court as to who the proper party
respondent is. If it is not the attorney general, he can move for a
substitution of party.
Since the concept of ''custody'' requisite to the consideration of a
petition for habeas corpus has been enlarged significantly in recent
years, it may be worthwhile to spell out the various situations which
might arise and who should be named as respondent(s) for each situation.
(1) The applicant is in jail, prison, or other actual physical
restraint due to the state action he is attacking. The named respondent
shall be the state officer who has official custody of the petitioner
(for example, the warden of the prison).
(2) The applicant is on probation or parole due to the state judgment
he is attacking. The named respondents shall be the particular
probation or parole officer responsible for supervising the applicant,
and the official in charge of the parole or probation agency, or the
state correctional agency, as appropriate.
(3) The applicant is in custody in any other manner differing from
(1) and (2) above due to the effects of the state action he seeks relief
from. The named respondent should be the attorney general of the state
wherein such action was taken.
(4) The applicant is in jail, prison, or other actual physical
restraint but is attacking a state action which will cause him to be
kept in custody in the future rather than the government action under
which he is presently confined. The named respondents shall be the
state or federal officer who has official custody of him at the time the
petition is filed and the attorney general of the state whose action
subjects the petitioner to future custody.
(5) The applicant is in custody, although not physically restrained,
and is attacking a state action which will result in his future custody
rather than the government action out of which his present custody
arises. The named respondent(s) shall be the attorney general of the
state whose action subjects the petitioner to future custody, as well as
the government officer who has present official custody of the
petitioner if there is such an officer and his identity is
ascertainable.
In any of the above situations the judge may require or allow the
petitioner to join an additional or different party as a respondent if
to do so would serve the ends of justice.
As seen in rule 1 and paragraphs (4) and (5) above, these rules
contemplate that a petitioner currently in federal custody will be
permitted to apply for habeas relief from a state restraint which is to
go into effect in the future. There has been disagreement in the courts
as to whether they have jurisdiction of the habeas application under
these circumstances (compare Piper v. United States, 306 F.Supp. 1259
(D.Conn. 1969), with United States ex rel. Meadows v. New York, 426 F.2d
1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)). This rule
seeks to make clear that they do have such jurisdiction.
Subdivision (c) provides that unless a district court requires
otherwise by local rule, the petition must be in the form annexed to
these rules. Having a standard prescribed form has several advantages.
In the past, petitions have frequently contained mere conclusions of
law, unsupported by any facts. Since it is the relationship of the
facts to the claim asserted that is important, these petitions were
obviously deficient. In addition, lengthy and often illegible
petitions, arranged in no logical order, were submitted to judges who
have had to spend hours deciphering them. For example, in Passic v.
Michigan, 98 F.Supp. 1015, 1016 (E.D.Mich. 1951), the court dismissed a
petition for habeas corpus, describing it as ''two thousand pages of
irrational, prolix and redundant pleadings * * *.''
Administrative convenience, of benefit to both the court and the
petitioner, results from the use of a prescribed form. Judge Hubert L.
Will briefly described the experience with the use of a standard form in
the Northern District of Illinois:
Our own experience, though somewhat limited, has been quite
satisfactory. * * *
In addition, (petitions) almost always contain the necessary basic
information * * *. Very rarely do we get the kind of hybrid
federal-state habeas corpus petition with civil rights allegations
thrown in which were not uncommon in the past. * * * (W)hen a real
constitutional issue is raised it is quickly apparent * * *.
Approximately 65 to 70% of all districts have adopted forms or local
rules which require answers to essentially the same questions as
contained in the standard form annexed to these rules. All courts using
forms have indicated the petitions are time-saving and more legible.
The form is particularly helpful in getting information about whether
there has been an exhaustion of state remedies or, at least, where that
information can be obtained.
The requirement of a standard form benefits the petitioner as well.
His assertions are more readily apparent, and a meritorious claim is
more likely to be properly raised and supported. The inclusion in the
form of the ten most frequently raised grounds in habeas corpus
petitions is intended to encourage the applicant to raise all his
asserted grounds in one petition. It may better enable him to recognize
if an issue he seeks to raise is cognizable under habeas corpus and
hopefully inform him of those issues as to which he must first exhaust
his state remedies.
Some commentators have suggested that the use of forms is of little
help because the questions usually are too general, amounting to little
more than a restatement of the statute. They contend the blanks permit
a prisoner to fill in the same ambiguous answers he would have offered
without the aid of a form. See Comment, Developments in the Law --
Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1177-1178 (1970).
Certainly, as long as the statute requires factual pleading, the
adequacy of a petition will continue to be affected largely by the
petitioner's intelligence and the legal advice available to him. On
balance, however, the use of forms has contributed enough to warrant
mandating their use.
Giving the petitioner a list of often-raised grounds may, it is said,
encourage perjury. See Comment, Developments in the Law -- Federal
Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most inmates are aware
of, or have access to, some common constitutional grounds for relief.
Thus, the risk of perjury is not likely to be substantially increased
and the benefit of the list for some inmates seems sufficient to
outweigh any slight risk that perjury will increase. There is a penalty
for perjury, and this would seem the most appropriate way to try to
discourage it.
Legal assistance is increasingly available to inmates either through
paraprofessional programs involving law students or special programs
staffed by members of the bar. See Jacob and Sharma, Justice After
Trial: Prisoners' Need for Legal Services in the Criminal-Correctional
Process, 18 Kan.L.Rev. 493 (1970). In these situations, the prescribed
form can be filled out more competently, and it does serve to ensure a
degree of uniformity in the manner in which habeas corpus claims are
presented.
Subdivision (c) directs the clerk of the district court to make
available to applicants upon request, without charge, blank petitions in
the prescribed form.
Subdivision (c) also requires that all available grounds for relief
be presented in the petition, including those grounds of which, by the
exercise of reasonable diligence, the petitioner should be aware. This
is reinforced by rule 9(b), which allows dismissal of a second petition
which fails to allege new grounds or, if new grounds are alleged, the
judge finds an inexcusable failure to assert the ground in the prior
petition.
Both subdivision (c) and the annexed form require a legibly
handwritten or typewritten petition. As required by 28 U.S.C. 2242,
the petition must be signed and sworn to by the petitioner (or someone
acting in his behalf).
Subdivision (d) provides that a single petition may assert a claim
only against the judgment or judgments of a single state court (i.e., a
court of the same county or judicial district or circuit). This
permits, but does not require, an attack in a single petition on
judgments based upon separate indictments or on separate counts even
though sentences were imposed on separate days by the same court. A
claim against a judgment of a court of a different political subdivision
must be raised by means of a separate petition.
Subdivision (e) allows the clerk to return an insufficient petition
to the petitioner, and it must be returned if the clerk is so directed
by a judge of the court. Any failure to comply with the requirements of
rule 2 or 3 is grounds for insufficiency. In situations where there may
be arguable noncompliance with another rule, such as rule 9, the judge,
not the clerk, must make the decision. If the petition is returned it
must be accompanied by a statement of the reason for its return. No
petitioner should be left to speculate as to why or in what manner his
petition failed to conform to these rules.
Subdivision (e) also provides that the clerk shall retain one copy of
the insufficient petition. If the prisoner files another petition, the
clerk will be in a better position to determine the sufficiency of the
new petition. If the new petition is insufficient, comparison with the
prior petition may indicate whether the prisoner has failed to
understand the clerk's prior explanation for its insufficiency, so that
the clerk can make another, hopefully successful, attempt at
transmitting this information to the petitioner. If the petitioner
insists that the original petition was in compliance with the rules, a
copy of the original petition is available for the consideration of the
judge. It is probably better practice to make a photocopy of a petition
which can be corrected by the petitioner, thus saving the petitioner the
task of completing an additional copy.
Subdivision (c). The amendment takes into account 28 U.S.C. 1746,
enacted after adoption of the 2254 rules. Section 1746 provides that
in lieu of an affidavit an unsworn statement may be given under penalty
of perjury in substantially the following form if executed within the
United States, its territories, possessions or commonwealths: ''I
declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). (Signature).'' The
statute is ''intended to encompass prisoner litigation,'' and the
statutory alternative is especially appropriate in such cases because a
notary might not be readily available. Carter v. Clark, 616 F.2d 228
(5th Cir. 1980). The 2254 forms have been revised accordingly.
1976 -- Subd. (c). Pub. L. 94-426, 2(1), inserted ''substantially''
after ''The petition shall be in'', and struck out requirement that the
petition follow the prescribed form.
Subd. (e). Pub. L. 94-426, 2(2), inserted ''substantially'' after
''district court does not'', and struck out provision which permitted
the clerk to return a petition for noncompliance without a judge so
directing.
28 USC Rule 3. Filing Petition
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Place of filing; copies; filing fee. A petition shall be filed
in the office of the clerk of the district court. It shall be
accompanied by two conformed copies thereof. It shall also be
accompanied by the filing fee prescribed by law unless the petitioner
applies for and is given leave to prosecute the petition in forma
pauperis. If the petitioner desires to prosecute the petition in forma
pauperis, he shall file the affidavit required by 28 U.S.C. 1915. In
all such cases the petition shall also be accompanied by a certificate
of the warden or other appropriate officer of the institution in which
the petitioner is confined as to the amount of money or securities on
deposit to the petitioner's credit in any account in the institution,
which certificate may be considered by the court in acting upon his
application for leave to proceed in forma pauperis.
(b) Filing and service. Upon receipt of the petition and the filing
fee, or an order granting leave to the petitioner to proceed in forma
pauperis, and having ascertained that the petition appears on its face
to comply with rules 2 and 3, the clerk of the district court shall file
the petition and enter it on the docket in his office. The filing of
the petition shall not require the respondent to answer the petition or
otherwise move with respect to it unless so ordered by the court.
Rule 3 sets out the procedures to be followed by the petitioner and
the court in filing the petition. Some of its provisions are currently
dealt with by local rule or practice, while others are innovations.
Subdivision (a) specifies the petitioner's responsibilities. It
requires that the petition, which must be accompanied by two conformed
copies thereof, be filed in the office of the clerk of the district
court. The petition must be accompanied by the filing fee prescribed by
law (presently $5; see 28 U.S.C. 1914(a)), unless leave to prosecute
the petition in forma pauperis is applied for and granted. In the event
the petitioner desires to prosecute the petition in forma pauperis, he
must file the affidavit required by 28 U.S.C. 1915, together with a
certificate showing the amount of funds in his institutional account.
Requiring that the petition be filed in the office of the clerk of
the district court provides an efficient and uniform system of filing
habeas corpus petitions.
Subdivision (b) requires the clerk to file the petition. If the
filing fee accompanies the petition, it may be filed immediately, and,
if not, it is contemplated that prompt attention will be given to the
request to proceed in forma pauperis. The court may delegate the
issuance of the order to the clerk in those cases in which it is clear
from the petition that there is full compliance with the requirements to
proceed in forma pauperis.
Requiring the copies of the petition to be filed with the clerk will
have an impact not only upon administrative matters, but upon more basic
problems as well. In districts with more than one judge, a petitioner
under present circumstances may send a petition to more than one judge.
If no central filing system exists for each district, two judges may
independently take different action on the same petition. Even if the
action taken is consistent, there may be needless duplication of effort.
The requirement of an additional two copies of the form of the
petition is a current practice in many courts. An efficient filing
system requires one copy for use by the court (central file), one for
the respondent (under 3(b), the respondent receives a copy of the
petition whether an answer is required or not), and one for petitioner's
counsel, if appointed. Since rule 2 provides that blank copies of the
petition in the prescribed form are to be furnished to the applicant
free of charge, there should be no undue burden created by this
requirement.
Attached to copies of the petition supplied in accordance with rule 2
is an affidavit form for the use of petitioners desiring to proceed in
forma pauperis. The form requires information concerning the
petitioner's financial resources.
In forma pauperis cases, the petition must also be accompanied by a
certificate indicating the amount of funds in the petitioner's
institution account. Usually the certificate will be from the warden.
If the petitioner is on probation or parole, the court might want to
require a certificate from the supervising officer. Petitions by
persons on probation or parole are not numerous enough, however, to
justify making special provision for this situation in the text of the
rule.
The certificate will verify the amount of funds credited to the
petitioner in an institution account. The district court may by local
rule require that any amount credited to the petitioner, in excess of a
stated maximum, must be used for the payment of the filing fee. Since
prosecuting an action in forma pauperis is a privilege (see Smart v.
Heinze, 347 F.2d 114, 116 (9th Cir. 1965)), it is not to be granted when
the petitioner has sufficient resources.
Subdivision (b) details the clerk's duties with regard to filing the
petition. If the petition does not appear on its face to comply with
the requirements of rules 2 and 3, it may be returned in accordance with
rule 2(e). If it appears to comply, it must be filed and entered on the
docket in the clerk's office. However, under this subdivision the
respondent is not required to answer or otherwise move with respect to
the petition unless so ordered by the court.
28 USC Rule 4. Preliminary Consideration by Judge
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The original petition shall be presented promptly to a judge of the
district court in accordance with the procedure of the court for the
assignment of its business. The petition shall be examined promptly by
the judge to whom it is assigned. If it plainly appears from the face
of the petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court, the judge shall make an
order for its summary dismissal and cause the petitioner to be notified.
Otherwise the judge shall order the respondent to file an answer or
other pleading within the period of time fixed by the court or to take
such other action as the judge deems appropriate. In every case a copy
of the petition and any order shall be served by certified mail on the
respondent and the attorney general of the state involved.
Rule 4 outlines the options available to the court after the petition
is properly filed. The petition must be promptly presented to and
examined by the judge to whom it is assigned. If it plainly appears
from the face of the petition and any exhibits attached thereto that the
petitioner is not entitled to relief in the district court, the judge
must enter an order summarily dismissing the petition and cause the
petitioner to be notified. If summary dismissal is not ordered, the
judge must order the respondent to file an answer or to otherwise plead
to the petition within a time period to be fixed in the order.
28 U.S.C. 2243 requires that the writ shall be awarded, or an order
to show cause issued, ''unless it appears from the application that the
applicant or person detained is not entitled thereto.'' Such
consideration may properly encompass any exhibits attached to the
petition, including, but not limited to, transcripts, sentencing
records, and copies of state court opinions. The judge may order any of
these items for his consideration if they are not yet included with the
petition. See 28 U.S.C. 753(f) which authorizes payment for
transcripts in habeas corpus cases.
It has been suggested that an answer should be required in every
habeas proceeding, taking into account the usual petitioner's lack of
legal expertise and the important functions served by the return. See
Developments in the Law -- Federal Habeas Corpus, 83 Harv.L.Rev. 1038,
1178 (1970). However, under 2243 it is the duty of the court to screen
out frivolous applications and eliminate the burden that would be placed
on the respondent by ordering an unnecessary answer. Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970). In addition, ''notice'' pleading is
not sufficient, for the petition is expected to state facts that point
to a ''real possibility of constitutional error.'' See Aubut v. State
of Maine, 431 F.2d 688, 689 (1st Cir. 1970).
In the event an answer is ordered under rule 4, the court is accorded
greater flexibility than under 2243 in determining within what time
period an answer must be made. Under 2243, the respondent must make a
return within three days after being so ordered, with additional time of
up to forty days allowed under the Federal Rules of Civil Procedure,
Rule 81(a)(2), for good cause. In view of the widespread state of work
overload in prosecutors' offices (see, e.g., Allen, 424 F.2d at 141),
additional time is granted in some jurisdictions as a matter of course.
Rule 4, which contains no fixed time requirement, gives the court the
discretion to take into account various factors such as the respondent's
workload and the availability of transcripts before determining a time
within which an answer must be made.
Rule 4 authorizes the judge to ''take such other action as the judge
deems appropriate.'' This is designed to afford the judge flexibility in
a case where either dismissal or an order to answer may be
inappropriate. For example, the judge may want to authorize the
respondent to make a motion to dismiss based upon information furnished
by respondent, which may show that petitioner's claims have already been
decided on the merits in a federal court; that petitioner has failed to
exhaust state remedies; that the petitioner is not in custody within
the meaning of 28 U.S.C. 2254; or that a decision in the matter is
pending in state court. In these situations, a dismissal may be called
for on procedural grounds, which may avoid burdening the respondent with
the necessity of filing an answer on the substantive merits of the
petition. In other situations, the judge may want to consider a motion
from respondent to make the petition more certain. Or the judge may
want to dismiss some allegations in the petition, requiring the
respondent to answer only those claims which appear to have some
arguable merit.
Rule 4 requires that a copy of the petition and any order be served
by certified mail on the respondent and the attorney general of the
state involved. See 28 U.S.C. 2252. Presently, the respondent often
does not receive a copy of the petition unless the court directs an
answer under 28 U.S.C. 2243. Although the attorney general is served,
he is not required to answer if it is more appropriate for some other
agency to do so. Although the rule does not specifically so provide, it
is assumed that copies of the court orders to respondent will be mailed
to petitioner by the court.
28 USC Rule 5. Answer; Contents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The answer shall respond to the allegations of the petition. In
addition it shall state whether the petitioner has exhausted his state
remedies including any post-conviction remedies available to him under
the statutes or procedural rules of the state and including also his
right of appeal both from the judgment of conviction and from any
adverse judgment or order in the post-conviction proceeding. The answer
shall indicate what transcripts (of pretrial, trial, sentencing, and
post-conviction proceedings) are available, when they can be furnished,
and also what proceedings have been recorded and not transcribed. There
shall be attached to the answer such portions of the transcripts as the
answering party deems relevant. The court on its own motion or upon
request of the petitioner may order that further portions of the
existing transcripts be furnished or that certain portions of the
non-transcribed proceedings be transcribed and furnished. If a
transcript is neither available nor procurable, a narrative summary of
the evidence may be submitted. If the petitioner appealed from the
judgment of conviction or from an adverse judgment or order in a
post-conviction proceeding, a copy of the petitioner's brief on appeal
and of the opinion of the appellate court, if any, shall also be filed
by the respondent with the answer.
Rule 5 details the contents of the ''answer''. (This is a change in
terminology from ''return,'' which is still used below when referring to
prior practice.) The answer plays an obviously important rule in a
habeas proceeding:
The return serves several important functions: it permits the court
and the parties to uncover quickly the disputed issues; it may reveal
to the petitioner's attorney grounds for release that the petitioner did
not know; and it may demonstrate that the petitioner's claim is wholly
without merit.
Developments in the Law -- Federal Habeas Corpus, 83 Harv.L.Rev.
1083, 1178 (1970).
The answer must respond to the allegations of the petition. While
some districts require this by local rule (see, e.g., E.D.N.C.R.
17(B)), under 28 U.S.C. 2243 little specificity is demanded. As a
result, courts occasionally receive answers which contain only a
statement certifying the true cause of detention, or a series of
delaying motions such as motions to dismiss. The requirement of the
proposed rule that the ''answer shall respond to the allegations of the
petition'' is intended to ensure that a responsive pleading will be
filed and thus the functions of the answer fully served.
The answer must also state whether the petitioner has exhausted his
state remedies. This is a prerequisite to eligibility for the writ
under 28 U.S.C. 2254(b) and applies to every ground the petitioner
raises. Most form petitions now in use contain questions requiring
information relevant to whether the petitioner has exhausted his
remedies. However, the exhaustion requirement is often not understood
by the unrepresented petitioner. The attorney general has both the
legal expertise and access to the record and thus is in a much better
position to inform the court on the matter of exhaustion of state
remedies. An alleged failure to exhaust state remedies as to any ground
in the petition may be raised by a motion by the attorney general, thus
avoiding the necessity of a formal answer as to that ground.
The rule requires the answer to indicate what transcripts are
available, when they can be furnished, and also what proceedings have
been recorded and not transcribed. This will serve to inform the court
and petitioner as to what factual allegations can be checked against the
actual transcripts. The transcripts include pretrial transcripts
relating, for example, to pretrial motions to suppress; transcripts of
the trial or guilty plea proceeding; and transcripts of any
post-conviction proceedings which may have taken place. The respondent
is required to furnish those portions of the transcripts which he
believes relevant. The court may order the furnishing of additional
portions of the transcripts upon the request of petitioner or upon the
court's own motion.
Where transcripts are unavailable, the rule provides that a narrative
summary of the evidence may be submitted.
Rule 5 (and the general procedure set up by this entire set of rules)
does not contemplate a traverse to the answer, except under special
circumstances. See advisory committee note to rule 9. Therefore, the
old common law assumption of verity of the allegations of a return until
impeached, as codified in 28 U.S.C. 2248, is no longer applicable. The
meaning of the section, with its exception to the assumption ''to the
extent that the judge finds from the evidence that they (the
allegations) are not true,'' has given attorneys and courts a great deal
of difficulty. It seems that when the petition and return pose an issue
of fact, no traverse is required; Stewart v. Overholser, 186 F.2d 339
(D.C. Cir. 1950).
We read 2248 of the Judicial Code as not requiring a traverse when a
factual issue has been clearly framed by the petition and the return or
answer. This section provides that the allegations of a return or
answer to an order to show cause shall be accepted as true if not
traversed, except to the extent the judge finds from the evidence that
they are not true. This contemplates that where the petition and return
or answer do present an issue of fact material to the legality of
detention, evidence is required to resolve that issue despite the
absence of a traverse. This reference to evidence assumes a hearing on
issues raised by the allegations of the petition and the return or
answer to the order to show cause.
In actual practice, the traverse tends to be a mere pro forma
refutation of the return, serving little if any expository function. In
the interests of a more streamlined and manageable habeas corpus
procedure, it is not required except in those instances where it will
serve a truly useful purpose. Also, under rule 11 the court is given
the discretion to incorporate Federal Rules of Civil Procedure when
appropriate, so civil rule 15(a) may be used to allow the petitioner to
amend his petition when the court feels this is called for by the
contents of the answer.
Rule 5 does not indicate who the answer is to be served upon, but it
necessarily implies that it will be mailed to the petitioner (or to his
attorney if he has one). The number of copies of the answer required is
left to the court's discretion. Although the rule requires only a copy
of petitioner's brief on appeal, respondent is free also to file a copy
of respondent's brief. In practice, courts have found it helpful to
have a copy of respondent's brief.
28 USC Rule 6. Discovery
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Leave of court required. A party shall be entitled to invoke the
processes of discovery available under the Federal Rules of Civil
Procedure if, and to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do so, but not
otherwise. If necessary for effective utilization of discovery
procedures, counsel shall be appointed by the judge for a petitioner who
qualifies for the appointment of counsel under 18 U.S.C. 3006A(g).
(b) Requests for discovery. Requests for discovery shall be
accompanied by a statement of the interrogatories or requests for
admission and a list of the documents, if any, sought to be produced.
(c) Expenses. If the respondent is granted leave to take the
deposition of the petitioner or any other person the judge may as a
condition of taking it direct that the respondent pay the expenses of
travel and subsistence and fees of counsel for the petitioner to attend
the taking of the deposition.
This rule prescribes the procedures governing discovery in habeas
corpus cases. Subdivision (a) provides that any party may utilize the
processes of discovery available under the Federal Rules of Civil
Procedure (rules 26-37) if, and to the extent that, the judge allows.
It also provides for the appointment of counsel for a petitioner who
qualifies for this when counsel is necessary for effective utilization
of discovery procedures permitted by the judge.
Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286
(1969). In that case the court noted,
(I)t is clear that there was no intention to extend to habeas corpus,
as a matter of right, the broad discovery provisions * * * of the new
(Federal Rules of Civil Procedure).
However, citing the lack of methods for securing information in
habeas proceedings, the court pointed to an alternative.
Clearly, in these circumstances * * * the courts may fashion
appropriate modes of procedure, by analogy to existing rules or
otherwise in conformity with judicial usage. * * * Their authority is
expressly confirmed in the All Writs Act, 28 U.S.C. 1651.
The court concluded that the issue of discovery in habeas corpus
cases could best be dealt with as part of an effort to provide general
rules of practice for habeas corpus cases:
In fact, it is our view that the rulemaking machinery should be
invoked to formulate rules of practice with respect to federal habeas
corpus and 2255 proceedings, on a comprehensive basis and not merely
one confined to discovery. The problems presented by these proceedings
are materially different from those dealt with in the Federal Rules of
Civil Procedure and the Federal Rules of Criminal Procedure, and
reliance upon usage and the opaque language of Civil Rule 81(a)(2) is
transparently inadequate. In our view the results of a meticulous
formulation and adoption of special rules for federal habeas corpus and
2255 proceedings would promise much benefit.
Discovery may, in appropriate cases, aid in developing facts
necessary to decide whether to order an evidentiary hearing or to grant
the writ following an evidentiary hearing:
We are aware that confinement sometimes induces fantasy which has its
basis in the paranoia of prison rather than in fact. But where specific
allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is
confined illegally and is therefore entitled to relief, it is the duty
of the court to provide the necessary facilities and procedures for an
adequate inquiry. Obviously, in exercising this power, the court may
utilize familiar procedures, as appropriate, whether these are found in
the civil or criminal rules or elsewhere in the ''usages and
principles.''
Granting discovery is left to the discretion of the court, discretion
to be exercised where there is a showing of good cause why discovery
should be allowed. Several commentators have suggested that at least
some discovery should be permitted without leave of court. It is argued
that the courts will be burdened with weighing the propriety of requests
to which the discovered party has no objection. Additionally, the
availability of protective orders under Fed.R.Civ.R., Rules 30(b) and
31(d) will provide the necessary safeguards. See Developments in the
Law -- Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970);
Civil Discovery in Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967).
Nonetheless, it is felt the requirement of prior court approval of
all discovery is necessary to prevent abuse, so this requirement is
specifically mandated in the rule.
While requests for discovery in habeas proceedings normally follow
the granting of an evidentiary hearing, there may be instances in which
discovery would be appropriate beforehand. Such an approach was
advocated in Wagner v. United States, 418 F.2d 618, 621 (9th Cir.
1969), where the opinion stated the trial court could permit
interrogatories, provide for deposing witnesses, ''and take such other
prehearing steps as may be appropriate.'' While this was an action under
2255, the reasoning would apply equally well to petitions by state
prisoners. Such pre-hearing discovery may show an evidentiary hearing
to be unnecessary, as when there are ''no disputed issues of law or
fact.'' 83 Harv. L.Rev. 1038, 1181 (1970). The court in Harris alluded
to such a possibility when it said ''the court may * * * authorize such
proceedings with respect to development, before or in conjunction with
the hearing of the facts * * *.'' (emphasis added) 394 U.S. at 300.
Such pre-hearing discovery, like all discovery under rule 6, requires
leave of court. In addition, the provisions in rule 7 for the use of an
expanded record may eliminate much of the need for this type of
discovery. While probably not as frequently sought or granted as
discovery in conjunction with a hearing, it may nonetheless serve a
valuable function.
In order to make pre-hearing discovery meaningful, subdivision (a)
provides that the judge should appoint counsel for a petitioner who is
without counsel and qualifies for appointment when this is necessary for
the proper utilization of discovery procedures. Rule 8 provides for the
appointment of counsel at the evidentiary hearing stage (see rule 8(b)
and advisory committee note), but this would not assist the petitioner
who seeks to utilize discovery to stave off dismissal of his petition
(see rule 9 and advisory committee note) or to demonstrate that an
evidentiary hearing is necessary. Thus, if the judge grants a
petitioner's request for discovery prior to making a decision as to the
necessity for an evidentiary hearing, he should determine whether
counsel is necessary for the effective utilization of such discovery
and, if so, appoint counsel for the petitioner if the petitioner
qualifies for such appointment.
This rule contains very little specificity as to what types and
methods of discovery should be made available to the parties in a habeas
proceeding, or how, once made available, these discovery procedures
should be administered. The purpose of this rule is to get some
experience in how discovery would work in actual practice by letting
district court judges fashion their own rules in the context of
individual cases. When the results of such experience are available it
would be desirable to consider whether further, more specific
codification should take place.
Subdivision (b) provides for judicial consideration of all matters
subject to discovery. A statement of the interrogatories, or requests
for admission sought to be answered, and a list of any documents sought
to be produced, must accompany a request for discovery. This is to
advise the judge of the necessity for discovery and enable him to make
certain that the inquiry is relevant and appropriately narrow.
Subdivision (c) refers to the situation where the respondent is
granted leave to take the deposition of the petitioner or any other
person. In such a case the judge may direct the respondent to pay the
expenses and fees of counsel for the petitioner to attend the taking of
the deposition, as a condition granting the respondent such leave.
While the judge is not required to impose this condition subdivision (c)
will give the court the means to do so. Such a provision affords some
protection to the indigent petitioner who may be prejudiced by his
inability to have counsel, often court-appointed, present at the taking
of a deposition. It is recognized that under 18 U.S.C. 3006A(g),
court-appointed counsel in a 2254 proceeding is entitled to receive up
to $250 and reimbursement for expenses reasonably incurred. (Compare
Fed.R. Crim.P. 15(c).) Typically, however, this does not adequately
reimburse counsel if he must attend the taking of depositions or be
involved in other pre-hearing proceedings. Subdivision (c) is intended
to provide additional funds, if necessary, to be paid by the state
government (respondent) to petitioner's counsel.
Although the rule does not specifically so provide, it is assumed
that a petitioner who qualifies for the appointment of counsel under 18
U.S.C. 3006A(g) and is granted leave to take a deposition will be
allowed witness costs. This will include recording and transcription of
the witness's statement. Such costs are payable pursuant to 28 U.S.C.
1825. See Opinion of Comptroller General, February 28, 1974.
Subdivision (c) specifically recognizes the right of the respondent
to take the deposition of the petitioner. Although the petitioner could
not be called to testify against his will in a criminal trial, it is
felt the nature of the habeas proceeding, along with the safeguards
accorded by the Fifth Amendment and the presence of counsel, justify
this provision. See 83 Harv.L.Rev. 1038, 1183-84 (1970).
28 USC Rule 7. Expansion of Record
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Direction for expansion. If the petition is not dismissed
summarily the judge may direct that the record be expanded by the
parties by the inclusion of additional materials relevant to the
determination of the merits of the petition.
(b) Materials to be added. The expanded record may include, without
limitation, letters predating the filing of the petition in the district
court, documents, exhibits, and answers under oath, if so directed, to
written interrogatories propounded by the judge. Affidavits may be
submitted and considered as a part of the record.
(c) Submission to opposing party. In any case in which an expanded
record is directed, copies of the letters, documents, exhibits, and
affidavits proposed to be included shall be submitted to the party
against whom they are to be offered, and he shall be afforded an
opportunity to admit or deny their correctness.
(d) Authentication. The court may require the authentication of any
material under subdivision (b) or (c).
This rule provides that the judge may direct that the record be
expanded. The purpose is to enable the judge to dispose of some habeas
petitions not dismissed on the pleadings, without the time and expense
required for an evidentiary hearing. An expanded record may also be
helpful when an evidentiary hearing is ordered.
The record may be expanded to include additional material relevant to
the merits of the petition. While most petitions are dismissed either
summarily or after a response has been made, of those that remain, by
far the majority require an evidentiary hearing. In the fiscal year
ending June 30, 1970, for example, of 8,423 2254 cases terminated,
8,231 required court action. Of these, 7,812 were dismissed before a
prehearing conference and 469 merited further court action (e.g.,
expansion of the record, prehearing conference, or an evidentiary
hearing). Of the remaining 469 cases, 403 required an evidentiary
hearing, often time-consuming, costly, and, at least occasionally,
unnecessary. See Director of the Administrative Office of the United
States Courts, Annual Report, 245a-245c (table C4) (1970). In some
instances these hearings were necessitated by slight omissions in the
state record which might have been cured by the use of an expanded
record.
Authorizing expansion of the record will, hopefully, eliminate some
unnecessary hearings. The value of this approach was articulated in
Raines v. United States, 423 F.2d 526, 529-530 (4th Cir. 1970):
Unless it is clear from the pleadings and the files and records that
the prisoner is entitled to no relief, the statute makes a hearing
mandatory. We think there is a permissible intermediate step that may
avoid the necessity for an expensive and time consuming evidentiary
hearing in every Section 2255 case. It may instead be perfectly
appropriate, depending upon the nature of the allegations, for the
district court to proceed by requiring that the record be expanded to
include letters, documentary evidence, and, in an appropriate case, even
affidavits. United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968);
Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967); Accardi v.
United States, 379 F.2d 312 (2nd Cir. 1967). When the issue is one of
credibility, resolution on the basis of affidavits can rarely be
conclusive, but that is not to say they may not be helpful.
In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:
At any time in the proceedings * * * either on (the court's) own
motion or upon cause shown by the petitioner, it may issue such writs
and take or authorize such proceedings * * * before or in conjunction
with the hearing of the facts * * * (emphasis added)
Subdivision (b) specifies the materials which may be added to the
record. These include, without limitation, letters predating the filing
of the petition in the district court, documents, exhibits, and answers
under oath directed to written interrogatories propounded by the judge.
Under this subdivision affidavits may be submitted and considered part
of the record. Subdivision (b) is consistent with 28 U.S.C. 2246 and
2247 and the decision in Raines with regard to types of material that
may be considered upon application for a writ of habeas corpus. See
United States v. Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and
Machibroda v. United States, 368 U.S. 487 (1962).
Under subdivision (c) all materials proposed to be included in the
record must be submitted to the party against whom they are to be
offered.
Under subdivision (d) the judge can require authentication if he
believes it desirable to do so.
28 USC Rule 8. Evidentiary Hearing
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Determination by court. If the petition is not dismissed at a
previous stage in the proceeding, the judge, after the answer and the
transcript and record of state court proceedings are filed, shall, upon
a review of those proceedings and of the expanded record, if any,
determine whether an evidentiary hearing is required. If it appears
that an evidentiary hearing is not required, the judge shall make such
disposition of the petition as justice shall require.
(b) Function of the magistrate.
(1) When designated to do so in accordance with 28 U.S.C. 636(b), a
magistrate may conduct hearings, including evidentiary hearings, on the
petition, and submit to a judge of the court proposed findings of fact
and recommendations for disposition.
(2) The magistrate shall file proposed findings and recommendations
with the court and a copy shall forthwith be mailed to all parties.
(3) Within ten days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court.
(4) A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations
to which objection is made. A judge of the court may accept, reject, or
modify in whole or in part any findings or recommendations made by the
magistrate.
(c) Appointment of counsel; time for hearing. If an evidentiary
hearing is required the judge shall appoint counsel for a petitioner who
qualifies for the appointment of counsel under 18 U.S.C. 3006A(g) and
the hearing shall be conducted as promptly as practicable, having regard
for the need of counsel for both parties for adequate time for
investigation and preparation. These rules do not limit the appointment
of counsel under 18 U.S.C. 3006A at any stage of the case if the
interest of justice so requires.
(As amended Pub. L. 94-426, 2(5), Sept. 28, 1976, 90 Stat. 1334;
Pub. L. 94-577, 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat. 2730, 2731.)
This rule outlines the procedure to be followed by the court
immediately prior to and after the determination of whether to hold an
evidentiary hearing.
The provisions are applicable if the petition has not been dismissed
at a previous stage in the proceeding (including a summary dismissal
under rule 4; a dismissal pursuant to a motion by the respondent; a
dismissal after the answer and petition are considered; or a dismissal
after consideration of the pleadings and an expanded record).
If dismissal has not been ordered, the court must determine whether
an evidentiary hearing is required. This determination is to be made
upon a review of the answer, the transcript and record of state court
proceedings, and if there is one, the expanded record. As the United
States Supreme Court noted in Townsend v. Sam, 372 U.S. 293, 319
(1963):
Ordinarily (the complete state-court) record -- including the
transcript of testimony (or if unavailable some adequate substitute,
such as a narrative record), the pleadings, court opinions, and other
pertinent documents -- is indispensable to determining whether the
habeas applicant received a full and fair state-court evidentiary
hearing resulting in reliable findings.
Subdivision (a) contemplates that all of these materials, if
available, will be taken into account. This is especially important in
view of the standard set down in Townsend for determining when a hearing
in the federal habeas proceeding is mandatory.
The appropriate standard * * * is this: Where the facts are in
dispute, the federal court in habeas corpus must hold an evidentiary
hearing if the habeas applicant did not receive a full and fair
evidentiary hearing in a state court, either at the time of the trial or
in a collateral proceeding.
The circumstances under which a federal hearing is mandatory are now
specified in 28 U.S.C. 2254(d). The 1966 amendment clearly places the
burden on the petitioner, when there has already been a state hearing,
to show that it was not a fair or adequate hearing for one or more of
the specifically enumerated reasons, in order to force a federal
evidentiary hearing. Since the function of an evidentiary hearing is to
try issues of fact (372 U.S. at 309), such a hearing is unnecessary when
only issues of law are raised. See, e.g., Yeaman v. United States, 326
F.2d 293 (9th Cir. 1963).
In situations in which an evidentiary hearing is not mandatory, the
judge may nonetheless decide that an evidentiary hearing is desirable:
The purpose of the test is to indicate the situations in which the
holding of an evidentiary hearing is mandatory. In all other cases
where the material facts are in dispute, the holding of such a hearing
is in the discretion of the district judge.
If the judge decides that an evidentiary hearing is neither required
nor desirable, he shall make such a disposition of the petition ''as
justice shall require.'' Most habeas petitions are dismissed before the
prehearing conference stage (see Director of the Administrative Office
of the United States Courts, Annual Report 245a-245c (table C4) (1970))
and of those not dismissed, the majority raise factual issues that
necessitate an evidentiary hearing. If no hearing is required, most
petitions are dismissed, but in unusual cases the court may grant the
relief sought without a hearing. This includes immediate release from
custody or nullification of a judgment under which the sentence is to be
served in the future.
Subdivision (b) provides that a magistrate, when so empowered by rule
of the district court, may recommend to the district judge that an
evidentiary hearing be held or that the petition be dismissed, provided
he gives the district judge a sufficiently detailed description of the
facts so that the judge may decide whether or not to hold an evidentiary
hearing. This provision is not inconsistent with the holding in Wingo
v. Wedding, 418 U.S. 461 (1974), that the Federal Magistrates Act did
not change the requirement of the habeas corpus statute that federal
judges personally conduct habeas evidentiary hearings, and that
consequently a local district court rule was invalid insofar as it
authorized a magistrate to hold such hearings. 28 U.S.C. 636(b)
provides that a district court may by rule authorize any magistrate to
perform certain additional duties, including preliminary review of
applications for posttrial relief made by individuals convicted of
criminal offenses, and submission of a report and recommendations to
facilitate the decision of the district judge having jurisdiction over
the case as to whether there should be a hearing.
As noted in Wingo, review ''by Magistrates of applications for
post-trial relief is thus limited to review for the purpose of
proposing, not holding, evidentiary hearings.''
Utilization of the magistrate as specified in subdivision (b) will
aid in the expeditious and fair handling of habeas petitions.
A qualified, experienced magistrate will, it is hoped, acquire an
expertise in examining these (postconviction review) applications and
summarizing their important contents for the district judge, thereby
facilitating his decisions. Law clerks are presently charged with this
responsibility by many judges, but judges have noted that the normal
1-year clerkship does not afford law clerks the time or experience
necessary to attain real efficiency in handling such applications.
Under subdivision (c) there are two provisions that differ from the
procedure set forth in 28 U.S.C. 2243. These are the appointment of
counsel and standard for determining how soon the hearing will be held.
If an evidentiary hearing is required the judge must appoint counsel
for a petitioner who qualified for appointment under the Criminal
Justice Act. Currently, the appointment of counsel is not recognized as
a right at any stage of a habeas proceeding. See, e.g., United States
ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964). Some
district courts have, however, by local rule, required that counsel must
be provided for indigent petitioners in cases requiring a hearing. See,
e.g., D.N.M.R. 21(f), E.D. N.Y.R. 26(d). Appointment of counsel at this
stage is mandatory under subdivision (c). This requirement will not
limit the authority of the court to provide counsel at an earlier stage
if it is thought desirable to do so as is done in some courts under
current practice. At the evidentiary hearing stage, however, an
indigent petitioner's access to counsel should not depend on local
practice and, for this reason, the furnishing of counsel is made
mandatory.
Counsel can perform a valuable function benefiting both the court and
the petitioner. The issues raised can be more clearly identified if
both sides have the benefit of trained legal personnel. The presence of
counsel at the prehearing conference may help to expedite the
evidentiary hearing or make it unnecessary, and counsel will be able to
make better use of available prehearing discovery procedures. Compare
ABA Project on Standards for Criminal Justice, Standards Relating to
Post-Conviction Remedies 4.4, p. 66 (Approved Draft 1968). At a
hearing, the petitioner's claims are more likely to be effectively and
properly presented by counsel.
Under 18 U.S.C. 3006A(g), payment is allowed counsel up to $250,
plus reimbursement for expenses reasonably incurred. The standards of
indigency under this section are less strict than those regarding
eligibility to prosecute a petition in forma pauperis, and thus many who
cannot qualify to proceed under 28 U.S.C. 1915 will be entitled to the
benefits of counsel under 18 U.S.C. 3006A(g). Under rule 6(c), the
court may order the respondent to reimburse counsel from state funds for
fees and expenses incurred as the result of the utilization of discovery
procedures by the respondent.
Subdivision (c) provides that the hearing shall be conducted as
promptly as possible, taking into account ''the need of counsel for both
parties for adequate time for investigation and preparation.'' This
differs from the language of 28 U.S.C. 2243, which requires that the
day for the hearing be set ''not more than five days after the return
unless for good cause additional time is allowed.'' This time limit
fails to take into account the function that may be served by a
prehearing conference and the time required to prepare adequately for an
evidentiary hearing. Although ''additional time'' is often allowed
under 2243, subdivision (c) provides more flexibility to take account
of the complexity of the case, the availability of important materials,
the workload of the attorney general, and the time required by appointed
counsel to prepare.
While the rule does not make specific provision for a prehearing
conference, the omission is not intended to cast doubt upon the value of
such a conference:
The conference may limit the questions to be resolved, identify areas
of agreement and dispute, and explore evidentiary problems that may be
expected to arise. * * * (S)uch conferences may also disclose that a
hearing is unnecessary * * *.
ABA Project on Standards for Criminal Justice, Standards Relating to
Post-Conviction Remedies 4.6, commentary pp. 74-75. (Approved Draft,
1968.)
See also Developments in the Law -- Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1188 (1970).
The rule does not contain a specific provision on the subpoenaing of
witnesses. It is left to local practice to determine the method for
doing this. The implementation of 28 U.S.C. 1825 on the payment of
witness fees is dealt with in an opinion of the Comptroller General,
February 28, 1974.
1976 -- Subd. (b). Pub. L. 94-577, 2(a)(1), substituted provisions
which authorized magistrates, when designated to do so in accordance
with section 636(b) of this title, to conduct hearings, including
evidentiary hearings, on the petition and to submit to a judge of the
court proposed findings of fact and recommendations for disposition,
which directed the magistrate to file proposed findings and
recommendations with the court with copies furnished to all parties,
which allowed parties thus served 10 days to file written objections
thereto, and which directed a judge of the court to make de novo
determinations of the objected-to portions and to accept, reject, or
modify the findings or recommendations for provisions under which the
magistrate had been empowered only to recommend to the district judge
that an evidentiary hearing be held or that the petition be dismissed.
Subd. (c). Pub. L. 94-577, 2(b)(1), substituted ''and the hearing
shall be conducted'' for ''and shall conduct the hearing''.
Pub. L. 94-426 provided that these rules not limit the appointment of
counsel under section 3006A of title 18, if the interest of justice so
require.
Section 2(c) of Pub. L. 94-577 provided that: ''The amendments made
by this section (amending subdivs. (b) and (c) of this rule and Rule
8(b), (c) of the Rules Governing Proceedings Under Section 2255 of this
title) shall take effect with respect to petitions under section 2254
and motions under section 2255 of title 28 of the United States Code
filed on or after February 1, 1977.''
28 USC Rule 9. Delayed or Successive Petitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Delayed petitions. A petition may be dismissed if it appears
that the state of which the respondent is an officer has been prejudiced
in its ability to respond to the petition by delay in its filing unless
the petitioner shows that it is based on grounds of which he could not
have had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.
(b) Successive petitions. A second or successive petition may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
(As amended Pub. L. 94-426, 2(7), (8), Sept. 28, 1976, 90 Stat.
1335.)
This rule is intended to minimize abuse of the writ of habeas corpus
by limiting the right to assert stale claims and to file multiple
petitions. Subdivision (a) deals with the delayed petition.
Subdivision (b) deals with the second or successive petition.
Subdivision (a) provides that a petition attacking the judgment of a
state court may be dismissed on the grounds of delay if the petitioner
knew or should have known of the existence of the grounds he is
presently asserting in the petition and the delay has resulted in the
state being prejudiced in its ability to respond to the petition. If
the delay is more than five years after the judgment of conviction,
prejudice is presumed, although this presumption is rebuttable by the
petitioner. Otherwise, the state has the burden of showing such
prejudice.
The assertion of stale claims is a problem which is not likely to
decrease in frequency. Following the decisions in Jones v. Cunningham,
371 U.S. 236 (1963), and Benson v. California, 328 F.2d 159 (9th Cir.
1964), the concept of custody expanded greatly, lengthening the time
period during which a habeas corpus petition may be filed. The
petitioner who is not unconditionally discharged may be on parole or
probation for many years. He may at some date, perhaps ten or fifteen
years after conviction, decide to challenge the state court judgment.
The grounds most often troublesome to the courts are ineffective
counsel, denial of right of appeal, plea of guilty unlawfully induced,
use of a coerced confession, and illegally constituted jury. The latter
four grounds are often interlocked with the allegation of ineffective
counsel. When they are asserted after the passage of many years, both
the attorney for the defendant and the state have difficulty in
ascertaining what the facts are. It often develops that the defense
attorney has little or no recollection as to what took place and that
many of the participants in the trial are dead or their whereabouts
unknown. The court reporter's notes may have been lost or destroyed,
thus eliminating any exact record of what transpired. If the case was
decided on a guilty plea, even if the record is intact, it may not
satisfactorily reveal the extent of the defense attorney's efforts in
behalf of the petitioner. As a consequence, there is obvious difficulty
in investigating petitioner's allegations.
The interest of both the petitioner and the government can best be
served if claims are raised while the evidence is still fresh. The
American Bar Association has recognized the interest of the state in
protecting itself against stale claims by limiting the right to raise
such claims after completion of service of a sentence imposed pursuant
to a challenged judgment. See ABA Standards Relating to Post-Conviction
Remedies 2.4 (c), p. 45 (Approved Draft, 1968). Subdivision (a) is
not limited to those who have completed their sentence. Its reach is
broader, extending to all instances where delay by the petitioner has
prejudiced the state, subject to the qualifications and conditions
contained in the subdivision.
In McMann v. Richardson, 397 U.S. 759 (1970), the court made
reference to the issue of the stale claim:
What is at stake in this phase of the case is not the integrity of
the state convictions obtained on guilty pleas, but whether, years
later, defendants must be permitted to withdraw their pleas, which were
perfectly valid when made, and be given another choice between admitting
their guilt and putting the State to its proof. (Emphasis added.)
The court refused to allow this, intimating its dislike of collateral
attacks on sentences long since imposed which disrupt the state's
interest in finality of convictions which were constitutionally valid
when obtained.
Subdivision (a) is not a statute of limitations. Rather, the
limitation is based on the equitable doctrine of laches. ''Laches is
such delay in enforcing one's rights as works disadvantage to another.''
30A C.J.S. Equity 112, p. 19. Also, the language of the subdivision,
''a petition may be dismissed'' (emphasis added), is permissive rather
than mandatory. This clearly allows the court which is considering the
petition to use discretion in assessing the equities of the particular
situation.
The use of a flexible rule analogous to laches to bar the assertion
of stale claims is suggested in ABA Standards Relating to
Post-Conviction Remedies 2.4, commentary at 48 (Approved Draft, 1968).
Additionally, in Fay v. Noia, 372 U.S. 391 (1963), the Supreme Court
noted:
Furthermore, habeas corpus has traditionally been regarded as
governed by equitable principles. United States ex rel. Smith v.
Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the
principle that a suitor's conduct in relation to the matter at hand may
disentitle him to the relief he seeks.
Finally, the doctrine of laches has been applied with reference to
another postconviction remedy, the writ of coram nobis. See 24 C.J.S.
Criminal Law 1606(25), p. 779.
The standard used for determining if the petitioner shall be barred
from asserting his claim is consistent with that used in laches
provisions generally. The petitioner is held to a standard of
reasonable diligence. Any inference or presumption arising by reason of
the failure to attack collaterally a conviction may be disregarded where
(1) there has been a change of law or fact (new evidence) or (2) where
the court, in the interest of justice, feels that the collateral attack
should be entertained and the prisoner makes a proper showing as to why
he has not asserted a particular ground for relief.
Subdivision (a) establishes the presumption that the passage of more
than five years from the time of the judgment of conviction to the time
of filing a habeas petition is prejudicial to the state.
''Presumption'' has the meaning given it by Fed.R.Evid. 301. The
prisoner has ''the burden of going forward with evidence to rebut or
meet the presumption'' that the state has not been prejudiced by the
passage of a substantial period of time. This does not impose too heavy
a burden on the petitioner. He usually knows what persons are important
to the issue of whether the state has been prejudiced. Rule 6 can be
used by the court to allow petitioner liberal discovery to learn whether
witnesses have died or whether other circumstances prejudicial to the
state have occurred. Even if the petitioner should fail to overcome the
presumption of prejudice to the state, he is not automatically barred
from asserting his claim. As discussed previously, he may proceed if he
neither knew nor, by the exercise of reasonable diligence, could have
known of the grounds for relief.
The presumption of prejudice does not come into play if the time lag
is not more than five years.
The time limitation should have a positive effect in encouraging
petitioners who have knowledge of it to assert all their claims as soon
after conviction as possible. The implementation of this rule can be
substantially furthered by the development of greater legal resources
for prisoners. See ABA Standards Relating to Post-Conviction Remedies
3.1, pp. 49-50 (Approved Draft, 1968).
Subdivision (a) does not constitute an abridgement or modification of
a substantive right under 28 U.S.C. 2072. There are safeguards for the
hardship case. The rule provides a flexible standard for determining
when a petition will be barred.
Subdivision (b) deals with the problem of successive habeas
petitions. It provides that the judge may dismiss a second or
successive petition (1) if it fails to allege new or different grounds
for relief or (2) if new or different grounds for relief are alleged and
the judge finds the failure of the petitioner to assert those grounds in
a prior petition is inexcusable.
In Sanders v. United States, 373 U.S. 1 (1963), the court, in
dealing with the problem of successive applications, stated:
Controlling weight may be given to denial of a prior application for
federal habeas corpus or 2255 relief only if (1) the same ground
presented in the subsequent application was determined adversely to the
applicant on the prior application, (2) the prior determination was on
the merits, and (3) the ends of justice would not be served by reaching
the merits of the subsequent application. (Emphasis added.)
The requirement is that the prior determination of the same ground
has been on the merits. This requirement is in 28 U.S.C. 2244(b) and
has been reiterated in many cases since Sanders. See Gains v. Allgood,
391 F.2d 692 (5th Cir. 1968); Hutchinson v. Craven, 415 F.2d 278 (9th
Cir. 1969); Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970).
With reference to a successive application asserting a new ground or
one not previously decided on the merits, the court in Sanders noted:
In either case, full consideration of the merits of the new
application can be avoided only if there has been an abuse of the writ *
* * and this the Government has the burden of pleading. * * *
Thus, for example, if a prisoner deliberately withholds one of two
grounds for federal collateral relief at the time of filing his first
application, * * * he may be deemed to have waived his right to a
hearing on a second application presenting the withheld ground.
Subdivision (b) has incorporated this principle and requires that the
judge find petitioner's failure to have asserted the new grounds in the
prior petition to be inexcusable.
Sanders, 18 U.S.C. 2244, and subdivision (b) make it clear that the
court has discretion to entertain a successive application.
The burden is on the government to plead abuse of the writ. See
Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs, 427
F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420 F.2d 395
(4th Cir. 1969). Once the government has done this, the petitioner has
the burden of proving that he has not abused the writ. In Price v.
Johnston, 334 U.S. 266, 292 (1948), the court said:
(I)f the Government chooses * * * to claim that the prisoner has
abused the writ of habeas corpus, it rests with the Government to make
that claim with clarity and particularity in its return to the order to
show cause. That is not an intolerable burden. The Government is
usually well acquainted with the facts that are necessary to make such a
claim. Once a particular abuse has been alleged, the prisoner has the
burden of answering that allegation and of proving that he has not
abused the writ.
Subdivision (b) is consistent with the important and well established
purpose of habeas corpus. It does not eliminate a remedy to which the
petitioner is rightfully entitled. However, in Sanders, the court
pointed out:
Nothing in the traditions of habeas corpus requires the federal
courts to tolerate needless piecemeal litigation, or to entertain
collateral proceedings whose only purpose is to vex, harass, or delay.
There are instances in which petitioner's failure to assert a ground
in a prior petition is excusable. A retroactive change in the law and
newly discovered evidence are examples. In rare instances, the court
may feel a need to entertain a petition alleging grounds that have
already been decided on the merits. Sanders, 373 U.S. at 1, 16.
However, abusive use of the writ should be discouraged, and instances of
abuse are frequent enough to require a means of dealing with them. For
example, a successive application, already decided on the merits, may be
submitted in the hope of getting before a different judge in multijudge
courts. A known ground may be deliberately withheld in the hope of
getting two or more hearings or in the hope that delay will result in
witnesses and records being lost. There are instances in which a
petitioner will have three or four petitions pending at the same time in
the same court. There are many hundreds of cases where the application
is at least the second one by the petitioner. This subdivision is aimed
at screening out the abusive petitions from this large volume, so that
the more meritorious petitions can get quicker and fuller consideration.
The form petition, supplied in accordance with rule 2(c), encourages
the petitioner to raise all of his available grounds in one petition.
It sets out the most common grounds asserted so that these may be
brought to his attention.
Some commentators contend that the problem of abuse of the writ of
habeas corpus is greatly overstated:
Most prisoners, of course, are interested in being released as soon
as possible; only rarely will one inexcusably neglect to raise all
available issues in his first federal application. The purpose of the
''abuse'' bar is apparently to deter repetitious applications from those
few bored or vindictive prisoners * * *.
See also ABA Standards Relating to Post-Conviction Remedies 6.2,
commentary at 92 (Approved Draft, 1968), which states: ''The
occasional, highly litigious prisoner stands out as the rarest
exception.'' While no recent systematic study of repetitious
applications exists, there is no reason to believe that the problem has
decreased in significance in relation to the total number of 2254
petitions filed. That number has increased from 584 in 1949 to 12,088
in 1971. See Director of the Administrative Office of the United States
Courts, Annual Report, table 16 (1971). It is appropriate that action
be taken by rule to allow the courts to deal with this problem, whatever
its specific magnitude. The bar set up by subdivision (b) is not one of
rigid application, but rather is within the discretion of the courts on
a case-by-case basis.
If it appears to the court after examining the petition and answer
(where appropriate) that there is a high probability that the petition
will be barred under either subdivision of rule 9, the court ought to
afford petitioner an opportunity to explain his apparent abuse. One way
of doing this is by the use of the form annexed hereto. The use of a
form will ensure a full airing of the issue so that the court is in a
better position to decide whether the petition should be barred. This
conforms with Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969), where
the court stated:
(T)he petitioner is obligated to present facts demonstrating that his
earlier failure to raise his claims is excusable and does not amount to
an abuse of the writ. However, it is inherent in this obligation placed
upon the petitioner that he must be given an opportunity to make his
explanation, if he has one. If he is not afforded such an opportunity,
the requirement that he satisfy the court that he has not abused the
writ is meaningless. Nor do we think that a procedure which allows the
imposition of a forfeiture for abuse of the writ, without allowing the
petitioner an opportunity to be heard on the issue, comports with the
minimum requirements of fairness.
Use of the recommended form will contribute to an orderly handling of
habeas petitions and will contribute to the ability of the court to
distinguish the excusable from the inexcusable delay or failure to
assert a ground for relief in a prior petition.
1976 -- Subd. (a). Pub. L. 94-426, 2(7), struck out provision which
established a rebuttable presumption of prejudice to the state if the
petition was filed more than five years after conviction and started the
running of the five year period, where a petition challenged the
validity of an action after conviction, from the time of the order of
such action.
Subd. (b). Pub. L. 94-426, 2(8), substituted ''constituted an abuse
of the writ'' for ''is not excusable''.
28 USC Rule 10. Powers of Magistrates
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The duties imposed upon the judge of the district court by these
rules may be performed by a United States magistrate pursuant to 28
U.S.C. 636.
(As amended Pub. L. 94-426, 2(11), Sept. 28, 1976, 90 Stat. 1335;
Apr. 30, 1979, eff. Aug. 1, 1979.)
Under this rule the duties imposed upon the judge of the district
court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate if and
to the extent he is empowered to do so by a rule of the district court.
However, when such duties involve the making of an order under rule 4
disposing of the petition, that order must be made by the court. The
magistrate in such instances must submit to the court his report as to
the facts and his recommendation with respect to the order.
The Federal Magistrates Act allows magistrates, when empowered by
local rule, to perform certain functions in proceedings for post-trial
relief. See 28 U.S.C. 636(b)(3). The performance of such functions,
when authorized, is intended to ''afford some degree of relief to
district judges and their law clerks, who are presently burdened with
burgeoning numbers of habeas corpus petitions and applications under 28
U.S.C. 2255.'' Committee on the Judiciary, The Federal Magistrates Act,
S.Rep. No. 371, 90th Cong., 1st sess., 26 (1967).
Under 28 U.S.C. 636(b), any district court,
by the concurrence of a majority of all the judges of such district
court, may establish rules pursuant to which any full-time United States
magistrate * * * may be assigned within the territorial jurisdiction of
such court such additional duties as are not inconsistent with the
Constitution and laws of the United States.
The proposed rule recognizes the limitations imposed by 28 U.S.C.
636(b) upon the powers of magistrates to act in federal postconviction
proceedings. These limitations are: (1) that the magistrate may act
only pursuant to a rule passed by the majority of the judges in the
district court in which the magistrate serves, and (2) that the duties
performed by the magistrate pursuant to such rule be consistent with the
Constitution and laws of the United States.
It has been suggested that magistrates be empowered by law to hold
hearings and make final decisions in habeas proceedings. See Proposed
Reformation of Federal Habeas Corpus Procedure: Use of Federal
Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the Federal
Magistrates Act does not authorize such use of magistrates. Wingo v.
Wedding, 418 U.S. 461 (1974). See advisory committee note to rule 8.
While the use of magistrates can help alleviate the strain imposed on
the district courts by the large number of unmeritorious habeas
petitions, neither 28 U.S.C. 636(b) nor this rule contemplate the
abdication by the court of its decision-making responsibility. See also
Developments in the Law -- Federal Habeas Corpus, 83 Harv. L.Rev. 1038,
1188 (1970)
Where a full-time magistrate is not available, the duties
contemplated by this rule may be assigned to a part-time magistrate.
This amendment conforms the rule to subsequently enacted legislation
clarifying and further defining the duties which may be assigned to a
magistrate, 18 U.S.C. 636, as amended in 1976 by Pub. L. 94-577. To
the extent that rule 10 is more restrictive than 636, the limitations
are of no effect, for the statute expressly governs ''(n)otwithstanding
any provision of law to the contrary.''
The reference to particular rules is stricken, as under 636(b)(1)(A)
a judge may designate a magistrate to perform duties under other rules
as well (e.g., order that further transcripts be furnished under rule 5;
appoint counsel under rule 8). The reference to ''established
standards and criteria'' is stricken, as 636(4) requires each district
court to ''establish rules pursuant to which the magistrates shall
discharge their duties.'' The exception with respect to a rule 4 order
dismissing a petition is stricken, as that limitation appears in
636(b)(1)(B) and is thereby applicable to certain other actions under
these rules as well (e.g., determination of a need for an evidentiary
hearing under rule 8; dismissal of a delayed or successive petition
under rule 9).
1976 -- Pub. L. 94-426 inserted '', and to the extent the district
court has established standards and criteria for the performance of such
duties'' after ''rule of the district court''.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 11. Federal Rules of Civil Procedure; Extent of
Applicability
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with these rules, may be applied, when appropriate, to
petitions filed under these rules.
Habeas corpus proceedings are characterized as civil in nature. See
e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under
Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to habeas
corpus actions has been limited, although the various courts which have
considered this problem have had difficulty in setting out the
boundaries of this limitation. See Harris v. Nelson, 394 U.S. 286
(1969) at 289, footnote 1. Rule 11 is intended to conform with the
Supreme Court's approach in the Harris case. There the court was
dealing with the petitioner's contention that Civil Rule 33 granting the
right to discovery via written interrogatories is wholly applicable to
habeas corpus proceedings. The court held:
We agree with the Ninth Circuit that Rule 33 of the Federal Rules of
Civil Procedure is not applicable to habeas corpus proceedings and that
28 U.S.C. 2246 does not authorize interrogatories except in limited
circumstances not applicable to this case; but we conclude that, in
appropriate circumstances, a district court, confronted by a petition
for habeas corpus which establishes a prima facie case for relief, may
use or authorize the use of suitable discovery procedures, including
interrogatories, reasonably fashioned to elicit facts necessary to help
the court to ''dispose of the matter as law and justice require'' 28
U.S.C. 2243.
The court then went on to consider the contention that the
''conformity'' provision of Rule 81(a)(2) should be rigidly applied so
that the civil rules would be applicable only to the extent that habeas
corpus practice had conformed to the practice in civil actions at the
time of the adoption of the Federal Rules of Civil Procedure on
September 16, 1938. The court said:
Although there is little direct evidence, relevant to the present
problem, of the purpose of the ''conformity'' provision of Rule
81(a)(2), the concern of the draftsmen, as a general matter, seems to
have been to provide for the continuing applicability of the ''civil''
rules in their new form to those areas of practice in habeas corpus and
other enumerated proceedings in which the ''specified'' proceedings had
theretofore utilized the modes of civil practice. Otherwise, those
proceedings were to be considered outside of the scope of the rules
without prejudice, of course, to the use of particular rules by analogy
or otherwise, where appropriate.
The court then reiterated its commitment to judicial discretion in
formulating rules and procedures for habeas corpus proceedings by
stating:
(T)he habeas corpus jurisdiction and the duty to exercise it being
present, the courts may fashion appropriate modes of procedure, by
analogy to existing rules or otherwise in conformity with judicial
usage.
Where their duties require it, this is the inescapable obligation of
the courts. Their authority is expressly confirmed in the All Writs
Act, 28 U.S.C. 1651.
Rule 6 of these proposed rules deals specifically with the issue of
discovery in habeas actions in a manner consistent with Harris. Rule 11
extends this approach to allow the court considering the petition to use
any of the rules of civil procedure (unless inconsistent with these
rules of habeas corpus) when in its discretion the court decides they
are appropriate under the circumstances of the particular case. The
court does not have to rigidly apply rules which would be inconsistent
or inequitable in the overall framework of habeas corpus. Rule 11
merely recognizes and affirms their discretionary power to use their
judgment in promoting the ends of justice.
Rule 11 permits application of the civil rules only when it would be
appropriate to do so. Illustrative of an inappropriate application is
that rejected by the Supreme Court in Pitchess v. Davis, 95 S.Ct. 1748
(1975), holding that Fed.R.Civ.P. 60(b) should not be applied in a
habeas case when it would have the effect of altering the statutory
exhaustion requirement of 28 U.S.C. 2254.
Name XXXXXXXXXXXXXXXXXXXXXXXXXX
Prison number XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
Place of confinement XXXXXXXXXXXXXXXXX
United States District Court XXXXX District of XXXXX
Case No. XXXXXXXXXXXXXXXXXXXXXXXX
(To be supplied by Clerk of U.S. District Court)
XXXXXXXXXXXXXXXXXXX, PETITIONER
(Full name)
XXXXXXXXXXXXXXXXXX, RESPONDENT
(Name of Warden, Superintendent, Jailor, or authorized person having
custody of petitioner)
THE ATTORNEY GENERAL OF THE STATE OF XXXXXXXXXXX, ADDITIONAL
RESPONDENT.
(If petitioner is attacking a judgment which imposed a sentence to be
served in the future, petitioner must fill in the name of the state
where the judgment was entered. If petitioner has a sentence to be
served in the future under a federal judgment which he wishes to attack,
he should file a motion under 28 U.S.C. 2255, in the federal court
which entered the judgment.)
(1) This petition must be legibly handwritten or typewritten, and
signed by the petitioner under penalty of perjury. Any false statement
of a material fact may serve as the basis for prosecution and conviction
for perjury. All questions must be answered concisely in the proper
space on the form.
(2) Additional pages are not permitted except with respect to the
facts which you rely upon to support your grounds for relief. No
citation of authorities need be furnished. If briefs or arguments are
submitted, they should be submitted in the form of a separate
memorandum.
(3) Upon receipt of a fee of $5 your petition will be filed if it is
in proper order.
(4) If you do not have the necessary filing fee, you may request
permission to proceed in forma pauperis, in which event you must execute
the declaration on the last page, setting forth information establishing
your inability to prepay the fees and costs or give security therefor.
If you wish to proceed in forma pauperis, you must have an authorized
officer at the penal institution complete the certificate as to the
amount of money and securities on deposit to your credit in any account
in the institution. If your prison account exceeds $XXX, you must pay
the filing fee as required by the rule of the district court.
(5) Only judgments entered by one court may be challenged in a single
petition. If you seek to challenge judgments entered by different
courts either in the same state or in different states, you must file
separate petitions as to each court.
(6) Your attention is directed to the fact that you must include all
grounds for relief and all facts supporting such grounds for relief in
the petition you file seeking relief from any judgment of conviction.
(7) When the petition is fully completed, the original and two copies
must be mailed to the Clerk of the United States District Court whose
address is XX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(8) Petitions which do not conform to these instructions will be
returned with a notation as to the deficiency.
1. Name and location of court which entered the judgment of
conviction under attackXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
2. Date of judgment of conviction XXXXXXXXXXX
3. Length of sentence XXXXXXXXXXXXXXXXX
4. Nature of offense involved (all counts) XXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. What was your plea? (Check one)
(a) Not guilty
(b) Guilty
(c) Nolo contendere
If you entered a guilty plea to one count or indictment, and a
not guilty plea to another count or indictment, give details:
XXXXXXXXXXXXXXXXXXXXXXXXXXX
6. Kind of trial: (Check one)
(a) Jury
(b) Judge only
7. Did you testify at the trial?
Yes No
8. Did you appeal from the judgment of conviction?
Yes No
9. If you did appeal, answer the following:
(a) Name of court XXXXXXXXXXXXXXXX
(b) Result XXXXXXXXXXXXXXXXXXXX
(c) Date of result XXXXXXXXXXXXXXXXX
10. Other than a direct appeal from the judgment of conviction and
sentence, have you previously filed any petitions, applications, or
motions with respect to this judgment in any court, state or federal?
Yes No
11. If your answer to 10 was ''yes,'' give the following information:
(a) (1) Name of court XXXXXXXXXXXXXX (2) Nature of
proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised
XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an
evidentiary hearing on your petition, application or motion? Yes No
(5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX
(b) As to any second petition, application or motion give the
same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of
proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised
XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an
evidentiary hearing on your petition, application or motion? Yes No
(5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX
(c) As to any third petition, application or motion, give the
same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of
proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised
XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an
evidentiary hearing on your petition, application or motion? Yes No
(5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX
(d) Did you appeal to the highest state court having
jurisdiction the result of action taken on any petition, application or
motion? (1) First petition, etc. Yes No (2) Second petition, etc.
Yes No (3) Third petition, etc. Yes No
(e) If you did not appeal from the adverse action on any
petition, application or motion, explain briefly why you did not:
XXXXXXXXXXXXXXXXXXXXXXXXXX
12. State concisely every ground on which you claim that you are
being held unlawfully. Summarize briefly the facts supporting each
ground. If necessary, you may attach pages stating additional grounds
and facts supporting same.
Caution: In order to proceed in the federal court, you must
ordinarily first exhaust your state court remedies as to each ground on
which you request action by the federal court. If you fail to set forth
all grounds in this petition, you may be barred from presenting
additional grounds at a later date.
For your information, the following is a list of the most frequently
raised grounds for relief in habeas corpus proceedings. Each statement
preceded by a letter constitutes a separate ground for possible relief.
You may raise any grounds which you may have other than those listed if
you have exhausted your state court remedies with respect to them.
However, you should raise in this petition all available grounds
(relating to this conviction) on which you base your allegations that
you are being held in custody unlawfully.
Do not check any of these listed grounds. If you select one or more
of these grounds for relief, you must allege facts. The petition will
be returned to you if you merely check (a) through (j) or any one of
these grounds.
(a) Conviction obtained by plea of guilty which was unlawfully
induced or not made voluntarily with understanding of the nature of the
charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession. (c)
Conviction obtained by use of evidence gained pursuant to an
unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to
an unlawful arrest.
(e) Conviction obtained by a violation of the privilege against
self-incrimination.
(f) Conviction obtained by the unconstitutional failure of the
prosecution to disclose to the defendant evidence favorable to the
defendant.
(g) Conviction obtained by a violation of the protection against
double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which
was unconstitutionally selected and impaneled.
(i) Denial of effective assistance of counsel. (j) Denial of
right of appeal. A. Ground one: XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX B. Ground two: XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX C. Ground three: XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX D. Ground four: XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
13. If any of the grounds listed in 12A, B, C, and D were not
previously presented in any other court, state or federal, state briefly
what grounds were not so presented, and give your reasons for not
presenting them:
XXXXXXXXXXXXXXXXXXXXXXXXXXX
14. Do you have any petition or appeal now pending in any court,
either state or federal, as to the judgment under attack?
Yes No
15. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment attacked herein:
(a) At preliminary hearing XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX (b) At arraignment and plea XXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX (c) At trial XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX (d) At sentencing XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX (e) On appeal XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX (f) In any post-conviction proceeding
XXXX
XXXXXXXXXXXXXXXXXXXXXXXX (g) On appeal from any adverse ruling
in a postconviction
proceeding XXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
16. Were you sentenced on more than one count of an indictment, or on
more than one indictment, in the same court and at the same time?
Yes No
17. Do you have any future sentence to serve after you complete the
sentence imposed by the judgment under attack?
Yes No
(a) If so, give name and location of court which imposed
sentence to be served in the future:
XXXXXXXXXXXXXXXXXXXXXXXX (b) And give date and length of
sentence to be served in the
future:
XXXXXXXXXXXXXXXXXXXXXXXX (c) Have you filed, or do you
contemplate filing, any petition
attacking the judgment which imposed the sentence to be served in the
future?
Yes No
Wherefore, petitioner prays that the Court grant petitioner relief to
which he may be entitled in this proceeding.
XXXXXXXXXXXXXXXXX
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Petitioner
XXXXXXXXXXXXXXXXXXXXXXXXXX
(Insert appropriate court)
I, XXXXXXXXXXXXXX, declare that I am the petitioner in the above
entitled case; that in support of my motion to proceed without being
required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or
to give security therefor; that I believe I am entitled to relief.
1. Are you presently employed? Yes No
a. If the answer is ''yes,'' state the amount of your salary or
wages per month, and give the name and address of your employer.
XXXXXXXXXXXXXXXXXXXXXXXXX b. If the answer is ''no,'' state
the date of last employment
and the amount of the salary and wages per month which you received.
XXXXXXXXXXXXXXXXXXXXXXXXX
2. Have you received within the past twelve months any money from any
of the following sources?
a. Business, profession or form of self-employment? Yes No
b. Rentpayments,interestordividends?Yes No c. Pensions,
annuities or life insurance payments? Yes No d. Gifts or
inheritances? Yes No e. Any other sources? Yes No
If the answer to any of the above is ''yes,'' describe each source of
money and state the amount received from each during the past twelve
months.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
3. Do you own cash, or do you have money in a checking or savings
account?
Yes No (Include any funds in prison accounts.)
If the answer is ''yes,'' state the total value of the items owned.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
4. Do you own any real estate, stocks, bonds, notes, automobiles, or
other valuable property (excluding ordinary household furnishings and
clothing)?
Yes No
If the answer is ''yes,'' describe the property and state its
approximate value.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. List the persons who are dependent upon you for support, state
your relationship to those persons, and indicate how much you contribute
toward their support.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Petitioner
I hereby certify that the petitioner herein has the sum of $XXXX on
account to his credit at the XXXX institution where he is confined. I
further certify that petitioner likewise has the following securities to
his credit according to the records of said XXXX institution:
XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX
Authorized Officer of
Institution
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
(I) Rule 9. Delayed or successive petitions.
(a) Delayed petitions. A petition may be dismissed if it appears
that the state of which the respondent is an officer has been prejudiced
in its ability to respond to the petition by delay in its filing unless
the petitioner shows that it is based on grounds of which he could not
have had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.
(b) Successive petitions. A second or successive petition may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
(II) Your petition for habeas corpus has been found to be subject to
dismissal under rule 9( ) for the following reason(s):
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(III) This form has been sent so that you may explain why your
petition contains the defect(s) noted in (II) above. It is required
that you fill out this form and send it back to the court within XXXX
days. Failure to do so will result in the automatic dismissal of your
petition.
(IV) When you have fully completed this form, the original and two
copies must be mailed to the Clerk of the United States District Court
whose address is XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(V) This response must be legibly handwritten or typewritten, and
signed by the petitioner, under penalty of perjury. Any false statement
of a material fact may serve as the basis for prosecution and conviction
for perjury. All questions must be answered concisely in the proper
space on the form.
(VI) Additional pages are not permitted except with respect to the
facts which you rely upon in item 4 or 5 in the response. Any citation
of authorities should be kept to an absolute minimum and is only
appropriate if there has been a change in the law since the judgment you
are attacking was rendered.
(VII) Respond to 4 or 5 below, not to both, unless (II) above
indicates that you must answer both sections.
1. Have you had the assistance of an attorney, other law-trained
personnel, or writ writers since the conviction your petition is
attacking was entered?
Yes No
2. If you checked ''yes'' above, specify as precisely as you can the
period(s) of time during which you received such assistance, up to and
including the present.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
3. Describe the nature of the assistance, including the names of
those who rendered it to you.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
4. If your petition is in jeopardy because of delay prejudicial to
the state under rule 9(a), explain why you feel the delay has not been
prejudicial and/or why the delay is excusable under the terms of 9(a).
This should be done by relying upon FACTS, not your opinions or
conclusions.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. If your petition is in jeopardy under rule 9(b) because it asserts
the same grounds as a previous petition, explain why you feel it
deserves a reconsideration. If its fault under rule 9(b) is that it
asserts new grounds which should have been included in a prior petition,
explain why you are raising these grounds now rather than previously.
Your explanation should rely on FACTS, not your opinions or conclusions.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Petitioner
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
28 USC 2255. Federal custody; remedies on motion attacking sentence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto. If the court finds that
the judgment was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.
A court may entertain and determine such motion without requiring the
production of the prisoner at the hearing.
The sentencing court shall not be required to entertain a second or
successive motion for similar relief on behalf of the same prisoner.
An appeal may be taken to the court of appeals from the order entered
on the motion as from a final judgment on application for a writ of
habeas corpus.
An application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the legality
of his detention.
(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, 114,
63 Stat. 105.)
This section restates, clarifies and simplifies the procedure in the
nature of the ancient writ of error coram nobis. It provides an
expeditious remedy for correcting erroneous sentences without resort to
habeas corpus. It has the approval of the Judicial Conference of the
United States. Its principal provisions are incorporated in H.R. 4233,
Seventy-ninth Congress.
This amendment conforms language of section 2255 of title 28, U.S.C.,
with that of section 1651 of such title and makes it clear that the
section is applicable in the district courts in the Territories and
possessions.
1949 -- Act May 24, 1949, substituted ''court established by Act of
Congress'' for ''court of the United States'' in first par.
Pub. L. 94-426, 1, Sept. 28, 1976, 90 Stat. 1334, provided:
''That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings for the
United States district courts, as proposed by the United States Supreme
Court, which were delayed by the Act entitled 'An Act to delay the
effective date of certain proposed amendments to the Federal Rules of
Criminal Procedure and certain other rules promulgated by the United
States Supreme Court' (Public Law 94-349), are approved with the
amendments set forth in section 2 of this Act and shall take effect as
so amended, with respect to petitions under section 2254 and motions
under section 2255 of title 28 of the United States Code filed on or
after February 1, 1977.''
Rules and forms governing proceedings under sections 2254 and 2255 of
this title proposed by Supreme Court order of Apr. 26, 1976, effective
30 days after adjournment sine die of 94th Congress, or until and to the
extent approved by Act of Congress, whichever is earlier, see section 2
of Pub. L. 94-349, set out as a note under section 2074 of this title.
28 USC RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES
DISTRICT COURTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Rule
1. Scope of rules.
2. Motion.
3. Filing motion.
4. Preliminary consideration by judge.
5. Answers; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive motions.
10. Powers of magistrates.
11. Time for appeal.
12. Federal Rules of Criminal and Civil Procedure; extent of
applicability.
Model form for motions under 28 U.S.C. 2255.
Model form for use in 28 U.S.C. 2255 cases involving a Rule 9 issue.
Amendment
Rules, and the amendments thereto by Pub. L. 94-426, Sept. 28,
1976, 90 Stat. 1334, effective with respect to petitions under section
2254 of this title and motions under section 2255 of this title filed on
or after Feb. 1, 1977, see section 1 of Pub. L. 94-426, set out as a
note above.
28 USC Rule 1. Scope of Rules
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
These rules govern the procedure in the district court on a motion
under 28 U.S.C. 2255:
(1) by a person in custody pursuant to a judgment of that court for a
determination that the judgment was imposed in violation of the
Constitution or laws of the United States, or that the court was without
jurisdiction to impose such judgment, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral
attack; and
(2) by a person in custody pursuant to a judgment of a state or other
federal court and subject to future custody under a judgment of the
district court for a determination that such future custody will be in
violation of the Constitution or laws of the United States, or that the
district court was without jurisdiction to impose such judgment, or that
the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.
The basic scope of this postconviction remedy is prescribed by 28
U.S.C. 2255. Under these rules the person seeking relief from federal
custody files a motion to vacate, set aside, or correct sentence, rather
than a petition for habeas corpus. This is consistent with the
terminology used in section 2255 and indicates the difference between
this remedy and federal habeas for a state prisoner. Also, habeas
corpus is available to the person in federal custody if his ''remedy by
motion is inadequate or ineffective to test the legality of his
detention.''
Whereas sections 2241-2254 (dealing with federal habeas corpus for
those in state custody) speak of the district court judge ''issuing the
writ'' as the operative remedy, section 2255 provides that, if the judge
finds the movant's assertions to be meritorious, he ''shall discharge
the prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.'' This is possible because a motion
under 2255 is a further step in the movant's criminal case and not a
separate civil action, as appears from the legislative history of
section 2 of S. 20, 80th Congress, the provisions of which were
incorporated by the same Congress in title 28 U.S.C. as 2255. In
reporting S. 20 favorably the Senate Judiciary Committee said (Sen.
Rep. 1526, 80th Cong. 2d Sess., p. 2):
The two main advantages of such motion remedy over the present habeas
corpus are as follows:
First, habeas corpus is a separate civil action and not a further
step in the criminal case in which petitioner is sentenced (Ex parte Tom
Tong, 108 U.S. 556, 559 (1883)). It is not a determination of guilt or
innocence of the charge upon which petitioner was sentenced. Where a
prisoner sustains his right to discharge in habeas corpus, it is usually
because some right -- such as lack of counsel -- has been denied which
reflects no determination of his guilt or innocence but affects solely
the fairness of his earlier criminal trial. Even under the broad power
in the statute ''to dispose of the party as law and justice require''
(28 U.S.C.A., sec. 461), the court or judge is by no means in the same
advantageous position in habeas corpus to do justice as would be so if
the matter were determined in the criminal proceeding (see Medley,
petitioner, 134 U.S. 160, 174 (1890)). For instance, the judge (by
habeas corpus) cannot grant a new trial in the criminal case. Since the
motion remedy is in the criminal proceeding, this section 2 affords the
opportunity and expressly gives the broad powers to set aside the
judgment and to ''discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.''
The fact that a motion under 2255 is a further step in the movant's
criminal case rather than a separate civil action has significance at
several points in these rules. See, e.g., advisory committee note to
rule 3 (re no filing fee), advisory committee note to rule 4 (re
availability of files, etc., relating to the judgment), advisory
committee note to rule 6 (re availability of discovery under criminal
procedure rules), advisory committee note to rule 11 (re no extension of
time for appeal), and advisory committee not to rule 12 (re
applicability of federal criminal rules). However, the fact that
Congress has characterized the motion as a further step in the criminal
proceedings does not mean that proceedings upon such a motion are of
necessity governed by the legal principles which are applicable at a
criminal trial regarding such matters as counsel, presence,
confrontation, self-incrimination, and burden of proof.
The challenge of decisions such as the revocation of probation or
parole are not appropriately dealt with under 28 U.S.C. 2255, which is
a continuation of the original criminal action. Other remedies, such as
habeas corpus, are available in such situations.
Although rule 1 indicates that these rules apply to a motion for a
determination that the judgment was imposed ''in violation of the . . .
laws of the United States,'' the language of 28 U.S.C. 2255, it is not
the intent of these rules to define or limit what is encompassed within
that phrase. See Davis v. United States, 417 U.S. 333 (1974), holding
that it is not true ''that every asserted error of law can be raised on
a 2255 motion,'' and that the appropriate inquiry is ''whether the
claimed error of law was a fundamental defect which inherently results
in a complete miscarriage of justice,' and whether (i)t . . . present(s)
exceptional circumstances where the need for the remedy afforded by the
writ of habeas corpus is apparent.'''
For a discussion of the ''custody'' requirement and the intended
limited scope of this remedy, see advisory committee note to 2254 rule
1.
28 USC Rule 2. Motion
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Nature of application for relief. If the person is presently in
custody pursuant to the federal judgment in question, or if not
presently in custody may be subject to such custody in the future
pursuant to such judgment, the application for relief shall be in the
form of a motion to vacate, set aside, or correct the sentence.
(b) Form of motion. The motion shall be in substantially the form
annexed to these rules, except that any district court may by local rule
require that motions filed with it shall be in a form prescribed by the
local rule. Blank motions in the prescribed form shall be made
available without charge by the clerk of the district court to
applicants upon their request. It shall specify all the grounds for
relief which are available to the movant and of which he has or, by the
exercise of reasonable diligence, should have knowledge and shall set
forth in summary form the facts supporting each of the grounds thus
specified. It shall also state the relief requested. The motion shall
be typewritten or legibly handwritten and shall be signed under penalty
of perjury by the petitioner.
(c) Motion to be directed to one judgment only. A motion shall be
limited to the assertion of a claim for relief against one judgment only
of the district court. If a movant desires to attack the validity of
other judgments of that or any other district court under which he is in
custody or may be subject to future custody, as the case may be, he
shall do so by separate motions.
(d) Return of insufficient motion. If a motion received by the clerk
of a district court does not substantially comply with the requirements
of rule 2 or rule 3, it may be returned to the movant, if a judge of the
court so directs, together with a statement of the reason for its
return. The clerk shall retain a copy of the motion.
(As amended Pub. L. 94-426, 2(3), (4), Sept. 28, 1976, 90 Stat.
1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
Under these rules the application for relief is in the form of a
motion rather than a petition (see rule 1 and advisory committee note).
Therefore, there is no requirement that the movant name a respondent.
This is consistent with 28 U.S.C. 2255. The United States Attorney for
the district in which the judgment under attack was entered is the
proper party to oppose the motion since the federal government is the
movant's adversary of record.
If the movant is attacking a federal judgment which will subject him
to future custody, he must be in present custody (see rule 1 and
advisory committee note) as the result of a state or federal
governmental action. He need not alter the nature of the motion by
trying to include the government officer who presently has official
custody of him as a psuedo-respondent, or third-party plaintiff, or
other fabrication. The court hearing his motion attacking the future
custody can exercise jurisdiction over those having him in present
custody without the use of artificial pleading devices.
There is presently a split among the courts as to whether a person
currently in state custody may use a 2255 motion to obtain relief from
a federal judgment under which he will be subjected to custody in the
future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D.
Texas 1971); affirmative, see Desmond v. The United States Board of
Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919
(1968); and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal.
1970). It is intended that these rules settle the matter in favor of the
prisoner's being able to file a 2255 motion for relief under those
circumstances. The proper district in which to file such a motion is
the one in which is situated the court which rendered the sentence under
attack.
Under rule 35, Federal Rules of Criminal Procedure, the court may
correct an illegal sentence or a sentence imposed in an illegal manner,
or may reduce the sentence. This remedy should be used, rather than a
motion under these 2255 rules, whenever applicable, but there is some
overlap between the two proceedings which has caused the courts
difficulty.
The movant should not be barred from an appropriate remedy because he
has misstyled his motion. See United States v. Morgan, 346 U.S. 502,
505 (1954). The court should construe it as whichever one is proper
under the circumstances and decide it on its merits. For a 2255 motion
construed as a rule 35 motion, see Heflin v. United States, 358 U.S.
415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968).
For writ of error coram nobis treated as a rule 35 motion, see Hawkins
v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971).
For a rule 35 motion treated as a 2255 motion, see Moss v. United
States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d
892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United
States v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S.
947 (1970).
One area of difference between 2255 and rule 35 motions is that for
the latter there is no requirement that the movant be ''in custody.''
Heflin v. United States, 358 U.S. 415, 418, 422 (1959); Duggins v.
United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare with rule 1
and advisory committee note for 2255 motions. The importance of this
distinction has decreased since Peyton v. Rowe, 391 U.S. 54 (1968), but
it might still make a difference in particular situations.
A rule 35 motion is used to attack the sentence imposed, not the
basis for the sentence. The court in Gilinsky v. United States, 335
F.2d 914, 916 (9th Cir. 1964), stated, ''a Rule 35 motion presupposes a
valid conviction. * * * (C)ollateral attack on errors allegedly
committed at trial is not permissible under Rule 35.'' By illustration
the court noted at page 917: ''a Rule 35 proceeding contemplates the
correction of a sentence of a court having jurisdiction. * * *
(J)urisdictional defects * * * involve a collateral attack, they must
ordinarily be presented under 28 U.S.C. 2255.'' In United States v.
Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule
35 and 2255 to invalidate the sentence he was serving on the grounds of
his failure to understand the charge to which he pleaded guilty. The
court said:
As regards Defendant's Motion under Rule 35, said Motion must be
denied as its presupposes a valid conviction of the offense with which
he was charged and may be used only to attack the sentence. It may not
be used to examine errors occurring prior to the imposition of sentence.
See also: Moss v. United States, 263 F.2d at 616; Duggins v.
United States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d
513, 514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894;
United States v. Coke, 404 F.2d at 847; and United States v. Brown,
413 F.2d at 879.
A major difficulty in deciding whether rule 35 or 2255 is the proper
remedy is the uncertainty as to what is meant by an ''illegal
sentence.'' The Supreme Court dealt with this issue in Hill v. United
States, 368 U.S. 424 (1962). The prisoner brought a 2255 motion to
vacate sentence on the ground that he had not been given a Fed.R.Crim.
P. 32(a) opportunity to make a statement in his own behalf at the time
of sentencing. The majority held this was not an error subject to
collateral attack under 2255. The five-member majority considered the
motion as one brought pursuant to rule 35, but denied relief, stating:
(T)he narrow function of Rule 35 is to permit correction at any time
of an illegal sentence, not to re-examine errors occurring at the trial
or other proceedings prior to the imposition of sentence. The sentence
in this case was not illegal. The punishment meted out was not in
excess of that prescribed by the relevant statutes, multiple terms were
not imposed for the same offense, nor were the terms of the sentence
itself legally or constitutionally invalid in any other respect.
The four dissenters felt the majority definition of ''illegal'' was
too narrow.
(Rule 35) provides for the correction of an ''illegal sentence''
without regard to the reasons why that sentence is illegal and contains
not a single word to support the Court's conclusion that only a sentence
illegal by reason of the punishment it imposes is ''illegal'' within the
meaning of the Rule. I would have thought that a sentence imposed in an
illegal manner -- whether the amount or form of the punishment meted out
constitutes an additional violation of law or not -- would be recognized
as an ''illegal sentence'' under any normal reading of the English
language.
The 1966 amendment of rule 35 added language permitting correction of
a sentence imposed in an ''illegal manner.'' However, there is a 120-day
time limit on a motion to do this, and the added language does not
clarify the intent of the rule or its relation to 2255.
The courts have been flexible in considering motions under
circumstances in which relief might appear to be precluded by Hill v.
United States. In Peterson v. United States, 432 F.2d 545 (8th Cir.
1970), the court was confronted with a motion for reduction of sentence
by a prisoner claiming to have received a harsher sentence than his
codefendants because he stood trial rather than plead guilty. He
alleged that this violated his constitutional right to a jury trial.
The court ruled that, even though it was past the 120-day time period
for a motion to reduce sentence, the claim was still cognizable under
rule 35 as a motion to correct an illegal sentence.
The courts have made even greater use of 2255 in these types of
situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968),
the prisoner moved under 2255 and rule 35 for relief from a sentence he
claimed was the result of the judge's misunderstanding of the relevant
sentencing law. The court held that he could not get relief under rule
35 because it was past the 120 days for correction of a sentence imposed
in an illegal manner and under Hill v. United States it was not an
illegal sentence. However, 2255 was applicable because of its
''otherwise subject to collateral attack'' language. The flaw was not a
mere trial error relating to the finding of guilt, but a rare and
unusual error which amounted to ''exceptional circumstances'' embraced
in 2255's words ''collateral attack.'' See 368 U.S. at 444 for
discussion of other cases allowing use of 2255 to attack the sentence
itself in similar circumstances, especially where the judge has
sentenced out of a misapprehension of the law.
In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the
court allowed a prisoner who was past the time limit for a proper rule
35 motion to use 2255 to attack the sentence which he received upon a
plea of guilty on the ground that it was induced by an unfulfilled
promise of the prosecutor to recommend leniency. The court specifically
noted that under 2255 this was a proper collateral attack on the
sentence and there was no need to attack the conviction as well.
The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d
Cir. 1970), allowed a prisoner to challenge his sentence under 2255
without attacking the conviction. It held rule 35 inapplicable because
the sentence was not illegal on its face, but the manner in which the
sentence was imposed raised a question of the denial of due process in
the sentencing itself which was cognizable under 2255.
The flexible approach taken by the courts in the above cases seems to
be the reasonable way to handle these situations in which rule 35 and
2255 appear to overlap. For a further discussion of this problem, see
C. Wright, Federal Practice and Procedure; Criminal 581-587 (1969,
Supp. 1975).
See the advisory committee note to rule 2 of the 2254 rules for
further discussion of the purposes and intent of rule 2 of these 2255
rules.
Subdivision (b). The amendment takes into account 28 U.S.C. 1746,
enacted after adoption of the 2255 rules. Section 1746 provides that
in lieu of an affidavit an unsworn statement may be given under penalty
of perjury in substantially the following form if executed within the
United States, its territories, possessions or commonwealths: ''I
declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). (Signature).'' The
statute is ''intended to encompass prisoner litigation,'' and the
statutory alternative is especially appropriate in such cases because a
notary might not be readily available. Carter v. Clark, 616 F.2d 228
(5th Cir. 1980). The 2255 forms have been revised accordingly.
1976 -- Subd. (b). Pub. L. 94-426, 2(3), inserted ''substantially''
after ''The motion shall be in'', and struck out requirement that the
motion follow the prescribed form.
Subd. (d). Pub. L. 94-426, 2(4), inserted ''substantially'' after
''district court does not'', and struck out provision which permitted
the clerk to return a motion for noncompliance without a judge so
directing.
28 USC Rule 3. Filing Motion
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Place of filing; copies. A motion under these rules shall be
filed in the office of the clerk of the district court. It shall be
accompanied by two conformed copies thereof.
(b) Filing and service. Upon receipt of the motion and having
ascertained that it appears on its face to comply with rules 2 and 3,
the clerk of the district court shall file the motion and enter it on
the docket in his office in the criminal action in which was entered the
judgment to which it is directed. He shall thereupon deliver or serve a
copy of the motion together with a notice of its filing on the United
States Attorney of the district in which the judgment under attack was
entered. The filing of the motion shall not require said United States
Attorney to answer the motion or otherwise move with respect to it
unless so ordered by the court.
There is no filing fee required of a movant under these rules. This
is a change from the practice of charging $15 and is done to recognize
specifically the nature of a 2255 motion as being a continuation of the
criminal case whose judgment is under attack.
The long-standing practice of requiring a $15 filing fee has followed
from 28 U.S.C. 1914(a) whereby ''parties instituting any civil action *
* * pay a filing fee of $15, except that on an application for a writ of
habeas corpus the filing fee shall be $5.'' This has been held to apply
to a proceeding under 2255 despite the rationale that such a proceeding
is a motion and thus a continuation of the criminal action. (See note
to rule 1.)
A motion under Section 2255 is a civil action and the clerk has no
choice but to charge a $15.00 filing fee unless by leave of court it is
filed in forma pauperis.
McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
Although the motion has been considered to be a new civil action in
the nature of habeas corpus for filing purposes, the reduced fee for
habeas has been held not applicable. The Tenth Circuit considered the
specific issue in Martin v. United States, 273 F.2d 775 (10th Cir.
1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee
was exclusive to habeas petitions.
Counsel for Martin insists that, if a docket fee must be paid, the
amount is $5 rather than $15 and bases his contention on the exception
contained in 28 U.S.C. 1914 that in habeas corpus the fee is $5. This
reads into 1914 language which is not there. While an application
under 2255 may afford the same relief as that previously obtainable by
habeas corpus, it is not a petition for a writ of habeas corpus. A
change in 1914 must come from Congress.
Although for most situations 2255 is intended to provide to the
federal prisoner a remedy equivalent to habeas corpus as used by state
prisoners, there is a major distinction between the two. Calling a
2255 request for relief a motion rather than a petition militates toward
charging no new filing fee, not an increased one. In the absence of
convincing evidence to the contrary, there is no reason to suppose that
Congress did not mean what it said in making a 2255 action a motion.
Therefore, as in other motions filed in a criminal action, there is no
requirement of a filing fee. It is appropriate that the present
situation of docketing a 2255 motion as a new action and charging a $15
filing fee be remedied by the rule when the whole question of 2255
motions is thoroughly thought through and organized.
Even though there is no need to have a forma pauperis affidavit to
proceed with the action since there is no requirement of a fee for
filing the motion the affidavit remains attached to the form to be
supplied potential movants. Most such movants are indigent, and this is
a convenient way of getting this into the official record so that the
judge may appoint counsel, order the government to pay witness fees,
allow docketing of an appeal, and grant any other rights to which an
indigent is entitled in the course of a 2255 motion, when appropriate
to the particular situation, without the need for an indigency petition
and adjudication at such later point in the proceeding. This should
result in a streamlining of the process to allow quicker disposition of
these motions.
For further discussion of this rule, see the advisory committee note
to rule 3 of the 2254 rules.
28 USC Rule 4. Preliminary Consideration by Judge
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Reference to judge; dismissal or order to answer. The original
motion shall be presented promptly to the judge of the district court
who presided at the movant's trial and sentenced him, or, if the judge
who imposed sentence was not the trial judge, then it shall go to the
judge who was in charge of that part of the proceedings being attacked
by the movant. If the appropriate judge is unavailable to consider the
motion, it shall be presented to another judge of the district in
accordance with the procedure of the court for the assignment of its
business.
(b) Initial consideration by judge. The motion, together with all
the files, records, transcripts, and correspondence relating to the
judgment under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the motion and
any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the movant to be
notified. Otherwise, the judge shall order the United States Attorney
to file an answer or other pleading within the period of time fixed by
the court or to take such other action as the judge deems appropriate.
Rule 4 outlines the procedure for assigning the motion to a specific
judge of the district court and the options available to the judge and
the government after the motion is properly filed.
The long-standing majority practice in assigning motions made
pursuant to 2255 has been for the trial judge to determine the merits
of the motion. In cases where the 2255 motion is directed against the
sentence, the merits have traditionally been decided by the judge who
imposed sentence. The reasoning for this was first noted in Currell v.
United States, 173 F.2d 348, 348-349 (4th Cir. 1949):
Complaint is made that the judge who tried the case passed upon the
motion. Not only was there no impropriety in this, but it is highly
desirable in such cases that the motions be passed on by the judge who
is familiar with the facts and circumstances surrounding the trial, and
is consequently not likely to be misled by false allegations as to what
occurred.
This case, and its reasoning, has been almost unanimously endorsed by
other courts dealing with the issue.
Commentators have been critical of having the motion decided by the
trial judge. See Developments in the Law -- Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1206-1208 (1970).
(T)he trial judge may have become so involved with the decision that
it will be difficult for him to review it objectively. Nothing in the
legislative history suggests that ''court'' refers to a specific judge,
and the procedural advantages of section 2255 are available whether or
not the trial judge presides at the hearing.
The theory that Congress intended the trial judge to preside at a
section 2255 hearing apparently originated in Carvell v. United States,
173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel of judges
included Chief Judge Parker of the Fourth Circuit, chairman of the
Judicial Conference committee which drafted section 2255. But the
legislative history does not indicate that Congress wanted the trial
judge to preside. Indeed the advantages of section 2255 can all be
achieved if the case is heard in the sentencing district, regardless of
which judge hears it. According to the Senate committee report the
purpose of the bill was to make the proceeding a part of the criminal
action so the court could resentence the applicant, or grant him a new
trial. (A judge presiding over a habeas corpus action does not have
these powers.) In addition, Congress did not want the cases heard in the
district of confinement because that tended to concentrate the burden on
a few districts, and made it difficult for witnesses and records to be
produced.
The Court of Appeals for the First Circuit has held that a judge
other than the trial judge should rule on the 2255 motion. See Halliday
v. United States, 380 F.2d 270 (1st Cir. 1967).
There is a procedure by which the movant can have a judge other than
the trial judge decide his motion in courts adhering to the majority
rule. He can file an affidavit alleging bias in order to disqualify the
trial judge. And there are circumstances in which the trial judge will,
on his own, disqualify himself. See, e.g., Webster v. United States,
330 F.Supp. 1080 (1972). However, there has been some questioning of
the effectiveness of this procedure. See Developments in the Law --
Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1200-1207 (1970).
Subdivision (a) adopts the majority rule and provides that the trial
judge, or sentencing judge if different and appropriate for the
particular motion, will decide the motion made pursuant to these rules,
recognizing that, under some circumstances, he may want to disqualify
himself. A movant is not without remedy if he feels this is unfair to
him. He can file an affidavit of bias. And there is the right to
appellate review if the trial judge refuses to grant his motion.
Because the trial judge is thoroughly familiar with the case, there is
obvious administrative advantage in giving him the first opportunity to
decide whether there are grounds for granting the motion.
Since the motion is part of the criminal action in which was entered
the judgment to which it is directed, the files, records, transcripts,
and correspondence relating to that judgment are automatically available
to the judge in his consideration of the motion. He no longer need
order them incorporated for that purpose.
Rule 4 has its basis in 2255 (rather than 28 U.S.C. 2243 in the
corresponding habeas corpus rule) which does not have a specific time
limitation as to when the answer must be made. Also, under 2255, the
United States Attorney for the district is the party served with the
notice and a copy of the motion and required to answer (when
appropriate). Subdivision (b) continues this practice since there is no
respondent involved in the motion (unlike habeas) and the United States
Attorney, as prosecutor in the case in question, is the most appropriate
one to defend the judgment and oppose the motion.
The judge has discretion to require an answer or other appropriate
response from the United States Attorney. See advisory committee note
to rule 4 of the 2254 rules.
28 USC Rule 5. Answer; Contents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Contents of answer. The answer shall respond to the allegations
of the motion. In addition it shall state whether the movant has used
any other available federal remedies including any prior post-conviction
motions under these rules or those existing previous to the adoption of
the present rules. The answer shall also state whether an evidentiary
hearing was accorded the movant in a federal court.
(b) Supplementing the answer. The court shall examine its files and
records to determine whether it has available copies of transcripts and
briefs whose existence the answer has indicated. If any of these items
should be absent, the government shall be ordered to supplement its
answer by filing the needed records. The court shall allow the
government an appropriate period of time in which to do so, without
unduly delaying the consideration of the motion.
Unlike the habeas corpus statutes (see 28 U.S.C. 2243, 2248) 2255
does not specifically call for a return or answer by the United States
Attorney or set any time limits as to when one must be submitted. The
general practice, however, if the motion is not summarily dismissed, is
for the government to file an answer to the motion as well as
counter-affidavits, when appropriate. Rule 4 provides for an answer to
the motion by the United States Attorney, and rule 5 indicates what its
contents should be.
There is no requirement that the movant exhaust his remedies prior to
seeking relief under 2255. However, the courts have held that such a
motion is inappropriate if the movant is simultaneously appealing the
decision.
We are of the view that there is no jurisdictional bar to the
District Court's entertaining a Section 2255 motion during the pendency
of a direct appeal but that the orderly administration of criminal law
precludes considering such a motion absent extraordinary circumstances.
1968)
Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer
may thus cut short consideration of the motion if it discloses the
taking of an appeal which was omitted from the form motion filed by the
movant.
There is nothing in 2255 which corresponds to the 2248 requirement
of a traverse to the answer. Numerous cases have held that the
government's answer and affidavits are not conclusive against the
movant, and if they raise disputed issues of fact a hearing must be
held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962);
United States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v.
United States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United
States, 349 F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United
States, 357 F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United
States, 362 F.2d 931, 932, 933 (3d Cir. 1966). None of these cases make
any mention of a traverse by the movant to the government's answer. As
under rule 5 of the 2254 rules, there is no intention here that such a
traverse be required, except under special circumstances. See advisory
committee note to rule 9.
Subdivision (b) provides for the government to supplement its answers
with appropriate copies of transcripts or briefs if for some reason the
judge does not already have them under his control. This is because the
government will in all probability have easier access to such papers
than the movant, and it will conserve the court's time to have the
government produce them rather than the movant, who would in most
instances have to apply in forma pauperis for the government to supply
them for him anyway.
For further discussion, see the advisory committee note to rule 5 of
the 2254 rules.
28 USC Rule 6. Discovery
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Leave of court required. A party may invoke the processes of
discovery available under the Federal Rules of Criminal Procedure or the
Federal Rules of Civil Procedure or elsewhere in the usages and
principles of law if, and to the extent that, the judge in the exercise
of his discretion and for good cause shown grants leave to do so, but
not otherwise. If necessary for effective utilization of discovery
procedures, counsel shall be appointed by the judge for a movant who
qualifies for appointment of counsel under 18 U.S.C. 3006A(g).
(b) Requests for discovery. Requests for discovery shall be
accompanied by a statement of the interrogatories or requests for
admission and a list of the documents, if any, sought to be produced.
(c) Expenses. If the government is granted leave to take the
deposition of the movant or any other person, the judge may as a
condition of taking it direct that the government pay the expenses of
travel and subsistence and fees of counsel for the movant to attend the
taking of the deposition.
This rule differs from the corresponding discovery rule under the
2254 rules in that it includes the processes of discovery available
under the Federal Rules of Criminal Procedure as well as the civil.
This is because of the nature of a 2255 motion as a continuing part of
the criminal proceeding (see advisory committee note to rule 1) as well
as a remedy analogous to habeas corpus by state prisoners.
See the advisory committee note to rule 6 of the 2254 rules. The
discussion there is fully applicable to discovery under these rules for
2255 motions.
28 USC Rule 7. Expansion of Record
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Direction for expansion. If the motion is not dismissed
summarily, the judge may direct that the record be expanded by the
parties by the inclusion of additional materials relevant to the
determination of the merits of the motion.
(b) Materials to be added. The expanded record may include, without
limitation, letters predating the filing of the motion in the district
court, documents, exhibits, and answers under oath, if so directed, to
written interrogatories propounded by the judge. Affidavits may be
submitted and considered as a part of the record.
(c) Submission to opposing party. In any case in which an expanded
record is directed, copies of the letters, documents, exhibits, and
affidavits proposed to be included shall be submitted to the party
against whom they are to be offered, and he shall be afforded an
opportunity to admit or deny their correctness.
(d) Authentication. The court may require the authentication of any
material under subdivision (b) or (c).
It is less likely that the court will feel the need to expand the
record in a 2255 proceeding than in a habeas corpus proceeding, because
the trial (or sentencing) judge is the one hearing the motion (see rule
4) and should already have a complete file on the case in his
possession. However, rule 7 provides a convenient method for
supplementing his file if the case warrants it.
See the advisory committee note to rule 7 of the 2254 rules for a
full discussion of reasons and procedures for expanding the record.
28 USC Rule 8. Evidentiary Hearing
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Determination by court. If the motion has not been dismissed at
a previous stage in the proceeding, the judge, after the answer is filed
and any transcripts or records of prior court actions in the matter are
in his possession, shall, upon a review of those proceedings and of the
expanded record, if any, determine whether an evidentiary hearing is
required. If it appears that an evidentiary hearing is not required,
the judge shall make such disposition of the motion as justice dictates.
(b) Function of the magistrate.
(1) When designated to do so in accordance with 28 U.S.C. 636(b), a
magistrate may conduct hearings, including evidentiary hearings, on the
motion, and submit to a judge of the court proposed findings and
recommendations for disposition.
(2) The magistrate shall file proposed findings and recommendations
with the court and a copy shall forthwith be mailed to all parties.
(3) Within ten days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court.
(4) A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations
to which objection is made. A judge of the court may accept, reject, or
modify in whole or in part any findings or recommendations made by the
magistrate.
(c) Appointment of counsel; time for hearing. If an evidentiary
hearing is required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. 3006A(g) and
the hearing shall be conducted as promptly as practicable, having regard
for the need of counsel for both parties for adequate time for
investigation and preparation. These rules do not limit the appointment
of counsel under 18 U.S.C. 3006A at any stage of the proceeding if the
interest of justice so requires.
(As amended Pub. L. 94-426, 2(6), Sept. 28, 1976, 90 Stat. 1335;
Pub. L. 94-577, 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat. 2730, 2731.)
The standards for 2255 hearings are essentially the same as for
evidentiary hearings under a habeas petition, except that the previous
federal fact-finding proceeding is in issue rather than the state's.
Also 2255 does not set specific time limits for holding the hearing, as
does 2243 for a habeas action. With these minor differences in mind,
see the advisory committee note to rule 8 of 2254 rules, which is
applicable to rule 8 of these 2255 rules.
1976 -- Subd. (b). Pub. L. 94-577, 2(a)(2), substituted provisions
which authorized magistrates, when designated to do so in accordance
with section 636(b) of this title, to conduct hearings, including
evidentiary hearings, on the petition and to submit to a judge of the
court proposed findings of fact and recommendations for disposition,
which directed the magistrate to file proposed findings and
recommendations with the court with copies furnished to all parties,
which allowed parties thus served 10 days to file written objections
thereto, and which directed a judge of the court to make de novo
determinations of the objected-to portions and to accept, reject, or
modify the findings or recommendations for provisions under which the
magistrate had been empowered only to recommend to the district judge
that an evidentiary hearing be held or that the petition be dismissed.
Subd. (c). Pub. L. 94-577, 2(b)(2), substituted ''and the hearing
shall be conducted'' for ''and shall conduct the hearing.''
Pub. L. 94-426 provided that these rules not limit the appointment of
counsel under section 3006A of title 18, if the interest of justice so
require.
Amendments made by Pub. L. 94-577 effective with respect to motions
under section 2255 of this title filed on or after Feb. 1, 1977, see
section 2(c) of Pub. L. 94-577, set out as a note under Rule 8 of the
Rules Governing Cases Under Section 2254 of this title.
28 USC Rule 9. Delayed or Successive Motions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Delayed motions. A motion for relief made pursuant to these
rules may be dismissed if it appears that the government has been
prejudiced in its ability to respond to the motion by delay in its
filing unless the movant shows that it is based on grounds of which he
could not have had knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the government occurred.
(b) Successive motions. A second or successive motion may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the movant to assert those grounds in a prior motion constituted an
abuse of the procedure governed by these rules.
(As amended Pub. L. 94-426, 2(9), (10), Sept. 28, 1976, 90 Stat.
1335.)
Unlike the statutory provisions on habeas corpus (28 U.S.C.
2241-2254), 2255 specifically provides that ''a motion for such relief
may be made at any time.'' (Emphasis added.) Subdivision (a) provides
that delayed motions may be barred from consideration if the government
has been prejudiced in its ability to respond to the motion by the delay
and the movant's failure to seek relief earlier is not excusable within
the terms of the rule. Case law, dealing with this issue, is in
conflict.
Some courts have held that the literal language of 2255 precludes
any possible time bar to a motion brought under it. In Heflin v.
United States, 358 U.S. 415 (1959), the concurring opinion noted:
The statute (28 U.S.C. 2255) further provides; ''A motion * * * may
be made at any time.'' This * * * simply means that, as in habeas
corpus, there is no statute of limitations, no res judicata, and that
the doctrine of laches is inapplicable.
McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the
district court's dismissal of a 2255 motion for being too late, the
court stating:
McKinney's present application for relief comes late in the day: he
has served some fifteen years in prison. But tardiness is irrelevant
where a constitutional issue is raised and where the prisoner is still
confined.
In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th
Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir.
1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car.
1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y.
1970).
It has also been held that delay in filing a 2255 motion does not
bar the movant because of lack of reasonable diligence in pressing the
claim.
The statute (28 U.S.C. 2255), when it states that the motion may be
made at any time, excludes the addition of a showing of diligence in
delayed filings. A number of courts have considered contentions similar
to those made here and have concluded that there are no time
limitations. This result excludes the requirement of diligence which is
in reality a time limitation.
1964)
Other courts have recognized that delay may have a negative effect on
the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970),
the court stated:
(B)oth petitioners' silence for extended periods, one for 28 months
and the other for nine years, serves to render their allegations less
believable. ''Although a delay in filing a section 2255 motion is not a
controlling element * * * it may merit some consideration * * *.''
In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961),
aff'd 296 F.2d 604 (4th Cir. 1961), the court said: ''While motions
under 28 U.S.C. 2255 may be made at any time, the lapse of time affects
the good faith and credibility of the moving party.'' For similar
conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4 (7th
Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United
States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United
States, 299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863
(1962); Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971);
and United States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960).
There have been holdings by some courts that a delay in filing a
2255 motion operates to increase the burden of proof which the movant
must meet to obtain relief. The reasons for this, as expressed in
United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable
in nature.
Obviously, the burden of proof on a motion to vacate a sentence under
28 U.S.C. 2255 is on the moving party. . . . The burden is
particularly heavy if the issue is one of fact and a long time has
elapsed since the trial of the case. While neither the statute of
limitations nor laches can bar the assertion of a constitutional right,
nevertheless, the passage of time may make it impracticable to retry a
case if the motion is granted and a new trial is ordered. No doubt, at
times such a motion is a product of an afterthought. Long delay may
raise a question of good faith.
See also United States v. Wiggins, 184 F.Supp. at 676.
A requirement that the movant display reasonable diligence in filing
a 2255 motion has been adopted by some courts dealing with delayed
motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir.
1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable
reasons.
(W)e agree with the District Court that the petitioner has too long
slept upon his rights. * * * (A)pparently there is no limitation of
time within which * * * a motion to vacate may be filed, except that an
applicant must show reasonable diligence in presenting his claim. * * *
The reasons which support the rule requiring diligence seem obvious.
* * * Law enforcement officials change, witnesses die, memories grow
dim. The prosecuting tribunal is put to a disadvantage if an unexpected
retrial should be necessary after long passage of time.
In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir.
1964), on remand, 345 F.2d 225 (1st Cir. 1965).
One of the major arguments advanced by the courts which would
penalize a movant who waits an unduly long time before filing a 2255
motion is that such delay is highly prejudicial to the prosecution. In
Desmond v. United States, writing of a 2255 motion alleging denial of
effective appeal because of deception by movant's own counsel, the court
said:
(A)pplications for relief such as this must be made promptly. It
will not do for a prisoner to wait until government witnesses have
become unavailable as by death, serious illness or absence from the
country, or until the memory of available government witnesses has
faded. It will not even do for a prisoner to wait any longer than is
reasonably necessary to prepare appropriate moving papers, however
inartistic, after discovery of the deception practiced upon him by his
attorney.
In a similar vein are United States v. Moore and United States v.
Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.
Subdivision (a) provides a flexible, equitable time limitation based
on laches to prevent movants from withholding their claims so as to
prejudice the government both in meeting the allegations of the motion
and in any possible retrial. It includes a reasonable diligence
requirement for ascertaining possible grounds for relief. If the delay
is found to be excusable, or nonprejudicial to the government, the time
bar is inoperative.
Subdivision (b) is consistent with the language of 2255 and relevant
case law.
The annexed form is intended to serve the same purpose as the
comparable one included in the 2254 rules.
For further discussion applicable to this rule, see the advisory
committee note to rule 9 of the 2254 rules.
1976 -- Subd. (a). Pub. L. 94-426, 2(9), struck out provision which
established a rebuttable presumption of prejudice to government if the
petition was filed more than five years after conviction.
Subd. (b). Pub. L. 94-426, 2(10), substituted ''constituted an abuse
of the procedure governed by these rules'' for ''is not excusable''.
28 USC Rule 10. Powers of Magistrates
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The duties imposed upon the judge of the district court by these
rules may be performed by a United States magistrate pursuant to 28
U.S.C. 636.
(As amended Pub. L. 94-426, 2(12), Sept. 28, 1976, 90 Stat. 1335;
Apr. 30, 1979, eff. Aug. 1, 1979.)
See the advisory committee note to rule 10 of the 2254 rules for a
discussion fully applicable here as well.
This amendment conforms the rule to 18 U.S.C. 636. See Advisory
Committee Note to rule 10 of the Rules Governing Section 2254 Cases in
the United States District Courts.
1976 -- Pub. L. 94-426 inserted '', and to the extent the district
court has established standards and criteria for the performance of such
duties,'' after ''rule of the district court''.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 11. Time for Appeal
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The time for appeal from an order entered on a motion for relief made
pursuant to these rules is as provided in Rule 4(a) of the Federal Rules
of Appellate Procedure. Nothing in these rules shall be construed as
extending the time to appeal from the original judgment of conviction in
the district court.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
Rule 11 is intended to make clear that, although a 2255 action is a
continuation of the criminal case, the bringing of a 2255 action does
not extend the time.
Prior to the promulgation of the Rules Governing Section 2255
Proceedings, the courts consistently held that the time for appeal in a
section 2255 case is as provided in Fed.R.App.P. 4(a), that is, 60 days
when the government is a party, rather than as provided in appellate
rule 4(b), which says that the time is 10 days in criminal cases. This
result has often been explained on the ground that rule 4(a) has to do
with civil cases and that ''proceedings under section 2255 are civil in
nature.'' E.g., Rothman v. United States, 508 F.2d 648 (3d Cir. 1975).
Because the new section 2255 rules are based upon the premise ''that a
motion under 2255 is a further step in the movant's criminal case
rather than a separate civil action,'' see Advisory Committee Note to
rule 1, the question has arisen whether the new rules have the effect of
shortening the time for appeal to that provided in appellate rule 4(b).
A sentence has been added to rule 11 in order to make it clear that this
is not the case.
Even though section 2255 proceedings are a further step in the
criminal case, the added sentence correctly states current law. In
United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court noted
that such appeals ''are governed by the civil rules applicable to
appeals from final judgments in habeas corpus actions.'' In support, the
Court cited Mercado v. United States, 183 F.2d 486 (1st Cir. 1950), a
case rejecting the argument that because 2255 proceedings are criminal
in nature the time for appeal is only 10 days. The Mercado court
concluded that the situation was governed by that part of 28 U.S.C.
2255 which reads: ''An appeal may be taken to the court of appeals from
the order entered on the motion as from a final judgment on application
for a writ of habeas corpus.'' Thus, because appellate rule 4(a) is
applicable in habeas cases, it likewise governs in 2255 cases even
though they are criminal in nature.
28 USC Rule 12. Federal Rules of Criminal and Civil Procedure; Extent
of Applicability
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
If no procedure is specifically prescribed by these rules, the
district court may proceed in any lawful manner not inconsistent with
these rules, or any applicable statute, and may apply the Federal Rules
of Criminal Procedure or the Federal Rules of Civil Procedure, whichever
it deems most appropriate, to motions filed under these rules.
This rule differs from rule 11 of the 2254 rules in that it includes
the Federal Rules of Criminal Procedure as well as the civil. This is
because of the nature of a 2255 motion as a continuing part of the
criminal proceeding (see advisory committee note to rule 1) as well as a
remedy analogous to habeas corpus by state prisoners.
Since 2255 has been considered analogous to habeas as respects the
restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United States,
198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed. For discussion,
see the advisory committee note to rule 11 of the 2254 rules.
The Federal Rules of Criminal Procedure, referred to in text, are
classified generally to the Appendix to Title 18, Crimes and Criminal
Procedure.
The Federal Rules of Civil Procedure, referred to in text, are
classified generally to the Appendix to this title.
Name XXXXXXXXXXXXXXXXXXXXXXXXXX
Prison Number XXXXXXXXXXXXXXXXXXXXX
Place of Confinement XXXXXXXXXXXXXXXXX
United States District Court XXX District of XXXX
Case No. XXXX (to be supplied by Clerk of U.S. District Court)
United States,
XXXXXXXXXXXXXXXXXXXXXXXXXX
(If movant has a sentence to be served in the future under a federal
judgment which he wishes to attack, he should file a motion in the
federal court which entered the judgment.)
(1) This motion must be legibly handwritten or typewritten, and
signed by the movant under penalty of perjury. Any false statement of a
material fact may serve as the basis for prosecution and conviction for
perjury. All questions must be answered concisely in the proper space
on the form.
(2) Additional pages are not permitted except with respect to the
facts which you rely upon to support your grounds for relief. No
citation of authorities need be furnished. If briefs or arguments are
submitted, they should be submitted in the form of a separate
memorandum.
(3) Upon receipt, your motion will be filed if it is in proper order.
No fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel,
appeal, and other costs connected with a motion of this type, you may
request permission to proceed in forma pauperis, in which event you must
execute the declaration on the last page, setting forth information
establishing your inability to pay the costs. If you wish to proceed in
forma pauperis, you must have an authorized officer at the penal
institution complete the certificate as to the amount of money and
securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single
motion. If you seek to challenge judgments entered by different judges
or divisions either in the same district or in different districts, you
must file separate motions as to each such judgment.
(6) Your attention is directed to the fact that you must include all
grounds for relief and all facts supporting such grounds for relief in
the motion you file seeking relief from any judgment of conviction.
(7) When the motion is fully completed, the original and two copies
must be mailed to the Clerk of the United States District Court whose
address isXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(8) Motions which do not conform to these instructions will be
returned with a notation as to the deficiency.
1. Name and location of court which entered the judgment of
conviction under attack XXXXXXX
2. Date of judgment of conviction XXXXXXXXXX 3. Length of sentence
XXXXXXXXXXXXXXXXX 4. Nature of offense involved (all counts)
XXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. What was your plea? (Check one) (a) Not guilty (b) Guilty
(c) Nolo contendere If you entered a guilty plea to one count or
indictment, and a
not guilty plea to another count or indictment, give details:
XXXXXXXXXXXXXXXXXXXXXXXXXXX
6. Kind of trial: (Check one) (a) Jury
(b) Judge only
7. Did you testify at the trial?
Yes No
8. Did you appeal from the judgment of conviction?
Yes No
9. If you did appeal, answer the following:
(a) Name of court XXXXXXXXXXXXXXXX
(b) Result XXXXXXXXXXXXXXXXXXXX
(c) Date of result XXXXXXXXXXXXXXXXX
10. Other than a direct appeal from the judgment of conviction and
sentence, have you previously filed any petitions, applications or
motions with respect to this judgment in any federal court?
Yes No
11. If your answer to 10 was ''yes,'' give the following information:
(a) (1) Name of court XXXXXXXXXXXXXX (2) Nature of
proceeding XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary
hearing on
your petition, application or motion?
Yes No (5) Result XXXXXXXXXXXXXXXXXX (6) Date of
result XXXXXXXXXXXXXX
(b) As to any second petition, application or
motion give the same information: (1) Name of court
XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX
evidentiary hearing on your petition, application or motion? Yes No
(5) Result XXXXXXXXXXXXXXXXXX (6) Date of result XXXXXXXXXXXXXX
(c) As to any third petition, application or
motion, give the same information: (1) Name of court
XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX (3) Grounds raised
XXXXXXXXXXXXXX
evidentiary hearing on
your petition, application or motion?
Yes No
(d) Did you appeal, to an appellate federal court having
jurisdiction, the result of action taken on any petition, application or
motion? (1) First petition, etc. Yes No (2) Second petition, etc.
Yes No (3) Third petition, etc. Yes No
(e) If you did not appeal from the adverse action on any petition,
application or motion, explain briefly why you did not:
XXXXXXXXXXXXXXXXXXXXXXXX
12. State concisely every ground on which you claim that you are
being held unlawfully. Summarize briefly the facts supporting each
ground. If necessary, you may attach pages stating additional grounds
and facts supporting same.
Caution: If you fail to set forth all grounds in this motion, you
may be barred from presenting additional grounds at a later date.
For your information, the following is a list of the most frequently
raised grounds for relief in these proceedings. Each statement preceded
by a letter constitutes a separate ground for possible relief. You may
raise any grounds which you have other than those listed. However, you
should raise in this motion all available grounds (relating to this
conviction) on which you based your allegations that you are being held
in custody unlawfully.
Do not check any of these listed grounds. If you select one or more
of these grounds for relief, you must allege facts. The motion will be
returned to you if you merely check (a) through (j) or any one of the
grounds.
(a) Conviction obtained by plea of guilty which was unlawfully
induced or not made voluntarily or with understanding of the nature of
the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession. (c)
Conviction obtained by use of evidence gained pursuant to an
unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to
an unlawful arrest.
(e) Conviction obtained by a violation of the privilege against
self-incrimination.
(f) Conviction obtained by the unconstitutional failure of the
prosecution to disclose to the defendant evidence favorable to the
defendant.
(g) Conviction obtained by a violation of the protection against
double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which
was unconstitutionally selected and impanelled.
(i) Denial of effective assistance of counsel. (j) Denial of
right of appeal.
A. Ground one: XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
B. Ground two: XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
C. Ground three: XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
D. Ground four: XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story
briefly without citing cases or
law): XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
13. If any of the grounds listed in 12A, B, C, and D were not
previously presented, state briefly what grounds were not so presented,
and give your reasons for not presenting them:
XXXXXXXXXXXXXXXXXXXXXXXXXXX
14. Do you have any petition or appeal now pending in any court as to
the judgment under attack?
Yes No
15. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment attacked herein:
(a) At preliminary hearing XXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(b) At arraignment and plea XXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(c) At trial XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(d) At sentencing XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(e) On appeal XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(f) In any post-conviction proceeding XXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
(g) On appeal from any adverse ruling in a post-
conviction proceeding XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
16. Were you sentenced on more than one count of an indictment, or on
more than one indictment, in the same court and at approximately the
same time?
Yes No
17. Do you have any future sentence to serve after you complete the
sentence imposed by the judgment under attack?
Yes No
(a) If so, give name and location of court which imposed
sentence to be served in the future:
XXXXXXXXXXXXXXXXXXXXXXX (b) And give date and length of
sentence to be served in the
future:
XXXXXXXXXXXXXXXXXXXXXXX (c) Have you filed, or do you
contemplate filing, any petition
attacking the judgment which imposed the sentence to be served in the
future? Yes No
Wherefore, movant prays that the Court grant him all relief to which
he may be entitled in this proceeding.
XXXXXXXXXXXXXX
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Movant
XXXXXXXXXXXXXXXXXXXXXXXXXX
I, XXXXXXXXXXXXXX, declare that I am the movant in the above entitled
case; that in support of my motion to proceed without being required to
prepay fees, costs or give security therefor, I state that because of my
poverty, I am unable to pay the costs of said proceeding or to give
security therefor; that I believe I am entitled to relief.
1. Are you presently employed? Yes No
a. If the answer is ''yes,'' state the amount of your salary or
wages per month, and give the name and address of your employer.
XXXXXXXXXXXXXXXXXXXXXXXXX b. If the answer is ''no,'' state the
date of last employment
and the amount of the salary and wages per month which you received.
XXXXXXXXXXXXXXXXXXXXXXXXX
2. Have you received within the past twelve months any money from any
of the following sources?
a. Business, profession or form of self-employment? Yes No b.
Rent payments, interest or dividends?
Yes No c. Pensions, annuities or life insurance payments?
Yes No d. Gifts or inheritances? Yes No e. Any other
sources? Yes No
If the answer to any of the above is ''yes,'' describe each source of
money and state the amount received from each during the past twelve
months.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
3. Do you own any cash, or do you have money in a checking or savings
account?
Yes No (Include any funds in prison accounts)
If the answer is ''yes,'' state the total value of the items owned.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
4. Do you own real estate, stocks, bonds, notes, automobiles, or
other valuable property (excluding ordinary household furnishings and
clothing)?
Yes No
If the answer is ''yes,'' describe the property and state its
approximate value.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. List the persons who are dependent upon you for support, state
your relationship to those persons, and indicate how much you contribute
toward their support.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Movant
I hereby certify that the movant herein has the sum of $XXXX on
account to his credit at the XXXX institution where he is confined.
I further certify that movant likewise has the following securities
to his credit according to the records of said XXXX institution:
XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX
Authorized Officer of
Institution
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
(I) Rule 9. Delayed or Successive Motions.
(a) Delayed motions. A motion for relief made pursuant to these
rules may be dismissed if it appears that the government has been
prejudiced in its ability to respond to the motion by delay in its
filing unless the movant shows that it is based on grounds of which he
could not have had knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the government occurred.
(b) Successive motions. A second or successive motion may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the movant to assert those grounds in a prior motion constituted an
abuse of the procedure governed by these rules.
(II) Your motion to vacate, set aside, or correct sentence has been
found to be subject to dismissal under rule 9( ) for the following
reason(s):
XXXXXXXXXXXXXXXXXXXXXXXXX
(III) This form has been sent so that you may explain why your motion
contains the defect(s) noted in (II) above. It is required that you
fill out this form and send it back to the court within XXXX days.
Failure to do so will result in the automatic dismissal of your motion.
(IV) When you have fully completed this form, the original and two
copies must be mailed to the Clerk of the United States District Court
whose address is XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX
(V) This response must be legibly handwritten or typewritten, and
signed by the movant under penalty of perjury. Any false statement of a
material fact may serve as the basis for prosecution and conviction for
perjury. All questions must be answered concisely in the proper space
on the form.
(VI) Additional pages are not permitted except with respect to the
facts which you rely upon in item 4 or 5 in the response. Any citation
of authorities should be kept to an absolute minimum and is only
appropriate if there has been a change in the law since the judgment you
are attacking was rendered.
(VII) Respond to 4 or 5, not to both, unless (II) above indicates
that you must answer both sections.
1. Have you had the assistance of an attorney, other law-trained
personnel, or writ writers since the conviction your motion is attacking
was entered?
Yes No
2. If you checked ''Yes'' above, specify as precisely as you can the
period(s) of time during which you received such assistance, up to and
including the present.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
3. Describe the nature of the assistance, including the names of
those who rendered it to you.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
4. If your motion is in jeopardy because of delay prejudicial to the
government under rule 9(a), explain why you feel the delay has not been
prejudicial and/or why the delay is excusable under the terms of 9(a).
This should be done by relying upon FACTS, not your opinions or
conclusions.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
5. If your motion is in jeopardy under rule 9(b) because it asserts
the same grounds as a previous motion, explain why you feel it deserves
a reconsideration. If its fault under rule 9(b) is that it asserts new
grounds which should have been included in a prior motion, explain why
you are raising these grounds now rather than previously. Your
explanation should rely on FACTS, not your opinions or conclusions.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on XXXXX.
(date)
XXXXXXXXXXXXXX
Signature of Movant
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
28 USC ( 2256. Omitted)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 95-598, title II, 250(a), Nov. 6, 1978, 92
Stat. 2672, did not become effective pursuant to section 402(b) of Pub.
L. 95-598, as amended, set out as an Effective Date note preceding
section 101 of Title 11, Bankruptcy. Section read as follows:
2256. Habeas corpus from bankruptcy courts
A bankruptcy court may issue a writ of habeas corpus --
(1) when appropriate to bring a person before the court --
(A) for examination;
(B) to testify; or
(C) to perform a duty imposed on such person under this title; or
(2) ordering the release of a debtor in a case under title 11 in
custody under the judgment of a Federal or State court if --
(A) such debtor was arrested or imprisoned on process in any civil
action;
(B) such process was issued for the collection of a debt --
(i) dischargeable under title 11; or
(ii) that is or will be provided for in a plan under chapter 11 or 13
of title 11; and
(C) before the issuance of such writ, notice and a hearing have been
afforded the adverse party of such debtor in custody to contest the
issuance of such writ.
A prior section 2256, added Pub. L. 95-144, 3, Oct. 28, 1977, 91
Stat. 1220, which related to jurisdiction of proceedings relating to
transferred offenders, was transferred to section 3244 of Title 18,
Crimes and Criminal Procedure, by Pub. L. 95-598, title III, 314(j),
Nov. 6, 1978, 92 Stat. 2677.
28 USC CHAPTER 155 -- INJUNCTIONS; THREE-JUDGE COURTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
(2281. Repealed.)
(2282. Repealed.)
2283. Stay of State court proceedings.
2284. Three-judge district court; when required; composition;
procedure. /1/
1976 -- Pub. L. 94-381, 4, Aug. 12, 1976, 90 Stat. 1119, struck
out item 2281 ''Injunction against enforcement of State statute;
three-judge court required'', item 2282 ''Injunction against enforcement
of Federal statute; three-judge court required'', and inserted ''when
required'' after ''district court'' in item 2284.
/1/ So in original. Does not conform to section catchline.
28 USC ( 2281, 2282. Repealed. Pub. L. 94-381, 1, 2, Aug. 12, 1976,
90 Stat. 1119)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section 2281, act June 25, 1948, ch. 646, 62 Stat. 968, provided
that an interlocutory or permanent injunction restraining the
enforcement, operation or execution of a State statute on grounds of
unconstitutionality should not be granted unless the application has
been heard and determined by a three-judge district court.
Section 2282, act June 25, 1948, ch. 646, 62 Stat. 968, provided
that an interlocutory or permanent injunction restraining the
enforcement, operation or execution of any Act of Congress on grounds of
unconstitutionality should not be granted unless the application
therefor has been heard and determined by a three-judge district court.
Repeal not applicable to any action commenced on or before Aug. 12,
1976, see section 7 of Pub. L. 94-381 set out as an Effective Date of
1976 Amendment note under section 2284 of this title.
28 USC 2283. Stay of State court proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect
or effectuate its judgments.
(June 25, 1948, ch. 646, 62 Stat. 968.)
Based on title 28, U.S.C., 1940 ed., 379 (Mar. 3, 1911, ch. 231,
265, 36 Stat. 1162).
An exception as to acts of Congress relating to bankruptcy was
omitted and the general exception substituted to cover all exceptions.
The phrase ''in aid of its jurisdiction'' was added to conform to
section 1651 of this title and to make clear the recognized power of the
Federal courts to stay proceedings in State cases removed to the
district courts.
The exceptions specifically include the words ''to protect or
''effectuate its judgments,'' for lack of which the Supreme Court held
that the Federal courts are without power to enjoin relitigation of
cases and controversies fully adjudicated by such courts. (See Toucey
v. New York Life Insurance Co., 62 S.Ct. 139, 314 U.S. 118, 86 L.Ed.
100. A vigorous dissenting opinion (62 S.Ct. 148) notes that at the time
of the 1911 revision of the Judicial Code, the power of the courts, of
the United States to protect their judgments was unquestioned and that
the revisers of that code noted no change and Congress intended no
change).
Therefore the revised section restores the basic law as generally
understood and interpreted prior to the Toucey decision.
Changes were made in phraseology.
28 USC 2284. Three-judge court; when required; composition;
procedure
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A district court of three judges shall be convened when otherwise
required by Act of Congress, or when an action is filed challenging the
constitutionality of the apportionment of congressional districts or the
apportionment of any statewide legislative body.
(b) In any action required to be heard and determined by a district
court of three judges under subsection (a) of this section, the
composition and procedure of the court shall be as follows:
(1) Upon the filing of a request for three judges, the judge to whom
the request is presented shall, unless he determines that three judges
are not required, immediately notify the chief judge of the circuit, who
shall designate two other judges, at least one of whom shall be a
circuit judge. The judges so designated, and the judge to whom the
request was presented, shall serve as members of the court to hear and
determine the action or proceeding.
(2) If the action is against a State, or officer or agency thereof,
at least five days' notice of hearing of the action shall be given by
registered or certified mail to the Governor and attorney general of the
State.
(3) A single judge may conduct all proceedings except the trial, and
enter all orders permitted by the rules of civil procedure except as
provided in this subsection. He may grant a temporary restraining order
on a specific finding, based on evidence submitted, that specified
irreparable damage will result if the order is not granted, which order,
unless previously revoked by the district judge, shall remain in force
only until the hearing and determination by the district court of three
judges of an application for a preliminary injunction. A single judge
shall not appoint a master, or order a reference, or hear and determine
any application for a preliminary or permanent injunction or motion to
vacate such an injunction, or enter judgment on the merits. Any action
of a single judge may be reviewed by the full court at any time before
final judgment.
(June 25, 1948, ch. 646, 62 Stat. 968; June 11, 1960, Pub. L.
86-507, 1(19), 74 Stat. 201; Aug. 12, 1976, Pub. L. 94-381, 3, 90
Stat. 1119; Nov. 8, 1984, Pub. L. 98-620, title IV, 402(29)(E), 98
Stat. 3359.)
Based on title 28, U.S.C., 1940 ed., 47, 47a, 380, 380a, and 792
(Mar. 3, 1911, ch. 231, 210, 266, 36 Stat. 1150, 1162; Mar. 4, 1943,
ch. 160, 37 Stat. 1013; Oct. 22, 1913, ch. 32, 38 Stat. 220; Feb. 13,
1925, ch. 229, 1, 43 Stat. 938; Aug. 24, 1937, ch. 754, 3, 50 Stat.
752; Apr. 6, 1942, ch. 210, 3, 56 Stat. 199).
Provisions of sections 47, 47a, 380, and 380a of title 28, U.S.C.,
1940 ed., relating to the Supreme Court's jurisdiction of direct appeals
appear in section 1253 of this title.
Provisions of sections 47, 380, and 380a of title 28, U.S.C., 1940
ed., requiring applications for injunctions restraining the enforcement,
operation or execution of Federal or State statutes or orders of the
Interstate Commerce Commission to be heard and determined by three-judge
district courts appear in sections 2281, 2282, and 2325 of this title.
The provision for notice to the United States attorney for the
district where the action is pending was added because of the necessity
of the United States attorney's preparation for hearing as soon as
possible, to expedite such a case.
Provisions of sections 47, 47a, 380, and 380a of title 28, U.S.C.,
1940 ed., respecting time for direct appeal appear in section 2101 of
this title.
This revised section represents an effort to provide a uniform method
of convoking three-judge district courts, and for procedure therein. It
follows recommendations of a committee appointed by the Judicial
Conference of the United States, composed of Circuit Judges Evan A.
Evans, Kimbrough Stone, Orie L. Phillips, and Albert B. Maris.
The committee pointed out that section 380a of title 28, U.S.C., 1940
ed., is the latest and ''most carefully drawn expression by Congress on
the subject.'' Consequently, this section follows closely such section
380a and eliminates the discrepancies between sections 47, 47a, 380, and
380a of such title.
This section governs only the composition and procedure of
three-judge district courts. The requirement that applications for
injunctions be heard and determined by such courts will appear in other
sections of this and other titles of the United States Code as Congress
may enact from time to time. For example, see sections 2281, 2282, and
2325 of this title, sections 1213, 1215, 1255 of title 11, U.S.C., 1940
ed., Bankruptcy, section 28 of title 15, U.S.C., 1940 ed., Commerce and
Trade, and section 44 of title 49, U.S.C., 1940 ed., Transportation.
United States District Judge W. Calvin Chestnut, has referred to the
provisions relating to enforcement or setting aside or orders of the
Interstate Commerce Commission as unfortunately lengthy and prolix. He
has urged revision to insure uniform procedure in the several classes of
so-called three-judge cases.
The provision that such notice shall be given by the clerk by
registered mail, and shall be complete on the mailing thereof follows,
substantially, rules 4(d)(4) and 5(b) of the Federal Rules of Civil
Procedure.
Changes were made in phraseology.
The rules of civil procedure, referred to in subsec. (b)(3), are set
out in the Appendix to this title.
1984 -- Subsec. (b)(2). Pub. L. 98-620 struck out provision that the
hearing had to be given precedence and held at the earliest practicable
day.
1976 -- Pub. L. 94-381 substituted ''Three-judge court; when
required'' for ''Three-judge district court'' in section catchline, and
generally revised section to alter the method by which three-judge
courts are composed, the procedure used by such courts, and to conform
its requirements to the repeal of sections 2281 and 2282 of this title.
1960 -- Pub. L. 86-507 substituted ''by registered mail or by
certified mail by the clerk and'' for ''by registered mail by the clerk,
and''.
Amendment 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.
Section 7 of Pub. L. 94-381 provided that: ''This Act (amending
this section and section 2403 of this title and repealing sections 2281
and 2282 of this title) shall not apply to any action commenced on or
before the date of enactment (Aug. 12, 1976).''
title 42 sections 1973b, 1973c,
1973h, 1973aa-2,
1973bb.
28 USC CHAPTER 157 -- INTERSTATE COMMERCE COMMISSION ORDERS;
ENFORCEMENT AND REVIEW
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2321. Judicial review of Commission's orders and decisions;
procedure generally; process.
2322. United States as party
2323. Duties of Attorney General; intervenors.
(2324, 2325. Repealed.)
1975 -- Pub. L. 93-584, 8, Jan. 2, 1975, 88 Stat. 1918,
substituted ''Judicial Review of Commission's orders and decisions;
procedure generally; process'' for ''Procedure generally; process'' in
item 2321 and struck out item 2324 ''Stay of Commission's order'' and
item 2325 ''Injunction; three-judge court required''.
Review of orders of Federal agencies, see section 701 et seq. of
Title 5, Government Organization and Employees.
28 USC 2321. Judicial review of Commission's orders and decisions;
procedure generally; process
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except as otherwise provided by an Act of Congress, a proceeding
to enjoin or suspend, in whole or in part, a rule, regulation, or order
of the Interstate Commerce Commission shall be brought in the court of
appeals as provided by and in the manner prescribed in chapter 158 of
this title.
(b) The procedure in the district courts in actions to enforce, in
whole or in part, any order of the Interstate Commerce Commission other
than for payment of money or the collection of fines, penalties, and
forfeitures, shall be as provided in this chapter.
(c) The orders, writs, and process of the district courts may, in the
cases specified in subsection (b) and in enforcement actions and actions
to collect civil penalties under subtitle IV of title 49, run, be served
and be returnable anywhere in the United States.
(June 25, 1948, ch. 646, 62 Stat. 969; May 24, 1949, ch. 139, 115,
63 Stat. 105; Jan. 2, 1975, Pub. L. 93-584, 5, 88 Stat. 1917; Oct.
17, 1978, Pub. L. 95-473, 2(a)(3)(B), 92 Stat. 1465.)
Based on title 28, U.S.C., 1940 ed., 44 (Oct. 22, 1913, ch. 32, 38
Stat. 220.)
Word ''actions'' was substituted for ''cases,'' in view of rule 2 of
the Federal Rules of Civil Procedure.
The exception as to procedure in the infliction of criminal
punishment was omitted as unnecessary, as Title 18, U.S.C., Crimes and
Criminal Procedure, and the Federal Rules of Criminal Procedure govern
procedure in criminal matters.
Changes were made in phraseology.
This section corrects, in section 2321 of title 28, U.S.C., the
reference to certain sections in title 49, U.S.C. The provisions which
were formerly set out as section 49 of such title 49, are now set out as
section 23 of such title.
1978 -- Subsec. (c). Pub. L. 95-473 substituted ''enforcement
actions and actions to collect civil penalties under subtitle IV of
title 49'' for ''actions under section 20 of the Act of February 4,
1887, as amended (24 Stat. 386; 49 U.S.C. 20), section 23 of the Act of
May 16, 1942, as amended (56 Stat. 301; 49 U.S.C. 23), and section 3 of
the Act of February 19, 1903, as amended (32 Stat. 848; 49 U.S.C.
43)''.
1975 -- Subsec. (a). Pub. L. 93-584 designated existing provisions
as subsecs. (b) and (c) and added subsec. (a).
Subsec. (b). Pub. L. 93-584 designated existing first par. as
subsec. (b) and substituted ''in whole or in part, any order of the
Interstate Commerce Commission other than for'', for ''suspend, enjoin,
annual or set aside in whole or in part any order of the Interstate
Commerce Commission other than for the''.
Subsec. (c). Pub. L. 93-584 designated existing second par. as
subsec. (c), substituted reference to subsec. (b) of this section for
reference to this section, and inserted references to the dates of
enactment, statute citations and code references of sections 20, 23 and
43 of Title 49.
1949 -- Act May 24, 1949, substituted ''20, 23, and 43'' for ''20,
43, and 49'' in second par.
Section 10 of Pub. L. 93-584 provided that: ''This Act (amending
this section, sections 1336, 1398, 2323, 2341, and 2342 of this title,
and section 305 of former Title 49, Transportation, and repealing
sections 2324 and 2325 of this title) shall not apply to any action
commenced on or before the last day of the first month beginning after
the date of enactment (Jan. 2, 1975). However, actions to enjoin or
suspend orders of the Interstate Commerce Commission which are pending
when this Act becomes effective shall not be affected thereby, but shall
proceed to final disposition under the law existing on the date they
were commenced.''
28 USC 2322. United States as party
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
All actions specified in section 2321 of this title shall be brought
by or against the United States.
(June 25, 1948, ch. 646, 62 Stat. 969.)
Based on title 28, U.S.C., 1940 ed., 48 (Mar. 3, 1911, ch. 231,
211, 36 Stat. 1150; Oct. 22, 1913, ch. 32, 38 Stat. 219).
Word ''actions'' was substituted for ''cases and proceedings'', in
view of Rule 2 of the Federal Rules of Civil Procedure.
A provision authorizing intervention by the United States was
omitted. The United States, under the provisions of this section, is a
necessary and indispensable original party, and hence intervention is
unnecessary. (See Lambert Run Coal Co. v. Baltimore & O. R. Co., 1922,
42 S.Ct. 349, 258 U.S. 377, 66 L.Ed. 671.)
28 USC 2323. Duties of Attorney General; intervenors
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Attorney General shall represent the Government in the actions
specified in section 2321 of this title and in enforcement actions and
actions to collect civil penalties under subtitle IV of title 49.
The Interstate Commerce Commission and any party or parties in
interest to the proceeding before the Commission, in which an order or
requirement is made, may appear as parties of their own motion and as of
right, and be represented by their counsel, in any action involving the
validity of such order or requirement or any part thereof, and the
interest of such party.
Communities, associations, corporations, firms, and individuals
interested in the controversy or question before the Commission, or in
any action commenced under the aforesaid sections may intervene in said
action at any time after commencement thereof.
The Attorney General shall not dispose of or discontinue said action
or proceeding over the objection of such party or intervenor, who may
prosecute, defend, or continue said action or proceeding unaffected by
the action or nonaction of the Attorney General therein.
(June 25, 1948, ch. 646, 62 Stat. 970; May 24, 1949, ch. 139, 116,
63 Stat. 105; Jan. 2, 1975, Pub. L. 93-584, 6, 88 Stat. 1917; Oct.
17, 1978, Pub. L. 95-473, 2(a)(3)(C), 92 Stat. 1465.)
Based on title 28, U.S.C., 1940 ed., 45a (Mar. 3, 1911, ch. 231,
212, 213, 36 Stat. 1150, 1151; Oct. 22, 1913, ch. 32, 38 Stat. 220).
The provision in the second sentence of section 45a of title 28,
U.S.C., 1940 ed., authorizing the Attorney General to employ and
compensate special attorneys was omitted as covered by sections 503 and
508 (now 543 and 548) of this title. The provision in the same sentence
authorizing the court to make rules for the conduct and procedure of
actions under this section were omitted as covered by the Federal Rules
of Civil Procedure and section 2071 of this title relating to authority
of district courts to promulgate local rules of procedure.
The last paragraph of section 45a of title 28, U.S.C., 1940 ed., was
omitted as merely repetitive of the language immediately following the
first proviso.
Word ''action'' was substituted for ''suit'' in conformity with Rule
2 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
This section corrects, in section 2323 of title 28, U.S.C., the
reference to certain sections in title 49, U.S.C. The provisions which
were formerly set out as section 49 of such title 49 are now set out as
section 23 of such title.
1978 -- Pub. L. 95-473 substituted ''enforcement actions and actions
to collect civil penalties under subtitle IV of title 49'' for ''actions
under section 20 of the Act of February 4, 1887, as amended (24 Stat.
386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended
(56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19,
1903, as amended (32 Stat. 848; 49 U.S.C. 43)'' in first par.
1975 -- Pub. L. 93-584 struck out reference to the district courts
and the Supreme Court of the United States upon appeal from the district
courts as the courts in which the Attorney General can represent the
United States in first par.
1949 -- Act May 24, 1949, substituted ''20, 23, and 43'' for ''20,
43, and 49'' in first par.
Amendment by Pub. L. 93-584 not applicable to actions commenced on
or before last day of first month beginning after Jan. 2, 1975, and
actions to enjoin or suspend orders of Interstate Commerce Commission
which are pending when this amendment becomes effective shall not be
affected thereby, but shall proceed to final disposition under the law
existing on the date they were commenced, see section 10 of Pub. L.
93-584, set out as a note under section 2321 of this title.
28 USC ( 2324, 2325. Repealed. Pub. L. 93-584, 7, Jan. 2, 1975, 88
Stat. 1918)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section 2324, act June 25, 1948, ch. 646, 62 Stat. 970, related to
power of court to restrain or suspend operation of orders of Interstate
Commerce Commission pending final hearing and determination of action.
Section 2325, act June 25, 1948, ch. 646, 62 Stat. 970, related to
requirement of a three judge district court to hear and determine
interlocutory or permanent injunctions restraining enforcement,
operation or execution of orders of Interstate Commerce Commission.
Repeal applicable to actions commenced on or before last day of first
month beginning after Jan. 2, 1975, and actions to enjoin or suspend
orders of Interstate Commerce Commission which are pending when this
repeal becomes effective shall not be affected thereby, but shall
proceed to final disposition under the law existing on the date they
were commenced, see section 10 of Pub. L. 93-584, set out as an
Effective Date of 1975 Amendment note under section 2321 of this title.
28 USC CHAPTER 158 -- ORDERS OF FEDERAL AGENCIES; REVIEW
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2341. Definitions.
2342. Jurisdiction of court of appeals.
2343. Venue.
2344. Review of orders; time; notice; contents of petitions;
service.
2345. Prehearing conference.
2346. Certification of record on review.
2347. Petitions to review; proceedings.
2348. Representation in proceeding; intervention.
2349. Jurisdiction of the proceeding.
2350. Review in Supreme Court on certiorari or certification.
2351. Enforcement of orders by district courts.
(2352, 2353. Repealed.)
1982 -- Pub. L. 97-164, title I, 138, Apr. 2, 1982, 96 Stat. 42,
struck out item 2353 ''Decision of the Plant Variety Protection
Office''.
1966 -- Pub. L. 89-773, 4, Nov. 6, 1966, 80 Stat. 1323, struck
out item 2352 ''Rules''.
Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 621, added chapter
158 and items 2341 to 2352.
sections 149, 150gg, 163; title 8 section 1105a;
title 21 sections 104, 117, 122, 127, 134e, 135a;
title 31 section 755; title 39 section 3628; title
42 sections 2239, 2242, 3612; title 45 section 431;
title 46 App. section 1712; title 47 section 402;
title 49 sections 10934, 11901; title 50 section
167h.
28 USC 2341. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As used in this chapter --
(1) ''clerk'' means the clerk of the court in which the petition for
the review of an order, reviewable under this chapter, is filed;
(2) ''petitioner'' means the party or parties by whom a petition to
review an order, reviewable under this chapter, is filed; and
(3) ''agency'' means --
(A) the Commission, when the order sought to be reviewed was entered
by the Federal Communications Commission, the Federal Maritime
Commission, the Interstate Commerce Commission, or the Atomic Energy
Commission, as the case may be;
(B) the Secretary, when the order was entered by the Secretary of
Agriculture or the Secretary of Transportation;
(C) the Administration, when the order was entered by the Maritime
Administration; and
(D) the Secretary, when the order is under section 812 of the Fair
Housing Act.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 622; amended
Pub. L. 93-584, 3, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 100-430,
11(b), Sept. 13, 1988, 102 Stat. 1635; Pub. L. 102-365, 5(c)(1), Sept.
3, 1992, 106 Stat. 975.)
Subsection (a) of former section 1031 of title 5 is omitted as
unnecessary because the term ''court of appeals'' as used in title 28
means a United States Court of Appeals and no additional definition is
necessary.
In paragraph (3), reference to the United States Maritime Commission
is omitted because that Commission was abolished by 1950 Reorg. Plan
No. 21, 306, eff. May 24, 1950, 64 Stat. 1277. Reference to
''Federal Maritime Commission'' is substituted for ''Federal Maritime
Board'' on authority of 1961 Reorg. Plan No. 7, eff. Aug. 12, 1961,
75 Stat. 840.
Section 812 of the Fair Housing Act, referred to in par. (3)(D), is
classified to section 3612 of Title 42, The Public Health and Welfare.
1992 -- Par. (3)(B). Pub. L. 102-365 inserted ''or the Secretary of
Transportation'' after ''Secretary of Agriculture''.
1988 -- Par. (3)(D). Pub. L. 100-430 added subpar. (D).
1975 -- Par. (3)(A). Pub. L. 93-584 inserted reference to the
Interstate Commerce Commission.
Amendment by Pub. L. 100-430 effective on the 180th day beginning
after Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out as
a note under section 3601 of Title 42, The Public Health and Welfare.
Amendment by Pub. L. 93-584 not applicable to actions commenced on
or before last day of first month beginning after Jan. 2, 1975, and
actions to enjoin or suspend orders of Interstate Commerce Commission
which are pending when this amendment becomes effective shall not be
affected thereby, but shall proceed to final disposition under the law
existing on the date they were commenced, see section 10 of Pub. L.
93-584, set out as a note under section 2321 of this title.
Atomic Energy Commission abolished and functions transferred by
sections 5814 and 5841 of Title 42, The Public Health and Welfare. See,
also, Transfer of Functions notes set out under those sections.
28 USC 2342. Jurisdiction of court of appeals
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The court of appeals (other than the United States Court of Appeals
for the Federal Circuit) has exclusive jurisdiction to enjoin, set
aside, suspend (in whole or in part), or to determine the validity of --
(1) all final orders of the Federal Communication Commission made
reviewable by section 402(a) of title 47;
(2) all final orders of the Secretary of Agriculture made under
chapters 9 and 20A of title 7, except orders issued under sections
210(e), 217a, and 499g(a) of title 7;
(3) all rules, regulations, or final orders of --
(A) the Secretary of Transportation issued pursuant to section 2, 9,
37, 41, or 43 of the Shipping Act, 1916 (46 U.S.C. App. 802, 803, 808,
835, 839, and 841a); and
(B) the Federal Maritime Commission issued pursuant to --
(i) section 23, 25, or 43 of the Shipping Act, 1916 (46 U.S.C. App.
822, 824, or 841a);
(ii) section 19 of the Merchant Marine Act, 1920 (46 U.S.C. App.
876);
(iii) section 2, 3, 4, or 5 of the Intercoastal Shipping Act, 1933
(46 U.S.C. App. 844, 845, 845a, or 845b);
(iv) section 14 or 17 of the Shipping Act of 1984 (46 U.S.C. App.
1713 or 1716); or
(v) section 2(d) or 3(d) of the Act of November 6, 1966 (46 U.S.C.
App. 817d(d) or 817e(d);
(4) all final orders of the Atomic Energy Commission made reviewable
by section 2239 of title 42;
(5) all rules, regulations, or final orders of the Interstate
Commerce Commission made reviewable by section 2321 of this title and
all final orders of such Commission made reviewable under section
11901(j)(2) of title 49, United States Code;
(6) all final orders under section 812 of the Fair Housing Act; and
(7) all final agency actions described in section 202(f) of the
Federal Railroad Safety Act of 1970.
Jurisdiction is invoked by filing a petition as provided by section
2344 of this title.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 622; amended
Pub. L. 93-584, 4, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 95-454, title
II, 206, Oct. 13, 1978, 92 Stat. 1144; Pub. L. 96-454, 8(b)(2), Oct.
15, 1980, 94 Stat. 2021; Pub. L. 97-164, title I, 137, Apr. 2, 1982,
96 Stat. 41; Pub. L. 98-554, title II, 227(a)(4), Oct. 30, 1984, 98
Stat. 2852; Pub. L. 99-336, 5(a), June 19, 1986, 100 Stat. 638; Pub.
L. 100-430, 11(a), Sept. 13, 1988, 102 Stat. 1635; Pub. L. 102-365,
5(c)(2), Sept. 3, 1992, 106 Stat. 975.)
The words ''have exclusive jurisdiction'' are substituted for ''shall
have exclusive jurisdiction''.
In paragraph (1), the word ''by'' is substituted for ''in accordance
with''.
In paragraph (3), the word ''now'' is omitted as unnecessary. The
word ''under'' is substituted for ''pursuant to the provisions of''.
Reference to ''Federal Maritime Commission'' is substituted for
''Federal Maritime Board'' on authority of 1961 Reorg. Plan No. 7,
eff. Aug. 12, 1961, 75 Stat. 840. Reference to the United States
Maritime Commission is omitted because that Commission was abolished by
1950 Reorg. Plan No. 21, 306, eff. May 24, 1951, 64 Stat. 1277, and
any existing rights are preserved by technical sections 7 and 8.
Section 812 of the Fair Housing Act, referred to in par. (6), is
classified to section 3612 of Title 42, The Public Health and Welfare.
Section 202(f) of the Federal Railway Safety Act of 1970, referred to
in par. (7), is classified to section 431(f) of Title 45, Railroads.
1992 -- Par. (7). Pub. L. 102-365, which directed the addition of
par. (7) at end, was executed by adding par. (7) after par. (6) and
before concluding provisions, to reflect the probable intent of
Congress.
1988 -- Par. (6). Pub. L. 100-430 added par. (6).
1986 -- Par. (3). Pub. L. 99-336 amended par. (3) generally. Prior
to amendment, par. (3) read as follows: ''such final orders of the
Federal Maritime Commission or the Maritime Administration entered under
chapters 23 and 23A of title 46 as are subject to judicial review under
section 830 of title 46;''.
1984 -- Par. (5). Pub. L. 98-554 substituted ''11901(j)(2)'' for
''11901(i)(2)''.
1982 -- Pub. L. 97-164 inserted ''(other than the United States
Court of Appeals for the Federal Circuit)'' after ''court of appeals''
in provisions preceding par. (1), and struck out par. (6) which had
given the court of appeals jurisdiction in cases involving all final
orders of the Merit Systems Protection Board except as provided for in
section 7703(b) of title 5. See section 1295(a)(9) of this title.
1980 -- Par. (5). Pub. L. 96-454 inserted ''and all final orders of
such Commission made reviewable under section 11901(i)(2) of title 49,
United States Code'' after ''section 2321 of this title''.
1978 -- Par. (6). Pub. L. 95-454 added par. (6).
1975 -- Par. (5). Pub. L. 93-584 added par. (5).
Amendment by Pub. L. 100-430 effective on 180th day beginning after
Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out as a
note under section 3601 of Title 42, The Public Health and Welfare.
Section 5(b) of Pub. L. 99-336 provided that: ''The amendment made
by this section (amending this section) shall apply with respect to any
rule, regulation, or final order described in such amendment which is
issued on or after the date of the enactment of this Act (June 19,
1986).''
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978,
see section 907 of Pub. L. 95-454, set out as a note under section 1101
of Title 5, Government Organization and Employees.
Amendment by Pub. L. 93-584 not applicable to actions commenced on
or before last day of first month beginning after Jan. 2, 1975, and
actions to enjoin or suspend orders of Interstate Commerce Commission
which are pending when this amendment becomes effective shall not be
affected thereby, but shall proceed to final disposition under the law
existing on the date they were commenced, see section 10 of Pub. L.
93-584, set out as a note under section 2321 of this title.
Atomic Energy Commission abolished and functions transferred by
sections 5814 and 5841 of Title 42, The Public Health and Welfare. See,
also, Transfer of Functions notes set out under those sections.
1710a.
28 USC 2343. Venue
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The venue of a proceeding under this chapter is in the judicial
circuit in which the petitioner resides or has its principal office, or
in the United States Court of Appeals for the District of Columbia
Circuit.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 622.)
The section is reorganized for clarity and conciseness. The word
''is'' is substituted for ''shall be''. The word ''petitioner'' is
substituted for ''party or any of the parties filing the petition for
review'' in view of the definition of ''petitioner'' in section 2341 of
this title.
28 USC 2344. Review of orders; time; notice; contents of petition;
service
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
On the entry of a final order reviewable under this chapter, the
agency shall promptly give notice thereof by service or publication in
accordance with its rules. Any party aggrieved by the final order may,
within 60 days after its entry, file a petition to review the order in
the court of appeals wherein venue lies. The action shall be against
the United States. The petition shall contain a concise statement of --
(1) the nature of the proceedings as to which review is sought;
(2) the facts on which venue is based;
(3) the grounds on which relief sought; and
(4) the relief prayed.
The petitioner shall attach to the petition, as exhibits, copies of
the order, report, or decision of the agency. The clerk shall serve a
true copy of the petition on the agency and on the Attorney General by
registered mail, with request for a return receipt.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 622.)
The section is reorganized, with minor changes in phraseology. The
words ''as prescribed by section 1033 of this title'' are omitted as
surplusage. The words ''of the United States'' following ''Attorney
General'' are omitted as unnecessary.
3804, 3805.
28 USC 2345. Prehearing conference
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The court of appeals may hold a prehearing conference or direct a
judge of the court to hold a prehearing conference.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 622.)
28 USC 2346. Certification of record on review
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Unless the proceeding has been terminated on a motion to dismiss the
petition, the agency shall file in the office of the clerk the record on
review as provided by section 2112 of this title.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 623.)
The words ''of the court of appeals in which the proceeding is
pending'' are omitted as unnecessary in view of the definition of
''clerk'' in section 2341 of this title, and by reason of the exclusive
jurisdiction of the court of appeals set forth in section 2342 of this
title.
28 USC 2347. Petitions to review; proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(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, 4(e), Sept. 6, 1966, 80 Stat. 623.)
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.
The Federal Rules of Civil Procedure, referred to in subsec. (b)(3),
are set out in the Appendix to this title.
28 USC 2348. Representation in proceeding; intervention
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Attorney General is responsible for and has control of the
interests of the Government in all court proceedings under this chapter.
The agency, and any party in interest in the proceeding before the
agency whose interests will be affected if an order of the agency is or
is not enjoined, set aside, or suspended, may appear as parties thereto
of their own motion and as of right, and be represented by counsel in
any proceeding to review the order. Communities, associations,
corporations, firms, and individuals, whose interests are affected by
the order of the agency, may intervene in any proceeding to review the
order. The Attorney General may not dispose of or discontinue the
proceeding to review over the objection of any party or intervenor, but
any intervenor may prosecute, defend, or continue the proceeding
unaffected by the action or inaction of the Attorney General.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 623.)
In the first sentence, the words ''is responsible for and has
control'' are substituted for ''shall be responsible for and have charge
and control''.
In the last sentence, the word ''may'' is substituted for ''shall''.
The word ''aforesaid'' following ''any party or intervenor'' is omitted
as unnecessary. The words ''any intervenor'' and ''inaction'' are
substituted for ''said intervenor or intervenors'' and ''nonaction'',
respectively.
28 USC 2349. Jurisdiction of the proceeding
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(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''.
1984 -- 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.
Amendment 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.
28 USC 2350. Review in Supreme Court on certiorari or certification
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) An order granting or denying an interlocutory injunction under
section 2349(b) of this title and a final judgment of the court of
appeals in a proceeding to review under this chapter are subject to
review by the Supreme Court on a writ of certiorari as provided by
section 1254(1) of this title. Application for the writ shall be made
within 45 days after entry of the order and within 90 days after entry
of the judgment, as the case may be. The United States, the agency, or
an aggrieved party may file a petition for a writ of certiorari.
(b) The provisions of section 1254(2) of this title, regarding
certification, and of section 2101(f) of this title, regarding stays,
also apply to proceedings under this chapter.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 624; amended
Pub. L. 100-352, 5(e), June 27, 1988, 102 Stat. 663.)
The words ''of the United States'' following ''Supreme Court'' are
omitted as unnecessary because the term ''Supreme Court'' as used in
title 28 means the Supreme Court of the United States.
The words ''section 2101(f) of this title'' are substituted for
''section 2101(e) of Title 28'' on authority of the Act of May 24, 1949,
ch. 139, 106(b), 63 Stat. 104, which redesignated subsection (e) of
section 2101 as subsection (f).
1988 -- Subsec. (b). Pub. L. 100-352 substituted ''1254(2)'' for
''1254(3)''.
Amendment by Pub. L. 100-352 effective ninety days after June 27,
1988, except that such amendment not to apply to cases pending in
Supreme Court on such effective date or affect right to review or manner
of reviewing judgment or decree of court which was entered before such
effective date, see section 7 of Pub. L. 100-352, set out as a note
under section 1254 of this title.
28 USC 2351. Enforcement of orders by district courts
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The several district courts have jurisdiction specifically to
enforce, and to enjoin and restrain any person from violating any order
issued under section 193 of title 7.
(Added Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 624.)
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 ''have jurisdiction'' are substituted for
''are vested with jurisdiction''. The words ''heretofore or hereafter''
following ''order'' are omitted as unnecessary and any existing rights
and liabilities are preserved by technical sections 7 and 8.
28 USC ( 2352. Repealed. Pub. L. 89-773, 4, Nov. 6, 1966, 80 Stat.
1323)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, Pub. L. 89-554, 4(e), Sept. 6, 1966, 80 Stat. 624,
directed the several courts of appeals to adopt and promulgate rules,
subject to the approval of the Judicial Conference of the United States,
governing the practice and procedure, including prehearing conference
procedure, in proceedings to review orders under this chapter. See
section 2072 of this title.
Section 4 of Pub. L. 89-773 provided in part that the repeal of this
section shall not operate to invalidate or repeal rules adopted under
the authority of this section prior to the enactment of Pub. L.
89-773, which rules shall remain in effect until superseded by rules
prescribed under authority of section 2072 of this title as amended by
Pub. L. 89-773.
28 USC ( 2353. Repealed. Pub. L. 97-164, title I, 138, Apr. 2, 1982,
96 Stat. 42)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 91-577, title III, 143(c), Dec. 24, 1970,
84 Stat. 1559, gave the court of appeals nonexclusive jurisdiction to
hear appeals under section 71 of the Plant Variety Protection Act (7
U.S.C. 2461). See section 1295(a)(8) of this title.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC CHAPTER 159 -- INTERPLEADER
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2361. Process and procedure.
28 USC 2361. Process and procedure
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any civil action of interpleader or in the nature of interpleader
under section 1335 of this title, a district court may issue its process
for all claimants and enter its order restraining them from instituting
or prosecuting any proceeding in any State or United States court
affecting the property, instrument or obligation involved in the
interpleader action until further order of the court. Such process and
order shall be returnable at such time as the court or judge thereof
directs, and shall be addressed to and served by the United States
marshals for the respective districts where the claimants reside or may
be found.
Such district court shall hear and determine the case, and may
discharge the plaintiff from further liability, make the injunction
permanent, and make all appropriate orders to enforce its judgment.
(June 25, 1948, ch. 646, 62 Stat. 970; May 24, 1949, ch. 139, 117,
63 Stat. 105.)
Based on title 28, U.S.C., 1940 ed., 41(26) (Mar. 3, 1911, ch. 231,
24, par. 26, as added Jan. 20, 1936, ch. 13, 1, 49 Stat. 1096).
Jurisdiction and venue provisions of section 41(26) of title 28,
U.S.C., 1940 ed., appear in sections 1335 and 1397 of this title.
Subsection (e) of section 41(26) of title 28, U.S.C., 1940 ed.,
relating to defense in nature of interpleader and joinder of additional
parties, was omitted as unnecessary, such matters being governed by the
Federal Rules of Civil Procedure.
Words, ''Notwithstanding any provision of part I of this title to the
contrary'' were omitted as unnecessary, since the revised title contains
no ''contrary provisions.''
Changes were made in phraseology.
This section makes clear that section 2361 of title 28, U.S.C.,
applies only to statutory actions and not to general equity interpleader
suits in which the jurisdictional amount and diversity of citizenship
requirements are the same as in other diversity cases.
1949 -- Act May 24, 1949, substituted ''In any civil action of
interpleader or in the nature of interpleader under section 1335 under
this title'' for ''In any interpleader action,'', and inserted ''or
prosecuting'' between ''instituting'' and ''any proceeding''.
28 USC CHAPTER 161 -- UNITED STATES AS PARTY GENERALLY
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2401. Time for commencing action against United States.
2402. Jury trial in actions against United States.
2403. Intervention by United States or a State; constitutional
question.
2404. Death of defendant in damage action.
2405. Garnishment.
2406. Credits in actions by United States; prior disallowance.
2407. Delinquents for public money; judgment at return term;
continuance.
2408. Security not required of United States.
2409. Partition actions involving United States.
2409a. Real property quiet title actions.
2410. Actions affecting property on which United States has lien.
2411. Interest.
2412. Costs and fees.
2413. Executions in favor of United States.
2414. Payment of judgments and compromise settlements.
2415. Time for commencing actions brought by the United States.
2416. Time for commencing actions brought by the United States --
Exclusions.
This section amends the analysis of chapter 161 of title 28, U.S.C.,
to conform item 2411 therein with the catch line of section 2411 of such
title as amended by another section of this bill.
1980 -- Pub. L. 96-481, title II, 204(b), Oct. 21, 1980, 94 Stat.
2329, substituted ''Costs and fees'' for ''Costs'' in item 2412.
1976 -- Pub. L. 94-381, 6, Aug. 12, 1976, 90 Stat. 1120, inserted
''or a State'' after ''United States'' in item 2403.
1972 -- Pub. L. 92-562, 3(b), Oct. 25, 1972, 86 Stat. 1177, added
item 2409a.
1966 -- Pub. L. 89-505, 2, July 18, 1966, 80 Stat. 305, added
items 2415 and 2416.
1961 -- Pub. L. 87-187, 2, Aug. 30, 1961, 75 Stat. 416,
substituted ''and compromise settlements'' for ''against the United
States'' in item 2414.
1954 -- Act July 30, 1954, ch. 648, 2(b), 68 Stat. 589, struck out
''denied'' in item 2402.
1949 -- Act May 24, 1949, ch. 139, 118, 63 Stat. 105, substituted
''Interest'' for ''Interest on judgments against United States'' in item
2411.
Third party tort liability to United States for hospital and medical
care, see section 2651 et seq. of Title 42, The Public Health and
Welfare.
28 USC 2401. Time for commencing action against United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except as provided by the Contract Disputes Act of 1978, every
civil action commenced against the United States shall be barred unless
the complaint is filed within six years after the right of action first
accrues. The action of any person under legal disability or beyond the
seas at the time the claim accrues may be commenced within three years
after the disability ceases.
(b) A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to which it
was presented.
(June 25, 1948, ch. 646, 62 Stat. 971; Apr. 25, 1949, ch. 92, 1, 63
Stat. 62; Sept. 8, 1959, Pub. L. 86-238, 1(3), 73 Stat. 472; July 18,
1966, Pub. L. 89-506, 7, 80 Stat. 307; Nov. 1, 1978, Pub. L. 95-563,
14(b), 92 Stat. 2389.)
Based on title 28, U.S.C., 1940 ed., 41(20), 942 (Mar. 3, 1911, ch.
231, 24, part 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, 1310(c), 42
Stat. 311; June 2, 1924, 4:01 p.m., ch. 234, 1025(c), 43 Stat. 348;
Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, 1122(c),
1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, 420, 60 Stat. 845).
Section consolidates provision in section 41(20) of title 28, U.S.C.,
1940 ed., as to time limitation for bringing actions against the United
States under section 1346(a) of this title, with section 942 of said
title 28.
Words ''or within one year after the date of enactment of this Act
whichever is later'', in section 942 of title 28, U.S.C., 1940 ed., were
omitted as executed.
Provisions of section 41(20) of title 28, U.S.C., 1940 ed., relating
to jurisdiction of district courts and trial by the court of actions
against the United States are the basis of sections 1346(a) and 2402 of
this title.
Words in subsec. (a) of this revised section, ''person under legal
disability or beyond the seas at the time the claim accrues'' were
substituted for ''claims of married women, first accrued during
marriage, of persons under the age of twenty-one years, first accrued
during minority, and of idiots, lunatics, insane persons, and persons
beyond the seas at the time the claim accrued, entitled to the claim.''
(See reviser's note under section 2501 of this title.)
Words in section 41(20) of title 28, U.S.C., 1940 ed., ''nor shall
any of the said disabilities operate cumulatively'' were omitted. (See
reviser's note under section 2501 of this title.)
A provision in section 41(20) of title 28, U.S.C., 1940 ed., that
disabilities other than those specifically mentioned should not prevent
any action from being barred was omitted as superfluous.
Subsection (b) of the revised section simplifies and restates said
section 942 of title 28, U.S.C., 1940 ed., without change of substance.
Changes were made in phraseology.
Subsection (b) amended in the Senate to insert the 1 year limitation
on the bringing of tort actions and to include the limitation upon the
time in which tort claims not exceeding $1000 must be presented to the
appropriate Federal agencies for administrative disposition. 80th
Congress Senate Report No. 1559, Amendment No. 48.
The Contract Disputes Act of 1978, referred to in subsec. (a), is
Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is
classified principally to chapter 9 ( 601 et seq.) of Title 41, Public
Contracts. For complete classification of this Act to the Code, see
Short Title note set out under section 601 of Title 41 and Tables.
1978 -- Subsec. (a). Pub. L. 95-563 inserted Contract Disputes Act
of 1978 exception.
1966 -- Subsec. (b). Pub. L. 89-506 struck out provisions dealing
with a tort claim of $2,500 or under as a special category of tort claim
requiring preliminary administrative action and substituted provisions
requiring presentation of all tort claims to the appropriate Federal
agency in writing within two years after the claim accrues and
commencement of an action within six months of the date of mailing of
notice of final denial of the claim by the agency to which it was
presented for provisions requiring commencement of an action within two
years after the claim accrues.
1959 -- Subsec. (b). Pub. L. 86-238 substituted ''$2,500'' for
''$1,000'' in two places.
1949 -- Subsec. (b). Act Apr. 25, 1949, the time limitation on
bringing tort actions from 1 year to 2 years.
Amendment by Pub. L. 95-563 effective with respect to contracts
entered into 120 days after Nov. 1, 1978, and, at the election of the
contractor, with respect to any claim pending at such time before the
contracting officer or initiated thereafter, see section 16 of Pub. L.
95-563, set out as an Effective Date note under section 601 of Title 41,
Public Contracts.
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
2212; title 45 section 1203; title 49 App. section
1540.
28 USC 2402. Jury trial in actions against United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any action against the United States under section 1346 shall be
tried by the court without a jury, except that any action against the
United States under section 1346(a)(1) shall, at the request of either
party to such action, be tried by the court with a jury.
(June 25, 1948, ch. 646, 62 Stat. 971; July 30, 1954, ch. 648,
2(a), 68 Stat. 589.)
Based on title 28, U.S.C., 1940 ed., 41(20), 931(a) (Mar. 3, 1911,
ch. 231, 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, 1310(c),
42 Stat. 311; June 2, 1924, 4:01 p.m., ch. 234, 1025(c), 43 Stat. 348;
Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27,
1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, 410(a), 60
Stat. 843).
Section consolidates non-jury provisions of sections 41(20) and
931(a) of title 28, U.S.C., 1940 ed. For other provisions of said
section 931(a) relating to tort claims, see Distribution Table.
Word ''actions'' was substituted for ''suits'', in view of Rule 2 of
the Federal Rules of Civil Procedure.
Provisions of title 28, U.S.C., 1940 ed., 41(20) relating to
jurisdiction of district courts and time for bringing actions against
the United States are the basis of sections 1346 and 2401 of this title.
1954 -- Act July 30, 1954, permitted a jury trial at the request of
either party in actions under section 1346(a)(1) of this title.
28 USC 2403. Intervention by United States or a State; constitutional
question
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In any action, suit or proceeding in a court of the United States
to which the United States or any agency, officer or employee thereof is
not a party, wherein the constitutionality of any Act of Congress
affecting the public interest is drawn in question, the court shall
certify such fact to the Attorney General, and shall permit the United
States to intervene for presentation of evidence, if evidence is
otherwise admissible in the case, and for argument on the question of
constitutionality. The United States shall, subject to the applicable
provisions of law, have all the rights of a party and be subject to all
liabilities of a party as to court costs to the extent necessary for a
proper presentation of the facts and law relating to the question of
constitutionality.
(b) In any action, suit, or proceeding in a court of the United
States to which a State or any agency, officer, or employee thereof is
not a party, wherein the constitutionality of any statute of that State
affecting the public interest is drawn in question, the court shall
certify such fact to the attorney general of the State, and shall permit
the State to intervene for presentation of evidence, if evidence is
otherwise admissible in the case, and for argument on the question of
constitutionality. The State shall, subject to the applicable
provisions of law, have all the rights of a party and be subject to all
liabilities of a party as to court costs to the extent necessary for a
proper presentation of the facts and law relating to the question of
constitutionality.
(June 25, 1948, ch. 646, 62 Stat. 971; Aug. 12, 1976, Pub. L.
94-381, 5, 90 Stat. 1120.)
Based on title 28, U.S.C., 1940 ed., 401 (Aug. 24, 1937, ch. 754,
1, 50 Stat. 751).
Word ''action'' was added before ''suit or proceeding'', in view of
Rule 2 of the Federal Rules of Civil Procedure.
Since this section applies to all Federal courts, the word ''suit''
was not required to be deleted by such rule.
''Court of the United States'' is defined in section 451 of this
title. Direct appeal from decisions invalidating Acts of Congress is
provided by section 1252 of this title.
Changes were made in phraseology.
1976 -- Pub. L. 94-381, 5(b), inserted ''or a State'' after
''United States'' in section catchline.
Subsecs. (a), (b). Pub. L. 94-381, 5(a), designated existing
provisions as subsec. (a) and added subsec. (b).
Amendment by Pub. L. 94-381 not applicable to any action commenced
on or before Aug. 12, 1976, see section 7 of Pub. L. 94-381, set out
as a note under section 2284 of this title.
28 USC 2404. Death of defendant in damage action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A civil action for damages commenced by or on behalf of the United
States or in which it is interested shall not abate on the death of a
defendant but shall survive and be enforceable against his estate as
well as against surviving defendants.
(June 25, 1948, ch. 646, 62 Stat. 971.)
Based on title 28, U.S.C., 1940 ed., 780a (June 16, 1933, ch. 103,
48 Stat. 311).
Substitution of parties, see rule 25(a) of the Federal Rules of Civil
Procedure.
Changes in phraseology were made.
28 USC 2405. Garnishment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any action or suit commenced by the United States against a
corporation for the recovery of money upon a bill, note, or other
security, the debtors of the corporation may be summoned as garnishees.
Any person so summoned shall appear in open court and depose in writing
to the amount of his indebtedness to the corporation at the time of the
service of the summons and at the time of making the deposition, and
judgment may be entered in favor of the United States for the sum
admitted by the garnishee to be due the corporation as if it had been
due the United States. A judgment shall not be entered against any
garnishee until after judgment has been rendered against the
corporation, nor until the sum in which the garnishee is indebted is
actually due.
When any garnishee deposes in open court that he is not and was not
at the time of the service of the summons indebted to the corporation,
an issue may be tendered by the United States upon such deposition. If,
upon the trial of that issue, a verdict is rendered against the
garnishee, judgment shall be entered in favor of the United States,
pursuant to such verdict, with costs.
Any garnishee who fails to appear at the term to which he is summoned
shall be subject to attachment for contempt.
(June 25, 1948, ch. 646, 62 Stat. 971.)
Based on title 28, U.S.C., 1940 ed., 748, 749, and 750 (R.S.
935, 936, 937).
Changes were made in phraseology.
28 USC 2406. Credits in actions by United States; prior disallowance
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In an action by the United States against an individual, evidence
supporting the defendant's claim for a credit shall not be admitted
unless he first proves that such claim has been disallowed, in whole or
in part, by the General Accounting Office, or that he has, at the time
of the trial, obtained possession of vouchers not previously procurable
and has been prevented from presenting such claim to the General
Accounting Office by absence from the United States or unavoidable
accident.
(June 25, 1948, ch. 646, 62 Stat. 972.)
Based on title 28, U.S.C., 1940 ed., 774 (R.S., 236, 951; June
10, 1921, ch. 18, 304, 305, 42 Stat. 24).
Word ''action'' was substituted for ''suits'', in view of Rule 2 of
the Federal Rules of Civil Procedure.
Section 774 of title 28, U.S.C., 1940 ed., provided that ''no claim
for a credit shall be admitted, upon trial'', etc. This was changed to
''evidence supporting the defendant's claim for a credit shall not be
admitted'', to clarify the meaning of the section. The case of U.S. v.
Heard, D.C.Va. 1940, 32 F.Supp. 39, reviews the conflicting decisions on
the question whether compliance with the section must be pleaded, and
offers persuasive argument that it need not be, and that the section was
designed as a rule of evidence. The wording of the remainder of the
section also supports this conclusion, as pointed out by Judge Learned
Hand in U.S. v. Standard Aircraft Corp., D.C.N.Y. 1926, 16 F.2d 307,
followed in the Heard case.
Changes in phraseology were made.
Third party tort liability for hospital and medical care, see section
2651 et seq. of Title 42, The Public Health and Welfare.
28 USC 2407. Delinquents for public money; judgment at return term;
continuance
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In an action by the United States against any person accountable for
public money who fails to pay into the Treasury the sum reported due the
United States, upon the adjustment of his account the court shall grant
judgment upon motion unless a continuance is granted as specified in
this section.
A continuance may be granted if the defendant, in open court and in
the presence of the United States attorney, states under oath that he is
equitably entitled to credits which have been disallowed by the General
Accounting Office prior to the commencement of the action, specifying
each particular claim so rejected, and stating that he cannot safely
come to trial.
A continuance may also be granted if such an action is commenced on a
bond or other sealed instrument and the court requires the original
instrument to be produced.
(June 25, 1948, ch. 646, 62 Stat. 972.)
Based on title 28, U.S.C., 1940 ed., 781 (R.S. 957; June 10, 1921,
ch. 18, 304, 42 Stat. 24).
Word ''action'' was substituted for ''suit'', in view of Rule 2 of
the Federal Rules of Civil Procedure.
Words ''court requires the original instrument to be produced'' were
substituted for ''defendant pleads non est factum, verifying such plea
or motion by his oath, and the court thereupon requires the production
of the original bond, contract, or other paper certified in the
affidavit''. The plea of non est factum is obsolete under Rule 7(c) of
the Federal Rules of Civil Procedure. Furthermore, the words deleted
are superfluous, since a court would not require the production of an
original instrument unless the proper procedure were taken to require
such production.
Changes were made in phraseology.
28 USC 2408. Security not required of United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Security for damages or costs shall not be required of the United
States, any department or agency thereof or any party acting under the
direction of any such department or agency on the issuance of process or
the institution or prosecution of any proceeding.
Costs taxable, under other Acts of Congress, against the United
States or any such department, agency or party shall be paid out of the
contingent fund of the department or agency which directed the
proceedings to be instituted.
(June 25, 1948, ch. 646, 62 Stat. 972.)
Based on title 28, U.S.C., 1940 ed., 870 (R.S. 1001; Mar. 3, 1911,
ch. 231, 117, 289, 36 Stat. 1131, 1167; Jan. 31, 1928, ch. 14, 1,
45 Stat. 54; June 19, 1934, ch. 653, 7, 48 Stat. 1109).
Section 870 of title 28, U.S.C., 1940 ed., applied only to the
Supreme Court and district courts. The revised section applies to all
courts.
Words ''process or the institution or prosecution of any proceeding''
were substituted for ''appeal, or other process in law, admiralty, or
equity.''
Word ''agency'' was substituted for ''any corporation all the stock
of which is beneficially owned by the United States, either directly or
indirectly'', in view of the creation of many independent governmental
agencies since the enactment of the original law on which this section
is based.
Changes were made in phraseology.
28 USC 2409. Partition actions involving United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any civil action by any tenant in common or joint tenant owning an
undivided interest in lands, where the United States is one of such
tenants in common or joint tenants, against the United States alone or
against the United States and any other of such owners, shall proceed,
and be determined, in the same manner as would a similar action between
private persons.
Whenever in such action the court orders a sale of the property or
any part thereof the Attorney General may bid for the same in behalf of
the United States. If the United States is the purchaser, the amount of
the purchase money shall be paid from the Treasury upon a warrant drawn
by the Secretary of the Treasury on the requisition of the Attorney
General.
(June 25, 1948, ch. 646, 62 Stat. 972.)
Based on title 28, U.S.C., 1940 ed., 766 (May 17, 1898, ch. 339,
1, 2, 30 Stat. 416).
Provisions relating to service or commencement of the action and duty
of United States attorneys to appear, defend, and file answer were
omitted as surplusage and covered by Rules 2, 3, and 4 of the Federal
Rules of Civil Procedure and section 507 of this title.
Words ''shall proceed, and be determined, in the same manner as would
a similar action between private persons'' were substituted for ''shall
proceed as other cases for partition by courts of equity, and in making
such partition the court shall be governed by the same principles of
equity that control courts of equity, in partition proceedings between
private persons,'' in view of Rule 2 of the Federal Rules of Civil
Procedure.
Changes were made in phraseology.
28 USC 2409a. Real property quiet title actions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The United States may be named as a party defendant in a civil
action under this section to adjudicate a disputed title to real
property in which the United States claims an interest, other than a
security interest or water rights. This section does not apply to trust
or restricted Indian lands, nor does it apply to or affect actions which
may be or could have been brought under sections 1346, 1347, 1491, or
2410 of this title, sections 7424, 7425, or 7426 of the Internal Revenue
Code of 1986, as amended (26 U.S.C. 7424, 7425, and 7426), or section
208 of the Act of July 10, 1952 (43 U.S.C. 666).
(b) The United States shall not be disturbed in possession or control
of any real property involved in any action under this section pending a
final judgment or decree, the conclusion of any appeal therefrom, and
sixty days; and if the final determination shall be adverse to the
United States, the United States nevertheless may retain such possession
or control of the real property or of any part thereof as it may elect,
upon payment to the person determined to be entitled thereto of an
amount which upon such election the district court in the same action
shall determine to be just compensation for such possession or control.
(c) No preliminary injunction shall issue in any action brought under
this section.
(d) The complaint shall set forth with particularity the nature of
the right, title, or interest which the plaintiff claims in the real
property, the circumstances under which it was acquired, and the right,
title, or interest claimed by the United States.
(e) If the United States disclaims all interest in the real property
or interest therein adverse to the plaintiff at any time prior to the
actual commencement of the trial, which disclaimer is confirmed by order
of the court, the jurisdiction of the district court shall cease unless
it has jurisdiction of the civil action or suit on ground other than and
independent of the authority conferred by section 1346(f) of this title.
(f) A civil action against the United States under this section shall
be tried by the court without a jury.
(g) Any civil action under this section, except for an action brought
by a State, shall be barred unless it is commenced within twelve years
of the date upon which it accrued. Such action shall be deemed to have
accrued on the date the plaintiff or his predecessor in interest knew or
should have known of the claim of the United States.
(h) No civil action may be maintained under this section by a State
with respect to defense facilities (including land) of the United States
so long as the lands at issue are being used or required by the United
States for national defense purposes as determined by the head of the
Federal agency with jurisdiction over the lands involved, if it is
determined that the State action was brought more than twelve years
after the State knew or should have known of the claims of the United
States. Upon cessation of such use or requirement, the State may
dispute title to such lands pursuant to the provisions of this section.
The decision of the head of the Federal agency is not subject to
judicial review.
(i) Any civil action brought by a State under this section with
respect to lands, other than tide or submerged lands, on which the
United States or its lessee or right-of-way or easement grantee has made
substantial improvements or substantial investments or on which the
United States has conducted substantial activities pursuant to a
management plan such as range improvement, timber harvest, tree
planting, mineral activities, farming, wildlife habitat improvement, or
other similar activities, shall be barred unless the action is commenced
within twelve years after the date the State received notice of the
Federal claims to the lands.
(j) If a final determination in an action brought by a State under
this section involving submerged or tide lands on which the United
States or its lessee or right-of-way or easement grantee has made
substantial improvements or substantial investments is adverse to the
United States and it is determined that the State's action was brought
more than twelve years after the State received notice of the Federal
claim to the lands, the State shall take title to the lands subject to
any existing lease, easement, or right-of-way. Any compensation due
with respect to such lease, easement, or right-of-way shall be
determined under existing law.
(k) Notice for the purposes of the accrual of an action brought by a
State under this section shall be --
(1) by public communications with respect to the claimed lands which
are sufficiently specific as to be reasonably calculated to put the
claimant on notice of the Federal claim to the lands, or
(2) by the use, occupancy, or improvement of the claimed lands which,
in the circumstances, is open and notorious.
(l) For purposes of this section, the term ''tide or submerged
lands'' means ''lands beneath navigable waters'' as defined in section 2
of the Submerged Lands Act (43 U.S.C. 1301).
(m) Not less than one hundred and eighty days before bringing any
action under this section, a State shall notify the head of the Federal
agency with jurisdiction over the lands in question of the State's
intention to file suit, the basis therefor, and a description of the
lands included in the suit.
(n) Nothing in this section shall be construed to permit suits
against the United States based upon adverse possession.
(Added Pub. L. 92-562, 3(a), Oct. 25, 1972, 86 Stat. 1176; amended
Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-598,
Nov. 4, 1986, 100 Stat. 3351.)
Section 208 of the Act of July 10, 1952, referred to in subsec. (a),
is section 208(a) to (d) of act July 10, 1952, ch. 651, 66 Stat. 560.
Section 208(a) to (c) is classified to section 666 of Title 43, Public
Lands. Section 208(d) is not classified to the Code.
1986 -- Subsec. (a). Pub. L. 99-514 substituted ''Internal Revenue
Code of 1986'' for ''Internal Revenue Code of 1954''.
Subsecs. (c) to (n). Pub. L. 99-598 added subsecs. (c) and (h) to
(m), redesignated former subsecs. (c), (d), (e), (f), and (g) as (d),
(e), (f), (g), and (n), respectively, and inserted '', except for an
action brought by a State,'' in subsec. (g).
28 USC 2410. Actions affecting property on which United States has
lien
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Under the conditions prescribed in this section and section 1444
of this title for the protection of the United States, the United States
may be named a party in any civil action or suit in any district court,
or in any State court having jurisdiction of the subject matter --
(1) to quiet title to,
(2) to foreclose a mortgage or other lien upon,
(3) to partition,
(4) to condemn, or
(5) of interpleader or in the nature of interpleader with respect to,
real or personal property on which the United States has or claims a
mortgage or other lien.
(b) The complaint or pleading shall set forth with particularity the
nature of the interest or lien of the United States. In actions or
suits involving liens arising under the internal revenue laws, the
complaint or pleading shall include the name and address of the taxpayer
whose liability created the lien and, if a notice of the tax lien was
filed, the identity of the internal revenue office which filed the
notice, and the date and place such notice of lien was filed. In
actions in the State courts service upon the United States shall be made
by serving the process of the court with a copy of the complaint upon
the United States attorney for the district in which the action is
brought or upon an assistant United States attorney or clerical employee
designated by the United States attorney in writing filed with the clerk
of the court in which the action is brought and by sending copies of the
process and complaint, by registered mail, or by certified mail, to the
Attorney General of the United States at Washington, District of
Columbia. In such actions the United States may appear and answer,
plead or demur within sixty days after such service or such further time
as the court may allow.
(c) A judgment or decree in such action or suit shall have the same
effect respecting the discharge of the property from the mortgage or
other lien held by the United States as may be provided with respect to
such matters by the local law of the place where the court is situated.
However, an action to foreclose a mortgage or other lien, naming the
United States as a party under this section, must seek judicial sale. A
sale to satisfy a lien inferior to one of the United States shall be
made subject to and without disturbing the lien of the United States,
unless the United States consents that the property may be sold free of
its lien and the proceeds divided as the parties may be entitled. Where
a sale of real estate is made to satisfy a lien prior to that of the
United States, the United States shall have one year from the date of
sale within which to redeem, except that with respect to a lien arising
under the internal revenue laws the period shall be 120 days or the
period allowable for redemption under State law, whichever is longer,
and in any case in which, under the provisions of section 505 of the
Housing Act of 1950, as amended (12 U.S.C. 1701k), and subsection (d) of
section 3720 of title 38 of the United States Code, the right to redeem
does not arise, there shall be no right of redemption. In any case
where the debt owing the United States is due, the United States may
ask, by way of affirmative relief, for the foreclosure of its own lien
and where property is sold to satisfy a first lien held by the United
States, the United States may bid at the sale such sum, not exceeding
the amount of its claim with expenses of sale, as may be directed by the
head (or his delegate) of the department or agency of the United States
which has charge of the administration of the laws in respect to which
the claim of the United States arises. In any case where the United
States is a bidder at the judicial sale, it may credit the amount
determined to be due it against the amount it bids at such sales.
(d) In any case in which the United States redeems real property
under this section or section 7425 of the Internal Revenue Code of 1986,
the amount to be paid for such property shall be the sum of --
(1) the actual amount paid by the purchaser at such sale (which, in
the case of a purchaser who is the holder of the lien being foreclosed,
shall include the amount of the obligation secured by such lien to the
extent satisfied by reason of such sale),
(2) interest on the amount paid (as determined under paragraph (1))
at 6 percent per annum from the date of such sale, and
(3) the amount (if any) equal to the excess of (A) the expenses
necessarily incurred in connection with such property, over (B) the
income from such property plus (to the extent such property is used by
the purchaser) a reasonable rental value of such property.
(e) Whenever any person has a lien upon any real or personal
property, duly recorded in the jurisdiction in which the property is
located, and a junior lien, other than a tax lien, in favor of the
United States attaches to such property, such person may make a written
request to the officer charged with the administration of the laws in
respect of which the lien of the United States arises, to have the same
extinguished. If after appropriate investigation, it appears to such
officer that the proceeds from the sale of the property would be
insufficient to wholly or partly satisfy the lien of the United States,
or that the claim of the United States has been satisfied or by lapse of
time or otherwise has become unenforceable, such officer shall so report
to the Comptroller General who may issue a certificate releasing the
property from such lien.
(June 25, 1948, ch. 646, 62 Stat. 972; May 24, 1949, ch. 139, 119,
63 Stat. 105; July 7, 1958, Pub. L. 85-508, 12(h), 72 Stat. 348;
June 11, 1960, Pub. L. 86-507, 1(20), 74 Stat. 201; Nov. 2, 1966, Pub.
L. 89-719, title II, 201, 80 Stat. 1147; Oct. 22, 1986, Pub. L.
99-514, 2, 100 Stat. 2095; Nov. 29, 1990, Pub. L. 101-647, title
XXXVI, 3630, 104 Stat. 4966; Aug. 6, 1991, Pub. L. 102-83, 5(c)(2),
105 Stat. 406.)
Based on title 28, U.S.C., 1940 ed., 901, 902, 904, 905 (Mar. 4,
1931, ch. 515, 1, 2, 4, 5, 46 Stat. 1528, 1529; May 17, 1932, ch.
190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; June 6,
1940, ch. 242, 54 Stat. 234; Dec. 2, 1942, ch. 656, 1-3, 56 Stat.
1026).
Provisions including the districts of Hawaii and Puerto Rico, and the
District Court of the United States for the District of Columbia, in
section 901 of title 28, U.S.C., 1940 ed., were omitted as covered by
''any district court.'' See section 451 of this title.
Provisions in section 902 of title 28, U.S.C., 1940 ed., relating to
process, were omitted as covered by Rule 4 of the Federal Rules of Civil
Procedure.
Changes were made in phraseology.
This amendment conforms the language of section 2410(b) of title 28,
U.S.C., with that of the prior law with respect to service of process
and complaint upon the United States in suits brought in State courts.
This is provided for by rule 4(d)(4) of the Federal Rules of Civil
Procedure with respect to such suits in United States district courts.
The internal revenue laws, referred to in subsec. (b), are
classified generally to Title 26, Internal Revenue Code.
Section 7425 of the Internal Revenue Code of 1986, referred to in
subsec. (d), is classified to section 7425 of Title 26.
1991 -- Subsec. (c). Pub. L. 102-83 substituted ''section 3720 of
title 38'' for ''section 1820 of title 38''.
1990 -- Subsec. (c). Pub. L. 101-647 inserted at end ''In any case
where the United States is a bidder at the judicial sale, it may credit
the amount determined to be due it against the amount it bids at such
sales.''
1986 -- Subsec. (d). Pub. L. 99-514 substituted ''Internal Revenue
Code of 1986'' for ''Internal Revenue Code of 1954''.
1966 -- Subsec. (a). Pub. L. 89-719 substituted ''subject matter --
''(1) to quiet title to,
''(2) to foreclose a mortgage or other lien upon,
''(3) to partition,
''(4) to condemn, or
''(5) of interpleader or in the nature of interpleader with respect
to,''
for ''subject matter, to quiet title to or for the foreclosure of a
mortgage or other lien upon''.
Subsec. (b). Pub. L. 89-719 substituted ''complaint or pleading shall
set forth'' for ''complaint shall set forth'', and inserted sentence
requiring the complaint or pleading, in actions or suits involving liens
arising under the internal revenue laws, to include the name and address
of the taxpayer whose liability created the lien and, if a notice of the
tax lien was filed, the identity of the internal revenue office which
filed the notice, and the date and place such notice of lien was filed.
Subsec. (c). Pub. L. 89-719 substituted ''judgment or decree in such
action'' for ''judicial sale in such action'', ''discharge of the
property from the mortgage or other lien'' for ''discharge of the
property from liens and encumbrances'', and ''place where the court is
situated'' for ''place where the property is situated'', and inserted
provisions requiring an action to foreclose a mortgage or other lien, in
which the United States is named as a party under this section, to seek
a judicial sale, providing that the period of redemption where a sale is
made with respect to a lien arising under the internal revenue laws is
120 days or the period allowable for redemption under State law,
whichever is longer, and prohibiting the right of redemption in any case
which, under the provisions of section 1701k of Title 12 and section
1820(d) of Title 38, the right to redeem does not arise.
Subsecs. (d), (e). Pub. L. 89-719 added subsec. (d) and
redesignated former subsec. (d) as (e).
1960 -- Subsec. (b). Pub. L. 86-507 inserted ''or by certified
mail,'' after ''registered mail,''.
1958 -- Subsec. (a). Pub. L. 85-508 struck out provisions which
extended section to District Court for Territory of Alaska. See section
81A of this title which establishes a United States District Court for
the State of Alaska.
1949 -- Subsec. (b). Act May 24, 1949, conformed section with that
of prior law with respect to service of process and complaint upon the
United States in suits brought in State courts.
Amendment by Pub. L. 101-647 effective 180 days after Nov. 29,
1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date
note under section 3001 of this title.
Amendment by Pub. L. 89-719 applicable after Nov. 2, 1966, see
section 203 of Pub. L. 89-719, set out as a note under section 1346 of
this title.
Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of
Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24
F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L.
85-508, see notes set out under section 81A of this title and preceding
section 21 of Title 48, Territories and Insular Possessions.
Pleas and demurrers abolished, see rule 7, Appendix to this title.
Right of redemption under subsec. (c), exclusion where subordinate
lien of United States derives from insurance under National Housing Act
or Servicemen's Readjustment Act of 1944, see section 1701k of Title 12,
Banks and Banking.
sections 6327, 7424, 7425, 7434, 7810; title 38
section 3720.
28 USC 2411. Interest
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any judgment of any court rendered (whether against the United
States, a collector or deputy collector of internal revenue, a former
collector or deputy collector, or the personal representative in case of
death) for any overpayment in respect of any internal-revenue tax,
interest shall be allowed at the overpayment rate established under
section 6621 of the Internal Revenue Code of 1986 upon the amount of the
overpayment, from the date of the payment or collection thereof to a
date preceding the date of the refund check by not more than thirty
days, such date to be determined by the Commissioner of Internal
Revenue. The Commissioner is authorized to tender by check payment of
any such judgment, with interest as herein provided, at any time after
such judgment becomes final, whether or not a claim for such payment has
been duly filed, and such tender shall stop the running of interest,
whether or not such refund check is accepted by the judgment creditor.
(June 25, 1948, ch. 646, 62 Stat. 973; May 24, 1949, ch. 139, 120,
63 Stat. 106; Jan. 3, 1975, Pub. L. 93-625, 7(a)(2), 88 Stat. 2115;
Apr. 2, 1982, Pub. L. 97-164, title III, 302(b), 96 Stat. 56; Oct. 22,
1986, Pub. L. 99-514, 2, title XV, 1511(c)(18), 100 Stat. 2095,
2746.)
Based on title 28, U.S.C., 1940 ed., 765, 931(a), 932, Mar. 3,
1877, ch. 359, 10, 24 Stat. 507; Feb. 13, 1925, ch. 229, 8, 43
Stat. 940; Jan. 31, 1928, ch. 14, 1, 45 Stat. 54; Aug. 2, 1946,
ch. 753, 410(a), 411, 60 Stat. 843, 844).
Section consolidates section 765 with provisions of sections 931(a)
and 932, all of title 28, U.S.C., 1940 ed., relating to interest on
judgments, the latter two sections being applicable to judgments in tort
claims cases. For other provisions of said sections 931(a) and 932, see
Distribution Table. Said section 932 made the provisions of said
section 765 applicable to such judgments, therefore the provisions of
said section 931(a) that ''the United States shall not be liable for
interest prior to judgment'' was omitted as covered by the language of
said section 765 providing that interest shall be computed from the date
of the judgment.
Provisions of section 765 of title 28, U.S.C., 1940 ed., that when
the findings of fact and the law applicable thereto have been filed in
any case as provided in ''section 763'' (764) of title 28, U.S.C., 1940
ed., and the judgment or decree is adverse to the Government, it shall
be the duty of the district attorney to transmit to the Attorney General
of the United States certified copies of all the papers filed in the
cause, with a transcript of the testimony taken, the written findings of
the court, and his written opinion as to the same, that, whereupon, the
Attorney General shall determine and direct whether an appeal shall be
taken or not, and that, when so directed, the district attorney shall
cause an appeal to be perfected in accordance with the terms of the
statutes and rules of practice governing the same were omitted as
unnecessary and covered by section 507 of this title which provides for
supervision of United States attorneys by the Attorney General.
Words of section 765 of title 28, U.S.C., 1940 ed., ''Until the time
when an appropriation is made for the payment of the judgment or
decree'' were omitted and words ''up to, but not exceeding, thirty days
after the date of approval of any appropriation act providing for
payment of the judgment'' were substituted. Substituted words clarify
meaning and are in accord with congressional procedure in annual
deficiency appropriation acts for payment of judgments against the
United States. The substituted words will obviate necessity of
repeating such provisions in appropriation acts.
Changes were made in phraseology.
This section amends section 2411 of title 28, U.S.C., by restoring
the provisions of section 177 of the former Judicial Code for the
payment of interest on tax refunds.
Section 6621 of the Internal Revenue Code of 1986, referred to in
text, is classified to section 6621 of Title 26, Internal Revenue Code.
1986 -- Pub. L. 99-514, 1511(c)(18), substituted ''the overpayment
rate established under section 6621'' for ''an annual rate established
under section 6621''.
Pub. L. 99-514, 2, substituted ''Internal Revenue Code of 1986'' for
''Internal Revenue Code of 1954''.
1982 -- Pub. L. 97-164 struck out ''(a)'' before ''In any judgment''
and struck out subsec. (b) which provided that, except as otherwise
provided in subsection (a) of this section, on all final judgments
rendered against the United States in actions instituted under section
1346 of this title, interest was to be computed at the rate of 4 per
centum per annum from the date of the judgment up to, but not exceeding,
thirty days after the date of approval of any appropriation Act
providing for payment of the judgment.
1975 -- Subsec. (a). Pub. L. 93-625 substituted ''an annual rate
established under section 6621 of the Internal Revenue Code of 1954''
for ''the rate of 6 per centum per annum''.
1949 -- Act May 24, 1949, restored provisions relating to payment of
interest on tax refunds.
Amendment by Pub. L. 99-514 applicable for purposes of determining
interest for periods after Dec. 31, 1986, see section 1511(d) of Pub.
L. 99-514, set out as a note under section 6621 of Title 26, Internal
Revenue Code.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2412. Costs and fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this title, but not
including the fees and expenses of attorneys, may be awarded to the
prevailing party in any civil action brought by or against the United
States or any agency or any official of the United States acting in his
or her official capacity in any court having jurisdiction of such
action. A judgment for costs when taxed against the United States
shall, in an amount established by statute, court rule, or order, be
limited to reimbursing in whole or in part the prevailing party for the
costs incurred by such party in the litigation.
(2) A judgment for costs, when awarded in favor of the United States
in an action brought by the United States, may include an amount equal
to the filing fee prescribed under section 1914(a) of this title. The
preceding sentence shall not be construed as requiring the United States
to pay any filing fee.
(b) Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the costs
which may be awarded pursuant to subsection (a), to the prevailing party
in any civil action brought by or against the United States or any
agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action. The
United States shall be liable for such fees and expenses to the same
extent that any other party would be liable under the common law or
under the terms of any statute which specifically provides for such an
award.
(c)(1) Any judgment against the United States or any agency and any
official of the United States acting in his or her official capacity for
costs pursuant to subsection (a) shall be paid as provided in sections
2414 and 2517 of this title and shall be in addition to any relief
provided in the judgment.
(2) Any judgment against the United States or any agency and any
official of the United States acting in his or her official capacity for
fees and expenses of attorneys pursuant to subsection (b) shall be paid
as provided in sections 2414 and 2517 of this title, except that if the
basis for the award is a finding that the United States acted in bad
faith, then the award shall be paid by any agency found to have acted in
bad faith and shall be in addition to any relief provided in the
judgment.
(d)(1)(A) Except as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the United States
fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust.
(B) A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the party is a
prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized statement from
any attorney or expert witness representing or appearing in behalf of
the party stating the actual time expended and the rate at which fees
and other expenses were computed. The party shall also allege that the
position of the United States was not substantially justified. Whether
or not the position of the United States was substantially justified
shall be determined on the basis of the record (including the record
with respect to the action or failure to act by the agency upon which
the civil action is based) which is made in the civil action for which
fees and other expenses are sought.
(C) The court, in its discretion, may reduce the amount to be awarded
pursuant to this subsection, or deny an award, to the extent that the
prevailing party during the course of the proceedings engaged in conduct
which unduly and unreasonably protracted the final resolution of the
matter in controversy.
(2) For the purposes of this subsection --
(A) ''fees and other expenses'' includes the reasonable expenses of
expert witnesses, the reasonable cost of any study, analysis,
engineering report, test, or project which is found by the court to be
necessary for the preparation of the party's case, and reasonable
attorney fees (The amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of the
services furnished, except that (i) no expert witness shall be
compensated at a rate in excess of the highest rate of compensation for
expert witnesses paid by the United States; and (ii) attorney fees
shall not be awarded in excess of $75 per hour unless the court
determines that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.);
(B) ''party'' means (i) an individual whose net worth did not exceed
$2,000,000 at the time the civil action was filed, or (ii) any owner of
an unincorporated business, or any partnership, corporation,
association, unit of local government, or organization, the net worth of
which did not exceed $7,000,000 at the time the civil action was filed,
and which had not more than 500 employees at the time the civil action
was filed; except that an organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from
taxation under section 501(a) of such Code, or a cooperative association
as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C.
1141j(a)), may be a party regardless of the net worth of such
organization or cooperative association;
(C) ''United States'' includes any agency and any official of the
United States acting in his or her official capacity;
(D) ''position of the United States'' means, in addition to the
position taken by the United States in the civil action, the action or
failure to act by the agency upon which the civil action is based;
except that fees and expenses may not be awarded to a party for any
portion of the litigation in which the party has unreasonably protracted
the proceedings;
(E) ''civil action brought by or against the United States'' includes
an appeal by a party, other than the United States, from a decision of a
contracting officer rendered pursuant to a disputes clause in a contract
with the Government or pursuant to the Contract Disputes Act of 1978;
(F) ''court'' includes the United States Court of Federal Claims and
the United States Court of Veterans Appeals;
(G) ''final judgment'' means a judgment that is final and not
appealable, and includes an order of settlement; and
(H) ''prevailing party'', in the case of eminent domain proceedings,
means a party who obtains a final judgment (other than by settlement),
exclusive of interest, the amount of which is at least as close to the
highest valuation of the property involved that is attested to at trial
on behalf of the property owner as it is to the highest valuation of the
property involved that is attested to at trial on behalf of the
Government.
(3) In awarding fees and other expenses under this subsection to a
prevailing party in any action for judicial review of an adversary
adjudication, as defined in subsection (b)(1)(C) of section 504 of title
5, United States Code, or an adversary adjudication subject to the
Contract Disputes Act of 1978, the court shall include in that award
fees and other expenses to the same extent authorized in subsection (a)
of such section, unless the court finds that during such adversary
adjudication the position of the United States was substantially
justified, or that special circumstances make an award unjust.
(4) Fees and other expenses awarded under this subsection to a party
shall be paid by any agency over which the party prevails from any funds
made available to the agency by appropriation or otherwise.
(5) The Attorney General shall report annually to the Congress on the
amount of fees and other expenses awarded during the preceding fiscal
year pursuant to this subsection. The report shall describe the number,
nature, and amount of the awards, the claims involved in the
controversy, and any other relevant information which may aid the
Congress in evaluating the scope and impact of such awards.
(e) The provisions of this section shall not apply to any costs,
fees, and other expenses in connection with any proceeding to which
section 7430 of the Internal Revenue Code of 1986 applies (determined
without regard to subsections (b) and (f) of such section). Nothing in
the preceding sentence shall prevent the awarding under subsection (a)
of section 2412 of title 28, United States Code, of costs enumerated in
section 1920 of such title (as in effect on October 1, 1981).
(f) If the United States appeals an award of costs or fees and other
expenses made against the United States under this section and the award
is affirmed in whole or in part, interest shall be paid on the amount of
the award as affirmed. Such interest shall be computed at the rate
determined under section 1961(a) of this title, and shall run from the
date of the award through the day before the date of the mandate of
affirmance.
(June 25, 1948, ch. 646, 62 Stat. 973; July 18, 1966, Pub. L.
89-507, 1, 80 Stat. 308; Oct. 21, 1980, Pub. L. 96-481, title II,
204(a), (c), 94 Stat. 2327, 2329; Sept. 3, 1982, Pub. L. 97-248, title
II, 292(c), 96 Stat. 574; Aug. 5, 1985, Pub. L. 99-80, 2, 6, 99
Stat. 184, 186; Oct. 22, 1986, Pub. L. 99-514, 2, 100 Stat. 2095;
Oct. 29, 1992, Pub. L. 102-572, title III, 301(a), title V, 502(b),
506(a), title IX, 902(b)(1), 106 Stat. 4511-4513, 4516.)
Based on title 28, U.S.C., 1940 ed., 258, 931(a) (Mar. 3, 1911, ch.
231, 152, 36 Stat. 1138; Aug. 2, 1946, ch. 753, 410(a), 60 Stat.
843).
Section consolidates the last sentence of section 931(a) of title 28,
U.S.C., 1940 ed., with section 258 of said title 28. For other
provisions of said section 931(a), see Distribution Table.
Subsection (a) is new. It follows the well-known common-law rule
that a sovereign is not liable for costs unless specific provision for
such liability is made by law. This is a corollary to the rule that a
sovereign cannot be sued without its consent.
Many enactments of Congress relating to fees and costs contain
specific exceptions as to the liability of the United States. (See, for
example, section 548 of title 28, U.S.C., 1940 ed.) A uniform rule,
embodied in this section, will make such specific exceptions
unnecessary.
Subsection (b) incorporates section 258 of title 28, U.S.C., 1940 ed.
Subsection (c) incorporates the costs provisions of section 931(a) of
title 28, U.S.C., 1940 ed.
Words ''and for summoning the same,'' after ''witnesses,'' were
omitted from subsection (b) as covered by ''those actually incurred for
witnesses.''
Changes were made in phraseology.
The Contract Disputes Act of 1978, referred to in subsec. (d)(2)(E),
(3), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended,
which is classified principally to chapter 9 ( 601 et seq.) of Title 41,
Public Contracts. For complete classification of this Act to the Code,
see Short Title note set out under section 601 of Title 41 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in
subsec. (e), is classified to section 7430 of Title 26, Internal
Revenue Code.
1992 -- Subsec. (a). Pub. L. 102-572, 301(a), designated existing
provisions as par. (1) and added par. (2).
Subsec. (d)(2)(F). Pub. L. 102-572, 902(b)(1), substituted ''United
States Court of Federal Claims'' for ''United States Claims Court''.
Pub. L. 102-573, 506(a), inserted before semicolon at end ''and the
United States Court of Veterans Appeals''.
Subsec. (d)(5). Pub. L. 102-572, 502(b), substituted ''The Attorney
General shall report annually to the Congress on'' for ''The Director of
the Administrative Office of the United States Courts shall include in
the annual report prepared pursuant to section 604 of this title,''.
1986 -- Subsecs. (d)(2)(B), (e). Pub. L. 99-514 substituted
''Internal Revenue Code of 1986'' for ''Internal Revenue Code of 1954''.
1985 -- Subsecs. (a), (b). Pub. L. 99-80, 2(a)(1), substituted
''or any agency or any official of the United States'' for ''or any
agency and any official of the United States''.
Subsec. (d). Pub. L. 99-80, 6, repealed amendment made by Pub. L.
96-481, 204(c), and provided that subsec. (d) was effective on or
after Aug. 5, 1985, as if it had not been repealed by section 204(c).
See 1980 Amendment note and Revival of Previously Repealed Provisions
note below.
Subsec. (d)(1)(A). Pub. L. 99-80, 2(a)(2), inserted '', including
proceedings for judicial review of agency actions,'' after ''in tort)''.
Subsec. (d)(1)(B). Pub. L. 99-80, 2(b), inserted provisions
directing that whether or not the position of the United States was
substantially justified must be determined on the basis of the record
(including the record with respect to the action or failure to act by
the agency upon which the civil action was based) which is made in the
civil action for which fees and other expenses are sought.
Subsec. (d)(2)(B). Pub. L. 99-80, 2(c)(1), substituted
''$2,000,000'' for ''$1,000,000'' in cl. (i), and substituted ''or (ii)
any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization, the
net worth of which did not exceed $7,000,000 at the time the civil
action was filed, and which had not more than 500 employees at the time
the civil action was filed; except that an organization described in
section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.
501(c)(3)) exempt from taxation under section 501(a) of such Code, or a
cooperative association as defined in section 15(a) of the Agricultural
Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net
worth of such organization or cooperative association;'' for ''(ii) a
sole owner of an unincorporated business, or a partnership, corporation,
association, or organization whose net worth did not exceed $5,000,000
at the time the civil action was filed, except that an organization
described in section 501(c)(3) of the Internal Revenue Code of 1954 (26
U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code
and a cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party
regardless of the net worth of such organization or cooperative
association, or (iii) a sole owner of an unincorporated business, or a
partnership, corporation, association, or organization, having not more
than 500 employees at the time the civil action was filed; and''.
Subsec. (d)(2)(D) to (H). Pub. L. 99-80, 2(c)(2), added subpars.
(D) to (H).
Subsec. (d)(4). Pub. L. 99-80, 2(d), amended par. (4) generally.
Prior to amendment, par. (4) read as follows:
''(A) Fees and other expenses awarded under this subsection may be
paid by any agency over which the party prevails from any funds made
available to the agency, by appropriation or otherwise, for such
purpose. If not paid by any agency, the fees and other expenses shall
be paid in the same manner as the payment of final judgments is made in
accordance with sections 2414 and 2517 of this title.
''(B) There is authorized to be appropriated to each agency for each
of the fiscal years 1982, 1983, and 1984, such sums as may be necessary
to pay fees and other expenses awarded pursuant to this subsection in
such fiscal years.''
Subsec. (f). Pub. L. 99-80, 2(e), added subsec. (f).
1982 -- Subsec. (e). Pub. L. 97-248 added subsec. (e).
1980 -- Pub. L. 96-481, 204(a), designated existing provisions as
subsec. (a), struck out provision that payment of a judgment for costs
shall be as provided in section 2414 and section 2517 of this title for
the payment of judgments against the United States, and added subsecs.
(b) to (d). Pub. L. 96-481, 204(c), repealed subsec. (d) eff. Oct.
1, 1984. See Effective Date of 1980 Amendment note below.
1966 -- Pub. L. 89-507 empowered a court having jurisdiction to
award judgment for costs, except as otherwise specifically provided by
statute, to the prevailing party in any action brought by or against the
United States or any agency or official of the United States acting in
his official capacity, limited the judgment for costs when taxed against
the Government to reimbursing in whole or in part the prevailing party
for costs incurred by him in the litigation, required the payment of a
judgment for costs to be as provided in section 2414 and section 2517 of
this title for the payment of judgments against the United States and
eliminated provisions which limited the liability of the United States
for fees and costs to those cases in which liability was expressed
provided for by Act of Congress, permitted the district court or the
Court of Claims, in an action under section 1346(a) or 1491 of this
title if the United States put in issue plaintiff's right to recover, to
allow costs to the prevailing party from the time of joining such issue,
and which authorized the allowance of costs to the successful claimant
in an action under section 1346(b) of this title.
Section 506(b) of Pub. L. 102-572 provided that: ''The amendment
made by subsection (a) (amending this section) shall apply to any case
pending before the United States Court of Veterans Appeals on the date
of the enactment of this Act (Oct. 29, 1992), to any appeal filed in
that court on or after such date, and to any appeal from that court that
is pending on such date in the United States Court of Appeals for the
Federal Circuit.''
Section 506(d) of Pub. L. 102-572 provided that: ''This section
(amending this section and enacting provisions set out under this
section), and the amendment made by this section, shall take effect on
the date of the enactment of this Act (Oct. 29, 1992).''
Amendment by section 902(b)(1) of Pub. L. 102-572 effective Oct.
29, 1992, see section 911 of Pub. L. 102-572, set out as a note under
section 171 of this title.
Amendment by sections 301(a) and 502(b) of Pub. L. 102-572 effective
Jan. 1, 1993, see section 1101(a) of Pub. L. 102-572, set out as a
note under section 905 of Title 2, The Congress.
Amendment by Pub. L. 99-80 applicable to cases pending on or
commenced on or after Aug. 5, 1985, but with provision for additional
applicability to certain prior cases and to prior board of contracts
appeals cases, see section 7 of Pub. L. 99-80, set out as a note under
section 504 of Title 5, Government Organization and Employees.
Amendment by Pub. L. 97-248 applicable to civil actions or
proceedings commenced after Feb. 28, 1983, see section 292(e)(1) of
Pub. L. 97-248, set out as an Effective Date note under section 7430 of
Title 26, Internal Revenue Code.
Amendment by section 204(a) of Pub. L. 96-481 effective Oct. 1,
1981, and applicable to any adversary adjudication, as defined in
section 504(b)(1)(C) of Title 5, Government Organization and Employees,
and any civil action or adversary adjudication described in this section
which is pending on, or commenced on or after, such date, see section
208 of Pub. L. 96-481, set out as an Effective Date note under section
504 of Title 5.
Section 204(c) of Pub. L. 96-481 which provided in part that
effective Oct. 1, 1984, subsec. (d) of this section is repealed,
except that the provisions of subsec. (d) shall continue to apply
through final disposition of any adversary adjudication initiated before
the date of repeal, was repealed by Pub. L. 99-80, 6(b)(2), Aug. 5,
1985, 99 Stat. 186.
Section 3 of Pub. L. 89-507 provided that: ''These amendments
(amending this section and section 2520 of this title) shall apply only
to judgments entered in actions filed subsequent to the date of
enactment of this Act (July 18, 1966). These amendments shall not
authorize the reopening or modification of judgments entered prior to
the enactment of this Act (July 18, 1966).''
For revival of subsec. (d) of this section effective on or after
Aug. 5, 1985, as if it had not been repealed by section 204(c) of Pub.
L. 96-481, and repeal of section 204(c) of Pub. L. 96-481, see section
6 of Pub. L. 99-80, set out as a note under section 504 of Title 5,
Government Organization and Employees.
Section 206 of Pub. L. 96-481, as amended by Pub. L. 99-80, 3,
Aug. 5, 1985, 99 Stat. 186, provided that:
''(a) Except as provided in subsection (b), nothing in section
2412(d) of title 28, United States Code, as added by section 204(a) of
this title, alters, modifies, repeals, invalidates, or supersedes any
other provision of Federal law which authorizes an award of such fees
and other expenses to any party other than the United States that
prevails in any civil action brought by or against the United States.
''(b) Section 206(b) of the Social Security Act (42 U.S.C.
406(b)(1)) shall not prevent an award of fees and other expenses under
section 2412(d) of title 28, United States Code. Section 206(b)(2) of
the Social Security Act shall not apply with respect to any such award
but only if, where the claimant's attorney receives fees for the same
work under both section 206(b) of that Act and section 2412(d) of title
28, United States Code, the claimant's attorney refunds to the claimant
the amount of the smaller fee.''
Section 506(c) of Pub. L. 102-572 provided that: ''Section 5904(d)
of title 38, United States Code, shall not prevent an award of fees and
other expenses under section 2412(d) of title 28, United States Code.
Section 5904(d) of title 38, United States Code, shall not apply with
respect to any such award but only if, where the claimant's attorney
receives fees for the same work under both section 5904 of title 38,
United States Code, and section 2412(d) of title 28, United States Code,
the claimant's attorney refunds to the claimant the amount of the
smaller fee.''
Liability of United States for costs, see rule 54, Appendix to this
title.
title 15 section 2060; title 18 section 293; title
25 section 450m-1; title 26 section 7430; title 31
ction 3730; title 41 section 253d;
title 42 sections 3612, 3614, 9606.
28 USC 2413. Executions in favor of United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A writ of execution on a judgment obtained for the use of the United
States in any court thereof shall be issued from and made returnable to
the court which rendered the judgment, but may be executed in any other
State, in any Territory, or in the District of Columbia.
(June 25, 1948, ch. 646, 62 Stat. 974.)
Based on title 28, U.S.C., 1940 ed., 839 (R.S. 986).
Words ''or in the District of Columbia'' were added on the authority
of 14 Op. Atty. Gen. 384, declaring that, under this section, a writ of
execution in favor of the United States, obtained from a Federal court
in any State, could be executed in the District of Columbia. (See,
also, section 1963 of this title.)
Changes in phraseology were made.
28 USC 2414. Payment of judgments and compromise settlements
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as provided by the Contract Disputes Act of 1978, payment of
final judgments rendered by a district court or the Court of
International Trade against the United States shall be made on
settlements by the General Accounting Office. Payment of final
judgments rendered by a State or foreign court or tribunal against the
United States, or against its agencies or officials upon obligations or
liabilities of the United States, shall be made on settlements by the
General Accounting Office after certification by the Attorney General
that it is in the interest of the United States to pay the same.
Whenever the Attorney General determines that no appeal shall be
taken from a judgment or that no further review will be sought from a
decision affirming the same, he shall so certify and the judgment shall
be deemed final.
Except as otherwise provided by law, compromise settlements of claims
referred to the Attorney General for defense of imminent litigation or
suits against the United States, or against its agencies or officials
upon obligations or liabilities of the United States, made by the
Attorney General or any person authorized by him, shall be settled and
paid in a manner similar to judgments in like causes and appropriations
or funds available for the payment of such judgments are hereby made
available for the payment of such compromise settlements.
(June 25, 1948, ch. 646, 62 Stat. 974; Aug. 30, 1961, Pub. L.
87-187, 1, 75 Stat. 415; Nov. 1, 1978, Pub. L. 95-563, 14(d), 92
Stat. 2390; Oct. 10, 1980, Pub. L. 96-417, title V, 512, 94 Stat.
1744.)
Based on section 228 of title 31, U.S.C., 1940 ed., Money and Finance
(Feb. 18, 1904, ch. 160, 1, 33 Stat. 41; June 10, 1921, ch. 18, 304,
42 Stat. 24).
Similar provisions of section 228 of title 31, U.S.C., 1940 ed.,
relating to judgments of the court of claims are incorporated in section
2517 of this title.
The second paragraph was added to make clear that the payment of
judgments not appealed may be expedited by certificate to that effect.
Changes were made in phraseology.
The Contract Disputes Act of 1978, referred to in first paragraph, is
Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is
classified principally to chapter 9 ( 601 et seq.) of Title 41, Public
Contracts. For complete classification of this Act to the Code, see
Short Title note set out under section 601 of Title 41 and Tables.
1980 -- Pub. L. 96-417 provided for payment of final judgments
rendered by the Court of International Trade against the United States
on settlements by the General Accounting Office.
1978 -- Pub. L. 95-563 inserted Contract Disputes Act of 1978
exception.
1961 -- Pub. L. 87-187 provided for payment of final judgments
rendered by a State or foreign court against the United States, its
agencies or officials and compromise settlements and substituted ''and
compromise settlements'' for ''against the United States'' in section
catchline.
Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable
with respect to civil actions pending on or commenced on or after such
date, see section 701(a) of Pub. L. 96-417, set out as a note under
section 251 of this title.
Amendment by Pub. L. 95-563 effective with respect to contracts
entered into 120 days after Nov. 1, 1978, and, at the election of the
contractor, with respect to any claim pending at such time before the
contracting officer or initiated thereafter, see section 16 of Pub. L.
95-563, set out as an Effective Date note under section 601 of Title 41,
Public Contracts.
Appropriations for payments of judgments against the United States,
computation of interest time, see section 1304 of Title 31, Money and
Finance.
460bb-2; title 23 section 307; title 31 section
1304.
28 USC 2415. Time for commencing actions brought by the United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Subject to the provisions of section 2416 of this title, and
except as otherwise provided by Congress, every action for money damages
brought by the United States or an officer or agency thereof which is
founded upon any contract express or implied in law or fact, shall be
barred unless the complaint is filed within six years after the right of
action accrues or within one year after final decisions have been
rendered in applicable administrative proceedings required by contract
or by law, whichever is later: Provided, That in the event of later
partial payment or written acknowledgment of debt, the right of action
shall be deemed to accrue again at the time of each such payment or
acknowledgment: Provided further, That an action for money damages
brought by the United States for or on behalf of a recognized tribe,
band or group of American Indians shall not be barred unless the
complaint is filed more than six years and ninety days after the right
of action accrued: Provided further, That an action for money damages
which accrued on the date of enactment of this Act in accordance with
subsection (g) brought by the United States for or on behalf of a
recognized tribe, band, or group of American Indians, or on behalf of an
individual Indian whose land is held in trust or restricted status,
shall not be barred unless the complaint is filed sixty days after the
date of publication of the list required by section 4(c) of the Indian
Claims Limitation Act of 1982: Provided, That, for those claims that
are on either of the two lists published pursuant to the Indian Claims
Limitation Act of 1982, any right of action shall be barred unless the
complaint is filed within (1) one year after the Secretary of the
Interior has published in the Federal Register a notice rejecting such
claim or (2) three years after the date the Secretary of the Interior
has submitted legislation or legislative report to Congress to resolve
such claim or more than two years after a final decision has been
rendered in applicable administrative proceedings required by contract
or by law, whichever is later.
(b) Subject to the provisions of section 2416 of this title, and
except as otherwise provided by Congress, every action for money damages
brought by the United States or an officer or agency thereof which is
founded upon a tort shall be barred unless the complaint is filed within
three years after the right of action first accrues: Provided, That an
action to recover damages resulting from a trespass on lands of the
United States; an action to recover damages resulting from fire to such
lands; an action to recover for diversion of money paid under a grant
program; and an action for conversion of property of the United States
may be brought within six years after the right of action accrues,
except that such actions for or on behalf of a recognized tribe, band or
group of American Indians, including actions relating to allotted trust
or restricted Indian lands, may be brought within six years and ninety
days after the right of action accrues, except that such actions for or
on behalf of a recognized tribe, band, or group of American Indians,
including actions relating to allotted trust or restricted Indian lands,
or on behalf of an individual Indian whose land is held in trust or
restricted status which accrued on the date of enactment of this Act in
accordance with subsection (g) may be brought on or before sixty days
after the date of the publication of the list required by section 4(c)
of the Indian Claims Limitation Act of 1982: Provided, That, for those
claims that are on either of the two lists published pursuant to the
Indian Claims Limitation Act of 1982, any right of action shall be
barred unless the complaint is filed within (1) one year after the
Secretary of the Interior has published in the Federal Register a notice
rejecting such claim or (2) three years after the Secretary of the
Interior has submitted legislation or legislative report to Congress to
resolve such claim.
(c) Nothing herein shall be deemed to limit the time for bringing an
action to establish the title to, or right of possession of, real or
personal property.
(d) Subject to the provisions of section 2416 of this title and
except as otherwise provided by Congress, every action for the recovery
of money erroneously paid to or on behalf of any civilian employee of
any agency of the United States or to or on behalf of any member or
dependent of any member of the uniformed services of the United States,
incident to the employment or services of such employee or member, shall
be barred unless the complaint is filed within six years after the right
of action accrues: Provided, That in the event of later partial payment
or written acknowledgment of debt, the right of action shall be deemed
to accrue again at the time of each such payment or acknowledgment.
(e) In the event that any action to which this section applies is
timely brought and is thereafter dismissed without prejudice, the action
may be recommenced within one year after such dismissal, regardless of
whether the action would otherwise then be barred by this section. In
any action so recommenced the defendant shall not be barred from
interposing any claim which would not have been barred in the original
action.
(f) The provisions of this section shall not prevent the assertion,
in an action against the United States or an officer or agency thereof,
of any claim of the United States or an officer or agency thereof
against an opposing party, a co-party, or a third party that arises out
of the transaction or occurrence that is the subject matter of the
opposing party's claim. A claim of the United States or an officer or
agency thereof that does not arise out of the transaction or occurrence
that is the subject matter of the opposing party's claim may, if
time-barred, be asserted only by way of offset and may be allowed in an
amount not to exceed the amount of the opposing party's recovery.
(g) Any right of action subject to the provisions of this section
which accrued prior to the date of enactment of this Act shall, for
purposes of this section, be deemed to have accrued on the date of
enactment of this Act.
(h) Nothing in this Act shall apply to actions brought under the
Internal Revenue Code or incidental to the collection of taxes imposed
by the United States.
(i) The provisions of this section shall not prevent the United
States or an officer or agency thereof from collecting any claim of the
United States by means of administrative offset, in accordance with
section 3716 of title 31.
(Added Pub. L. 89-505, 1, July 18, 1966, 80 Stat. 304; amended Pub.
L. 92-353, July 18, 1972, 86 Stat. 499; Pub. L. 92-485, Oct. 13, 1972,
86 Stat. 803; Pub. L. 95-64, July 11, 1977, 91 Stat. 268; Pub. L.
95-103, Aug. 15, 1977, 91 Stat. 842; Pub. L. 96-217, 1, Mar. 27, 1980,
94 Stat. 126; Pub. L. 97-365, 9, Oct. 25, 1982, 96 Stat. 1754; Pub.
L. 97-394, title I, 2, Dec. 30, 1982, 96 Stat. 1976; Pub. L. 97-452,
2(d)(2), Jan. 12, 1983, 96 Stat. 2478; Pub. L. 98-250, 4(a), Apr. 3,
1984, 98 Stat. 118.)
The date of enactment of this Act, referred to in subsecs. (a), (b),
and (g), means the date of enactment of Pub. L. 89-505, which was
approved July 18, 1966.
The Indian Claims Limitation Act of 1982, referred to in subsecs.
(a) and (b), is Pub. L. 97-394, title I, 2-6, Dec. 30, 1982, 96
Stat. 1976-1978, which amended this section and enacted provisions set
out as notes below. For complete classification of this Act to the
Code, see Short Title of 1982 Amendment note set out below and Tables.
This Act, referred to in subsec. (h), probably means Pub. L.
89-505, July 18, 1966, 80 Stat. 304, which enacted this section and
section 2416 of this title. For complete classification of this Act to
the Code, see Tables.
1984 -- Subsecs. (a), (b). Pub. L. 98-250 substituted ''Indian
Claims Limitation Act of 1982'' for ''Indian Claims Act of 1982''
wherever appearing.
1983 -- Subsec. (i). Pub. L. 97-452 substituted ''section 3716 of
title 31'' for ''section 5 of the Federal Claims Collection Act of
1966''.
1982 -- Subsec. (a). Pub. L. 97-394, 2(a), substituted ''sixty days
after the date of publication of the list required by section 4(c) of
the Indian Claims Act of 1982: Provided, That, for those claims that
are on either of the two lists published pursuant to the Indian Claims
Act of 1982, any right of action shall be barred unless the complaint is
filed within (1) one year after the Secretary of the Interior has
published in the Federal Register a notice rejecting such claim or (2)
three years after the date the Secretary of the Interior has submitted
legislation or legislative report to Congress to resolve such claim''
for ''after December 31, 1982'' in third proviso.
Subsec. (b). Pub. L. 97-394, 2(b), substituted ''sixty days after
the date of the publication of the list required by section 4(c) of the
Indian Claims Act of 1982: Provided, That, for those claims that are on
either of the two lists published pursuant to the Indian Claims Act of
1982, any right of action shall be barred unless the complaint is filed
within (1) one year after the Secretary of the Interior has published in
the Federal Register a notice rejecting such claim or (2) three years
after the Secretary of the Interior has submitted legislation or
legislative report to Congress to resolve such claim'' for ''December
31, 1982'' at end of proviso.
Subsec. (i). Pub. L. 97-365 added subsec. (i).
1980 -- Subsec. (a). Pub. L. 96-217, 1(a), substituted ''December
31, 1982'' for ''April 30, 1980''.
Subsec. (b). Pub. L. 96-217, 1(b), substituted ''December 31, 1982''
for ''April 1, 1980''.
1977 -- Subsec. (a). Pub. L. 95-103, 1(a), substituted ''after
April 1, 1980'' for ''after August 18, 1977''.
Pub. L. 95-64, 1(a), substituted ''unless the complaint is filed
after August 18, 1977'' for ''unless the complaint is filed more than
eleven years after the right of action accrued'' in proviso covering
actions for money damages brought by the United States for or on behalf
of a recognized tribe, band, or group of American Indians, or on behalf
of an individual Indian whose land is held in trust or restricted status
based upon rights of action which accrued on July 18, 1966, in
accordance with subsec. (g).
Subsec. (b). Pub. L. 95-103, 1(b), substituted ''on or before April
1, 1980'' for ''on or before August 18, 1977''.
Pub. L. 95-64, 1(b), substituted ''may be brought on or before
August 18, 1977'' for ''may be brought within eleven years after the
right of action accrues'' in proviso covering actions for or on behalf
of recognized tribes, bands, or groups of American Indians, including
actions related to allotted trust or restricted Indian lands, or on
behalf of an individual Indian whose land is held in trust or restricted
status based upon rights of action which accrued on July 18, 1966, in
accordance with subsec. (g).
1972 -- Subsec. (a). Pub. L. 92-485, 1(a), inserted proviso
relating to actions for money damages brought by the United States for
or on behalf of a recognized tribe, band, or group of American Indians,
or on behalf of an individual Indian whose land is held in trust or
restricted status.
Pub. L. 92-353, 1(a), inserted proviso that an action for money
damages brought by the United States on behalf of American Indians shall
not be barred unless the complaint is filed more than six years and
ninety days after the right of action accrued.
Subsec. (b). Pub. L. 92-485, 1(b), inserted exception relating to
actions for or on behalf of a recognized tribe, band, or group of
American Indians, including actions relating to allotted trust or
restricted Indian lands, or on behalf of an individual Indian whose land
is held in trust or restricted status.
Pub. L. 92-353, 1(b), increased the period of limitation to six
years and ninety days for actions brought by the United States under the
subsection for or on behalf of American Indians.
Section 1 of Pub. L. 97-394, as amended by Pub. L. 98-250, 4(b),
Apr. 3, 1984, 98 Stat. 119, provided that: ''Sections 2 through 6 of
this Act (amending this section and enacting provisions set out below)
may be cited as the 'Indian Claims Limitation Act of 1982'.''
Time to Commence Action;
Rejection of Claims;
Claims Resolved By Legislation
Sections 3 to 6 of Pub. L. 97-394 provided that:
''Sec. 3. (a) Within ninety days after the enactment of this Act
(Dec. 30, 1982), the Secretary of the Interior (hereinafter referred to
as the 'Secretary') shall publish in the Federal Register a list of all
claims accruing to any tribe, band or group of Indians or individual
Indian on or before July 18, 1966, which have at any time been
identified by or submitted to the Secretary under the 'Statute of
Limitation Project' undertaken by the Department of the Interior and
which, but for the provisions of this Act (see Short Title of 1982
Amendment note above), would be barred by the provisions of section 2415
of title 28, United States Code: Provided, That the Secretary shall
have the discretion to exclude from such list any matter which was
erroneously identified as a claim and which has no legal merit
whatsoever.
''(b) Such list shall group the claims on a
reservation-by-reservation, tribe-by-tribe, or State-by-State basis, as
appropriate, and shall state the nature and geographic location of each
claim and only such other additional information as may be needed to
identify specifically such claims.
''(c) Within thirty days after the publication of this list, the
Secretary shall provide a copy of the Indian Claims Limitation Act of
1982 (see Short Title of 1982 Amendment note above) and a copy of the
Federal Register containing this list, or such parts as may be
pertinent, to each Indian tribe, band or group whose rights or the
rights of whose members could be affected by the provisions of section
2415 of title 28, United States Code.
''Sec. 4. (a) Any tribe, band or group of Indians or any individual
Indian shall have one hundred and eighty days after the date of the
publication in the Federal Register of the list provided for in section
3 of this Act to submit to the Secretary any additional specific claim
or claims which such tribe, band or group of Indians or individual
Indian believes may be affected by section 2415 of title 28, United
States Code, and desires to have considered for litigation or
legislation by the United States.
''(b) Any such claim submitted to the Secretary shall be accompanied
by a statement identifying the nature of the claim, the date when the
right of action allegedly accrued, the names of the potential plaintiffs
and defendants, if known, and such other information needed to identify
and evaluate such claim.
''(c) Not more than thirty days after the expiration of the one
hundred and eighty day period provided for in subsection (a) of this
section, the Secretary shall publish in the Federal Register a list
containing the additional claims submitted during such period:
Provided, That the Secretary shall have the discretion to exclude from
such list any matter which has not been sufficiently identified as a
claim.
''Sec. 5. (a) Any right of action shall be barred sixty days after
the date of the publication of the list required by section 4(c) of this
Act for those pre-1966 claims which, but for the provisions of this Act
(see Short Title of 1982 Amendment note above), would have been barred
by section 2415 of title 28, United States Code, unless such claims are
included on either of the lists required by section 3 or 4(c) of this
Act.
''(b) If the Secretary decides to reject for litigation any of the
claims or groups or categories of claims contained on either of the
lists required by section 3 or 4(c) of this Act, he shall send a report
to the appropriate tribe, band, or group of Indians, whose rights or the
rights of whose members could be affected by such rejection, advising
them of his decision. The report shall identify the nature and
geographic location of each rejected claim and the name of the potential
plaintiffs and defendants if they are known or can be reasonably
ascertained and shall, briefly, state the reasons why such claim or
claims were rejected for litigation. Where the Secretary knows or can
reasonably ascertain the identity of any of the potential individual
Indian plaintiffs and their present addresses, he shall provide them
with written notice of such rejection. Upon the request of any Indian
claimant, the Secretary shall, without undue delay, provide to such
claimant any nonprivileged research materials or evidence gathered by
the United States in the documentation of such claim.
''(c) The Secretary, as soon as possible after providing the report
required by subsection (b) of this section, shall publish a notice in
the Federal Register identifying the claims covered in such report.
With respect to any claim covered by such report, any right of action
shall be barred unless the complaint is filed within one year after the
date of publication in the Federal Register.
''Sec. 6. (a) If the Secretary determines that any claim or claims
contained in either of the lists as provided in sections 3 or 4(c) of
this Act is not appropriate for litigation, but determines that such
claims may be appropriately resolved by legislation, he shall submit to
the Congress legislation to resolve such claims or shall submit to
Congress a report setting out options for legislative resolution of such
claims.
''(b) Any right of action on claims covered by such legislation or
report shall be barred unless the complaint is filed within 3 years
after the date of submission of such legislation or legislative report
to Congress.''
Section 2 of Pub. L. 96-217 provided that: ''Not later than June
30, 1981, the Secretary of the Interior, after consultation with the
Attorney General, shall submit to the Congress legislative proposals to
resolve those Indian claims subject to the amendments made by the first
section of this Act (amending this section) that the Secretary of the
Interior or the Attorney General believes are not appropriate to resolve
by litigation.''
28 USC 2416. Time for commencing actions brought by the United States
-- Exclusions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For the purpose of computing the limitations periods established in
section 2415, there shall be excluded all periods during which --
(a) the defendant or the res is outside the United States, its
territories and possessions, the District of Columbia, or the
Commonwealth of Puerto Rico; or
(b) the defendant is exempt from legal process because of infancy,
mental incompetence, diplomatic immunity, or for any other reason; or
(c) facts material to the right of action are not known and
reasonably could not be known by an official of the United States
charged with the responsibility to act in the circumstances; or
(d) the United States is in a state of war declared pursuant to
article I, section 8, of the Constitution of the United States.
(Added Pub. L. 89-505, 1, July 18, 1966, 80 Stat. 305.)
28 USC CHAPTER 163 -- FINES, PENALTIES AND FORFEITURES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2461. Mode of recovery.
2462. Time for commencing proceedings.
2463. Property taken under revenue law not repleviable.
2464. Security; special bond.
2465. Return of property to claimant; certificate of reasonable
cause; liability for wrongful seizure.
28 USC 2461. Mode of recovery
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Whenever a civil fine, penalty or pecuniary forfeiture is
prescribed for the violation of an Act of Congress without specifying
the mode of recovery or enforcement thereof, it may be recovered in a
civil action.
(b) Unless otherwise provided by Act of Congress, whenever a
forfeiture of property is prescribed as a penalty for violation of an
Act of Congress and the seizure takes place on the high seas or on
navigable waters within the admiralty and maritime jurisdiction of the
United States, such forfeiture may be enforced by libel in admiralty but
in cases of seizures on land the forfeiture may be enforced by a
proceeding by libel which shall conform as near as may be to proceedings
in admiralty.
(June 25, 1948, ch. 646, 62 Stat. 974.)
Subsection (a) was drafted to clarify a serious ambiguity in existing
law and is based upon rulings of the Supreme Court. Numerous sections
in the United States Code prescribe civil fines, penalties, and
pecuniary forfeitures for violation of certain sections without
specifying the mode of recovery or enforcement thereof. See, for
example, section 567 of title 12, U.S.C., 1940 ed., Banks and Banking,
section 64 of title 14, U.S.C., 1940 ed., Coast Guard, and section 180
of title 25, U.S.C., 1940 ed., Indians. Compare section 1 (21) of title
49, U.S.C., 1940 ed., Transportation.
A civil fine, penalty, or pecuniary forfeiture is recoverable in a
civil action. United States ex rel. Marcus v. Hess et al., 1943, 63
S.Ct. 379, 317 U.S. 537, 87 L.Ed. 433, rehearing denied 63 S.Ct. 756,
318 U.S. 799, 87 L.Ed. 1163; Hepner v. United States, 1909, 29 S.Ct.
474, 213 U.S. 103, 53 L.Ed. 720, and cases cited therein.
Forfeiture of bail bonds in criminal cases are enforceable by
procedure set out in Rule 46 of the Federal Rules of Criminal Procedure.
If the statute contemplates a criminal fine, it can only be recovered
in a criminal proceeding under the Federal Rules of Criminal Procedure,
after a conviction. The collection of civil fines and penalties,
however, may not be had under the Federal Rules of Criminal Procedure,
Rule 54(b)(5), but enforcement of a criminal fine imposed in a criminal
case may be had by execution on the judgment rendered in such case, as
in civil actions. (See section 569 of title 18, U.S.C., 1940 ed.,
Crimes and Criminal Procedure, incorporated in section 3565 of H.R.
1600, 80th Congress, for revision of the Criminal Code. See also Rule 69
of Federal Rules of Civil Procedure and Advisory Committee Note
thereunder, as to execution in civil actions.)
Subsection (b) was drafted to cover the subject of forfeiture of
property generally. Sections in the United States Code specifically
providing a mode of enforcement of forfeiture of property for their
violation and other procedural matters will, of course, govern and
subsection (b) will not affect them. It will only cover cases where no
mode of recovery is prescribed.
Words ''Unless otherwise provided by enactment of Congress'' were
inserted at the beginning of subsection (b) to exclude from its
application instances where a libel in admiralty is not required. For
example, under sections 1607, 1609, and 1610 of title 19, U.S.C., 1940
ed., Customs Duties, the collector of customs may, by summary procedure,
sell at public auction, without previous declaration of forfeiture or
libel proceedings, any vessel, etc., under $1,000 in value in cases
where no claim for the same is filed or bond given as required by
customs laws.
Rule 81 of the Federal Rules of Civil Procedure makes such rules
applicable to the appeals in cases of seizures on land. (See also 443
Cans of Frozen Egg Product v. United States, 1912, 33 S.Ct. 50, 226 U.S.
172, 57 L.Ed. 174, and Eureka Productions v. Mulligan, C.C.A. 1940, 108
F.2d 760.) The proceeding, which resembles a suit in admiralty in that
it is begun by a libel, is, strictly speaking, an ''action at law'' (The
Sarah, 1823, 8 Wheat. 391, 21 U.S. 391, 5 L.Ed. 644; Morris's Cotton,
1869, 8 Wall. 507, 75 U.S. 507, 19 L.Ed. 481; Confiscation cases, 1873,
20 Wall. 92, 87 U.S. 92, 22 L.Ed. 320; Eureka Productions v. Mulligan,
supra), even though the statute may direct that the proceedings conform
to admiralty as near as may be. In re Graham, 1870, 10 Wall. 541, 19
L.Ed. 981, and 443 Cans of Frozen Egg Product v. United States, supra.
Subsection (b) is in conformity with Rule 21 of the Supreme Court
Admiralty Rules, which recognizes that a libel may be filed upon seizure
for any breach of any enactment of Congress, whether on land or on the
high seas or on navigable waters within the admiralty and maritime
jurisdiction of the United States. Such rule also permits an
information to be filed, but is rarely, if ever, used at present.
Consequently, ''information'' has been omitted from the text and only
''libel'' is incorporated.
Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, provided that:
''Section 1. This Act may be cited as the 'Federal Civil Penalties
Inflation Adjustment Act of 1990'.
''Sec. 2. (a) Findings. -- The Congress finds that --
''(1) the power of Federal agencies to impose civil monetary
penalties for violations of Federal law and regulations plays an
important role in deterring violations and furthering the policy goals
embodied in such laws and regulations;
''(2) the impact of many civil monetary penalties has been and is
diminished due to the effect of inflation;
''(3) by reducing the impact of civil monetary penalties, inflation
has weakened the deterrent effect of such penalties; and
''(4) the Federal Government does not maintain comprehensive,
detailed accounting of the efforts of Federal agencies to assess and
collect civil monetary penalties.
''(b) Purpose. -- The purpose of this Act is to establish a mechanism
that shall --
''(1) allow for regular adjustment for inflation of civil monetary
penalties;
''(2) maintain the deterrent effect of civil monetary penalties and
promote compliance with the law; and
''(3) improve the collection by the Federal Government of civil
monetary penalties.
''Sec. 3. For purposes of this Act, the term --
''(1) 'agency' means an Executive agency as defined under section 105
of title 5, United States Code, and includes the United States Postal
Service;
''(2) 'civil monetary penalty' means any penalty, fine, or other
sanction that --
''(A)(i) is for a specific monetary amount as provided by Federal
law; or
''(ii) has a maximum amount provided for by Federal law; and
''(B) is assessed or enforced by an agency pursuant to Federal law;
and
''(C) is assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts; and
''(3) 'Consumer Price Index' means the Consumer Price Index for
all-urban consumers published by the Department of Labor.
''Sec. 4. Within 6 months after the date of the enactment of this Act
(Oct. 5, 1990), and on January 1 of each fifth calendar year thereafter,
the President shall submit a report on civil monetary penalty inflation
adjustment to the Committee on Governmental Affairs of the Senate and
the Committee on Government Operations of the House of Representatives.
Such report shall include --
''(1) each civil monetary penalty as defined under section 3(2);
''(2) the date each civil monetary penalty was most recently set
pursuant to law;
''(3) the maximum amount of each civil monetary penalty or, if
applicable, the range of the minimum and maximum amounts of each civil
monetary penalty in effect on the date of the submission of such report;
''(4) the amount of each civil monetary penalty described under
paragraph (3) other than any such penalty for which inflation adjustment
is provided by law, if each such penalty is increased by the adjustment
described under section 5; and
''(5) a listing of the modifications to Federal law that would be
required to --
''(A) increase each penalty described in paragraph (1) by the
adjustments described under section 5, excluding any penalty for which
inflation adjustment is provided by law or that has been increased
within the 5-year period immediately preceding the date of the
submission of such report; and
''(B) provide that any increase in any civil monetary penalty shall
apply only to violations which occur after the date any such increase
takes effect.
''Sec. 5. (a) Adjustment. -- The adjustment described under
paragraphs (4) and (5)(A) of section 4 shall be determined by increasing
the maximum civil monetary penalty or the range of minimum and maximum
civil monetary penalties, as applicable, for each civil monetary penalty
by the cost-of-living adjustment. Any increase determined under this
subsection shall be rounded to the nearest --
''(1) multiple of $10 in the case of penalties less than or equal to
$100;
''(2) multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
''(3) multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;
''(4) multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
''(5) multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
''(6) multiple of $25,000 in the case of penalties greater than
$200,000.
''(b) Definition. -- For purposes of subsection (a), the term
'cost-of-living adjustment' means the percentage (if any) for each civil
monetary penalty by which --
''(1) the Consumer Price Index for the month of June of the calendar
year preceding the adjustment, exceeds
''(2) the Consumer Price Index for the month of June of the calendar
year in which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
''Sec. 6. No later than January 1 of each year, the President shall
submit a report on civil monetary penalties to the Congress which shall
include --
''(1) to the extent possible, the number and amount of civil monetary
penalties imposed pursuant to each provision of law providing for such
civil monetary penalties, during the complete fiscal year preceding the
submission of such report;
''(2) to the extent possible, the number and amount of such civil
penalties collected during such fiscal year; and
''(3) any recommendations that the President determines appropriate
to --
''(A) eliminate obsolete civil monetary penalties;
''(B) modify the amount of any civil monetary penalty; or
''(C) make any other legislative modifications concerning civil
monetary penalties.''
Memorandum of President of the United States, May 3, 1991, 56 F.R.
21911, delegated to Director of Office of Management and Budget
responsibility of President for submitting reports on civil monetary
penalties to Committee on Governmental Affairs of the Senate and
Committee on Government Operations of the House of Representatives and
to Congress as required by sections 4 and 6 of the Federal Civil
Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, set out as
a note above.
Admiralty and maritime rules of practice (which included libel
procedures) were superseded, and civil and admiralty procedures in
United States district courts were unified, effective July 1, 1966, see
rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims,
Appendix to this title.
28 USC 2462. Time for commencing proceedings
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as otherwise provided by Act of Congress, an action, suit or
proceeding for the enforcement of any civil fine, penalty, or
forfeiture, pecuniary or otherwise, shall not be entertained unless
commenced within five years from the date when the claim first accrued
if, within the same period, the offender or the property is found within
the United States in order that proper service may be made thereon.
(June 25, 1948, ch. 646, 62 Stat. 974.)
Based on title 28, U.S.C., 1940 ed., 791 (R.S. 1047).
Changes were made in phraseology.
28 USC 2463. Property taken under revenue law not repleviable
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
All property taken or detained under any revenue law of the United
States shall not be repleviable, but shall be deemed to be in the
custody of the law and subject only to the orders and decrees of the
courts of the United States having jurisdiction thereof.
(June 25, 1948, ch. 646, 62 Stat. 974.)
Based on title 28, U.S.C., 1940 ed., 747 (R.S. 934).
Changes were made in phraseology.
28 USC 2464. Security; special bond
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except in cases of seizures for forfeiture under any law of the
United States, whenever a warrant of arrest or other process in rem is
issued in any admiralty case, the United States marshal shall stay the
execution of such process, or discharge the property arrested if the
process has been levied, on receiving from the respondent or claimant of
the property a bond or stipulation in double the amount claimed by the
libellant, with sufficient surety, to be approved by the judge of the
district court where the case is pending, or, in his absence, by the
collector of the port, conditioned to answer the decree of the court in
such case. Such bond or stipulation shall be returned to the court, and
judgment or decree thereon, against both the principal and sureties, may
be secured at the time of rendering the decree in the original case.
The owner of any vessel may deliver to the marshal a bond or
stipulation, with sufficient surety, to be approved by the judge of the
district court, conditioned to answer the decree of such court in all or
any cases that are brought thereafter in such court against the vessel.
Thereupon the execution of all such process against such vessel shall be
stayed so long as the amount secured by such bond or stipulation is at
least double the aggregate amount claimed by libellants in such suits
which are begun and pending against such vessel. Similar judgments or
decrees and remedies may be had on such bond or stipulation as if a
special bond or stipulation had been filed in each of such suits.
(b) The court may make necessary orders to carry this section into
effect, particularly in giving proper notice of any such suit. Such
bond or stipulation shall be indorsed by the clerk with a minute of the
suits wherein process is so stayed. Further security may be required by
the court at any time.
(c) If a special bond or stipulation in the particular case is given
under this section, the liability as to said case on the general bond or
stipulation shall cease. The parties may stipulate the amount of the
bond or stipulation for the release of a vessel or other property to be
not more than the amount claimed in the libel, with interest, plus an
allowance for libellant's costs. In the event of the inability or
refusal of the parties to so stipulate, the court shall fix the amount,
but if not so fixed then a bond shall be required in the amount
prescribed in this section.
(June 25, 1948, ch. 646, 62 Stat. 974.)
Based on title 28, U.S.C., 1940 ed., 754 (R.S. 941; Mar. 3, 1899,
ch. 441, 30 Stat. 1354; Aug. 3, 1935, ch. 431, 3, 49 Stat. 513).
Changes were made in phraseology.
All offices of collector of customs, comptroller of customs, surveyor
of customs, and appraiser of merchandise of Bureau of Customs of
Department of the Treasury to which appointments were required to be
made by the President with the advice and consent of the Senate were
ordered abolished, with such offices to be terminated not later than
Dec. 31, 1966, by Reorg. Plan No. 1, of 1965, eff. May 25, 1965, 30
F.R. 7035, 79 Stat. 1317, set out in the Appendix to Title 5,
Government Organization and Employees. All functions of the offices
eliminated were already vested in the Secretary of the Treasury by
Reorg. Plan No. 26 of 1950, eff. July 31, 1950, 15 F.R. 4935, 64
Stat. 1280, set out in the Appendix to Title 5.
Admiralty and maritime rules of practice (which included libel
procedures) were superseded, and civil and admiralty procedures in
United States district courts were unified, effective July 1, 1966, see
rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims,
Appendix to this title.
28 USC 2465. Return of property to claimant; certificate of
reasonable cause; liability for wrongful seizure
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Upon the entry of judgment for the claimant in any proceeding to
condemn or forfeit property seized under any Act of Congress, such
property shall be returned forthwith to the claimant or his agent; but
if it appears that there was reasonable cause for the seizure, the court
shall cause a proper certificate thereof to be entered and the claimant
shall not, in such case, be entitled to costs, nor shall the person who
made the seizure, nor the prosecutor, be liable to suit or judgment on
account of such suit or prosecution.
(June 25, 1948, ch. 646, 62 Stat. 975.)
Based on title 28, U.S.C., 1940 ed., 818, 827 (R.S. 970, 979).
Section consolidates sections 818 and 827 of title 28, U.S.C., 1940
ed., with changes of phraseology necessary to effect the consolidation.
The words ''in any proceeding to condemn or forfeit property'' were
inserted in conformity with the uniform course of judicial decisions.
See Hammel v. Little, App.D.C. 1936, 87 F.2d 907, and cases there
cited.
The qualifying language of section 827 of title 28, U.S.C., 1940 ed.,
requiring the claimant to pay his own costs before the return of his
property was omitted as unnecessary and involving a matter more properly
for regulation by rule of court. (See sections 1913, 1914, and 1925 of
this title.)
(See also section 2006 of this title with respect to actions against
internal revenue officers and their liability for acts in the
performance of official duties.)
28 USC CHAPTER 165 -- UNITED STATES COURT OF FEDERAL CLAIMS PROCEDURE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2501. Time for filing suit.
2502. Aliens' privilege to sue.
2503. Proceedings generally.
2504. Plaintiff's testimony.
2505. Trial before judges.
2506. Interest of witness.
2507. Calls and discovery.
2508. Counterclaim or set-off. /1/
2509. Congressional reference cases.
2510. Referral of cases by Comptroller General.
2511. Accounts of officers, agents or contractors.
2512. Disbursing officers; relief.
2513. Unjust conviction and imprisonment.
2514. Forfeiture of fraudulent claims.
2515. New trial, stay of judgment.
2516. Interest on claims and judgments.
2517. Payment of judgments.
(2518. Repealed.)
2519. Conclusiveness of judgment.
2520. Fees.
2521. Subpoenas and incidental powers.
2522. Notice of appeal.
1992 -- Pub. L. 102-572, title IX, 902(a)(1), 910(b), Oct. 29,
1992, 106 Stat. 4516, 4520, substituted ''UNITED STATES COURT OF
FEDERAL CLAIMS'' for ''UNITED STATES CLAIMS COURT'' in chapter heading
and inserted ''and incidental powers'' in item 2521.
1982 -- Pub. L. 97-164, title I, 139(b)(2), (i)(2), (l), (n)(4),
(o)(2), (q)(2), Apr. 2, 1982, 96 Stat. 42-44, substituted ''UNITED
STATES CLAIMS COURT'' for ''COURT OF CLAIMS'' in chapter heading,
substituted ''Proceedings generally'' for ''Proceedings before
commissioners generally'' in item 2503, substituted ''Referral of cases
by Comptroller General'' for ''Referral of cases by the Comptroller
General or the head of an executive department or agency'' in item 2510,
struck out item 2518 ''Certification of judgments for appropriation'',
substituted ''Fees'' for ''Fees; cost of printing record'' in item
2520, and added item 2522.
1978 -- Pub. L. 95-563, 14(h)(2)(B), Nov. 1, 1978, 92 Stat. 2390,
inserted ''or the head of an executive department or agency'' after
''Comptroller General'' in item 2510.
1954 -- Act Sept. 3, 1954, ch. 1263, 46, 54(c), 55(d), 59(b), 68
Stat. 1243, 1247, 1248, substituted ''Trial before judges'' for ''Place
of taking evidence'' in item 2505, and ''Calls and discovery,'' for
''Calls on departments for information'' in item 2507, rephrased item
2510, and added item 2521.
/1/ So in original. Does not conform to section catchline.
28 USC 2501. Time for filing suit
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Every claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within
six years after such claim first accrues.
Every claim under section 1497 of this title shall be barred unless
the petition thereon is filed within two years after the termination of
the river and harbor improvements operations on which the claim is
based.
A petition on the claim of a person under legal disability or beyond
the seas at the time the claim accrues may be filed within three years
after the disability ceases.
A suit for the fees of an officer of the United States shall not be
filed until his account for such fees has been finally acted upon,
unless the General Accounting Office fails to act within six months
after receiving the account.
(June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263, 52,
68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I, 139(a), 96 Stat.
42; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a)(1), 106 Stat.
4516.)
Based on title 28, U.S.C., 1940 ed., 250(2), 250a, and 262 (Mar.
3, 1911, ch. 231, 145, 156, 36 Stat. 1136, 1139; June 10, 1921, ch.
18, 304, 42 Stat. 24; Aug. 30, 1935, ch. 831, 13, 49 Stat. 1049;
July 13, 1943, ch. 231, 57 Stat. 553).
Section consolidates limitation provisions of sections 250(2), 250a,
and 262 of title 28, U.S.C., 1940 ed.
Words ''a person under legal disability or beyond the seas at the
time the claim accrues'' were substituted for ''married women first
accrued during marriage, of persons under the age of twenty-one years
first accrued during minority, and of idiots, lunatics, insane persons,
and persons beyond the seas at the time the claim accrued; entitled to
the claim,''. The revised language will cover all legal disabilities
actually barring suit. For example, the particular reference to married
women is archaic, and is eliminated by use of the general language
substituted.
Words ''nor shall any of the said disabilities operate cumulatively''
were omitted, in view of the elimination of the reference to specific
disabilities. Also, persons under legal disability could not sue, and
their suits should not be barred until they become able to sue. Similar
sections of the U.S. Code do not contain any such provision. (For
example, see section 502 of title 28, U.S.C., 1940 ed., incorporated in
section 544 of this title.)
The section was extended to include claims referred by the head of an
executive department in conformity with section 2510 of this title.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
1954 -- Act Sept. 3, 1954, struck out '', or the claim is referred
by the Senate or House of Representatives, or by the head of an
executive department'' in first par.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Use or manufacture by United States of design relating to aircraft or
aircraft component, time for filing action, see section 2273 of Title
10, Armed Forces.
28 USC 2502. Aliens' privilege to sue
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Citizens or subjects of any foreign government which accords to
citizens of the United States the right to prosecute claims against
their government in its courts may sue the United States in the United
States Court of Federal Claims if the subject matter of the suit is
otherwise within such court's jurisdiction.
(b) See section 7422(f) of the Internal Revenue Code of 1986 for
exception with respect to suits involving internal revenue taxes.
(June 25, 1948, ch. 646, 62 Stat. 976; Nov. 2, 1966, Pub. L.
89-713, 3(b), 80 Stat. 1108; Apr. 2, 1982, Pub. L. 97-164, title I,
139(a), 96 Stat. 42; Oct. 22, 1986, Pub. L. 99-514, 2, 100 Stat.
2095; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a)(1), 106 Stat.
4516.)
Based on title 28, U.S.C., 1940 ed., 261 (Mar. 3, 1911, ch. 231,
155, 36 Stat. 1139).
Changes were made in phraseology.
Section 7422(f) of the Internal Revenue Code of 1986, referred to in
subsec. (b), is classified to section 7422(f) of Title 26, Internal
Revenue Code.
1992 -- Subsec. (a). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1986 -- Subsec. (b). Pub. L. 99-514 substituted ''Internal Revenue
Code of 1986'' for ''Internal Revenue Code of 1954''.
1982 -- Subsec. (a). Pub. L. 97-164 substituted ''United States
Claims Court'' for ''Court of Claims''.
1966 -- Pub. L. 89-713 designated existing provisions as subsec.
(a) and added subsec. (b).
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Amendment by Pub. L. 89-713 applicable to suits brought against
officers, employees, or personal representatives instituted 90 days or
more after Nov. 2, 1966, see section 3(d) of Pub. L. 89-713, set out
as a note under section 7422 of Title 26, Internal Revenue Code.
28 USC 2503. Proceedings generally
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Parties to any suit in the United States Court of Federal Claims
may appear before a judge of that court in person or by attorney,
produce evidence, and examine witnesses.
(b) The proceedings of the Court of Federal Claims shall be in
accordance with such rules of practice and procedure (other than the
rules of evidence) as the Court of Federal Claims may prescribe and in
accordance with the Federal Rules of Evidence.
(c) The judges of the Court of Federal Claims shall fix times for
trials, administer oaths or affirmations, examine witnesses, receive
evidence, and enter dispositive judgments. Hearings shall, if
convenient, be held in the counties where the witnesses reside.
(d) For the purpose of construing sections 1821, 1915, 1920, and 1927
of this title, the United States Court of Federal Claims shall be deemed
to be a court of the United States.
(June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263, 53,
68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I, 139(b)(1), 96
Stat. 42; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a), 909, 106
Stat. 4516, 4519.)
Based on title 28, U.S.C., 1940 ed., 269, 276, and 278 (Mar. 3,
1911, ch. 231, 168, 170, 36 Stat. 1140; Feb. 24, 1925, ch. 301, 1,
43 Stat. 964; June 23, 1930, ch. 573, 2, 46 Stat. 799).
Section consolidates provisions relating to proceedings before
commissioners and reporter-commissioners contained in sections 269, 276,
and 278 of title 28, U.S.C., 1940 ed.
Provisions of section 269 of title 28, U.S.C., 1940 ed., relating to
appointment and compensation of commissioners are incorporated in
section 792 of this title.
Words ''including reporter-commissioners'' after ''commissioners''
were inserted to clarify meaning and conform to Rule 54(a) of the Court
of Claims authorizing oaths before reporter-commissioners.
Changes were made in phraseology.
The Senate amended this section by inserting ''and when directed by
the court his recommendations for conclusions of law'' following
''commissioner'' in the second paragraph. This amendment authorizes the
Court to direct its commissioners to report recommendations for
conclusions of law as well as findings of fact in cases assigned to
them. 80th Congress Senate Report No. 1559, Amendment No. 50.
The Federal Rules of Evidence, referred to in subsec. (b), are set
out in the Appendix to this title.
1992 -- Subsec. (a). Pub. L. 102-572, 902(a)(1), substituted
''United States Court of Federal Claims'' for ''United States Claims
Court''.
Subsecs. (b), (c). Pub. L. 102-572, 902(a)(2), substituted ''Court
of Federal Claims'' for ''Claims Court'' wherever appearing.
Subsec. (d). Pub. L. 102-572, 909, added subsec. (d).
1982 -- Pub. L. 97-164 substituted ''Proceedings generally'' for
''Proceedings before commissioners generally'' in section catchline.
Subsec. (a). Pub. L. 97-164 substituted ''Parties to any suit in the
United States Claims Court may appear before a judge of that court in
person or by attorney, produce evidence, and examine witnesses'' for
''Parties to any suit in the Court of Claims may appear before a
commissioner in person or by attorney, produce evidence and examine
witnesses'' and redesignated as subsec. (c) provisions that, in
accordance with rules and orders of the court, commissioners would fix
times for trials, administer oaths or affirmations to and examine
witnesses, receive evidence and report findings of fact, that when
directed by the court, commissioners would report their recommendations
for conclusions of law in cases assigned to them, and that hearings
would, if convenient, be held in the counties where the witnesses
resided.
Subsec. (b). Pub. L. 97-164 substituted ''The proceedings of the
Claims Court shall be in accordance with such rules of practice and
procedure (other than the rules of evidence) as the Claims Court may
prescribe and in accordance with the Federal Rules of Evidence'' for
''The rules of the court shall provide for the filing in court of the
commissioner's report of facts and recommendations for conclusions of
law, and for opportunity for the parties to file exceptions thereto, and
a hearing thereon before the court within a reasonable time'' and struck
out provision that this section did not prevent the court from passing
upon all questions and findings regardless of whether exceptions were
taken before a commissioner.
Subsec. (c). Pub. L. 97-164 redesignated provisions in second and
third sentences of former subsec. (a) as (c) and substituted ''The
judges of the Claims Court'' for ''In accordance with rules and orders
of the court, commissioners'' and ''enter dispositive judgments'' for
''report findings of fact and, when directed by the court, their
recommendations for conclusions of law in cases assigned to them''.
1954 -- Act Sept. 3, 1954, designated former first par. subsec.
(a), and former second par. subsec. (b), and incorporated in one place
provisions relating to function of Commissioners.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2504. Plaintiff's testimony
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States Court of Federal Claims may, at the instance of the
Attorney General, order any plaintiff to appear, upon reasonable notice,
before any judge of the court and be examined on oath as to all matters
pertaining to his claim. Such examination shall be reduced to writing
by the judge, and shall be returned to and filed in the court, and may,
at the discretion of the attorneys for the United States, be read and
used as evidence on the trial. If any plaintiff, after such order is
made and due and reasonable notice thereof is given to him, fails to
appear, or refuses to testify or answer fully as to all material matters
within his knowledge, the court may order that the case shall not be
tried until he fully complies with such order.
(June 25, 1948, ch. 646, 62 Stat. 976; Apr. 2, 1982, Pub. L.
97-164, title I, 139(c), 96 Stat. 42; Oct. 29, 1992, Pub. L. 102-572,
title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 274 (Mar. 3, 1911, ch. 231,
166, 36 Stat. 1140).
Words ''Attorney General'' were substituted for ''attorney or
solicitor appearing in behalf of the United States,'' in view of section
309 of title 5, U.S.C., 1940 ed., Executive Departments and Government
Officers and Employees.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims'', and ''judge'' for ''commissioner'' wherever
appearing.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2505. Trial before judges
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any judge of the United States Court of Federal Claims may sit at any
place within the United States to take evidence and enter judgment.
(June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263,
54(a), (b), 68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I,
139(d), 96 Stat. 42; Oct. 29, 1992, Pub. L. 102-572, title IX,
902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 275 and 275a (Mar. 3, 1911,
ch. 231, 167, 36 Stat. 1140; Feb. 24, 1925, ch. 301, 2, 43 Stat.
965; June 23, 1930, ch. 573, 1, 46 Stat. 799; Oct. 16, 1941, ch.
443, 55 Stat. 741).
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims'' and ''enter judgment'' for ''report findings''.
1954 -- Act Sept. 3, 1954, substituted ''Trial before judges'' for
''Place of taking evidence'' in section catchline and repealed second
par. relating to taking of testimony.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2506. Interest of witness
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A witness in a suit in the United States Court of Federal Claims
shall not be exempt or disqualified because he is a party to or
interested in such suit.
(June 25, 1948, ch. 646, 62 Stat. 977; Apr. 2, 1982, Pub. L.
97-164, title I, 139(e), 96 Stat. 42; Oct. 29, 1992, Pub. L. 102-572,
title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 274 (Mar. 3, 1911, ch. 231,
186, 36 Stat. 1143; Feb. 5, 1912, ch. 28, 37 Stat. 61).
A provision that a witness should not be disqualified by color was
omitted as obsolete and unnecessary, since no such disqualification
could be invoked in absence of statutory authority.
A provision that the United States could examine any plaintiff or
party interested is covered by the word ''exempt'' in the revised
section, and by section 2504 of this title.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2507. Calls and discovery
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The United States Court of Federal Claims may call upon any
department or agency of the United States or upon any party for any
information or papers, not privileged, for purposes of discovery or for
use as evidence. The head of any department or agency may refuse to
comply with a call issued pursuant to this subsection when, in his
opinion, compliance will be injurious to the public interest.
(b) Without limitation on account of anything contained in subsection
(a) of this section, the court may, in accordance with its rules,
provide additional means for the discovery of any relevant facts, books,
papers, documents or tangible things, not privileged.
(c) The Court of Federal Claims may use all recorded and printed
reports made by the committees of the Senate or House of
Representatives.
(June 25, 1948, ch. 646, 62 Stat. 977; Sept. 3, 1954, ch. 1263,
55(a)-(c), 68 Stat. 1247; Apr. 2, 1982, Pub. L. 97-164, title I,
139(f), 96 Stat. 42; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a),
106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 272 (Mar. 3, 1911, ch. 231,
164, 36 Stat. 1140).
Words ''or agency'' were added. (See reviser's note under section
1345 of this title.)
Changes were made in phraseology.
1992 -- Subsec. (a). Pub. L. 102-572, 902(a)(1), substituted
''United States Court of Federal Claims'' for ''United States Claims
Court''.
Subsec. (c). Pub. L. 102-572, 902(a)(2), substituted ''Court of
Federal Claims'' for ''Claims Court''.
1982 -- Subsec. (a). Pub. L. 97-164, 139(f)(1), substituted
''United States Claims Court'' for ''Court of Claims''.
Subsec. (c). Pub. L. 97-164, 139(f)(2), substituted ''Claims Court''
for ''Court of Claims''.
1954 -- Act Sept. 3, 1954, substituted ''Calls and discovery'' for
''Calls on departments for information'' in section catchline,
designated existing provisions as subsec. (a), and added subsecs. (b)
and (c).
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2508. Counterclaim or set-off; registration of judgment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Upon the trial of any suit in the United States Court of Federal
Claims in which any setoff, counterclaim, claim for damages, or other
demand is set up on the part of the United States against any plaintiff
making claim against the United States in said court, the court shall
hear and determine such claim or demand both for and against the United
States and plaintiff.
If upon the whole case it finds that the plaintiff is indebted to the
United States it shall render judgment to that effect, and such judgment
shall be final and reviewable.
The transcript of such judgment, filed in the clerk's office of any
district court, shall be entered upon the records and shall be
enforceable as other judgments.
(June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, 10,
67 Stat. 227; Sept. 3, 1954, ch. 1263, 47(a), 68 Stat. 1243; Apr. 2,
1982, Pub. L. 97-164, title I, 139(g), 96 Stat. 42; Oct. 29, 1992,
Pub. L. 102-572, title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 252 (Mar. 3, 1911, ch. 231,
146, 36 Stat. 1137).
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
1954 -- Act Sept. 3, 1954, struck out ''United States'' from name of
Court of Claims in first par.
1953 -- Act July 28, 1953, substituted ''United States Court of
Claims'' for ''Court of Claims'' in first par., and substituted ''shall
be enforceable as other judgments'' for ''be a judgment of such district
court and enforceable as such'' in third par.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2509. Congressional reference cases
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Whenever a bill, except a bill for a pension, is referred by
either House of Congress to the chief judge of the United States Court
of Federal Claims pursuant to section 1492 of this title, the chief
judge shall designate a judge as hearing officer for the case and a
panel of three judges of the court to serve as a reviewing body. One
member of the review panel shall be designated as presiding officer of
the panel.
(b) Proceedings in a congressional reference case shall be under
rules and regulations prescribed for the purpose by the chief judge who
is hereby authorized and directed to require the application of the
pertinent rules of practice of the Court of Federal Claims insofar as
feasible. Each hearing officer and each review panel shall have
authority to do and perform any acts which may be necessary or proper
for the efficient performance of their duties, including the power of
subpoena and the power to administer oaths and affirmations. None of
the rules, rulings, findings, or conclusions authorized by this section
shall be subject to judicial review.
(c) The hearing officer to whom a congressional reference case is
assigned by the chief judge shall proceed in accordance with the
applicable rules to determine the facts, including facts relating to
delay or laches, facts bearing upon the question whether the bar of any
statute of limitation should be removed, or facts claimed to excuse the
claimant for not having resorted to any established legal remedy. He
shall append to his findings of fact conclusions sufficient to inform
Congress whether the demand is a legal or equitable claim or a gratuity,
and the amount, if any, legally or equitable due from the United States
to the claimant.
(d) The findings and conclusions of the hearing officer shall be
submitted by him, together with the record in the case, to the review
panel for review by it pursuant to such rules as may be provided for the
purpose, which shall include provision for submitted the report of the
hearing officer to the parties for consideration, exception, and
argument before the panel. The panel, by majority vote, shall adopt or
modify the findings or the conclusions of the hearing officer.
(e) The panel shall submit its report to the chief judge for
transmission to the appropriate House of Congress.
(f) Any act or failure to act or other conduct by a party, a witness,
or an attorney which would call for the imposition of sanctions under
the rules of practice of the Court of Federal Claims shall be noted by
the panel or the hearing officer at the time of occurrence thereof and
upon failure of the delinquent or offending party, witness, or attorney
to make prompt compliance with the order of the panel or the hearing
officer a full statement of the circumstances shall be incorporated in
the report of the panel.
(g) The Court of Federal Claims is hereby authorized and directed,
under such regulations as it may prescribe, to provide the facilities
and services of the office of the clerk of the court for the filing,
processing, hearing, and dispatch of congressional reference cases and
to include within its annual appropriations the costs thereof and other
costs of administration, including (but without limitation to the items
herein listed) the salaries and traveling expenses of the judges serving
as hearing officers and panel members, mailing and service of process,
necessary physical facilities, equipment, and supplies, and personnel
(including secretaries and law clerks).
(June 25, 1948, ch. 646, 62 Stat. 977; Oct. 15, 1966, Pub. L.
89-681, 2, 80 Stat. 958; Apr. 2, 1982, Pub. L. 97-164, title I,
139(h), 96 Stat. 42; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a),
106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 257 (Mar. 3, 1911, ch. 231,
151, 36 Stat. 1138).
Jurisdiction provisions of section 257 of title 28, U.S.C., 1940 ed.,
appear in section 1492 of this title.
A provision as to the court's power to render judgment on a referred
claim and its duty to report thereon to Congress, was omitted from this
section as covered by sections 791(c) and 1492 of this title.
Changes were made in phraseology.
1992 -- Subsec. (a). Pub. L. 102-572, 902(a)(1), substituted
''United States Court of Federal Claims'' for ''United States Claims
Court''.
Subsecs. (b), (f), (g). Pub. L. 102-572, 902(a)(2), substituted
''Court of Federal Claims'' for ''Claims Court''.
1982 -- Subsec. (a). Pub. L. 97-164, 139(h)(1), substituted ''chief
judge'' for ''chief commissioner'' wherever appearing, ''United States
Claims Court'' for ''Court of Claims'', ''judge as hearing officer'' for
''trial commissioner'', ''judges'' for ''commissioners'', and
''presiding officer'' for ''presiding commissioner''.
Subsec. (b). Pub. L. 97-164, 139(h)(2)(A)-(C), substituted ''chief
judge'' for ''chief commissioner'', ''Claims Court'' for ''Court of
Claims'', and ''hearing officer'' for ''trial commissioner''.
Subsec. (c). Pub. L. 97-164, 139(h)(2)(A), (B), substituted
''hearing officer'' for ''trial commissioner'' and ''chief judge'' for
''chief commissioner''.
Subsec. (d). Pub. L. 97-164, 139(h)(2)(A), (D), substituted
''hearing officer'' for ''trial commissioner'' wherever appearing and
struck out ''of commissioners'' after ''review panel''.
Subsec. (e). Pub. L. 97-164, 139(h)(2)(B), substituted ''chief
judge'' for ''chief commissioner''.
Subsec. (f). Pub. L. 97-164, 139(h)(2)(A), (C), substituted ''Claims
Court'' for ''Court of Claims'', and ''hearing officer'' for ''trial
commissioner'' wherever appearing.
Subsec. (g). Pub. L. 97-164, 139(h)(2)(C), (E), substituted ''Claims
Court'' for ''Court of Claims'' and ''judges serving as hearing
officers'' for ''commissioners serving as trial commissioners''.
1966 -- Pub. L. 89-681 substituted provisions for reference of bills
to the chief commissioner of the Court of Claims pursuant to section
1492 of this title for provisions calling simply for reference to the
Court of Claims, substituted provisions naming the trial commissioner to
whom a reference case is assigned by the chief commissioner for
provisions simply naming the Court of Claims as the agency by which
findings and conclusions are made, and inserted provisions for the
designation of a trial commissioner and reviewing body consisting of
three other commissioners, the promulgation of rules and regulations for
Congressional reference cases by the chief commissioner, the procedure
to be followed, and the supplying of facilities and personnel for the
dispatch of Congressional reference cases.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2510. Referral of cases by Comptroller General
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Comptroller General may transmit to the United States Court
of Federal Claims for trial and adjudication any claim or matter of
which the Court of Federal Claims might take jurisdiction on the
voluntary action of the claimant, together with all vouchers, papers,
documents, and proofs pertaining thereto.
(b) The Court of Federal Claims shall proceed with the claims or
matters so referred as in other cases pending in such Court and shall
render judgment thereon.
(June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, 11,
67 Stat. 227; Sept. 3, 1954, ch. 1263, 47(b), 68 Stat. 1243; Nov. 1,
1978, Pub. L. 95-563, 14(h)(1), (2)(A), 92 Stat. 2390; Apr. 2, 1982,
Pub. L. 97-164, title I, 139(i)(1), 96 Stat. 43; Oct. 29, 1992, Pub.
L. 102-572, title IX, 902(a), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 254 and 255 (Mar. 3, 1911, ch.
231, 148, 149, 36 Stat. 1137, 1138; June 10, 1921, ch. 18, 304, 42
Stat. 24).
Section consolidates procedural provisions of sections 254 and 255 of
title 28, U.S.C., 1940 ed., relating to departmental reference cases.
Jurisdiction provisions of such section 254 appear in section 1493 of
this title.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court'' and ''Court of Federal
Claims'' for ''Claims Court'' wherever appearing.
1982 -- Pub. L. 97-164 substituted ''Referral of cases by
Comptroller General'' for ''Referral of cases by the Comptroller General
or the head of an executive department or agency'' in section catchline.
Subsec. (a). Pub. L. 97-164 substituted ''transmit to the United
States Claims Court for trial and adjudication any claim or matter of
which the Claims Court might take jurisdiction'' for ''transmit to the
Court of Claims for trial and adjudication any claim or matter of which
the Court of Claims might take jurisdiction'' in first sentence of
subsec. (a). The second sentence of subsec. (a) was redesignated (b).
Subsec. (b). Pub. L. 97-164 designated as subsec. (b) the former
second sentence of subsec. (a) and substituted ''The Claims Court'' for
''The Court of Claims'' and ''Court'' for ''court''. Former subsec.
(b), which provided that the head of any executive department or agency
could, with the prior approval of the Attorney General, refer to the
Court of Claims for judicial review any final decision rendered by a
board of contract appeals pursuant to the terms of any contract with the
United States awarded by that department or agency which such head of
such department or agency had concluded was not entitled to finality
pursuant to the review standards specified in section 10(b) of the
Contracts Disputes Act of 1978, with the head of each executive
department or agency to make any referral under this section within 120
days of the receipt of a copy of the final appeal decision, that the
Court of Claims was to review the matter referred in accordance with the
standards specified in section 10(b) of the Contracts Disputes Act of
1978, and that the court was to proceed with judicial review on the
administrative record made before the board of contract appeals on
matters so referred as in other cases pending in such court, determine
the issue of finality of the appeal decision, and render judgment
thereon, take additional evidence, or remand the matter pursuant to the
authority specified in section 1491 of this title was struck out.
1978 -- Pub. L. 95-563, inserted ''or the head of an executive
department or agency'' in section catchline, designated existing
provisions as subsec. (a), and added subsec. (b).
1954 -- Act Sept. 3, 1954, substituted ''Referral of cases by
Comptroller General'' for ''Departmental reference cases'' in section
catchline.
1953 -- Act July 28, 1953, struck out provisions relating to
procedure in connection with departmental reference cases provided for
by former section 1493 of this title; and, in connection with trial and
adjudication of cases referred by the Comptroller General, inserted
provision for rendering judgment, and struck out requirement that such
cases be transmitted through the Secretary of the Treasury.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Amendment by Pub. L. 95-563 effective with respect to contracts
entered into 120 days after Nov. 1, 1978, and, at the election of the
contractor, with respect to any claim pending at such time before the
contracting officer or initiated thereafter, see section 16 of Pub. L.
95-563, set out as an Effective Date note under section 601 of Title 41,
Public Contracts.
28 USC 2511. Accounts of officers, agents or contractors
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Notice of suit under section 1494 of this title shall be given to the
Attorney General, to the Comptroller General, and to the head of the
department requested to settle the account in question.
The judgment of the United States Court of Federal Claims in such
suit shall be conclusive upon the parties, and payment of the amount
found due shall discharge the obligation.
The transcript of such judgment, filed in the clerk's office of any
district court, shall be entered upon the records, and shall be
enforceable as other judgments.
(June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, 12,
67 Stat. 227; Apr. 2, 1982, Pub. L. 97-164, title I, 139(j), 96 Stat.
43; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a)(1), 106 Stat.
4516.)
Based on title 28, U.S.C., 1940 ed., 287 (Mar. 3, 1911, ch. 231,
180, 36 Stat. 1141; Feb. 13, 1925, ch. 229, 3, 43 Stat. 939).
Words ''The Attorney General shall represent the United States at the
hearing of said cause'' were omitted as covered by sections 309 and 310
of title 5, U.S.C., 1940 ed., Executive Departments and Government
Officers and Employees.
Jurisdiction provisions of section 287 of title 28, U.S.C., 1940 ed.,
appear in section 1494 of this title.
A provision for continuances was omitted as unnecessary, in view of
the inherent power of the court to grant continuances in any suit.
A provision in section 287 of title 28, U.S.C., 1940 ed., that
section 274 of title 28, U.S.C., 1940 ed., should apply to cases under
such section 287 was omitted as covered by section 2504 of this title.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''The judgment of the United
States Claims Court in such suit shall be conclusive'' for ''The
judgment of the Court of Claims in such suit, or of the Supreme Court
upon review, shall be conclusive''.
1953 -- Act July 28, 1953, inserted ''to the Comptroller General,''
in first par., struck out third par. which provided for accrual to the
United States of a right of action upon the judgment, with a limitation
period extending to three years after judgment, and inserted provisions
for filing and recording the transcript of such judgment in the clerk's
office of any district court and for enforcement thereof.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2512. Disbursing officers; relief
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever the United States Court of Federal Claims finds that any
loss by a disbursing officer of the United States was without his fault
or negligence, it shall render a judgment setting forth the amount
thereof, and the General Accounting Office shall allow the officer such
amount as a credit in the settlement of his accounts.
(June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L.
97-164, title I, 139(j)(2), 96 Stat. 43; Oct. 29, 1992, Pub. L.
102-572, title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 253 (Mar. 3, 1911, ch. 231,
147, 36 Stat. 1137; June 10, 1921, ch. 18, 304, 42 Stat. 24).
Words ''paymaster, quartermaster, commissary of subsistence, or
other'' were omitted as covered by words ''disbursing officer of the
United States''. (See reviser's note under section 1496 of this title.)
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2513. Unjust conviction and imprisonment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Any person suing under section 1495 of this title must allege and
prove that:
(1) His conviction has been reversed or set aside on the ground that
he is not guilty of the offense of which he was convicted, or on new
trial or rehearing he was found not guilty of such offense, as appears
from the record or certificate of the court setting aside or reversing
such conviction, or that he has been pardoned upon the stated ground of
innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or
omissions in connection with such charge constituted no offense against
the United States, or any State, Territory or the District of Columbia,
and he did not by misconduct or neglect cause or bring about his own
prosecution.
(b) Proof of the requisite facts shall be by a certificate of the
court or pardon wherein such facts are alleged to appear, and other
evidence thereof shall not be received.
(c) No pardon or certified copy of a pardon shall be considered by
the United States Court of Federal Claims unless it contains recitals
that the pardon was granted after applicant had exhausted all recourse
to the courts and that the time for any court to exercise its
jurisdiction had expired.
(d) The Court may permit the plaintiff to prosecute such action in
forma pauperis.
(e) The amount of damages awarded shall not exceed the sum of $5,000.
(June 25, 1948, ch. 646, 62 Stat. 978; Sept. 3, 1954, ch. 1263, 56,
68 Stat. 1247; Apr. 2, 1982, Pub. L. 97-164, title I, 139(j)(2), 96
Stat. 43; Oct. 29, 1992, Pub. L. 102-572, title IX, 902(a)(1), 106
Stat. 4516.)
Based on sections 729-732 of title 18, U.S.C., 1940 ed., Crimes and
Criminal Procedure (May 24, 1938, ch. 266, 1-4, 52 Stat. 438.)
Sections 729-732 of title 18, U.S.C., 1940 ed., were consolidated and
completely rewritten in order to clarify ambiguities which made the
statute unworkable as enacted originally. Jurisdictional provisions of
section 729 of title 18, U.S.C., 1940 ed., are incorporated in section
1495 of this title.
Changes were made in phraseology.
1992 -- Subsec. (c). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1982 -- Subsec. (c). Pub. L. 97-164 substituted ''United States
Claims Court'' for ''Court of Claims''.
1954 -- Subsec. (c). Act Sept. 3, 1954, substituted ''considered
by'' for ''filed with''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2514. Forfeiture of fraudulent claims
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A claim against the United States shall be forfeited to the United
States by any person who corruptly practices or attempts to practice any
fraud against the United States in the proof, statement, establishment,
or allowance thereof.
In such cases the United States Court of Federal Claims shall
specifically find such fraud or attempt and render judgment of
forfeiture.
(June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L.
97-164, title I, 139(j)(2), 96 Stat. 43; Oct. 29, 1992, Pub. L.
102-572, title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 279 and 280 (Mar. 3, 1911, ch.
231, 172, 173, 36 Stat. 1141).
A provision of section 279 of title 28, U.S.C., 1940 ed., that a
judgment of forfeiture shall forever bar the prosecution of the claim
was omitted as covered by section 2518 of this title.
A provision of section 280 of title 28, U.S.C., 1940 ed., barring
allowance by accounting officers of fraudulent claims under Act June 16,
1874, 18 Stat. 75, was omitted as obsolete.
A provision of section 280 of title 28, U.S.C., 1940 ed., barring
allowance of fraudulent claims by Congress was omitted as unnecessary
and superfluous.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2515. New trial; stay of judgment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The United States Court of Federal Claims may grant a plaintiff a
new trial on any ground established by rules of common law or equity
applicable as between private parties.
(b) Such court, at any time while any suit is pending before it, or
after proceedings for review have been instituted, or within two years
after the final disposition of the suit, may grant the United States a
new trial and stay the payment of any judgment upon satisfactory
evidence, cumulative or otherwise, that any fraud, wrong, or injustice
has been done the United States.
(June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L.
97-164, title I, 139(j)(2), 96 Stat. 43; Oct. 29, 1992, Pub. L.
102-572, title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 281 and 282 (Mar. 3, 1911, ch.
231, 174, 175, 36 Stat. 1141).
Words ''but until an order is made staying the payment of a judgment,
the same shall be payable and paid as on March 3, 1911, was provided by
law,'' in section 282 of title 28, U.S.C., 1940 ed., were omitted as
surplusage.
Changes were made in phraseology.
1992 -- Subsec. (a). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1982 -- Subsec. (a). Pub. L. 97-164 substituted ''United States
Claims Court'' for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2516. Interest on claims and judgments
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Interest on a claim against the United States shall be allowed in
a judgment of the United States Court of Federal Claims only under a
contract or Act of Congress expressly providing for payment thereof.
(b) Interest on a judgment against the United States affirmed by the
Supreme Court after review on petition of the United States is paid at a
rate equal to the coupon issue yield equivalent (as determined by the
Secretary of the Treasury) of the average accepted auction price for the
last auction of fifty-two week United States Treasury bills settled
immediately before the date of the judgment.
(June 25, 1948, ch. 646, 62 Stat. 978; Sept. 3, 1954, ch. 1263, 57,
68 Stat. 1248; Apr. 2, 1982, Pub. L. 97-164, title I, 139(j)(2), title
III, 302(d), 96 Stat. 43, 56; Sept. 13, 1982, Pub. L. 97-258,
2(g)(5), (m)(3), 96 Stat. 1061, 1062; Oct. 29, 1992, Pub. L. 102-572,
title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 284 and section 226 of title
31, U.S.C., 1940 ed., Money and Finance (Sept. 30, 1890, ch. 1126, 1,
26 Stat. 537; Mar. 3, 1911, ch. 231, 177, 36 Stat. 1141; Nov. 23,
1921, ch. 136, 1324(b), 42 Stat. 316; June 2, 1924, ch. 234, 1020, 43
Stat. 346; Feb. 13, 1925, ch. 229, 3(c), 43 Stat. 939; Feb. 26, 1926,
ch. 27, 1117, 1200, 44 Stat. 119, 125; May 29, 1928, ch. 852,
615(a), 45 Stat. 877; June 22, 1936, ch. 690, 808, 49 Stat. 1746).
Subdivision (b) of section 284 of title 28, U.S.C., 1940 ed., was
omitted as covered by section 3771 of title 26, U.S.C., 1940 ed.,
Internal Revenue Code. Such omission required the exception in
subdivision (a) of such section 284, reading: ''except as provided in
subdivision (b)'', to be changed to read: ''or Act of Congress
expressly providing for payment thereof.''
Subsection (b) of this section is based on the last sentence of
section 226 of title 31, U.S.C., 1940 ed., Money and Finance.
Changes were made in phraseology.
Section 2(g)(5) of the bill restates 28:2516(b) because the
provisions in 28:2516(b) on the periods for computing interest were
superseded by the source provisions restated in section 1304 of the
revised title 31.
1992 -- Subsec. (a). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1982 -- Subsec. (a). Pub. L. 97-164, 139(j)(2), substituted
''United States Claims Court'' for ''Court of Claims''.
Subsec. (b). Pub. L. 97-258 substituted provisions that interest on a
judgment against the United States is paid at a rate equal to the coupon
issue yield equivalent of the average accepted auction price for the
last auction of fifty-two week United States Treasury bills settled
immediately before the date of judgment for provisions that such
interest would be paid at the rate of four percent per annum from the
date of the filing of the transcript of the judgment in the Treasury
Department to the date of mandate of affirmance by the Supreme Court and
that the interest would not be allowed for any period after the term of
the Supreme Court at which the judgment was affirmed, and repealed the
amendment made by Pub. L. 97-164, 302(d), eff. Oct. 1, 1982. See,
also, section 1304(b) of Title 31, Money and Finance.
Pub. L. 97-164, 302(d), 402, eff. Oct. 1, 1982, struck out ''at
the rate of four percent per annum'' and all that follows through
''affirmance'' and inserted in lieu thereof '', from the date of the
filing of the transcript of the judgment in the General Accounting
Office to the date of the mandate of the affirmance, at a rate of
interest equal to the coupon issue yield equivalent (as determined by
the Secretary of the Treasury) of the average accepted auction price for
the last auction of fifty-two week United States Treasury bills settled
immediately prior to the date of the judgment''.
1954 -- Subsec. (b). Act Sept. 3, 1954, inserted ''for any period''
after ''allowed'' in last sentence.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Section 2(g)(5) of Pub. L. 97-258 provided that the amendment made
by that section is effective Oct. 1, 1982.
Section 302(d) of Pub. L. 97-164, cited as a credit to this section,
was repealed by Pub. L. 97-258, 2(m)(3), Sept. 13, 1982, 96 Stat.
1062, eff. Oct. 1, 1982.
title 31 section 1304.
28 USC 2517. Payment of judgments
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except as provided by the Contract Disputes Act of 1978, every
final judgment rendered by the United States Court of Federal Claims
against the United States shall be paid out of any general appropriation
therefor, on presentation to the General Accounting Office of a
certification of the judgment by the clerk and chief judge of the court.
(b) Payment of any such judgment and of interest thereon shall be a
full discharge to the United States of all claims and demands arising
out of the matters involved in the case or controversy, unless the
judgment is designated a partial judgment, in which event only the
matters described therein shall be discharged.
(June 25, 1948, ch. 646, 62 Stat. 979; Nov. 1, 1978, Pub. L.
95-563, 14(e), (f), 92 Stat. 2390; Apr. 2, 1982, Pub. L. 97-164, title
I, 139(k), 96 Stat. 43; Oct. 29, 1992, Pub. L. 102-572, title IX,
902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 285, and sections 225, 228, of
title 31, U.S.C., 1940 ed., Money and Finance, (R.S. 236, 1089; Feb.
18, 1904, ch. 160, 1, 33 Stat. 41; Mar. 3, 1911, ch. 231, 178, 36
Stat. 1141; June 10, 1921, ch. 18, 304, 305, 42 Stat. 24; Feb. 13,
1925, ch. 229, 3(c), 43 Stat. 939).
Section consolidates section 285 of title 28, U.S.C., 1940 ed., and
sections 225 and 228 of title 31, U.S.C., 1940 ed., Money and Finance.
Words ''chief judge'' were substituted for ''the chief justice, or,
in his absence, by the presiding judge of said court'' in section 225 of
title 31, U.S.C., 1940 ed., Money and Finance, in conformity with
chapter 7 of this title.
Words ''or, on review, by the Supreme Court, where the same are
affirmed in favor of the claimant'' in section 225 of title 31, U.S.C.,
1940 ed., were omitted as unnecessary.
Provisions of section 228 of title 31, U.S.C., 1940 ed., for payment
of district court judgments are incorporated in section 2414 of this
title.
Changes were made in phraseology.
The Contract Disputes Act of 1978, referred to in subsec. (a), is
Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is
classified principally to chapter 9 ( 601 et seq.) of Title 41, Public
Contracts. For complete classification of this Act to the Code, see
Short Title note set out under section 601 of Title 41 and Tables.
1992 -- Subsec. (a). Pub. L. 102-572 substituted ''United States
Court of Federal Claims'' for ''United States Claims Court''.
1982 -- Subsec. (a). Pub. L. 97-164, 139(k)(1), substituted
''United States Claims Court'' for ''Court of Claims''.
Subsec. (b). Pub. L. 97-164, 139(k)(2), struck out the comma after
''shall be discharged'' thereby correcting a technical error in the
directory language in Pub. L. 95-563 which placed both a comma and a
period after ''shall be discharged''.
1978 -- Subsec. (a). Pub. L. 95-563, 14(e), inserted Contract
Disputes Act of 1978 exception.
Subsec. (b). Pub. L. 95-563, 14(f), inserted provision relating to
discharge of partial judgments.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Amendment by Pub. L. 95-563 effective with respect to contracts
entered into 120 days after Nov. 1, 1978, and, at the election of the
contractor, with respect to any claim pending at such time before the
contracting officer or initiated thereafter, see section 16 of Pub. L.
95-563, set out as an Effective Date note under section 601 of Title 41,
Public Contracts.
Appropriations for payments of judgments against the United States,
computation of interest time, see section 1304 of Title 31, Money and
Finance.
640d-27, 1300i-11; title 31 section 1304.
28 USC ( 2518. Repealed. Pub. L. 97-164, title I, 139(l), Apr. 2,
1982, 96 Stat. 43)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, act June 25, 1948, ch. 646, 62 Stat. 979, related to
certification of Court of Claims judgments for appropriation.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC 2519. Conclusiveness of judgment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A final judgment of the United States Court of Federal Claims against
any plaintiff shall forever bar any further claim, suit, or demand
against the United States arising out of the matters involved in the
case or controversy.
(June 25, 1948, ch. 646, 62 Stat. 979; Apr. 2, 1982, Pub. L.
97-164, title I, 139(m), 96 Stat. 43; Oct. 29, 1992, Pub. L. 102-572,
title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 286 (Mar. 3, 1911, ch. 231,
179, 36 Stat. 1141).
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1982 -- Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2520. Fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States Court of Federal Claims shall by rules impose a fee
not exceeding $120, for the filing of any petition.
(June 25, 1948, ch. 646, 62 Stat. 979; Sept. 3, 1954, ch. 1263, 58,
68 Stat. 1248; July 18, 1966, Pub. L. 89-507, 2, 80 Stat. 308; Apr.
2, 1982, Pub. L. 97-164, title I, 139(n)(1)-(3), 96 Stat. 43, 44; Nov.
19, 1988, Pub. L. 100-702, title X, 1012(a)(1), 102 Stat. 4668; Oct.
29, 1992, Pub. L. 102-572, title IX, 902(a)(1), 106 Stat. 4516.)
Based on title 28, U.S.C., 1940 ed., 283 and 283a (Mar. 3, 1911,
ch. 231, 176, 36 Stat. 1141; Mar. 3, 1933, ch. 212, title II, 19, 47
Stat. 1519).
This section consolidates section 283, with a part of section 283a,
of title 28, U.S.C., 1940 ed.
The last subsection of section 283a of title 28, U.S.C., 1940 ed.,
appears in section 793 of this title.
Language in section 283a of title 28, U.S.C., 1940 ed., referring to
cases instituted after March 3, 1933, was omitted as executed.
For liability of the United States for costs, both in actions in
district courts and in suits in the Court of Claims, see section 2412 of
this title.
Changes were made in phraseology.
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court''.
1988 -- Pub. L. 100-702 substituted ''$120'' for ''$60''.
1982 -- Pub. L. 97-164 substituted ''Fees'' for ''Fees; cost of
printing record'' as section catchline, struck out designation ''(a)''
at beginning of section, in the resulting undesignated first sentence
substituted ''United States Claims Court'' for ''Court of Claims'' and
''$60'' for ''$10'', and struck out subsecs. (b) and (c) which directed
the clerk to collect a fee of 10 cents a folio for preparing and
certifying a transcript of the record for the purpose of a writ of
certiorari sought by the plaintiff and for furnishing certified copies
of judgments or other documents, with not less than $5 to be charged for
each certified copy of findings of fact and opinion of the court to be
filed in the Supreme Court, and which also directed the clerk to collect
for each certified copy of the court's findings of fact and opinion a
fee of 25 cents for five pages or less, 35 cents for those over five and
not more than ten pages, 45 cents for those over ten and not more than
twenty pages, and 50 cents for those of more than twenty pages.
1966 -- Subsec. (d). Pub. L. 89-507 repealed subsec. (d) which
required the cost of printing the record in every pending case to be
taxed against the losing party except when the judgment is against the
United States. See section 2412 of this title.
1954 -- Subsec. (a). Act Sept. 3, 1954, struck out ''and the
hearing of any case before the court, a judge, or a commissioner'' after
''petition''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Section 1012(a)(2) of Pub. L. 100-702 provided that: ''The
amendment made by this subsection (amending this section) shall take
effect 30 days after the date of enactment of this title (Nov. 19,
1988).''
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
Amendment by Pub. L. 89-507 applicable only to judgments in actions
filed subsequent to July 18, 1966, and such amendment not to authorize
the reopening or modification of judgments entered prior to July 18,
1966, see section 3 of Pub. L. 89-507, set out as a note under section
2412 of this title.
28 USC 2521. Subpoenas and incidental powers
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Subpoenas requiring the attendance of parties or witnesses and
subpoenas requiring the production of books, papers, documents or
tangible things by any party or witness having custody or control
thereof, may be issued for purposes of discovery or for use of the
things produced as evidence in accordance with the rules and orders of
the court. Such subpoenas shall be issued and served and compliance
therewith shall be compelled as provided in the rules and orders of the
court.
(b) The United States Court of Federal Claims shall have power to
punish by fine or imprisonment, at its discretion, such contempt of its
authority as --
(1) misbehavior of any person in its presence or so near thereto as
to obstruct the administration of justice;
(2) misbehavior of any of its officers in their official
transactions; or
(3) disobedience or resistance to its lawful writ, process, order,
rule, decree, or command.
(c) The United States Court of Federal Claims shall have such
assistance in the carrying out of its lawful writ, process, order, rule,
decree, or command as is available to a court of the United States. The
United States marshal for any district in which the Court of Federal
Claims is sitting shall, when requested by the chief judge of the Court
of Federal Claims, attend any session of the Court of Federal Claims in
such district.
(Added Sept. 3, 1954, ch. 1263, 59(a), 68 Stat. 1248; amended Oct.
29, 1992, Pub. L. 102-572, title IX, 910(a), 106 Stat. 4519.)
1992 -- Pub. L. 102-572 inserted ''and incidental powers'' in
section catchline, designated existing provisions as subsec. (a), and
added subsecs. (b) and (c).
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
28 USC 2522. Notice of appeal
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Review of a decision of the United States Court of Federal Claims
shall be obtained by filing a notice of appeal with the clerk of the
Court of Federal Claims within the time and in the manner prescribed for
appeals to United States courts of appeals from the United States
district courts.
(Added Pub. L. 97-164, title I, 139(q)(1), Apr. 2, 1982, 96 Stat.
44; amended Pub. L. 102-572, title IX, 902(a), Oct. 29, 1992, 106
Stat. 4516.)
1992 -- Pub. L. 102-572 substituted ''United States Court of Federal
Claims'' for ''United States Claims Court'' and ''Court of Federal
Claims'' for ''Claims Court''.
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of this
title.
Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC (CHAPTER 167 -- REPEALED)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
28 USC ( 2601 to 2604. Repealed. Pub. L. 97-164, title I, 140, Apr.
2, 1982, 96 Stat. 44)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section 2601, acts June 25, 1948, ch. 646, 62 Stat. 979; June 2,
1970, Pub. L. 91-271, title I, 103, 84 Stat. 275; Oct. 10, 1980,
Pub. L. 96-417, title IV, 403(a)-(d), title V, 501(27), (28), 94
Stat. 1740-1742, provided for appeals to the Court of Customs and
Patent Appeals from final judgments or orders of the Court of
International Trade and for the procedures to be followed in such
appeals. See section 1295(a)(5) of this title.
Section 2602, acts June 25, 1948, ch. 646, 62 Stat. 980; Oct. 14,
1966, Pub. L. 89-651, 8(c)(3), 80 Stat. 902; June 2, 1970, Pub. L.
91-271, title I, 104, 84 Stat. 276; Oct. 10, 1980, Pub. L. 96-417,
title IV, 403(e)(1), 94 Stat. 1741, provided for the precedence of
enumerated civil actions in the Court of Customs and Patent Appeals.
See section 1296 of this title.
Section 2603, added Pub. L. 96-417, title IV, 404(a), Oct. 10,
1980, 94 Stat. 1741, provided that, except as provided in section 2639
or 2641(b) of this title or in the rules prescribed by the court, the
Federal Rules of Evidence would apply in the Court of Customs and Patent
Appeals in any appeal from the Court of International Trade.
Section 2604, added Pub. L. 96-417, title IV, 405(a), Oct. 10,
1980, 94 Stat. 1741, authorized the chief judge of the Court of Customs
and Patent Appeals to summon annually the judges of the court to a
judicial conference for the purpose of considering the business of the
court and improvements in the administration of justice of the court.
Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as an Effective Date of 1982 Amendment note under section 171 of
this title.
28 USC CHAPTER 169 -- COURT OF INTERNATIONAL TRADE PROCEDURE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2631. Persons entitled to commence a civil action.
2632. Commencement of a civil action.
2633. Procedure and fees.
2634. Notice.
2635. Filing of official documents.
2636. Time for commencement of action.
2637. Exhaustion of administrative remedies.
2638. New grounds in support of a civil action.
2639. Burden of proof; evidence of value.
2640. Scope and standard of review.
2641. Witnesses; inspection of documents.
2642. Analysis of imported merchandise.
2643. Relief.
2644. Interest.
2645. Decisions.
2646. Retrial or rehearing.
(2647. Repealed.)
1984 -- Pub. L. 98-620 title IV, 402(29)(G), Nov. 8, 1984, 98
Stat. 3359, struck out item 2647 ''Precedence of cases''.
1980 -- Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1730, substituted ''COURT OF INTERNATIONAL TRADE PROCEDURE'' for
''CUSTOMS COURT PROCEDURE'' in chapter heading, ''Persons entitled to
commence a civil action'' for ''Time for commencement of action'' in
item 2631, ''Commencement of a civil action'' for ''Customs Court
procedures and fees'' in item 2632, ''Procedure and fees'' for
''Precedence of cases'' in item 2633, ''Filing of official documents''
for ''Burden of proof; evidence of value'' in item 2635, ''Time for
commencement of action'' for ''Analysis of imported merchandise'' in
item 2636, ''Exhaustion of administrative remedies'' for ''Witnesses;
inspection of documents'' in item 2637, ''New grounds in support of a
civil action'' for ''Decisions; findings of fact and conclusions of
law; effect of opinions'' in item 2638, ''Burden of proof; evidence of
value'' for ''Retrial or rehearing'' in item 2639, and added items 2640
to 2647.
1979 -- Pub. L. 96-39, title X, 1001(b)(4)(F), July 26, 1979, 93
Stat. 306, substituted ''Precedence of cases'' for ''Precedence of
American manufacturer, producer, or wholesaler cases'' in item 2633.
1970 -- Pub. L. 91-271, title I, 123(e), June 2, 1970, 84 Stat.
282, substituted ''Time for commencement of action'' for ''Appeal for
reappraisement; assignment to single judge; hearing'' in item 2631,
''Customs Court procedures and fees' for ''Notice'' in item 2632,
''Precedence of American manufacturer, producer, or wholesaler cases''
for ''Evidence of value, upon reappraisement; burden of proof'' in item
2633, ''Notice'' for ''Witnesses; inspection of documents'' in item
2634, ''Burden of proof; evidence of value'' for ''Decision of single
judge in reappraisement appeal'' in item 2635, ''Analysis of imported
merchandise'' for ''Review of single judge's decision; disqualification
of judges; remand; presumption'' in item 2636, ''Witnesses;
inspection of documents'' for ''Review of decisions of divisions'' in
item 2637, ''Decisions; findings of fact and conclusions of law;
effect of opinions'' for ''Precedence of classification cases'' in item
2638, and ''Retrial or rehearing'' for ''Analysis of imported
merchandise'' in item 2639, and struck out item 2640 ''Rehearing or
retrial'', item 2641 ''Frivolous protest or appeal'', and item 2642
''Amendment of protests, appeals, and pleadings''.
1949 -- Act May 24, 1949, ch. 139, 121, 63 Stat. 106, substituted
''Amendment of protests, appeals, and pleadings'' for ''Disqualification
of judge'' in item 2642.
28 USC 2631. Persons entitled to commence a civil action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A civil action contesting the denial of a protest, in whole or in
part, under section 515 of the Tariff Act of 1930 may be commenced in
the Court of International Trade by the person who filed the protest
pursuant to section 514 of such Act, or by a surety on the transaction
which is the subject of the protest.
(b) A civil action contesting the denial of a petition under section
516 of the Tariff Act of 1930 may be commenced in the Court of
International Trade by the person who filed such petition.
(c) A civil action contesting a determination listed in section 516A
of the Tariff Act of 1930 may be commenced in the Court of International
Trade by any interested party who was a party to the proceeding in
connection with which the matter arose.
(d)(1) A civil action to review any final determination of the
Secretary of Labor under section 223 of the Trade Act of 1974 with
respect to the eligibility of workers for adjustment assistance under
such Act may be commenced in the Court of International Trade by a
worker, group of workers, certified or recognized union, or authorized
representative of such worker or group that applies for assistance under
such Act and is aggrieved by such final determination.
(2) A civil action to review any final determination of the Secretary
of Commerce under section 251 of the Trade Act of 1974 with respect to
the eligibility of a firm for adjustment assistance under such Act may
be commenced in the Court of International Trade by a firm or its
representative that applies for assistance under such Act and is
aggrieved by such final determination, or by any other interested
domestic party that is aggrieved by such final determination.
(3) A civil action to review any final determination of the Secretary
of Commerce under section 271 of the Trade Act of 1974 with respect to
the eligibility of a community for adjustment assistance under such Act
may be commenced in the Court of International Trade by a community that
applies for assistance under such Act and is aggrieved by such final
determination, or by any other interested domestic party that is
aggrieved by such final determination.
(e) A civil action to review a final determination made under section
305(b)(1) of the Trade Agreements Act of 1979 may be commenced in the
Court of International Trade by any person who was a party-at-interest
with respect to such determination.
(f) A civil action involving an application for the issuance of an
order directing the administering authority or the International Trade
Commission to make confidential information available under section
777(c)(2) of the Tariff Act of 1930 may be commenced in the Court of
International Trade by any interested party whose application for
disclosure of such confidential information was denied under section
777(c)(1) of such Act.
(g)(1) A civil action to review any decision of the Secretary of the
Treasury to deny a customs broker's license under section 641(b)(2) or
(3) of the Tariff Act of 1930, or to deny a customs broker's permit
under section 641(c)(1) of such Act, or to revoke such license or permit
under section 641(b)(5) or (c)(2) of such Act, may be commenced in the
Court of International Trade by the person whose license or permit was
denied or revoked.
(2) A civil action to review any decision of the Secretary of the
Treasury to revoke or suspend a customs broker's license or permit or
impose a monetary penalty in lieu thereof under section 641(d)(2)(B) of
the Tariff Act of 1930 may be commenced in the Court of International
Trade by the person against whom the decision was issued.
(h) A civil action described in section 1581(h) of this title may be
commenced in the Court of International Trade by the person who would
have standing to bring a civil action under section 1581(a) of this
title if he imported the goods involved and filed a protest which was
denied, in whole or in part, under section 515 of the Tariff Act of
1930.
(i) Any civil action of which the Court of International Trade has
jurisdiction, other than an action specified in subsections (a)-(h) of
this section, may be commenced in the court by any person adversely
affected or aggrieved by agency action within the meaning of section 702
of title 5.
(j)(1) Any person who would be adversely affected or aggrieved by a
decision in a civil action pending in the Court of International Trade
may, by leave of court, intervene in such action, except that --
(A) no person may intervene in a civil action under section 515 or
516 of the Tariff Act of 1930;
(B) in a civil action under section 516A of the Tariff Act of 1930,
only an interested party who was a party to the proceeding in connection
with which the matter arose may intervene, and such person may intervene
as a matter of right; and
(C) in a civil action under section 777(c)(2) of the Tariff Act of
1930, only a person who was a party to the investigation may intervene,
and such person may intervene as a matter of right.
(2) In those civil actions in which intervention is by leave of
court, the Court of International Trade shall consider whether the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.
(k) In this section --
(1) ''interested party'' has the meaning given such term in section
771(9) of the Tariff Act of 1930; and
(2) ''party-at-interest'' means --
(A) a foreign manufacturer, producer, or exporter, or a United States
importer, of merchandise which is the subject of a final determination
under section 305(b)(1) of the Trade Agreements Act of 1979;
(B) a manufacturer, producer, or wholesaler in the United States of a
like product;
(C) United States members of a labor organization or other
association of workers whose members are employed in the manufacture,
production, or wholesale in the United States of a like product;
(D) a trade or business association a majority of whose members
manufacture, produce, or wholesale a like product in the United States,
/1/ and
(E) an association composed of members who represent
parties-at-interest described in subparagraph (B), (C), or (D).
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1730; amended Pub. L. 98-573, title II, 212(b)(3), title VI,
612(b)(3), Oct. 30, 1984, 98 Stat. 2983, 3034.)
Section 515 of the Tariff Act of 1930, referred to in subsecs. (a),
(h), (j)(1)(A), is classified to section 1515 of Title 19, Customs
Duties.
Section 514 of the Tariff Act of 1930, referred to in subsec. (a),
is classified to section 1514 of Title 19.
Section 516 of the Tariff Act of 1930, referred to in subsecs. (b),
(j)(1)(A), is classified to section 1516 of Title 19.
Section 516A of the Tariff Act of 1930, referred to in subsecs. (c),
(j)(1)(B), is classified to section 1516a of Title 19.
The Trade Act of 1974, referred to in subsec. (d)(1) to (3), is Pub.
L. 93-618, Jan. 3, 1975, 88 Stat. 1978, as amended, which is
classified principally to chapter 12 ( 2101 et seq.) of Title 19.
Sections 223, 251, and 271 of the Trade Act of 1974 are classified to
sections 2273, 2341, and 2371, respectively, of Title 19. For complete
classification of this Act to the Code, see References in Text note set
out under section 2101 of Title 19 and Tables.
Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in
subsecs. (e), (k)(2)(A), is classified to section 2515(b)(1) of Title
19.
Section 777 of the Tariff Act of 1930, referred to in subsecs. (f),
(j)(1)(C), is classified to section 1677f of Title 19.
Section 641 of the Tariff Act of 1930, referred to in subsec. (g),
is classified to section 1641 of Title 19.
Section 771(9) of the Tariff Act of 1930, referred to in subsec.
(k)(1), is classified to section 1677(9) of Title 19.
A prior section 2631, acts June 25, 1948, ch. 646, 62 Stat. 980;
May 24, 1949, ch. 139, 122, 63 Stat. 106; June 2, 1970, Pub. L.
91-271, title I, 112, 84 Stat. 278; Jan. 3, 1975, Pub. L. 93-618,
title III, 321(f)(2), 88 Stat. 2048, related to time for commencement
of action, prior to the general revision of this chapter by Pub. L.
96-417. See section 2636 of this title.
1984 -- Subsec. (g). Pub. L. 98-573, 212(b)(3), amended subsec.
(g) generally. Prior to amendment, subsec. (g) read as follows:
''(1) A civil action to review any decision of the Secretary of the
Treasury to deny or revoke a customhouse broker's license under section
641(a) of the Tariff Act of 1930 may be commenced in the Court of
International Trade by the person whose license was denied or revoked.
''(2) A civil action to review any order of the Secretary of the
Treasury to revoke or suspend a customhouse broker's license under
section 641(b) of the Tariff Act of 1930 may be commenced in the Court
of International Trade by the person whose license was revoked or
suspended.''
Subsec. (k)(2)(E). Pub. L. 98-573, 612(b)(3), added subpar. (E).
Amendment by section 212(b)(3) of Pub. L. 98-573 effective on close
of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L.
98-573, set out as a note under section 1304 of Title 19, Customs
Duties.
Amendment by section 612(b)(3) of Pub. L. 98-573 applicable with
respect to investigations initiated by petition or by the administering
authority under subtitle A or B of title VII of the Tariff Act of 1930
(19 U.S.C. 1671 et seq., 1673 et seq.), and to reviews begun under
section 751 of that Act (19 U.S.C. 1675), on or after Oct. 30, 1984,
see section 626(b)(1) of Pub. L. 98-573, as amended, set out as a note
under section 1671 of Title 19.
Chapter effective Nov. 1, 1980, unless otherwise provided, and
applicable with respect to civil actions pending on or commenced on or
after such date, see section 701(a) of Pub. L. 96-417, set out as an
Effective Date of 1980 Amendment note under section 251 of this title.
Subsecs. (d) and (g) to (j) of this section applicable with respect
to civil actions commenced on or after Nov. 1, 1980, see section
701(b)(1)(B) of Pub. L. 96-417.
/1/ So in original. The comma probably should be a semicolon.
28 USC 2632. Commencement of a civil action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except for civil actions specified in subsections (b) and (c) of
this section, a civil action in the Court of International Trade shall
be commenced by filing concurrently with the clerk of the court a
summons and complaint, with the content and in the form, manner, and
style prescribed by the rules of the court.
(b) A civil action in the Court of International Trade under section
515 or section 516 of the Tariff Act of 1930 shall be commenced by
filing with the clerk of the court a summons, with the content and in
the form, manner, and style prescribed by the rules of the court.
(c) A civil action in the Court of International Trade under section
516A of the Tariff Act of 1930 shall be commenced by filing with the
clerk of the court a summons or a summons and a complaint, as prescribed
in such section, with the content and in the form, manner, and style
prescribed by the rules of the court.
(d) The Court of International Trade may prescribe by rule that any
summons, pleading, or other paper mailed by registered or certified mail
properly addressed to the clerk of the court with the proper postage
affixed and return receipt requested shall be deemed filed as of the
date of mailing.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1732.)
Sections 515 and 516 of the Tariff Act of 1930, referred to in
subsec. (b), are classified to sections 1515 and 1516, respectively, of
Title 19, Customs Duties.
Section 516A of the Tariff Act of 1930, referred to in subsec. (c),
is classified to section 1516a of Title 19.
A prior section 2632, acts June 25, 1948, ch. 646, 62 Stat. 980;
June 2, 1970, Pub. L. 91-271, title I, 113, 84 Stat. 279; Jan. 3,
1975, Pub. L. 93-618, title III, 321(f)(3), 88 Stat. 2048; July 26,
1979, Pub. L. 96-39, title X, 1001(b)(4)(C), 93 Stat. 306, related to
Customs Court procedure and fees, prior to the general revision of this
chapter by Pub. L. 96-417. See section 2633 of this title.
Subsec. (a) of this section applicable with respect to civil actions
commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub.
L. 96-417, set out as an Effective Date of 1980 Amendment note under
section 251 of this title.
28 USC 2633. Procedure and fees
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A filing fee shall be payable to the clerk of the Court of
International Trade upon the commencement of a civil action in such
court. The amount of the fee shall be prescribed by the rules of the
court, but shall be not less than $5 nor more than the filing fee for
commencing a civil action in a district court of the United States. The
court may fix all other fees to be charged by the clerk of the court.
(b) The Court of International Trade shall prescribe rules governing
the summons, pleadings, and other papers, for their amendment, service,
and filing, for consolidations, severances, suspensions of cases, and
for other procedural matters.
(c) All summons, pleadings, and other papers filed in the Court of
International Trade shall be served on all parties in accordance with
rules prescribed by the court. When the United States, its agencies, or
its officers are adverse parties, service of the summons shall be made
upon the Attorney General and the head of the Government agency whose
action is being contested. When injunctive relief is sought, the
summons, pleadings, and other papers shall also be served upon the named
officials sought to be enjoined.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1732.)
A prior section 2633, acts June 25, 1948, ch. 646, 62 Stat. 980;
June 2, 1970, Pub. L. 91-271, title I, 114, 84 Stat. 279; July 26,
1979, Pub. L. 96-39, title X, 1001(b)(4)(D), 93 Stat. 306, related to
precedence of cases, prior to the general revision of this chapter by
Pub. L. 96-417. See section 2647 of this title.
As provided by 28 U.S.C. 2633(a) and the Rules of the United States
Court of International Trade, the clerk of the court shall collect the
following fees:
Filing Fees -- USCIT R. 3(b)
1. For filing an action other than one commenced under 28 U.S.C.
1581(d)(1), $120.00.
2. For filing an action commenced under 28 U.S.C. 1581(d)(1),
$25.00.
3. For filing a complaint in an action commenced under 28 U.S.C.
1581(a) or (b) prior to March 1, 1987, $25.00.
Attorney Admission Fees -- USCIT R. 74(b)(3)
For admission of an attorney to practice, including a certificate of
admission, $25.00.
Additional Fees -- USCIT R. 80(g)
The clerk shall collect in advance from the parties fees for
miscellaneous services as are consistent with the ''Judicial Conference
Schedule of Additional Fees for the United States District Courts.'' The
additional fees that are applicable to this court are as follows:
1. For filing or indexing any paper not in a case or proceeding for
which a case filing fee has been paid (e.g., filing a petition to
perpetuate testimony, the filing of letters rogatory or letters of
request, and the registering of a judgment pursuant to 28 U.S.C.
1963), $20.00.
2. For filing a requisition for and certifying the results of a
search of the records of the court for judgments, decrees, other
instruments, and suits pending (for each case searched), $15.00.
3. For certification or exemplification of any document or paper,
whether the certification is made directly on the document or by
separate instrument, $5.00.
4. For reproducing any record or paper, including paper copies made
from either original documents; or microfilm reproductions of the
original records, $.50.
5. For reproduction of magnetic tape recordings, either cassette or
reel-to-reel (including the cost of materials), $15.00.
6. For transcribing a record of any proceeding by a regularly
employed member of the court staff who is not entitled by statute to
retain the transcript fees for his or her own account, a charge shall be
made at the same rate and conditions established by the Judicial
Conference for transcripts prepared and sold to parties by official
court reporters:
7. For each microfiche sheet of film or microfilm jacket copy of any
court record, where available, $3.00.
8. For retrieval of a record from a Federal Records Center, National
Archives, or other storage location removed from the place of business
of the court, $25.00.
9. For a check paid into the court which is returned for lack of
funds, $25.00.
10. For a duplicate certificate of admission or certificate of good
standing, $5.00.
11. For handling registry fund, a charge shall be assessed from
interest earnings and in accordance with the detailed fee schedule
issued by the Director of the Administrative Office of the United States
Courts, 10%.
28 USC 2634. Notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Reasonable notice of the time and place of trial or hearing before
the Court of International Trade shall be given to all parties to any
civil action, as prescribed by the rules of the court.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1733.)
A prior section 2634, acts June 25, 1948, ch. 646, 62 Stat. 981;
June 2, 1970, Pub. L. 91-271, title I, 115, 84 Stat. 280, related to
notice, prior to the general revision of this chapter by Pub. L.
96-417. See section 2634 of this title.
28 USC 2635. Filing of official documents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) Upon service of the summons on the Secretary of the Treasury
in any civil action contesting the denial of a protest under section 515
of the Tariff Act of 1930 or the denial of a petition under section 516
of such Act, the appropriate customs officer shall forthwith transmit to
the clerk of the Court of International Trade, as prescribed by its
rules, and as a part of the official record --
(A) the consumption or other entry and the entry summary;
(B) the commercial invoice;
(C) the special customs invoice;
(D) a copy of the protest or petition;
(E) a copy of the denial, in whole or in part, of the protest or
petition;
(F) the importer's exhibits;
(G) the official and other representative samples;
(H) any official laboratory reports; and
(I) a copy of any bond relating to the entry.
(2) If any of the items listed in paragraph (1) of this subsection do
not exist in a particular civil action, an affirmative statement to that
effect shall be transmitted to the clerk of the court.
(b)(1) In any civil action commenced in the Court of International
Trade under section 516A of the Tariff Act of 1930, within forty days or
within such other period of time as the court may specify, after the
date of service of a complaint on the administering authority
established to administer title VII of the Tariff Act of 1930 or the
United States International Trade Commission, the administering
authority or the Commission shall transmit to the clerk of the court the
record of such action, as prescribed by the rules of the court. The
record shall, unless otherwise stipulated by the parties, consist of --
(A) a copy of all information presented to or obtained by the
administering authority or the Commission during the course of the
administrative proceedings, including all governmental memoranda
pertaining to the case and the record of ex parte meetings required to
be maintained by section 777(a)(3) of the Tariff Act of 1930; and
(B)(i) a copy of the determination and the facts and conclusions of
law upon which such determination was based, (ii) all transcripts or
records of conferences or hearings, and (iii) all notices published in
the Federal Register.
(2) The administering authority or the Commission shall identify and
transmit under seal to the clerk of the court any document, comment, or
information that is accorded confidential or privileged status by the
Government agency whose action is being contested and that is required
to be transmitted to the clerk under paragraph (1) of this subsection.
Any such document, comment, or information shall be accompanied by a
nonconfidential description of the nature of the material being
transmitted. The confidential or privileged status of such material
shall be preserved in the civil action, but the court may examine the
confidential or privileged material in camera and may make such material
available under such terms and conditions as the court may order.
(c) Within fifteen days, or within such other period of time as the
Court of International Trade may specify, after service of a summons and
complaint in a civil action involving an application for an order
directing the administering authority or the International Trade
Commission to make confidential information available under section
777(c)(2) of the Tariff Act of 1930, the administering authority or the
Commission shall transmit under seal to the clerk of the Court of
International Trade, as prescribed by its rules, the confidential
information involved, together with pertinent parts of the record. Such
information shall be accompanied by a nonconfidential description of the
nature of the information being transmitted. The confidential status of
such information shall be preserved in the civil action, but the court
may examine the confidential information in camera and may make such
information available under a protective order consistent with section
777(c)(2) of the Tariff Act of 1930.
(d)(1) In any other civil action in the Court of International Trade
in which judicial review is to proceed upon the basis of the record made
before an agency, the agency shall, within forty days or within such
other period of time as the court may specify, after the date of service
of the summons and complaint upon the agency, transmit to the clerk of
the court, as prescribed by its rules --
(A) a copy of the contested determination and the findings or report
upon which such determination was based;
(B) a copy of any reported hearings or conferences conducted by the
agency; and
(C) any documents, comments, or other papers filed by the public,
interested parties, or governments with respect to the agency's action.
(2) The agency shall identify and transmit under seal to the clerk of
the court any document, comment, or other information that was obtained
on a confidential basis and that is required to be transmitted to the
clerk under paragraph (1) of this subsection. Any such document,
comment, or information shall include a nonconfidential description of
the nature of the material being transmitted. The confidential or
privileged status of such material shall be preserved in the civil
action, but the court may examine such material in camera and may make
such material available under such terms and conditions as the court may
order.
(3) The parties may stipulate that fewer documents, comments, or
other information than those specified in paragraph (1) of this
subsection shall be transmitted to the clerk of the court.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1733.)
Section 515 of the Tariff Act of 1930, referred to in subsec.
(a)(1), is classified to section 1515 of Title 19, Customs Duties.
Section 516 of the Tariff Act of 1930, referred to in subsec.
(a)(1), is classified to section 1516 of Title 19.
The Tariff Act of 1930, referred to in subsec. (b)(1), is act June
17, 1930, ch. 497, 46 Stat. 590, as amended. Title VII of the Tariff
Act of 1930 is classified generally to subtitle IV ( 1671 et seq.) of
chapter 4 of Title 19. Section 516A of the Tariff Act of 1930 is
classified to section 1516a of Title 19. For complete classification of
this Act to the Code, see section 1654 of Title 19 and Tables.
Section 777 of the Tariff Act of 1930, referred to in subsecs.
(b)(1)(A) and (c), is classified to section 1677f of Title 19.
A prior section 2635, acts June 25, 1948, ch. 646, 62 Stat. 981;
June 2, 1970, Pub. L. 91-271, title I, 116, 84 Stat. 280, related to
burden of proof and evidence of value, prior to the general revision of
this chapter by Pub. L. 96-417. See section 2639 of this title.
Section applicable with respect to civil actions commenced on or
after Nov. 1, 1980, see section 701 (b)(1)(B) of Pub. L. 96-417, set
out as an Effective Date of 1980 Amendment note under section 251 of
this title.
28 USC 2636. Time for commencement of action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A civil action contesting the denial, in whole or in part, of a
protest under section 515 of the Tariff Act of 1930 is barred unless
commenced in accordance with the rules of the Court of International
Trade --
(1) within one hundred and eighty days after the date of mailing of
notice of denial of a protest under section 515(a) of such Act; or
(2) within one hundred and eighty days after the date of denial of a
protest by operation of law under the provisions of section 515(b) of
such Act.
(b) A civil action contesting the denial of a petition under section
516 of the Tariff Act of 1930 is barred unless commenced in accordance
with the rules of the Court of International Trade within thirty days
after the date of mailing of a notice pursuant to section 516(c) of such
Act.
(c) A civil action contesting a reviewable determination listed in
section 516A of the Tariff Act of 1930 is barred unless commenced in
accordance with the rules of the Court of International Trade within the
time specified in such section.
(d) A civil action contesting a final determination of the Secretary
of Labor under section 223 of the Trade Act of 1974 or a final
determination of the Secretary of Commerce under section 251 or section
271 of such Act is barred unless commenced in accordance with the rules
of the Court of International Trade within sixty days after the date of
notice of such determination.
(e) A civil action contesting a final determination made under
section 305(b)(1) of the Trade Agreements Act of 1979 is barred unless
commenced in accordance with the rules of the Court of International
Trade within thirty days after the date of the publication of such
determination in the Federal Register.
(f) A civil action involving an application for the issuance of an
order making confidential information available under section 777(c)(2)
of the Tariff Act of 1930 is barred unless commenced in accordance with
the rules of the Court of International Trade within ten days after the
date of the denial of the request for such confidential information.
(g) A civil action contesting the denial or revocation by the
Secretary of the Treasury of a customs broker's license or permit under
subsection (b) or (c) of section 641 of the Tariff Act of 1930, or the
revocation or suspension of such license or permit or the imposition of
a monetary penalty in lieu thereof by such Secretary under section
641(d) of such Act, is barred unless commenced in accordance with the
rules of the Court of International Trade within sixty days after the
date of the entry of the decision or order of such Secretary.
(h) A civil action of which the Court of International Trade has
jurisdiction under section 1581 of this title, other than an action
specified in subsections (a)-(h) of this section, is barred unless
commenced in accordance with the rules of the court within two years
after the cause of action first accrues.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1734; amended Pub. L. 98-573, title II, 212(b)(4), title VI,
623(b)(1), Oct. 30, 1984, 98 Stat. 2984, 3041.)
Section 515 of the Tariff Act of 1930, referred to in subsec. (a),
is classified to section 1515 of Title 19, Customs Duties.
Section 516 of the Tariff Act of 1930, referred to in subsec. (b),
is classified to section 1516 of Title 19.
Section 516A of the Tariff Act of 1930, referred to in subsec. (c),
is classified to section 1516a of Title 19.
Sections 223, 251, and 271 of the Trade Act of 1974, referred to in
subsec. (d), are classified to sections 2273, 2341, and 2371,
respectively, of Title 19.
Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in
subsec. (e), is classified to section 2515(b)(1) of Title 19.
Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec.
(f), is classified to section 1677f(c)(2) of Title 19.
Section 641 of the Tariff Act of 1930, referred to in subsec. (g),
is classified to section 1641 of Title 19.
A prior section 2636, acts June 25, 1948, ch. 646, 62 Stat. 981;
June 2, 1970, Pub. L. 91-271, title I, 117, 84 Stat. 280, related to
analysis of imported merchandise, prior to the general revision of this
chapter by Pub. L. 96-417. See section 2642 of this title.
1984 -- Subsec. (c). Pub. L. 98-573, 623(b)(1)(A), amended subsec.
(c) generally, striking out '', other than a determination under section
703(b), 703(c), 733(b), or 733(c) of such Act,'' and substituting
''within the time specified in such section'' for ''within thirty days
after the date of the publication of such determination in the Federal
Register''.
Subsec. (d). Pub. L. 98-573, 623(b)(1)(B), redesignated subsec. (e)
as (d). Former subsec. (d), which provided that civil actions
contesting certain determinations by the administering authority under
sections 703(b), (c), and 733(b), (c), of the Tariff Act of 1930 were
barred unless commenced in accordance with the rules of the Court of
International Trade within 10 days after publication of the
determination in the Federal Register, was struck out.
Subsecs. (e) to (g). Pub. L. 98-573, 623(b)(1)(B), redesignated
subsecs. (f) to (h) as (e) to (g), respectively. Former subsec. (e)
redesignated (d).
Subsec. (h). Pub. L. 98-573, 623(b)(1)(B), redesignated subsec. (i)
as (h). Former subsec. (h) redesignated (g).
Pub. L. 98-573, 212(b)(4), amended subsec. (h) generally,
substituting ''customs broker's license or permit under subsection (b)
or (c) of section 641 of the Tariff Act of 1930, or the revocation or
suspension of such license or permit or the imposition of a monetary
penalty in lieu thereof by such Secretary under section 641(d) of such
Act,'' for ''customhouse broker's license under section 641(a) of the
Tariff Act of 1930 or the revocation or suspension by such Secretary of
a customhouse broker's license under section 641(b) of such Act''.
Subsec. (i). Pub. L. 98-573, 623(b)(1)(B), redesignated subsec. (i)
as (h).
Amendment by section 212(b)(4) of Pub. L. 98-573 effective on close
of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L.
98-573, set out as a note under section 1304 of Title 19, Customs
Duties.
Amendment by section 623(b)(1) of Pub. L. 98-573 applicable with
respect to civil actions pending on, or filed on or after, Oct. 30,
1984, see section 626(b)(2) of Pub. L. 98-573, set out as a note under
section 1671 of Title 19.
Section applicable with respect to civil actions commenced on or
after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set
out as an Effective Date of 1980 Amendment note under section 251 of
this title.
28 USC 2637. Exhaustion of administrative remedies
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A civil action contesting the denial of a protest under section
515 of the Tariff Act of 1930 may be commenced in the Court of
International Trade only if all liquidated duties, charges, or exactions
have been paid at the time the action is commenced, except that a
surety's obligation to pay such liquidated duties, charges, or exactions
is limited to the sum of any bond related to each entry included in the
denied protest.
(b) A civil action contesting the denial of a petition under section
516 of the Tariff Act of 1930 may be commenced in the Court of
International Trade only by a person who has first exhausted the
procedures set forth in such section.
(c) A civil action described in section 1581(h) of this title may be
commenced in the Court of International Trade prior to the exhaustion of
administrative remedies if the person commencing the action makes the
demonstration required by such section.
(d) In any civil action not specified in this section, the Court of
International Trade shall, where appropriate, require the exhaustion of
administrative remedies.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1735.)
Section 515 of the Tariff Act of 1930, referred to in subsec. (a),
is classified to section 1515 of Title 19, Customs Duties.
Section 516 of the Tariff Act of 1930, referred to in subsec. (b),
is classified to section 1516 of Title 19.
A prior section 2637, acts June 25, 1948, ch. 646, 62 Stat. 982;
June 2, 1970, Pub. L. 91-271, title I, 118, 84 Stat. 280; July 26,
1979, Pub. L. 96-39, title X, 1001(b)(4)(E), 93 Stat. 306, related to
witnesses and inspection of documents, prior to the general revision of
this chapter by Pub. L. 96-417. See section 2641 of this title.
Subsec. (c) of this section applicable with respect to civil actions
commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub.
L. 96-417, set out as an Effective Date of 1980 Amendment note under
section 251 of this title.
28 USC 2638. New grounds in support of a civil action
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In any civil action under section 515 of the Tariff Act of 1930 in
which the denial, in whole or in part, of a protest is a precondition to
the commencement of a civil action in the Court of International Trade,
the court, by rule, may consider any new ground in support of the civil
action if such new ground --
(1) applies to the same merchandise that was the subject of the
protest; and
(2) is related to the same administrative decision listed in section
514 of the Tariff Act of 1930 that was contested in the protest.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1736.)
Section 515 of the Tariff Act of 1930, referred to in text, is
classified to section 1515 of Title 19, Customs Duties.
Section 514 of the Tariff Act of 1930, referred to in par. (2), is
classified to section 1514 of Title 19.
A prior section 2638, acts June 25, 1948, ch. 646, 62 Stat. 982;
June 2, 1970, Pub. L. 91-271, title I, 119, 84 Stat. 281, related to
decisions, findings of fact and conclusions of law, and effect of
opinions, prior to the general revision of this chapter by Pub. L.
96-417. See section 2645 (a) and (c) of this title.
28 USC 2639. Burden of proof; evidence of value
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a)(1) Except as provided in paragraph (2) of this subsection, in any
civil action commenced in the Court of International Trade under section
515, 516, or 516A of the Tariff Act of 1930, the decision of the
Secretary of the Treasury, the administering authority, or the
International Trade Commission is presumed to be correct. The burden of
proving otherwise shall rest upon the party challenging such decision.
(2) The provisions of paragraph (1) of this subsection shall not
apply to any civil action commenced in the Court of International Trade
under section 1582 of this title.
(b) In any civil action described in section 1581(h) of this title,
the person commencing the action shall have the burden of making the
demonstration required by such section by clear and convincing evidence.
(c) Where the value of merchandise or any of its components is in
issue in any civil action in the Court of International Trade --
(1) reports or depositions of consuls, customs officers, and other
officers of the United States, and depositions and affidavits of other
persons whose attendance cannot reasonably be had, may be admitted into
evidence when served upon the opposing party as prescribed by the rules
of the court; and
(2) price lists and catalogs may be admitted in evidence when duly
authenticated, relevant, and material.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1736.)
Sections 515, 516, and 516A of the Tariff Act of 1930, referred to in
subsec. (a)(1), are classified to sections 1515, 1516, and 1516a,
respectively, of Title 19, Customs Duties.
A prior section 2639, acts June 25, 1948, ch. 646, 62 Stat. 982;
June 2, 1970, Pub. L. 91-271, title I, 120, 84 Stat. 281, provided
for retrial or rehearing, prior to the general revision of this chapter
by Pub. L. 96-417. See section 2646 of this title.
Subsec. (a)(2) of this section applicable with respect to civil
actions commenced on or after the 90th day after Nov. 1, 1980, see
section 701(c)(1)(A) of Pub. L. 96-417, set out as an Effective Date of
1980 Amendment note under section 251 of this title.
Subsec. (b) of this section applicable with respect to civil actions
commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub.
L. 96-417.
28 USC 2640. Scope and standard of review
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Court of International Trade shall make its determinations
upon the basis of the record made before the court in the following
categories of civil actions:
(1) Civil actions contesting the denial of a protest under section
515 of the Tariff Act of 1930.
(2) Civil actions commenced under section 516 of the Tariff Act of
1930.
(3) Civil actions commenced to review a final determination made
under section 305(b)(1) of the Trade Agreements Act of 1979.
(4) Civil actions commenced under section 777(c)(2) of the Tariff Act
of 1930.
(5) Civil actions commenced to review any decision of the Secretary
of the Treasury under section 641 of the Tariff Act of 1930, with the
exception of decisions under section 641(d)(2)(B), which shall be
governed by subdivision (d) of this section.
(6) Civil actions commenced under section 1582 of this title.
(b) In any civil action commenced in the Court of International Trade
under section 516A of the Tariff Act of 1930, the court shall review the
matter as specified in subsection (b) of such section.
(c) In any civil action commenced in the Court of International Trade
to review any final determination of the Secretary of Labor under
section 223 of the Trade Act of 1974 or any final determination of the
Secretary of Commerce under section 251 or section 271 of such Act, the
court shall review the matter as specified in section 284 of such Act.
(d) In any civil action not specified in this section, the Court of
International Trade shall review the matter as provided in section 706
of title 5.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1736; amended Pub. L. 98-573, title II, 212(b)(5), Oct. 30, 1984, 98
Stat. 2984.)
Section 515 of the Tariff Act of 1930, referred to in subsec.
(a)(1), is classified to section 1515 of Title 19, Customs Duties.
Section 516 of the Tariff Act of 1930, referred to in subsec.
(a)(2), is classified to section 1516 of Title 19.
Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in
subsec. (a)(3), is classified to section 2515(b)(1) of Title 19.
Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec.
(a)(4), is classified to section 1677f(c)(2) of Title 19.
Section 641 of the Tariff Act of 1930, referred to in subsec.
(a)(5), is classified to section 1641 of Title 19.
Section 516A of the Tariff Act of 1930, referred to in subsec. (b),
is classified to section 1516a of Title 19.
Sections 223, 251, 271, and 284 of the Trade Act of 1974, referred to
in subsec. (c), are classified to sections 2273, 2341, 2371, and 2395,
respectively, of Title 19.
A prior section 2640, act June 25, 1948, ch. 646, 62 Stat. 982,
authorized the division which had decided a case or the single judge who
had decided an appeal for a reappraisement to grant a rehearing or
retrial and was repealed by Pub. L. 91-271, title I, 121, June 2,
1970, 84 Stat. 281. See section 2646 of this title.
1984 -- Subsec. (a)(5). Pub. L. 98-573 amended par. (5) generally,
substituting ''under section 641 of the Tariff Act of 1930, with the
exception of decisions under section 641(d)(2)(B), which shall be
governed by subdivision (d) of this section'' for ''to deny or revoke a
customhouse broker's license under section 641(a) of the Tariff Act of
1930''.
Amendment by Pub. L. 98-573 effective on close of 180th day after
Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note
under section 1304 of Title 19, Customs Duties.
Subsecs. (a)(5), (c), and (d) of this section applicable with respect
to civil actions commenced on or after Nov. 1, 1980, see section
701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980
Amendment note under section 251 of this title.
Subsec. (a)(6) of this section applicable with respect to civil
actions commenced on or after the 90th day after Nov. 1, 1980, see
section 701(c)(1)(A) of Pub. L. 96-417.
28 USC 2641. Witnesses; inspection of documents
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Except as otherwise provided by law, in any civil action in the
Court of International Trade, each party and its counsel shall have an
opportunity to introduce evidence, to hear and cross-examine the
witnesses of the other party, and to inspect all samples and papers
admitted or offered as evidence, as prescribed by the rules of the
court. Except as provided in section 2639 of this title, subsection (b)
of this section, or the rules of the court, the Federal Rules of
Evidence shall apply to all civil actions in the Court of International
Trade.
(b) The Court of International Trade may order that trade secrets and
commercial or financial information which is privileged and
confidential, or any information provided to the United States by any
foreign government or foreign person, may be disclosed to a party, its
counsel, or any other person under such terms and conditions as the
court may order.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1737.)
The Federal Rules of Evidence, referred to in subsec. (a), are set
out in the Appendix to this title.
A prior section 2641, act June 25, 1948, ch. 646, 62 Stat. 982,
authorized the Customs Court to assess a penalty of not less than $5 nor
more than $250 against any person filing a frivolous protest or appeal
and was repealed by Pub. L. 91-271, title I, 121, June 2, 1970, 84
Stat. 281.
28 USC 2642. Analysis of imported merchandise
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Court of International Trade may order an analysis of imported
merchandise and reports thereon by laboratories or agencies of the
United States.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1737.)
A prior section 2642, act May 24, 1949, ch. 139, 123, 63 Stat.
106, authorized the Customs Court under its rules and in its discretion
to permit the amendment of protests, appeals and pleadings and was
repealed by Pub. L. 91-271, title I, 121, June 2, 1970, 84 Stat. 281.
See section 2633(b) of this title.
28 USC 2643. Relief
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Court of International Trade may enter a money judgment --
(1) for or against the United States in any civil action commenced
under section 1581 or 1582 of this title; and
(2) for or against the United States or any other party in any
counterclaim, cross-claim, or third-party action under section 1583 of
this title.
(b) If the Court of International Trade is unable to determine the
correct decision on the basis of the evidence presented in any civil
action, the court may order a retrial or rehearing for all purposes, or
may order such further administrative or adjudicative procedures as the
court considers necessary to enable it to reach the correct decision.
(c)(1) Except as provided in paragraphs (2), (3), (4), and (5) of
this subsection, the Court of International Trade may, in addition to
the orders specified in subsections (a) and (b) of this section, order
any other form of relief that is appropriate in a civil action,
including, but not limited to, declaratory judgments, orders of remand,
injunctions, and writs of mandamus and prohibition.
(2) The Court of International Trade may not grant an injunction or
issue a writ of mandamus in any civil action commenced to review any
final determination of the Secretary of Labor under section 223 of the
Trade Act of 1974, or any final determination of the Secretary of
Commerce under section 251 or section 271 of such Act.
(3) In any civil action involving an application for the issuance of
an order directing the administering authority or the International
Trade Commission to make confidential information available under
section 777(c)(2) of the Tariff Act of 1930, the Court of International
Trade may issue an order of disclosure only with respect to the
information specified in such section.
(4) In any civil action described in section 1581(h) of this title,
the Court of International Trade may only order the appropriate
declaratory relief.
(5) In any civil action involving an antidumping or countervailing
duty proceeding regarding a class or kind of Canadian merchandise, as
determined by the administering authority, the Court of International
Trade may not order declaratory relief.
(d) If a surety commences a civil action in the Court of
International Trade, such surety shall recover only the amount of the
liquidated duties, charges, or exactions paid on the entries included in
such action. The excess amount of any recovery shall be paid to the
importer of record.
(e) In any proceeding involving assessment or collection of a
monetary penalty under section 641(b)(6) or 641(d)(2)(A) of the Tariff
Act of 1930, the court may not render judgment in an amount greater than
that sought in the initial pleading of the United States, and may render
judgment in such lesser amount as shall seem proper and just to the
court.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1737; amended Pub. L. 98-573, title II, 212(b)(6), Oct. 30, 1984, 98
Stat. 2984; Pub. L. 100-449, title IV, 402(b), Sept. 28, 1988, 102
Stat. 1884.)
Sections 223, 251, and 271 of the Trade Act of 1974, referred to in
subsec. (c)(2), are classified to sections 2273, 2341, and 2371,
respectively, of Title 19, Customs Duties.
Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec.
(c)(3), is classified to section 1677f(c)(2) of Title 19.
Section 641 of the Tariff Act of 1930, referred to in subsec. (e),
is classified to section 1641 of Title 19.
1988 -- Subsec. (c). Pub. L. 100-449 substituted ''(4), and (5)''
for ''and (4)'' in par. (1) and added par. (5).
1984 -- Subsec. (e). Pub. L. 98-573 added subsec. (e).
Amendment by Pub. L. 100-449 effective on date United States-Canada
Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to
have effect on date Agreement ceases to be in force, see section 501(a),
(c) of Pub. L. 100-449, set out in a note under section 2112 of Title
19, Customs Duties.
Amendment by Pub. L. 98-573 effective on close of 180th day after
Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note
under section 1304 of Title 19, Customs Duties.
Subsecs. (a) and (c)(2), (4) of this section applicable with respect
to civil actions commenced on or after Nov. 1, 1980, see section
701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980
Amendment note under section 251 of this title.
28 USC 2644. Interest
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
If, in a civil action in the Court of International Trade under
section 515 of the Tariff Act of 1930, the plaintiff obtains monetary
relief by a judgment or under a stipulation agreement, interest shall be
allowed at an annual rate established under section 6621 of the Internal
Revenue Code of 1986. Such interest shall be calculated from the date
of the filing of the summons in such action to the date of the refund.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1738; amended Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095.)
Section 515 of the Tariff Act of 1930, referred to in text, is
classified to section 1515 of Title 19, Customs Duties.
Section 6621 of the Internal Revenue Code of 1986, referred to in
text, is classified to section 6621 of Title 26, Internal Revenue Code.
1986 -- Pub. L. 99-514 substituted ''Internal Revenue Code of 1986''
for ''Internal Revenue Code of 1954''.
Section applicable with respect to civil actions commenced on or
after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set
out as an Effective Date of 1980 Amendment note under section 251 of
this title.
28 USC 2645. Decisions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) A final decision of the Court of International Trade in a
contested civil action or a decision granting or refusing a preliminary
injunction shall be supported by --
(1) a statement of findings of fact and conclusions of law; or
(2) an opinion stating the reasons and facts upon which the decision
is based.
(b) After the Court of International Trade has rendered a judgment,
the court may, upon the motion of a party or upon its own motion, amend
its findings or make additional findings and may amend the decision and
judgment accordingly. A motion of a party or the court shall be made
not later than thirty days after the date of entry of the judgment.
(c) A decision of the Court of International Trade is final and
conclusive, unless a retrial or rehearing is granted pursuant to section
2646 of this title or an appeal is taken to the Court of Appeals for the
Federal Circuit by filing a notice of appeal with the clerk of the Court
of International Trade within the time and in the manner prescribed for
appeals to United States courts of appeals from the United States
district courts.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1738; amended Pub. L. 97-164, title I, 141, Apr. 2, 1982, 96 Stat.
45.)
1982 -- Subsec. (c). Pub. L. 97-164 substituted ''is taken to the
Court of Appeals for the Federal Circuit by filing a notice of appeal
with the clerk of the Court of International Trade within the time and
in the manner prescribed for appeals to United States courts of appeals
from the United States district courts'' for ''is taken to the Court of
Customs and Patent Appeals within the time and in the manner provided in
section 2601 of this title''.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
28 USC 2646. Retrial or rehearing
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
After the Court of International Trade has rendered a judgment or
order, the court may, upon the motion of a party or upon its own motion,
grant a retrial or rehearing, as the case may be. A motion of a party
or the court shall be made not later than thirty days after the date of
entry of the judgment or order.
(Added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94 Stat.
1739.)
28 USC ( 2647. Repealed. Pub. L. 98-620, title IV, 402(29)(G), Nov.
8, 1984, 98 Stat. 3359)
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Section, added Pub. L. 96-417, title III, 301, Oct. 10, 1980, 94
Stat. 1739; amended Pub. L. 98-573, title VI, 623(b)(2), Oct. 30,
1984, 98 Stat. 3041, related to precedence of cases.
Repeal 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.
28 USC CHAPTER 171 -- TORT CLAIMS PROCEDURE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2671. Definitions.
2672. Administrative adjustment of claims.
2673. Reports to Congress.
2674. Liability of United States.
2675. Disposition by federal agency as prerequisite; evidence.
2676. Judgment as bar.
2677. Compromise.
2678. Attorney fees; penalty.
2679. Exclusiveness of remedy.
2680. Exceptions.
As printed in this report, this chapter should have read ''173'' and
not ''171''. It was properly numbered ''173'' in the bill. However,
the chapter was renumbered ''171'', without change in its section
numbers, by Senate amendment. See 80th Congress Senate Report No.
1559.
1966 -- Pub. L. 89-506, 9(b), July 18, 1966, 80 Stat. 308,
substituted ''claims'' for ''claims of $2,500 or less'' in item 2672.
1959 -- Pub. L. 86-238, 1(2), Sept. 8, 1959, 73 Stat. 472,
substituted ''$2,500'' for ''$1,000'' in item 2672.
Costs in tort claims cases, see section 2412 of this title.
Interest on judgments against the United States, computation, see
section 2411 of this title.
Jurisdiction of district courts in tort claims cases, see section
1346 of this title.
Jury trial denied in action against the United States, see section
2402 of this title.
Review of tort claims cases, see section 1291 of this title.
Time for commencing tort action against the United States, see
section 2401 of this title.
Venue in tort claims actions, see section 1402 of this title.
3111, 3373, 3374, 5564; title 7 section 2272; title
10 sections 1588, 2113, 2360, 2904; title 12 sections
209, 4621; title 15 sections 637, 4102, 4105; title
16 sections 565a-2, 742f, 742l, 773a, 1421e, 1703,
3602, 3640, 4604; title 20 section 4420; title 22
sections 2124c, 2504, 3508, 3761, 4606; title 23
section 307; title 25 sections 1680c, 2020, 3115;
title 29 section 1706; title 31 sections 3723, 3724;
title 33 section 569c; title 37 section 554; title
39 section 409; title 42 sections 2021d, 2212, 3788,
5055, 7142, 12555, 12653i; title 43 section 1737;
title 45 section 437; title 46 App. section 740.
28 USC 2671. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As used in this chapter and sections 1346(b) and 2401(b) of this
title, the term ''Federal agency'' includes the executive departments,
the judicial and legislative branches, the military departments,
independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United States,
but does not include any contractor with the United States.
''Employee of the government'' includes officers or employees of any
federal agency, members of the military or naval forces of the United
States, members of the National Guard while engaged in training or duty
under section 316, 502, 503, 504, or 505 of title 32, and persons acting
on behalf of a federal agency in an official capacity, temporarily or
permanently in the service of the United States, whether with or without
compensation.
''Acting within the scope of his office or employment'', in the case
of a member of the military or naval forces of the United States or a
member of the National Guard as defined in section 101(3) of title 32,
means acting in line of duty.
(June 25, 1948, ch. 646, 62 Stat. 982; May 24, 1949, ch. 139, 124,
63 Stat. 106; July 18, 1966, Pub. L. 89-506, 8, 80 Stat. 307; Dec.
29, 1981, Pub. L. 97-124, 1, 95 Stat. 1666; Nov. 18, 1988, Pub. L.
100-694, 3, 102 Stat. 4564.)
Based on title 28, U.S.C., 1940 ed., 941 (Aug. 2, 1946, ch. 753,
402, 60 Stat. 842).
Changes were made in phraseology.
This section corrects a typographical error in section 2671 of title
28, U.S.C.
1988 -- Pub. L. 100-694 inserted ''the judicial and legislative
branches,'' after ''departments,'' in first par.
1981 -- Pub. L. 97-124 inserted ''members of the National Guard
while engaged in training or duty under section 316, 502, 503, 504, or
505 of title 32,'' in definition of ''Employee of the government'' and
''or a member of the National Guard as defined in section 101(3) of
title 32'' in definition of ''Acting within the scope of his office or
employment''.
1966 -- Pub. L. 89-506 expanded definition of ''Federal agency'' to
include military departments.
1949 -- Act May 24, 1949, corrected spelling of ''office''.
Amendment by Pub. L. 100-694 effective Nov. 18, 1988, and
applicable to all claims, civil actions, and proceedings pending on, or
filed on or after, Nov. 18, 1988, see section 8 of Pub. L. 100-694,
set out as a note under section 2679 of this title.
Amendment by Pub. L. 97-124 applicable only with respect to claims
arising on or after Dec. 29, 1981, see section 4 of Pub. L. 97-124,
set out as a note under section 1089 of Title 10, Armed Forces.
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
Section 7 of Pub. L. 100-694 provided that: ''If any provision of
this Act (see Short Title of 1988 Amendment note under section 1 of this
title) or the amendments made by this Act or the application of the
provision to any person or circumstance is held invalid, the remainder
of this Act and such amendments and the application of the provision to
any other person or circumstance shall not be affected by that
invalidation.''
Section 2 of Pub. L. 100-694 provided that:
''(a) Findings. -- The Congress finds and declares the following:
''(1) For more than 40 years the Federal Tort Claims Act (28 U.S.C.
1346(b), 2671 et seq.) has been the legal mechanism for compensating
persons injured by negligent or wrongful acts of Federal employees
committed within the scope of their employment.
''(2) The United States, through the Federal Tort Claims Act, is
responsible to injured persons for the common law torts of its employees
in the same manner in which the common law historically has recognized
the responsibility of an employer for torts committed by its employees
within the scope of their employment.
''(3) Because Federal employees for many years have been protected
from personal common law tort liability by a broad based immunity, the
Federal Tort Claims Act has served as the sole means for compensating
persons injured by the tortious conduct of Federal employees.
''(4) Recent judicial decisions, and particularly the decision of the
United States Supreme Court in Westfall v. Erwin, have seriously eroded
the common law tort immunity previously available to Federal employees.
''(5) This erosion of immunity of Federal employees from common law
tort liability has created an immediate crisis involving the prospect of
personal liability and the threat of protracted personal tort litigation
for the entire Federal workforce.
''(6) The prospect of such liability will seriously undermine the
morale and well being of Federal employees, impede the ability of
agencies to carry out their missions, and diminish the vitality of the
Federal Tort Claims Act as the proper remedy for Federal employee torts.
''(7) In its opinion in Westfall v. Erwin, the Supreme Court
indicated that the Congress is in the best position to determine the
extent to which Federal employees should be personally liable for common
law torts, and that legislative consideration of this matter would be
useful.
''(b) Purpose. -- It is the purpose of this Act (see Short Title of
1988 Amendment note under section 1 of this title) to protect Federal
employees from personal liability for common law torts committed within
the scope of their employment, while providing persons injured by the
common law torts of Federal employees with an appropriate remedy against
the United States.''
Peace Corps volunteers deemed employees of the United States for
purposes of this chapter, see section 2504 of Title 22, Foreign
Relations and Intercourse.
16 section 4604; title 20 section 4420; title 23
section 307; title 25 section 450f; title 42 section
12555.
28 USC 2672. Administrative adjustment of claims
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The head of each Federal agency or his designee, in accordance with
regulations prescribed by the Attorney General, may consider, ascertain,
adjust, determine, compromise, and settle any claim for money damages
against the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred: Provided, That any award,
compromise, or settlement in excess of $25,000 shall be effected only
with the prior written approval of the Attorney General or his designee.
Notwithstanding the proviso contained in the preceding sentence, any
award, compromise, or settlement may be effected without the prior
written approval of the Attorney General or his or her designee, to the
extent that the Attorney General delegates to the head of the agency the
authority to make such award, compromise, or settlement. Such
delegations may not exceed the authority delegated by the Attorney
General to the United States attorneys to settle claims for money
damages against the United States. Each Federal agency may use
arbitration, or other alternative means of dispute resolution under the
provisions of subchapter IV of chapter 5 of title 5, to settle any tort
claim against the United States, to the extent of the agency's authority
to award, compromise, or settle such claim without the prior written
approval of the Attorney General or his or her designee.
Subject to the provisions of this title relating to civil actions on
tort claims against the United States, any such award, compromise,
settlement, or determination shall be final and conclusive on all
offices of the Government, except when procured by means of fraud.
Any award, compromise, or settlement in an amount of $2,500 or less
made pursuant to this section shall be paid by the head of the Federal
agency concerned out of appropriations available to that agency.
Payment of any award, compromise, or settlement in an amount in excess
of $2,500 made pursuant to this section or made by the Attorney General
in any amount pursuant to section 2677 of this title shall be paid in a
manner similar to judgments and compromises in like causes and
appropriations or funds available for the payment of such judgments and
compromises are hereby made available for the payment of awards,
compromises, or settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or
settlement shall be final and conclusive on the claimant, and shall
constitute a complete release of any claim against the United States and
against the employee of the government whose act or omission gave rise
to the claim, by reason of the same subject matter.
(June 25, 1948, ch. 646, 62 Stat. 983; Apr. 25, 1949, ch. 92, 2(b),
63 Stat. 62; May 24, 1949, ch. 139, 125, 63 Stat. 106; Sept. 23,
1950, ch. 1010, 9, 64 Stat. 987; Sept. 8, 1959, Pub. L. 86-238, 1(1),
73 Stat. 471; July 18, 1966, Pub. L. 89-506, 1, 9(a), 80 Stat. 306,
308; Nov. 15, 1990, Pub. L. 101-552, 8(a), 104 Stat. 2746.)
For termination of amendment by section 11 of Pub. L. 101-552, see
Termination Date of 1990 Amendment; Savings Provision note below.
Based on title 28, U.S.C., 1940 ed., 921 (Aug. 2, 1946, ch. 753,
403, 60 Stat. 843).
The phrase ''accruing on and after January 1, 1945'' was omitted
because executed as of the date of the enactment of this revised title.
Changes were made in phraseology.
This section corrects a typographical error in section 2672 of title
28, U.S.C.
1990 -- Pub. L. 101-552 temporarily inserted at end of first par.
''Notwithstanding the proviso contained in the preceding sentence, any
award, compromise, or settlement may be effected without the prior
written approval of the Attorney General or his or her designee, to the
extent that the Attorney General delegates to the head of the agency the
authority to make such award, compromise, or settlement. Such
delegations may not exceed the authority delegated by the Attorney
General to the United States attorneys to settle claims for money
damages against the United States. Each Federal agency may use
arbitration, or other alternative means of dispute resolution under the
provisions of subchapter IV of chapter 5 of title 5, to settle any tort
claim against the United States, to the extent of the agency's authority
to award, compromise, or settle such claim without the prior written
approval of the Attorney General or his or her designee.'' See
Termination Date of 1990 Amendment; Savings Provision note below.
1966 -- Pub. L. 89-506 substituted ''claims'' for ''claims of $2,500
or less'' in section catchline, authorized administrative settlement of
tort claims, in accordance with regulations prescribed by the Attorney
General, of up to $25,000 and, with the prior written approval of the
Attorney General or his designee, in excess of $25,000, inserted
''compromise'' and ''settlement'' to list of administrative acts that
would be final and conclusive on all officers of the government,
authorized the payment of administrative settlements in excess of $2,500
in the manner similar to judgments and compromises in like causes, and
made appropriations and funds which were available for the payment of
such judgments and compromises available for the payment of awards,
compromises, or settlements under this chapter.
1959 -- Pub. L. 86-238 substituted ''$2,500'' for ''$1,000'' in
section catchline and text.
1950 -- Act Sept. 23, 1950, struck out requirement for specific
authorization for payment of tort claims in appropriation acts.
1949 -- Act Apr. 25, 1949, inserted ''accruing on or after January
1, 1945'' after ''United States'' in first par.
Act May 24, 1949, substituted ''2677'' for ''2678'' in third par.
For termination of amendments by Pub. L. 101-552 and authority to
use dispute resolution proceedings on Oct. 1, 1995, except with respect
to certain pending proceedings, see section 11 of Pub. L. 101-552, set
out as a Termination Date; Savings Provision note under section 571 of
Title 5, Government Organization and Employees.
Section 10 of Pub. L. 89-506 provided that: ''This Act (amending
this section, sections 2401, 2671, 2675, 2677, 2678, and 2679 of this
title, section 724a of former Title 31, Money and Finance, and former
section 4116 of Title 38, Veterans' Benefits), shall apply to claims
accruing six months or more after the date of its enactment (July 18,
1966).''
Section 424(b) of act Aug. 2, 1946, ch. 753, title IV, 60 Stat.
856, provided that: ''Nothing contained herein shall be deemed to
repeal any provision of law authorizing any Federal agency to consider,
ascertain, adjust, settle, determine, or pay any claim on account of
damage to or loss of property or on account of personal injury or death,
in cases in which such damage, loss, injury, or death was not caused by
any negligent or wrongful act or omission of an employee of the
Government while acting within the scope of his office or employment, or
any other claim not cognizable under part 2 of this title.''
Allowance of claims for property loss, personal injury, or death
incident to noncombat activities of Army, Navy, or Air Force, see
section 2733 of Title 10, Armed Forces.
1054, 1089, 2733; title 15 section 2081; title 21
section 904; title 22 sections 1474, 2669, 2702;
title 23 section 307; title 29 section 1706; title
31 section 1304; title 32 section 715; title 38
sections 515, 1151, 7316; title 39 section 2603;
title 42 sections 233, 2212, 2458a, 5055.
28 USC 2673. Reports to Congress
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The head of each federal agency shall report annually to Congress all
claims paid by it under section 2672 of this title, stating the name of
each claimant, the amount claimed, the amount awarded, and a brief
description of the claim.
(June 25, 1948, ch. 646, 62 Stat. 983.)
Section 1(1) of Pub. L. 89-348, Nov. 8, 1965, 79 Stat. 1310,
repealed the requirement that an annual report to Congress be made of
the administrative adjustment of tort claims of $2,500 or less, stating
the name of each claimant, the amount claimed, the amount awarded, and a
brief description of the claim.
Based on title 28, U.S.C., 1940 ed., 922 (Aug. 2, 1946, ch. 753,
404, 60 Stat. 843).
Changes were made in phraseology.
28 USC 2674. Liability of United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same extent
as a private individual under like circumstances, but shall not be
liable for interest prior to judgment or for punitive damages.
If, however, in any case wherein death was caused, the law of the
place where the act or omission complained of occurred provides, or has
been construed to provide, for damages only punitive in nature, the
United States shall be liable for actual or compensatory damages,
measured by the pecuniary injuries resulting from such death to the
persons respectively, for whose benefit the action was brought, in lieu
thereof.
With respect to any claim under this chapter, the United States shall
be entitled to assert any defense based upon judicial or legislative
immunity which otherwise would have been available to the employee of
the United States whose act or omission gave rise to the claim, as well
as any other defenses to which the United States is entitled.
With respect to any claim to which this section applies, the
Tennessee Valley Authority shall be entitled to assert any defense which
otherwise would have been available to the employee based upon judicial
or legislative immunity, which otherwise would have been available to
the employee of the Tennessee Valley Authority whose act or omission
gave rise to the claim as well as any other defenses to which the
Tennessee Valley Authority is entitled under this chapter.
(June 25, 1948, ch. 646, 62 Stat. 983; Nov. 18, 1988, Pub. L.
100-694, 4, 9(c), 102 Stat. 4564, 4567.)
Based on title 28, U.S.C., 1940 ed., 931(a) (Aug. 2, 1946, ch. 753,
410(a), 60 Stat. 843).
Section constitutes the liability provisions in the second sentence
of section 931(a) of title 28, U.S.C., 1940 ed.
Other provisions of section 931(a) of title 28, U.S.C., 1940 ed., are
incorporated in sections 1346(b), 1402, 2402, 2411, and 2412 of this
title, but the provision of such section 931(a) that the United States
shall not be liable for interest prior to judgment was omitted as
unnecessary in view of section 2411 of this title, which provides that
interest on judgments against the United States shall be computed from
the date of judgment. Such section 2411 is made applicable to
tort-claim actions by section 932 of title 28, U.S.C., 1940 ed.
Changes were made in phraseology.
For Senate amendment to this section, see 80th Congress Senate Report
No. 1559, amendment No. 60.
1988 -- Pub. L. 100-694 inserted two pars. at end entitling the
United States and the Tennessee Valley Authority to assert any defense
based upon judicial or legislative immunity.
Amendment by Pub. L. 100-694 effective Nov. 18, 1988, and
applicable to all claims, civil actions, and proceedings pending on, or
filed on or after, Nov. 18, 1988, see section 8 of Pub. L. 100-694
set out as a note under section 2679 of this title.
Interest on judgments, computation, see section 2411 of this title.
28 USC 2675. Disposition by federal agency as prerequisite; evidence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail. The failure of an agency to make final disposition of
a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section. The provisions of this subsection shall not
apply to such claims as may be asserted under the Federal Rules of Civil
Procedure by third party complaint, cross-claim, or counterclaim.
(b) Action under this section shall not be instituted for any sum in
excess of the amount of the claim presented to the federal agency,
except where the increased amount is based upon newly discovered
evidence not reasonably discoverable at the time or presenting the claim
to the federal agency, or upon allegation and proof of intervening
facts, relating to the amount of the claim.
(c) Disposition of any claim by the Attorney General or other head of
a federal agency shall not be competent evidence of liability or amount
of damages.
(June 25, 1948, ch. 646, 62 Stat. 983; May 24, 1949, ch. 139, 126,
63 Stat. 107; July 18, 1966, Pub. L. 89-506, 2, 80 Stat. 306.)
Based on title 28, U.S.C., 1940 ed., 931(b) (Aug. 2, 1946, ch. 753,
410(b), 60 Stat. 844).
Section constitutes all of section 931(b), except the first sentence,
of title 28, U.S.C., 1940 ed. The remainder of such section 931(b) is
incorporated in section 2677 of this title.
Changes were made in phraseology.
This section corrects a typographical error in section 2675(b) of
title 28, U.S.C.
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
1966 -- Subsec. (a). Pub. L. 89-506, 2(a), required that all
administrative claims be filed with the agency or department and finally
denied by the agency and sent by certified or registered mail prior to
the filing of a court action against the United States, provided that
the claimant be given the option of considering the claim to have been
denied if the agency fails to make final disposition of the claim within
six months of presentation of the claim to the agency, and provided that
the requirements of the subsection would not apply to claims asserted
under the Federal Rules of Civil Procedure by third party complaint,
cross-claim, or counterclaim.
Subsec. (b). Pub. L. 89-506, 2(b), struck out provisions under which
a claimant could, upon 15 days written notice, withdraw a claim from the
agency and institute an action thereon.
1949 -- Subsec. (b). Act May 24, 1949, substituted ''section'' for
''subsection''.
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
District courts, jurisdiction of tort claims cases, see section 1346
of this title.
Jury trial denied in actions against the United States, see section
2402 of this title.
Time for commencing tort action against the United States, see
section 2401 of this title.
Venue in tort claims actions, see section 1402 of this title.
28 USC 2676. Judgment as bar
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The judgment in an action under section 1346 (b) of this title shall
constitute a complete bar to any action by the claimant, by reason of
the same subject matter, against the employee of the government whose
act or omission gave rise to the claim.
(June 25, 1948, ch. 646, 62 Stat. 984.)
Based on title 28, U.S.C., 1940 ed., 931(b) (Aug. 2, 1946, ch. 753,
410(b), 60 Stat. 844).
Section constitutes the first sentence of section 931(b) of title 28,
U.S.C., 1940 ed. Other provisions of such section 931(b) are
incorporated in section 2675 of this title.
Changes were made in phraseology.
This section was eliminated by Senate amendment. See 80th Congress
Senate Report No. 1559.
28 USC 2677. Compromise
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The Attorney General or his designee may arbitrate, compromise, or
settle any claim cognizable under section 1346(b) of this title, after
the commencement of an action thereon.
(June 25, 1948, ch. 646, 62 Stat. 984; July 18, 1966, Pub. L.
89-506, 3, 80 Stat. 307.)
Based on title 28, U.S.C., 1940 ed., 934 (Aug. 2, 1946, ch. 753,
413, 60 Stat. 845).
Changes were made in phraseology.
This section was renumbered ''2676'' by Senate amendment. See 80th
Congress Senate Report No. 1559.
1966 -- Pub. L. 89-506 struck out provision requiring that approval
of court be obtained before Attorney General could arbitrate,
compromise, or settle a claim after commencement of an action thereon.
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
1054, 1089; title 22 section 2702; title 31 section
1304; title 38 sections 1151, 7316; title 42
sections 233, 2458a, 5055.
28 USC 2678. Attorney fees; penalty
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
No attorney shall charge, demand, receive, or collect for services
rendered, fees in excess of 25 per centum of any judgment rendered
pursuant to section 1346(b) of this title or any settlement made
pursuant to section 2677 of this title, or in excess of 20 per centum of
any award, compromise, or settlement made pursuant to section 2672 of
this title.
Any attorney who charges, demands, receives, or collects for services
rendered in connection with such claim any amount in excess of that
allowed under this section, if recovery be had, shall be fined not more
than $2,000 or imprisoned not more than one year, or both.
(June 25, 1948, ch. 646, 62 Stat. 984; July 18, 1966, Pub. L.
89-506, 4, 80 Stat. 307.)
Based on title 28, U.S.C., 1940 ed., 944 (Aug. 2, 1946, ch. 753,
422, 60 Stat. 846).
Words ''shall be guilty of a misdemeanor'' and ''shall, upon
conviction thereof'', in the second sentence, were omitted in conformity
with revised title 18, U.S.C., Crimes and Criminal Procedure (H.R. 1600,
80th Cong.). See sections 1 and 2 of said revised title 18.
Changes were made in phraseology.
This section was renumbered ''2677'' by Senate amendment. See 80th
Congress Senate Report No. 1559.
1966 -- Pub. L. 89-506 raised the limitations on allowable attorneys
fees from 10 to 20 percent for administrative settlements and from 20 to
25 percent for fees in cases after suit is filed and removed the
requirement of agency or court allowance of the amount of attorneys
fees.
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
28 USC 2679. Exclusiveness of remedy
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The authority of any federal agency to sue and be sued in its own
name shall not be construed to authorize suits against such federal
agency on claims which are cognizable under section 1346(b) of this
title, and the remedies provided by this title in such cases shall be
exclusive.
(b)(1) The remedy against the United States provided by sections
1346(b) and 2672 of this title for injury or loss of property, or
personal injury or death arising or resulting from the negligent or
wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment is exclusive of any other
civil action or proceeding for money damages by reason of the same
subject matter against the employee whose act or omission gave rise to
the claim or against the estate of such employee. Any other civil
action or proceeding for money damages arising out of or relating to the
same subject matter against the employee or the employee's estate is
precluded without regard to when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil action against
an employee of the Government --
(A) which is brought for a violation of the Constitution of the
United States, or
(B) which is brought for a violation of a statute of the United
States under which such action against an individual is otherwise
authorized.
(c) The Attorney General shall defend any civil action or proceeding
brought in any court against any employee of the Government or his
estate for any such damage or injury. The employee against whom such
civil action or proceeding is brought shall deliver within such time
after date of service or knowledge of service as determined by the
Attorney General, all process served upon him or an attested true copy
thereof to his immediate superior or to whomever was designated by the
head of his department to receive such papers and such person shall
promptly furnish copies of the pleadings and process therein to the
United States attorney for the district embracing the place wherein the
proceeding is brought, to the Attorney General, and to the head of his
employing Federal agency.
(d)(1) Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at the
time of the incident out of which the claim arose, any civil action or
proceeding commenced upon such claim in a United States district court
shall be deemed an action against the United States under the provisions
of this title and all references thereto, and the United States shall be
substituted as the party defendant.
(2) Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at the
time of the incident out of which the claim arose, any civil action or
proceeding commenced upon such claim in a State court shall be removed
without bond at any time before trial by the Attorney General to the
district court of the United States for the district and division
embracing the place in which the action or proceeding is pending. Such
action or proceeding shall be deemed to be an action or proceeding
brought against the United States under the provisions of this title and
all references thereto, and the United States shall be substituted as
the party defendant. This certification of the Attorney General shall
conclusively establish scope of office or employment for purposes of
removal.
(3) In the event that the Attorney General has refused to certify
scope of office or employment under this section, the employee may at
any time before trial petition the court to find and certify that the
employee was acting within the scope of his office or employment. Upon
such certification by the court, such action or proceeding shall be
deemed to be an action or proceeding brought against the United States
under the provisions of this title and all references thereto, and the
United States shall be substituted as the party defendant. A copy of
the petition shall be served upon the United States in accordance with
the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure.
In the event the petition is filed in a civil action or proceeding
pending in a State court, the action or proceeding may be removed
without bond by the Attorney General to the district court of the United
States for the district and division embracing the place in which it is
pending. If, in considering the petition, the district court determines
that the employee was not acting within the scope of his office or
employment, the action or proceeding shall be remanded to the State
court.
(4) Upon certification, any action or proceeding subject to paragraph
(1), (2), or (3) shall proceed in the same manner as any action against
the United States filed pursuant to section 1346(b) of this title and
shall be subject to the limitations and exceptions applicable to those
actions.
(5) Whenever an action or proceeding in which the United States is
substituted as the party defendant under this subsection is dismissed
for failure first to present a claim pursuant to section 2675(a) of this
title, such a claim shall be deemed to be timely presented under section
2401(b) of this title if --
(A) the claim would have been timely had it been filed on the date
the underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within
60 days after dismissal of the civil action.
(e) The Attorney General may compromise or settle any claim asserted
in such civil action or proceeding in the manner provided in section
2677, and with the same effect.
(June 25, 1948, ch. 646, 62 Stat. 984; Sept. 21, 1961, Pub. L.
87-258, 1, 75 Stat. 539; July 18, 1966, Pub. L. 89-506, 5(a), 80
Stat. 307; Nov. 18, 1988, Pub. L. 100-694, 5, 6, 102 Stat. 4564.)
Based on title 28, U.S.C., 1940 ed., 945 (Aug. 2, 1946, ch. 753,
423, 60 Stat. 846).
Changes were made in phraseology.
The catchline and text of this section were changed and the section
was renumbered ''2678'' by Senate amendment. See 80th Congress Senate
Report No. 1559.
The Federal Rules of Civil Procedure, referred to in subsec. (d)(3),
are set out in the Appendix to this title.
1988 -- Subsec. (b). Pub. L. 100-694, 5, amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: ''The
remedy against the United States provided by sections 1346(b) and 2672
of this title for injury or loss of property or personal injury or
death, resulting from the operation by any employee of the Government of
any motor vehicle while acting within the scope of his office or
employment, shall hereafter be exclusive of any other civil action or
proceeding by reason of the same subject matter against the employee or
his estate whose act or omission gave rise to the claim.''
Subsec. (d). Pub. L. 100-694, 6, amended subsec. (d) generally.
Prior to amendment, subsec. (d) read as follows: ''Upon a
certification by the Attorney General that the defendant employee was
acting within the scope of his employment at the time of the incident
out of which the suit arose, any such civil action or proceeding
commenced in a State court shall be removed without bond at any time
before trial by the Attorney General to the district court of the United
States for the district and division embracing the place wherein it is
pending and the proceedings deemed a tort action brought against the
United States under the provisions of this title and all references
thereto. Should a United States district court determine on a hearing
on a motion to remand held before a trial on the merits that the case so
removed is one in which a remedy by suit within the meaning of
subsection (b) of this section is not available against the United
States, the case shall be remanded to the State court.''
1966 -- Subsec. (b). Pub. L. 89-506 inserted reference to section
2672 of this title and substituted ''remedy'' for ''remedy by suit''.
1961 -- Pub. L. 87-258 designated existing provisions as subsec.
(a) and added subsecs. (b) to (e).
Section 8 of Pub. L. 100-694 provided that:
''(a) General Rule. -- This Act and the amendments made by this Act
(enacting section 831c-2 of Title 16, Conservation, amending this
section and sections 2671 and 2674 of this title, and enacting
provisions set out as notes under this section and section 2671 of this
title) shall take effect on the date of the enactment of this Act (Nov.
18, 1988).
''(b) Applicability to Proceedings. -- The amendments made by this
Act (amending this section and sections 2671 and 2674 of this title)
shall apply to all claims, civil actions, and proceedings pending on, or
filed on or after, the date of the enactment of this Act.
''(c) Pending State Proceedings. -- With respect to any civil action
or proceeding pending in a State court to which the amendments made by
this Act apply, and as to which the period for removal under section
2679(d) of title 28, United States Code (as amended by section 6 of this
Act), has expired, the Attorney General shall have 60 days after the
date of the enactment of this Act during which to seek removal under
such section 2679(d).
''(d) Claims Accruing Before Enactment. -- With respect to any civil
action or proceeding to which the amendments made by this Act apply in
which the claim accrued before the date of the enactment of this Act,
the period during which the claim shall be deemed to be timely presented
under section 2679(d)(5) of title 28, United States Code (as amended by
section 6 of this Act) shall be that period within which the claim could
have been timely filed under applicable State law, but in no event shall
such period exceed two years from the date of the enactment of this
Act.''
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
Section 2 of Pub. L. 87-258 provided that: ''The amendments made by
this Act (amending this section) shall be deemed to be in effect six
months after the enactment hereof (Sept. 21, 1961) but any rights or
liabilities then existing shall not be affected.''
For civil actions for injury or loss of property or personal injury
or death against the Tennessee Valley Authority, see section 831c-2 of
Title 16, Conservation.
title 20 section 1082; title 25 section 450f; title
33 section 2718; title 42 sections 233, 2458a, 3211.
28 USC 2680. Exceptions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The provisions of this chapter and section 1346(b) of this title
shall not apply to --
(a) Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused.
(b) Any claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.
(c) Any claim arising in respect of the assessment or collection of
any tax or customs duty, or the detention of any goods or merchandise by
any officer of customs or excise or any other law-enforcement officer.
(d) Any claim for which a remedy is provided by sections 741-752,
781-790 of Title 46, relating to claims or suits in admiralty against
the United States.
(e) Any claim arising out of an act or omission of any employee of
the Government in administering the provisions of sections 1-31 of Title
50, Appendix.
(f) Any claim for damages caused by the imposition or establishment
of a quarantine by the United States.
((g) Repealed. Sept. 26, 1950, ch. 1049, 13 (5), 64 Stat. 1043.)
(h) Any claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights:
Provided, That, with regard to acts or omissions of investigative or law
enforcement officers of the United States Government, the provisions of
this chapter and section 1346(b) of this title shall apply to any claim
arising, on or after the date of the enactment of this proviso, out of
assault, battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution. For the purpose of this subsection,
''investigative or law enforcement officer'' means any officer of the
United States who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law.
(i) Any claim for damages caused by the fiscal operations of the
Treasury or by the regulation of the monetary system.
(j) Any claim arising out of the combatant activities of the military
or naval forces, or the Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
(l) Any claim arising from the activities of the Tennessee Valley
Authority.
(m) Any claim arising from the activities of the Panama Canal
Company.
(n) Any claim arising from the activities of a Federal land bank, a
Federal intermediate credit bank, or a bank for cooperatives.
(June 25, 1948, ch. 646, 62 Stat. 984; July 16, 1949, ch. 340, 63
Stat. 444; Sept. 26, 1950, ch. 1049, 2(a)(2), 13(5), 64 Stat. 1038,
1043; Aug. 18, 1959, Pub. L. 86-168, title II, 202(b), 73 Stat. 389;
Mar. 16, 1974, Pub. L. 93-253, 2, 88 Stat. 50.)
Based on title 28, U.S.C., 1940 ed., 943 (Aug. 2, 1946, ch. 753,
421, 60 Stat. 845).
Changes were made in phraseology.
Section 946 of title 28, U.S.C., 1940 ed., which was derived from
section 424(b) of the Federal Tort Claims Act, was omitted from this
revised title. It preserved the existing authority of federal agencies
to settle tort claims not cognizable under section 2672 of this title.
Certain enumerated laws granting such authority were specifically
repealed by section 424(a) of the Federal Tort Claims Act, which section
was also omitted from this revised title. These provisions were not
included in this revised title as they are not properly a part of a code
of general and permanent law.
Sections 2680 and 2681 were renumbered ''2679'' and ''2680'',
respectively, by Senate amendment. See 80th Congress Senate Report No.
1559.
Sections 741-752 of title 46, referred to in subsec. (d), are
popularly known as the ''Suits in Admiralty Act'' and are classified to
Title 46, Appendix, Shipping.
Sections 781-790 of title 46, referred to in subsec. (d), are
popularly known as the ''Public Vessels Act'' and are classified to
Title 46, Appendix.
Sections 1-31 of Title 50, Appendix, referred to in subsec. (e), was
in the original source of this section (section 943 of act Aug. 2, 1946)
a reference to the Trading with the Enemy Act, as amended. The Trading
with the Enemy Act is now comprised of sections 1 to 43, which are
classified to sections 1 to 6, 7 to 39, and 41 to 44 of Title 50,
Appendix, War and National Defense.
The date of the enactment of this proviso, referred to in subsec.
(h), means Mar. 16, 1974, the date on which Pub. L. 93-253, which
enacted the proviso, was approved.
Panama Canal Company, referred to in subsec. (m), deemed to refer to
Panama Canal Commission, see section 3602(b)(5) of Title 22, Foreign
Relations and Intercourse.
1974 -- Subsec. (h). Pub. L. 93-253 inserted proviso.
1959 -- Subsec. (n). Pub. L. 86-168 added subsec. (n).
1950 -- Subsec. (g). Act Sept. 26, 1950, 13(5), repealed subsec.
(g).
Subsec. (m). Act Sept. 26, 1950, 2, substituted ''Panama Canal
Company'' for ''Panama Railroad Company''.
1949 -- Subsec. (m). Act July 16, 1949, added subsec. (m).
Amendment by Pub. L. 86-168 effective Jan. 1, 1960, see section
203(c) of Pub. L. 86-168.
Amendment by act Sept. 26, 1950, to take effect upon effective date
of transfer to the Panama Canal Company, pursuant to the provisions of
section 256 of the Canal Zone Code, as added by section 10 of that act,
of the Panama Canal together with the facilities and appurtenances
related thereto, see section 14 of act Sept. 26, 1950.
Coast Guard transferred to Department of Transportation and all
functions, powers, and duties, relating to Coast Guard, of Secretary of
the Treasury and of all other offices and officers of Department of the
Treasury transferred to Secretary of Transportation by Pub. L. 89-670,
6(b)(1), Oct. 15, 1966, 80 Stat. 938. Section 6(b)(2) of Pub. L.
89-670, however, provided that notwithstanding such transfer of
functions, Coast Guard shall operate as part of Navy in time of war or
when President directs as provided in section 3 of Title 14, Coast
Guard. See section 108 of Title 49, Transportation.
For transfer of certain functions relating to claims and litigation,
insofar as they pertain to the Air Force, from Secretary of the Army to
Secretary of the Air Force, see Secretary of Defense Transfer Order No.
34 ( 1a(2)(4)), eff. July 1, 1949.
Pub. L. 97-357, title II, 204, Oct. 19, 1982, 96 Stat. 1708,
provided: ''That the Northern Mariana Islands shall not be considered a
foreign country for purposes of subsection (k) of section 2680 of title
28, United States Code, with respect to claims which accrued no more
than two years prior to the effective date of this Act (Oct. 19,
1982).''
Declaration of national emergency in effect on Sept. 14, 1976, was
terminated two years from that date by section 1601 of Title 50, War and
National Defense.
Joint Res. July 3, 1952, ch. 570, 1(a)(32), 66 Stat. 333, as
amended by Joint Res. Mar. 31, 1953, ch. 13, 1, 67 Stat. 18, and
Joint Res. June 30, 1953, ch. 172, 67 Stat. 132, provided that
subsec. (j) of this section, in addition to coming into full force and
effect in time of war, should continue in force until six months after
the termination of the national emergency proclaimed by the President on
Dec. 16, 1950 by 1950 Proc. No. 2914, 15 F.R. 9029, set out as a note
preceding section 1 of Title 50 Appendix, War and National Defense, or
such earlier date or dates as may be provided for by Congress, but in no
event beyond Aug. 1, 1953. Section 7 of Joint Res. July 3, 1952,
provided that it should become effective June 16, 1952.
Joint Res. July 3, 1952, ch. 570, 6, 66 Stat. 334, repealed Joint
Res. Apr. 14, 1952, ch. 204, 66 Stat. 54 as amended by Joint Res.
May 28, 1952, ch. 339, 66 Stat. 96; Joint Res. June 14, 1952, ch.
437, 66 Stat. 137; Joint Res. June 30, 1952, ch. 526, 66 Stat. 296,
which continued provisions of subsec. (j) of this section until July 3,
1952. This repeal was made effective June 16, 1952, by section 7 of
Joint Res. July 3, 1952.
For civil actions for injury or loss of property or personal injury
or death against the Tennessee Valley Authority, see section 831c-2 of
Title 16, Conservation.
title 21 section 904; title 22 sections 1474, 2702;
title 31 section 3724; title 38 section 7316; title
42 sections 233, 2458a.
28 USC CHAPTER 173 -- ATTACHMENT IN POSTAL SUITS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2710. Right of attachment.
2711. Application for warrant.
2712. Issue of warrant.
2713. Trial of ownership of property.
2714. Investment of proceeds of attached property.
2715. Publication.
2716. Personal notice.
2717. Discharge.
2718. Interest on balances due department.
28 USC 2710. Right of attachment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Where debts are due from a defaulting or delinquent postmaster,
contractor, or other officer, agent or employee of the Post Office
Department, a warrant of attachment may issue against all property and
legal and equitable rights belonging to him, and his sureties, or either
of them, where he --
(1) is a nonresident of the district where he was appointed, or has
departed from that district for the purpose of permanently residing
outside thereof, or of avoiding the service of civil process; and
(2) has conveyed away, or is about to convey away any of his
property, or has removed or is about to remove the same from the
district wherein it is situated, with intent to defraud the United
States.
(b) When the property has been removed, the marshal of the district
into which it has been removed, upon receipt of certified copies of the
warrant, may seize the property and convey it to a convenient place
within the jurisdiction of the court which issued the warrant. Alias
warrants may be issued upon due application. The warrant first issued
remains valid until the return day thereof.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 706.)
Section was derived from R.S. 924, which was originally classified
to section 737 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 924 was reclassified
to section 837 of Title 39. R.S. 924 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2710 of this title.
References to Post Office Department, Postal Service, Postal Field
Service, Field Postal Service, or Departmental Service or Departmental
Headquarters of Post Office Department to be considered references to
United States Postal Service pursuant to Pub. L. 91-375, 6(o), Aug.
12, 1970, 84 Stat. 783, set out as a Cross Reference note preceding
section 101 of Title 39, Postal Service.
Chapter effective Sept. 1, 1960, see section 11 of Pub. L. 86-682.
28 USC 2711. Application for warrant
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A United States attorney or assistant United States attorney or a
person authorized by the Attorney General --
(1) upon his own affidavit or that of another credible person,
stating the existence of either of the grounds of attachments enumerated
in section 2710 of this title and
(2) upon production of legal evidence of the debt
may apply for a warrant of attachment to a judge, or, in his absence,
to the clerk of any court of the United States having original
jurisdiction of the cause of action.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 925, which was originally classified
to section 738 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 925 was reclassified
to section 838 of Title 39. R.S. 925 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2711 of this title.
28 USC 2712. Issue of warrant
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Upon an order of a judge of a court, or, in his absence and upon the
clerk's own initiative, the clerk shall issue a warrant for the
attachment of the property belonging to the person specified in the
affidavit. The marshal shall execute the warrant forthwith and take the
property attached, if personal, in his custody, subject to the
interlocutory or final orders of the court.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 926, which was originally classified
to section 739 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 926 was reclassified
to section 839 of Title 39. R.S. 926 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2712 of this title.
28 USC 2713. Trial of ownership of property
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Not later than twenty days before the return day of a warrant issued
under section 2712 of this title, the party whose property is attached,
on notice to the United States Attorney, may file a plea in abatement,
denying the allegations of the affidavit, or denying ownership in the
defendant of the property attached. The court, upon application of
either party, shall order a trial by jury of the issues. Where the
parties, by consent, waive a trial by jury, the court shall decide the
issues. A party claiming ownership of the property attached and seeking
its return is limited to the remedy afforded by this section, but his
right to an action of trespass, or other action for damages, is not
impaired.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 927, which was originally classified
to section 740 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 927 was reclassified
to section 840 of Title 39. R.S. 927 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2713 of this title.
Pleas abolished, see rule 7, Appendix to this title.
28 USC 2714. Investment of proceeds of attached property
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
When the property attached is sold on an interlocutory order or is
producing revenue, the money arising from the sale or revenue shall be
invested, under the order of the court, in securities of the United
States. The accretions therefrom are subject to the order of the court.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 928, which was originally classified
to section 741 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 928 was reclassified
to section 841 of Title 39. R.S. 928 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2714 of this title.
28 USC 2715. Publication
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The marshal shall cause publication of an executed warrant of
attachment --
(1) for two months in case of an absconding debtor, and
(2) for four months in case of a nonresident debtor
in a newspaper published in the district where the property is
situated pursuant to the details of the order under which the warrant is
issued.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 929, which was originally classified
to section 742 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 929 was reclassified
to section 842 of Title 39. R.S. 929 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2715 of this title.
28 USC 2716. Personal notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
After the first publication of the notice of attachment, a person
indebted to, or having possession of property of a defendant and having
knowledge of the notice, shall answer for the amount of his debt or the
value of the property. Any disposal or attempted disposal of the
property, to the injury of the United States, is unlawful. When the
person indebted to, or having possession of the property of a defendant,
is known to the United States attorney or marshal, the officer shall
cause a personal notice of the attachment to be served upon him, but the
lack of the notice does not invalidate the attachment.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 707.)
Section was derived from R.S. 930, which was originally classified
to section 743 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 930 was reclassified
to section 843 of Title 39. R.S. 930 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2716 of this title.
28 USC 2717. Discharge
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The court, or a judge thereof, upon --
(1) application of the party when property has been attached and
(2) execution to the United States of a penal bond, approved by a
judge, in double the value of the property attached and conditioned upon
the return of the property or the payment of any judgment rendered by
the court
may discharge the warrant of attachment as to the property of the
applicant.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 708.)
Section was derived from R.S. 931, which was originally classified
to section 744 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 931 was reclassified
to section 844 of Title 39. R.S. 931 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2717 of this title.
28 USC 2718. Interest on balances due department
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
In suits for balances due the Post Office Department may recover
interest at the rate of 6 per centum per year from the time of default.
(Added Pub. L. 86-682, 9, Sept. 2, 1960, 74 Stat. 708.)
Section was derived from R.S. 964, which was originally classified
to section 788 of former Title 28. Following the general revision and
enactment of Title 28 by act June 25, 1948, R.S. 964 was reclassified
to section 846 of Title 39. R.S. 964 was repealed by section 12(c) of
Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and
reenacted by section 9 thereof as section 2718 of this title.
References to Post Office Department, Postal Service, Postal Field
Service, Field Postal Service, or Departmental Service or Departmental
Headquarters of Post Office Department to be considered references to
United States Postal Service pursuant to Pub. L. 91-375, 6(o), Aug.
12, 1970, 84 Stat. 783, set out as a Cross References note preceding
section 101 of Title 39, Postal Service.
28 USC CHAPTER 175 -- CIVIL COMMITMENT AND REHABILITATION OF NARCOTIC
ADDICTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
2901. Definitions.
2902. Discretionary authority of court; examination, report, and
determination by court; termination of civil commitment.
2903. Authority and responsibilities of the Surgeon General;
institutional custody; aftercare; maximum period of civil commitment;
credit toward sentence.
2904. Civil commitment not a conviction; use of test results.
2905. Delegation of functions by Surgeon General; use of Federal,
State, and private facilities.
2906. Absence of offer by the court to a defendant of an election
under section 2902(a) or any determination as to civil commitment, not
reviewable on appeal or otherwise.
28 USC 2901. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As used in this chapter --
(a) ''Addict'' means any individual who habitually uses any narcotic
drug as defined by section 102(16) /1/ of the Controlled Substances Act
so as to endanger the public morals, health, safety, or welfare, or who
is so far addicted to the use of such narcotic drugs as to have lost the
power of self-control with reference to his addiction.
(b) ''Surgeon General'' means the Surgeon General of the Public
Health Service.
(c) ''Crime of violence'' includes voluntary manslaughter, murder,
rape, mayhem, kidnaping, robbery, burglary or housebreaking in the
nighttime, extortion accompanied by threats of violence, assault with a
dangerous weapon or assault with intent to commit any offense punishable
by imprisonment for more than one year, arson punishable as a felony, or
an attempt or conspiracy to commit any of the foregoing offenses.
(d) ''Treatment'' includes confinement and treatment in an
institution and under supervised aftercare in the community and
includes, but not limited to, medical, educational, social,
psychological, and vocational services, corrective and preventive
guidance and training, and other rehabilitative services designed to
protect the public and benefit the addict by eliminating his dependence
on addicting drugs, or by controlling his dependence, and his
susceptibility to addiction.
(e) ''Felony'' includes any offense in violation of a law of the
United States classified as a felony under section 3581 of title 18 of
the United States Code, and further includes any offense in violation of
a law of any State, any possession or territory of the United States,
the District of Columbia, the Canal Zone, or the Commonwealth of Puerto
Rico, which at the time of the offense was classified as a felony by the
law of the place where that offense was committed.
(f) ''Conviction'' and ''convicted'' mean the final judgment on a
verdict or finding of guilty, a plea of guilty, or a plea of nolo
contendere, but do not include a final judgment which has been expunged
by pardon, reversed, set aside or otherwise rendered nugatory.
(g) ''Eligible individual'' means any individual who is charged with
an offense against the United States, but does not include --
(1) an individual charged with a crime of violence.
(2) an individual charged with unlawfully importing, selling, or
conspiring to import or sell, a narcotic drug.
(3) an individual against whom there is pending a prior charge of a
felony which has not been finally determined or who is on probation or
whose sentence following conviction on such a charge, including any time
on parole, supervised release, or mandatory release, has not been fully
served: Provided, That an individual on probation, parole, supervised
release, or mandatory release shall be included if the authority
authorized to require his return to custody consents to his commitment.
(4) an individual who has been convicted of a felony on two or more
occasions.
(5) an individual who has been civilly committed under this Act,
under the District of Columbia Code, or any State proceeding because of
narcotic addiction on three or more occasions.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1438;
amended Pub. L. 91-513, title III, 1102(l), Oct. 27, 1970, 84 Stat.
1293; Pub. L. 92-420, 2, Sept. 16, 1972, 86 Stat. 677; Pub. L.
98-473, title II, 228(c), Oct. 12, 1984, 98 Stat. 2030.)
Section 102(16) of the Controlled Substances Act, referred to in
subsec. (a), was redesignated section 102(17) of the Controlled
Substances Act by Pub. L. 98-473, title II, 507(a), Oct. 12, 1984, 98
Stat. 2071, and is classified to section 802(17) of Title 21, Food and
Drugs.
For definition of Canal Zone, referred to in subsec. (e), see
section 3602(b) of Title 22, Foreign Relations and Intercourse.
This Act, referred to in subsec. (g)(5), probably means Pub. L.
89-793, which enacted this chapter, section 4251 et seq. of Title 18,
Crimes and Criminal Procedure, sections 3402 and 3411 et seq. of Title
42, The Public Health and Welfare, amended section 7237 of Title 26,
Internal Revenue Code, and section 257 of Title 42, and enacted
provisions set out as notes under sections 4202 of Title 18 and 3401 of
Title 42. For complete classification of this Act to the Code, see
Short Title note set out under section 3401 of Title 42 and Tables.
1984 -- Subsec. (e). Pub. L. 98-473, 228(c)(1), substituted
''section 3581'' for ''section 1''.
Subsec. (g)(3). Pub. L. 98-473, 228(c)(2), inserted references to
supervised release.
1972 -- Subsec. (d). Pub. L. 92-420 substituted ''by eliminating his
dependence on addicting drugs, or by controlling his dependence,'' for
''by correcting his antisocial tendencies and ending his dependence on
addicting drugs''.
1970 -- Subsec. (a). Pub. L. 91-513 substituted ''as defined by
section 102(16) of the Controlled Substances Act'' for ''as defined by
section 4731 of the Internal Revenue Code of 1954, as amended,''.
Section 235(a)(1)(B)(ii)(IV) of Pub. L. 98-473 provided that the
amendment made by Pub. L. 98-473 is effective Oct. 12, 1984.
Section 5 of Pub. L. 92-420 provided that: ''This Act (amending
this section, section 4251 of Title 18, Crimes and Criminal Procedure,
and section 3411 of Title 42, The Public Health and Welfare, and
enacting provisions set out as a note under this section) shall take
effect immediately upon enactment (Sept. 16, 1972). Sections 2 and 3
(amending section 4251 of Title 18 and section 3411 of Title 42,
respectively) shall apply to any case pending in a district court of the
United States in which an appearance has not been made prior to the
effective date (Sept. 16, 1972).''
Amendment by Pub. L. 91-513 effective on first day of seventh
calendar month that begins after Oct. 26, 1970, see section 1105(a) of
Pub. L. 91-513, set out as an Effective Date note under section 951 of
Title 21, Food and Drugs.
Chapter effective three months after Nov. 8, 1966, and applicable to
any case pending in a district court of the United States in which an
appearance has not been made prior to such effective date, see section
605 of Pub. L. 89-793, title VI, Nov. 8, 1966, 80 Stat. 1450, set out
as a note under section 3401 of Title 42, The Public Health and Welfare.
Prosecutions for any violation of law occurring, and civil seizures
or forfeitures and injunctive proceedings commenced, prior to the
effective date of amendment of this section by section 1102 of Pub. L.
91-513 not to be affected or abated by reason thereof, see section 1103
of Pub. L. 91-513, set out as a note under section 171 of Title 21,
Food and Drugs.
/1/ See References in Text note below.
28 USC 2902. Discretionary authority of court; examination, report,
and determination by court; termination of civil commitment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) If the United States district court believes that an eligible
individual is an addict, the court may advise him at his first
appearance or thereafter at the sole discretion of the court that the
prosecution of the criminal charge will be held in abeyance if he elects
to submit to an immediate examination to determine whether he is an
addict and is likely to be rehabilitated through treatment. In offering
an individual an election, the court shall advise him that if he elects
to be examined, he will be confined during the examination for a period
not to exceed sixty days; that if he is determined to be an addict who
is likely to be rehabilitated, he will be civilly committed to the
Surgeon General for treatment; that he may not voluntarily withdraw
from the examination or any treatment which may follow; that the
treatment may last for thirty-six months; that during treatment, he
will be confined in an institution and, at the discretion of the Surgeon
General, he may be conditionally released for supervised aftercare
treatment in the community; and that if he successfully completes
treatment the charge will be dismissed, but if he does not, prosecution
on the charge will be resumed. An individual upon being advised that he
may elect to submit to an examination shall be permitted a maximum of
five days within which to make his election. Except on a showing that a
timely election could not have been made, an individual shall be barred
from an election after the prescribed period. An individual who elects
civil commitment shall be placed in the custody of the Attorney General
or the Surgeon General, as the court directs, for an examination by the
Surgeon General during a period not to exceed thirty days. This period
may, upon notice to the court and the appropriate United States
attorney, be extended by the Surgeon General for an additional thirty
days.
(b) The Surgeon General shall report to the court the results of the
examination and recommend whether the individual should be civilly
committed. A copy of the report shall be made available to the
individual and the United States attorney. If the court, acting on the
report and other information coming to its attention, determines that
the individual is not an addict or is an addict not likely to be
rehabilitated through treatment, the individual shall be held to answer
the abeyant charge. If the court determines that the individual is an
addict and is likely to be rehabilitated through treatment, the court
shall commit him to the custody of the Surgeon General for treatment,
except that no individual shall be committed under this chapter if the
Surgeon General certifies that adequate facilities or personnel for
treatment are unavailable.
(c) Whenever an individual is committed to the custody of the Surgeon
General for treatment under this chapter the criminal charge against him
shall be continued without final disposition and shall be dismissed if
the Surgeon General certifies to the court that the individual has
successfully completed the treatment program. On receipt of such
certification, the court shall discharge the individual from custody and
dismiss the charge against him. If prior to such certification the
Surgeon General determines that the individual cannot be further treated
as a medical problem, he shall advise the court. The court shall
thereupon terminate the commitment, and the pending criminal proceeding
shall be resumed.
(d) An individual committed for examination or treatment shall not be
released on bail or on his own recognizance.
(e) Whoever escapes or attempts to escape while committed to
institutional custody for examination or treatment, or whoever rescues
or attempts to rescue or instigates, aids, or assists the escape or
attempt to escape of such a person, shall be subject to the penalties
provided in sections 751 and 752 of title 18, United States Code.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1439.)
28 USC 2903. Authority and responsibilities of the Surgeon General;
institutional custody; aftercare; maximum period of civil commitment;
credit toward sentence
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) An individual who is committed to the custody of the Surgeon
General for treatment under this chapter shall not be conditionally
released from institutional custody until the Surgeon General determines
that he has made sufficient progress to warrant release to a supervisory
aftercare authority. If the Surgeon General is unable to make such a
determination at the expiration of twenty-four months after the
commencement of institutional custody, he shall advise the court and the
appropriate United States attorney whether treatment should be
continued. The court may affirm the commitment or terminate it and
resume the pending criminal proceeding.
(b) An individual who is conditionally released from institutional
custody shall, while on release, remain in the legal custody of the
Surgeon General and shall report for such supervised aftercare treatment
as the Surgeon General directs. He shall be subject to home visits and
to such physical examination and reasonable regulation of his conduct as
the supervisory aftercare authority establishes, subject to the approval
of the Surgeon General. The Surgeon General may, at any time, order a
conditionally released individual to return for institutional treatment.
The Surgeon General's order shall be a sufficient warrant for the
supervisory aftercare authority, a probation officer, or any Federal
officer authorized to serve criminal process within the United States to
apprehend and return the individual to institutional custody as
directed. If it is determined that an individual has returned to the
use of narcotics, the Surgeon General shall inform the court of the
conditions under which the return occurred and make a recommendation as
to whether treatment should be continued. The court may affirm the
commitment or terminate it and resume the pending criminal proceeding.
(c) The total period of treatment for any individual committed to the
custody of the Surgeon General shall not exceed thirty-six months. If,
at the expiration of such maximum period, the Surgeon General is unable
to certify that the individual has successfully completed his treatment
program the pending criminal proceeding shall be resumed.
(d) Whenever a pending criminal proceeding against an individual is
resumed under this chapter, he shall receive full credit toward the
service of any sentence which may be imposed for any time spent in the
institutional custody of the Surgeon General or the Attorney General or
any other time spent in institutional custody in connection with the
matter for which sentence is imposed.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1440.)
28 USC 2904. Civil commitment not a conviction; use of test results
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The determination of narcotic addiction and the subsequent civil
commitment under this chapter shall not be deemed a criminal conviction.
The results of any tests or procedures conducted by the Surgeon General
or the supervisory aftercare authority to determine narcotic addiction
may only be used in a further proceeding under this chapter. They shall
not be used against the examined individual in any criminal proceeding
except that the fact that he is a narcotic addict may be elicited on his
cross-examination as bearing on his credibility as a witness.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1441.)
28 USC 2905. Delegation of functions by Surgeon General; use of
Federal, State, and private facilities
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) The Surgeon General may from time to time make such provision as
he deems appropriate authorizing the performance of any of his functions
under this chapter by any other officer or employee of the Public Health
Service, or with the consent of the head of the Department or Agency
concerned, by any Federal or other public or private agency or officer
or employee thereof.
(b) The Surgeon General is authorized to enter into arrangements with
any public or private agency or any person under which appropriate
facilities or services of such agency or person, will be made available,
on a reimbursable basis or otherwise, for the examination or treatment
of individuals who elect civil commitment under this chapter.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1441.)
28 USC 2906. Absence of offer by the court to a defendant of an
election under section 2902(a) or any determination as to civil
commitment, not reviewable on appeal or otherwise
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The failure of a court to offer a defendant an election under section
2902(a) of this chapter, or a determination relative to civil commitment
under this chapter shall not be reviewable on appeal or otherwise.
(Added Pub. L. 89-793, title I, 101, Nov. 8, 1966, 80 Stat. 1441.)
28 USC CHAPTER 176 -- FEDERAL DEBT COLLECTION PROCEDURE
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Subchapter Sec. /1/
A.
Definitions and general provisions 3001
B.
Prejudgment remedies 3101
C.
Postjudgments /2/ remedies 3201
D.
Fraudulent transfers /2/ 3301
/1/ Editorially supplied.
/2/ So in original. Does not conform to subchapter heading.
28 USC SUBCHAPTER A -- DEFINITIONS AND GENERAL PROVISIONS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
3001. Applicability of chapter.
3002. Definitions.
3003. Rules of construction.
3004. Service of process; enforcement; notice.
3005. Application of chapter to judgments.
3006. Affidavit requirements.
3007. Perishable personal property.
3008. Proceedings before United States magistrates.
3009. United States marshals' authority to designate keeper.
3010. Co-owned property.
3011. Assessment of surcharge on a debt.
3012. Joinder of additional defendant.
3013. Modification or protective order; supervision of enforcement.
3014. Exempt property.
3015. Discovery as to debtor's financial condition.
28 USC 3001. Applicability of chapter
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- Except as provided in subsection (b), the /1/
chapter provides the exclusive civil procedures for the United States
--
(1) to recover a judgment on a debt; or
(2) to obtain, before judgment on a claim for a debt, a remedy in
connection with such claim.
(b) Limitation. -- To the extent that another Federal law specifies
procedures for recovering on a claim or a judgment for a debt arising
under such law, those procedures shall apply to such claim or judgment
to the extent those procedures are inconsistent with this chapter.
(c) Amounts Owing Other Than Debts. -- This chapter shall not apply
with respect to an amount owing that is not a debt or to a claim for an
amount owing that is not a debt.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4933.)
Section 3631 of title XXXVI of Pub. L. 101-647 provided that:
''(a) Except as provided in subsection (b), this Act (probably should
be ''title'', meaning title XXXVI of Pub. L. 101-647, which enacted this
chapter and section 2044 of this title, amended sections 550, 1962,
1963, and 2410 of this title, section 523 of Title 11, Bankruptcy, and
sections 3142 and 3552 of Title 18, Crimes and Criminal Procedure, and
enacted provisions set out as a note under section 1 of this title) and
the amendments made by this Act (title) shall take effect 180 days after
the date of the enactment of this Act (Nov. 29, 1990).
''(b)(1) The amendments made by title I of this Act (probably should
be ''subtitle A of this title'', meaning subtitle A ( 3611, 3302
(3612)) of title XXXVI of Pub. L. 101-647, which enacted this chapter)
shall apply with respect to actions pending on the effective date of
this Act (probably should be title XXXVI of Pub. L. 101-647) in any
court on --
''(A) a claim for a debt; or
''(B) a judgment for a debt.
''(2) All notices, writs, orders, and judgments in effect in such
actions shall continue in effect until superseded or modified in an
action under chapter 176 of title 28 of the United States Code, as added
by title I of this Act (subtitle A of this title).
''(3) For purposes of this subsection --
''(A) the term 'court' means a Federal, State, or local court, and
''(B) the term 'debt' has the meaning given such term in section and
(sic) 3002(3) of such chapter.''
/1/ So in original. Probably should be ''this''.
28 USC 3002. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As used in this chapter:
(1) ''Counsel for the United States'' means --
(A) a United States attorney, an assistant United States attorney
designated to act on behalf of the United States attorney, or an
attorney with the United States Department of Justice or with a Federal
agency who has litigation authority; and
(B) any private attorney authorized by contract made in accordance
with section 3718 of title 31 to conduct litigation for collection of
debts on behalf of the United States.
(2) ''Court'' means any court created by the Congress of the United
States, excluding the United States Tax Court.
(3) ''Debt'' means --
(A) an amount that is owing to the United States on account of a
direct loan, or loan insured or guaranteed, by the United States; or
(B) an amount that is owing to the United States on account of a fee,
duty, lease, rent, service, sale of real or personal property,
overpayment, fine, assessment, penalty, restitution, damages, interest,
tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by
the United States, or other source of indebtedness to the United States,
but that is not owing under the terms of a contract originally entered
into by only persons other than the United States;
and includes any amount owing to the United States for the benefit of
an Indian tribe or individual Indian, but excludes any amount to which
the United States is entitled under section 3011(a).
(4) ''Debtor'' means a person who is liable for a debt or against
whom there is a claim for a debt.
(5) ''Disposable earnings'' means that part of earnings remaining
after all deductions required by law have been withheld.
(6) ''Earnings'' means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonus, or
otherwise, and includes periodic payments pursuant to a pension or
retirement program.
(7) ''Garnishee'' means a person (other than the debtor) who has, or
is reasonably thought to have, possession, custody, or control of any
property in which the debtor has a substantial nonexempt interest,
including any obligation due the debtor or to become due the debtor, and
against whom a garnishment under section 3104 or 3205 is issued by a
court.
(8) ''Judgment'' means a judgment, order, or decree entered in favor
of the United States in a court and arising from a civil or criminal
proceeding regarding a debt.
(9) ''Nonexempt disposable earnings'' means 25 percent of disposable
earnings, subject to section 303 of the Consumer Credit Protection Act.
(10) ''Person'' includes a natural person (including an individual
Indian), a corporation, a partnership, an unincorporated association, a
trust, or an estate, or any other public or private entity, including a
State or local government or an Indian tribe.
(11) ''Prejudgment remedy'' means the remedy of attachment,
receivership, garnishment, or sequestration authorized by this chapter
to be granted before judgment on the merits of a claim for a debt.
(12) ''Property'' includes any present or future interest, whether
legal or equitable, in real, personal (including choses in action), or
mixed property, tangible or intangible, vested or contingent, wherever
located and however held (including community property and property held
in trust (including spendthrift and pension trusts)), but excludes --
(A) property held in trust by the United States for the benefit of an
Indian tribe or individual Indian; and
(B) Indian lands subject to restrictions against alienation imposed
by the United States.
(13) ''Security agreement'' means an agreement that creates or
provides for a lien.
(14) ''State'' means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Marianas, or any territory or possession of the United States.
(15) ''United States'' means --
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of the
United States; or
(C) an instrumentality of the United States.
(16) ''United States marshal'' means a United States marshal, a
deputy marshal, or an official of the United States Marshals Service
designated under section 564.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4933.)
Section 303 of the Consumer Credit Protection Act, referred to in
par. (9), is classified to section 1673 of Title 15, Commerce and
Trade.
28 USC 3003. Rules of construction
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Terms. -- For purposes of this chapter --
(1) the terms ''includes'' and ''including'' are not limiting;
(2) the term ''or'' is not exclusive; and
(3) the singular includes the plural.
(b) Effect on Rights of the United States. -- This chapter shall not
be construed to curtail or limit the right of the United States under
any other Federal law or any State law --
(1) to collect taxes or to collect any other amount collectible in
the same manner as a tax;
(2) to collect any fine, penalty, assessment, restitution, or
forfeiture arising in a criminal case;
(3) to appoint or seek the appointment of a receiver; or
(4) to enforce a security agreement.
(c) Effect on Other Laws. -- This chapter shall not be construed to
supersede or modify the operation of --
(1) title 11;
(2) admiralty law;
(3) section 3713 of title 31;
(4) section 303 of the Consumer Credit Protection Act (15 U.S.C.
1673);
(5) a statute of limitation applicable to a criminal proceeding;
(6) the common law or statutory rights to set-off or recoupment;
(7) any Federal law authorizing, or any inherent authority of a court
to provide, injunctive relief;
(8) the authority of a court --
(A) to impose a sanction under the Federal Rules of Civil Procedure;
(B) to appoint a receiver to effectuate its order; or
(C) to exercise the power of contempt under any Federal law;
(9) any law authorizing the United States to obtain partition, or to
recover possession, of property in which the United States holds title;
or
(10) any provision of any other chapter of this title, except to the
extent such provision is inconsistent with this chapter.
(d) Preemption. -- This chapter shall preempt State law to the extent
such law is inconsistent with a provision of this chapter.
(e) Effect on Rights of the United States Under Foreign and
International Law. -- This chapter shall not be construed to curtail or
limit the rights of the United States under foreign law, under a treaty
or an international agreement, or otherwise under international law.
(f) Applicability of Federal Rules of Civil Procedure. -- Except as
provided otherwise in this chapter, the Federal Rules of Civil Procedure
shall apply with respect to actions and proceedings under this chapter.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4935.)
The Federal Rules of Civil Procedure, referred to in subsecs.
(c)(8)(A) and (f), are set out in the Appendix to this title.
28 USC 3004. Service of process; enforcement; notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Manner of Service. -- A complaint, notice, writ, or other process
required to be served in an action or proceeding under this chapter
shall be served in accordance with the Federal Rules of Civil Procedure
unless otherwise provided in this chapter.
(b) Nationwide Enforcement. -- (1) Except as provided in paragraph
(2) --
(A) any writ, order, judgment, or other process, including a summons
and complaint, filed under this chapter may be served in any State; and
(B) such writ, order, or judgment may be enforced by the court
issuing the writ, order, or process, regardless of where the person is
served with the writ, order, or process.
(2) If the debtor so requests, within 20 days after receiving the
notice described in section 3101(d) or 3202(b), the action or proceeding
in which the writ, order, or judgment was issued shall be transferred to
the district court for the district in which the debtor resides.
(c) Notice and Other Process. -- At such time as counsel for the
United States considers appropriate, but not later than the time a
prejudgment or postjudgment remedy is put into effect under this
chapter, counsel for the United States shall exercise reasonable
diligence to serve on the debtor and any person who the United States
believes, after exercising due diligence, has possession, custody, or
control of the property, a copy of the application for such remedy, the
order granting such remedy, and the notice required by section 3101(d)
or 3202(b).
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4936.)
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
28 USC 3005. Application of chapter to judgments
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
This chapter shall not apply with respect to a judgment on a debt if
such judgment is entered more than 10 years before the effective date of
this chapter.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4936.)
For effective date of this chapter, referred to in text, see section
3631 of Pub. L. 101-647, set out as an Effective Date note under
section 3001 of this title.
28 USC 3006. Affidavit requirements
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Any affidavit required of the United States by this chapter may be
made on information and belief, if reliable and reasonably necessary,
establishing with particularity, to the court's satisfaction, facts
supporting the claim of the United States.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4936.)
28 USC 3007. Perishable personal property
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Authority To Sell. -- If at any time during any action or
proceeding under this chapter the court determines on its own initiative
or upon motion of any party, that any seized or detained personal
property is likely to perish, waste, or be destroyed, or otherwise
substantially depreciate in value during the pendency of the proceeding,
the court shall order a commercially reasonable sale of such property.
(b) Deposit of Sale Proceeds. -- Within 5 days after such sale, the
proceeds shall be deposited with the clerk of the court, accompanied by
a statement in writing and signed by the United States marshal, to be
filed in the action or proceeding, stating the time and place of sale,
the name of the purchaser, the amount received, and an itemized account
of expenses.
(c) Presumption. -- For purposes of liability on the part of the
United States, there shall be a presumption that the price paid at a
sale under subsection (a) is the fair market value of the property or
portion.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4937.)
28 USC 3008. Proceedings before United States magistrates
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A district court of the United States may assign its duties in
proceedings under this chapter to a United States magistrate to the
extent not inconsistent with the Constitution and laws of the United
States.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4937.)
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC 3009. United States marshals' authority to designate keeper
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Whenever a United States marshal is authorized to seize property
pursuant to this chapter, the United States marshal may designate
another person or Federal agency to hold for safekeeping such property
seized.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4937.)
28 USC 3010. Co-owned property
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Limitation. -- The remedies available to the United States under
this chapter may be enforced against property which is co-owned by a
debtor and any other person only to the extent allowed by the law of the
State where the property is located. This section shall not be
construed to limit any right or interest of a debtor or co-owner in a
retirement system for Federal military or civilian personnel established
by the United States or any agency thereof or in a qualified retirement
arrangement.
(b) Definitions. -- For purposes of subsection (a) --
(1) the term ''retirement system for Federal military or civilian
personnel'' means a pension or annuity system for Federal military or
civilian personnel of more than one agency, or for some or all of such
personnel of a single agency, established by statute or by regulation
pursuant to statutory authority; and
(2) the term ''qualified retirement arrangement'' means a plan
qualified under section 401(a), 403(a), or 409 of the Internal Revenue
Code of 1986 or a plan that is subject to the requirements of section
205 of the Employee Retirement Income Security Act of 1974.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4937.)
Sections 401(a), 403(a), and 409 of the Internal Revenue Code of
1986, referred to in subsec. (b)(2), are classified to sections 401(a),
403(a), and 409, respectively, of Title 26, Internal Revenue Code.
Section 205 of the Employee Retirement Income Security Act of 1974,
referred to in subsec. (b)(2), is classified to section 1055 of Title
29, Labor.
28 USC 3011. Assessment of surcharge on a debt
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Surcharge Authorized. -- In an action or proceeding under
subchapter B or C, and subject to subsection (b), the United States is
entitled to recover a surcharge of 10 percent of the amount of the debt
in connection with the recovery of the debt, to cover the cost of
processing and handling the litigation and enforcement under this
chapter of the claim for such debt.
(b) Limitation. -- Subsection (a) shall not apply if --
(1) the United States receives an attorney's fee in connection with
the enforcement of the claim; or
(2) the law pursuant to which the action on the claim is based
provides any other amount to cover such costs.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4937.)
28 USC 3012. Joinder of additional defendant
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The United States or the debtor may join as an additional defendant
in an action or proceeding under this chapter any person reasonably
believed to owe money (including money owed on account of a requirement
to provide goods or services pursuant to a loan or loan guarantee
extended under Federal law) to the debtor arising out of the transaction
or occurrence giving rise to a debt.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4938.)
28 USC 3013. Modification or protective order; supervision of
enforcement
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
The court may at any time on its own initiative or the motion of any
interested person, and after such notice as it may require, make an
order denying, limiting, conditioning, regulating, extending, or
modifying the use of any enforcement procedure under this chapter.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4938.)
28 USC 3014. Exempt property
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Election To Exempt Property. -- An individual debtor may, in an
action or proceeding under this chapter, elect to exempt property listed
in either paragraph (1) or, in the alternative, paragraph (2). If such
action or proceeding is against debtors who are husband and wife, one
debtor may not elect to exempt property listed in paragraph (1) and the
other debtor elect to exempt property listed in paragraph (2). If the
debtors cannot agree on the alternative to be elected, they shall be
deemed to elect paragraph (1). Such property is either --
(1) property that is specified in section 522(d) of title 11, as
amended from time to time; or
(2)(A) any property that is exempt under Federal law, other than
paragraph (1), or State or local law that is applicable on the date of
the filing of the application for a remedy under this chapter at the
place in which the debtor's domicile has been located for the 180 days
immediately preceding the date of the filing of such application, or for
a longer portion of such 180-day period than in any other place; and
(B) any interest in property in which the debtor had, immediately
before the filing of such application, an interest as a tenant by the
entirety or joint tenant, or an interest in a community estate, to the
extent that such interest is exempt from process under applicable
nonbankruptcy law.
(b) Effect on Assertion and Manner of Determination. --
(1) Statement. -- A court may order the debtor to file a statement
with regard to any claimed exemption. A copy of such statement shall be
served on counsel for the United States. Such statement shall be under
oath and shall describe each item of property for which exemption is
claimed, the value and the basis for such valuation, and the nature of
the debtor's ownership interest.
(2) Hearing. -- The United States or the debtor, by application to
the court in which an action or proceeding under this chapter is
pending, may request a hearing on the applicability of any exemption
claimed by the debtor. The court shall determine the extent (if any) to
which the exemption applies. Unless it is reasonably evident that the
exemption applies, the debtor shall bear the burden of persuasion.
(3) Stay of Disposition. -- Assertion of an exemption shall prevent
the United States from selling or otherwise disposing of the property
for which such exemption is claimed until the court determines whether
the debtor has a substantial nonexempt interest in such property. The
United States may not take possession of, dispose of, sell, or otherwise
interfere with the debtor's normal use and enjoyment of an interest in
property the United States knows or has reason to know is exempt.
(c) Debtors in Joint Cases. -- Subject to the limitation in
subsection (a), this section shall apply separately with respect to each
debtor in a joint case.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4938.)
28 USC 3015. Discovery as to debtor's financial condition
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- Except as provided in subsection (b), in an action
or proceeding under subchapter B or C, the United States may have
discovery regarding the financial condition of the debtor in the manner
in which discovery is authorized by the Federal Rules of Civil Procedure
in an action on a claim for a debt.
(b) Limitation. -- Subsection (a) shall not apply with respect to an
action or proceeding under subchapter B unless there is a reasonable
likelihood that the debt involved exceeds $50,000.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4939.)
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
28 USC SUBCHAPTER B -- PREJUDGMENT REMEDIES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
3101. Prejudgment remedies.
3102. Attachment.
3103. Receivership.
3104. Garnishment.
3105. Sequestration.
28 USC 3101. Prejudgment remedies
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Application. -- (1) The United States may, in a proceeding in
conjunction with the complaint or at any time after the filing of a
civil action on a claim for a debt, make application under oath to a
court to issue any prejudgment remedy.
(2) Such application shall be filed with the court and shall set
forth the factual and legal basis for each prejudgment remedy sought.
(3) Such application shall --
(A) state that the debtor against whom the prejudgment remedy is
sought shall be afforded an opportunity for a hearing; and
(B) set forth with particularity that all statutory requirements
under this chapter for the issuance of the prejudgment remedy sought
have been satisfied.
(b) Grounds. -- Subject to section 3102, 3103, 3104, or 3105, a
prejudgment remedy may be granted by any court if the United States
shows reasonable cause to believe that --
(1) the debtor --
(A) is about to leave the jurisdiction of the United States with the
effect of hindering, delaying, or defrauding the United States in its
effort to recover a debt;
(B) has or is about to assign, dispose, remove, conceal, ill treat,
waste, or destroy property with the effect of hindering, delaying, or
defrauding the United States;
(C) has or is about to convert the debtor's property into money,
securities, or evidence of debt in a manner prejudicial to the United
States with the effect of hindering, delaying, or defrauding the United
States; or
(D) has evaded service of process by concealing himself or has
temporarily withdrawn from the jurisdiction of the United States with
the effect of hindering, delaying, or defrauding the United States; or
(2) a prejudgment remedy is required to obtain jurisdiction within
the United States and the prejudgment remedy sought will result in
obtaining such jurisdiction.
(c) Affidavit. -- (1) The application under subsection (a) shall
include an affidavit establishing with particularity to the court's
satisfaction facts supporting the probable validity of the claim for a
debt and the right of the United States to recover what is demanded in
the application.
(2) The affidavit shall state --
(A) specifically the amount of the debt claimed by the United States
and any interest or costs attributable to such debt;
(B) one or more of the grounds specified in subsection (b); and
(C) the requirements of section 3102(b), 3103(a), 3104(a), or
3105(b), as the case may be.
(3) No bond is required of the United States.
(d) Notice and Hearing. -- (1) On filing an application by the United
States as provided in this section, the counsel for the United States
shall prepare, and the clerk shall issue, a notice for service on the
debtor against whom the prejudgment remedy is sought and on any other
person whom the United States reasonably believes, after exercising due
diligence, has possession, custody, or control of property affected by
such remedy. Three copies of the notice shall be served on each such
person. The form and content of such notice shall be approved jointly
by a majority of the chief judges of the Federal districts in the State
in which the court is located and shall be in substantially the
following form:
28 USC ''notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
''You are hereby notified that this (property) is being taken by the
United States Government ('the Government'), which says that (name of
debtor) owes it a debt of $ (amount) for (reason for debt) and has filed
a lawsuit to collect this debt. The Government says it must take this
property at this time because (recite the pertinent ground or grounds
from section 3101(b)). The Government wants to make sure (name of
debtor) will pay if the court determines that this money is owed.
''In addition, you are hereby notified that there are exemptions
under the law which may protect some of this property from being taken
by the Government if (name of debtor) can show that the exemptions
apply. Below is a summary of the major exemptions which apply in most
situations in the State of (State where property is located):
''(A statement summarizing in plain and understandable English the
election available with respect to such State under section 3014 and the
types of property that may be exempted under each of the alternatives
specified in paragraphs (1) and (2) of section 3014(a), and a statement
that different property may be so exempted with respect to the State in
which the debtor resides.)
''If you are (name of debtor) and you disagree with the reason the
Government gives for taking your property now, or if you think you do
not owe the money to the Government that it says you do, or if you think
the property the Government is taking qualifies under one of the above
exemptions, you have a right to ask the court to return your property to
you.
''If you want a hearing, you must promptly notify the court. You
must make your request in writing, and either mail it or deliver it in
person to the clerk of the court at (address). If you wish, you may use
this notice to request the hearing by checking the box below and mailing
this notice to the court clerk. You must also send a copy of your
request to the Government at (address), so the Government will know you
want a hearing. The hearing will take place within 5 days after the
clerk receives your request, if you ask for it to take place that
quickly, or as soon after that as possible.
''At the hearing you may explain to the judge why you think you do
not owe the money to the Government, why you disagree with the reason
the Government says it must take your property at this time, or why you
believe the property the Government has taken is exempt or belongs to
someone else. You may make any or all of these explanations as you see
fit.
''If you think you live outside the Federal judicial district in
which the court is located, you may request, not later than 20 days
after you receive this notice, that this proceeding to take your
property be transferred by the court to the Federal judicial district in
which you reside. You must make your request in writing, and either
mail it or deliver it in person to the clerk of the court at (address).
You must also send a copy of your request to the Government at
(address), so the Government will know you want the proceeding to be
transferred.
''Be sure to keep a copy of this notice for your own records. If you
have any questions about your rights or about this procedure, you should
contact a lawyer, an office of public legal assistance, or the clerk of
the court. The clerk is not permitted to give legal advice, but can
refer you to other sources of information.''
(2) By requesting, at any time before judgment on the claim for a
debt, the court to hold a hearing, the debtor may move to quash the
order granting such remedy. The court shall hold a hearing on such
motion as soon as practicable, or, if requested by the debtor, within 5
days after receiving the request for a hearing or as soon thereafter as
possible. The issues at such hearing shall be limited to --
(A) the probable validity of the claim for the debt for which such
remedy was granted and of any defense or claim of exemption asserted by
such person;
(B) compliance with any statutory requirement for the issuance of the
prejudgment remedy granted;
(C) the existence of any ground set forth in subsection (b); and
(D) the inadequacy of alternative remedies (if any) to protect the
interests of the United States.
(e) Issuance of Writ. -- On the court's determination that the
requirements of subsections (a), (b), and (c) have been met, the court
shall issue all process sufficient to put into effect the prejudgment
remedy sought.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4939.)
28 USC 3102. Attachment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Property Subject to Attachment. -- (1) Any property in the
possession, custody, or control of the debtor and in which the debtor
has a substantial nonexempt interest, except earnings, may be attached
pursuant to a writ of attachment in an action or proceeding against a
debtor on a claim for a debt and may be held as security to satisfy such
judgment, and interest and costs, as the United States may recover on
such claim.
(2) The value of property attached shall not exceed the amount by
which the sum of the amount of the debt claimed by the United States and
the amount of interest and costs reasonably likely to be assessed
against the debtor by the court exceeds the aggregate value of the
nonexempt interest of the debtor in any --
(A) property securing the debt; and
(B) property garnished or in receivership, or income sequestered,
under this subchapter.
(b) Availability of Attachment. -- If the requirements of section
3101 are satisfied, a court shall issue a writ authorizing the United
States to attach property in which the debtor has a substantial
nonexempt interest, as security for such judgment (and interest and
costs) as the United States may recover on a claim for a debt --
(1) in an action on a contract, express or implied, against the
debtor for payment of money, only if the United States shows reasonable
cause to believe that --
(A) the contract is not fully secured by real or personal property;
or
(B) the value of the original security is substantially diminished,
without any act of the United States or the person to whom the security
was given, below the amount of the debt;
(2) in an action against the debtor for damages in tort;
(3) if the debtor resides outside the jurisdiction of the United
States; or
(4) in an action to recover a fine, penalty, or tax.
(c) Issuance of Writ; Contents. -- (1) Subject to subsections (a)
and (b), a writ of attachment shall be issued by the court directing the
United States marshal of the district where property described in
subsection (a) is located to attach the property.
(2) Several writs of attachment may be issued at the same time, or in
succession, and sent to different judicial districts until sufficient
property is attached.
(3) The writ of attachment shall contain --
(A) the date of the issuance of the writ;
(B) the identity of the court, the docket number of the action, and
the identity of the cause of action;
(C) the name and last known address of the debtor;
(D) the amount to be secured by the attachment; and
(E) a reasonable description of the property to be attached.
(d) Levy of Attachment. -- (1) The United States marshal receiving
the writ shall proceed without delay to levy upon the property specified
for attachment if found within the district. The marshal may not sell
property unless ordered by the court.
(2) In performing the levy, the United States marshal may enter any
property owned, occupied, or controlled by the debtor, except that the
marshal may not enter a residence or other building unless the writ
expressly authorizes the marshal to do so or upon specific order of the
court.
(3) Levy on real property is made by entering the property and
posting the writ and notice of levy in a conspicuous place upon the
property.
(4) Levy on personal property is made by taking possession of it.
Levy on personal property not easily taken into possession or which
cannot be taken into possession without great inconvenience or expense
may be made by affixing a copy of the writ and notice of levy on it or
in a conspicuous place in the vicinity of it describing in the notice of
levy the property by quantity and with sufficient detail to identify the
property levied on.
(5) The United States marshal shall file a copy of the notice of levy
in the same manner as provided for judgments in section 3201(a)(1). The
United States marshal shall serve a copy of the writ and notice of levy
on --
(A) the debtor against whom the writ is issued; and
(B) the person who has possession of the property subject to the
writ;
in the same manner that a summons is served in a civil action and
make the return thereof.
(e) Return of Writ; Duties of Marshal; Further Return. -- (1) A
United States marshal executing a writ of attachment shall return the
writ with the marshal's action endorsed thereon or attached thereto and
signed by the marshal, to the court from which it was issued, within 5
days after the date of the levy.
(2) The return shall describe the property attached with sufficient
certainty to identify it and shall state the location where it was
attached, the date and time it was attached, and the disposition made of
the property. If no property was attached, the return shall so state.
(3) If the property levied on is claimed, replevied under subsection
(j)(2), or sold under section 3007 after the return, the United States
marshal shall immediately make a further return to the clerk of the
court showing the disposition of the property.
(4) If personal property is replevied, the United States marshal
shall deliver the replevin bond to the clerk of the court to be filed in
the action.
(f) Levy of Attachment as Lien on Property; Satisfaction of Lien.
-- (1) A levy on property under a writ of attachment under this section
creates a lien in favor of the United States on the property or, in the
case of perishable property sold under section 3007, on the proceeds of
the sale.
(2) Such lien shall be ranked ahead of any other security interests
perfected after the later of the time of levy and the time a copy of the
notice of levy is filed under subsection (d)(5).
(3) Such lien shall arise from the time of levy and shall continue
until a judgment in the action is obtained or denied, or the action is
otherwise dismissed. The death of the debtor whose property is attached
does not terminate the attachment lien. Upon issuance of a judgment in
the action and registration under this chapter, the judgment lien so
created relates back to the time of levy.
(g) Reduction or Dissolution of Attachment. -- (1) If an excessive or
unreasonable attachment is made, the debtor may submit a motion to the
court for a reduction of the amount of the attachment or its
dissolution. Notice of such motion shall be served on the United
States.
(2) The court shall order a part of the property to be released, if
after a hearing the court finds that the amount of the attachment is
excessive or unreasonable or if the attachment is for an amount larger
than the sum of the liquidated or ascertainable amount of the debt and
the amount of interest and costs likely to be taxed.
(3) The court shall dissolve the attachment if the amount of the debt
is unliquidated and unascertainable by calculation.
(4) If any property claimed to be exempt is levied on, the debtor
may, at any time after such levy, request that the court vacate such
levy. If it appears to the court that the property so levied upon is
exempt, the court shall order the levy vacated and the property returned
to the debtor.
(h) Replevin of Attached Property by Debtor; Bond. -- If attached
property is not sold before judgment, the debtor may replevy such
property or any part thereof by giving a bond approved by counsel for
the United States or the court and payable to the United States in
double the reasonable value of the property to be replevied or double
the value of the claim, whichever is less.
(i) Preservation of Personal Property Under Attachment. -- If
personal property in custody of the United States marshal under a writ
of attachment is not replevied, claimed, or sold, the court may make
such order for its preservation or use as appears to be in the interest
of the parties.
(j) Judgment and Disposition of Attached Property. --
(1) Judgment for the united states. -- On entry of judgment for the
United States, the court shall order the proceeds of personal property
sold pursuant to section 3007 to be applied to the satisfaction of the
judgment, and shall order the sale of any remaining personal property
and any real property levied on to the extent necessary to satisfy the
judgment.
(2) Judgment for the united states when personal property replevied.
-- With respect to personal property under attachment that is replevied,
the judgment which may be entered shall be against the debtor against
whom the writ of attachment is issued and also against the sureties on
the debtor's replevin bond for the value of the property.
(3) Restoration of property and exoneration of replevin bond. -- If
the attachment is vacated or if the judgment on the claim for the debt
is for the person against whom the writ attachment is issued, the court
shall order the property, or proceeds of perishable property sold under
section 3007, restored to the debtor and shall exonerate any replevin
bond.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4942.)
28 USC 3103. Receivership
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Appointment of a Receiver. -- If the requirements of section 3101
are satisfied, a court may appoint a receiver for property in which the
debtor has a substantial nonexempt interest if the United States shows
reasonable cause to believe that there is a substantial danger that the
property will be removed from the jurisdiction of the court, lost,
concealed, materially injured or damaged, or mismanaged.
(b) Powers of Receiver. -- (1) The appointing court may authorize a
receiver --
(A) to take possession of real and personal property and sue for,
collect, and sell obligations upon such conditions and for such purposes
as the court shall direct; and
(B) to administer, collect, improve, lease, repair or sell pursuant
to section 3007 such real and personal property as the court shall
direct.
A receiver appointed to manage residential or commercial property
shall have demonstrable expertise in the management of these types of
property.
(2) Unless expressly authorized by order of the court, a receiver
shall have no power to employ attorneys, accountants, appraisers,
auctioneers, or other professional persons.
(c) Duration of Receivership. -- A receivership shall not continue
past the entry of judgment, or the conclusion of an appeal of such
judgment, unless the court orders it continued under section 3203(e) or
unless the court otherwise directs its continuation.
(d) Accounts; Requirement to Report. -- A receiver shall keep
written accounts itemizing receipts and expenditures, describing the
property and naming the depository of receivership funds. The
receiver's accounts shall be open to inspection by any person having an
apparent interest in the property. The receiver shall file reports at
regular intervals as directed by the court and shall serve the debtor
and the United States with a copy thereof.
(e) Modification of Powers; Removal. -- On motion of the receiver or
on its own initiative, the court which appointed the receiver may remove
the receiver or modify the receiver's powers at any time.
(f) Priority. -- If more than one court appoints a receiver for
particular property, the receiver first qualifying under law shall be
entitled to take possession, control, or custody of the property.
(g) Compensation of Receivers. -- (1) A receiver is entitled to such
commissions, not exceeding 5 percent of the sums received and disbursed
by him, as the court allows unless the court otherwise directs.
(2) If, at the termination of a receivership, there are no funds in
the hands of a receiver, the court may fix the compensation of the
receiver in accordance with the services rendered and may direct the
party who moved for the appointment of the receiver to pay such
compensation in addition to the necessary expenditures incurred by the
receiver which remain unpaid.
(3) At the termination of a receivership, the receiver shall file a
final accounting of the receipts and disbursements and apply for
compensation setting forth the amount sought and the services rendered
by the receiver.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4944.)
28 USC 3104. Garnishment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- If the requirements of section 3101 are satisfied,
a court may issue a writ of garnishment against property (excluding
earnings) in which the debtor has a substantial nonexempt interest and
which is in the possession, custody, or control of a person other than
the debtor in order to satisfy a claim for a debt. Co-owned property
shall be subject to garnishment to the same extent as co-owned property
is subject to garnishment under the law of the State in which such
property is located. A court may issue simultaneous separate writs of
garnishment to several garnishees. A writ of garnishment issued under
this subsection shall be continuing and shall terminate only as provided
in section 3205(c)(10).
(b) Writ. -- (1) Subsections (b)(2) and (c) of section 3205 shall
apply with respect to garnishment under this section, except that for
purposes of this section --
(A) earnings of the debtor shall not be subject to garnishment; and
(B) a reference in such subsections to a judgment debtor shall be
deemed to be a reference to a debtor.
(2) The United States shall include in its application for a writ of
garnishment --
(A) the amount of the claim asserted by the United States for a debt;
and
(B) the date the writ is issued.
(c) Limitation. -- The value of property garnished shall not exceed
the amount by which the sum of the amount of the debt claimed by the
United States and the amount of interest and costs reasonably likely to
be assessed against the debtor by the court exceeds the aggregate value
of the nonexempt interest of the debtor in any --
(1) property securing the debt; and
(2) property attached or in receivership, or income sequestered,
under this subchapter.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4945.)
28 USC 3105. Sequestration
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Property Subject to Sequestration. -- (1) Any income from
property in which the debtor has a substantial nonexempt interest may be
sequestered pursuant to a writ of sequestration in an action or
proceeding against a debtor on a claim for a debt and may be held as
security to satisfy such judgment, and interest and costs, as the United
States may recover on such claim.
(2) The amount of income sequestered shall not exceed the amount by
which the sum of the amount of the debt claimed by the United States and
the amount of interest and costs reasonably likely to be assessed
against the debtor by the court exceeds the aggregate value of the
nonexempt interest of the debtor in any --
(A) property securing the debt; and
(B) property attached, garnished, or in receivership under this
subchapter.
(b) Availability of Sequestration. -- If the requirements of section
3101 are satisfied, a court shall issue a writ authorizing the United
States to sequester income from property in which the debtor has a
substantial nonexempt interest, as security for such judgment (and
interest and costs) as the United States may recover on a claim for a
debt --
(1) in an action on a contract, express or implied, against the
debtor for payment of money, only if the United States shows reasonable
cause to believe that --
(A) the contract is not fully secured by real or personal property;
or
(B) the value of the original security is substantially diminished,
without any act of the United States or the person to whom the security
was given, below the amount of the debt;
(2) in an action against the debtor for damages in tort;
(3) if the debtor resides outside the jurisdiction of the United
States; or
(4) in an action to recover a fine, penalty, or tax.
(c) Issuance of Writ; Contents. -- (1) Subject to subsections (a)
and (b), a writ of sequestration shall be issued by the court directing
the United States marshal of the district where income described in
subsection (a) is located to sequester the income.
(2) Several writs of sequestration may be issued at the same time, or
in succession, and sent to different judicial districts until sufficient
income is sequestered.
(3) The writ of sequestration shall contain --
(A) the date of the issuance of the writ;
(B) the identity of the court, the docket number of the action, and
the identity of the cause of action;
(C) the name and last known address of the debtor;
(D) the amount to be secured by the sequestration; and
(E) a reasonable description of the income to be sequestered.
(d) Execution of Writ. -- (1) The United States marshal receiving the
writ shall proceed without delay to execute the writ.
(2) The United States marshal shall file a copy of the notice of
sequestration in the same manner as provided for judgments in section
3201(a)(1). The United States marshal shall serve a copy of the writ
and notice of sequestration on --
(A) the debtor against whom the writ is issued; and
(B) the person who has possession of the income subject to the writ;
in the same manner that a summons is served in a civil action and
make the return thereof.
(e) Deposit of Sequestered Income. -- A person who has possession of
the income subject to a writ of sequestration shall deposit such income
with the clerk of the court, accompanied by a statement in writing
stating the person's name, the name of the debtor, the amount of such
income, the property from which such income is produced, and the period
during which such income is produced.
(f) Return of Writ; Duties of Marshal; Further Return. -- (1) A
United States marshal executing a writ of sequestration shall return the
writ with the marshal's action endorsed thereon or attached thereto and
signed by the marshal, to the court from which it was issued, within 5
days after the date of the execution.
(2) The return shall describe the income sequestered with sufficient
certainty to identify it and shall state the location where it was
sequestered, and the date and time it was sequestered. If no income was
sequestered, the return shall so state.
(3) If sequestered income is claimed after the return, the United
States marshal shall immediately make a further return to the clerk of
the court showing the disposition of the income.
(g) Reduction or Dissolution of Sequestration. -- (1) If an excessive
or unreasonable sequestration is made, the debtor may submit a motion to
the court for a reduction of the amount of the sequestration or its
dissolution. Notice of such motion shall be served on the United
States.
(2) The court shall order a part of the income to be released, if
after a hearing the court finds that the amount of the sequestration is
excessive or unreasonable or if the sequestration is for an amount
larger than the sum of the liquidated or ascertainable amount of the
debt and the amount of interest and costs likely to be taxed.
(3) The court shall dissolve the sequestration if the amount of the
debt is unliquidated and unascertainable by calculation.
(h) Preservation of Income Under Sequester. -- If personal property
in custody of the United States marshal under a writ of sequestration is
not claimed, the court may make such order for its preservation or use
as appears to be in the interest of the parties.
(i) Judgment and Disposition of Sequestered Income. --
(1) Judgment for the united states. -- On entry of judgment for the
United States, the court shall order the sequestered income to be
applied to the satisfaction of the judgment.
(2) Restoration of income. -- If the sequestration is vacated or if
the judgment on the claim for the debt is for the person against whom
the writ of sequestration is issued, the court shall order the income
restored to the debtor.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4946.)
28 USC SUBCHAPTER C -- POSTJUDGMENT REMEDIES
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
3201. Judgment liens.
3202. Enforcement of judgments.
3203. Execution.
3204. Installment payment order.
3205. Garnishment.
3206. Discharge.
28 USC 3201. Judgment liens
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Creation. -- A judgment in a civil action shall create a lien on
all real property of a judgment debtor on filing a certified copy of the
abstract of the judgment in the manner in which a notice of tax lien
would be filed under paragraphs (1) and (2) of section 6323(f) of the
Internal Revenue Code of 1986. A lien created under this paragraph is
for the amount necessary to satisfy the judgment, including costs and
interest.
(b) Priority of Lien. -- A lien created under subsection (a) shall
have priority over any other lien or encumbrance which is perfected
later in time.
(c) Duration of Lien; Renewal. -- (1) Except as provided in
paragraph (2), a lien created under subsection (a) is effective, unless
satisfied, for a period of 20 years.
(2) Such lien may be renewed for one additional period of 20 years
upon filing a notice of renewal in the same manner as the judgment is
filed and shall relate back to the date the judgment is filed if --
(A) the notice of renewal is filed before the expiration of the
20-year period to prevent the expiration of the lien; and
(B) the court approves the renewal of such lien under this paragraph.
(d) Release of Judgment Lien. -- A judgment lien shall be released on
the filing of a satisfaction of judgment or release of lien in the same
manner as the judgment is filed to obtain the lien.
(e) Effect of Lien on Eligibility for Federal Grants, Loans or
Programs. -- A debtor who has a judgment lien against the debtor's
property for a debt to the United States shall not be eligible to
receive any grant or loan which is made, insured, guaranteed, or
financed directly or indirectly by the United States or to receive funds
directly from the Federal Government in any program, except funds to
which the debtor is entitled as beneficiary, until the judgment is paid
in full or otherwise satisfied. The agency of the United States that is
responsible for such grants and loans may promulgate regulations to
allow for waiver of this restriction on eligibility for such grants,
loans, and funds.
(f) Sale of Property Subject to Judgment Lien. -- (1) On proper
application to a court, the court may order the United States to sell,
in accordance with sections 2001 and 2002, any real property subject to
a judgment lien in effect under this section.
(2) This subsection shall not preclude the United States from using
an execution sale pursuant to section 3203(g) to sell real property
subject to a judgment lien.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4948.)
Section 6323(f) of the Internal Revenue Code of 1986, referred to in
subsec. (a), is classified to section 6323(f) of Title 26, Internal
Revenue Code.
28 USC 3202. Enforcement of judgments
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Enforcement Remedies. -- A judgment may be enforced by any of the
remedies set forth in this subchapter. A court may issue other writs
pursuant to section 1651 of title 28, United States Code, as necessary
to support such remedies, subject to rule 81(b) of the Federal Rules of
Civil Procedure.
(b) Notice. -- On the commencement by the United States of an action
or proceeding under this subchapter to obtain a remedy, the counsel for
the United States shall prepare, and clerk of the court shall issue, a
notice in substantially the following form:
28 USC ''Notice
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
''You are hereby notified that this (property) is being taken by the
United States Government, which has a court judgment in (case docket
number and jurisdiction of court) of $(amount) for (reason of debt).
''In addition, you are hereby notified that there are exemptions
under the law which may protect some of this property from being taken
by the United States Government if (name of judgment debtor) can show
that the exemptions apply. Below is a summary of the major exemptions
which apply in most situations in the State of (State where property is
located):
''(A statement summarizing in plain and understandable English the
election available with respect to such State under section 3014 and the
types of property that may be exempted under each of the alternatives
specified in paragraphs (1) and (2) of section 3014(a) and a statement
that different property may be so exempted with respect to the State in
which the debtor resides.)
''If you are (name of judgment debtor), you have a right to ask the
court to return your property to you if you think the property the
Government is taking qualifies under one of the above exemptions (For a
default judgment:) or if you think you do not owe the money to the
United States Government that it says you do.
''If you want a hearing, you must notify the court within 20 days
after you receive this notice. You must make your request in writing,
and either mail it or deliver it in person to the clerk of the court at
(address). If you wish, you may use this notice to request the hearing
by checking the box below and mailing this notice to the court clerk.
You must also send a copy of your request to the Government at
(address), so the Government will know you want a hearing. The hearing
will take place within 5 days after the clerk receives your request, if
you ask for it to take place that quickly, or as soon after that as
possible.
''At the hearing you may explain to the judge why you believe the
property the Government has taken is exempt (For a default judgment:) or
why you think you do not owe the money to the Government. (For a writ
of execution:) If you do not request a hearing within 20 days of
receiving this notice, your (property) may be sold at public auction and
the payment used toward the money you owe the Government.
''If you think you live outside the Federal judicial district in
which the court is located, you may request, not later than 20 days
after your /1/ receive this notice, that this proceeding to take your
property be transferred by the court to the Federal judicial district in
which you reside. You must make your request in writing, and either
mail it or deliver it in person to the clerk of the court at (address).
You must also send a copy of your request to the Government at
(address), so the Government will know you want the proceeding to be
transferred.
''Be sure to keep a copy of this notice for your own records. If you
have any questions about your rights or about this procedure, you should
contact a lawyer, an office of public legal assistance, or the clerk of
the court. The clerk is not permitted to give legal advice, but can
refer you to other sources of information.''
(c) Service. -- A copy of the notice and a copy of the application
for granting a remedy under this subchapter shall be served by counsel
for the United States on the judgment debtor against whom such remedy is
sought and on each person whom the United States, after diligent
inquiry, has reasonable cause to believe has an interest in property to
which the remedy is directed.
(d) Hearing. -- By requesting, within 20 days after receiving the
notice described in section 3202(b), the court to hold a hearing, the
judgment debtor may move to quash the order granting such remedy. The
court that issued such order shall hold a hearing on such motion as soon
as practicable, or, if so requested by the judgment debtor, within 5
days after receiving the request or as soon thereafter as possible. The
issues at such hearing shall be limited --
(1) to the probable validity of any claim of exemption by the
judgment debtor;
(2) to compliance with any statutory requirement for the issuance of
the postjudgment remedy granted; and
(3) if the judgment is by default and only to the extent that the
Constitution or another law of the United States provides a right to a
hearing on the issue, to --
(A) the probable validity of the claim for the debt which is merged
in the judgment; and
(B) the existence of good cause for setting aside such judgment.
This subparagraph shall not be construed to afford the judgment
debtor the right to more than one such hearing except to the extent that
the Constitution or another law of the United States provides a right to
more than one such hearing.
(e) Sale of Property. -- The property of a judgment debtor which is
subject to sale to satisfy the judgment may be sold by judicial sale,
pursuant to sections 2001, 2002, and 2004 or by execution sale pursuant
to section 3203(g). If a hearing is requested pursuant to subsection
(d), property with respect to which the request relates shall not be
sold before such hearing.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4949.)
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
/1/ So in original. Probably should be ''you''.
28 USC 3203. Execution
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Property Subject to Execution. -- All property in which the
judgment debtor has a substantial nonexempt interest shall be subject to
levy pursuant to a writ of execution. The debtor's earnings shall not
be subject to execution while in the possession, custody, or control of
the debtor's employer. Co-owned property shall be subject to execution
to the extent such property is subject to execution under the law of the
State in which it is located.
(b) Creation of Execution Lien. -- A lien shall be created in favor
of the United States on all property levied on under a writ of execution
and shall date from the time of the levy. Such lien shall have priority
over all subsequent liens and shall be for the aggregate amount of the
judgment, costs, and interest. The execution lien on any real property
as to which the United States has a judgment lien shall relate back to
the judgment lien date.
(c) Writ of Execution. --
(1) Issuance. -- On written application of counsel for the United
States, the court may issue a writ of execution. Multiple writs may
issue simultaneously, and successive writs may issue before the return
date of a writ previously issued.
(2) Form of writ. --
(A) General contents. -- A writ of execution shall specify the date
that the judgment is entered, the court in which it is entered, the
amount of the judgment if for money, the amount of the costs, the amount
of interest due, the sum due as of the date the writ is issued, the rate
of postjudgment interest, the name of the judgment debtor, and the
judgment debtor's last known address.
(B) Additional contents. -- (i) Except as provided in clauses (ii)
and (iii), the writ shall direct the United States marshal to satisfy
the judgment by levying on and selling property in which the judgment
debtor has a substantial nonexempt interest, but not to exceed property
reasonably equivalent in value to the aggregate amount of the judgment,
costs, and interest.
(ii) A writ of execution issued on a judgment for the delivery to the
United States of the possession of personal property, or for the
delivery of the possession of real property, shall particularly describe
the property, and shall require the marshal to deliver the possession of
the property to the United States.
(iii) A writ of execution on a judgment for the recovery of personal
property or its value shall direct the marshal, in case a delivery of
the specific property cannot be had, to levy and collect such value out
of any property in which the judgment debtor has a substantial nonexempt
interest.
(d) Levy of Execution. --
(1) In general. -- Levy on property pursuant to a writ of execution
issued under this section shall be made in the same manner as levy on
property is made pursuant to a writ of attachment issued under section
3102(d).
(2) Death of judgment debtor. -- The death of the judgment debtor
after a writ of execution is issued stays the execution proceedings, but
any lien acquired by levy of the writ shall be recognized and enforced
by the court for the district in which the estate of the deceased is
located. The execution lien may be enforced --
(A) against the executor, administrator, or personal representative
of the estate of the deceased; or
(B) if there be none, against the deceased's property coming to the
heirs or devisees or at their option against cash in their possession,
but only to the extent of the value of the property coming to them.
(3) Records of united states marshal. -- (A) A United States marshal
receiving a writ of execution shall endorse thereon the exact hour and
date of receipt.
(B) The United States marshal shall make a written record of every
levy, specify the property on which levy is made, the date on which levy
is made, and the marshal's costs, expenses, and fees.
(C) The United States marshal shall make a written return to the
court on each writ of execution stating concisely what is done pursuant
to the writ and shall deliver a copy to counsel for the United States
who requests the writ. The writ shall be returned not more than --
(i) 90 days after the date of issuance if levy is not made; or
(ii) 10 days after the date of sale of property on which levy is
made.
(e) Appointment of Receiver. -- Pending the levy of execution, the
court may appoint a receiver to manage property described in such writ
if there is a substantial danger that the property will be removed from
the jurisdiction of the court, lost, materially injured or damaged, or
mismanaged.
(f) Replevy; Redemption. --
(1) Before execution sale. -- (A) Before execution sale, the United
States marshal may return property /1/ to the judgment debtor any
personal property taken in execution, on --
(i) satisfaction of the judgment, interest, and costs, and any costs
incurred in connection with scheduling the sale; or
(ii) receipt from the judgment debtor of a bond --
(I) payable to the United States, with 2 or more good and sufficient
sureties to be approved by the marshal, conditioned on the delivery of
the property to the marshal at the time and place named in the bond to
be sold under subsection (g); or
(II) for the payment to the marshal of a fair value thereof which
shall be stated in the bond.
(B) A judgment debtor who sells or disposes of property replevied
under subparagraph (A) shall pay the United States marshal the
stipulated value of such property.
(C) If the judgment debtor fails to deliver such property to the
United States marshal pursuant to the terms of the delivery described in
subparagraph (A)(ii)(I) and fails to pay the United States marshal the
stipulated value of such property, the United States marshal shall
endorse the bond ''forfeited'' and return it to the court from which the
writ of execution issued. If the judgment is not fully satisfied, the
court shall issue a writ of execution against the judgment debtor and
the sureties on the bond for the amount due, not exceeding the
stipulated value of the property, on which execution no delivery bond
shall be taken, which instruction shall be endorsed on the writ.
(2) After execution sale. -- The judgment debtor shall not be
entitled to redeem the property after the execution sale.
(g) Execution Sale. --
(1) General procedures. -- An execution sale under this section shall
be conducted in a commercially reasonable manner --
(A) Sale of real property. --
(i) In general. -- (I) Except as provided in clause (ii), real
property, or any interest therein, shall be sold, after the expiration
of the 90-day period beginning on the date of levy under subsection (d),
for cash at public auction at the courthouse of the county, parish, or
city in which the greater part of the property is located or on the
premises or some parcel thereof.
(II) The court may order the sale of any real property after the
expiration of the 30-day period beginning on the date of levy under
subsection (d) if the court determines that such property is likely to
perish, waste, be destroyed, or otherwise substantially depreciate in
value during the 90-day period beginning on the date of levy.
(III) The time and place of sale of real property, or any interest
therein, under execution shall be advertised by the United States
marshal, by publication of notice, once a week for at least 3 weeks
prior to the sale, in at least one newspaper of general circulation in
the county or parish where the property is located. The first
publication shall appear not less than 25 days preceding the day of
sale. The notice shall contain a statement of the authority by which
the sale is to be made, the time of levy, the time and place of sale,
and a brief description of the property to be sold, sufficient to
identify the property (such as a street address for urban property and
the survey identification and location for rural property), but it shall
not be necessary for the notice to contain field notes. Such property
shall be open for inspection and appraisal, subject to the judgment
debtor's reasonable objections, for a reasonable period before the day
of sale.
(IV) The United States marshal shall serve written notice of public
sale by personal delivery, or certified or registered mail, to each
person whom the marshal has reasonable cause to believe, after a title
search is conducted by the United States, has an interest in property
under execution, including lienholders, co-owners, and tenants, at least
25 days before the day of sale, to the last known address of each such
person.
(ii) Sale of city lots. -- If the real property consists of several
lots, tracts, or parcels in a city or town, each lot, tract, or parcel
shall be offered for sale separately, unless not susceptible to separate
sale because of the character of improvements.
(iii) Sale of rural property. -- If the real property is not located
in a city or town, the judgment debtor may --
(I) divide the property into lots of not less than 50 acres or in
such greater or lesser amounts as ordered by the court;
(II) furnish a survey of such prepared by a registered surveyor; and
(III) designate the order in which those lots shall be sold.
When a sufficient number of lots are sold to satisfy the amount
of the execution and costs of sale, the marshal shall stop the sale.
(B) Sale of personal property. -- (i) Personal property levied on
shall be offered for sale on the premises where it is located at the
time of levy, at the courthouse of the county, parish or city wherein it
is located, or at another location if ordered by the court. Personal
property susceptible of being exhibited shall not be sold unless it is
present and subject to the view of those attending the sale unless --
(I) the property consists of shares of stock in corporations;
(II) by reason of the nature of the property, it is impractical to
exhibit it; or
(III) the debtor's interest in the property does not include the
right to the exclusive possession.
(ii)(I) Except as provided in subclause (II), personal property, or
any interest therein, shall be sold after the expiration of the 30-day
period beginning on the date of levy under subsection (d).
(II) The court may order the sale of any personal property before the
expiration of such 30-day period if the court determines that such
property is likely to perish, waste, be destroyed, or otherwise
substantially depreciate in value during such 30-day period.
(iii) Notice of the time and place of the sale of personal property
shall be given by the United States marshal by posting notice thereof
for not less than 10 days successively immediately before the day of
sale at the courthouse of any county, parish, or city, and at the place
where the sale is to be made.
(iv) The United States marshal shall serve written notice of public
sale by personal delivery, or registered or certified mail at their last
known addresses, on the judgment debtor and other persons who the
marshal has reasonable cause to believe, after diligent inquiry, have a
substantial interest in the property.
(2) Postponement of sale. -- The United States marshal may postpone
an execution sale from time to time by continuing the required posting
or publication of notice until the date to which the sale is postponed,
and appending, at the foot of each such notice of a current copy of the
following:
''The above sale is postponed until the day of , 19 , at o'clock .M.,
, United States Marshal for the District of , by , Deputy, dated .''
(3) Sale procedures. --
(A) Bidding requirements. -- A bidder at an execution sale of
property, may be required by the United States marshal to make a cash
deposit of as much as 20 percent of the sale price proposed before the
bid is accepted.
(B) Resale of property. -- If the terms of the sale are not complied
with by the successful bidder, the United States marshal shall proceed
to sell the property again on the same day if there is sufficient time.
If there is insufficient time, the marshal shall schedule and notice a
subsequent sale of the property as provided in paragraphs (1) and (2).
(4) Rights and liabilities of purchasers. --
(A) Transfer of title after sale. --
(i) If property is sold under this subsection and the successful
bidder complies with the terms of the sale, the United States marshal
shall execute and deliver all documents necessary to transfer to the
successful bidder, without warranty, all the rights, titles, interests,
and claims of the judgment debtor in the property.
(ii) If the successful bidder dies before execution and delivery of
the documents needed to transfer ownership, the United States marshal
shall execute and deliver them to the successful bidder's estate. Such
delivery to the estate shall have the same effect as if accomplished
during the lifetime of the purchaser.
(B) Purchaser considered innocent purchaser without notice. -- The
purchaser of property sold under execution shall be deemed to be an
innocent purchaser without notice if the purchaser would have been
considered an innocent purchaser without notice had the sale been made
voluntarily and in person by the judgment debtor.
(C) Liability of successful bidder who fails to comply. -- A
successful bidder at an execution sale who fails to comply with the
terms of the sale shall forfeit to the United States the cash deposit
or, at the election of the United States, shall be liable to the United
States, on a subsequent sale of the property, for all net losses
incurred by the United States as a result of such failure.
(h) Disposition of Proceeds; Further Levy. --
(1) Distribution of sale proceeds. -- (A) The United States marshal
shall first deliver to the judgment debtor such amounts to which the
judgment debtor is entitled from the sale of partially exempt property.
(B) The United States marshal shall next deduct from the proceeds of
an execution sale of property an amount equal to the reasonable expenses
incurred in making the levy of execution and in keeping and maintaining
the property.
(C) Except as provided in subparagraph (D), the United States marshal
shall deliver the balance of the proceeds to the counsel for the United
States as soon as practicable.
(D) If more proceeds are received from the execution sale than is
necessary to satisfy the executions held by the United States marshal,
the marshal shall pay the surplus to the judgment debtor.
(2) Further levy if execution not satisfied. -- If the proceeds of
the execution sale of the property levied on are insufficient to satisfy
the execution, the United States marshal shall proceed on the same writ
of execution to levy other property of the judgment debtor.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4950.)
/1/ So in original. The word ''property'' probably should not
appear.
28 USC 3204. Installment payment order
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Authority To Issue Order. -- Subject to subsection (c), if it is
shown that the judgment debtor --
(1) is receiving or will receive substantial nonexempt disposable
earnings from self employment that are not subject to garnishment; or
(2) is diverting or concealing substantial earnings from any source,
or property received in lieu of earnings;
then upon motion of the United States and notice to the judgment
debtor, the court may, if appropriate, order that the judgment debtor
make specified installment payments to the United States. Notice of the
motion shall be served on the judgment debtor in the same manner as a
summons or by registered or certified mail, return receipt requested.
In fixing the amount of the payments, the court shall take into
consideration after a hearing, the income, resources, and reasonable
requirements of the judgment debtor and the judgment debtor's
dependents, any other payments to be made in satisfaction of judgments
against the judgment debtor, and the amount due on the judgment in favor
of the United States.
(b) Modification of Order. -- On motion of the United States or the
judgment debtor, and upon a showing that the judgment debtor's financial
circumstances have changed or that assets not previously disclosed by
the judgment debtor have been discovered, the court may modify the
amount of payments, alter their frequency, or require full payment.
(c) Limitation. -- (1) An order may not be issued under subsection
(a), and if so issued shall have no force or effect, against a judgment
debtor with respect to whom there is in effect a writ of garnishment of
earnings issued under this chapter and based on the same debt.
(2) An order may not be issued under subsection (a) with respect to
any earnings of the debtor except nonexempt disposable earnings.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4955.)
28 USC 3205. Garnishment
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- A court may issue a writ of garnishment against
property (including nonexempt disposable earnings) in which the debtor
has a substantial nonexempt interest and which is in the possession,
custody, or control of a person other than the debtor, in order to
satisfy the judgment against the debtor. Co-owned property shall be
subject to garnishment to the same extent as co-owned property is
subject to garnishment under the law of the State in which such property
is located. A court may issue simultaneous separate writs of
garnishment to several garnishees. A writ of garnishment issued under
this subsection shall be continuing and shall terminate only as provided
in subsection (c)(10).
(b) Writ. --
(1) General requirements. -- The United States shall include in its
application for a writ of garnishment --
(A) the judgment debtor's name, social security number (if known),
and last known address;
(B) the nature and amount of the debt owed and the facts that not
less than 30 days has elapsed since demand on the debtor for payment of
the debt was made and the judgment debtor has not paid the amount due;
and
(C) that the garnishee is believed to have possession of property
(including nonexempt disposable earnings) in which the debtor has a
substantial nonexempt interest.
(2) Proper garnishee for particular property. --
(A) If the property consists of a right to or share in the stock of
an association or corporation, or interests or profits therein, for
which a certificate of stock or other negotiable instrument is not
outstanding, the corporation, or the president or treasurer of the
association shall be the garnishee.
(B) If the property consists of an interest in a partnership
interest, any partner other than the debtor shall be the garnishee on
behalf of the partnership.
(C) If the property or a debt is evidenced by a negotiable instrument
for the payment of money, a negotiable document of title or a
certificate of stock of an association or corporation, the instrument,
document, or certificate shall be treated as property capable of
delivery and the person holding it shall be the garnishee, except that
--
(i) subject to clause (ii), in the case of a security which is
transferable in the manner set forth in State law, the entity that
carries on its books an account in the name of the debtor in which is
reflected such security shall be the garnishee; and
(ii) notwithstanding clause (i), the pledgee shall be the garnishee
if such security is pledged.
(c) Procedures Applicable to Writ. --
(1) Court determination. -- If the court determines that the
requirements of this section are satisfied, the court shall issue an
appropriate writ of garnishment.
(2) Form of writ. -- The writ shall state --
(A) The nature and amount of the debt, and any cost and interest owed
with respect to the debt.
(B) The name and address of the garnishee.
(C) The name and address of counsel for the United States.
(D) The last known address of the judgment debtor.
(E) That the garnishee shall answer the writ within 10 days of
service of the writ.
(F) That the garnishee shall withhold and retain any property in
which the debtor has a substantial nonexempt interest and for which the
garnishee is or may become indebted to the judgment debtor pending
further order of the court.
(3) Service of writ. -- The United States shall serve the garnishee
and the judgment debtor with a copy of the writ of garnishment and shall
certify to the court that this service was made. The writ shall be
accompanied by --
(A) an instruction explaining the requirement that the garnishee
submit a written answer to the writ; and
(B) instructions to the judgment debtor for objecting to the answer
of the garnishee and for obtaining a hearing on the objections.
(4) Answer of the garnishee. -- In its written answer to the writ of
garnishment, the garnishee shall state under oath --
(A) whether the garnishee has custody, control or possession of such
property;
(B) a description of such property and the value of such interest;
(C) a description of any previous garnishments to which such property
is subject and the extent to which any remaining property is not exempt;
and
(D) the amount of the debt the garnishee anticipates owing to the
judgment debtor in the future and whether the period for payment will be
weekly or another specified period.
The garnishee shall file the original answer with the court issuing
the writ and serve a copy on the debtor and counsel for the United
States.
(5) Objections to answer. -- Within 20 days after receipt of the
answer, the judgment debtor or the United States may file a written
objection to the answer and request a hearing. The party objecting
shall state the grounds for the objection and bear the burden of proving
such grounds. A copy of the objection and request for a hearing shall
be served on the garnishee and all other parties. The court shall hold
a hearing within 10 days after the date the request is received by the
court, or as soon thereafter as is practicable, and give notice of the
hearing date to all the parties.
(6) Garnishee's failure to answer or pay. -- If a garnishee fails to
answer the writ of garnishment or to withhold property in accordance
with the writ, the United States may petition the court for an order
requiring the garnishee to appear before the court to answer the writ
and to so withhold property before the appearance date. If the
garnishee fails to appear, or appears and fails to show good cause why
the garnishee failed to comply with the writ, the court shall enter
judgment against the garnishee for the value of the judgment debtor's
nonexempt interest in such property (including nonexempt disposable
earnings). The court may award a reasonable attorney's fee to the
United States and against the garnishee if the writ is not answered
within the time specified therein and a petition requiring the garnishee
to appear is filed as provided in this section.
(7) Disposition order. -- After the garnishee files an answer and if
no hearing is requested within the required time period, the court shall
promptly enter an order directing the garnishee as to the disposition of
the judgment debtor's nonexempt interest in such property. If a hearing
is timely requested, the order shall be entered within 5 days after the
hearing, or as soon thereafter as is practicable.
(8) Priorities. -- Judicial orders and garnishments for the support
of a person shall have priority over a writ of garnishment issued under
this section. As to any other writ of garnishment or levy, a
garnishment issued under this section shall have priority over writs
which are issued later in time.
(9) Accounting. -- (A) While a writ of garnishment is in effect under
this section, the United States shall give an annual accounting on the
garnishment to the judgment debtor and the garnishee.
(B) Within 10 days after the garnishment terminates, the United
States shall give a cumulative written accounting to the judgment debtor
and garnishee of all property it receives under a writ of garnishment.
Within 10 days after such accounting is received, the judgment debtor or
garnishee may file a written objection to the accounting and a request
for hearing. The party objecting shall state grounds for the objection.
The court shall hold a hearing on the objection within 10 days after
the court receives the request for a hearing, or as soon thereafter as
is practicable.
(10) Termination of garnishment. -- A garnishment under this chapter
is terminated only by --
(A) a court order quashing the writ of garnishment;
(B) exhaustion of property in the possesion, /1/ custody, or control
of the garnishee in which the debtor has a substantial nonexempt
interest (including nonexempt disposable earnings), unless the garnishee
reinstates or reemploys the judgment debtor within 90 days after the
judgment debtor's dismissal or resignation; or
(C) satisfaction of the debt with respect to which the writ is
issued.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4956.)
/1/ So in original. Probably should be ''possession,''.
28 USC 3206. Discharge
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A person who pursuant to an execution or order issued under this
chapter by a court pays or delivers to the United States, a United
States marshal, or a receiver, money or other personal property in which
a judgment debtor has or will have an interest, or so pays a debt such
person owes the judgment debtor, is discharged from such debt to the
judgment debtor to the extent of the payment or delivery.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4959.)
28 USC SUBCHAPTER D -- FRAUDULENT TRANSFERS INVOLVING DEBTS
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
3301. Definitions.
3302. Insolvency.
3303. Value for a transfer or obligation. /1/
3304. Transfer fraudulent as to a debt to the United States.
3305. When transfer is made or obligation is incurred.
3306. Remedies of the United States.
3307. Defenses, liability and protection of transferee. /1/
3308. Supplementary provision.
/1/ So in original. Does not conform to section catchline.
28 USC 3301. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
As used in this subchapter:
(1) ''Affiliate'' means --
(A) a person who directly or indirectly owns, controls, or holds with
power to vote, 20 percent or more of the outstanding voting securities
of the debtor, other than a person who holds the securities --
(i) as a fiduciary or agent without sole discretionary power to vote
the securities; or
(ii) solely to secure a debt, if the person has not exercised the
power to vote;
(B) a corporation 20 percent or more of whose outstanding voting
securities are directly or indirectly owned, controlled, or held with
power to vote, by the debtor or a person who directly or indirectly
owns, controls, or holds with power to vote, 20 percent or more of the
outstanding voting securities of the debtor, other than the person who
holds securities --
(i) as a fiduciary or agent without sole power to vote the
securities; or
(ii) solely to secure a debt, if the person has not in fact exercised
the power to vote;
(C) a person whose business is operated by the debtor under a lease
or other agreement, or a person substantially all of whose assets are
controlled by the debtor; or
(D) a person who operates the debtor's business under a lease or
other agreement or controls substantially all of the debtor's assets.
(2) ''Asset'' means property of a debtor, but does not include --
(A) property to the extent it is encumbered by a valid lien;
(B) property to the extent it is generally exempt under nonbankruptcy
law; or
(C) an interest in real property held in tenancy by the entirety, or
as part of a community estate, to extent such interest is not subject to
process by the United States holding a claim against only one tenant or
co-owner.
(3) ''Claim'' means a right to payment, whether or not the right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured.
(4) ''Creditor'' means a person who has a claim.
(5) ''Insider'' includes --
(A) if the debtor is an individual --
(i) a relative of the debtor or of a general partner of the debtor;
(ii) a partnership in which the debtor is a general partner;
(iii) a general partner in a partnership described in clause (ii);
or
(iv) a corporation of which the debtor is a director, officer, or
person in control;
(B) if the debtor is a corporation --
(i) a director of the debtor;
(ii) an officer of the debtor;
(iii) a person in control of the debtor;
(iv) a partnership in which the debtor is a general partner;
(v) a general partner in a partnership described in clause (iv); or
(vi) a relative of a general partner, director, officer, or person in
control of the debtor;
(C) if the debtor is a partnership --
(i) a general partner in the debtor;
(ii) a relative of a general partner in, a general partner of, or a
person in control of the debtor;
(iii) another partnership in which the debtor is a general partner;
(iv) a general partner in a partnership described in clause (iii);
or
(v) a person in control of the debtor. /1/
(D) an affiliate, or an insider of an affiliate as if the affiliate
were the debtor; and
(E) a managing agent of the debtor.
(4) /2/ ''Lien'' means a charge against or an interest in property to
secure payment of a debt and includes a security interest created by
agreement, a judicial lien obtained by legal or equitable process or
proceedings, a common law lien, or a statutory lien.
(5) /3/ ''Relative'' means an individual related, by consanguinity or
adoption, within the third degree as determined by the common law, a
spouse, or an individual so related to a spouse within the third degree
as so determined.
(6) /4/ ''Transfer'' means every mode, direct or indirect, absolute
or conditional, voluntary or involuntary, of disposing of or parting
with an asset or an interest in an asset, and includes payment of money,
release, lease, and creation of a lien or other encumbrance.
(7) /5/ ''Valid lien'' means a lien that is effective against the
holder of a judicial lien subsequently obtained in legal or equitable
proceeding.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4959.)
/1/ So in original. The period probably should be a semicolon.
/2/ So in original. Probably should be ''(6)''.
/3/ So in original. Probably should be ''(7)''.
/4/ So in original. Probably should be ''(8)''.
/5/ So in original. Probably should be ''(9)''.
28 USC 3302. Insolvency
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- Except as provided in subsection (c), a debtor is
insolvent if the sum of the debtor's debts is greater than all of the
debtor's assets at a fair valuation.
(b) Presumption. -- A debtor who is generally not paying debts as
they become due is presumed to be insolvent.
(c) Calculation. -- A partnership is insolvent under subsection (a)
if the sum of the partnership's debts is greater than the aggregate, at
a fair valuation, of --
(1) all of the partnership's assets; and
(2) the sum of the excess of the value of each general partner's
non-partnership assets over the partner's non-partnership debts.
(d) Assets. -- For purposes of this section, assets do not include
property that is transferred, concealed, or removed with intent to
hinder, delay, or defraud creditors or that has been transferred in a
manner making the transfer voidable under this subchapter.
(e) Debts. -- For purposes of this section, debts do not include an
obligation to the extent such obligation is secured by a valid lien on
property of the debtor not included as an asset.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4961.)
28 USC 3303. Value for transfer or obligation
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Transaction. -- Value is given for a transfer or an obligation
if, in exchange for the transfer or obligation, property is transferred
or an antecedent debt is secured or satisfied, but value does not
include an unperformed promise made otherwise than in the ordinary
course of the promisor's business to furnish support to the debtor or
another person.
(b) Reasonably Equivalent Value. -- For the purposes of sections 3304
and 3307, a person gives a reasonably equivalent value if the person
acquires an interest of the debtor in an asset pursuant to a regularly
conducted, noncollusive foreclosure sale or execution of a power of sale
for the acquisition or disposition of such interest upon default under a
mortgage, deed of trust, or security agreement.
(c) Present Value. -- A transfer is made for present value if the
exchange between the debtor and the transferee is intended by them to be
contemporaneous and is in fact substantially contemporaneous.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4961.)
28 USC 3304. Transfer fraudulent as to a debt to the United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Debt Arising Before Transfer. -- Except as provided in section
3307, a transfer made or obligation incurred by a debtor is fraudulent
as to a debt to the United States which arises before the transfer is
made or the obligation is incurred if --
(1)(A) the debtor makes the transfer or incurs the obligation without
receiving a reasonably equivalent value in exchange for the transfer or
obligation; and
(B) the debtor is insolvent at that time or the debtor becomes
insolvent as a result of the transfer or obligation; or
(2)(A) the transfer was made to an insider for an antecedent debt,
the debtor was insolvent at the time; and
(B) the insider had reasonable cause to believe that the debtor was
insolvent.
(b) Transfers Without Regard to Date of Judgment. -- (1) Except as
provided in section 3307, a transfer made or obligation incurred by a
debtor is fraudulent as to a debt to the United States, whether such
debt arises before or after the transfer is made or the obligation is
incurred, if the debtor makes the transfer or incurs the obligation --
(A) with actual intent to hinder, delay, or defraud a creditor; or
(B) without receiving a reasonably equivalent value in exchange for
the transfer or obligation if the debtor --
(i) was engaged or was about to engage in a business or a transaction
for which the remaining assets of the debtor were unreasonably small in
relation to the business or transaction; or
(ii) intended to incur, or believed or reasonably should have
believed that he would incur, debts beyond his ability to pay as they
became due.
(2) In determining actual intent under paragraph (1), consideration
may be given, among other factors, to whether --
(A) the transfer or obligation was to an insider;
(B) the debtor retained possession or control of the property
transferred after the transfer;
(C) the transfer or obligation was disclosed or concealed;
(D) before the transfer was made or obligation was incurred, the
debtor had been sued or threatened with suit;
(E) the transfer was of substantially all the debtor's assets;
(F) the debtor absconded;
(G) the debtor removed or concealed assets;
(H) the value of the consideration received by the debtor was
reasonably equivalent to the value of the asset transferred or the
amount of the obligation incurred;
(I) the debtor was insolvent or became insolvent shortly after the
transfer was made or the obligation was incurred;
(J) the transfer occurred shortly before or shortly after a
substantial debt was incurred; and
(K) the debtor transferred the essential assets of the business to a
lienor who transferred the assets to an insider of the debtor.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4961.)
28 USC 3305. When transfer is made or obligation is incurred
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For the purposes of this subchapter:
(1) A transfer is made --
(A) with respect to an asset that is real property (other than a
fixture, but including the interest of a seller or purchaser under a
contract for the sale of the asset), when the transfer is so far
perfected that a good-faith purchaser of the asset from the debtor
against whom applicable law permits the transfer to be perfected cannot
acquire an interest in the asset that is superior to the interest of the
transferee; and
(B) with respect to an asset that is not real property or that is a
fixture, when the transfer is so far perfected that a creditor on a
simple contract cannot acquire, otherwise than under this subchapter, a
judicial lien that is superior to the interest of the transferee.
(2) If applicable law permits the transfer to be perfected as
approved in paragraph (1) and the transfer is not so perfected before
the commencement of an action or proceeding for relief under this
subchapter, the transfer is deemed made immediately before the
commencement of the action or proceeding.
(3) If applicable law does not permit the transfer to be perfected as
provided in paragraph (1), the transfer is made when it becomes
effective between the debtor and the transferee.
(4) A transfer is not made until the debtor has acquired rights in
the asset transferred.
(5) An obligation is incurred --
(A) if oral, when it becomes effective between the parties; or
(B) if evidenced by a writing executed by the obligor, when such
writing is delivered to or for the benefit of the obligee.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4962.)
28 USC 3306. Remedies of the United States
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) In General. -- In an action or proceeding under this subchapter
for relief against a transfer or obligation, the United States, subject
to section 3307 and to applicable principles of equity and in accordance
with the Federal Rules of Civil Procedure, may obtain --
(1) avoidance of the transfer or obligation to the extent necessary
to satisfy the debt to the United States;
(2) a remedy under this chapter against the asset transferred or
other property of the transferee; or
(3) any other relief the circumstances may require.
(b) Limitation. -- A claim for relief with respect to a fraudulent
transfer or obligation under this subchapter is extinguished unless
action is brought --
(1) under section 3304(b)(1)(A) within 6 years after the transfer was
made or the obligation was incurred or, if later, within 2 years after
the transfer or obligation was or could reasonably have been discovered
by the claimant;
(2) under subsection (a)(1) or (b)(1)(B) of section 3304 within 6
years after the transfer was made or the obligation was incurred; or
(3) under section 3304(a)(2) within 2 years after the transfer was
made or the obligation was incurred.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4963.)
The Federal Rules of Civil Procedure, referred to in subsec. (a),
are set out in the Appendix to this title.
28 USC 3307. Defenses, liability, and protection of transferee
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Good Faith Transfer. -- A transfer or obligation is not voidable
under section 3304(b) with respect to a person who took in good faith
and for a reasonably equivalent value or against any transferee or
obligee subsequent to such person.
(b) Limitation. -- Except as provided in subsection (d), to the
extent a transfer is voidable in an action or proceeding by the United
States under section 3306(a)(1), the United States may recover judgment
for the value of the asset transferred, but not to exceed the judgment
on a debt. The judgment may be entered against --
(1) the first transferee of the asset or the person for whose benefit
the transfer was made; or
(2) any subsequent transferee, other than a good faith transferee who
took for value or any subsequent transferee of such good-faith
transferee.
(c) Value of Asset. -- For purposes of subsection (b), the value of
the asset is the value of the asset at the time of the transfer, subject
to adjustment as the equities may require.
(d) Rights of Good Faith Transferees and Obligees. -- Notwithstanding
voidability of a transfer or an obligation under this subchapter, a
good-faith transferee or obligee is entitled, to the extent of the value
given the debtor for the transfer or obligation, to --
(1) a lien on or a right to retain any interest in the asset
transferred;
(2) enforcement of any obligation incurred; or
(3) a reduction in the amount of the liability on the judgment.
(e) Exceptions. -- A transfer is not voidable under section 3304(a)
or section 3304(b)(2) if the transfer results from --
(1) termination of a lease upon default by the debtor when the
termination is pursuant to the lease and applicable law; or
(2) enforcement of a security interest in compliance with article 9
of the Uniform Commercial Code or its equivalent in effect in the State
where the property is located.
(f) Limitation of Voidability. -- A transfer is not voidable under
section 3304(a)(2) --
(1) to the extent the insider gives new value to or for the benefit
of the debtor after the transfer is made unless the new value is secured
by a valid lien;
(2) if made in the ordinary course of business or financial affairs
of the debtor and the insider; or
(3) if made pursuant to a good-faith effort to rehabilitate the
debtor and the transfer secured both present value given for that
purpose and an antecedent debt of the debtor.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4963.)
28 USC 3308. Supplementary provision
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Except as provided in this subchapter, the principles of law and
equity, including the law merchant and the law relating to principal and
agent, estoppel, laches, fraud, misrepresentation, duress, coercion,
mistake, insolvency, or other validating or invalidating cause shall
apply to actions and proceedings under this subchapter.
(Added Pub. L. 101-647, title XXXVI, 3611, Nov. 29, 1990, 104 Stat.
4964.)
28 USC CHAPTER 178 -- PROFESSIONAL AND AMATEUR SPORTS PROTECTION
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
Sec.
3701. Definitions.
3702. Unlawful sports gambling.
3703. Injunctions.
3704. Applicability.
28 USC 3701. Definitions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
For purposes of this chapter --
(1) the term ''amateur sports organization'' means --
(A) a person or governmental entity that sponsors, organizes,
schedules, or conducts a competitive game in which one or more amateur
athletes participate, or
(B) a league or association of persons or governmental entities
described in subparagraph (A),
(2) the term ''governmental entity'' means a State, a political
subdivision of a State, or an entity or organization, including an
entity or organization described in section 4(5) of the Indian Gaming
Regulatory Act (25 U.S.C. 2703(5)), that has governmental authority
within the territorial boundaries of the United States, including on
lands described in section 4(4) of such Act (25 U.S.C. 2703(4)),
(3) the term ''professional sports organization'' means --
(A) a person or governmental entity that sponsors, organizes,
schedules, or conducts a competitive game in which one or more
professional athletes participate, or
(B) a league or association of persons or governmental entities
described in subparagraph (A),
(4) the term ''person'' has the meaning given such term in section 1
of title 1, and
(5) the term ''State'' means any of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, Palau, or any territory or possession of the
United States.
(Added Pub. L. 102-559, 2(a), Oct. 28, 1992, 106 Stat. 4227.)
Section 3 of Pub. L. 102-559 provided that: ''This Act (enacting
this chapter and provisions set out as a note under section 1 of this
title) shall take effect on January 1, 1993.''
28 USC 3702. Unlawful sports gambling
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
It shall be unlawful for --
(1) a governmental entity to sponsor, operate, advertise, promote,
license, or authorize by law or compact, or
(2) a person to sponsor, operate, advertise, or promote, pursuant to
the law or compact of a governmental entity,
a lottery, sweepstakes, or other betting, gambling, or wagering
scheme based, directly or indirectly (through the use of geographical
references or otherwise), on one or more competitive games in which
amateur or professional athletes participate, or are intended to
participate, or on one or more performances of such athletes in such
games.
(Added Pub. L. 102-559, 2(a), Oct. 28, 1992, 106 Stat. 4228.)
28 USC 3703. Injunctions
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
A civil action to enjoin a violation of section 3702 may be commenced
in an appropriate district court of the United States by the Attorney
General of the United States, or by a professional sports organization
or amateur sports organization whose competitive game is alleged to be
the basis of such violation.
(Added Pub. L. 102-559, 2(a), Oct. 28, 1992, 106 Stat. 4228.)
28 USC 3704. Applicability
TITLE 28 -- JUDICIARY AND JUDICIAL PROCEDURE
(a) Section 3702 shall not apply to --
(1) a lottery, sweepstakes, or other betting, gambling, or wagering
scheme in operation in a State or other governmental entity, to the
extent that the scheme was conducted by that State or other governmental
entity at any time during the period beginning January 1, 1976, and
ending August 31, 1990;
(2) a lottery, sweepstakes, or other betting, gambling, or wagering
scheme in operation in a State or other governmental entity where both
--
(A) such scheme was authorized by a statute as in effect on October
2, 1991; and
(B) a scheme described in section 3702 (other than one based on
parimutuel animal racing or jai-alai games) actually was conducted in
that State or other governmental entity at any time during the period
beginning September 1, 1989, and ending October 2, 1991, pursuant to the
law of that State or other governmental entity;
(3) a betting, gambling, or wagering scheme, other than a lottery
described in paragraph (1), conducted exclusively in casinos located in
a municipality, but only to the extent that --
(A) such scheme or a similar scheme was authorized, not later than
one year after the effective date of this chapter, to be operated in
that municipality; and
(B) any commercial casino gaming scheme was in operation in such
municipality throughout the 10-year period ending on such effective date
pursuant to a comprehensive system of State regulation authorized by
that State's constitution and applicable solely to such municipality;
or
(4) parimutuel animal racing or jai-alai games.
(b) Except as provided in subsection (a), section 3702 shall apply on
lands described in section 4(4) of the Indian Gaming Regulatory Act (25
U.S.C. 2703(4)).
(Added Pub. L. 102-559, 2(a), Oct. 28, 1992, 106 Stat. 4228.)
The effective date of this chapter, referred to in subsec.
(a)(3)(A), is Jan. 1, 1993, see section 3 of Pub. L. 102-559, set out
as an Effective Date note under section 3701 of this title.
28 USC TITLE 28, APPENDIX -- JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS
NTS 28 USC
TITLE 28, APPENDIX -- JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREME
NTS 28 USC TITLE 28 -- APPENDIX
TITLE 28, APPENDIX -- JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREME
Item Page
Judicial Personnel Financial Disclosure Requirements (Repealed) 1295
Development of Mechanisms for Resolving Minor Disputes (Omitted) 1062
Federal Rules of Appellate Procedure 1296
Federal Rules of Civil Procedure 1302
Federal Rules of Evidence 1317
Rules of the Supreme Court of the United States 1320
Rules of the United States Court of Federal Claims 1340
Rules of the United States Court of International Trade 1409
NTS 28 USC JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS
TITLE 28, APPENDIX -- JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREME
(Title III ( 301-309) of Pub. L. 95-521, Oct. 26, 1978, 92 Stat.
1851-1861, as amended by Pub. L. 96-19, 2(a)(3), (c)(3), 3(a)(3), (b),
4(c), 6, 7(a)-(c), (d)(2), (e), (f), 8(c), 9(c)(3), (d), (j), (p)-(r),
June 13, 1979, 93 Stat. 37-43; Pub. L. 96-417, title VI, 601(9), Oct.
10, 1980, 94 Stat. 1744; Pub. L. 96-579, 12(c), Dec. 23, 1980, 94
Stat. 3369; Pub. L. 97-164, title I, 163(a)(6), Apr. 2, 1982, 96 Stat.
49; Pub. L. 98-150, 10, Nov. 11, 1983, 97 Stat. 962; Pub. L. 99-514,
2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-573, 6, Oct. 28, 1986,
100 Stat. 3231; Pub. L. 101-237, title VI, 602(a)(1), Dec. 18, 1989,
103 Stat. 2094, which related to judicial personnel financial disclosure
requirements, was repealed by Pub. L. 101-194, title II, 201, Nov. 30,
1989, 103 Stat. 1724. See title I of the Ethics in Government Act of
1978, Pub. L. 95-521, as amended, relating to financial disclosure
requirements of Federal personnel, set out in the Appendix to Title 5,
Government Organization and Employees.)
Repeal effective Jan. 1, 1991, see section 204 of Pub. L. 101-194,
set out as an Effective Date of 1989 Amendment note under section 101 of
Pub. L. 95-521 in the Appendix to Title 5, Government Organization and
Employees.
Provisions of title III of Pub. L. 95-521, as in effect prior to
Nov. 30, 1989, effective until Jan. 1, 1991, as if Pub. L. 101-194
had not been enacted, and nothing in title II of Pub. L. 101-194 to be
construed to prevent prosecution of civil actions against individuals
for violations of title III of Pub. L. 95-521 before Jan. 1, 1991, see
section 3(10)(C), (D) of Pub. L. 101-280, set out as an Effective Date
of 1989 Amendment note under section 101 of Pub. L. 95-521 in the
Appendix to Title 5.
28 USC TITLE 28, APPENDIX -- DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES
PUTES 28 USC
TITLE 28, APPENDIX -- DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DIS
PUTES 28 USC DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES
TITLE 28, APPENDIX -- DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DIS
Pub. L. 96-190, Feb. 12, 1980, 94 Stat. 17, known as the Dispute
Resolution Act, provided for the establishment and maintenance of
mechanisms for resolving minor disputes, established the Dispute
Resolution Resource Center and Dispute Resolution Advisory Board,
prescribed duties for the Center and Board, authorized appropriations
for the Center and Board of $1,000,000 for each of the fiscal years
1980, 1981, 1982, 1983, and 1984, directed that financial assistance to
eligible applicants be in the form of grants, prescribed conditions for
such grants, authorized appropriations for such grants of $10,000,000
for each of the fiscal years 1981, 1982, 1983, and 1984, and required an
annual report by the Attorney General to the President and Congress
relating to the administration of Pub. L. 96-190.
28 USC TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC FEDERAL RULES OF APPELLATE PROCEDURE
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
The Federal Rules of Appellate Procedure were adopted by order of the
Supreme Court on Dec. 4, 1967, transmitted to Congress by the Chief
Justice on Jan. 15, 1968, and became effective on July 1, 1968.
The Rules have been amended Mar. 30, 1970, eff. July 1, 1970; Mar.
1, 1971, eff. July 1, 1971; Apr. 24, 1972, eff. Oct. 1, 1972; Apr.
30, 1979, eff. Aug. 1, 1979; Oct. 12, 1984, Pub. L. 98-473, title II,
210, 98 Stat 1987; Mar. 10, 1986, eff. July 1, 1986; Nov. 18, 1988,
Pub. L. 100-690, title VII, 7111, 102 Stat. 4419; Apr. 25, 1989,
eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991.
Rule
1. Scope of rules.
2. Suspension of rules.
COURTS
3. Appeal as of right -- How taken.
3.1. Appeals from judgments entered by magistrates in civil cases.
4. Appeal as of right -- When taken.
5. Appeals by permission under 28 U.S.C. 1292(b).
5.1. Appeals by permission under 28 U.S.C. 636(c)(5).
6. Appeals in bankruptcy cases from final judgments and orders of
district courts or of bankruptcy appellate panels.
7. Bond for costs on appeal in civil cases.
8. Stay or injunction pending appeal.
9. Release in criminal cases.
10. The record on appeal.
11. Transmission of the record.
12. Docketing the appeal; filing of the record.
COURT
13. Review of decisions of the Tax Court.
14. Applicability of other rules to review of decisions of the Tax
Court.
ADMINISTRATIVE AGENCIES, BOARDS, COMMISSIONS AND
OFFICERS
15. Review or enforcement of agency orders -- How obtained;
intervention.
15.1. Briefs and oral argument in National Labor Relations Board
proceedings.
16. The record on review or enforcement.
17. Filing of the record.
18. Stay pending review.
19. Settlement of judgments enforcing orders.
20. Applicability of other rules to review or enforcement of agency
orders.
21. Writs of mandamus and prohibition directed to a judge or judges
and other extraordinary writs.
22. Habeas corpus proceedings.
23. Custody of prisoners in habeas corpus proceedings.
24. Proceedings in forma pauperis.
25. Filing and service.
26. Computation and extension of time.
26.1. Corporate disclosure statement.
27. Motions.
28. Briefs.
29. Brief of an amicus curiae.
30. Appendix to the briefs.
31. Filing and service of briefs.
32. Form of briefs, the appendix and other papers.
33. Prehearing conference.
34. Oral argument.
35. Determination of causes by the court in banc.
36. Entry of judgment.
37. Interest on judgments.
38. Damages for delay.
39. Costs.
40. Petition for rehearing.
41. Issuance of mandate; stay of mandate.
42. Voluntary dismissal.
43. Substitution of parties.
44. Cases involving constitutional questions where United States is
not a party.
45. Duties of clerks.
46. Attorneys.
47. Rules by courts of appeals.
48. Title.
Form
1. Notice of Appeal to a Court of Appeals From a Judgment or Order
of a District Court.
2. Notice of Appeal to a Court of Appeals From a Decision of the Tax
Court.
3. Petition for Review of Order of an Agency, Board, Commission or
Officer.
4. Affidavit to Accompany Motion for Leave to Appeal in Forma
Pauperis.
5. Notice of Appeal to a Court of Appeals from a Judgment or Order
of a District Court or a Bankruptcy Appellate Panel.
Section 2 of the Order of the Supreme Court, dated Dec. 4, 1967,
provided: ''That the foregoing rules shall take effect on July 1, 1968,
and shall govern all proceedings in appeals and petitions for review or
enforcement of orders thereafter brought in and in all such proceedings
then pending, except to the extent that in the opinion of the court of
appeals their application in a particular proceeding then pending would
not be feasible or would work injustice, in which case the former
procedure may be followed.''
Congress
Sections 2 and 3 of the Order of the Supreme Court, dated Mar. 30,
1970, provided:
''2. That the foregoing amendments to the Federal Rules of Appellate
Procedure shall take effect on July 1, 1970, and shall govern all
proceedings in actions brought thereafter and also in all further
proceedings in actions then pending, except to the extent that in the
opinion of the court their application in a particular action then
pending would not be feasible or would work injustice, in which event
the former procedure applies.
''3. That the Chief Justice be, and he hereby is, authorized to
transmit to the Congress the foregoing amendments to existing rules, in
accordance with the provisions of Title 18, U.S.C. 3372, and Title 28,
U.S.C. 2072 and 2075.''
28 USC TITLE I. APPLICABILITY OF RULES
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 1. Scope of rules
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Scope of rules. -- These rules govern procedure in appeals to
United States courts of appeals from the United States district courts
and the United States Tax Court; in appeals from bankruptcy appellate
panels; in proceedings in the courts of appeals for review or
enforcement of orders of administrative agencies, boards, commissions
and officers of the United States; and in applications for writs or
other relief which a court of appeals or a judge thereof is competent to
give. When these rules provide for the making of a motion or
application in the district court, the procedure for making such motion
or application shall be in accordance with the practice of the district
court.
(b) Rules not to affect jurisdiction. -- These rules shall not be
construed to extend or limit the jurisdiction of the courts of appeals
as established by law.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
Dec. 1, 1989.)
These rules are drawn under the authority of 28 U.S.C. 2072, as
amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code
Cong. & Ad. News, p. 1546 (1966)) (Rules of Civil Procedure); 28 U.S.C.
2075 (Bankruptcy Rules); and 18 U.S.C. 3771 (Procedure to and
including verdict) and 3772 (Procedure after verdict). Those statutes
combine to give to the Supreme Court power to make rules of practice and
procedure for all cases within the jurisdiction of the courts of
appeals. By the terms of the statutes, after the rules have taken
effect all laws in conflict with them are of no further force or effect.
Practice and procedure in the eleven courts of appeals are now
regulated by rules promulgated by each court under the authority of 28
U.S.C. 2071. Rule 47 expressly authorizes the courts of appeals to make
rules of practice not inconsistent with these rules.
As indicated by the titles under which they are found, the following
rules are of special application: Rules 3 through 12 apply to appeals
from judgments and orders of the district courts; Rules 13 and 14 apply
to appeals from decisions of the Tax Court (Rule 13 establishes an
appeal as the mode of review of decisions of the Tax Court in place of
the present petition for review); Rules 15 through 20 apply to
proceedings for review or enforcement of orders of administrative
agencies, boards, commissions and officers. Rules 22 through 24
regulate habeas corpus proceedings and appeals in forma pauperis. All
other rules apply to all proceedings in the courts of appeals.
The Federal Rules of Appellate Procedure were designed as an
integrated set of rules to be followed in appeals to the courts of
appeals, covering all steps in the appellate process, whether they take
place in the district court or in the court of appeals, and with their
adoption Rules 72-76 of the F.R.C.P. were abrogated. In some instances,
however, the F.R.A.P. provide that a motion or application for relief
may, or must, be made in the district court. See Rules 4(a), 10(b), and
24. The proposed amendment would make it clear that when this is so the
motion or application is to be made in the form and manner prescribed by
the F.R.C.P. or F.R.Cr.P. and local rules relating to the form and
presentation of motions and is not governed by Rule 27 of the F.R.A.P.
See Rule 7(b) of the F.R.C.P. and Rule 47 of the F.R.Cr.P.
The amendment is technical. No substantive change is intended.
Authority to create courts inferior to Supreme Court, see Const.
Art. 3, 1.
''Courts of the United States'' as including courts of appeals, see
section 451 of this title.
Creation and composition of courts, see section 43 of this title.
Forging or counterfeiting seals of courts, penalties, see section 505
of Title 18, Crimes and Criminal Procedure.
Number and composition of circuits, see section 41 of this title.
Power of Supreme Court to prescribe rules of procedure and evidence,
see section 2072 of this title.
Writs and process issued by court to be under seal, see section 1691
of this title.
28 USC Rule 2. Suspension of rules
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
In the interest of expediting decision, or for other good cause
shown, a court of appeals may, except as otherwise provided in Rule
26(b), suspend the requirements or provisions of any of these rules in a
particular case on application of a party or on its own motion and may
order proceedings in accordance with its direction.
The primary purpose of this rule is to make clear the power of the
courts of appeals to expedite the determination of cases of pressing
concern to the public or to the litigants by prescribing a time schedule
other than that provided by the rules. The rule also contains a general
authorization to the courts to relieve litigants of the consequences of
default where manifest injustice would otherwise result. Rule 26(b)
prohibits a court of appeals from extending the time for taking appeal
or seeking review.
Injunction, power of appellate court to suspend, modify or grant
pending appeal, see Rule 62, Federal Rules of Civil Procedure, this
Appendix.
28 USC TITLE II. APPEALS FROM JUDGMENTS AND ORDERS OF DISTRICT COURTS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 3. Appeal as of right -- How taken
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Filing the notice of appeal. -- An appeal permitted by law as of
right from a district court to a court of appeals shall be taken by
filing a notice of appeal with the clerk of the district court within
the time allowed by Rule 4. Failure of an appellant to take any step
other than the timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for such action as the court
of appeals deems appropriate, which may include dismissal of the appeal.
Appeals by permission under 28 U.S.C. 1292(b) and appeals in
bankruptcy shall be taken in the manner prescribed by Rule 5 and Rule 6
respectively.
(b) Joint or consolidated appeals. -- If two or more persons are
entitled to appeal from a judgment or order of a district court and
their interests are such as to make joinder practicable, they may file a
joint notice of appeal, or may join in appeal after filing separate
timely notices of appeal, and they may thereafter proceed on appeal as a
single appellant. Appeals may be consolidated by order of the court of
appeals upon its own motion or upon motion of a party, or by stipulation
of the parties to the several appeals.
(c) Content of the notice of appeal. -- The notice of appeal shall
specify the party or parties taking the appeal; shall designate the
judgment, order or part thereof appealed from; and shall name the court
to which the appeal is taken. Form 1 in the Appendix of Forms is a
suggested form of a notice of appeal. An appeal shall not be dismissed
for informality of form or title of the notice of appeal.
(d) Service of the notice of appeal. -- The clerk of the district
court shall serve notice of the filing of a notice of appeal by mailing
a copy thereof to counsel of record of each party other than the
appellant, or, if a party is not represented by counsel, to the last
known address of that party; and the clerk shall transmit forthwith a
copy of the notice of appeal and of the docket entries to the clerk of
the court of appeals named in the notice. When an appeal is taken by a
defendant in a criminal case, the clerk shall also serve a copy of the
notice of appeal upon the defendant, either by personal service or by
mail addressed to the defendant. The clerk shall note on each copy
served the date on which the notice of appeal was filed. Failure of the
clerk to serve notice shall not affect the validity of the appeal.
Service shall be sufficient notwithstanding the death of a party or the
party's counsel. The clerk shall note in the docket the names of the
parties to whom the clerk mails copies, with the date of mailing.
(e) Payment of fees. -- Upon the filing of any separate or joint
notice of appeal from the district court, the appellant shall pay to the
clerk of the district court such fees as are established by statute, and
also the docket fee prescribed by the Judicial Conference of the United
States, the latter to be received by the clerk of the district court on
behalf of the court of appeals.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.)
General Note. Rule 3 and Rule 4 combine to require that a notice of
appeal be filed with the clerk of the district court within the time
prescribed for taking an appeal. Because the timely filing of a notice
of appeal is ''mandatory and jurisdictional,'' United States v.
Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960),
compliance with the provisions of those rules is of the utmost
importance. But the proposed rules merely restate, in modified form,
provisions now found in the civil and criminal rules (FRCP 5(e), 73;
FRCrP 37), and decisions under the present rules which dispense with
literal compliance in cases in which it cannot fairly be exacted should
control interpretation of these rules. Illustrative decisions are:
Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760
(1964) (notice of appeal by a prisoner, in the form of a letter
delivered, well within the time fixed for appeal, to prison authorities
for mailing to the clerk of the district court held timely filed
notwithstanding that it was received by the clerk after expiration of
the time for appeal; the appellant ''did all he could'' to effect
timely filing); Richey v. Wilkins, 335 F.2d 1 (2d Cir. 1964) (notice
filed in the court of appeals by a prisoner without assistance of
counsel held sufficient); Halfen v. United States, 324 F.2d 52 (10th
Cir. 1963) (notice mailed to district judge in time to have been
received by him in normal course held sufficient); Riffle v. United
States, 299 F.2d 802 (5th Cir. 1962) (letter of prisoner to judge of
court of appeals held sufficient). Earlier cases evidencing ''a liberal
view of papers filed by indigent and incarcerated defendants'' are
listed in Coppedge v. United States, 369 U.S. 438, 442, n. 5, 82 S.Ct.
917, 8 L.Ed.2d 21 (1962).
Subdivision (a). The substance of this subdivision is derived from
FRCP 73(a) and FRCrP 37(a)(1). The proposed rule follows those rules in
requiring nothing other than the filing of a notice of appeal in the
district court for the perfection of the appeal. The petition for
allowance (except for appeals governed by Rules 5 and 6), citations,
assignments of error, summons and severance -- all specifically
abolished by earlier modern rules -- are assumed to be sufficiently
obsolete as no longer to require pointed abolition.
Subdivision (b). The first sentence is derived from FRCP 74. The
second sentence is added to encourage consolidation of appeals whenever
feasible.
Subdivision (c). This subdivision is identical with corresponding
provisions in FRCP 73(b) and FRCrP 37(a)(1).
Subdivision (d). This subdivision is derived from FRCP 73(b) and
FRCrP 37(a)(1). The duty of the clerk to forward a copy of the notice
of appeal and of the docket entries to the court of appeals in a
criminal case extended to habeas corpus and 28 U.S.C. 2255 proceedings.
Subdivision (c). The proposed amendment would add the last sentence.
Because of the fact that the timely filing of the notice of appeal has
been characterized as jurisdictional (See, e.g., Brainerd v. Beal (C.A.
7th, 1974) 498 F.2d 901, in which the filing of a notice of appeal one
day late was fatal), it is important that the right to appeal not be
lost by mistakes of mere form. In a number of decided cases it has been
held that so long as the function of notice is met by the filing of a
paper indicating an intention to appeal, the substance of the rule has
been complied with. See, e.g., Cobb v. Lewis (C.A. 5th, 1974) 488 F.2d
41; Holley v. Capps (C.A. 5th, 1972) 468 F.2d 1366. The proposed
amendment would give recognition to this practice.
When a notice of appeal is filed, the clerk should ascertain whether
any judgment designated therein has been entered in compliance with
Rules 58 and 79(a) of the F.R.C.P. See Note to Rule 4(a)(6), infra.
Subdivision (d). The proposed amendment would extend to civil cases
the present provision applicable to criminal cases, habeas corpus cases,
and proceedings under 28 U.S.C. 2255, requiring the clerk of the
district court to transmit to the clerk of the court of appeals a copy
of the notice of appeal and of the docket entries, which should include
reference to compliance with the requirements for payment of fees. See
Note to (e), infra.
This requirement is the initial step in proposed changes in the rules
to place in the court of appeals an increased practical control over the
early steps in the appeal.
Subdivision (e). Proposed new Rule 3(e) represents the second step
in shifting to the court of appeals the control of the early stages of
an appeal. See Note to Rule 3(d) above. Under the present rules the
payment of the fee prescribed by 28 U.S.C. 1917 is not covered. Under
the statute, however, this fee is paid to the clerk of the district
court at the time the notice of appeal is filed. Under present Rule 12,
the ''docket fee'' fixed by the Judicial Conference of the United States
under 28 U.S.C. 1913 must be paid to the clerk of the court of appeals
within the time fixed for transmission of the record, ''. . . and the
clerk shall thereupon enter the appeal upon the docket.''
Under the proposed new Rule 3(e) both fees would be paid to the clerk
of the district court at the time the notice of appeal is filed, the
clerk of the district court receiving the docket fee on behalf of the
court of appeals.
In view of the provision in Rule 3(a) that ''(f)ailure of an
appellant to take any step other than the timely filing of a notice of
appeal does not affect the validity of the appeal, but is ground only
for such action as the court of appeals deems appropriate, which may
include dismissal of the appeal,'' the case law indicates that the
failure to prepay the statutory filing fee does not constitute a
jurisdictional defect. See Parissi v. Telechron, 349 U.S. 46 (1955);
Gould v. Members of N. J. Division of Water Policy & Supply, 555 F.2d
340 (3d Cir. 1977). Similarly, under present Rule 12, failure to pay the
docket fee within the time prescribed may be excused by the court of
appeals. See, e. g., Walker v. Mathews, 546 F.2d 814 (9th Cir. 1976).
Proposed new Rule 3(e) adopts the view of these cases, requiring that
both fees be paid at the time the notice of appeal is filed, but subject
to the provisions of Rule 26(b) preserving the authority of the court of
appeals to permit late payment.
The amendments to Rule 3(d) are technical. No substantive change is
intended.
The amendment is technical. No substantive change is intended.
Circuits to which decisions reviewable, see section 1294 of this
title.
Final decisions of Federal district courts, jurisdiction of courts of
appeals, see section 1291 of this title.
Interlocutory decisions, jurisdiction of appeal from, see section
1292 of this title.
28 USC Rule 3.1. Appeals from Judgments Entered by Magistrates in Civil
Cases
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
When the parties consent to a trial before a magistrate pursuant to
28 U.S.C. 636(c)(1), an appeal from a judgment entered upon the
direction of a magistrate shall be heard by the court of appeals
pursuant to 28 U.S.C. 636(c)(3), unless the parties, in accordance with
28 U.S.C. 636(c)(4), consent to an appeal on the record to a judge of
the district court and thereafter, by petition only, to the court of
appeals. Appeals to the court of appeals pursuant to 28 U.S.C.
636(c)(3) shall be taken in identical fashion as appeals from other
judgments of the district court.
(As added Mar. 10, 1986, eff. July 1, 1986.)
Under the governing statute, 28 U.S.C. 636(c)(3), the judgment of a
magistrate becomes a judgment of the district court and is appealable to
the court of appeals ''as an appeal from any other judgment of a
district court.'' This provision is designed to make this point explicit
for the convenience of practitioners.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 4. Appeal as of right -- When taken
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Appeals in civil cases. -- (1) In a civil case in which an appeal
is permitted by law as of right from a district court to a court of
appeals the notice of appeal required by Rule 3 shall be filed with the
clerk of the district court within 30 days after the date of entry of
the judgment or order appealed from; but if the United States or an
officer or agency thereof is a party, the notice of appeal may be filed
by any party within 60 days after such entry. If a notice of appeal is
mistakenly filed in the court of appeals, the clerk of the court of
appeals shall note thereon the date on which it was received and
transmit it to the clerk of the district court and it shall be deemed
filed in the district court on the date so noted.
(2) Except as provided in (a)(4) of this Rule 4, a notice of appeal
filed after the announcement of a decision or order but before the entry
of the judgment or order shall be treated as filed after such entry and
on the day thereof.
(3) If a timely notice of appeal is filed by a party, any other party
may file a notice of appeal within 14 days after the date on which the
first notice of appeal was filed, or within the time otherwise
prescribed by this Rule 4(a), whichever period last expires.
(4) If a timely motion under the Federal Rules of Civil Procedure is
filed in the district court by any party: (i) for judgment under Rule
50(b); (ii) under Rule 52(b) to amend or make additional findings of
fact, whether or not an alteration of the judgment would be required if
the motion is granted; (iii) under Rule 59 to alter or amend the
judgment; or (iv) under Rule 59 for a new trial, the time for appeal
for all parties shall run from the entry of the order denying a new
trial or granting or denying any other such motion. A notice of appeal
filed before the disposition of any of the above motions shall have no
effect. A new notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the motion as provided
above. No additional fees shall be required for such filing.
(5) The district court, upon a showing of excusable neglect or good
cause, may extend the time for filing a notice of appeal upon motion
filed not later than 30 days after the expiration of the time prescribed
by this Rule 4(a). Any such motion which is filed before expiration of
the prescribed time may be ex parte unless the court otherwise requires.
Notice of any such motion which is filed after expiration of the
prescribed time shall be given to the other parties in accordance with
local rules. No such extension shall exceed 30 days past such
prescribed time or 10 days from the date of entry of the order granting
the motion, whichever occurs later.
(6) The district court, if it finds (a) that a party entitled to
notice of the entry of a judgment or order did not receive such notice
from the clerk or any party within 21 days of its entry and (b) that no
party would be prejudiced, may, upon motion filed within 180 days of
entry of the judgment or order or within 7 days of receipt of such
notice, whichever is earlier, reopen the time for appeal for a period of
14 days from the date of entry of the order reopening the time for
appeal.
(7) A judgment or order is entered within the meaning of this Rule
4(a) when it is entered in compliance with Rules 58 and 79(a) of the
Federal Rules of Civil Procedure.
(b) Appeals in criminal cases. -- In a criminal case the notice of
appeal by a defendant shall be filed in the district court within 10
days after the entry of (i) the judgment or order appealed from or (ii)
a notice of appeal by the Government. A notice of appeal filed after
the announcement of a decision, sentence or order but before entry of
the judgment or order shall be treated as filed after such entry and on
the day thereof. If a timely motion in arrest of judgment or for a new
trial on any ground other than newly discovered evidence has been made,
an appeal from a judgment of conviction may be taken within 10 days
after the entry of an order denying the motion. A motion for a new
trial based on the ground of newly discovered evidence will similarly
extend the time for appeal from a judgment of conviction if the motion
is made before or within 10 days after entry of the judgment. When an
appeal by the government is authorized by statute, the notice of appeal
shall be filed in the district court within 30 days after the entry of
(i) the judgment or order appealed from or (ii) a notice of appeal by
any defendant. A judgment or order is entered within the meaning of
this subdivision when it is entered in the criminal docket. Upon a
showing of excusable neglect the district court may, before or after the
time has expired, with or without motion and notice, extend the time for
filing a notice of appeal for a period not to exceed 30 days from the
expiration of the time otherwise prescribed by this subdivision.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Pub.
L. 100-690, title VII, 7111, 102 Stat. 4419; Apr. 30, 1991, eff. Dec.
1, 1991.)
Subdivision (a). This subdivision is derived from FRCP 73(a) without
any change of substance. The requirement that a request for an
extension of time for filing the notice of appeal made after expiration
of the time be made by motion and on notice codifies the result reached
under the present provisions of FRCP 73(a) and 6(b). North Umberland
Mining Co. v. Standard Accident Ins. Co., 193 F.2d 951 (9th Cir.,
1952); Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir.,
1962); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d
Cir., 1962).
Since this subdivision governs appeals in all civil cases, it
supersedes the provisions of section 25 of the Bankruptcy Act (11 U.S.C.
48). Except in cases to which the United States or an officer or agency
thereof is a party, the change is a minor one, since a successful
litigant in a bankruptcy proceeding may, under section 25, oblige an
aggrieved party to appeal within 30 days after entry of judgment -- the
time fixed by this subdivision in cases involving private parties only
-- by serving him with notice of entry on the day thereof, and by the
terms of section 25 an aggrieved party must in any event appeal within
40 days after entry of judgment. No reason appears why the time for
appeal in bankruptcy should not be the same as that in civil cases
generally. Furthermore, section 25 is a potential trap for the
uninitiated. The time for appeal which it provides is not applicable to
all appeals which may fairly be termed appeals in bankruptcy. Section
25 governs only those cases referred to in section 24 as ''proceedings
in bankruptcy'' and ''controversies arising in proceedings in
bankruptcy.'' Lowenstein v. Reikes, 54 F.2d 481 (2d Cir., 1931), cert.
den., 285 U.S. 539, 52 S.Ct. 311, 76 L.Ed. 932 (1932). The distinction
between such cases and other cases which arise out of bankruptcy is
often difficult to determine. See 2 Moore's Collier on Bankruptcy
24.12 through 24.36 (1962). As a result it is not always clear whether
an appeal is governed by section 25 or by FRCP 73(a), which is
applicable to such appeals in bankruptcy as are not governed by section
25.
In view of the unification of the civil and admiralty procedure
accomplished by the amendments of the Federal Rules of Civil Procedure
effective July 1, 1966, this subdivision governs appeals in those civil
actions which involve admiralty or maritime claims and which prior to
that date were known as suits in admiralty.
The only other change possibly effected by this subdivision is in the
time for appeal from a decision of a district court on a petition for
impeachment of an award of a board of arbitration under the Act of May
20, 1926, c. 347, 9 (44 Stat. 585), 45 U.S.C. 159. The act provides
that a notice of appeal from such a decision shall be filed within 10
days of the decision. This singular provision was apparently repealed
by the enactment in 1948 of 28 U.S.C. 2107, which fixed 30 days from
the date of entry of judgment as the time for appeal in all actions of a
civil nature except actions in admiralty or bankruptcy matters or those
in which the United States is a party. But it was not expressly
repealed, and its status is in doubt. See 7 Moore's Federal Practice
73.09(2) (1966). The doubt should be resolved, and no reason appears why
appeals in such cases should not be taken within the time provided for
civil cases generally.
Subdivision (b). This subdivision is derived from FRCrP 37(a)(2)
without change of substance.
Subdivision (a)(1). The words ''(including a civil action which
involves an admiralty or maritime claim and a proceeding in bankruptcy
or a controversy arising therein),'' which appear in the present rule
are struck out as unnecessary and perhaps misleading in suggesting that
there may be other categories that are not either civil or criminal
within the meaning of Rule 4(a) and (b).
The phrases ''within 30 days of such entry'' and ''within 60 days of
such entry'' have been changed to read ''after'' instead of ''or.'' The
change is for clarity only, since the word ''of'' in the present rule
appears to be used to mean ''after.'' Since the proposed amended rule
deals directly with the premature filing of a notice of appeal, it was
thought useful to emphasize the fact that except as provided, the period
during which a notice of appeal may be filed is the 30 days, or 60 days
as the case may be, following the entry of the judgment or order
appealed from. See Notes to Rule 4(a)(2) and (4), below.
Subdivision (a)(2). The proposed amendment to Rule 4(a)(2) would
extend to civil cases the provisions of Rule 4(b), dealing with criminal
cases, designed to avoid the loss of the right to appeal by filing the
notice of appeal prematurely. Despite the absence of such a provision
in Rule 4(a) the courts of appeals quite generally have held premature
appeals effective. See, e. g., Matter of Grand Jury Empanelled Jan.
21, 1975, 541 F.2d 373 (3d Cir. 1976); Hodge v. Hodge, 507 F.2d 87 (3d
Cir. 1976); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971);
Ruby v. Secretary of the Navy, 365 F.2d 385 (9th Cir. 1966); Firchau
v. Diamond Nat'l Corp., 345 F.2d 469 (9th Cir. 1965).
The proposed amended rule would recognize this practice but make an
exception in cases in which a post trial motion has destroyed the
finality of the judgment. See Note to Rule 4(a)(4) below.
Subdivision (a)(4). The proposed amendment would make it clear that
after the filing of the specified post trial motions, a notice of appeal
should await disposition of the motion. Since the proposed amendments
to Rules 3, 10, and 12 contemplate that immediately upon the filing of
the notice of appeal the fees will be paid and the case docketed in the
court of appeals, and the steps toward its disposition set in motion, it
would be undesirable to proceed with the appeal while the district court
has before it a motion the granting of which would vacate or alter the
judgment appealed from. See, e. g., Kieth v. Newcourt, 530 F.2d 826
(8th Cir. 1976). Under the present rule, since docketing may not take
place until the record is transmitted, premature filing is much less
likely to involve waste effort. See, e. g., Stokes v. Peyton's Inc.,
508 F.2d 1287 (5th Cir. 1975). Further, since a notice of appeal filed
before the disposition of a post trial motion, even if it were treated
as valid for purposes of jurisdiction, would not embrace objections to
the denial of the motion, it is obviously preferable to postpone the
notice of appeal until after the motion is disposed of.
The present rule, since it provides for the ''termination'' of the
''running'' of the appeal time, is ambiguous in its application to a
notice of appeal filed prior to a post trial motion filed within the 10
day limit. The amendment would make it clear that in such circumstances
the appellant should not proceed with the appeal during pendency of the
motion but should file a new notice of appeal after the motion is
disposed of.
Subdivision (a)(5). Under the present rule it is provided that upon
a showing of excusable neglect the district court at any time may extend
the time for the filing of a notice of appeal for a period not to exceed
30 days from the expiration of the time otherwise prescribed by the
rule, but that if the application is made after the original time has
run, the order may be made only on motion with such notice as the court
deems appropriate.
A literal reading of this provision would require that the extension
be ordered and the notice of appeal filed within the 30 day period, but
despite the surface clarity of the rule, it has produced considerable
confusion. See the discussion by Judge Friendly in In re Orbitek, 520
F.2d 358 (2d Cir. 1975). The proposed amendment would make it clear that
a motion to extend the time must be filed no later than 30 days after
the expiration of the original appeal time, and that if the motion is
timely filed the district court may act upon the motion at a later date,
and may extend the time not in excess of 10 days measured from the date
on which the order granting the motion is entered.
Under the present rule there is a possible implication that prior to
the time the initial appeal time has run, the district court may extend
the time on the basis of an informal application. The amendment would
require that the application must be made by motion, though the motion
may be made ex parte. After the expiration of the initial time a motion
for the extension of the time must be made in compliance with the
F.R.C.P. and local rules of the district court. See Note to proposed
amended Rule 1, supra. And see Rules 6(d), 7(b) of the F.R.C.P.
The proposed amended rule expands to some extent the standard for the
grant of an extension of time. The present rule requires a ''showing of
excusable neglect.'' While this was an appropriate standard in cases in
which the motion is made after the time for filing the notice of appeal
has run, and remains so, it has never fit exactly the situation in which
the appellant seeks an extension before the expiration of the initial
time. In such a case ''good cause,'' which is the standard that is
applied in the granting of other extensions of time under Rule 26(b)
seems to be more appropriate.
Subdivision (a)(6). The proposed amendment would call attention to
the requirement of Rule 58 of the F.R.C.P. that the judgment constitute
a separate document. See United States v. Indrelunas, 411 U.S. 216
(1973). When a notice of appeal is filed, the clerk should ascertain
whether any judgment designated therein has been entered in compliance
with Rules 58 and 79(a) and if not, so advise all parties and the
district judge. While the requirement of Rule 48 is not jurisdictional
(see Bankers Trust Co. v. Mallis, 431 U.S. 928 (1977)), compliance is
important since the time for the filing of a notice of appeal by other
parties is measured by the time at which the judgment is properly
entered.
The amendment provides a limited opportunity for relief in
circumstances where the notice of entry of a judgment or order, required
to be mailed by the clerk of the district court pursuant to Rule 77(d)
of the Federal Rules of Civil Procedure, is either not received by a
party or is received so late as to impair the opportunity to file a
timely notice of appeal. The amendment adds a new subdivision (6)
allowing a district court to reopen for a brief period the time for
appeal upon a finding that notice of entry of a judgment or order was
not received from the clerk or a party within 21 days of its entry and
that no party would be prejudiced. By ''prejudice'' the Committee means
some adverse consequence other than the cost of having to oppose the
appeal and encounter the risk of reversal, consequences that are present
in every appeal. Prejudice might arise, for example, if the appellee
had taken some action in reliance on the expiration of the normal time
period for filing a notice of appeal.
Reopening may be ordered only upon a motion filed within 180 days of
the entry of a judgment or order or within 7 days of receipt of notice
of such entry, whichever is earlier. This provision establishes an
outer time limit of 180 days for a party who fails to receive timely
notice of entry of a judgment to seek additional time to appeal and
enables any winning party to shorten the 180-day period by sending (and
establishing proof of receipt of) its own notice of entry of a judgment,
as authorized by Fed. R. Civ. P. 77(d). Winning parties are encouraged
to send their own notice in order to lessen the chance that a judge will
accept a claim of non-receipt in the face of evidence that notices were
sent by both the clerk and the winning party. Receipt of a winning
party's notice will shorten only the time for reopening the time for
appeal under this subdivision, leaving the normal time periods for
appeal unaffected.
If the motion is granted, the district court may reopen the time for
filing a notice of appeal only for a period of 14 days from the date of
entry of the order reopening the time for appeal.
Subd. (b). Pub. L. 100-690 inserted ''(i)'' and ''or (ii) a notice of
appeal by the Government'' in first sentence, and ''(i)'' and ''or (ii)
a notice of appeal by any defendant'' in fifth sentence.
Abatement, reviewing of rulings, see section 2105 of this title.
Amount or value in controversy affecting right to review, see section
2108 of this title.
Circuits in which decisions reviewable generally, see section 1294 of
this title.
Determination of appeal generally, see section 2106 of this title.
Final decisions of district courts reviewable by courts of appeals,
see section 1291 of this title.
Rule-making power of courts generally, see section 2071 of this
title.
Time for appeal to court of appeals, see section 2107 of this title.
28 USC Rule 5. Appeals by permission under 28 U.S.C. 1292(b)
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Petition for permission to appeal. -- An appeal from an
interlocutory order containing the statement prescribed by 28 U.S.C.
1292(b) may be sought by filing a petition for permission to appeal with
the clerk of the court of appeals within 10 days after the entry of such
order in the district court with proof of service on all other parties
to the action in the district court. An order may be amended to include
the prescribed statement at any time, and permission to appeal may be
sought within 10 days after entry of the order as amended.
(b) Content of petition; answer. -- The petition shall contain a
statement of the facts necessary to an understanding of the controlling
question of law determined by the order of the district court; a
statement of the question itself; and a statement of the reasons why a
substantial basis exists for a difference of opinion on the question and
why an immediate appeal may materially advance the termination of the
litigation. The petition shall include or have annexed thereto a copy
of the order from which appeal is sought and of any findings of fact,
conclusions of law and opinion relating thereto. Within 7 days after
service of the petition an adverse party may file an answer in
opposition. The application and answer shall be submitted without oral
argument unless otherwise ordered.
(c) Form of papers; number of copies. -- All papers may be
typewritten. Three copies shall be filed with the original, but the
court may require that additional copies be furnished.
(d) Grant of permission; cost bond; filing of record. -- Within 10
days after the entry of an order granting permission to appeal the
appellant shall (1) pay to the clerk of the district court the fees
established by statute and the docket fee prescribed by the Judicial
Conference of the United States and (2) file a bond for costs if
required pursuant to Rule 7. The clerk of the district court shall
notify the clerk of the court of appeals of the payment of the fees.
Upon receipt of such notice the clerk of the court of appeals shall
enter the appeal upon the docket. The record shall be transmitted and
filed in accordance with Rules 11 and 12(b). A notice of appeal need
not be filed.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
This rule is derived in the main from Third Circuit Rule 11(2), which
is similar to the rule governing appeals under 28 U.S.C. 1292(b) in a
majority of the circuits. The second sentence of subdivision (a)
resolves a conflict over the question of whether the district court can
amend an order by supplying the statement required by 1292(b) at any
time after entry of the order, with the result that the time fixed by
the statute commences to run on the date of entry of the order as
amended. Compare Milbert v. Bison Laboratories, 260 F.2d 431 (3d Cir.,
1958) with Sperry Rand Corporation v. Bell Telephone Laboratories, 272
F.2d (2d Cir., 1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th
Cir., 1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91
(10th Cir., 1962). The view taken by the Second, Fifth and Tenth
Circuits seems theoretically and practically sound, and the rule adopts
it. Although a majority of the circuits now require the filing of a
notice of appeal following the grant of permission to appeal, filing of
the notice serves no function other than to provide a time from which
the time for transmitting the record and docketing the appeal begins to
run.
The proposed amendment adapts to the practice in appeals from
interlocutory orders under 28 U.S.C. 1292(b) the provisions of proposed
Rule 3(e) above, requiring payment of all fees in the district court
upon the filing of the notice of appeal. See Note to proposed amended
Rule 3(e), supra.
Circuits to which decisions reviewable, see section 1294 of this
title.
28 USC Rule 5.1. Appeals by Permission Under 28 U.S.C. 636(c)(5)
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Petition for Leave to Appeal; Answer or Cross Petition. -- An
appeal from a district court judgment, entered after an appeal pursuant
to 28 U.S.C. 636(c)(4) to a judge of the district court from a judgment
entered upon direction of a magistrate in a civil case, may be sought by
filing a petition for leave to appeal. An appeal on petition for leave
to appeal is not a matter of right, but its allowance is a matter of
sound judicial discretion. The petition shall be filed with the clerk
of the court of appeals within the time provided by Rule 4(a) for filing
a notice of appeal, with proof of service on all parties to the action
in the district court. A notice of appeal need not be filed. Within 14
days after service of the petition, a party may file an answer in
opposition or a cross petition.
(b) Content of Petition; Answer. -- The petition for leave to appeal
shall contain a statement of the facts necessary to an understanding of
the questions to be presented by the appeal; a statement of those
questions and of the relief sought; a statement of the reasons why in
the opinion of the petitioner the appeal should be allowed; and a copy
of the order, decree or judgment complained of and any opinion or
memorandum relating thereto. The petition and answer shall be submitted
to a panel of judges of the court of appeals without oral argument
unless otherwise ordered.
(c) Form of Papers; Number of Copies. -- All papers may be
typewritten. Three copies shall be filed with the original, but the
court may require that additional copies be furnished.
(d) Allowance of the Appeal; Fees; Cost Bond; Filing of Record.
-- Within 10 days after the entry of an order granting the appeal, the
appellant shall (1) pay to the clerk of the district court the fees
established by statute and the docket fee prescribed by the Judicial
Conference of the United States and (2) file a bond for costs if
required pursuant to Rule 7. The clerk of the district court shall
notify the clerk of the court of appeals of the payment of the fees.
Upon receipt of such notice, the clerk of the court of appeals shall
enter the appeal upon the docket. The record shall be transmitted and
filed in accordance with Rules 11 and 12(b).
(As added Mar. 10, 1986, eff. July 1, 1986.)
When the initial appeal of a magistrate's decision is taken to the
district court, the statute provides for a second discretionary appeal
to the court of appeals. This rule provides the procedure for taking
such an appeal.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 6. Appeals in bankruptcy cases from final judgments and
orders of district courts or of bankruptcy appellate panels
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Appeal from a judgment, order or decree of a district court
exercising original jurisdiction in a bankruptcy case. -- An appeal to a
court of appeals from a final judgment, order or decree of a district
court exercising jurisdiction pursuant to 28 U.S.C. 1334 shall be taken
in identical fashion as appeals from other judgments, orders or decrees
of district courts in civil actions.
(b) Appeal from a judgment, order or decree of a district court or
bankruptcy appellate panel exercising appellate jurisdiction in a
bankruptcy case. -- (1) Applicability of other rules. All provisions of
these rules are applicable to an appeal to a court of appeals pursuant
to 28 U.S.C. 158(d) from a final judgment, order or decree of a
district court or bankruptcy appellate panel exercising appellate
jurisdiction pursuant to 28 U.S.C. 158(a) or (b), except that:
(i) Rules 3.1, 4(a)(4), 4(b), 5.1, 9, 10, 11, 12(b), 13-20, 22-23,
and 24(b) are not applicable;
(ii) the reference in Rule 3(c) to ''Form 1 in the Appendix of
Forms'' shall be read as a reference to Form 5; and
(iii) when the appeal is from a bankruptcy appellate panel, the term
''district court'' as used in any applicable rule, means ''appellate
panel''.
(2) Additional rules. In addition to the rules made applicable by
subsection (b)(1) of this rule, the following rules shall apply to an
appeal to a court of appeals pursuant to 28 U.S.C. 158(d) from a final
judgment, order or decree of a district court or of a bankruptcy
appellate panel exercising appellate jurisdiction pursuant to 28 U.S.C.
158(a) or (b):
(i) Effect of motion for rehearing on time for appeal. If a timely
motion for rehearing under Bankruptcy Rule 8015 is filed in the district
court or the bankruptcy appellate panel, the time for appeal to the
court of appeals for all parties shall run from the entry of the order
denying the rehearing or the entry of the subsequent judgment.
(ii) The record on appeal. Within 10 days after filing the notice of
appeal, the appellant shall file with the clerk possessed of the record
assembled pursuant to Bankruptcy Rule 8006, and serve on the appellee, a
statement of the issues to be presented on appeal and a designation of
the record to be certified and transmitted to the clerk of the court of
appeals. If the appellee deems other parts of the record necessary, the
appellee shall, within 10 days after service of the appellant's
designation, file with the clerk and serve on the appellant a
designation of additional parts to be included. The record,
redesignated as provided above, plus the proceedings in the district
court or bankruptcy appellate panel and a certified copy of the docket
entries prepared by the clerk pursuant to Rule 3(d) shall constitute the
record on appeal.
(iii) Transmission of the record. When the record is complete for
purpose of the appeal, the clerk of the district court or the appellate
panel, shall transmit it forthwith to the clerk of the court of appeals.
The clerk of the district court or of the appellate panel shall number
the documents comprising the record and shall transmit with the record a
list of documents correspondingly numbered and identified with
reasonable definiteness. Documents of unusual bulk or weight, physical
exhibits other than documents, and such other parts of the record as the
court of appeals may designate by local rule, shall not be transmitted
by the clerk unless the clerk is directed to do so by a party or by the
clerk of the court of appeals. A party must make advance arrangements
with the clerk for the transportation and receipt of exhibits of unusual
bulk or weight. All parties shall take any other action necessary to
enable the clerk to assemble and transmit the record. The court of
appeals may provide by rule or order that a certified copy of the docket
entries shall be transmitted in lieu of the redesignated record, subject
to the right of any party to request at any time during the pendency of
the appeal that the redesignated record be transmitted.
(iv) Filing of the record. Upon receipt of the record, the clerk of
the court of appeals shall file it and shall immediately give notice to
all parties of the date on which it was filed. Upon receipt of a
certified copy of the docket entries transmitted in lieu of the
redesignated record pursuant to rule or order, the clerk of the court of
appeals shall file it and shall immediately give notice to all parties
of the date on which it was filed.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991.)
This rule is substantially a restatement of present procedure. See
D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir. Rule 10(d); 10th Cir.
Rule 13.
Present circuit rules commonly provide that the petition for
allowance of an appeal shall be filed within the time allowed by Section
25 of the Bankruptcy Act for taking appeals of right. For the reasons
explained in the Note accompanying Rule 4, that rule makes the time for
appeal in bankruptcy cases the same as that which obtains in other civil
cases and thus supersedes Section 25. Thus the present rule simply
continues the former practice of making the time for filing the petition
in appeals by allowance the same as that provided for filing the notice
of appeal in appeals of right.
The proposed amendment adapts to the practice in appeals by allowance
in bankruptcy proceedings the provisions of proposed Rule 3(e) above,
requiring payment of all fees in the district court at the time of the
filing of the notice of appeal. See Note to Rule 3(e), supra.
A new Rule 6 is proposed. The Bankruptcy Reform Act of 1978, Pub.
L. No. 95-598, 92 Stat. 2549, the Supreme Court decision in Northern
Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50
(1982), and the Bankruptcy Amendments and Federal Judgeship Act of 1984,
Pub. L. No. 98-353, 98 Stat. 333, have made the existing Rule 6
obsolete.
Subdivision (a). Subdivision (a) provides that when a district court
exercises original jurisdiction in a bankruptcy matter, rather than
referring it to a bankruptcy judge for a final determination, the appeal
should be taken in identical fashion as appeals from district court
decisions in other civil actions. A district court exercises original
jurisdiction and this subdivision applies when the district court enters
a final order or judgment upon consideration of a bankruptcy judge's
proposed findings of fact and conclusions of law in a non-core
proceeding pursuant to 28 U.S.C. 157(c)(1) or when a district court
withdraws a proceeding pursuant to 28 U.S.C. 157(d). This subdivision
is included to avoid uncertainty arising from the question of whether a
bankruptcy case is a civil case. The rules refer at various points to
the procedure ''in a civil case'', see, e.g. Rule 4(a)(1). Subdivision
(a) makes it clear that such rules apply to an appeal from a district
court bankruptcy decision.
Subdivision (b). Subdivision (b) governs appeals that follow
intermediate review of a bankruptcy judge's decision by a district court
or a bankruptcy appellate panel.
Subdivision (b)(1). Subdivision (b)(1) provides for the general
applicability of the Federal Rules of Appellate Procedure, with
specified exceptions, to appeals covered by subdivision (b) and makes
necessary word adjustments.
Subdivision (b)(2). Paragraph (i) provides that the time for filing
a notice of appeal shall begin to run anew from the entry of an order
denying a rehearing or from the entry of a subsequent judgment. The
Committee deliberately omitted from the rule any provision governing the
validity of a notice of appeal filed prior to the entry of an order
denying a rehearing; the Committee intended to leave undisturbed the
current state of the law on that issue. Paragraph (ii) calls for a
redesignation of the appellate record assembled in the bankruptcy court
pursuant to Rule 8006 of the Rules of Bankruptcy Procedure. After an
intermediate appeal, a party may well narrow the focus of its efforts on
the second appeal and a redesignation of the record may eliminate
unnecessary material. The proceedings during the first appeal are
included to cover the possibility that independent error in the
intermediate appeal, for example failure to follow appropriate
procedures, may be assigned in the court of appeals. Paragraph (iii)
provides for the transmission of the record and tracks the appropriate
subsections of Rule 11. Paragraph (iv) provides for the filing of the
record and notices to the parties. Paragraph (ii) and Paragraph (iv)
both refer to ''a certified copy of the docket entries''. The ''docket
entries'' referred to are the docket entries in the district court or
the bankruptcy appellate panel, not the entire docket in the bankruptcy
court.
Final decisions of the district court appealable to courts of
appeals, see section 1291 of this title.
Interlocutory decisions of district courts appealable to courts of
appeals, see section 1292 of this title.
28 USC Rule 7. Bond for costs on appeal in civil cases
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
The district court may require an appellant to file a bond or provide
other security in such form and amount as it finds necessary to ensure
payment of costs on appeal in a civil case. The provisions of Rule 8(b)
apply to a surety upon a bond given pursuant to this rule.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
This rule is derived from FRCP 73(c) without change in substance.
The amendment would eliminate the provision of the present rule that
requires the appellant to file a $250 bond for costs on appeal at the
time of filing his notice of appeal. The $250 provision was carried
forward in the F.R.App.P. from former Rule 73(c) of the F.R.Civ.P., and
the $250 figure has remained unchanged since the adoption of that rule
in 1937. Today it bears no relationship to actual costs. The amended
rule would leave the question of the need for a bond for costs and its
amount in the discretion of the court.
Deposit of bonds or notes of United States in lieu of surety, see
section 9303 of Title 31, Money and Finance.
Security for damages or costs not required of the United States, see
section 2408 of this title.
28 USC Rule 8. Stay or injunction pending appeal
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Stay must ordinarily be sought in the first instance in district
court; motion for stay in court of appeals. -- Application for a stay
of the judgment or order of a district court pending appeal, or for
approval of a supersedeas bond, or for an order suspending, modifying,
restoring or granting an injunction during the pendency of an appeal
must ordinarily be made in the first instance in the district court. A
motion for such relief may be made to the court of appeals or to a judge
thereof, but the motion shall show that application to the district
court for the relief sought is not practicable, or that the district
court has denied an application, or has failed to afford the relief
which the applicant requested, with the reasons given by the district
court for its action. The motion shall also show the reasons for the
relief requested and the facts relied upon, and if the facts are subject
to dispute the motion shall be supported by affidavits or other sworn
statements or copies thereof. With the motion shall be filed such parts
of the record as are relevant. Reasonable notice of the motion shall be
given to all parties. The motion shall be filed with the clerk and
normally will be considered by a panel or division of the court, but in
exceptional cases where such procedure would be impracticable due to the
requirements of time, the application may be made to and considered by a
single judge of the court.
(b) Stay may be conditioned upon giving of bond; proceedings against
sureties. -- Relief available in the court of appeals under this rule
may be conditioned upon the filing of a bond or other appropriate
security in the district court. If security is given in the form of a
bond or stipulation or other undertaking with one or more sureties, each
surety submits to the jurisdiction of the district court and irrevocably
appoints the clerk of the district court as the surety's agent upon whom
any papers affecting the surety's liability on the bond or undertaking
may be served. A surety's liability may be enforced on motion in the
district court without the necessity of an independent action. The
motion and such notice of the motion as the district court prescribes
may be served on the clerk of the district court, who shall forthwith
mail copies to the sureties if their addresses are known.
(c) Stays in criminal cases. -- Stays in criminal cases shall be had
in accordance with the provisions of Rule 38(a) of the Federal Rules of
Criminal Procedure.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
Subdivision (a). While the power of a court of appeals to stay
proceedings in the district court during the pendency of an appeal is
not explicitly conferred by statute, it exists by virtue of the all
writs statute, 28 U.S.C. 1651. Eastern Greyhound Lines v. Fusco, 310
F.2d 632 (6th Cir., 1962); United States v. Lynd, 301 F.2d 818 (5th
Cir., 1962); Public Utilities Commission of Dist. of Col. v. Capital
Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954). And the Supreme
Court has termed the power ''inherent'' (In re McKenzie, 180 U.S. 536,
551, 21 S.Ct. 468, 45 L.Ed. 657 (1901)) and ''part of its (the court of
appeals) traditional equipment for the administration of justice.''
(Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 9-10, 62 S.Ct. 875, 86
L.Ed. 1229 (1942)). The power of a single judge of the court of appeals
to grant a stay pending appeal was recognized in In re McKenzie, supra.
Alexander v. United States, 173 F.2d 865 (9th Cir., 1949) held that a
single judge could not stay the judgment of a district court, but it
noted the absence of a rule of court authorizing the practice. FRCP
62(g) adverts to the grant of a stay by a single judge of the appellate
court. The requirement that application be first made to the district
court is the case law rule. Cumberland Tel. & Tel. Co. v. Louisiana
Public Service Commission, 260 U.S. 212, 219, 43 S.Ct. 75, 67 L.Ed. 217
(1922); United States v. El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir.,
1951); United States v. Hansell, 109 F.2d 613 (2d Cir., 1940). The
requirement is explicitly stated in FRCrP 38(c) and in the rules of the
First, Third, Fourth and Tenth Circuits. See also Supreme Court Rules
18 and 27.
The statement of the requirement in the proposed rule would work a
minor change in present practice. FRCP 73(e) requires that if a bond
for costs on appeal or a supersedeas bond is offered after the appeal is
docketed, leave to file the bond must be obtained from the court of
appeals. There appears to be no reason why matters relating to
supersedeas and cost bonds should not be initially presented to the
district court whenever they arise prior to the disposition of the
appeal. The requirement of FRCP 73(e) appears to be a concession to the
view that once an appeal is perfected, the district court loses all
power over its judgment. See In re Federal Facilities Trust, 227 F.2d
651 (7th Cir., 1955) and cases -- cited at 654-655. No reason appears
why all questions related to supersedeas or the bond for costs on appeal
should not be presented in the first instance to the district court in
the ordinary case.
Subdivision (b). The provisions respecting a surety upon a bond or
other undertaking are based upon FRCP 65.1.
The amendments to Rule 8(b) are technical. No substantive change is
intended.
Deposit of bonds or notes of the United States in lieu of surety, see
section 9303 of Title 31, Money and Finance.
Security for damages or costs not required of United States, see
section 2408 of this title.
28 USC Rule 9. Release in criminal cases
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Appeals from orders respecting release entered prior to a
judgment of conviction. -- An appeal authorized by law from an order
refusing or imposing conditions of release shall be determined promptly.
Upon entry of an order refusing or imposing conditions of release, the
district court shall state in writing the reasons for the action taken.
The appeal shall be heard without the necessity of briefs after
reasonable notice to the appellee upon such papers, affidavits, and
portions of the record as the parties shall present. The court of
appeals or a judge thereof may order the release of the appellant
pending the appeal.
(b) Release pending appeal from a judgment of conviction. --
Application for release after a judgment of conviction shall be made in
the first instance in the district court. If the district court refuses
release pending appeal, or imposes conditions of release, the court
shall state in writing the reasons for the action taken. Thereafter, if
an appeal is pending, a motion for release, or for modification of the
conditions of release, pending review may be made to the court of
appeals or to a judge thereof. The motion shall be determined promptly
upon such papers, affidavits, and portions of the record as the parties
shall present and after reasonable notice to the appellee. The court of
appeals or a judge thereof may order the release of the appellant
pending disposition of the motion.
(c) Criteria for release. -- The decision as to release pending
appeal shall be made in accordance with Title 18, U.S.C. 3143. The
burden of establishing that the defendant will not flee or pose a danger
to any other person or to the community and that the appeal is not for
purpose of delay and raises a substantial question of law or fact likely
to result in reversal or in an order for a new trial rests with the
defendant.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984, Pub.
L. 98-473, title II, 210, 98 Stat. 1987.)
Subdivision (a). The appealability of release orders entered prior
to a judgment of conviction is determined by the provisions of 18 U.S.C.
3147, as qualified by 18 U.S.C. 3148, and by the rule announced in
Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), holding
certain orders respecting release appealable as final orders under 28
U.S.C. 1291. The language of the rule, ''(an)n appeal authorized by law
from an order refusing or imposing conditions of release,'' is
intentionally broader than that used in 18 U.S.C. 3147 in describing
orders made appealable by that section. The summary procedure ordained
by the rule is intended to apply to all appeals from orders respecting
release, and it would appear that at least some orders not made
appealable by 18 U.S.C. 3147 are nevertheless appealable under the
Stack v. Boyle rationale. See, for example, United States v. Foster,
278 F.2d 567 (2d Cir., 1960), holding appealable an order refusing to
extend bail limits. Note also the provisions of 18 U.S.C. 3148, which
after withdrawing from persons charged with an offense punishable by
death and from those who have been convicted of an offense the right of
appeal granted by 18 U.S.C. 3147, expressly preserves ''other rights
to judicial review of conditions of release or orders of detention.''
The purpose of the subdivision is to insure the expeditious
determination of appeals respecting release orders, an expedition
commanded by 18 U.S.C. 3147 and by the Court in Stack v. Boyle, supra.
It permits such appeals to be heard on an informal record without the
necessity of briefs and on reasonable notice. Equally important to the
just and speedy disposition of these appeals is the requirement that the
district court state the reasons for its decision. See Jones v. United
States, 358 F.2d 543 (D.C. Cir., 1966); Rhodes v. United States, 275
F.2d 78 (4th Cir., 1960); United States v. Williams, 253 F.2d 144 (7th
Cir., 1958).
Subdivision (b). This subdivision regulates procedure for review of
an order respecting release at a time when the jurisdiction of the court
of appeals has already attached by virtue of an appeal from the judgment
of conviction. Notwithstanding the fact that jurisdiction has passed to
the court of appeals, both 18 U.S.C. 3148 and FRCrP 38(c) contemplate
that the initial determination of whether a convicted defendant is to be
released pending the appeal is to be made by the district court. But at
this point there is obviously no need for a separate appeal from the
order of the district court respecting release. The court of appeals or
a judge thereof has power to effect release on motion as an incident to
the pending appeal. See FRCrP 38(c) and 46(a)(2). But the motion is
functionally identical with the appeal regulated by subdivision (a) and
requires the same speedy determination if relief is to be effective.
Hence the similarity of the procedure outlined in the two subdivisions.
Subdivision (c) is intended to bring the rule into conformity with 18
U.S.C. 3148 and to allocate to the defendant the burden of establishing
that he will not flee and that he poses no danger to any other person or
to the community. The burden is placed upon the defendant in the view
that the fact of his conviction justifies retention in custody in
situations where doubt exists as to whether he can be safely released
pending disposition of his appeal. Release pending appeal may also be
denied if ''it appears that an appeal is frivolous or taken for delay.''
18 U.S.C. 3148. The burden of establishing the existence of these
criteria remains with the government.
Subd. (c). Pub. L. 98-473 substituted ''3143'' for ''3148'' and
inserted ''and that the appeal is not for purpose of delay and raises a
substantial question of law or fact likely to result in reversal or in
an order for a new trial'' after ''community''.
Release and detention pending judicial proceedings, see section 3141
et seq. of Title 18, Crimes and Criminal Procedure.
28 USC Rule 10. The record on appeal
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Composition of the record on appeal. -- The original papers and
exhibits filed in the district court, the transcript of proceedings, if
any, and a certified copy of the docket entries prepared by the clerk of
the district court shall constitute the record on appeal in all cases.
(b) The transcript of proceedings; duty of appellant to order;
notice to appellee if partial transcript is ordered. -- (1) Within 10
days after filing the notice of appeal the appellant shall order from
the reporter a transcript of such parts of the proceedings not already
on file as the appellant deems necessary, subject to local rules of the
courts of appeals. The order shall be in writing and within the same
period a copy shall be filed with the clerk of the district court. If
funding is to come from the United States under the Criminal Justice
Act, the order shall so state. If no such parts of the proceedings are
to be ordered, within the same period the appellant shall file a
certificate to that effect.
(2) If the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the
evidence, the appellant shall include in the record a transcript of all
evidence relevant to such finding or conclusion.
(3) Unless the entire transcript is to be included, the appellant
shall, within the 10 days time provided in (b)(1) of this Rule 10, file
a statement of the issues the appellant intends to present on the appeal
and shall serve on the appellee a copy of the order or certificate and
of the statement. If the appellee deems a transcript or other parts of
the proceedings to be necessary, the appellee shall, within 10 days
after the service of the order or certificate and the statement of the
appellant, file and serve on the appellant a designation of additional
parts to be included. Unless within 10 days after service of such
designation the appellant has ordered such parts, and has so notified
the appellee, the appellee may within the following 10 days either order
the parts or move in the district court for an order requiring the
appellant to do so.
(4) At the time of ordering, a party must make satisfactory
arrangements with the reporter for payment of the cost of the
transcript.
(c) Statement of the evidence or proceedings when no report was made
or when the transcript is unavailable. -- If no report of the evidence
or proceedings at a hearing or trial was made, or if a transcript is
unavailable, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant's
recollection. The statement shall be served on the appellee, who may
serve objections or proposed amendments thereto within 10 days after
service. Thereupon the statement and any objections or proposed
amendments shall be submitted to the district court for settlement and
approval and as settled and approved shall be included by the clerk of
the district court in the record on appeal.
(d) Agreed statement as the record on appeal. -- In lieu of the
record on appeal as defined in subdivision (a) of this rule, the parties
may prepare and sign a statement of the case showing how the issues
presented by the appeal arose and were decided in the district court and
setting forth only so many of the facts averred and proved or sought to
be proved as are essential to a decision of the issues presented. If
the statement conforms to the truth, it, together with such additions as
the court may consider necessary fully to present the issues raised by
the appeal, shall be approved by the district court and shall then be
certified to the court of appeals as the record on appeal and
transmitted thereto by the clerk of the district court within the time
provided by Rule 11. Copies of the agreed statement may be filed as the
appendix required by Rule 30.
(e) Correction or modification of the record. -- If any difference
arises as to whether the record truly discloses what occurred in the
district court, the difference shall be submitted to and settled by that
court and the record made to conform to the truth. If anything material
to either party is omitted from the record by error or accident or is
misstated therein, the parties by stipulation, or the district court,
either before or after the record is transmitted to the court of
appeals, or the court of appeals, on proper suggestion or of its own
initiative, may direct that the omission or misstatement be corrected,
and if necessary that a supplemental record be certified and
transmitted. All other questions as to the form and content of the
record shall be presented to the court of appeals.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991.)
This rule is derived from FRCP 75(a), (b), (c) and (d) and FRCP 76,
without change in substance.
The proposed amendments to Rule 10(b) would require the appellant to
place with the reporter a written order for the transcript of
proceedings and file a copy with the clerk, and to indicate on the order
if the transcript is to be provided under the Criminal Justice Act. If
the appellant does not plan to order a transcript of any of the
proceedings, he must file a certificate to that effect. These
requirements make the appellant's steps in readying the appeal a matter
of record and give the district court notice of requests for transcripts
at the expense of the United States under the Criminal Justice Act.
They are also the third step in giving the court of appeals some control
over the production and transmission of the record. See Note to Rules
3(d)(e) above and Rule 11 below.
In the event the appellant orders no transcript, or orders a
transcript of less than all the proceedings, the procedure under the
proposed amended rule remains substantially as before. The appellant
must serve on the appellee a copy of his order or in the event no order
is placed, of the certificate to that effect, and a statement of the
issues he intends to present on appeal, and the appellee may thereupon
designate additional parts of the transcript to be included, and upon
appellant's refusal to order the additional parts, may either order them
himself or seek an order requiring the appellant to order them. The
only change proposed in this procedure is to place a 10 day time limit
on motions to require the appellant to order the additional portions.
Rule 10(b) is made subject to local rules of the courts of appeals in
recognition of the practice in some circuits in some classes of cases,
e. g., appeals by indigents in criminal cases after a short trial, of
ordering immediate preparation of a complete transcript, thus making
compliance with the rule unnecessary.
The amendments to Rules 10(b) and (c) are technical. No substantive
change is intended.
Records; obsolete papers, see section 457 of this title.
Reporters' transcript of proceedings, see section 753 of this title.
28 USC Rule 11. Transmission of the record
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Duty of appellant. -- After filing the notice of appeal the
appellant, or in the event that more than one appeal is taken, each
appellant, shall comply with the provisions of Rule 10(b) and shall take
any other action necessary to enable the clerk to assemble and transmit
the record. A single record shall be transmitted.
(b) Duty of reporter to prepare and file transcript; notice to court
of appeals; duty of clerk to transmit the record. -- Upon receipt of an
order for a transcript, the reporter shall acknowledge at the foot of
the order the fact that the reporter has received it and the date on
which the reporter expects to have the transcript completed and shall
transmit the order, so endorsed, to the clerk of the court of appeals.
If the transcript cannot be completed within 30 days of receipt of the
order the reporter shall request an extension of time from the clerk of
the court of appeals and the action of the clerk of the court of appeals
shall be entered on the docket and the parties notified. In the event
of the failure of the reporter to file the transcript within the time
allowed, the clerk of the court of appeals shall notify the district
judge and take such other steps as may be directed by the court of
appeals. Upon completion of the transcript the reporter shall file it
with the clerk of the district court and shall notify the clerk of the
court of appeals that the reporter has done so.
When the record is complete for purposes of the appeal, the clerk of
the district court shall transmit it forthwith to the clerk of the court
of appeals. The clerk of the district court shall number the documents
comprising the record and shall transmit with the record a list of
documents correspondingly numbered and identified with reasonable
definiteness. Documents of unusual bulk or weight, physical exhibits
other than documents, and such other parts of the record as the court of
appeals may designate by local rule, shall not be transmitted by the
clerk unless the clerk is directed to do so by a party or by the clerk
of the court of appeals. A party must make advance arrangements with
the clerks for the transportation and receipt of exhibits of unusual
bulk or weight.
(c) Temporary retention of record in district court for use in
preparing appellate papers. -- Notwithstanding the provisions of (a) and
(b) of this Rule 11, the parties may stipulate, or the district court on
motion of any party may order, that the clerk of the district court
shall temporarily retain the record for use by the parties in preparing
appellate papers. In that event the clerk of the district court shall
certify to the clerk of the court of appeals that the record, including
the transcript or parts thereof designated for inclusion and all
necessary exhibits, is complete for purposes of the appeal. Upon
receipt of the brief of the appellee, or at such earlier time as the
parties may agree or the court may order, the appellant shall request
the clerk of the district court to transmit the record.
(d) (Extension of time for transmission of the record; reduction of
time) (Abrogated)
(e) Retention of the record in the district court by order of court.
-- The court of appeals may provide by rule or order that a certified
copy of the docket entries shall be transmitted in lieu of the entire
record, subject to the right of any party to request at any time during
the pendency of the appeal that designated parts of the record be
transmitted.
If the record or any part thereof is required in the district court
for use there pending the appeal, the district court may make an order
to that effect, and the clerk of the district court shall retain the
record or parts thereof subject to the request of the court of appeals,
and shall transmit a copy of the order and of the docket entries
together with such parts of the original record as the district court
shall allow and copies of such parts as the parties may designate.
(f) Stipulation of parties that parts of the record be retained in
the district court. -- The parties may agree by written stipulation
filed in the district court that designated parts of the record shall be
retained in the district court unless thereafter the court of appeals
shall order or any party shall request their transmittal. The parts
thus designated shall nevertheless be a part of the record on appeal for
all purposes.
(g) Record for preliminary hearing in the court of appeals. -- If
prior to the time the record is transmitted a party desires to make in
the court of appeals a motion for dismissal, for release, for a stay
pending appeal, for additional security on the bond on appeal or on a
supersedeas bond, or for any intermediate order, the clerk of the
district court at the request of any party shall transmit to the court
of appeals such parts of the original record as any party shall
designate.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
Subdivisions (a) and (b). These subdivisions are derived from FRCP
73(g) and FRCP 75(e). FRCP 75(e) presently directs the clerk of the
district court to transmit the record within the time allowed or fixed
for its filing, which, under the provisions of FRCP 73(g) is within 40
days from the date of filing the notice of appeal, unless an extension
is obtained from the district court. The precise time at which the
record must be transmitted thus depends upon the time required for
delivery of the record from the district court to the court of appeals,
since, to permit its timely filing, it must reach the court of appeals
before expiration of the 40-day period of an extension thereof.
Subdivision (a) of this rule provides that the record is to be
transmitted within the 40-day period, or any extension thereof;
subdivision (b) provides that transmission is effected when the clerk of
the district court mails or otherwise forwards the record to the clerk
of the court of appeals; Rule 12(b) directs the clerk of the court of
appeals to file the record upon its receipt following timely docketing
and transmittal. It can thus be determined with certainty precisely
when the clerk of the district court must forward the record to the
clerk of the court of appeals in order to effect timely filing: the
final day of the 40-day period or of any extension thereof.
Subdivision (c). This subdivision is derived from FRCP 75(e) without
change of substance.
Subdivision (d). This subdivision is derived from FRCP 73(g) and
FRCrP 39(c). Under present rules the district court is empowered to
extend the time for filing the record and docketing the appeal. Since
under the proposed rule timely transmission now insures timely filing
(see note to subdivisions (a) and (b) above) the power of the district
court is expressed in terms of its power to extend the time for
transmitting the record. Restriction of that power to a period of 90
days after the filing of the notice of appeal represents a change in the
rule with respect to appeals in criminal cases. FRCrP 39(c) now permits
the district court to extend the time for filing and docketing without
restriction. No good reason appears for a difference between the civil
and criminal rule in this regard, and subdivision (d) limits the power
of the district court to extend the time for transmitting the record in
all cases to 90 days from the date of filing the notice of appeal, just
as its power is now limited with respect to docketing and filing in
civil cases. Subdivision (d) makes explicit the power of the court of
appeals to permit the record to be filed at any time. See Pyramid Motor
Freight Corporation v. Ispass, 330, U.S. 695, 67 S.Ct. 954, 91 L.Ed.
1184 (1947).
Subdivisions (e), (f) and (g). These subdivisions are derived from
FRCP 75(f), (a) and (g), respectively, without change of substance.
Under present Rule 11(a) it is provided that the record shall be
transmitted to the court of appeals within 40 days after the filing of
the notice of appeal. Under present Rule 11(d) the district court, on
request made during the initial time or any extension thereof, and cause
shown, may extend the time for the transmission of the record to a point
not more than 90 days after the filing of the first notice of appeal.
If the district court is without authority to grant a request to extend
the time, or denies a request for extension, the appellant may make a
motion for extension of time in the court of appeals. Thus the duty to
see that the record is transmitted is placed on the appellant. Aside
from ordering the transcript within the time prescribed the appellant
has no control over the time at which the record is transmitted, since
all steps beyond this point are in the hands of the reporter and the
clerk. The proposed amendments recognize this fact and place the duty
directly on the reporter and the clerk. After receiving the written
order for the transcript (See Note to Rule 10(b) above), the reporter
must acknowledge its receipt, indicate when he expects to have it
completed, and mail the order so endorsed to the clerk of the court of
appeals. Requests for extensions of time must be made by the reporter
to the clerk of the court of appeals and action on such requests is
entered on the docket. Thus from the point at which the transcript is
ordered the clerk of the court of appeals is made aware of any delays.
If the transcript is not filed on time, the clerk of the court of
appeals will notify the district judge.
Present Rule 11(b) provides that the record shall be transmitted when
it is ''complete for the purposes of the appeal.'' The proposed amended
rule continues this requirement. The record is complete for the
purposes of the appeal when it contains the original papers on file in
the clerk's office, all necessary exhibits, and the transcript, if one
is to be included. Cf. present Rule 11(c). The original papers will be
in the custody of the clerk of the district court at the time the notice
of appeal is filed. See Rule 5(e) of the F.R.C.P. The custody of
exhibits is often the subject of local rules. Some of them require that
documentary exhibits must be deposited with the clerk. See Local Rule
13 of the Eastern District of Virginia. Others leave exhibits with
counsel, subject to order of the court. See Local Rule 33 of the
Northern District of Illinois. If under local rules the custody of
exhibits is left with counsel, the district court should make adequate
provision for their preservation during the time during which an appeal
may be taken, the prompt deposit with the clerk of such as under Rule
11(b) are to be transmitted to the court of appeals, and the
availability of others in the event that the court of appeals should
require their transmission. Cf. Local Rule 11 of the Second Circuit.
Usually the record will be complete with the filing of the
transcript. While the proposed amendment requires transmission
''forthwith'' when the record is complete, it was not designed to
preclude a local requirement by the court of appeals that the original
papers and exhibits be transmitted when complete without awaiting the
filing of the transcript.
The proposed amendments continue the provision in the present rule
that documents of unusual bulk or weight and physical exhibits other
than documents shall not be transmitted without direction by the parties
or by the court of appeals, and the requirement that the parties make
special arrangements for transmission and receipt of exhibits of unusual
bulk or weight. In addition, they give recognition to local rules that
make transmission of other record items subject to order of the court of
appeals. See Local Rule 4 of the Seventh Circuit.
The amendments to Rule 11(b) are technical. No substantive change is
intended.
Records: obsolete papers, see section 457 of this title.
Reporters' transcript of proceedings, see section 753 of this title.
28 USC Rule 12. Docketing the appeal; filing of the record
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Docketing the appeal. -- Upon receipt of the copy of the notice
of appeal and of the docket entries, transmitted by the clerk of the
district court pursuant to Rule 3(d), the clerk of the court of appeals
shall thereupon enter the appeal upon the docket. An appeal shall be
docketed under the title given to the action in the district court, with
the appellant identified as such, but if such title does not contain the
name of the appellant, the appellant's name, identified as appellant,
shall be added to the title.
(b) Filing the record, partial record, or certificate. -- Upon
receipt of the record transmitted pursuant to Rule 11(b), or the partial
record transmitted pursuant to Rule 11(e), (f), or (g), or the clerk's
certificate under Rule 11(c), the clerk of the court of appeals shall
file it and shall immediately give notice to all parties of the date on
which it was filed.
(c) (Dismissal for failure of appellant to cause timely transmission
or to docket appeal) (Abrogated)
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
Subdivision (a). All that is involved in the docketing of an appeal
is the payment of the docket fee. In practice, after the clerk of the
court of appeals receives the record from the clerk of the district
court he notifies the appellant of its receipt and requests payment of
the fee. Upon receipt of the fee, the clerk enters the appeal upon the
docket and files the record. The appellant is allowed to pay the fee at
any time within the time allowed or fixed for transmission of the record
and thereby to discharge his responsibility for docketing. The final
sentence is added in the interest of facilitating future reference and
citation and location of cases in indexes. Compare 3d Cir. Rule 10(2);
4th Cir. Rule 9(8); 6th Cir. Rule 14(1).
Subdivision (c). The rules of the circuits generally permit the
appellee to move for dismissal in the event the appellant fails to
effect timely filing of the record. See 1st Cir. Rule 21(3); 3d Cir.
Rule 21(4); 5th Cir. Rule 16(1); 8th Cir. Rule 7(d).
Subdivision (a). Under present Rule 12(a) the appellant must pay the
docket fee within the time fixed for the transmission of the record, and
upon timely payment of the fee, the appeal is docketed. The proposed
amendment takes the docketing out of the hands of the appellant. The
fee is paid at the time the notice of appeal is filed and the appeal is
entered on the docket upon receipt of a copy of the notice of appeal and
of the docket entries, which are sent to the court of appeals under the
provisions of Rule 3(d). This is designed to give the court of appeals
control of its docket at the earliest possible time so that within the
limits of its facilities and personnel it can screen cases for
appropriately different treatment, expedite the proceedings through
prehearing conferences or otherwise, and in general plan more
effectively for the prompt disposition of cases.
Subdivision (b). The proposed amendment conforms the provision to
the changes in Rule 11.
The amendment to Rule 12(a) is technical. No substantive change is
intended.
Power of the courts to issue writs, see section 1651 of this title.
Rule-making power generally, see section 2071 of this title.
Seal and teste of process, see section 1691 of this title.
28 USC TITLE III. REVIEW OF DECISIONS OF THE UNITED STATES TAX COURT
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 13. Review of decisions of the Tax Court
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) How obtained; time for filing notice of appeal. -- Review of a
decision of the United States Tax Court shall be obtained by filing a
notice of appeal with the clerk of the Tax Court within 90 days after
the decision of the Tax Court is entered. If a timely notice of appeal
is filed by one party, any other party may take an appeal by filing a
notice of appeal within 120 days after the decision of the Tax Court is
entered.
The running of the time for appeal is terminated as to all parties by
a timely motion to vacate or revise a decision made pursuant to the
Rules of Practice of the Tax Court. The full time for appeal commences
to run and is to be computed from the entry of an order disposing of
such motion, or from the entry of decision, whichever is later.
(b) Notice of appeal -- How filed. -- The notice of appeal may be
filed by deposit in the office of the clerk of the Tax Court in the
District of Columbia or by mail addressed to the clerk. If a notice is
delivered to the clerk by mail and is received after expiration of the
last day allowed for filing, the postmark date shall be deemed to be the
date of delivery, subject to the provisions of 7502 of the Internal
Revenue Code of 1954, as amended, and the regulations promulgated
pursuant thereto.
(c) Content of the notice of appeal; service of the notice; effect
of filing and service of the notice. -- The content of the notice of
appeal, the manner of its service, and the effect of the filing of the
notice and of its service shall be as prescribed by Rule 3. Form 2 in
the Appendix of Forms is a suggested form of the notice of appeal.
(d) The record on appeal; transmission of the record; filing of the
record. -- The provisions of Rules 10, 11 and 12 respecting the record
and the time and manner of its transmission and filing and the docketing
of the appeal in the court of appeals in cases on appeal from the
district courts shall govern in cases on appeal from the Tax Court.
Each reference in those rules and in Rule 3 to the district court and to
the clerk of the district court shall be read as a reference to the Tax
Court and to the clerk of the Tax Court respectively. If appeals are
taken from a decision of the Tax Court to more than one court of
appeals, the original record shall be transmitted to the court of
appeals named in the first notice of appeal filed. Provision for the
record in any other appeal shall be made upon appropriate application by
the appellant to the court of appeals to which such other appeal is
taken.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)
Subdivision (a). This subdivision effects two changes in practice
respecting review of Tax Court decisions: (1) Section 7483 of the
Internal Revenue Code, 68A Stat. 891, 26 U.S.C. 7483, provides that
review of a Tax Court decision may be obtained by filing a petition for
review. The subdivision provides for review by the filing of the simple
and familiar notice of appeal used to obtain review of district court
judgments; (2) Section 7483, supra, requires that a petition for review
be filed within 3 months after a decision is rendered, and provides that
if a petition is so filed by one party, any other party may file a
petition for review within 4 months after the decision is rendered. In
the interest of fixing the time for review with precision, the proposed
rule substitutes ''90 days'' and ''120 days'' for the statutory ''3
months'' and ''4 months'', respectively. The power of the Court to
regulate these details of practice is clear. Title 28 U.S.C. 2072, as
amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code
Cong. & Ad. News, p. 1546 (1966)), authorizes the Court to regulate ''.
. . practice and procedure in proceedings for the review by the courts
of appeals of decisions of the Tax Court of the United States. . . .''
The second paragraph states the settled teaching of the case law.
See Robert Louis Stevenson Apartments, Inc. v. C.I.R., 337 F.2d 681, 10
A.L.R.3d 112 (8th Cir., 1964); Denholm & McKay Co. v. C.I.R., 132 F.2d
243 (1st Cir., 1942); Helvering v. Continental Oil Co., 63 App.D.C. 5,
68 F.2d 750 (1934); Burnet v. Lexington Ice & Coal Co., 62 F.2d 906
(4th Cir., 1933); Griffiths v. C.I.R., 50 F.2d 782 (7th Cir., 1931).
Subdivision (b). The subdivision incorporates the statutory
provision (Title 26, U.S.C. 7502) that timely mailing is to be treated
as timely filing. The statute contains special provisions respecting
other than ordinary mailing. If the notice of appeal is sent by
registered mail, registration is deemed prima facie evidence that the
notice was delivered to the clerk of the Tax Court, and the date of
registration is deemed the postmark date. If the notice of appeal is
sent by certified mail, the effect of certification with respect to
prima facie evidence of delivery and the postmark date depends upon
regulations of the Secretary of the Treasury. The effect of a postmark
made other than by the United States Post Office likewise depends upon
regulations of the Secretary. Current regulations are found in 26 CFR
301.7502-1.
The proposed amendment reflects the change in the title of the Tax
Court to ''United States Tax Court.'' See 26 U.S.C. 7441.
Courts of review; jurisdiction and venue, see section 7482 of Title
26, Internal Revenue Code.
Finality of decision on mandate of Court of Appeals, see section 7481
of Title 26.
Notice of appeal, see section 7483 of Title 26.
28 USC Rule 14. Applicability of other rules to review of decisions of
the Tax Court
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
All provisions of these rules are applicable to review of a decision
of the Tax Court, except that Rules 4-9, Rules 15-20, and Rules 22 and
23 are not applicable.
The proposed rule continues the present uniform practice of the
circuits of regulating review of decisions of the Tax Court by the
general rules applicable to appeals from judgments of the district
courts.
Courts of review; jurisdiction and venue, see section 7482 of Title
26, Internal Revenue Code.
Finality of decision on mandate of court of appeals, see section 7481
of Title 26.
Notice of appeal, see section 7483 of Title 26.
Rules of practice before the United States Tax Court, see provisions
following section 7453 of Title 26.
28 USC TITLE IV. REVIEW AND ENFORCEMENT OF ORDERS OF ADMINISTRATIVE
AGENCIES, BOARDS, COMMISSIONS AND OFFICERS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 15. Review or enforcement of agency orders -- How obtained;
intervention
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Petition for review of order; joint petition. -- Review of an
order of an administrative agency, board, commission or officer
(hereinafter, the term ''agency'' shall include agency, board,
commission or officer) shall be obtained by filing with the clerk of a
court of appeals which is authorized to review such order, within the
time prescribed by law, a petition to enjoin, set aside, suspend, modify
or otherwise review, or a notice of appeal, whichever form is indicated
by the applicable statute (hereinafter, the term ''petition for review''
shall include a petition to enjoin, set aside, suspend, modify or
otherwise review, or a notice of appeal). The petition shall specify
the parties seeking review and shall designate the respondent and the
order or part thereof to be reviewed. Form 3 in the Appendix of Forms
is a suggested form of a petition for review. In each case the agency
shall be named respondent. The United States shall also be deemed a
respondent if so required by statute, even though not so designated in
the petition. If two or more persons are entitled to petition the same
court for review of the same order and their interests are such as to
make joinder practicable, they may file a joint petition for review and
may thereafter proceed as a single petitioner.
(b) Application for enforcement of order; answer; default;
cross-application for enforcement. -- An application for enforcement of
an order of an agency shall be filed with the clerk of a court of
appeals which is authorized to enforce the order. The application shall
contain a concise statement of the proceedings in which the order was
entered, the facts upon which venue is based, and the relief prayed.
Within 20 days after the application is filed, the respondent shall
serve on the petitioner and file with the clerk an answer to the
application. If the respondent fails to file an answer within such
time, judgment will be awarded for the relief prayed. If a petition is
filed for review of an order which the court has jurisdiction to
enforce, the respondent may file a cross-application for enforcement.
(c) Service of petition or application. -- A copy of a petition for
review or of an application or cross-application for enforcement of an
order shall be served by the clerk of the court of appeals on each
respondent in the manner prescribed by Rule 3(d), unless a different
manner of service is prescribed by an applicable statute. At the time
of filing, the petitioner shall furnish the clerk with a copy of the
petition or application for each respondent. At or before the time of
filing a petition for review, the petitioner shall serve a copy thereof
on all parties who shall have been admitted to participate in the
proceedings before the agency other than respondents to be served by the
clerk, and shall file with the clerk a list of those so served.
(d) Intervention. -- Unless an applicable statute provides a
different method of intervention, a person who desires to intervene in a
proceeding under this rule shall serve upon all parties to the
proceeding and file with the clerk of the court of appeals a motion for
leave to intervene. The motion shall contain a concise statement of the
interest of the moving party and the grounds upon which intervention is
sought. A motion for leave to intervene or other notice of intervention
authorized by an applicable statute shall be filed within 30 days of the
date on which the petition for review is filed.
General Note. The power of the Supreme Court to prescribe rules of
practice and procedure for the judicial review or enforcement of orders
of administrative agencies, boards, commissions, and officers is
conferred by 28 U.S.C. 2072, as amended by the Act of November 6, 1966,
1, 80 Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1966)).
Section 11 of the Hobbs Administrative Orders Review Act of 1950, 64
Stat. 1132, reenacted as 28 U.S.C. 2352 (28 U.S.C.A. 2352 (Suppl.
1966)), repealed by the Act of November 6, 1966, 4, supra, directed the
courts of appeals to adopt and promulgate, subject to approval by the
Judicial Conference rules governing practice and procedure in
proceedings to review the orders of boards, commissions and officers
whose orders were made reviewable in the courts of appeals by the Act.
Thereafter, the Judicial Conference approved a uniform rule, and that
rule, with minor variations, is now in effect in all circuits. Third
Circuit Rule 18 is a typical circuit rule, and for convenience it is
referred to as the uniform rule in the notes which accompany rules under
this Title.
Subdivision (a). The uniform rule (see General Note above) requires
that the petition for review contain ''a concise statement, in barest
outline, of the nature of the proceedings as to which relief is sought,
the facts upon which venue is based, the grounds upon which relief is
sought, and the relief prayed.'' That language is derived from Section 4
of the Hobbs Administrative Orders Review Act of 1950, 64 Stat. 1130,
reenacted as 28 U.S.C. 2344 (28 U.S.C.A. 2344 (Suppl. 1966)). A few
other statutes also prescribe the content of the petition, but the great
majority are silent on the point. The proposed rule supersedes 28
U.S.C. 2344 and other statutory provisions prescribing the form of the
petition for review and permits review to be initiated by the filing of
a simple petition similar in form to the notice of appeal used in
appeals from judgments of district courts. The more elaborate form of
petition for review now required is rarely useful either to the
litigants or to the courts. There is no effective, reasonable way of
obliging petitioners to come to the real issues before those issues are
formulated in the briefs. Other provisions of this subdivision are
derived from sections 1 and 2 of the uniform rule.
Subdivision (b). This subdivision is derived from sections 3, 4 and
5 of the uniform rule.
Subdivision (c). This subdivision is derived from section 1 of the
uniform rule.
Subdivision (d). This subdivision is based upon section 6 of the
uniform rule. Statutes occasionally permit intervention by the filing
of a notice of intention to intervene. The uniform rule does not fix a
time limit for intervention, and the only time limits fixed by statute
are the 30-day periods found in the Communications Act Amendments, 1952,
402(e), 66 Stat. 719, 47 U.S.C. 402(e), and the Sugar Act of 1948,
205(d), 61 Stat. 927, 7 U.S.C. 1115(d).
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see section 825l of Title
16, Conservation.
Federal Trade Commission, review of order, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title. and section 21 of Title 15.
Review of orders of Federal agencies, see section 2341 et seq. of
this title.
28 USC Rule 15.1. Briefs and Oral Argument in National Labor Relations
Board Proceedings
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Each party adverse to the National Labor Relations Board in an
enforcement or a review proceeding shall proceed first on briefing and
at oral argument unless the court orders otherwise.
(As added Mar. 10, 1986, eff. July 1, 1986.)
This rule simply confirms the existing practice in most circuits.
28 USC Rule 16. The record on review or enforcement
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Composition of the record. -- The order sought to be reviewed or
enforced, the findings or report on which it is based, and the
pleadings, evidence and proceedings before the agency shall constitute
the record on review in proceedings to review or enforce the order of an
agency.
(b) Omissions from or misstatements in the record. -- If anything
material to any party is omitted from the record or is misstated
therein, the parties may at any time supply the omission or correct the
misstatement by stipulation, or the court may at any time direct that
the omission or misstatement be corrected and, if necessary, that a
supplemental record be prepared and filed.
Subdivision (a) is based upon 28 U.S.C. 2112(b). There is no
distinction between the record compiled in the agency proceeding and the
record on review; they are one and the same. The record in agency
cases is thus the same as that in appeals from the district court -- the
original papers, transcripts and exhibits in the proceeding below.
Subdivision (b) is based upon section 8 of the uniform rule (see General
Note following Rule 15).
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see section 825l of Title
16, Conservation.
Federal Trade Commission, review of orders, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title. and section 21 of Title 15.
Orders of Federal agencies, see section 2341 et seq. of this title.
28 USC Rule 17. Filing of the record
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Agency to file; time for filing; notice of filing. -- The
agency shall file the record with the clerk of the court of appeals
within 40 days after service upon it of the petition for review unless a
different time is provided by the statute authorizing review. In
enforcement proceedings the agency shall file the record within 40 days
after filing an application for enforcement, but the record need not be
filed unless the respondent has filed an answer contesting enforcement
of the order, or unless the court otherwise orders. The court may
shorten or extend the time above prescribed. The clerk shall give
notice to all parties of the date on which the record is filed.
(b) Filing -- What constitutes. -- The agency may file the entire
record or such parts thereof as the parties may designate by stipulation
filed with the agency. The original papers in the agency proceeding or
certified copies thereof may be filed. Instead of filing the record or
designated parts thereof, the agency may file a certified list of all
documents, transcripts of testimony, exhibits and other material
comprising the record, or a list of such parts thereof as the parties
may designate, adequately describing each, and the filing of the
certified list shall constitute filing of the record. The parties may
stipulate that neither the record nor a certified list be filed with the
court. The stipulation shall be filed with the clerk of the court of
appeals and the date of its filing shall be deemed the date on which the
record is filed. If a certified list is filed, or if the parties
designate only parts of the record for filing or stipulate that neither
the record nor a certified list be filed, the agency shall retain the
record or parts thereof. Upon request of the court or the request of a
party, the record or any part thereof thus retained shall be transmitted
to the court notwithstanding any prior stipulation. All parts of the
record retained by the agency shall be a part of the record on review
for all purposes.
Subdivision (a). This subdivision is based upon section 7 of the
uniform rule (see General Note following Rule 15). That rule does not
prescribe a time for filing the record in enforcement cases. Forty days
are allowed in order to avoid useless preparation of the record or
certified list in cases where the application for enforcement is not
contested.
Subdivision (b). This subdivision is based upon 28 U.S.C. 2112 and
section 7 of the uniform rule. It permits the agency to file either the
record itself or a certified list of its contents. It also permits the
parties to stipulate against transmission of designated parts of the
record without the fear that an inadvertent stipulation may ''diminish''
the record. Finally, the parties may, in cases where consultation of
the record is unnecessary, stipulate that neither the record nor a
certified list of its contents be filed.
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see section 825l of Title
16, Conservation.
Federal Trade Commission, review of orders, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title and section 21 of Title 15.
Orders of Federal agencies, see section 2341 et seq. of this title.
28 USC Rule 18. Stay pending review
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Application for a stay of a decision or order of an agency pending
direct review in the court of appeals shall ordinarily be made in the
first instance to the agency. A motion for such relief may be made to
the court of appeals or to a judge thereof, but the motion shall show
that application to the agency for the relief sought is not practicable,
or that application has been made to the agency and denied, with the
reasons given by it for denial, or that the action of the agency did not
afford the relief which the applicant had requested. The motion shall
also show the reasons for the relief requested and the facts relied
upon, and if the facts are subject to dispute the motion shall be
supported by affidavits or other sworn statements or copies thereof.
With the motion shall be filed such parts of the record as are relevant
to the relief sought. Reasonable notice of the motion shall be given to
all parties to the proceeding in the court of appeals. The court may
condition relief under this rule upon the filing of a bond or other
appropriate security. The motion shall be filed with the clerk and
normally will be considered by a panel or division of the court, but in
exceptional cases where such procedure would be impracticable due to the
requirements of time, the application may be made to and considered by a
single judge of the court.
While this rule has no counterpart in present rules regulating review
of agency proceedings, it merely assimilates the procedure for obtaining
stays in agency proceedings with that for obtaining stays in appeals
from the district courts. The same considerations which justify the
requirement of an initial application to the district court for a stay
pending appeal support the requirement of an initial application to the
agency pending review. See Note accompanying Rule 8. Title 5, U.S.C.
705 (5 U.S.C.A. 705 (1966 Pamphlet)) confers general authority on both
agencies and reviewing courts to stay agency action pending review.
Many of the statutes authorizing review of agency action by the courts
of appeals deal with the question of stays, and at least one, the Act of
June 15, 1936, 49 Stat. 1499 (7 U.S.C. 10a), prohibits a stay pending
review. The proposed rule in nowise affects such statutory provisions
respecting stays. By its terms, it simply indicates the procedure to be
followed when a stay is sought.
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see section 825l of Title
16, Conservation.
Federal Trade Commission, review of orders, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title and section 21 of Title 15.
Orders of Federal agencies, see section 2341 et seq. of this title.
28 USC Rule 19. Settlement of judgments enforcing orders
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
When an opinion of the court is filed directing the entry of a
judgment enforcing in part the order of an agency, the agency shall
within 14 days thereafter serve upon the respondent and file with the
clerk a proposed judgment in conformity with the opinion. If the
respondent objects to the proposed judgment as not in conformity with
the opinion, the respondent shall within 7 days thereafter serve upon
the agency and file with the clerk a proposed judgment which the
respondent deems to be in conformity with the opinion. The court will
thereupon settle the judgment and direct its entry without further
hearing or argument.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
This is section 12 of the uniform rule (see General Note following
Rule 15) with changes in phraseology.
The deletion of the words ''in whole or'' is designed to eliminate
delay in the issuance of a judgment when the court of appeals has either
enforced completely the order of an agency or denied completely such
enforcement. In such a clear-cut situation, it serves no useful purpose
to delay the issuance of the judgment until a proposed judgment is
submitted by the agency and reviewed by the respondent. This change
conforms the Rule to the existing practice in most circuits. Other
amendments are technical and no substantive change is intended.
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see section 825l of Title
16, Conservation.
Federal Trade Commission, review of orders, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title, and section 21 of Title 15.
Orders of Federal agencies, see section 2341 et seq. of this title.
28 USC Rule 20. Applicability of other rules to review or enforcement
of agency orders
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
All provisions of these rules are applicable to review or enforcement
of orders of agencies, except that Rules 3-14 and Rules 22 and 23 are
not applicable. As used in any applicable rule, the term ''appellant''
includes a petitioner and the term ''appellee'' includes a respondent in
proceedings to review or enforce agency orders.
The proposed rule continues the present uniform practice of the
circuits of regulating agency review or enforcement proceedings by the
general rules applicable to appeals from judgments of the district
courts.
Administrative procedure, generally, see section 551 et seq. of
Title 5, Government Organization and Employees.
Federal Communications Commission, Civil Aeronautics Board and
Federal Reserve Board, review of orders, see section 21 of Title 15,
Commerce and Trade.
Federal Power Act, review of orders under, see sections 825l of Title
16, Conservation.
Federal Trade Commission, review of orders, see sections 21 and 45 of
Title 15, Commerce and Trade.
Interstate Commerce Commission, review of orders, see sections 1253
and 2321 et seq. of this title, and section 21 of Title 15.
Orders of Federal agencies, see section 2341 et seq. of this title.
28 USC TITLE V. EXTRAORDINARY WRITS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 21. Writs of mandamus and prohibition directed to a judge
or judges and other extraordinary writs
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Mandamus or prohibition to a judge or judges; petition for writ;
service and filing. -- Application for a writ of mandamus or of
prohibition directed to a judge or judges shall be made by filing a
petition therefor with the clerk of the court of appeals with proof of
service on the respondent judge or judges and on all parties to the
action in the trial court. The petition shall contain a statement of
the facts necessary to an understanding of the issues presented by the
application; a statement of the issues presented and of the relief
sought; a statement of the reasons why the writ should issue; and
copies of any order or opinion or parts of the record which may be
essential to an understanding of the matters set forth in the petition.
Upon receipt of the prescribed docket fee, the clerk shall docket the
petition and submit it to the court.
(b) Denial; order directing answer. -- If the court is of the
opinion that the writ should not be granted, it shall deny the petition.
Otherwise, it shall order that an answer to the petition be filed by
the respondents within the time fixed by the order. The order shall be
served by the clerk on the judge or judges named respondents and on all
other parties to the action in the trial court. All parties below other
than the petitioner shall also be deemed respondents for all purposes.
Two or more respondents may answer jointly. If the judge or judges
named respondents do not desire to appear in the proceeding, they may so
advise the clerk and all parties by letter, but the petition shall not
thereby be taken as admitted. The clerk shall advise the parties of the
dates on which briefs are to be filed, if briefs are required, and of
the date of oral argument. The proceeding shall be given preference
over ordinary civil cases.
(c) Other extraordinary writs. -- Application for extraordinary writs
other than those provided for in subdivisions (a) and (b) of this rule
shall be made by petition filed with the clerk of the court of appeals
with proof of service on the parties named as respondents. Proceedings
on such application shall conform, so far as is practicable, to the
procedure prescribed in subdivisions (a) and (b) of this rule.
(d) Form of papers; number of copies. -- All papers may be
typewritten. Three copies shall be filed with the original, but the
court may direct that additional copies be furnished.
The authority of courts of appeals to issue extraordinary writs is
derived from 28 U.S.C. 1651. Subdivisions (a) and (b) regulate in
detail the procedure surrounding the writs most commonly sought --
mandamus or prohibition directed to a judge or judges. Those
subdivisions are based upon Supreme Court Rule 31, with certain changes
which reflect the uniform practice among the circuits (Seventh Circuit
Rule 19 is a typical circuit rule). Subdivision (c) sets out a very
general procedure to be followed in applications for the variety of
other writs which may be issued under the authority of 28 U.S.C. 1651.
All Writs Act, see section 1651 of this title.
28 USC TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 22. Habeas corpus proceedings
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Application for the original writ. -- An application for a writ
of habeas corpus shall be made to the appropriate district court. If
application is made to a circuit judge, the application will ordinarily
be transferred to the appropriate district court. If an application is
made to or transferred to the district court and denied, renewal of the
application before a circuit judge is not favored; the proper remedy is
by appeal to the court of appeals from the order of the district court
denying the writ.
(b) Necessity of certificate of probable cause for appeal. -- In a
habeas corpus proceeding in which the detention complained of arises out
of process issued by a state court, an appeal by the applicant for the
writ may not proceed unless a district or a circuit judge issues a
certificate of probable cause. If an appeal is taken by the applicant,
the district judge who rendered the judgment shall either issue a
certificate of probable cause or state the reasons why such a
certificate should not issue. The certificate or the statement shall be
forwarded to the court of appeals with the notice of appeal and the file
of the proceedings in the district court. If the district judge has
denied the certificate, the applicant for the writ may then request
issuance of the certificate by a circuit judge. If such a request is
addressed to the court of appeals, it shall be deemed addressed to the
judges thereof and shall be considered by a circuit judge or judges as
the court deems appropriate. If no express request for a certificate is
filed, the notice of appeal shall be deemed to constitute a request
addressed to the judges of the court of appeals. If an appeal is taken
by a state or its representative, a certificate of probable cause is not
required.
Subdivision (a). Title 28 U.S.C. 2241(a) authorizes circuit judges
to issue the writ of habeas corpus. Section 2241(b), however,
authorizes a circuit judge to decline to entertain an application and to
transfer it to the appropriate district court, and this is the usual
practice. The first two sentences merely make present practice
explicit. Title 28 U.S.C. 2253 seems clearly to contemplate that once
an application is presented to a district judge and is denied by him,
the remedy is an appeal from the order of denial. But the language of
28 U.S.C. 2241 seems to authorize a second original application to a
circuit judge following a denial by a district judge. In re Gersing, 79
U.S.App.D.C. 245, 145 F.2d 481 (D.C. Cir., 1944) and Chapman v. Teets,
241 F.2d 186 (9th Cir., 1957) acknowledge the availability of such a
procedure. But the procedure is ordinarily a waste of time for all
involved, and the final sentence attempts to discourage it.
A court of appeals has no jurisdiction as a court to grant an
original writ of habeas corpus, and courts of appeals have dismissed
applications addressed to them. Loum v. Alvis, 263 F.2d 836 (6th Cir.,
1959); In re Berry, 221 F.2d 798 (9th Cir., 1955); Posey v. Dowd, 134
F.2d 613 (7th Cir., 1943). The fairer and more expeditious practice is
for the court of appeals to regard an application addressed to it as
being addressed to one of its members, and to transfer the application
to the appropriate district court in accordance with the provisions of
this rule. Perhaps such a disposition is required by the rationale of
In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956).
Subdivision (b). Title 28 U.S.C. 2253 provides that an appeal may
not be taken in a habeas corpus proceeding where confinement is under a
judgment of a state court unless the judge who rendered the order in the
habeas corpus proceeding, or a circuit justice or judge, issues a
certificate of probable cause. In the interest of insuring that the
matter of the certificate will not be overlooked and that, if the
certificate is denied, the reasons for denial in the first instance will
be available on any subsequent application, the proposed rule requires
the district judge to issue the certificate or to state reasons for its
denial.
While 28 U.S.C. 2253 does not authorize the court of appeals as a
court to grant a certificate of probable cause, In re Burwell, 350 U.S.
521, 76 S.Ct. 539, 100 L.Ed. 666 (1956) makes it clear that a court of
appeals may not decline to consider a request for the certificate
addressed to it as a court but must regard the request as made to the
judges thereof. The fourth sentence incorporates the Burwell rule.
Although 28 U.S.C. 2253 appears to require a certificate of probable
cause even when an appeal is taken by a state or its representative, the
legislative history strongly suggests that the intention of Congress was
to require a certificate only in the case in which an appeal is taken by
an applicant for the writ. See United States ex rel. Tillery v.
Cavell, 294 F.2d 12 (3d Cir., 1960). Four of the five circuits which
have ruled on the point have so interpreted section 2253. United States
ex rel. Tillery v. Cavell, supra; Buder v. Bell, 306 F.2d 71 (6th
Cir., 1962); United States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th
Cir., 1965); State of Texas v. Graves, 352 F.2d 514 (5th Cir., 1965).
Cf. United States ex rel. Carrol v. LaVallee, 342 F.2d 641 (2d Cir.,
1965). The final sentence makes it clear that a certificate of probable
cause is not required of a state or its representative.
Habeas corpus generally, see section 2241 et seq. of this title.
Suspension of habeas corpus, see Const. Art. 1, 9, cl. 2.
28 USC Rule 23. Custody of prisoners in habeas corpus proceedings
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Transfer of custody pending review. -- Pending review of a
decision in a habeas corpus proceeding commenced before a court, justice
or judge of the United States for the release of a prisoner, a person
having custody of the prisoner shall not transfer custody to another
unless such transfer is directed in accordance with the provisions of
this rule. Upon application of a custodian showing a need therefor, the
court, justice or judge rendering the decision may make an order
authorizing transfer and providing for the substitution of the successor
custodian as a party.
(b) Detention or release of prisoner pending review of decision
failing to release. -- Pending review of a decision failing or refusing
to release a prisoner in such a proceeding, the prisoner may be detained
in the custody from which release is sought, or in other appropriate
custody, or may be enlarged upon the prisoner's recognizance, with or
without surety, as may appear fitting to the court or justice or judge
rendering the decision, or to the court of appeals or to the Supreme
Court, or to a judge or justice of either court.
(c) Release of prisoner pending review of decision ordering release.
-- Pending review of a decision ordering the release of a prisoner in
such a proceeding, the prisoner shall be enlarged upon the prisoner's
recognizance, with or without surety, unless the court or justice or
judge rendering the decision, or the court of appeals or the Supreme
Court, or a judge or justice of either court shall otherwise order.
(d) Modification of initial order respecting custody. -- An initial
order respecting the custody or enlargement of the prisoner and any
recognizance or surety taken, shall govern review in the court of
appeals and in the Supreme Court unless for special reasons shown to the
court of appeals or to the Supreme Court, or to a judge or justice of
either court, the order shall be modified, or an independent order
respecting custody, enlargement or surety shall be made.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
The rule is the same as Supreme Court Rule 49, as amended on June 12,
1967, effective October 2, 1967.
The amendments to Rules 23(b) and (c) are technical. No substantive
change is intended.
Habeas corpus generally, see section 2241 et seq. of this title.
Suspension of habeas corpus, see Const. Art. 1, 9, cl. 2.
28 USC Rule 24. Proceedings in forma pauperis
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Leave to proceed on appeal in forma pauperis from district court
to court of appeals. -- A party to an action in a district court who
desires to proceed on appeal in forma pauperis shall file in the
district court a motion for leave so to proceed, together with an
affidavit, showing, in the detail prescribed by Form 4 of the Appendix
of Forms, the party's inability to pay fees and costs or to give
security therefor, the party's belief that that party is entitled to
redress, and a statement of the issues which that party intends to
present on appeal. If the motion is granted, the party may proceed
without further application to the court of appeals and without
prepayment of fees or costs in either court or the giving of security
therefor. If the motion is denied, the district court shall state in
writing the reasons for the denial.
Notwithstanding the provisions of the preceding paragraph, a party
who has been permitted to proceed in an action in the district court in
forma pauperis, or who has been permitted to proceed there as one who is
financially unable to obtain adequate defense in a criminal case, may
proceed on appeal in forma pauperis without further authorization
unless, before or after the notice of appeal is filed, the district
court shall certify that the appeal is not taken in good faith or shall
find that the party is otherwise not entitled so to proceed, in which
event the district court shall state in writing the reasons for such
certification or finding.
If a motion for leave to proceed on appeal in forma pauperis is
denied by the district court, or if the district court shall certify
that the appeal is not taken in good faith or shall find that the party
is otherwise not entitled to proceed in forma pauperis, the clerk shall
forthwith serve notice of such action. A motion for leave so to proceed
may be filed in the court of appeals within 30 days after service of
notice of the action of the district court. The motion shall be
accompanied by a copy of the affidavit filed in the district court, or
by the affidavit prescribed by the first paragraph of this subdivision
if no affidavit has been filed in the district court, and by a copy of
the statement of reasons given by the district court for its action.
(b) Leave to proceed on appeal or review in forma pauperis in
administrative agency proceedings. -- A party to a proceeding before an
administrative agency, board, commission or officer (including, for the
purpose of this rule, the United States Tax Court) who desires to
proceed on appeal or review in a court of appeals in forma pauperis,
when such appeal or review may be had directly in a court of appeals,
shall file in the court of appeals a motion for leave so to proceed,
together with the affidavit prescribed by the first paragraph of (a) of
this Rule 24.
(c) Form of briefs, appendices and other papers. -- Parties allowed
to proceed in forma pauperis may file briefs, appendices and other
papers in typewritten form, and may request that the appeal be heard on
the original record without the necessity of reproducing parts thereof
in any form.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
Subdivision (a). Authority to allow prosecution of an appeal in
forma pauperis is vested in ''(a)ny court of the United States'' by 28
U.S.C. 1915(a). The second paragraph of section 1915(a) seems to
contemplate initial application to the district court for permission to
proceed in forma pauperis, and although the circuit rules are generally
silent on the question, the case law requires initial application to the
district court. Hayes v. United States, 258 F.2d 400 (5th Cir., 1958),
cert. den. 358 U.S. 856, 79 S.Ct. 87, 3 L.Ed.2d 89 (1958); Elkins v.
United States, 250 F.2d 145 (9th Cir., 1957) see 364 U.S. 206, 80 S.Ct.
1437, 4 L.Ed.2d 1669 (1960); United States v. Farley, 238 F.2d 575 (2d
Cir., 1956) see 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957).
D.C. Cir. Rule 41(a) requires initial application to the district court.
The content of the affidavit follows the language of the statute; the
requirement of a statement of the issues comprehends the statutory
requirement of a statement of ''the nature of the . . . appeal. . . .''
The second sentence is in accord with the decision in McGann v. United
States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960). The
requirement contained in the third sentence has no counterpart in
present circuit rules, but it has been imposed by decision in at least
two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962); United
States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir., 1959).
The second paragraph permits one whose indigency has been previously
determined by the district court to proceed on appeal in forma pauperis
without the necessity of a redetermination of indigency, while reserving
to the district court its statutory authority to certify that the appeal
is not taken in good faith, 28 U.S.C. 1915(a), and permitting an
inquiry into whether the circumstances of the party who was originally
entitled to proceed in forma pauperis have changed during the course of
the litigation. Cf. Sixth Circuit Rule 26.
The final paragraph establishes a subsequent motion in the court of
appeals, rather than an appeal from the order of denial or from the
certification of lack of good faith, as the proper procedure for calling
in question the correctness of the action of the district court. The
simple and expeditious motion procedure seems clearly preferable to an
appeal. This paragraph applies only to applications for leave to appeal
in forma pauperis. The order of a district court refusing leave to
initiate an action in the district court in forma pauperis is reviewable
on appeal. See Roberts v. United States District Court, 339 U.S. 844,
70 S.Ct. 954, 94 L.Ed. 1326 (1950).
Subdivision (b). Authority to allow prosecution in forma pauperis is
vested only in a ''court of the United States'' (see Note to subdivision
(a), above). Thus in proceedings brought directly in a court of appeals
to review decisions of agencies or of the Tax Court, authority to
proceed in forma pauperis should be sought in the court of appeals. If
initial review of agency action is had in a district court, an
application to appeal to a court of appeals in forma pauperis from the
judgment of the district court is governed by the provisions of
subdivision (a).
The proposed amendment reflects the change in the title of the Tax
Court to ''United States Tax Court.'' See 26 U.S.C. 7441.
The amendments to Rule 24(a) are technical. No substantive change is
intended.
Affidavit of inability to pay fees and expenses of consuls, counsel,
interpreters and witnesses, see section 3495 of Title 18, Crimes and
Criminal Procedure.
Extradition by foreign government, witnesses for indigent fugitives,
see section 3191 of Title 18.
Fees for transcripts in criminal or habeas corpus proceedings to
persons allowed to sue, defend, or appeal in forma pauperis, payment by
United States, see section 753 of this title.
Habeas corpus proceeding, indigent petitioner entitled to documents
without cost, see section 2250 of this title.
28 USC TITLE VII. GENERAL PROVISIONS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Rule 25. Filing and service
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Filing. -- Papers required or permitted to be filed in a court of
appeals shall be filed with the clerk. Filing may be accomplished by
mail addressed to the clerk, but filing shall not be timely unless the
papers are received by the clerk within the time fixed for filing,
except that briefs and appendices shall be deemed filed on the day of
mailing if the most expeditious form of delivery by mail, excepting
special delivery, is utilized. If a motion requests relief which may be
granted by a single judge, the judge may permit the motion to be filed
with the judge, in which event the judge shall note thereon the date of
filing and shall thereafter transmit it to the clerk. A court of
appeals may, by local rule, permit papers to be filed by facsimile or
other electronic means, provided such means are authorized by and
consistent with standards established by the Judicial Conference of the
United States.
(b) Service of all papers required. -- Copies of all papers filed by
any party and not required by these rules to be served by the clerk
shall, at or before the time of filing, be served by a party or person
acting for that party on all other parties to the appeal or review.
Service on a party represented by counsel shall be made on counsel.
(c) Manner of service. -- Service may be personal or by mail.
Personal service includes delivery of the copy to a clerk or other
responsible person at the office of counsel. Service by mail is
complete on mailing.
(d) Proof of service. -- Papers presented for filing shall contain an
acknowledgment of service by the person served or proof of service in
the form of a statement of the date and manner of service and of the
names of the person served, certified by the person who made service.
Proof of service may appear on or be affixed to the papers filed. The
clerk may permit papers to be filed without acknowledgment or proof of
service but shall require such to be filed promptly thereafter.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff.
Dec. 1, 1991.)
The rule that filing is not timely unless the papers filed are
received within the time allowed is the familiar one. Ward v. Atlantic
Coast Line R.R. Co., 265 F.2d 75 (5th Cir., 1959), rev'd on other
grounds 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Kahler-Ellis
Co. v. Ohio Turnpike Commission, 225 F.2d 922 (6th Cir., 1955). An
exception is made in the case of briefs and appendices in order to
afford the parties the maximum time for their preparation. By the terms
of the exception, air mail delivery must be used whenever it is the most
expeditious manner of delivery.
A majority of the circuits now require service of all papers filed
with the clerk. The usual provision in present rules is for service on
''adverse'' parties. In view of the extreme simplicity of service by
mail, there seems to be no reason why a party who files a paper should
not be required to serve all parties to the proceeding in the court of
appeals, whether or not they may be deemed adverse. The common
requirement of proof of service is retained, but the rule permits it to
be made by simple certification, which may be endorsed on the copy which
is filed.
The amendments to Rules 25(a) and (b) are technical. No substantive
change is intended.
Subdivision (a). The amendment permits, but does not require, courts
of appeals to adopt local rules that allow filing of papers by
electronic means. However, courts of appeals cannot adopt such local
rules until the Judicial Conference of the United States authorizes
filing by facsimile or other electronic means.
Notice of motions, see rule 27.
28 USC Rule 26. Computation and extension of time
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Computation of time. -- In computing any period of time
prescribed or allowed by these rules, by an order of court, or by any
applicable statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last
day of the period so computed shall be included, unless it is a
Saturday, a Sunday, or a legal holiday, or, when the act to be done is
the filing of a paper in court, a day on which weather or other
conditions have made the office of the clerk of the court inaccessible,
in which event the period runs until the end of the next day which is
not one of the aforementioned days. When the period of time prescribed
or allowed is less than 7 days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation. As used in this
rule ''legal holiday'' includes New Year's Day, Birthday of Martin
Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day,
and any other day appointed as a holiday by the President or the
Congress of the United States. It shall also include a day appointed as
a holiday by the state wherein the district court which rendered the
judgment or order which is or may be appealed from is situated, or by
the state wherein the principal office of the clerk of the court of
appeals in which the appeal is pending is located.
(b) Enlargement of time. -- The court for good cause shown may upon
motion enlarge the time prescribed by these rules or by its order for
doing any act, or may permit an act to be done after the expiration of
such time; but the court may not enlarge the time for filing a notice
of appeal, a petition for allowance, or a petition for permission to
appeal. Nor may the court enlarge the time prescribed by law for filing
a petition to enjoin, set aside, suspend, modify, enforce or otherwise
review, or a notice of appeal from, an order of an administrative
agency, board, commission or officer of the United States, except as
specifically authorized by law.
(c) Additional time after service by mail. -- Whenever a party is
required or permitted to do an act within a prescribed period after
service of a paper upon that party and the paper is served by mail, 3
days shall be added to the prescribed period.
(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff.
Dec. 1, 1991.)
The provisions of this rule are based upon FRCP 6(a), (b) and (e).
See also Supreme Court Rule 34 and FRCrP 45. Unlike FRCP 6(b), this
rule, read with Rule 27, requires that every request for enlargement of
time be made by motion, with proof of service on all parties. This is
the simplest, most convenient way of keeping all parties advised of
developments. By the terms of Rule 27(b) a motion for enlargement of
time under Rule 26(b) may be entertained and acted upon immediately,
subject to the right of any party to seek reconsideration. Thus the
requirement of motion and notice will not delay the granting of relief
of a kind which a court is inclined to grant as of course.
Specifically, if a court is of the view that an extension of time sought
before expiration of the period originally prescribed or as extended by
a previous order ought to be granted in effect ex parte, as FRCP 6(b)
permits, it may grant motions seeking such relief without delay.
The amendment adds Columbus Day to the list of legal holidays to
conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,
which constituted Columbus Day a legal holiday effective after January
1, 1971.
The Act, which amended Title 5, U.S.C. 6103(a), changes the day on
which certain holidays are to be observed. Washington's Birthday,
Memorial Day and Veterans Day are to be observed on the third Monday in
February, the last Monday in May and the fourth Monday in October,
respectively, rather than, as heretofore, on February 22, May 30, and
November 11, respectively. Columbus Day is to be observed on the second
Monday in October. New Year's Day, Independence Day, Thanksgiving Day
and Christmas continue to be observed on the traditional days.
The Birthday of Martin Luther King, Jr., is added to the list of
national holidays in Rule 26(a). The amendment to Rule 26(c) is
technical. No substantive change is intended.
The proposed amendment brings Rule 26(a) into conformity with the
provisions of Rule 6(a) of the Rules of Civil Procedure, Rule 45(a) of
the Rules of Criminal Procedure, and Rule 9006(a) of the Rules of
Bankruptcy Procedure which allow additional time for filing whenever a
clerk's office is inaccessible on the last day for filing due to weather
or other conditions.
Time to appeal to courts of appeal, see section 2107 of this title.
28 USC Rule 26.1. Corporate disclosure statement
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Any non-governmental corporate party to a civil or bankruptcy case or
agency review proceeding and any non-governmental corporate defendant in
a criminal case shall file a statement identifying all parent companies,
subsidiaries (except wholly-owned subsidiaries), and affiliates that
have issued shares to the public. The statement shall be filed with a
party's principal brief or upon filing a motion, response, petition, or
answer in the court of appeals, whichever first occurs, unless a local
rule requires earlier filing. The statement shall be included in front
of the table of contents in a party's principal brief even if the
statement was previously filed.
(As added Apr. 25, 1989, eff. Dec. 1, 1989; and amended Apr. 30,
1991, eff. Dec. 1, 1991.)
The purpose of this rule is to assist judges in making a
determination of whether they have any interests in any of a party's
related corporate entities that would disqualify the judges from hearing
the appeal. The committee believes that this rule represents minimum
disclosure requirements. If a Court of Appeals wishes to require
additional information, a court is free to do so by local rule.
However, the committee requests the courts to consider the desirability
of uniformity and the burden that varying circuit rules creates on
attorneys who practice in many circuits.
28 USC Rule 27. Motions
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Content of motions; response. -- Unless another form is
elsewhere prescribed by these rules, an application for an order or
other relief shall be made by filing a motion for such order or relief
with proof of service on all other parties. The motion shall contain or
be accompanied by any matter required by a specific provision of these
rules governing such a motion, shall state with particularity the
grounds on which it is based, and shall set forth the order or relief
sought. If a motion is supported by briefs, affidavits or other papers,
they shall be served and filed with the motion. Any party may file a
response in opposition to a motion other than one for a procedural order
(for which see subdivision (b)) within 7 days after service of the
motion, but motions authorized by Rules 8, 9, 18 and 41 may be acted
upon after reasonable notice, and the court may shorten or extend the
time for responding to any motion.
(b) Determination of motions for procedural orders. --
Notwithstanding the provisions of (a) of this Rule 27 as to motions
generally, motions for procedural orders, including any motion under
Rule 26(b), may be acted upon at any time, without awaiting a response
thereto, and pursuant to rule or order of the court, motions for
specified types of procedural orders may be disposed of by the clerk.
Any party adversely affected by such action may by application to the
court request consideration, vacation or modification of such action.
(c) Power of a single judge to entertain motions. -- In addition to
the authority expressly conferred by these rules or by law, a single
judge of a court of appeals may entertain and may grant or deny any
request for relief which under these rules may properly be sought by
motion, except that a single judge may not dismiss or otherwise
determine an appeal or other proceeding, and except that a court of
appeals may provide by order or rule that any motion or class of motions
must be acted upon by the court. The action of a single judge may be
reviewed by the court.
(d) Form of papers; number of copies. -- All papers relating to
motions may be typewritten. Three copies shall be filed with the
original, but the court may require that additional copies be furnished.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
Dec. 1, 1989.)
Subdivisions (a) and (b). Many motions seek relief of a sort which
is ordinarily unopposed or which is granted as of course. The provision
of subdivision (a) which permits any party to file a response in
opposition to a motion within 7 days after its service upon him assumes
that the motion is one of substance which ought not be acted upon
without affording affected parties an opportunity to reply. A motion to
dismiss or otherwise determine an appeal is clearly such a motion.
Motions authorized by Rules 8, 9, 18 and 41 are likewise motions of
substance; but in the nature of the relief sought, to afford an
adversary an automatic delay of at least 7 days is undesirable, thus
such motions may be acted upon after notice which is reasonable under
the circumstances.
The term ''motions for procedural orders'' is used in subdivision (b)
to describe motions which do not substantially affect the rights of the
parties or the ultimate disposition of the appeal. To prevent delay in
the disposition of such motions, subdivision (b) provides that they may
be acted upon immediately without awaiting a response, subject to the
right of any party who is adversely affected by the action to seek
reconsideration.
Subdivision (c). Within the general consideration of procedure on
motions is the problem of the power of a single circuit judge. Certain
powers are granted to a single judge of a court of appeals by statute.
Thus, under 28 U.S.C. 2101(f) a single judge may stay execution and
enforcement of a judgment to enable a party aggrieved to obtain
certiorari; under 28 U.S.C. 2251 a judge before whom a habeas corpus
proceeding involving a person detained by state authority is pending may
stay any proceeding against the person; under 28 U.S.C. 2253 a single
judge may issue a certificate of probable cause. In addition, certain
of these rules expressly grant power to a single judge. See Rules 8, 9
and 18.
This subdivision empowers a single circuit judge to act upon
virtually all requests for intermediate relief which may be made during
the course of an appeal or other proceeding. By its terms he may
entertain and act upon any motion other than a motion to dismiss or
otherwise determine an appeal or other proceeding. But the relief
sought must be ''relief which under these rules may properly be sought
by motion.''
Examples of the power conferred on a single judge by this subdivision
are: to extend the time for transmitting the record or docketing the
appeal (Rules 11 and 12); to permit intervention in agency cases (Rule
15), or substitution in any case (Rule 43); to permit an appeal in
forma pauperis (Rule 24); to enlarge any time period fixed by the rules
other than that for initiating a proceeding in the court of appeals
(Rule 26(b)); to permit the filing of a brief by amicus curiae (Rule
29); to authorize the filing of a deferred appendix (Rule 30(c)), or
dispense with the requirement of an appendix in a specific case (Rule
30(f)), or permit carbon copies of briefs or appendices to be used (Rule
32(a)); to permit the filing of additional briefs (Rule 28(c)), or the
filing of briefs of extraordinary length (Rule 28(g)); to postpone oral
argument (Rule 34(a)), or grant additional time therefor (Rule 34(b)).
Certain rules require that application for the relief or orders which
they authorize be made by petition. Since relief under those rules may
not properly be sought by motion, a single judge may not entertain
requests for such relief. Thus a single judge may not act upon requests
for permission to appeal (see Rules 5 and 6); or for mandamus or other
extraordinary writs (see Rule 21), other than for stays or injunctions
pendente lite, authority to grant which is ''expressly conferred by
these rules'' on a single judge under certain circumstances (see Rules 8
and 18); or upon petitions for rehearing (see Rule 40).
A court of appeals may by order or rule abridge the power of a single
judge if it is of the view that a motion or a class of motions should be
disposed of by a panel. Exercise of any power granted a single judge is
discretionary with the judge. The final sentence in this subdivision
makes the disposition of any matter by a single judge subject to review
by the court.
The proposed amendment would give sanction to local rules in a number
of circuits permitting the clerk to dispose of specified types of
procedural motions.
The amendment is technical. No substantive change is intended.
Admission of attorneys to bar, see rule 46.
Dismissal of appeal on motion, see rule 42.
Postponement of argument, see rule 34.
28 USC Rule 28. Briefs
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Brief of the appellant. -- The brief of the appellant shall
contain under appropriate headings and in the order here indicated:
(1) A table of contents, with page references, and a table of cases
(alphabetically arranged), statutes and other authorities cited, with
references to the pages of the brief where they are cited.
(2) A statement of subject matter and appellate jurisdiction. The
statement shall include: (i) a statement of the basis for subject
matter jurisdiction in the district court or agency, with citation to
applicable statutory provisions and with reference to the relevant facts
to establish such jurisdiction; (ii) a statement of the basis for
jurisdiction in the court of appeals, with citation to applicable
statutory provisions and with reference to the relevant facts to
establish such jurisdiction; the statement shall include relevant
filing dates establishing the timeliness of the appeal or petition for
review and (a) shall state that the appeal is from a final order or a
final judgment that disposes of all claims with respect to all parties
or, if not, (b) shall include information establishing that the court of
appeals has jurisdiction on some other basis.
(3) A statement of the issues presented for review.
(4) A statement of the case. The statement shall first indicate
briefly the nature of the case, the course of proceedings, and its
disposition in the court below. There shall follow a statement of the
facts relevant to the issues presented for review, with appropriate
references to the record (see subdivision (e)).
(5) An argument. The argument may be preceded by a summary. The
argument shall contain the contentions of the appellant with respect to
the issues presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.
(6) A short conclusion stating the precise relief sought.
(b) Brief of the appellee. -- The brief of the appellee shall conform
to the requirements of subdivisions (a)(1)-(5), except that a statement
of jurisdiction, of the issues, or of the case need not be made unless
the appellee is dissatisfied with the statement of the appellant.
(c) Reply brief. -- The appellant may file a brief in reply to the
brief of the appellee, and if the appellee has cross-appealed, the
appellee may file a brief in reply to the response of the appellant to
the issues presented by the cross appeal. No further briefs may be
filed except with leave of court. All reply briefs shall contain a
table of contents, with page references, and a table of cases
(alphabetically arranged), statutes and other authorities cited, with
references to the pages of the reply brief where they are cited.
(d) References in briefs to parties. -- Counsel will be expected in
their briefs and oral arguments to keep to a minimum references to
parties by such designations as ''appellant'' and ''appellee''. It
promotes clarity to use the designations used in the lower court or in
the agency proceedings, or the actual names of parties, or descriptive
terms such as ''the employee,'' ''the injured person,'' ''the
taxpayer,'' ''the ship,'' ''the stevedore,'' etc.
(e) References in briefs to the record. -- References in the briefs
to parts of the record reproduced in the appendix filed with the brief
of the appellant (see Rule 30(a)) shall be to the pages of the appendix
at which those parts appear. If the appendix is prepared after the
briefs are filed, references in the briefs to the record shall be made
by one of the methods allowed by Rule 30(c). If the record is
reproduced in accordance with the provisions of Rule 30(f), or if
references are made in the briefs to parts of the record not reproduced,
the references shall be to the pages of the parts of the record
involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p.
231. Intelligible abbreviations may be used. If reference is made to
evidence the admissibility of which is in controversy, reference shall
be made to the pages of the appendix or of the transcript at which the
evidence was identified, offered, and received or rejected.
(f) Reproduction of statutes, rules, regulations, etc. -- If
determination of the issues presented requires the study of statutes,
rules, regulations, etc. or relevant parts thereof, they shall be
reproduced in the brief or in an addendum at the end, or they may be
supplied to the court in pamphlet form.
(g) Length of briefs. -- Except by permission of the court, or as
specified by local rule of the court of appeals, principal briefs shall
not exceed 50 pages, and reply briefs shall not exceed 25 pages,
exclusive of pages containing the corporate disclosure statement, table
of contents, tables of citations and any addendum containing statutes,
rules, regulations, etc.
(h) Briefs in cases involving cross appeals. -- If a cross appeal is
filed, the party who first files a notice of appeal, or in the event
that the notices are filed on the same day, the plaintiff in the
proceeding below shall be deemed the appellant for the purposes of this
rule and Rules 30 and 31, unless the parties otherwise agree or the
court otherwise orders. The brief of the appellee shall conform to the
requirements of subdivision (a)(1)-(6) of this rule with respect to the
appellee's cross appeal as well as respond to the brief of the appellant
except that a statement of the case need not be made unless the appellee
is dissatisfied with the statement of the appellant.
(i) Briefs in cases involving multiple appellants or appellees. -- In
cases involving more than one appellant or appellee, including cases
consolidated for purposes of the appeal, any number of either may join
in a single brief, and any appellant or appellee may adopt by reference
any part of the brief of another. Parties may similarly join in reply
briefs.
(j) Citation of supplemental authorities. -- When pertinent and
significant authorities come to the attention of a party after the
party's brief has been filed, or after oral argument but before
decision, a party may promptly advise the clerk of the court, by letter,
with a copy to all counsel, setting forth the citations. There shall be
a reference either to the page of the brief or to a point argued orally
to which the citations pertain, but the letter shall without argument
state the reasons for the supplemental citations. Any response shall be
made promptly and shall be similarly limited.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff.
Dec. 1, 1991.)
This rule is based upon Supreme Court Rule 40. For variations in
present circuit rules on briefs see 2d Cir. Rule 17, 3d Cir. Rule 24,
5th Cir. Rule 24, and 7th Cir. Rule 17. All circuits now limit the
number of pages of briefs, a majority limiting the brief to 50 pages of
standard typographic printing. Fifty pages of standard typographic
printing is the approximate equivalent of 70 pages of typewritten text,
given the page sizes required by Rule 32 and the requirement set out
there that text produced by a method other than standard typographic
must be double spaced.
The proposed amendment eliminates the distinction appearing in the
present rule between the permissible length in pages of printed and
typewritten briefs, investigation of the matter having disclosed that
the number of words on the printed page is little if any larger than the
number on a page typed in standard elite type.
The provision is made subject to local rule to permit the court of
appeals to require that typewritten briefs be typed in larger type and
permit a correspondingly larger number of pages.
Subdivision (j). Proposed new Rule 28(j) makes provision for calling
the court's attention to authorities that come to the party's attention
after the brief has been filed. It is patterned after the practice
under local rule in some of the circuits.
While Rule 28(g) can be read as requiring that tables of authorities
be included in a reply brief, such tables are often not included. Their
absence impedes efficient use of the reply brief to ascertain the
appellant's response to a particular argument of the appellee or to the
appellee's use of a particular authority. The amendment to Rule 28(c)
is intended to make it clear that such tables are required in reply
briefs.
The amendment to Rule 28(j) is technical. No substantive change is
intended.
The amendment provides that the corporate disclosure statement
required by new rule 26.1 shall be treated similarly to tables of
contents and tables of citations and shall not be counted for purposes
of the number of pages allowed in a brief.
Subdivision (a). The amendment adds a new subparagraph (2) that
requires an appellant to include a specific jurisdictional statement in
the appellant's brief to aid the court of appeals in determining whether
it has both federal subject matter and appellate jurisdiction.
Subdivision (b). The amendment requires the appellee to include a
jurisdictional statement in the appellee's brief except that the
appellee need not include the statement if the appellee is satisfied
with the appellant's jurisdictional statement.
Subdivision (h). The amendment provides that when more than one
party appeals from a judgment or order, the party filing the first
appeal is normally treated as the appellant for purposes of this rule
and Rules 30 and 31. The party who first files an appeal usually is the
principal appellant and should be treated as such. Parties who file a
notice of appeal after the first notice often bring protective appeals
and they should be treated as cross appellants. Local rules in the
Fourth and Federal Circuits now take that approach. If notices of
appeal are filed on the same day, the rule follows the old approach of
treating the plaintiff below as the appellant. For purposes of this
rule, in criminal cases ''the plaintiff'' means the United States. In
those instances where the designations provided by the rule are
inappropriate, they may be altered by agreement of the parties or by an
order of the court.
Harmless error, see section 2111 of this title.
28 USC Rule 29. Brief of an amicus curiae
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
A brief of an amicus curiae may be filed only if accompanied by
written consent of all parties, or by leave of court granted on motion
or at the request of the court, except that consent or leave shall not
be required when the brief is presented by the United States or an
officer or agency thereof, or by a State, Territory or Commonwealth.
The brief may be conditionally filed with the motion for leave. A
motion for leave shall identify the interest of the applicant and shall
state the reasons why a brief of an amicus curiae is desirable. Save as
all parties otherwise consent, any amicus curiae shall file its brief
within the time allowed the party whose position as to affirmance or
reversal the amicus brief will support unless the court for cause shown
shall grant leave for later filing, in which event it shall specify
within what period an opposing party may answer. A motion of an amicus
curiae to participate in the oral argument will be granted only for
extraordinary reasons.
Only five circuits presently regulate the filing of the brief of an
amicus curiae. See D.C. Cir. Rule 18(j); 1st Cir. Rule 23(10); 6th
Cir. Rule 17(4); 9th Cir. Rule 18(9); 10th Cir. Rule 20. This rule
follows the practice of a majority of circuits in requiring leave of
court to file an amicus brief except under the circumstances stated
therein. Compare Supreme Court Rule 42.
Rule-making power generally, see section 2071 of this title.
28 USC Rule 30. Appendix to the briefs
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Duty of appellant to prepare and file; content of appendix;
time for filing; number of copies. -- The appellant shall prepare and
file an appendix to the briefs which shall contain: (1) the relevant
docket entries in the proceeding below; (2) any relevant portions of
the pleadings, charge, findings or opinion; (3) the judgment, order or
decision in question; and (4) any other parts of the record to which
the parties wish to direct the particular attention of the court.
Except where they have independent relevance, memoranda of law in the
district court should not be included in the appendix. The fact that
parts of the record are not included in the appendix shall not prevent
the parties or the court from relying on such parts.
Unless filing is to be deferred pursuant to the provisions of
subdivision (c) of this rule, the appellant shall serve and file the
appendix with the brief. Ten copies of the appendix shall be filed with
the clerk, and one copy shall be served on counsel for each party
separately represented, unless the court shall by rule or order direct
the filing or service of a lesser number.
(b) Determination of contents of appendix; cost of producing. -- The
parties are encouraged to agree as to the contents of the appendix. In
the absence of agreement, the appellant shall, not later than 10 days
after the date on which the record is filed, serve on the appellee a
designation of the parts of the record which the appellant intends to
include in the appendix and a statement of the issues which the
appellant intends to present for review. If the appellee deems it
necessary to direct the particular attention of the court to parts of
the record not designated by the appellant, the appellee shall, within
10 days after receipt of the designation, serve upon the appellant a
designation of those parts. The appellant shall include in the appendix
the parts thus designated with respect to the appeal and any cross
appeal. In designating parts of the record for inclusion in the
appendix, the parties shall have regard for the fact that the entire
record is always available to the court for reference and examination
and shall not engage in unnecessary designation. The provisions of this
paragraph shall apply to cross appellants and cross appellees.
Unless the parties otherwise agree, the cost of producing the
appendix shall initially be paid by the appellant, but if the appellant
considers that parts of the record designated by the appellee for
inclusion are unnecessary for the determination of the issues presented
the appellant may so advise the appellee and the appellee shall advance
the cost of including such parts. The cost of producing the appendix
shall be taxed as costs in the case, but if either party shall cause
matters to be included in the appendix unnecessarily the court may
impose the cost of producing such parts on the party. Each circuit
shall provide by local rule for the imposition of sanctions against
attorneys who unreasonably and vexatiously increase the costs of
litigation through the inclusion of unnecessary material in the
appendix.
(c) Alternative method of designating contents of the appendix; how
references to the record may be made in the briefs when alternative
method is used. -- If the court shall so provide by rule for classes of
cases or by order in specific cases, preparation of the appendix may be
deferred until after the briefs have been filed, and the appendix may be
filed 21 days after service of the brief of the appellee. If the
preparation and filing of the appendix is thus deferred, the provisions
of subdivision (b) of this Rule 30 shall apply, except that the
designations referred to therein shall be made by each party at the time
each brief is served, and a statement of the issues presented shall be
unnecessary.
If the deferred appendix authorized by this subdivision is employed,
references in the briefs to the record may be to the pages of the parts
of the record involved, in which event the original paging of each part
of the record shall be indicated in the appendix by placing in brackets
the number of each page at the place in the appendix where that page
begins. Or if a party desires to refer in a brief directly to pages of
the appendix, that party may serve and file typewritten or page proof
copies of the brief within the time required by Rule 31(a), with
appropriate references to the pages of the parts of the record involved.
In that event, within 14 days after the appendix is filed the party
shall serve and file copies of the brief in the form prescribed by Rule
32(a) containing references to the pages of the appendix in place of or
in addition to the initial references to the pages of the parts of the
record involved. No other changes may be made in the brief as initially
served and filed, except that typographical errors may be corrected.
(d) Arrangement of the appendix. -- At the beginning of the appendix
there shall be inserted a list of the parts of the record which it
contains, in the order in which the parts are set out therein, with
references to the pages of the appendix at which each part begins. The
relevant docket entries shall be set out following the list of contents.
Thereafter, other parts of the record shall be set out in chronological
order. When matter contained in the reporter's transcript of
proceedings is set out in the appendix, the page of the transcript at
which such matter may be found shall be indicated in brackets
immediately before the matter which is set out. Omissions in the text
of papers or of the transcript must be indicated by asterisks.
Immaterial formal matters (captions, subscriptions, acknowledgments,
etc.) shall be omitted. A question and its answer may be contained in a
single paragraph.
(e) Reproduction of exhibits. -- Exhibits designated for inclusion in
the appendix may be contained in a separate volume, or volumes, suitably
indexed. Four copies thereof shall be filed with the appendix and one
copy shall be served on counsel for each party separately represented.
The transcript of a proceeding before an administrative agency, board,
commission or officer used in an action in the district court shall be
regarded as an exhibit for the purpose of this subdivision.
(f) Hearing of appeals on the original record without the necessity
of an appendix. -- A court of appeals may by rule applicable to all
cases, or to classes of cases, or by order in specific cases, dispense
with the requirement of an appendix and permit appeals to be heard on
the original record, with such copies of the record, or relevant parts
thereof, as the court may require.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991.)
Subdivision (a). Only two circuits presently require a printed
record (5th Cir. Rule 23(a); 8th Cir. Rule 10 (in civil appeals only)),
and the rules and practice in those circuits combine to make the
difference between a printed record and the appendix, which is now used
in eight circuits and in the Supreme Court in lieu of the printed
record, largely nominal. The essential characteristics of the appendix
method are: (1) the entire record may not be reproduced; (2) instead,
the parties are to set out in an appendix to the briefs those parts of
the record which in their judgment the judges must consult in order to
determine the issues presented by the appeal; (3) the appendix is not
the record but merely a selection therefrom for the convenience of the
judges of the court of appeals; the record is the actual trial court
record, and the record itself is always available to supply inadvertent
omissions from the appendix. These essentials are incorporated, either
by rule or by practice, in the circuits that continue to require the
printed record rather than the appendix. See 5th Cir. Rule 23(a)(9)
and 8th Cir. Rule 10(a)-(d).
Subdivision (b). Under the practice in six of the eight circuits
which now use the appendix method, unless the parties agree to use a
single appendix, the appellant files with his brief an appendix
containing the parts of the record which he deems it essential that the
court read in order to determine the questions presented. If the
appellee deems additional parts of the record necessary he must include
such parts as an appendix to his brief. The proposed rules differ from
that practice. By the new rule a single appendix is to be filed. It is
to be prepared by the appellant, who must include therein those parts
which he deems essential and those which the appellee designates as
essential.
Under the practice by which each party files his own appendix the
resulting reproduction of essential parts of the record is often
fragmentary; it is not infrequently necessary to piece several
appendices together to arrive at a usable reproduction. Too, there
seems to be a tendency on the part of some appellants to reproduce less
than what is necessary for a determination of the issues presented (see
Moran Towing Corp. v. M. A. Gammino Construction Co., 363 F.2d 108 (1st
Cir. 1966); Walters v. Shari Music Publishing Corp., 298 F.2d 206 (2d
Cir. 1962) and cases cited therein; Morrison v. Texas Co., 289 F.2d 382
(7th Cir. 1961) and cases cited therein), a tendency which is doubtless
encouraged by the requirement in present rules that the appellee
reproduce in his separately prepared appendix such necessary parts of
the record as are not included by the appellant.
Under the proposed rule responsibility for the preparation of the
appendix is placed on the appellant. If the appellee feels that the
appellant has omitted essential portions of the record, he may require
the appellant to include such portions in the appendix. The appellant
is protected against a demand that he reproduce parts which he considers
unnecessary by the provisions entitling him to require the appellee to
advance the costs of reproducing such parts and authorizing denial of
costs for matter unnecessarily reproduced.
Subdivision (c). This subdivision permits the appellant to elect to
defer the production of the appendix to the briefs until the briefs of
both sides are written, and authorizes a court of appeals to require
such deferred filing by rule or order. The advantage of this method of
preparing the appendix is that it permits the parties to determine what
parts of the record need to be reproduced in the light of the issues
actually presented by the briefs. Often neither side is in a position
to say precisely what is needed until the briefs are completed. Once
the argument on both sides is known, it should be possible to confine
the matter reproduced in the appendix to that which is essential to a
determination of the appeal or review. This method of preparing the
appendix is presently in use in the Tenth Circuit (Rule 17) and in other
circuits in review of agency proceedings, and it has proven its value in
reducing the volume required to be reproduced. When the record is long,
use of this method is likely to result in substantial economy to the
parties.
Subdivision (e). The purpose of this subdivision is to reduce the
cost of reproducing exhibits. While subdivision (a) requires that 10
copies of the appendix be filed, unless the court requires a lesser
number, subdivision (e) permits exhibits necessary for the determination
of an appeal to be bound separately, and requires only 4 copies of such
a separate volume or volumes to be filed and a single copy to be served
on counsel.
Subdivision (f). This subdivision authorizes a court of appeals to
dispense with the appendix method of reproducing parts of the record and
to hear appeals on the original record and such copies of it as the
court may require.
Since 1962 the Ninth Circuit has permitted all appeals to be heard on
the original record and a very limited number of copies. Under the
practice as adopted in 1962, any party to an appeal could elect to have
the appeal heard on the original record and two copies thereof rather
than on the printed record theretofore required. The resulting
substantial saving of printing costs led to the election of the new
practice in virtually all cases, and by 1967 the use of printed records
had ceased. By a recent amendment, the Ninth Circuit has abolished the
printed record altogether. Its rules now provide that all appeals are
to be heard on the original record, and it has reduced the number of
copies required to two sets of copies of the transmitted original papers
(excluding copies of exhibits, which need not be filed unless
specifically ordered). See 9 Cir. Rule 10, as amended June 2, 1967,
effective September 1, 1967. The Eighth Circuit permits appeals in
criminal cases and in habeas corpus and 28 U.S.C. 2255 proceedings to
be heard on the original record and two copies thereof. See 8 Cir.
Rule 8 (i)-(j). The Tenth Circuit permits appeals in all cases to be
heard on the original record and four copies thereof whenever the record
consists of two hundred pages or less. See 10 Cir. Rule 17(a). This
subdivision expressly authorizes the continuation of the practices in
the Eighth, Ninth and Tenth Circuits.
The judges of the Court of Appeals for the Ninth Circuit have
expressed complete satisfaction with the practice there in use and have
suggested that attention be called to the advantages which it offers in
terms of reducing cost.
Subdivision (a). The amendment of subdivision (a) is related to the
amendment of Rule 31(a), which authorizes a court of appeals to shorten
the time for filing briefs. By virtue of this amendment, if the time
for filing the brief of the appellant is shortened the time for filing
the appendix is likewise shortened.
Subdivision (c). As originally written, subdivision (c) permitted
the appellant to elect to defer filing of the appendix until 21 days
after service of the brief of the appellee. As amended, subdivision (c)
requires that an order of court be obtained before filing of the
appendix can be deferred, unless a court permits deferred filing by
local rule. The amendment should not cause use of the deferred appendix
to be viewed with disfavor. In cases involving lengthy records,
permission to defer filing of the appendix should be freely granted as
an inducement to the parties to include in the appendix only matter that
the briefs show to be necessary for consideration by the judges. But
the Committee is advised that appellants have elected to defer filing of
the appendix in cases involving brief records merely to obtain the 21
day delay. The subdivision is amended to prevent that practice.
Subdivision (a). During its study of the separate appendix (see
Report on the Advisory Committee on the Federal Appellate Rules on the
Operation of Rule 30, -- FRD -- (1985)), the Advisory Committee found
that this document was frequently encumbered with memoranda submitted to
the trial court. United States v. Noall, 587 F.2d 123, 125 n. 1 (2nd
Cir. 1978). See generally Drewett v. Aetna Cas. & Sur. Co., 539 F.2d
496, 500 (5th Cir. 1976); Volkswagenwerk Aktiengesellschaft v. Church,
413 F.2d 1126, 1128 (9th Cir. 1969). Inclusion of such material makes
the appendix more bulky and therefore less useful to the appellate
panel. It also can increase significantly the costs of litigation.
There are occasions when such trial court memoranda have independent
relevance in the appellate litigation. For instance, there may be a
dispute as to whether a particular point was raised or whether a
concession was made in the district court. In such circumstances, it is
appropriate to include pertinent sections of such memoranda in the
appendix.
Subdivision (b). The amendment to subdivision (b) is designed to
require the circuits, by local rule, to establish a procedural mechanism
for the imposition of sanctions against those attorneys who conduct
appellate litigation in bad faith. Both 28 U.S.C. 1927 and the
inherent power of the court authorized such sanctions. See Brennan v.
Local 357, International Brotherhood of Teamsters, 709 F.2d 611 (9th
Cir. 1983). See generally Roadway Express, Inc. v. Piper, 447 U.S. 752
(1980). While considerations of uniformity are important and doubtless
will be taken into account by the judges of the respective circuits, the
Advisory Committee believes that, at this time, the circuits need the
flexibility to tailor their approach to the conditions of local
practice. The local rule shall provide for notice and opportunity to
respond before the imposition of any sanction.
Technical amendments also are made to subdivisions (a), (b) and (c)
which are not intended to be substantive changes.
The Judicial Conference of the United States at its session on
October 28th and 29th approved the following resolution relating to fees
to be taxed in the courts of appeals as submitted by the Judicial
Council of the Ninth Circuit with the proviso that its application to
any court of appeals shall be at the election of each such court:
For some time it has been the practice in the Ninth Circuit Court of
Appeals to dispense with an appendix in an appellate record and to hear
the appeal on the original record, with a number of copies thereof being
supplied (Rule 30f, Federal Rules of Appellate Procedure). It has been
the practice of the Court to tax a fee of $5 in small records and $10 in
large records for the time of the clerk involved in preparing such
appeals and by way of reimbursement for postage expense. Judicial
Conference approval heretofore has not been secured and the Judicial
Council of the Ninth Circuit now seeks to fix a flat fee of $15 to be
charged as fees for costs to be charged by any court of appeals ''in any
appeal in which the requirement of an appendix is dispensed with
pursuant to Rule 30f, Federal Rules of Appellate Procedure.''
Subdivision (b). The amendment requires a cross appellant to serve
the appellant with a statement of the issues that the cross appellant
intends to pursue on appeal. No later than ten days after the record is
filed, the appellant and cross appellant must serve each other with a
statement of the issues each intends to present for review and with a
designation of the parts of the record that each wants included in the
appendix. Within the next ten days, both the appellee and the cross
appellee may designate additional materials for inclusion in the
appendix. The appellant must then include in the appendix the parts
thus designated for both the appeal and any cross appeals. The
Committee expects that simultaneous compliance with this subdivision by
an appellant and a cross appellant will be feasible in most cases. If a
cross appellant cannot fairly be expected to comply until receipt of the
appellant's statement of issues, relief may be sought by motion in the
court of appeals.
Typewritten appendices allowed in forma pauperis, see rule 24.
28 USC Rule 31. Filing and service of briefs
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Time for serving and filing briefs. -- The appellant shall serve
and file a brief within 40 days after the date on which the record is
filed. The appellee shall serve and file a brief within 30 days after
service of the brief of the appellant. The appellant may serve and file
a reply brief within 14 days after service of the brief of the appellee,
but, except for good cause shown, a reply brief must be filed at least 3
days before argument. If a court of appeals is prepared to consider
cases on the merits promptly after briefs are filed, and its practice is
to do so, it may shorten the periods prescribed above for serving and
filing briefs, either by rule for all cases or for classes of cases, or
by order for specific cases.
(b) Number of copies to be filed and served. -- Twenty-five copies of
each brief shall be filed with the clerk, unless the court by order in a
particular case shall direct a lesser number, and two copies shall be
served on counsel for each party separately represented. If a party is
allowed to file typewritten ribbon and carbon copies of the brief, the
original and three legible copies shall be filed with the clerk, and one
copy shall be served on counsel for each party separately represented.
(c) Consequence of failure to file briefs. -- If an appellant fails
to file a brief within the time provided by this rule, or within the
time as extended, an appellee may move for dismissal of the appeal. If
an appellee fails to file a brief, the appellee will not be heard at
oral argument except by permission of the court.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
July 1, 1986.)
A majority of the circuits now require the brief of the appellant to
be filed within 30 days from the date on which the record is filed. But
in those circuits an exchange of designations is unnecessary in the
preparation of the appendix. The appellant files with his brief an
appendix containing the parts of the record which he deems essential.
If the appellee considers other parts essential, he includes those parts
in his own appendix. Since the proposed rule requires the appellant to
file with his brief an appendix containing necessary parts of the record
as designated by both parties, the rule allows the appellant 40 days in
order to provide time for the exchange of designations respecting the
content of the appendix (see Rule 30(b)).
The time prescribed by Rule 31(a) for preparing briefs -- 40 days to
the appellant, 30 days to the appellee -- is well within the time that
must ordinarily elapse in most circuits before an appeal can be reached
for consideration. In those circuits, the time prescribed by the Rule
should not be disturbed. But if a court of appeals maintains a current
calendar, that is, if an appeal can be heard as soon as the briefs have
been filed, or if the practice of the court permits the submission of
appeals for preliminary consideration as soon as the briefs have been
filed, the court should be free to prescribe shorter periods in the
interest of expediting decision.
The amendments to Rules 31(a) and (c) are technical. No substantive
change is intended.
Form, see rule 32.
Motion supported by brief, see rule 27.
28 USC Rule 32. Form of briefs, the appendix and other papers
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Form of briefs and the appendix. -- Briefs and appendices may be
produced by standard typographic printing or by any duplicating or
copying process which produces a clear black image on white paper.
Carbon copies of briefs and appendices may not be submitted without
permission of the court, except in behalf of parties allowed to proceed
in forma pauperis. All printed matter must appear in at least 11 point
type on opaque, unglazed paper. Briefs and appendices produced by the
standard typographic process shall be bound in volumes having pages 6
1/8 by 9 1/4 inches and type matter 4 1/6 by 7 1/6 inches. Those
produced by any other process shall be bound in volumes having pages not
exceeding 8 1/2 by 11 inches and type matter not exceeding 6 1/2 by 9
1/2 inches, with double spacing between each line of text. In patent
cases the pages of briefs and appendices may be of such size as is
necessary to utilize copies of patent documents. Copies of the
reporter's transcript and other papers reproduced in a manner authorized
by this rule may be inserted in the appendix; such pages may be
informally renumbered if necessary.
If briefs are produced by commercial printing or duplicating firms,
or, if produced otherwise and the covers to be described are available,
the cover of the brief of the appellant should be blue; that of the
appellee, red; that of an intervenor or amicus curiae, green; that of
any reply brief, gray. The cover of the appendix, if separately
printed, should be white. The front covers of the briefs and of
appendices, if separately printed, shall contain: (1) the name of the
court and the number of the case; (2) the title of the case (see Rule
12(a)); (3) the nature of the proceeding in the court (e.g., Appeal;
Petition for Review) and the name of the court, agency, or board below;
(4) the title of the document (e.g., Brief for Appellant, Appendix);
and (5) the names and addresses of counsel representing the party on
whose behalf the document is filed.
(b) Form of other papers. -- Petitions for rehearing shall be
produced in a manner prescribed by subdivision (a). Motions and other
papers may be produced in like manner, or they may be typewritten upon
opaque, unglazed paper 8 1/2 by 11 inches in size. Lines of typewritten
text shall be double spaced. Consecutive sheets shall be attached at
the left margin. Carbon copies may be used for filing and service if
they are legible.
A motion or other paper addressed to the court shall contain a
caption setting forth the name of the court, the title of the case, the
file number, and a brief descriptive title indicating the purpose of the
paper.
Only two methods of printing are now generally recognized by the
circuits -- standard typographic printing and the offset duplicating
process (multilith). A third, mimeographing, is permitted in the Fifth
Circuit. The District of Columbia, Ninth, and Tenth Circuits permit
records to be reproduced by copying processes. The Committee feels that
recent and impending advances in the arts of duplicating and copying
warrant experimentation with less costly forms of reproduction than
those now generally authorized. The proposed rule permits, in effect,
the use of any process other than the carbon copy process which produces
a clean, readable page. What constitutes such is left in first instance
to the parties and ultimately to the court to determine. The final
sentence of the first paragraph of subdivision (a) is added to allow the
use of multilith, mimeograph, or other forms of copies of the reporter's
original transcript whenever such are available.
Typewritten briefs, appendices, and other papers allowed in forma
pauperis, see rule 24.
28 USC Rule 33. Prehearing conference
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
The court may direct the attorneys for the parties to appear before
the court or a judge thereof for a prehearing conference to consider the
simplification of the issues and such other matters as may aid in the
disposition of the proceeding by the court. The court or judge shall
make an order which recites the action taken at the conference and the
agreements made by the parties as to any of the matters considered and
which limits the issues to those not disposed of by admissions or
agreements of counsel, and such order when entered controls the
subsequent course of the proceeding, unless modified to prevent manifest
injustice.
The uniform rule for review or enforcement of orders of
administrative agencies, boards, commissions or officers (see the
general note following Rule 15) authorizes a prehearing conference in
agency review proceedings. The same considerations which make a
prehearing conference desirable in such proceedings may be present in
certain cases on appeal from the district courts. The proposed rule is
based upon subdivision 11 of the present uniform rule for review of
agency orders.
Pre-trial procedure in the district courts, see Rule 16, Federal
Rules of Civil Procedure, this Appendix.
28 USC Rule 34. Oral argument
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) In general; local rule. -- Oral argument shall be allowed in all
cases unless pursuant to local rule a panel of three judges, after
examination of the briefs and record, shall be unanimously of the
opinion that oral argument is not needed. Any such local rule shall
provide any party with an opportunity to file a statement setting forth
the reasons why oral argument should be heard. A general statement of
the criteria employed in the administration of such local rule shall be
published in or with the rule and such criteria shall conform
substantially to the following minimum standard:
Oral argument will be allowed unless
(1) the appeal is frivolous; or
(2) the dispositive issue or set of issues has been recently
authoritatively decided; or
(3) the facts and legal arguments are adequately presented in the
briefs and record and the decisional process would not be significantly
aided by oral argument.
(b) Notice of argument; postponement. -- The clerk shall advise all
parties whether oral argument is to be heard, and if so, of the time and
place therefor, and the time to be allowed each side. A request for
postponement of the argument or for allowance of additional time must be
made by motion filed reasonably in advance of the date fixed for
hearing.
(c) Order and content of argument. -- The appellant is entitled to
open and conclude the argument. The opening argument shall include a
fair statement of the case. Counsel will not be permitted to read at
length from briefs, records or authorities.
(d) Cross and separate appeals. -- A cross or separate appeal shall
be argued with the initial appeal at a single argument, unless the court
otherwise directs. If a case involves a cross appeal, the party who
first files a notice of appeal, or in the event that the notices are
filed on the same day the plaintiff in the proceeding below, shall be
deemed the appellant for the purpose of this rule unless the parties
otherwise agree or the court otherwise directs. If separate appellants
support the same argument, care shall be taken to avoid duplication of
argument.
(e) Non-appearance of parties. -- If the appellee fails to appear to
present argument, the court will hear argument on behalf of the
appellant, if present. If the appellant fails to appear, the court may
hear argument on behalf of the appellee, if present. If neither party
appears, the case will be decided on the briefs unless the court shall
otherwise order.
(f) Submission on briefs. -- By agreement of the parties, a case may
be submitted for decision on the briefs, but the court may direct that
the case be argued.
(g) Use of physical exhibits at argument; removal. -- If physical
exhibits other than documents are to be used at the argument, counsel
shall arrange to have them placed in the court room before the court
convenes on the date of the argument. After the argument counsel shall
cause the exhibits to be removed from the court room unless the court
otherwise directs. If exhibits are not reclaimed by counsel within a
reasonable time after notice is given by the clerk, they shall be
destroyed or otherwise disposed of as the clerk shall think best.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991.)
A majority of circuits now limit oral argument to thirty minutes for
each side, with the provision that additional time may be made available
upon request. The Committee is of the view that thirty minutes to each
side is sufficient in most cases, but that where additional time is
necessary it should be freely granted on a proper showing of cause
therefor. It further feels that the matter of time should be left
ultimately to each court of appeals, subject to the spirit of the rule
that a reasonable time should be allowed for argument. The term
''side'' is used to indicate that the time allowed by the rule is
afforded to opposing interests rather than to individual parties. Thus
if multiple appellants or appellees have a common interest, they
constitute only a single side. If counsel for multiple parties who
constitute a single side feel that additional time is necessary, they
may request it. In other particulars this rule follows the usual
practice among the circuits. See 3d Cir. Rule 31; 6th Cir. Rule 20;
10th Cir. Rule 23.
The proposed amendment, patterned after the recommendations in the
Report of the Commission on Revision of the Federal Court Appellate
System, Structure and Internal Procedures: Recommendations for Change,
1975, created by Public Law 489 of the 92nd Cong. 2nd Sess., 86 Stat.
807, sets forth general principles and minimum standards to be observed
in formulating any local rule.
The amendments to Rules 34(a) and (e) are technical. No substantive
change is intended.
Subdivision (d). The amendment of subdivision (d) conforms this rule
with the amendment of Rule 28(h).
Rehearing, no oral argument permitted, see rule 40.
28 USC Rule 35. Determination of causes by the court in banc
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) When hearing or rehearing in banc will be ordered. -- A majority
of the circuit judges who are in regular active service may order that
an appeal or other proceeding be heard or reheard by the court of
appeals in banc. Such a hearing or rehearing is not favored and
ordinarily will not be ordered except (1) when consideration by the full
court is necessary to secure or maintain uniformity of its decisions, or
(2) when the proceeding involves a question of exceptional importance.
(b) Suggestion of a party for hearing or rehearing in banc. -- A
party may suggest the appropriateness of a hearing or rehearing in banc.
No response shall be filed unless the court shall so order. The clerk
shall transmit any such suggestion to the members of the panel and the
judges of the court who are in regular active service but a vote need
not be taken to determine whether the cause shall be heard or reheard in
banc unless a judge in regular active service or a judge who was a
member of the panel that rendered a decision sought to be reheard
requests a vote on such a suggestion made by a party.
(c) Time for suggestion of a party for hearing or rehearing in banc;
suggestion does not stay mandate. -- If a party desires to suggest that
an appeal be heard initially in banc, the suggestion must be made by the
date on which the appellee's brief is filed. A suggestion for a
rehearing in banc must be made within the time prescribed by Rule 40 for
filing a petition for rehearing, whether the suggestion is made in such
petition or otherwise. The pendency of such a suggestion whether or not
included in a petition for rehearing shall not affect the finality of
the judgment of the court of appeals or stay the issuance of the
mandate.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)
Statutory authority for in banc hearings is found in 28 U.S.C.
46(c). The proposed rule is responsive to the Supreme Court's view in
Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345 U.S. 247, 73
S.Ct. 656, 97 L.Ed. 986 (1953), that litigants should be free to suggest
that a particular case is appropriate for consideration by all the
judges of a court of appeals. The rule is addressed to the procedure
whereby a party may suggest the appropriateness of convening the court
in banc. It does not affect the power of a court of appeals to initiate
in banc hearings sua sponte.
The provision that a vote will not be taken as a result of the
suggestion of the party unless requested by a judge of the court in
regular active service or by a judge who was a member of the panel that
rendered a decision sought to be reheard is intended to make it clear
that a suggestion of a party as such does not require any action by the
court. See Western Pacific Ry. Corp. v. Western Pacific Ry. Co.,
supra, 345 U.S. at 262, 73 S.Ct. 656. The rule merely authorizes a
suggestion, imposes a time limit on suggestions for rehearings in banc,
and provides that suggestions will be directed to the judges of the
court in regular active service.
In practice, the suggestion of a party that a case be reheard in banc
is frequently contained in a petition for rehearing, commonly styled
''petition for rehearing in banc.'' Such a petition is in fact merely a
petition for a rehearing, with a suggestion that the case be reheard in
banc. Since no response to the suggestion, as distinguished from the
petition for rehearing, is required, the panel which heard the case may
quite properly dispose of the petition without reference to the
suggestion. In such a case the fact that no response has been made to
the suggestion does not affect the finality of the judgment or the
issuance of the mandate, and the final sentence of the rule expressly so
provides.
Under the present rule there is no specific provision for a response
to a suggestion that an appeal be heard in banc. This has led to some
uncertainty as to whether such a response may be filed. The proposed
amendment would resolve this uncertainty.
While the present rule provides a time limit for suggestions for
rehearing in banc, it does not deal with the timing of a request that
the appeal be heard in banc initially. The proposed amendment fills
this gap as well, providing that the suggestion must be made by the date
of which the appellee's brief is filed.
Provision is made for circulating the suggestions to members of the
panel despite the fact that senior judges on the panel would not be
entitled to vote on whether a suggestion will be granted.
Composition of court sitting in banc, see section 46 of this title.
28 USC Rule 36. Entry of judgment
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
The notation of a judgment in the docket constitutes entry of the
judgment. The clerk shall prepare, sign and enter the judgment
following receipt of the opinion of the court unless the opinion directs
settlement of the form of the judgment, in which event the clerk shall
prepare, sign and enter the judgment following final settlement by the
court. If a judgment is rendered without an opinion, the clerk shall
prepare, sign and enter the judgment following instruction from the
court. The clerk shall, on the date judgment is entered, mail to all
parties a copy of the opinion, if any, or of the judgment if no opinion
was written, and notice of the date of entry of the judgment.
This is the typical rule. See 1st Cir. Rule 29; 3rd Cir. Rule 32;
6th Cir. Rule 21. At present, uncertainty exists as to the date of
entry of judgment when the opinion directs subsequent settlement of the
precise terms of the judgment, a common practice in cases involving
enforcement of agency orders. See Stern and Gressman, Supreme Court
Practice, p. 203 (3d Ed., 1962). The principle of finality suggests
that in such cases entry of judgment should be delayed until approval of
the judgment in final form.
Certified copy of judgment, copy of opinion, and direction as to
costs as constituting mandate, see rule 41.
28 USC Rule 37. Interest on judgments
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Unless otherwise provided by law, if a judgment for money in a civil
case is affirmed, whatever interest is allowed by law shall be payable
from the date the judgment was entered in the district court. If a
judgment is modified or reversed with a direction that a judgment for
money be entered in the district court, the mandate shall contain
instructions with respect to allowance of interest.
The first sentence makes it clear that if a money judgment is
affirmed in the court of appeals, the interest which attaches to money
judgments by force of law (see 28 U.S.C. 1961 and 2411) upon their
initial entry is payable as if no appeal had been taken, whether or not
the mandate makes mention of interest. There has been some confusion on
this point. See Blair v. Durham, 139 F.2d 260 (6th Cir., 1943) and
cases cited therein.
In reversing or modifying the judgment of the district court, the
court of appeals may direct the entry of a money judgment, as, for
example, when the court of appeals reverses a judgment notwithstanding
the verdict and directs entry of judgment on the verdict. In such a
case the question may arise as to whether interest is to run from the
date of entry of the judgment directed by the court of appeals or from
the date on which the judgment would have been entered in the district
court except for the erroneous ruling corrected on appeal. In Briggs v.
Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403
(1948), the Court held that where the mandate of the court of appeals
directed entry of judgment upon a verdict but made no mention of
interest from the date of the verdict to the date of the entry of the
judgment directed by the mandate, the district court was powerless to
add such interest. The second sentence of the proposed rule is a
reminder to the court, the clerk and counsel of the Briggs rule. Since
the rule directs that the matter of interest be disposed of by the
mandate, in cases where interest is simply overlooked, a party who
conceives himself entitled to interest from a date other than the date
of entry of judgment in accordance with the mandate should be entitled
to seek recall of the mandate for determination of the question.
Damages and costs on affirmance, see section 1912 of this title.
28 USC Rule 38. Damages for delay
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
If a court of appeals shall determine that an appeal is frivolous, it
may award just damages and single or double costs to the appellee.
Compare 28 U.S.C. 1912. While both the statute and the usual rule on
the subject by courts of appeals (Fourth Circuit Rule 20 is a typical
rule) speak of ''damages for delay,'' the courts of appeals quite
properly allow damages, attorney's fees and other expenses incurred by
an appellee if the appeal is frivolous without requiring a showing that
the appeal resulted in delay. See Dunscombe v. Sayle, 340 F.2d 311
(5th Cir., 1965), cert. den., 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62
(1965); Lowe v. Willacy, 239 F.2d 179 (9th Cir., 1956); Griffith
Wellpoint Corp. v. Munro-Langstroth, Inc., 269 F.2d 64 (1st Cir.,
1959); Ginsburg v. Stern, 295 F.2d 698 (3d Cir., 1961). The subjects
of interest and damages are separately regulated, contrary to the
present practice of combining the two (see Fourth Circuit Rule 20) to
make it clear that the awards are distinct and independent. Interest is
provided for by law; damages are awarded by the court in its discretion
in the case of a frivolous appeal as a matter of justice to the appellee
and as a penalty against the appellant.
Damages and costs on affirmance, see section 1912 of this title.
28 USC Rule 39. Costs
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) To whom allowed. -- Except as otherwise provided by law, if an
appeal is dismissed, costs shall be taxed against the appellant unless
otherwise agreed by the parties or ordered by the court; if a judgment
is affirmed, costs shall be taxed against the appellant unless otherwise
ordered; if a judgment is reversed, costs shall be taxed against the
appellee unless otherwise ordered; if a judgment is affirmed or
reversed in part, or is vacated, costs shall be allowed only as ordered
by the court.
(b) Costs for and against the United States. -- In cases involving
the United States or an agency or officer thereof, if an award of costs
against the United States is authorized by law, costs shall be awarded
in accordance with the provisions of subdivision (a); otherwise, costs
shall not be awarded for or against the United States.
(c) Costs of briefs, appendices, and copies of records. -- By local
rule the court of appeals shall fix the maximum rate at which the cost
of printing or otherwise producing necessary copies of briefs,
appendices, and copies of records authorized by Rule 30(f) shall be
taxable. Such rate shall not be higher than that generally charged for
such work in the area where the clerk's office is located and shall
encourage the use of economical methods of printing and copying.
(d) Bill of costs; objections; costs to be inserted in mandate or
added later. -- A party who desires such costs to be taxed shall state
them in an itemized and verified bill of costs which the party shall
file with the clerk, with proof of service, within 14 days after the
entry of judgment. Objections to the bill of costs must be filed within
10 days of service on the party against whom costs are to be taxed
unless the time is extended by the court. The clerk shall prepare and
certify an itemized statement of costs taxed in the court of appeals for
insertion in the mandate, but the issuance of the mandate shall not be
delayed for taxation of costs and if the mandate has been issued before
final determination of costs, the statement, or any amendment thereof,
shall be added to the mandate upon request by the clerk of the court of
appeals to the clerk of the district court.
(e) Costs on appeal taxable in the district courts. -- Costs incurred
in the preparation and transmission of the record, the cost of the
reporter's transcript, if necessary for the determination of the appeal,
the premiums paid for cost of supersedeas bonds or other bonds to
preserve rights pending appeal, and the fee for filing the notice of
appeal shall be taxed in the district court as costs of the appeal in
favor of the party entitled to costs under this rule.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
Subdivision (a). Statutory authorization for taxation of costs is
found in 28 U.S.C. 1920. The provisions of this subdivision follow the
usual practice in the circuits. A few statutes contain specific
provisions in derogation of these general provisions. (See 28 U.S.C.
1928, which forbids the award of costs to a successful plaintiff in a
patent infringement action under the circumstances described by the
statute). These statutes are controlling in cases to which they apply.
Subdivision (b). The rules of the courts of appeals at present
commonly deny costs to the United States except as allowance may be
directed by statute. Those rules were promulgated at a time when the
United States was generally invulnerable to an award of costs against
it, and they appear to be based on the view that if the United States is
not subject to costs if it loses, it ought not be entitled to recover
costs if it wins.
The number of cases affected by such rules has been greatly reduced
by the Act of July 18, 1966, 80 Stat. 308 (1 U.S. Code Cong. & Ad.
News, p. 349 (1966), 89th Cong., 2d Sess., which amended 28 U.S.C.
2412, the former general bar to the award of costs against the United
States. Section 2412 as amended generally places the United States on
the same footing as private parties with respect to the award of costs
in civil cases. But the United States continues to enjoy immunity from
costs in certain cases. By its terms amended section 2412 authorizes an
award of costs against the United States only in civil actions, and it
excepts from its general authorization of an award of costs against the
United States cases which are ''otherwise specifically provided (for) by
statute.'' Furthermore, the Act of July 18, 1966, supra, provides that
the amendments of section 2412 which it effects shall apply only to
actions filed subsequent to the date of its enactment. The second clause
continues in effect, for these and all other cases in which the United
States enjoys immunity from costs, the presently prevailing rule that
the United States may recover costs as the prevailing party only if it
would have suffered them as the losing party.
Subdivision (c). While only five circuits (D.C. Cir. Rule 20(d);
1st Cir. Rule 31(4); 3d Cir. Rule 35(4); 4th Cir. Rule 21(4); 9th
Cir. Rule 25, as amended June 2, 1967) presently tax the cost of
printing briefs, the proposed rule makes the cost taxable in keeping
with the principle of this rule that all cost items expended in the
prosecution of a proceeding should be borne by the unsuccessful party.
Subdivision (e). The costs described in this subdivision are costs
of the appeal and, as such, are within the undertaking of the appeal
bond. They are made taxable in the district court for general
convenience. Taxation of the cost of the reporter's transcript is
specifically authorized by 28 U.S.C. 1920, but in the absence of a rule
some district courts have held themselves without authority to tax the
cost (Perlman v. Feldmann, 116 F.Supp. 102 (D.Conn., 1953); Firtag v.
Gendleman, 152 F.Supp. 226 (D.D.C., 1957); Todd Atlantic Shipyards
Corps. v. The Southport, 100 F.Supp. 763 (E.D.S.C., 1951). Provision
for taxation of the cost of premiums paid for supersedeas bonds is
common in the local rules of district courts and the practice is
established in the Second, Seventh, and Ninth Circuits. Berner v.
British Commonwealth Pacific Air Lines, Ltd., 362 F.2d 799 (2d Cir.
1966); Land Oberoesterreich v. Gude, 93 F.2d 292 (2d Cir., 1937); In
re Northern Ind. Oil Co., 192 F.2d 139 (7th Cir., 1951); Lunn v. F. W.
Woolworth, 210 F.2d 159 (9th Cir., 1954).
Subdivision (c). The proposed amendment would permit variations
among the circuits in regulating the maximum rates taxable as costs for
printing or otherwise reproducing briefs, appendices, and copies of
records authorized by Rule 30(f). The present rule has had a different
effect in different circuits depending upon the size of the circuit, the
location of the clerk's office, and the location of other cities. As a
consequence there was a growing sense that strict adherence to the rule
produces some unfairness in some of the circuits and the matter should
be made subject to local rule.
Subdivision (d). The present rule makes no provision for objections
to a bill of costs. The proposed amendment would allow 10 days for such
objections. Cf. Rule 54(d) of the F.R.C.P. It provides further that the
mandate shall not be delayed for taxation of costs.
The amendment to subdivision (c) is intended to increase the degree
of control exercised by the courts of appeals over rates for printing
and copying recoverable as costs. It further requires the courts of
appeals to encourage cost-consciousness by requiring that, in fixing the
rate, the court consider the most economical methods of printing and
copying.
The amendment to subdivision (d) is technical. No substantive change
is intended.
Costs and fees, payment by clerk into treasury, see section 711 of
this title.
Damages and costs on affirmance, see section 1912 of this title.
Judicial conference of United States to prescribe charges, see
section 1913 of this title.
Liability of United States for costs, see section 2412 of this title.
28 USC Rule 40. Petition for rehearing
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Time for filing; content; answer; action by court if granted.
-- A petition for rehearing may be filed within 14 days after entry of
judgment unless the time is shortened or enlarged by order or by local
rule. The petition shall state with particularity the points of law or
fact which in the opinion of the petitioner the court has overlooked or
misapprehended and shall contain such argument in support of the
petition as the petitioner desires to present. Oral argument in support
of the petition will not be permitted. No answer to a petition for
rehearing will be received unless requested by the court, but a petition
for rehearing will ordinarily not be granted in the absence of such a
request. If a petition for rehearing is granted the court may make a
final disposition of the cause without reargument or may restore it to
the calendar for reargument or resubmission or may make such other
orders as are deemed appropriate under the circumstances of the
particular case.
(b) Form of petition; length. -- The petition shall be in a form
prescribed by Rule 32(a), and copies shall be served and filed as
prescribed by Rule 31(b) for the service and filing of briefs. Except
by permission of the court, or as specified by local rule of the court
of appeals, a petition for rehearing shall not exceed 15 pages.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
This is the usual rule among the circuits, except that the express
prohibition against filing a reply to the petition is found only in the
rules of the Fourth, Sixth and Eighth Circuits (it is also contained in
Supreme Court Rule 58(3)). It is included to save time and expense to
the party victorious on appeal. In the very rare instances in which a
reply is useful, the court will ask for it.
Subdivision (a). The Standing Committee added to the first sentence
of Rule 40(a) the words ''or by local rule,'' to conform to current
practice in the circuits. The Standing Committee believes the change
noncontroversial.
Subdivision (b). The proposed amendment would eliminate the
distinction drawn in the present rule between printed briefs and those
duplicated from typewritten pages in fixing their maximum length. See
Note to Rule 28. Since petitions for rehearing must be prepared in a
short time, making typographic printing less likely, the maximum number
of pages is fixed at 15, the figure used in the present rule for
petitions duplicated by means other than typographic printing.
Mandate, issuance unless delayed by petition for rehearing, see rule
41.
28 USC Rule 41. Issuance of mandate; stay of mandate
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Date of issuance. -- The mandate of the court shall issue 21 days
after the entry of judgment unless the time is shortened or enlarged by
order. A certified copy of the judgment and a copy of the opinion of
the court, if any, and any direction as to costs shall constitute the
mandate, unless the court directs that a formal mandate issue. The
timely filing of a petition for rehearing will stay the mandate until
disposition of the petition unless otherwise ordered by the court. If
the petition is denied, the mandate shall issue 7 days after entry of
the order denying the petition unless the time is shortened or enlarged
by order.
(b) Stay of mandate pending application for certiorari. -- A stay of
the mandate pending application to the Supreme Court for a writ of
certiorari may be granted upon motion, reasonable notice of which shall
be given to all parties. The stay shall not exceed 30 days unless the
period is extended for cause shown. If during the period of the stay
there is filed with the clerk of the court of appeals a notice from the
clerk of the Supreme Court that the party who has obtained the stay has
filed a petition for the writ in that court, the stay shall continue
until final disposition by the Supreme Court. Upon the filing of a copy
of an order of the Supreme Court denying the petition for writ of
certiorari the mandate shall issue immediately. A bond or other
security may be required as a condition to the grant or continuance of a
stay of the mandate.
The proposed rule follows the rule or practice in a majority of
circuits by which copies of the opinion and the judgment serve in lieu
of a formal mandate in the ordinary case. Compare Supreme Court Rule
59. Although 28 U.S.C. 2101(c) permits a writ of certiorari to be
filed within 90 days after entry of judgment, seven of the eight
circuits which now regulate the matter of stays pending application for
certiorari limit the initial stay of the mandate to the 30-day period
provided in the proposed rule. Compare D.C. Cir. Rule 27(e).
Certiorari to Supreme Court, see sections 1254 and 2101 of this
title.
Petition for rehearing, see rule 40.
28 USC Rule 42. Voluntary dismissal
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Dismissal in the district court. -- If an appeal has not been
docketed, the appeal may be dismissed by the district court upon the
filing in that court of a stipulation for dismissal signed by all the
parties, or upon motion and notice by the appellant.
(b) Dismissal in the court of appeals. -- If the parties to an appeal
or other proceeding shall sign and file with the clerk of the court of
appeals an agreement that the proceeding be dismissed, specifying the
terms as to payment of costs, and shall pay whatever fees are due, the
clerk shall enter the case dismissed, but no mandate or other process
shall issue without an order of the court. An appeal may be dismissed
on motion of the appellant upon such terms as may be agreed upon by the
parties or fixed by the court.
Subdivision (a). This subdivision is derived from FRCP 73(a) without
change of substance.
Subdivision (b). The first sentence is a common provision in present
circuit rules. The second sentence is added. Compare Supreme Court
Rule 60.
Briefs, dismissal for default, see rule 31.
Costs upon dismissal, see rule 39.
Not docketed in time, see rule 12.
28 USC Rule 43. Substitution of parties
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Death of a party. -- If a party dies after a notice of appeal is
filed or while a proceeding is otherwise pending in the court of
appeals, the personal representative of the deceased party may be
substituted as a party on motion filed by the representative or by any
party with the clerk of the court of appeals. The motion of a party
shall be served upon the representative in accordance with the
provisions of Rule 25. If the deceased party has no representative, any
party may suggest the death on the record and proceedings shall then be
had as the court of appeals may direct. If a party against whom an
appeal may be taken dies after entry of a judgment or order in the
district court but before a notice of appeal is filed, an appellant may
proceed as if death had not occurred. After the notice of appeal is
filed substitution shall be effected in the court of appeals in
accordance with this subdivision. If a party entitled to appeal shall
die before filing a notice of appeal, the notice of appeal may be filed
by that party's personal representative, or, if there is no personal
representative by that party's attorney of record within the time
prescribed by these rules. After the notice of appeal is filed
substitution shall be effected in the court of appeals in accordance
with this subdivision.
(b) Substitution for other causes. -- If substitution of a party in
the court of appeals is necessary for any reason other than death,
substitution shall be effected in accordance with the procedure
prescribed in subdivision (a).
(c) Public officers; death or separation from office. -- (1) When a
public officer is a party to an appeal or other proceeding in the court
of appeals in an official capacity and during its pendency dies, resigns
or otherwise ceases to hold office, the action does not abate and the
public officer's successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of the
substituted party, but any misnomer not affecting the substantial rights
of the parties shall be disregarded. An order of substitution may be
entered at any time, but the omission to enter such an order shall not
affect the substitution.
(2) When a public officer is a party to an appeal or other proceeding
in an official capacity that public officer may be described as a party
by the public officer's official title rather than by name; but the
court may require the public officer's name to be added.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
Subdivision (a). The first three sentences described a procedure
similar to the rule on substitution in civil actions in the district
court. See FRCP 25(a). The fourth sentence expressly authorizes an
appeal to be taken against one who has died after the entry of judgment.
Compare FRCP 73(b), which impliedly authorizes such an appeal.
The sixth sentence authorizes an attorney of record for the deceased
to take an appeal on behalf of successors in interest if the deceased
has no representative. At present, if a party entitled to appeal dies
before the notice of appeal is filed, the appeal can presumably be taken
only by his legal representative and must be taken within the time
ordinarily prescribed. 13 Cyclopedia of Federal Procedure (3d Ed.)
63.21. The states commonly make special provisions for the event of the
death of a party entitled to appeal, usually by extending the time
otherwise prescribed. Rules of Civil Procedure for Superior Courts of
Arizona, Rule 73(t), 16 A.R.S.; New Jersey Rev. Rules 1:3-3; New York
Civil Practice Law and Rules, Sec. 1022; Wisconsin Statutes Ann.
274.01(2). The provision in the proposed rule is derived from California
Code of Civil Procedure, Sec. 941.
Subdivision (c). This subdivision is derived from FRCP 25(d) and
Supreme Court Rule 48, with appropriate changes.
The amendments to Rules 43(a) and (c) are technical. No substantive
change is intended.
Substitution of parties, see Rule 25, Federal Rules of Civil
Procedure, this Appendix.
28 USC Rule 44. Cases involving constitutional questions where United
States is not a party
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
It shall be the duty of a party who draws in question the
constitutionality of any Act of Congress in any proceeding in a court of
appeals to which the United States, or any agency thereof, or any
officer or employee thereof, as such officer or employee, is not a
party, upon the filing of the record, or as soon thereafter as the
question is raised in the court of appeals, to give immediate notice in
writing to the court of the existence of said question. The clerk shall
thereupon certify such fact to the Attorney General.
This rule is now found in the rules of a majority of the circuits.
It is in response to the Act of August 24, 1937 (28 U.S.C. 2403), which
requires all courts of the United States to advise the Attorney General
of the existence of an action or proceeding of the kind described in the
rule.
Intervention by United States, see section 2403 of this title.
28 USC Rule 45. Duties of clerks
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) General provisions. -- The clerk of a court of appeals shall take
the oath and give the bond required by law. Neither the clerk nor any
deputy clerk shall practice as an attorney or counselor in any court
while continuing in office. The court of appeals shall be deemed always
open for the purpose of filing any proper paper, of issuing and
returning process and of making motions and orders. The office of the
clerk with the clerk or a deputy in attendance shall be open during
business hours on all days except Saturdays, Sundays, and legal
holidays, but a court may provide by local rule or order that the office
of its clerk shall be open for specified hours on Saturdays or on
particular legal holidays other than New Year's Day, Birthday of Martin
Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas
Day.
(b) The docket; calendar; other records required. -- The clerk
shall maintain a docket in such form as may be prescribed by the
Director of the Administrative Office of the United States Courts. The
clerk shall enter a record of all papers filed with the clerk and all
process, orders and judgments. An index of cases contained in the
docket shall be maintained as prescribed by the Director of the
Administrative Office of the United States Courts.
The clerk shall prepare, under the direction of the court, a calendar
of cases awaiting argument. In placing cases on the calendar for
argument, the clerk shall give preference to appeals in criminal cases
and to appeals and other proceedings entitled to preference by law.
The clerk shall keep such other books and records as may be required
from time to time by the Director of the Administrative Office of the
United States Courts with the approval of the Judicial Conference of the
United States, or as may be required by the court.
(c) Notice of orders or judgments. -- Immediately upon the entry of
an order or judgment the clerk shall serve a notice of entry by mail
upon each party to the proceeding together with a copy of any opinion
respecting the order or judgment, and shall make a note in the docket of
the mailing. Service on a party represented by counsel shall be made on
counsel.
(d) Custody of records and papers. -- The clerk shall have custody of
the records and papers of the court. The clerk shall not permit any
original record or paper to be taken from the clerk's custody except as
authorized by the orders or instructions of the court. Original papers
transmitted as the record on appeal or review shall upon disposition of
the case be returned to the court or agency from which they were
received. The clerk shall preserve copies of briefs and appendices and
other printed papers filed.
(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
July 1, 1986.)
The duties imposed upon clerks of the courts of appeals by this rule
are those imposed by rule or practice in a majority of the circuits.
The second sentence of subdivision (a) authorizing the closing of the
clerk's office on Saturday and non-national legal holidays follows a
similar provision respecting the district court clerk's office found in
FRCP 77(c) and in FRCrP 56.
The amendment adds Columbus Day to the list of legal holidays. See
the Note accompanying the amendment of Rule 26(a).
The amendment to Rule 45(b) permits the courts of appeals to maintain
computerized dockets. The Committee believes that the Administrative
Office of the United States Courts ought to have maximum flexibility in
prescribing the format of this docket in order to ensure a smooth
transition from manual to automated systems and subsequent adaptation to
technological improvements.
The amendments to Rules 45(a) and (d) are technical. No substantive
change is intended. The Birthday of Martin Luther King, Jr. has been
added to the list of national holidays.
Appointment and removal, see section 711 of this title.
Bonds of clerks, see section 951 of this title.
Costs and fees, payment by clerk into treasury, see section 711 of
this title.
Oath of office of clerks, see section 951 of this title.
Practice of law restricted, see section 955 of this title.
28 USC Rule 46. Attorneys
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
(a) Admission to the bar of a court of appeals; eligibility;
procedure for admission. -- An attorney who has been admitted to
practice before the Supreme Court of the United States, or the highest
court of a state, or another United States court of appeals, or a United
States district court (including the district courts for the Canal Zone,
Guam and the Virgin Islands), and who is of good moral and professional
character, is eligible for admission to the bar of a court of appeals.
An applicant shall file with the clerk of the court of appeals, on a
form approved by the court and furnished by the clerk, an application
for admission containing the applicant's personal statement showing
eligibility for membership. At the foot of the application the
applicant shall take and subscribe to the following oath or affirmation:
I, XXXXXXXXXXXXXXX, do solemnly swear (or affirm) that I will demean
myself as an attorney and counselor of this court, uprightly and
according to law; and that I will support the Constitution of the
United States.
Thereafter, upon written or oral motion of a member of the bar of the
court, the court will act upon the application. An applicant may be
admitted by oral motion in open court, but it is not necessary that the
applicant appear before the court for the purpose of being admitted,
unless the court shall otherwise order. An applicant shall upon
admission pay to the clerk the fee prescribed by rule or order of the
court.
(b) Suspension or disbarment. -- When it is shown to the court that
any member of its bar has been suspended or disbarred from practice in
any other court of record, or has been guilty of conduct unbecoming a
member of the bar of the court, the member will be subject to suspension
or disbarment by the court. The member shall be afforded an opportunity
to show good cause, within such time as the court shall prescribe, why
the member should not be suspended or disbarred. Upon the member's
response to the rule to show cause, and after hearing, if requested, or
upon expiration of the time prescribed for a response if no response is
made, the court shall enter an appropriate order.
(c) Disciplinary power of the court over attorneys. -- A court of
appeals may, after reasonable notice and an opportunity to show cause to
the contrary, and after hearing, if requested, take any appropriate
disciplinary action against any attorney who practices before it for
conduct unbecoming a member of the bar or for failure to comply with
these rules or any rule of the court.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
Subdivision (a). The basic requirement of membership in the bar of
the Supreme Court, or of the highest court of a state, or in another
court of appeals or a district court is found, with minor variations, in
the rules of ten circuits. The only other requirement in those circuits
is that the applicant be of good moral and professional character. In
the District of Columbia Circuit applicants other than members of the
District of Columbia District bar or the Supreme Court bar must claim
membership in the bar of the highest court of a state, territory or
possession for three years prior to application for admission (D.C. Cir.
Rule 7). Members of the District of Columbia District bar and the
Supreme Court bar again excepted, applicants for admission to the
District of Columbia Circuit bar must meet precisely defined prelaw and
law school study requirements (D.C. Cir. Rule 7 1/2).
A few circuits now require that application for admission be made by
oral motion by a sponsor member in open court. The proposed rule
permits both the application and the motion by the sponsor member to be
in writing, and permits action on the motion without the appearance of
the applicant or the sponsor, unless the court otherwise orders.
Subdivision (b). The provision respecting suspension or disbarment
is uniform. Third Circuit Rule 8(3) is typical.
Subdivision (c). At present only Fourth Circuit Rule 36 contains an
equivalent provision. The purpose of this provision is to make explicit
the power of a court of appeals to impose sanctions less serious than
suspension or disbarment for the breach of rules. It also affords some
measure of control over attorneys who are not members of the bar of the
court. Several circuits permit a non-member attorney to file briefs and
motions, membership being required only at the time of oral argument.
And several circuits permit argument pro hac vice by non-member
attorneys.
The amendments to Rules 46(a) and (b) are technical. No substantive
change is intended.
For termination of the United States District Court for the District
of the Canal Zone at end of the ''transition period'', being the
30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31,
1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977
and sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and
Intercourse.
Clerk as prohibited from practicing law, see section 955 of this
title.
Practice of law prohibited by United States marshal or deputy
marshal, see section 568 of this title.
28 USC Rule 47. Rules by courts of appeals
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Each court of appeals by action of a majority of the circuit judges
in regular active service may from time to time make and amend rules
governing its practice not inconsistent with these rules. In all cases
not provided for by rule, the courts of appeals may regulate their
practice in any manner not inconsistent with these rules. Copies of all
rules made by a court of appeals shall upon their promulgation be
furnished to the Administrative Office of the United States Courts.
This rule continues the authority now vested in individual courts of
appeals by 28 U.S.C. 2071 to make rules consistent with rules of
practice and procedure promulgated by the Supreme Court.
28 USC Rule 48. Title
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
These rules may be known and cited as the Federal Rules of Appellate
Procedure.
28 USC APPENDIX OF FORMS
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Form 1. Notice of Appeal to a Court of Appeals From a Judgment
or Order of a District Court
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC United States District Court for the XXXX District of XXXXXX
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC File Number XXXX
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
W Notice of Appeal
Notice is hereby given that C. D., defendant above named, hereby
appeals to the United States Court of Appeals for the XXXXX Circuit
(from the final judgment) (from the order (describing it)) entered in
this action on the XXX day of XXXXX, 19X.
28 USC Form 2. Notice of Appeal to a Court of Appeals From a Decision
of the Tax Court /1/
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC TAX COURT OF THE UNITED STATES
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC Washington, D.C.
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Docket No. XXXX
28 USC Notice of Appeal
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Notice is hereby given that A. B. hereby appeals to the United
States Court of Appeals for the XXXXXXXX Circuit from (that part of) the
decision of this court entered in the above captioned proceeding on the
XXXX day of XXXXXX, 19X (relating to XXXXXX).
28 USC Form 3. Petition for Review of Order of an Agency, Board,
Commission or Officer
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
Petition for Review
A. B. hereby petitions the court for review of the Order of the XYZ
Commission (describe the order) entered on XXXX, 19X.
28 USC Form 4. Affidavit to Accompany Motion for Leave to Appeal in
Forma Pauperis
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
28 USC United States District Court for the XXXX District of XXXX
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
No. XX
28 USC Affidavit in Support of Motion to Proceed on Appeal in Forma
Pauperis
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
I, XXXXXXXXXXXX being first duly sworn, depose and say that I am the
XXXXX, in the above-entitled case; that in support of my motion to
proceed on appeal without being required to prepay fees, costs or give
security therefor, I state that because of my poverty I am unable to pay
the costs of said proceeding or to give security therefor; that I
believe I am entitled to redress; and that the issues which I desire to
present on appeal are the following:
I further swear that the responses which I have made to the questions
and instructions below relating to my ability to pay the cost of
prosecuting the appeal are true.
1. Are you presently employed?
a. If the answer is yes, state the amount of your salary or wages per
month and give the name and address of your employer.
b. If the answer is no, state the date of your last employment and
the amount of the salary and wages per month which you received.
2. Have you received within the past twelve months any income from a
business, profession or other form of self-employment, or in the form of
rent payments, interest, dividends, or other source?
a. If the answer is yes, describe each source of income, and state
the amount received from each during the past twelve months.
3. Do you own any cash or checking or savings account?
a. If the answer is yes, state the total value of the items owned.
4. Do you own any real estate, stocks, bonds, notes, automobiles, or
other valuable property (excluding ordinary household furnishings and
clothing)?
a. If the answer is yes, describe the property and state its
approximate value.
5. List the persons who are dependent upon you for support and state
your relationship to those persons.
I understand that a false statement or answer to any questions in
this affidavit will subject me to penalties for perjury.
XXXXXXXXXXXX
SUBSCRIBED AND SWORN TO before me this XXXX day of XXXXXX, 19X.
Let the applicant proceed without prepayment of costs or fees or the
necessity of giving security therefor.
XXXXXXXXXXXX,
District Judge.
28 USC Form 5. Notice of Appeal to a Court of Appeals from a Judgment
or Order of a District Court or a Bankruptcy Appellate Panel
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
In re
File No. XXXXXX
28 USC Notice of Appeal to United States Court of Appeals for the XXXXXX
Circuit
TITLE 28, APPENDIX -- RULES OF APPELLATE PROCEDURE
XXXXXXXX, the plaintiff (or defendant or other party) appeals to the
United States Court of Appeals for the XXXXXX Circuit from the final
judgment (or order or decree) of the district court for the district of
XXXXXX (or bankruptcy appellate panel of the XXXXXX circuit), entered in
this case on XXXXXX, 19XX (here describe the judgment, order, or decree)
XXXXXXXXXX
The parties to the judgment (or order or decree) appealed from and
the names and addresses of their respective attorneys are as follows:
Dated XXXXXXXXXXXX
Signed XXXXXXXXXXXX
Attorney for Appellant
Address: XXXXXXXXXXX
XXXXXXXXXXXXXX
(As added Apr. 25, 1989, eff. Dec. 1, 1989.)
28 USC TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC FEDERAL RULES OF CIVIL PROCEDURE
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The original Rules of Civil Procedure for the District Courts were
adopted by order of the Supreme Court on Dec. 20, 1937, transmitted to
Congress by the Attorney General on Jan. 3, 1938, and became effective
on Sept. 16, 1938.
The Rules have been amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec.
27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949;
Apr. 30, 1951, eff. Aug. 1, 1951; Apr. 17, 1961, eff. July 19, 1961;
Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966;
Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1, 1970;
Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, and Dec. 18, 1972,
eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Oct. 21, 1980,
Pub. L. 96-481, title II, 205(a), (b), 94 Stat. 2330; Jan. 12, 1983,
Pub. L. 97-462, 2-4, 96 Stat. 2527-2530, eff. Feb. 26, 1983; Apr.
28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar.
2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov.
18, 1988, Pub. L. 100-690, title VII, 7047(b), 7049, 7050, 102 Stat.
4401; Apr. 30, 1991, eff. Dec. 1, 1991; Dec. 9, 1991, Pub. L.
102-198, 11, 105 Stat. 1626.
Procedure in original actions in Supreme Court of the United States,
Federal Rules of Civil Procedure as guide, see rule 17, this Appendix.
Rule
1. Scope of Rules.
2. One Form of Action.
PLEADINGS, MOTIONS, AND ORDERS
3. Commencement of Action.
4. Process.
(a) Summons: Issuance.
(b) Same: Form.
(c) Service.
(d) Summons and Complaint: Person To Be Served.
(e) Summons; Service Upon Party Not Inhabitant of or Found Within
State.
(f) Territorial Limits of Effective Service.
(g) Return.
(h) Amendment.
(i) Alternative Provisions for Service in a Foreign Country.
(1)
Manner.
(2)
Return.
(j) Summons: Time Limit for Service.
5. Service and Filing of Pleadings and Other Papers.
(a) Service: When Required.
(b) Same: How Made.
(c) Same: Numerous Defendants.
(d) Filing; Certificate of Service.
(e) Filing With the Court Defined.
6. Time.
(a) Computation.
(b) Enlargement.
((c) Rescinded.)
(d) For Motions -- Affidavits.
(e) Additional Time After Service by Mail.
7. Pleadings Allowed; Form of Motions.
(a) Pleadings.
(b) Motions and Other Papers.
(c) Demurrers, Pleas, etc., Abolished.
8. General Rules of Pleading.
(a) Claims for Relief.
(b) Defenses; Form of Denials.
(c) Affirmative Defenses.
(d) Effect of Failure To Deny.
(e) Pleading To Be Concise and Direct; Consistency.
(f) Construction of Pleadings.
9. Pleading Special Matters.
(a) Capacity.
(b) Fraud, Mistake, Condition of the Mind.
(c) Conditions Precedent.
(d) Official Document or Act.
(e) Judgment.
(f) Time and Place.
(g) Special Damage.
(h) Admiralty and Maritime Claims.
10. Form of Pleadings.
(a) Caption; Names of Parties.
(b) Paragraphs; Separate Statements.
(c) Adoption by Reference; Exhibits.
11. Signing of Pleadings, Motions, and Other Papers; Sanctions.
12. Defenses and Objections -- When and How Presented -- By Pleading
or Motion -- Motion for Judgment on Pleadings.
(a) When Presented.
(b) How Presented.
(c) Motion for Judgment on the Pleadings.
(d) Preliminary Hearings.
(e) Motion for More Definite Statement.
(f) Motion To Strike.
(g) Consolidation of Defenses in Motion.
(h) Waiver or Preservation of Certain Defenses.
13. Counterclaim and Cross-Claim.
(a) Compulsory Counterclaims.
(b) Permissive Counterclaims.
(c) Counterclaim Exceeding Opposing Claim.
(d) Counterclaim Against the United States.
(e) Counterclaim Maturing or Acquired After Pleading.
(f) Omitted Counterclaim.
(g) Cross-Claim Against Co-Party.
(h) Joinder of Additional Parties.
(i) Separate Trials; Separate Judgments.
14. Third-Party Practice.
(a) When Defendant May Bring in Third Party.
(b) When Plaintiff May Bring in Third Party.
(c) Admiralty and Maritime Claims.
15. Amended and Supplemental Pleadings.
(a) Amendments.
(b) Amendments To Conform to the Evidence.
(c) Relation Back of Amendments.
(d) Supplemental Pleadings.
16. Pretrial Conferences; Scheduling; Management.
(a) Pretrial Conferences; Objectives.
(b) Scheduling and Planning.
(c) Subjects To Be Discussed at Pretrial Conferences.
(d) Final Pretrial Conference.
(e) Pretrial Orders.
(f) Sanctions.
17. Parties Plaintiff and Defendant; Capacity.
(a) Real Party in Interest.
(b) Capacity To Sue or Be Sued.
(c) Infants or Incompetent Persons.
18. Joinder of Claims and Remedies.
(a) Joinder of Claims.
(b) Joinder of Remedies; Fraudulent Conveyances.
19. Joinder of Persons Needed for Just Adjudication.
(a) Persons To Be Joined if Feasible.
(b) Determination by Court Whenever Joinder Not Feasible.
(c) Pleading Reasons for Nonjoinder.
(d) Exception of Class Actions.
20. Permissive Joinder of Parties.
(a) Permissive Joinder.
(b) Separate Trials.
21. Misjoinder and Non-Joinder of Parties.
22. Interpleader.
23. Class Actions.
(a) Prerequisites to a Class Action.
(b) Class Actions Maintainable.
(c) Determination by Order Whether Class Action To Be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.
(d) Orders in Conduct of Actions.
(e) Dismissal or Compromise.
23.1. Derivative Actions by Shareholders.
23.2. Actions Relating to Unincorporated Associations.
24. Intervention.
(a) Intervention of Right.
(b) Permissive Intervention.
(c) Procedure.
25. Substitution of Parties.
(a) Death.
(b) Incompetency.
(c) Transfer of Interest.
(d) Public Officers; Death or Separation From Office.
26. General Provisions Governing Discovery.
(a) Discovery Methods.
(b) Discovery Scope and Limits.
(1)
In General.
(2)
Insurance Agreements.
(3)
Trial Preparation: Materials.
(4)
Trial Preparation: Experts.
(c) Protective Orders.
(d) Sequence and Timing of Discovery.
(e) Supplementation of Responses.
(f) Discovery Conference.
(g) Signing of Discovery Requests, Responses, and Objections.
27. Depositions Before Action or Pending Appeal.
(a) Before Action.
(1)
Petition.
(2)
Notice and Service.
(3)
Order and Examination.
(4)
Use of Deposition.
(b) Pending Appeal.
(c) Perpetuation by Action.
28. Persons Before Whom Depositions May Be Taken.
(a) Within the United States.
(b) In Foreign Countries.
(c) Disqualification for Interest.
29. Stipulations Regarding Discovery Procedure.
30. Depositions Upon Oral Examination.
(a) When Depositions May Be Taken.
(b) Notice of Examination: General Requirements; Special Notice;
NonStenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections.
(d) Motion To Terminate or Limit Examination.
(e) Submission to Witness; Changes; Signing.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice
of Filing.
(g) Failure To Attend or To Serve Subpoena; Expenses.
31. Depositions Upon Written Questions.
(a) Serving Questions; Notice.
(b) Officer To Take Responses and Prepare Record.
(c) Notice of Filing.
32. Use of Depositions in Court Proceedings.
(a) Use of Depositions.
(b) Objections to Admissibility.
((c) Abrogated.)
(d) Effect of Errors and Irregularities in Depositions.
(1)
As to Notice.
(2)
As to Disqualification of Officer.
(3)
As to Taking of Deposition.
(4)
As to Completion and Return of Deposition.
33. Interrogatories to Parties.
(a) Availability; Procedures for Use.
(b) Scope; Use at Trial.
(c) Option To Produce Business Records.
34. Production of Documents and Things and Entry Upon Land for
Inspection and Other Purposes.
(a) Scope.
(b) Procedure.
(c) Persons Not Parties.
35. Physical and Mental Examinations of Persons.
(a) Order for Examination.
(b) Report of Examiner.
36. Requests for Admission.
(a) Request for Admission.
(b) Effect of Admission.
37. Failure To Make or Cooperate in Discovery: Sanctions.
(a) Motion for Order Compelling Discovery.
(1)
Appropriate Court.
(2)
Motion.
(3)
Evasive or Incomplete Answer.
(4)
Award of Expenses of Motion.
(b) Failure To Comply With Order.
(1)
Sanctions by Court in District Where Deposition Is Taken.
(2)
Sanctions by Court in Which Action Is Pending.
(c) Expenses on Failure To Admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection.
((e) Abrogated.)
((f) Repealed.)
(g) Failure To Participate in the Framing of a Discovery Plan.
38. Jury Trial of Right.
(a) Right Preserved.
(b) Demand.
(c) Same: Specification of Issues.
(d) Waiver.
(e) Admiralty and Maritime Claims.
39. Trial by Jury or by the Court.
(a) By Jury.
(b) By the Court.
(c) Advisory Jury and Trial by Consent.
40. Assignment of Cases for Trial.
41. Dismissal of Actions.
(a) Voluntary Dismissal: Effect Thereof.
(1)
By Plaintiff; by Stipulation.
(2)
By Order of Court.
(b) Involuntary Dismissal: Effect Thereof.
(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
(d) Costs of Previously-Dismissed Action.
42. Consolidation; Separate Trials.
(a) Consolidation.
(b) Separate Trials.
43. Taking of Testimony.
(a) Form.
((b), (c) Abrogated.)
(d) Affirmation in Lieu of Oath.
(e) Evidence on Motions.
(f) Interpreters.
44. Proof of Official Record.
(a) Authentication.
(1)
Domestic.
(2)
Foreign.
(b) Lack of Record.
(c) Other Proof.
44.1. Determination of Foreign Law.
45. Subpoena.
(a) Form; Issuance.
(b) Service.
(c) Protection of Persons Subject to Subpoenas.
(d) Duties in Responding to Subpoena.
(e) Contempt.
46. Exceptions Unnecessary.
47. Selection of Jurors.
(a) Examination of Jurors.
(b) Peremptory Challenges.
(c) Excuse.
48. Number of Jurors -- Participation in Verdict.
49. Special Verdicts and Interrogatories.
(a) Special Verdicts.
(b) General Verdict Accompanied by Answer to Interrogatories.
50. Judgment as a Matter of Law in Actions Tried by Jury;
Alternative Motion for New Trial; Conditional Rulings.
(a) Judgment as a Matter of Law.
(b) Renewal of Motion for Judgment After Trial; Alternative Motion
for New Trial.
(c) Same: Conditional Rulings on Grant of Motion for Judgment as a
Matter of Law.
(d) Same: Denial of Motion for Judgment as a Matter of Law.
51. Instructions to Jury: Objection.
52. Findings by the Court; Judgment on Partial Findings.
(a) Effect.
(b) Amendment.
(c) Judgment on Partial Findings.
53. Masters.
(a) Appointment and Compensation.
(b) Reference.
(c) Powers.
(d) Proceedings.
(1)
Meetings.
(2)
Witnesses.
(3)
Statement of Accounts.
(e) Report.
(1)
Contents and Filing.
(2)
In Non-Jury Actions.
(3)
In Jury Actions.
(4)
Stipulation as to Findings.
(5)
Draft Report.
(f) Application to Magistrate.
54. Judgments; Costs.
(a) Definition; Form.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
(c) Demand for Judgment.
(d) Costs.
55. Default.
(a) Entry.
(b) Judgment.
(1)
By the Clerk.
(2)
By the Court.
(c) Setting Aside Default.
(d) Plaintiffs, Counterclaimants, Cross-Claimants.
(e) Judgment Against the United States.
56. Summary Judgment.
(a) For Claimant.
(b) For Defending Party.
(c) Motion and Proceedings Thereon.
(d) Case Not Fully Adjudicated on Motion.
(e) Form of Affidavits; Further Testimony; Defense Required.
(f) When Affidavits Are Unavailable.
(g) Affidavits Made in Bad Faith.
57. Declaratory Judgments.
58. Entry of Judgment.
59. New Trials; Amendment of Judgments.
(a) Grounds.
(b) Time for Motion.
(c) Time for Serving Affidavits.
(d) On Initiative of Court.
(e) Motion To Alter or Amend a Judgment.
60. Relief From Judgment or Order.
(a) Clerical Mistakes.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, Etc.
61. Harmless Error.
62. Stay of Proceedings To Enforce a Judgment.
(a) Automatic Stay; Exceptions -- Injunctions, Receiverships, and
Patent Accountings.
(b) Stay on Motion for New Trial or for Judgment.
(c) Injunction Pending Appeal.
(d) Stay Upon Appeal.
(e) Stay in Favor of the United States or Agency Thereof.
(f) Stay According to State Law.
(g) Power of Appellate Court Not Limited.
(h) Stay of Judgment as to Multiple Claims or Multiple Parties.
63. Inability of a Judge to Proceed.
64. Seizure of Person or Property.
65. Injunctions.
(a) Preliminary Injunction.
(1)
Notice.
(2)
Consolidation of Hearing With Trial on Merits.
(b) Temporary Restraining Order; Notice; Hearing; Duration.
(c) Security.
(d) Form and Scope of Injunction or Restraining Order.
(e) Employer and Employee; Interpleader; Constitutional Cases.
65.1 Security: Proceedings Against Sureties.
66. Receivers Appointed by Federal Courts.
67. Deposit in Court.
68. Offer of Judgment.
69. Execution.
(a) In General.
(b) Against Certain Public Officers.
70. Judgment for Specific Acts; Vesting Title.
71. Process in Behalf of and Against Persons Not Parties.
71A. Condemnation of Property.
(a) Applicability of Other Rules.
(b) Joinder of Properties.
(c) Complaint.
(1)
Caption.
(2)
Contents.
(3)
Filing.
(d) Process.
(1)
Notice; Delivery.
(2)
Same; Form.
(3)
Service of Notice.
(4)
Return; Amendment.
(e) Appearance or Answer.
(f) Amendment of Pleadings.
(g) Substitution of Parties.
(h) Trial.
(i) Dismissal of Action.
(1)
As of Right.
(2)
By Stipulation.
(3)
By Order of the Court.
(4)
Effect.
(j) Deposit and Its Distribution.
(k) Condemnation Under a State's Power of Eminent Domain.
(l) Costs.
72. Magistrates; Pretrial Orders.
(a) Nondispositive Matters.
(b) Dispositive Motions and Prisoner Petitions.
73. Magistrates; Trial by Consent and Appeal Options.
(a) Powers; Procedure.
(b) Consent.
(c) Normal Appeal Route.
(d) Optional Appeal Route.
74. Method of Appeal From Magistrate to District Judge Under Title
28, U.S.C. 636(c)(4) and Rule 73(d).
(a) When Taken.
(b) Notice of Appeal; Service.
(c) Stay Pending Appeal.
(d) Dismissal.
75. Proceedings on Appeal From Magistrate to District Judge Under
Rule 73(d).
(a) Applicability.
(b) Record on Appeal.
(1)
Composition.
(2)
Transcript.
(3)
Statement in Lieu of Transcript.
(c) Time for Filing Briefs.
(d) Length and Form of Briefs.
(e) Oral Argument.
76. Judgment of the District Judge on the Appeal Under Rule 73(d)
and Costs.
(a) Entry of Judgment.
(b) Stay of Judgments.
(c) Costs.
77. District Courts and Clerks.
(a) District Courts Always Open.
(b) Trials and Hearings; Orders in Chambers.
(c) Clerk's Office and Orders by Clerk.
(d) Notice of Orders or Judgments.
78. Motion Day.
79. Books and Records Kept by the Clerk and Entries Therein.
(a) Civil Docket.
(b) Civil Judgments and Orders.
(c) Indices; Calendars.
(d) Other Books and Records of the Clerk.
80. Stenographer; Stenographic Report or Transcript as Evidence.
((a), (b) Abrogated.)
(c) Stenographic Report or Transcript as Evidence.
81. Applicability in General.
(a) To What Proceedings Applicable.
(b) Scire Facias and Mandamus.
(c) Removed Actions.
((d) Abrogated.)
(e) Law Applicable.
(f) References to Officer of the United States.
82. Jurisdiction and Venue Unaffected.
83. Rules by District Courts.
84. Forms.
85. Title.
86. Effective Date.
(a) (Effective Date of Original Rules.)
(b) Effective Date of Amendments.
(c) Effective Date of Amendments.
(d) Effective Date of Amendments.
(e) Effective Date of Amendments.
Form
1. Summons.
1A. Notice of Lawsuit and Request for Waiver of Service of Summons
(Not Effective).
1B. Waiver of Service of Summons (Not Effective).
2. Allegation of Jurisdiction. 3. Complaint on a Promissory
Note. 4. Complaint on an Account. 5. Complaint for Goods Sold
and Delivered. 6. Complaint for Money Lent. 7. Complaint for
Money Paid by Mistake. 8. Complaint for Money Had and Received.
9. Complaint for Negligence.
10. Complaint for Negligence Where Plaintiff Is Unable To Determine
Definitely Whether the Person Responsible Is C.D. or E.F. or Whether
Both Are Responsible and Where His Evidence May Justify a Finding of
Wilfulness or of Recklessness or of Negligence.
11. Complaint for Conversion.
12. Complaint for Specific Performance of Contract To Convey Land.
13. Complaint on Claim for Debt and To Set Aside Fraudulent
Conveyance Under Rule 18(b).
14. Complaint for Negligence Under Federal Employer's Liability Act.
15. Complaint for Damages Under Merchant Marine Act.
16. Complaint for Infringement of Patent.
17. Complaint for Infringement of Copyright and Unfair Competition.
18. Complaint for Interpleader and Declaratory Relief.
18-A. Notice and Acknowledgment for Service by Mail.
19. Motion To Dismiss, Presenting Defenses of Failure To State a
Claim, of Lack of Service of Process, of Improper Venue, and of Lack of
Jurisdiction Under Rule 12(b).
20. Answer Presenting Defenses Under Rule 12(b).
21. Answer to Complaint Set Forth in Form 8, With Counterclaim for
Interpleader.
(22. Eliminated.)
22-A. Summons and Complaint Against Third-Party Defendant.
22-B. Motion To Bring in Third-Party Defendant.
23. Motion To Intervene as a Defendant under Rule 24.
24. Request for Production of Documents, etc., Under Rule 34.
25. Request for Admission Under Rule 36.
26. Allegation of Reason for Omitting Party.
(27. Abrogated.)
28. Notice: Condemnation.
29. Complaint: Condemnation.
30. Suggestion of Death Upon the Record Under Rule 25(a)(1).
31. Judgment on Jury Verdict.
32. Judgment on Decision by the Court.
33. Notice of Right To Consent to the Exercise of Civil Jurisdiction
by a Magistrate and Appeal Option.
34. Consent To Proceed Before a United States Magistrate, Election
of Appeal to District Judge, and Order of Reference.
Rule
A. Scope of Rules. B. Attachment and Garnishment: Special
Provisions.
(1) When Available; Complaint, Affidavit, Judicial Authorization,
and Process.
(2) Notice to Defendant.
(3) Answer.
(a)
By Garnishee.
(b)
By Defendant.
C. Actions in Rem: Special Provisions.
(1) When Available.
(2) Complaint.
(3) Judicial Authorization and Process.
(4) Notice.
(5) Ancillary Process.
(6) Claim and Answer; Interrogatories.
D. Possessory, Petitory, and Partition Actions. E. Actions in
Rem and Quasi in Rem: General Provisions.
(1) Applicability.
(2) Complaint; Security.
(a)
Complaint.
(b)
Security for Costs.
(3) Process.
(a)
Territorial Limits of Effective Service.
(b)
Issuance and Delivery.
(4) Execution of Process; Marshal's Return; Custody of Property;
Procedures for Release.
(a)
In General.
(b)
Tangible Property.
(c)
Intangible Property.
(d)
Directions with Respect to Property in Custody.
(e)
Expenses of Seizing and Keeping Property; Deposit.
(f)
Procedure for Release from Arrest or Attachment.
(5) Release of Property.
(a)
Special Bond.
(b)
General Bond.
(c)
Release by Consent, or Stipulation; Order of Court or Clerk; Costs.
(d)
Possessory, Petitory, and Partition Actions.
(6) Reduction or Impairment of Security.
(7) Security on Counterclaim.
(8) Restricted Appearance.
(9) Disposition of Property; Sales.
(a)
Actions for Forfeitures.
(b)
Interlocutory Sales.
(c)
Sales; Proceeds.
F. Limitation of Liability.
(1) Time for Filing Complaint; Security.
(2) Complaint.
(3) Claims Against Owner; Injunction.
(4) Notice to Claimants.
(5) Claims and Answer.
(6) Information To Be Given Claimants.
(7) Insufficiency of Fund or Security.
(8) Objections to Claims: Distribution of Fund.
(9) Venue; Transfer.
The Federal Rules of Civil Procedure supplant the Equity Rules since
in general they cover the field now covered by the Equity Rules and the
Conformity Act (former section 724 of this title).
This table shows the Equity Rules to which references are made in the
notes to the Federal Rules of Civil Procedure.
28 USC RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC I. SCOPE OF RULES -- ONE FORM OF ACTION
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 1. Scope of Rules
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
These rules govern the procedure in the United States district courts
in all suits of a civil nature whether cognizable as cases at law or in
equity or in admiralty, with the exceptions stated in Rule 81. They
shall be construed to secure the just, speedy, and inexpensive
determination of every action.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.
July 1, 1966.)
1. Rule 81 states certain limitations in the application of these
rules to enumerated special proceedings.
2. The expression ''district courts of the United States'' appearing
in the statute authorizing the Supreme Court of the United States to
promulgate rules of civil procedure does not include the district courts
held in the Territories and insular possessions. See Mookini et al. v.
United States, 303 U.S. 201, 58 S.Ct. 543, 82 L.Ed. 748 (1938).
3. These rules are drawn under the authority of the act of June 19,
1934, U.S.C., Title 28, 723b (see 2072) (Rules in actions at law;
Supreme Court authorized to make), and 723c (see 2072) (Union of equity
and action at law rules; power of Supreme Court) and also other grants
of rule making power to the Court. See Clark and Moore, A New Federal
Civil Procedure -- I. The Background, 44 Yale L.J. 387, 391 (1935).
Under 723b after the rules have taken effect all laws in conflict
therewith are of no further force or effect. In accordance with 723c
the Court has united the general rules prescribed for cases in equity
with those in actions at law so as to secure one form of civil action
and procedure for both. See Rule 2 (One Form of Action). For the
former practice in equity and at law see U.S.C., Title 28, 723 and 730
(see 2071 et seq.) (conferring power on the Supreme Court to make rules
of practice in equity) and the (former) Equity Rules promulgated
thereunder; U.S.C., Title 28, (former) 724 (Conformity act): (former)
Equity Rule 22 (Action at Law Erroneously Begun as Suit in Equity --
Transfer); (former) Equity Rule 23 (Matters Ordinarily Determinable at
Law When Arising in Suit in Equity to be Disposed of Therein); U.S.C.,
Title 28, (former) 397 (Amendments to pleadings when case brought to
wrong side of court), and 398 (Equitable defenses and equitable relief
in actions at law).
4. With the second sentence compare U.S.C., Title 28, (former) 777
(Defects of form; amendments), 767 (Amendment of process); (former)
Equity Rule 19 (Amendments Generally).
The amendment effective Oct. 20, 1949, substituted the words
''United States district courts'' for the words ''district courts of the
United States''.
This is the fundamental change necessary to effect unification of the
civil and admiralty procedure. Just as the 1938 rules abolished the
distinction between actions at law and suits in equity, this change
would abolish the distinction between civil actions and suits in
admiralty. See also Rule 81.
Jurisdiction and venue as unaffected by these rules, see rule 82.
Power of Supreme Court to prescribe rules of procedure and evidence,
see section 2072 of this title.
Puerto Rico, district court governed by the rules, see section 119 of
this title.
Virgin Islands, district court governed by the rules, see section
1615 of Title 48, Territories and Insular Possessions.
28 USC Rule 2. One Form of Action
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
There shall be one form of action to be known as ''civil action.''
1. This rule modifies U.S.C., Title 28, (former) 384 (Suits in
equity, when not sustainable). U.S.C., Title 28, 723 and 730 (see
2071 et seq.) (conferring power on the Supreme Court to make rules of
practice in equity), are unaffected insofar as they relate to the rule
making power in admiralty. These sections, together with 723b (see
2072) (Rules in actions at law; Supreme Court authorized to make) are
continued insofar as they are not inconsistent with 723c (see 2072)
(Union of equity and action at law rules; power of Supreme Court). See
Note 3 to Rule 1. U.S.C., Title 28, (former) 724 (Conformity act),
397 (Amendments to pleadings when case brought to wrong side of court)
and 398 (Equitable defenses and equitable relief in actions at law) are
superseded.
2. Reference to actions at law or suits in equity in all statutes
should now be treated as referring to the civil action prescribed in
these rules.
3. This rule follows in substance the usual introductory statements
to code practices which provide for a single action and mode of
procedure, with abolition of forms of action and procedural
distinctions. Representative statutes are N.Y. Code 1848 (Laws 1848,
ch. 379) 62; N.Y.C.P.A. (1937) 8; Calif.Code Civ.Proc. (Deering,
1937) 307; 2 Minn.Stat. (Mason, 1927) 9164; 2 Wash.Rev.Stat.Ann.
(Remington, 1932) 153, 255.
Injunctions, see rule 65.
Joinder of claims and remedies, see rule 18.
Receivers, see rule 66.
28 USC II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS,
MOTIONS, AND ORDERS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 3. Commencement of Action
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A civil action is commenced by filing a complaint with the court.
1. Rule 5(e) defines what constitutes filing with the court.
2. This rule governs the commencement of all actions, including those
brought by or against the United States or an officer or agency thereof,
regardless of whether service is to be made personally pursuant to Rule
4(d), or otherwise pursuant to Rule 4(e).
3. With this rule compare (former) Equity Rule 12 (Issue of Subpoena
-- Time for Answer) and the following statutes (and other similar
statutes) which provide a similar method for commencing an action:
U.S.C., Title 28:
45 (former) (District courts; practice and procedure in certain
cases under interstate commerce laws).
762 (see 1402) (Petition in suit against United States). 766
(see 2409) (Partition suits where United States is tenant in
common or joint tenant).
4. This rule provides that the first step in an action is the filing
of the complaint. Under Rule 4(a) this is to be followed forthwith by
issuance of a summons and its delivery to an officer for service. Other
rules providing for dismissal for failure to prosecute suggest a method
available to attack unreasonable delay in prosecuting an action after it
has been commenced. When a Federal or State statute of limitations is
pleaded as a defense, a question may arise under this rule whether the
mere filing of the complaint stops the running of the statute, or
whether any further step is required, such as, service of the summons
and complaint or their delivery to the marshal for service. The answer
to this question may depend on whether it is competent for the Supreme
Court, exercising the power to make rules of procedure without affecting
substantive rights, to vary the operation of statutes of limitations.
The requirement of Rule 4(a) that the clerk shall forthwith issue the
summons and deliver it to the marshal for service will reduce the
chances of such a question arising.
Filing with the court defined, see rule 5.
28 USC Rule 4. Process
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Summons: Issuance. Upon the filing of the complaint the clerk
shall forthwith issue a summons and deliver the summons to the plaintiff
or the plaintiff's attorney, who shall be responsible for prompt service
of the summons and a copy of the complaint. Upon request of the
plaintiff separate or additional summons shall issue against any
defendants.
(b) Same: Form. The summons shall be signed by the clerk, be under
the seal of the court, contain the name of the court and the names of
the parties, be directed to the defendant, state the name and address of
the plaintiff's attorney, if any, otherwise the plaintiff's address, and
the time within which these rules require the defendant to appear and
defend, and shall notify the defendant that in case of the defendant's
failure to do so judgment by default will be rendered against the
defendant for the relief demanded in the complaint. When, under Rule
4(e), service is made pursuant to a statute or rule of court of a state,
the summons, or notice, or order in lieu of summons shall correspond as
nearly as may be to that required by the statute or rule.
(c) Service.
(1) Process, other than a subpoena or a summons and complaint, shall
be served by a United States marshal or deputy United States marshal, or
by a person specially appointed for that purpose.
(2)(A) A summons and complaint shall, except as provided in
subparagraphs (B) and (C) of this paragraph, be served by any person who
is not a party and is not less than 18 years of age.
(B) A summons and complaint shall, at the request of the party
seeking service or such party's attorney, be served by a United States
marshal or deputy United States marshal, or by a person specially
appointed by the court for that purpose, only --
(i) on behalf of a party authorized to proceed in forma pauperis
pursuant to Title 28, U.S.C. 1915, or of a seaman authorized to proceed
under Title 28, U.S.C. 1916,
(ii) on behalf of the United States or an officer or agency of the
United States, or
(iii) pursuant to an order issued by the court stating that a United
States marshal or deputy United States marshal, or a person specially
appointed for that purpose, is required to serve the summons and
complaint in order that service be properly effected in that particular
action.
(C) A summons and complaint may be served upon a defendant of any
class referred to in paragraph (1) or (3) of subdivision (d) of this
rule --
(i) pursuant to the law of the State in which the district court is
held for the service of summons or other like process upon such
defendant in an action brought in the courts of general jurisdiction of
that State, or
(ii) by mailing a copy of the summons and of the complaint (by
first-class mail, postage prepaid) to the person to be served, together
with two copies of a notice and acknowledgment conforming substantially
to form 18-A and a return envelope, postage prepaid, addressed to the
sender. If no acknowledgment of service under this subdivision of this
rule is received by the sender within 20 days after the date of mailing,
service of such summons and complaint shall be made under subparagraph
(A) or (B) of this paragraph in the manner prescribed by subdivision
(d)(1) or (d)(3).
(D) Unless good cause is shown for not doing so the court shall order
the payment of the costs of personal service by the person served if
such person does not complete and return within 20 days after mailing,
the notice and acknowledgment of receipt of summons.
(E) The notice and acknowledgment of receipt of summons and complaint
shall be executed under oath or affirmation.
(3) The court shall freely make special appointments to serve
summonses and complaints under paragraph (2)(B) of this subdivision of
this rule and all other process under paragraph (1) of this subdivision
of this rule.
(d) Summons and Complaint: Person To Be Served. The summons and
complaint shall be served together. The plaintiff shall furnish the
person making service with such copies as are necessary. Service shall
be made as follows:
(1) Upon an individual other than an infant or an incompetent person,
by delivering a copy of the summons and of the complaint to the
individual personally or by leaving copies thereof at the individual's
dwelling house or usual place of abode with some person of suitable age
and discretion then residing therein or by delivering a copy of the
summons and of the complaint to an agent authorized by appointment or by
law to receive service of process.
(2) Upon an infant or an incompetent person, by serving the summons
and complaint in the manner prescribed by the law of the state in which
the service is made for the service of summons or other like process
upon any such defendant in an action brought in the courts of general
jurisdiction of that state.
(3) Upon a domestic or foreign corporation or upon a partnership or
other unincorporated association which is subject to suit under a common
name, by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent authorized
by appointment or by law to receive service of process and, if the agent
is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant.
(4) Upon the United States, by delivering a copy of the summons and
of the complaint to the United States attorney for the district in which
the action is brought or to an assistant United States attorney or
clerical employee designated by the United States attorney in a writing
filed with the clerk of the court and by sending a copy of the summons
and of the complaint by registered or certified mail to the Attorney
General of the United States at Washington, District of Columbia, and in
any action attacking the validity of an order of an officer or agency of
the United States not made a party, by also sending a copy of the
summons and of the complaint by registered or certified mail to such
officer or agency.
(5) Upon an officer or agency of the United States, by serving the
United States and by sending a copy of the summons and of the complaint
by registered or certified mail to such officer or agency. If the
agency is a corporation the copy shall be delivered as provided in
paragraph (3) of this subdivision of this rule.
(6) Upon a state or municipal corporation or other governmental
organization thereof subject to suit, by delivering a copy of the
summons and of the complaint to the chief executive officer thereof or
by serving the summons and complaint in the manner prescribed by the law
of that state for the service of summons or other like process upon any
such defendant.
(e) Summons: Service Upon Party Not Inhabitant of or Found Within
State. Whenever a statute of the United States or an order of court
thereunder provides for service of a summons, or of a notice, or of an
order in lieu of summons upon a party not an inhabitant of or found
within the state in which the district court is held, service may be
made under the circumstances and in the manner prescribed by the statute
or order, or, if there is no provision therein prescribing the manner of
service, in a manner stated in this rule. Whenever a statute or rule of
court of the state in which the district court is held provides (1) for
service of a summons, or of a notice, or of an order in lieu of summons
upon a party not an inhabitant of or found within the state, or (2) for
service upon or notice to such a party to appear and respond or defend
in an action by reason of the attachment or garnishment or similar
seizure of the party's property located within the state, service may in
either case be made under the circumstances and in the manner prescribed
in the statute or rule.
(f) Territorial Limits of Effective Service. All process other than
a subpoena may be served anywhere within the territorial limits of the
state in which the district court is held, and, when authorized by a
statute of the United States or by these rules, beyond the territorial
limits of that state. In addition, persons who are brought in as
parties pursuant to Rule 14, or as additional parties to a pending
action or a counterclaim or cross-claim therein pursuant to Rule 19, may
be served in the manner stated in paragraphs (1)-(6) of subdivision (d)
of this rule at all places outside the state but within the United
States that are not more than 100 miles from the place in which the
action is commenced, or to which it is assigned or transferred for
trial; and persons required to respond to an order of commitment for
civil contempt may be served at the same places. A subpoena may be
served within the territorial limits provided in Rule 45.
(g) Return. The person serving the process shall make proof of
service thereof to the court promptly and in any event within the time
during which the person served must respond to the process. If service
is made by a person other than a United States marshal or deputy United
States marshal, such person shall make affidavit thereof. If service is
made under subdivision (c)(2)(C)(ii) of this rule, return shall be made
by the sender's filing with the court the acknowledgment received
pursuant to such subdivision. Failure to make proof of service does not
affect the validity of the service.
(h) Amendment. At any time in its discretion and upon such terms as
it deems just, the court may allow any process or proof of service
thereof to be amended, unless it clearly appears that material prejudice
would result to the substantial rights of the party against whom the
process issued.
(i) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When the federal or state law referred to in subdivision
(e) of this rule authorizes service upon a party not an inhabitant of or
found within the state in which the district court is held, and service
is to be effected upon the party in a foreign country, it is also
sufficient if service of the summons and complaint is made: (A) in the
manner prescribed by the law of the foreign country for service in that
country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter
rogatory, when service in either case is reasonably calculated to give
actual notice; or (C) upon an individual, by delivery to the individual
personally, and upon a corporation or partnership or association, by
delivery to an officer, a managing or general agent; or (D) by any form
of mail, requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the party to be served; or (E) as directed by
order of the court. Service under (C) or (E) above may be made by any
person who is not a party and is not less than 18 years of age or who is
designated by order of the district court or by the foreign court. On
request, the clerk shall deliver the summons to the plaintiff for
transmission to the person or the foreign court or officer who will make
the service.
(2) Return. Proof of service may be made as prescribed by
subdivision (g) of this rule, or by the law of the foreign country, or
by order of the court. When service is made pursuant to subparagraph
(1)(D) of this subdivision, proof of service shall include a receipt
signed by the addressee or other evidence of delivery to the addressee
satisfactory to the court.
(j) Summons: Time Limit for Service. If a service of the summons
and complaint is not made upon a defendant within 120 days after the
filing of the complaint and the party on whose behalf such service was
required cannot show good cause why such service was not made within
that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or
upon motion. This subdivision shall not apply to service in a foreign
country pursuant to subdivision (i) of this rule.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Jan. 12, 1983, Pub.
L. 97-462, 2, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1, 1987.)
Note to Subdivision (a). With the provision permitting additional
summons upon request of the plaintiff compare (former) Equity Rule 14
(Alias Subpoena) and the last sentence of (former) Equity Rule 12 (Issue
of Subpoena -- Time for Answer).
Note to Subdivision (b). This rule prescribes a form of summons
which follows substantially the requirements stated in (former) Equity
Rules 12 (Issue of Subpoena -- Time for Answer) and 7 (Process, Mesne
and Final).
U.S.C., Title 28, 721 (now 1691) (Sealing and testing of writs) is
substantially continued insofar as it applies to a summons, but its
requirements as to teste of process are superseded. U.S.C., Title 28,
(former) 722 (Teste of process, day of), is superseded.
See Rule 12(a) for a statement of the time within which the defendant
is required to appear and defend.
Note to Subdivision (c). This rule does not affect U.S.C., Title 28,
503 (see 566), as amended June 15, 1935 (Marshals; duties) and such
statutes as the following insofar as they provide for service of process
by a marshal, but modifies them insofar as they may imply service by a
marshal only:
U.S.C., Title 15:
5 (Bringing in additional parties) (Sherman Act) 10 (Bringing in
additional parties) 25 (Restraining violations; procedure)
U.S.C., Title 28:
45 (former) (Practice and procedure in certain cases under the
interstate commerce laws)
Compare (former) Equity Rule 15 (Process, by Whom Served).
Note to Subdivision (d). Under this rule the complaint must always
be served with the summons.
Paragraph (1). For an example of a statute providing for service
upon an agent of an individual see U.S.C., Title 28, 109 (now 1400,
1694) (Patent cases).
Paragraph (3). This enumerates the officers and agents of a
corporation or of a partnership or other unincorporated association upon
whom service of process may be made, and permits service of process only
upon the officers, managing or general agents, or agents authorized by
appointment or by law, of the corporation, partnership or unincorporated
association against which the action is brought. See Christian v.
International Ass'n of Machinists, 7 F.(2d) 481 (D.C.Ky., 1925) and
Singleton v. Order of Railway Conductors of America, 9 F.Supp. 417
(D.C.Ill., 1935). Compare Operative Plasterers' and Cement Finishers'
International Ass'n of the United States and Canada v. Case, 93 F.(2d)
56 (App.D.C., 1937).
For a statute authorizing service upon a specified agent and
requiring mailing to the defendant, see U.S.C., Title 6, 7 (now Title
31, 9306) (Surety companies as sureties; appointment of agents;
service of process).
Paragraphs (4) and (5) provide a uniform and comprehensive method of
service for all actions against the United States or an officer or
agency thereof. For statutes providing for such service, see U.S.C.,
Title 7, 217 (Proceedings for suspension of orders), 499k
(Injunctions; application of injunction laws governing orders of
Interstate Commerce Commission), 608c(15)(B) (Court review of ruling of
Secretary of Agriculture), and 855 (making 608c(15)(B) applicable to
orders of the Secretary of Agriculture as to handlers of
anti-hog-cholera serum and hog-cholera virus); U.S.C., Title 26,
(former) 1569 (Bill in chancery to clear title to realty on which the
United States has a lien for taxes); U.S.C., Title 28, (former) 45
(District Courts; practice and procedure in certain cases under the
interstate commerce laws), (former) 763 (Petition in suit against the
United States; service; appearance by district attorney), 766 (now
2409) (Partition suits where United States is tenant in common or joint
tenant), 902 (now 2410) (Foreclosure of mortgages or other liens on
property in which the United States has an interest). These and similar
statutes are modified insofar as they prescribe a different method of
service or dispense with the service of a summons.
For the (former) Equity Rule on service, see (former) Equity Rule 13
(Manner of Serving Subpoena).
Note to Subdivision (e). The provisions for the service of a summons
or of notice or of an order in lieu of summons contained in U.S.C.,
Title 8, 405 (see 1451) (Cancellation of certificates of citizenship
fraudulently or illegally procured) (service by publication in
accordance with State law); U.S.C., Title 28, 118 (now 1655) (Absent
defendants in suits to enforce liens); U.S.C., Title 35, 72a (now 146,
291) (Jurisdiction of District Court of United States for the District
of Columbia in certain equity suits where adverse parties reside
elsewhere) (service by publication against parties residing in foreign
countries); U.S.C., Title 38, 445 (now 1984) (Action against the
United States on a veteran's contract of insurance) (parties not
inhabitants of or not found within the District may be served with an
order of the court, personally or by publication) and similar statutes
are continued by this rule. Title 24, 378 (now Title 13, 336) of the
Code of the District of Columbia (Publication against nonresident;
those absent for six months; unknown heirs or devisees; for divorce or
in rem; actual service beyond District) is continued by this rule.
Note to Subdivision (f). This rule enlarges to some extent the
present rule as to where service may be made. It does not, however,
enlarge the jurisdiction of the district courts.
U.S.C., Title 28, 113 (now 1392) (Suits in States containing more
than one district) (where there are two or more defendants residing in
different districts), (former) 115 (Suits of a local nature), 116 (now
1392) (Property in different districts in same State), (former) 838
(Executions run in all districts of State); U.S.C., Title 47, 13
(Action for damages against a railroad or telegraph company whose
officer or agent in control of a telegraph line refuses or fails to
operate such line in a certain manner -- ''upon any agent of the company
found in such state''); U.S.C., Title 49, 321(c) (now 10330(b))
(Requiring designation of a process agent by interstate motor carriers
and in case of failure so to do, service may be made upon any agent in
the State) and similar statutes, allowing the running of process
throughout a State, are substantially continued.
U.S.C., Title 15, 5 (Bringing in additional parties) (Sherman Act),
25 (Restraining violations; procedure); U.S.C., Title 28, 44 (now
2321) (Procedure in certain cases under interstate commerce laws;
service of processes of court), 117 (now 754, 1692) (Property in
different States in same circuit; jurisdiction of receiver), 839 (now
2413) (Executions; run in every State and Territory) and similar
statutes, providing for the running of process beyond the territorial
limits of a State, are expressly continued.
Note to Subdivision (g). With the second sentence compare (former)
Equity Rule 15 (Process, by Whom Served).
Note to Subdivision (h). This rule substantially continues U.S.C.,
Title 28, (former) 767 (Amendment of process).
Subdivision (b). Under amended subdivision (e) of this rule, an
action may be commenced against a nonresident of the State in which the
district court is held by complying with State procedures. Frequently
the form of the summons or notice required in these cases by State law
differs from the Federal form of summons described in present
subdivision (b) and exemplified in Form 1. To avoid confusion, the
amendment of subdivision (b) states that a form of summons or notice,
corresponding ''as nearly as may be'' to the State form, shall be
employed. See also a corresponding amendment of Rule 12(a) with regard
to the time to answer.
Subdivision (d)(4). This paragraph, governing service upon the
United States, is amended to allow the use of certified mail as an
alternative to registered mail for sending copies of the papers to the
Attorney General or to a United States officer or agency. Cf. N.J.
Rule 4:5-2. See also the amendment of Rule 30(f)(1).
Subdivision (d)(7). Formerly a question was raised whether this
paragraph, in the context of the rule as a whole, authorized service in
original Federal actions pursuant to State statutes permitting service
on a State official as a means of bringing a nonresident motorist
defendant into court. It was argued in McCoy v. Siler, 205 F.2d 498,
501-2 (3d Cir.) (concurring opinion), cert. denied, 346 U.S. 872, 74
S.Ct. 120, 98 L.Ed. 380 (1953), that the effective service in those
cases occurred not when the State official was served but when notice
was given to the defendant outside the State, and that subdivision (f)
(Territorial limits of effective service), as then worded, did not
authorize out-of-State service. This contention found little support.
A considerable number of cases held the service to be good, either by
fixing upon the service on the official within the State as the
effective service, thus satisfying the wording of subdivision (f) as it
then stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D.Md. 1955);
Pasternack v. Dalo, 17 F.R.D. 420; (W.D.Pa. 1955); cf. Super Prods.
Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading paragraph
(7) as not limited by subdivision (f). See Griffin v. Ensign, 234 F.2d
307 (3d Cir. 1956); 2 Moore's Federal Practice, 4.19 (2d ed. 1948); 1
Barron & Holtzoff, Federal Practice & Procedure 182.1 (Wright ed.
1960); Comment, 27 U. of Chi.L.Rev. 751 (1960). See also Olberding v.
Illinois Central R.R., 201 F.2d 582 (6th Cir.), rev'd on other grounds,
346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); Feinsinger v. Bard, 195
F.2d 45 (7th Cir. 1952).
An important and growing class of State statutes base personal
jurisdiction over nonresidents on the doing of acts or on other contacts
within the State, and permit notice to be given the defendant outside
the State without any requirement of service on a local State official.
See, e.g., Ill.Ann.Stat. ch. 110, 16, 17 (Smith-Hurd 1956); Wis.Stat.
262.06 (1959). This service, employed in original Federal actions
pursuant to paragraph (7), has also been held proper. See Farr & Co.
v. Cia. Intercontinental de Nav. de Cuba, 243 F.2d 342 (2d Cir. 1957);
Kappus v. Western Hills Oil, Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star
v. Rogalny, 162 F.Supp. 181 (E.D.Ill. 1957). It has also been held
that the clause of paragraph (7) which permits service ''in the manner
prescribed by the law of the state,'' etc., is not limited by
subdivision (c) requiring that service of all process be made by certain
designated persons. See Farr & Co. v. Cia. Intercontinental de Nav.
de Cuba, supra. But cf. Sappia v. Lauro Lines, 130 F.Supp. 810
(S.D.N.Y. 1955).
The salutary results of these cases are intended to be preserved.
See paragraph (7), with a clarified reference to State law, and amended
subdivisions (e) and (f).
Subdivision (e). For the general relation between subdivisions (d)
and (e), see 2 Moore, supra, 4.32.
The amendment of the first sentence inserting the word ''thereunder''
supports the original intention that the ''order of court'' must be
authorized by a specific United States statute. See 1 Barron &
Holtzoff, supra, at 731. The clause added at the end of the first
sentence expressly adopts the view taken by commentators that, if no
manner of service is prescribed in the statute or order, the service may
be made in a manner stated in Rule 4. See 2 Moore, supra, 4.32, at
1004; Smit, International Aspects of Federal Civil Procedure, 61
Colum.L.Rev. 1031, 1036-39 (1961). But see Commentary, 5 Fed. Rules
Serv. 791 (1942).
Examples of the statutes to which the first sentence relates are 28
U.S.C. 2361 (Interpleader; process and procedure); 28 U.S.C. 1655
(Lien enforcement; absent defendants).
The second sentence, added by amendment, expressly allows resort in
original Federal actions to the procedures provided by State law for
effecting service on nonresident parties (as well as on domiciliaries
not found within the State). See, as illustrative, the discussion under
amended subdivision (d)(7) of service pursuant to State nonresident
motorist statutes and other comparable State statutes. Of particular
interest is the change brought about by the reference in this sentence
to State procedures for commencing actions against nonresidents by
attachment and the like, accompanied by notice. Although an action
commenced in a State court by attachment may be removed to the Federal
court if ordinary conditions for removal are satisfied, see 28 U.S.C.
1450; Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83
L.Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51 L.Ed.
138 (1906), there has heretofore been no provision recognized by the
courts for commencing an original Federal civil action by attachment.
See Currie, Attachment and Garnishment in the Federal Courts, 59
Mich.L.Rev. 337 (1961), arguing that this result came about through
historical anomaly. Rule 64, which refers to attachment, garnishment,
and similar procedures under State law, furnishes only provisional
remedies in actions otherwise validly commenced. See Big Vein Coal Co.
v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1953 (1913); Davis v.
Ensign-Bickford Co., 139 F.2d 624 (8th Cir. 1944); 7 Moore's Federal
Practice 64.05 (2d ed. 1954); 3 Barron & Holtzoff, Federal Practice &
Procedure 1423 (Wright ed. 1958); but cf. Note, 13 So.Calif.L.Rev.
361 (1940). The amendment will now permit the institution of original
Federal actions against nonresidents through the use of familiar State
procedures by which property of these defendants is brought within the
custody of the court and some appropriate service is made up them.
The necessity of satisfying subject-matter jurisdictional
requirements and requirements of venue will limit the practical
utilization of these methods of effecting service. Within those limits,
however, there appears to be no reason for denying plaintiffs means of
commencing actions in Federal courts which are generally available in
the State courts. See 1 Barron & Holtzoff, supra, at 374-80; Nordbye,
Comments on Proposed Amendments to Rules of Civil Procedure for the
United States District Courts, 18 F.R.D. 105, 106 (1956); Note, 34
Corn.L.Q. 103 (1948); Note, 13 So.Calif.L.Rev. 361 (1940).
If the circumstances of a particular case satisfy the applicable
Federal law (first sentence of Rule 4(e), as amended) and the applicable
State law (second sentence), the party seeking to make the service may
proceed under the Federal or the State law, at his option.
See also amended Rule 13(a), and the Advisory Committee's Note
thereto.
Subdivision (f). The first sentence is amended to assure the
effectiveness of service outside the territorial limits of the State in
all the cases in which any of the rules authorize service beyond those
boundaries. Besides the preceding provisions of Rule 4, see Rule
71A(d)(3). In addition, the new second sentence of the subdivision
permits effective service within a limited area outside the State in
certain special situations, namely, to bring in additional parties to a
counterclaim or cross-claim (Rule 13(h)), impleaded parties (Rule 14),
and indispensable or conditionally necessary parties to a pending action
(Rule 19); and to secure compliance with an order of commitment for
civil contempt. In those situations effective service can be made at
points not more than 100 miles distant from the courthouse in which the
action is commenced, or to which it is assigned or transferred for
trial.
The bringing in of parties under the 100-mile provision in the
limited situations enumerated is designed to promote the objective of
enabling the court to determine entire controversies. In the light of
present-day facilities for communication and travel, the territorial
range of the service allowed, analogous to that which applies to the
service of a subpoena under Rule 45(e)(1), can hardly work hardship on
the parties summoned. The provision will be especially useful in
metropolitan areas spanning more than one State. Any requirements of
subject-matter jurisdiction and venue will still have to be satisfied as
to the parties brought in, although these requirements will be eased in
some instances when the parties can be regarded as ''ancillary.'' See
Pennsylvania R.R. v. Erie Avenue Warehouse Co., 5 F.R.Serv.2d 14a.62,
Case 2 (3d Cir. 1962); Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959);
United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2d
Cir. 1955); Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir.
1944); Vaughn v. Terminal Transp. Co., 162 F.Supp. 647 (E.D.Tenn.
1957); and compare the fifth paragraph of the Advisory Committee's Note
to Rule 4(e), as amended. The amendment is but a moderate extension of
the territorial reach of Federal process and has ample practical
justification. See 2 Moore, supra. 4.01(13) (Supp. 1960); 1 Barron &
Holtzoff, supra, 184; Note, 51 Nw.U.L.Rev. 354 (1956). But cf.
Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for
the United States District Courts, 18 F.R.D. 105, 106 (1956).
As to the need for enlarging the territorial area in which orders of
commitment for civil contempt may be served, see Graber v. Graber, 93
F.Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine Tree Products
Co., Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v. Dexter, 244 Fed.
926 (1st Cir. 1917); in re Graves, 29 Fed. 60 (N.D. Iowa 1886).
As to the Court's power to amend subdivisions (e) and (f) as here set
forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66 S.Ct.
242, 90 L.Ed. 185 (1946).
Subdivision (i). The continual increase of civil litigation having
international elements makes it advisable to consolidate, amplify, and
clarify the provisions governing service upon parties in foreign
countries. See generally Jones, International Judicial Assistance:
Procedural Chaos and a Program for Reform, 62 Yale L.J. 515 (1953);
Longley, Serving Process, Subpoenas and Other Documents in Foreign
Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34 (1959); Smit,
International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031
(1961).
As indicated in the opening lines of new subdivision (i), referring
to the provisions of subdivision (e), the authority for effecting
foreign service must be found in a statute of the United States or a
statute or rule of court of the State in which the district court is
held providing in terms or upon proper interpretation for service abroad
upon persons not inhabitants of or found within the State. See the
Advisory Committee's Note to amended Rule 4(d)(7) and Rule 4(e). For
examples of Federal and State statutes expressly authorizing such
service, see 8 U.S.C. 1451(b); 35 U.S.C. 146, 293; Me.Rev.Stat.,
ch. 22, 70 (Supp. 1961); Minn.Stat.Ann. 303.13 (1947); N.Y.Veh. &
Tfc.Law 253. Several decisions have construed statutes to permit
service in foreign countries, although the matter is not expressly
mentioned in the statutes. See, e.g., Chapman v. Superior Court, 162
Cal.App.2d 421, 328 P.2d 23 (Dist.Ct.App. 1958); Sperry v. Fliegers,
194 Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing v. Thompson, 233
N.C. 564, 65 S.E.2d 17 (1951); Rushing v. Bush, 260 S.W.2d 900
(Tex.Ct.Civ.App. 1953). Federal and State statutes authorizing service
on nonresidents in such terms as to warrant the interpretation that
service abroad is permissible include 15 U.S.C. 77v(a), 78aa, 79y; 28
U.S.C. 1655; 38 U.S.C. 784(a); Ill.Ann.Stat. ch. 110, 16, 17
(Smith-Hurd 1956); Wis.Stat. 262.06 (1959).
Under subdivisions (e) and (i), when authority to make foreign
service is found in a Federal statute or statute or rule of court of a
State, it is always sufficient to carry out the service in the manner
indicated therein. Subdivision (i) introduces considerable further
flexibility by permitting the foreign service and return thereof to be
carried out in any of a number of other alternative ways that are also
declared to be sufficient. Other aspects of foreign service continue to
be governed by the other provisions of Rule 4. Thus, for example,
subdivision (i) effects no change in the form of the summons, or the
issuance of separate or additional summons, or the amendment of service.
Service of process beyond the territorial limits of the United States
may involve difficulties not encountered in the case of domestic
service. Service abroad may be considered by a foreign country to
require the performance of judicial, and therefore ''sovereign,'' acts
within its territory, which that country may conceive to be offensive to
its policy or contrary to its law. See Jones, supra, at 537. For
example, a person not qualified to serve process according to the law of
the foreign country may find himself subject to sanctions if he attempts
service therein. See Inter-American Judicial Committee, Report on
Uniformity of Legislation on International Cooperation in Judicial
Procedures 20 (1952). The enforcement of a judgment in the foreign
country in which the service was made may be embarrassed or prevented if
the service did not comport with the law of that country. See ibid.
One of the purposes of subdivision (i) is to allow accommodation to
the policies and procedures of the foreign country. It is emphasized,
however, that the attitudes of foreign countries vary considerably and
that the question of recognition of United States judgments abroad is
complex. Accordingly, if enforcement is to be sought in the country of
service, the foreign law should be examined before a choice is made
among the methods of service allowed by subdivision (i).
Subdivision (i)(1). Subparagraph (a) of paragraph (1), permitting
service by the method prescribed by the law of the foreign country for
service on a person in that country in a civil action in any of its
courts of general jurisdiction, provides an alternative that is likely
to create least objection in the place of service and also is likely to
enhance the possibilities of securing ultimate enforcement of the
judgment abroad. See Report on Uniformity of Legislation on
International Cooperation in Judicial Procedures, supra.
In certain foreign countries service in aid of litigation pending in
other countries can lawfully be accomplished only upon request to the
foreign court, which in turn directs the service to be made. In many
countries this has long been a customary way of accomplishing the
service. See In re Letters Rogatory out of First Civil Court of City of
Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones, supra, at 543; Comment,
44 Colum.L.Rev. 72 (1944); Note, 58 Yale L.J. 1193 (1949).
Subparagraph (B) of paragraph (1), referring to a letter rogatory,
validates this method. A proviso, applicable to this subparagraph and
the preceding one, requires, as a safeguard, that the service made shall
be reasonably calculated to give actual notice of the proceedings to the
party. See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278
(1940).
Subparagraph (C) of paragraph (1), permitting foreign service by
personal delivery on individuals and corporations, partnerships, and
associations, provides for a manner of service that is not only
traditionally preferred, but also is most likely to lead to actual
notice. Explicit provision for this manner of service was thought
desirable because a number of Federal and State statutes permitting
foreign service do not specifically provide for service by personal
delivery abroad, see e.g., 35 U.S.C. 146, 293; 46 U.S.C. 1292;
Calif.Ins.Code 1612; N.Y.Veh. & Tfc.Law 253, and it also may be
unavailable under the law of the country in which the service is made.
Subparagraph (D) of paragraph (1), permitting service by certain
types of mail, affords a manner of service that is inexpensive and
expeditious, and requires a minimum of activity within the foreign
country. Several statutes specifically provide for service in a foreign
country by mail, e.g., Hawaii Rev.Laws 230-31, 230-32 (1955);
Minn.Stat.Ann. 303.13 (1947); N.Y.Civ.Prac.Act, 229-b; N.Y.Veh. &
Tfc.Law 253, and it has been sanctioned by the courts even in the
absence of statutory provision specifying that form of service. Zurini
v. United States, 189 F.2d 722 (8th Cir. 1951); United States v.
Cardillo, 135 F.Supp. 798 (W.D.Pa. 1955); Autogiro Co. v. Kay
Gyroplanes, Ltd., 55 F.Supp. 919 (D.D.C. 1944). Since the reliability of
postal service may vary from country to country, service by mail is
proper only when it is addressed to the party to be served and a form of
mail requiring a signed receipt is used. An additional safeguard is
provided by the requirement that the mailing be attended to be the clerk
of the court. See also the provisions of paragraph (2) of this
subdivision (i) regarding proof of service by mail.
Under the applicable law it may be necessary, when the defendant is
an infant or incompetent person, to deliver the summons and complaint to
a guardian, committee, or similar fiduciary. In such a case it would be
advisable to make service under subparagraph (A), (B), or (E).
Subparagraph (E) of paragraph (1) adds flexibility by permitting the
court by order to tailor the manner of service to fit the necessities of
a particular case or the peculiar requirements of the law of the country
in which the service is to be made. A similar provision appears in a
number of statutes, e.g., 35 U.S.C. 146, 293; 38 U.S.C. 784(a); 46
U.S.C. 1292.
The next-to-last sentence of paragraph (1) permits service under (C)
and (E) to be made by any person who is not a party and is not less than
18 years of age or who is designated by court order or by the foreign
court. Cf. Rule 45(c); N.Y.Civ.Prac.Act 233, 235. This alternative
increases the possibility that the plaintiff will be able to find a
process server who can proceed unimpeded in the foreign country; it
also may improve the chances of enforcing the judgment in the country of
service. Especially is the alternative valuable when authority for the
foreign service is found in a statute or rule of court that limits the
group of eligible process servers to designated officials or special
appointees who, because directly connected with another ''sovereign,''
may be particularly offensive to the foreign country. See generally
Smit, supra, at 1040-41. When recourse is had to subparagraph (A) or
(B) the identity of the process server always will be determined by the
law of the foreign country in which the service is made.
The last sentence of paragraph (1) sets forth an alternative manner
for the issuance and transmission of the summons for service. After
obtaining the summons from the clerk, the plaintiff must ascertain the
best manner of delivering the summons and complaint to the person,
court, or officer who will make the service. Thus the clerk is not
burdened with the task of determining who is permitted to serve process
under the law of a particular country or the appropriate governmental or
nongovernmental channel for forwarding a letter rogatory. Under (D),
however, the papers must always be posted by the clerk.
Subdivision (i)(2). When service is made in a foreign country,
paragraph (2) permits methods for proof of service in addition to those
prescribed by subdivision (g). Proof of service in accordance with the
law of the foreign country is permitted because foreign process servers,
unaccustomed to the form or the requirement of return of service
prevalent in the United States, have on occasion been unwilling to
execute the affidavit required by Rule 4(g). See Jones, supra, at 537;
Longley, supra, at 35. As a corollary of the alternate manner of
service in subdivision (i)(1)(E), proof of service as directed by order
of the court is permitted. The special provision for proof of service
by mail is intended as an additional safeguard when that method is used.
On the type of evidence of delivery that may be satisfactory to a court
in lieu of a signed receipt, see Aero Associates, Inc. v. La
Metropolitana, 183 F.Supp. 357 (S.D.N.Y. 1960).
The wording of Rule 4(f) is changed to accord with the amendment of
Rule 13(h) referring to Rule 19 as amended.
Subdivision (a). This is a technical amendment to conform this
subdivision with the amendment of subdivision (c).
Subdivision (c). The purpose of this amendment is to authorize
service of process to be made by any person who is authorized to make
service in actions in the courts of general jurisdiction of the state in
which the district court is held or in which service is made.
There is a troublesome ambiguity in Rule 4. Rule 4(c) directs that
all process is to be served by the marshal, by his deputy, or by a
person specially appointed by the court. But Rule 4(d)(7) authorizes
service in certain cases ''in the manner prescribed by the law of the
state in which the district court is held. . . .'' And Rule 4(e), which
authorizes service beyond the state and service in quasi in rem cases
when state law permits such service, directs that ''service may be made
. . . under the circumstances and in the manner prescribed in the
(state) statute or rule.'' State statutes and rules of the kind referred
to in Rule 4(d)(7) and Rule 4(e) commonly designate the persons who are
to make the service provided for, e.g., a sheriff or a plaintiff. When
that is so, may the persons so designated by state law make service, or
is service in all cases to be made by a marshal or by one specially
appointed under present Rule 4(c)? The commentators have noted the
ambiguity and have suggested the desirability of an amendment. See 2
Moore's Federal Practice 4.08 (1974); Wright & Miller, Federal
Practice and Procedure: Civil 1092 (1969). And the ambiguity has
given rise to unfortunate results. See United States for the use of
Tanos v. St. Paul Mercury Ins. Co., 361 F. 2d 838 (5th Cir. 1966);
Veeck v. Commodity Enterprises, Inc., 487 F. 2d 423 (9th Cir. 1973).
The ambiguity can be resolved by specific amendments to Rules 4(d)(7)
and 4(e), but the Committee is of the view that there is no reason why
Rule 4(c) should not generally authorize service of process in all cases
by anyone authorized to make service in the courts of general
jurisdiction of the state in which the district court is held or in
which service is made. The marshal continues to be the obvious, always
effective officer for service of process.
Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory and I
brought before the House a bill to delay the effective date of proposed
changes in rule 4 of the Federal Rules of Civil Procedure, dealing with
service of process. The Congress enacted that legislation and delayed
the effective date so that we could cure certain problems in the
proposed amendments to rule 4.
Since that time, Mr. McClory and I introduced a bill, H.R. 7154,
that cures those problems. It was drafted in consultation with
representatives of the Department of Justice, the Judicial Conference of
the United States, and others.
The Department of Justice and the Judicial Conference have endorsed
the bill and have urged its prompt enactment. Indeed, the Department of
Justice has indicated that the changes occasioned by the bill will
facilitate its collection of debts owned to the Government.
I have a letter from the Office of Legislative Affairs of the
Department of Justice supporting the bill that I will submit for the
Record. Also, I am submitting for the Record a section-by-section
analysis of the bill.
H.R. 7154 makes much needed changes in rule 4 of the Federal Rules of
Civil Procedure and is supported by all interested parties. I urge my
colleagues to support it.
U.S. Department of Justice.
Office of Legislative Affairs,
Washington, D.C., December 10,
1982.
Hon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary, House of Representatives,
Washington, D.C.
Dear Mr. Chairman: This is to proffer the views of the Department
of Justice on H.R. 7154, the proposed Federal Rules of Civil Procedure
Amendments Act of 1982. While the agenda is extremely tight and we
appreciate that fact, we do reiterate that this Department strongly
endorses the enactment of H.R. 7154. We would greatly appreciate your
watching for any possible way to enact this legislation expeditiously.
H.R. 7154 would amend Rule 4 of the Federal Rules of Civil Procedure
to relieve effectively the United States Marshals Service of the duty of
routinely serving summonses and complaints for private parties in civil
actions and would thus achieve a goal this Department has long sought.
Experience has shown that the Marshals Service's increasing workload and
limited budget require such major relief from the burdens imposed by its
role as process-server in all civil actions.
The bill would also amend Rule 4 to permit certain classes of
defendants to be served by first class mail with a notice and
acknowledgment of receipt form enclosed. We have previously expressed a
preference for the service-by-mail provisions of the proposed amendments
to Rule 4 which the Supreme Court transmitted to Congress on April 28,
1982.
The amendments proposed by the Supreme Court would permit service by
registered or certified mail, return receipt requested. We had regarded
the Supreme Court proposal as the more efficient because it would not
require and affirmative act of signing and mailing on the part of a
defendant. Moreover, the Supreme Court proposal would permit the entry
of a default judgment if the record contained a returned receipt showing
acceptance by the defendant or a returned envelope showing refusal of
the process by the defendant and subsequent service and notice by first
class mail. However, critics of that system of mail service have argued
that certified mail is not an effective method of providing actual
notice to defendants of claims against them because signatures may be
illegible or may not match the name of the defendant, or because it may
be difficult to determine whether mail has been ''unclaimed'' or
''refused,'' the latter providing the sole basis for a default judgment.
As you know, in light of these criticisms the Congress enacted Public
Law 97-227 (H.R. 6663) postponing the effective date of the proposed
amendments to Rule 4 until October 1, 1983, so as to facilitate further
review of the problem. This Department opposed the delay in the
effective date, primarily because the Supreme Court's proposed
amendments also contained urgently needed provisions designed to relieve
the United States Marshals of the burden of serving summonses and
complaints in private civil actions. In our view, these necessary
relief provisions are readily separable from the issues of service by
certified mail and the propriety of default judgment after service by
certified mail which the Congress felt warranted additional review.
During the floor consideration of H.R. 6663 Congressman Edwards and
other proponents of the delayed effective date pledged to expedite the
review of the proposed amendments to Rule 4, given the need to provide
prompt relief for the Marshals Service in the service of process area.
In this spirit Judiciary Committee staff consulted with representatives
of this Department, the Judicial Conference, and others who had voiced
concern about the proposed amendments.
H.R. 7154 is the product of those consultations and accommodated the
concerns of the Department in a very workable and acceptable manner.
Accordingly, we are satisfied that the provisions of H.R. 7154 merit
the support of all three branches of the Federal Government and everyone
else who has a stake in the fair and efficient service of process in
civil actions. We urge prompt consideration of H.R. 7154 by the
Committee. /1/
The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
Sincerely,
Robert A. McConnell,
Assistant Attorney General.
XXXXXXX
/1/ In addition to amending Rule 4, we have previously
recommended: (a) amendments to 28 U.S.C. 569(b) redefining the
Marshals traditional role by eliminating the statutory requirement that
they serve subpoenas, as well as summonses and complaints, and; (b)
amendments to 28 U.S.C. 1921 changing the manner and level in which
marshal fees are charged for serving private civil process. These
legislative changes are embodied in Section 10 of S. 2567 and the
Department's proposed fiscal year 1983 Appropriations Authorization
bill. If, in the Committee's judgment, efforts to incorporate these
suggested amendments in H.R. 7154 would in any way impede consideration
of the bill during the few remaining legislative days in the 97th
Congress, we would urge that they be separately considered early in the
98th Congress.
The Federal Rules of Civil Procedure set forth the procedures to be
followed in civil actions and proceedings in United States district
courts. These rules are usually amended by a process established by 28
U.S.C. 2072, often referred to as the ''Rules Enabling Act''. The Rules
Enabling Act provides that the Supreme Court can propose new rules of
''practice and procedure'' and amendments to existing rules by
transmitting them to Congress after the start of a regular session but
not later than May 1. The rules and amendments so proposed take effect
90 days after transmittal unless legislation to the contrary is enacted.
/1/
On April 28, 1982, the Supreme Court transmitted to Congress several
proposed amendments to the Federal Rules of Civil Procedure, the Federal
Rules of Criminal Procedure (which govern criminal cases and proceedings
in Federal courts), and the Rules and Forms Governing Proceedings in the
United States District Courts under sections 2254 and 2255 of Title 28,
United States Code (which govern habeas corpus proceedings). These
amendments were to have taken effect on August 1, 1982.
The amendments to Rule 4 of the Federal Rules of Civil Procedure were
intended primarily to relieve United States marshals of the burden of
serving summonses and complaints in private civil actions. Appendix II,
at 7 (Report of the Committee on Rules of Practice and Procedure), 16
(Advisory Committee Note). The Committee received numerous complaints
that the changes not only failed to achieve that goal, but that in the
process the changes saddled litigators with flawed mail service,
deprived litigants of the use of effective local procedures for service,
and created a time limit for service replete with ambiguities that could
only be resolved by costly litigation. See House Report No. 97-662, at
2-4 (1982).
In order to consider these criticisms, Congress enacted Public Law
97-227, postponing the effective date of the proposed amendments to Rule
4 until October 1, 1983. /2/ Accordingly, in order to help shape the
policy behind, and the form of, the proposed amendments, Congress must
enact legislation before October 1, 1983. /3/
With that deadline and purpose in mind, consultations were held with
representatives of the Judicial Conference, the Department of Justice,
and others who had voiced concern about the proposed amendments. H.R.
7154 is the product of those consultations. The bill seeks to
effectuate the policy of relieving the Marshals Service of the duty of
routinely serving summonses and complaints. It provides a system of
service by mail modeled upon a system found to be effective in
California, and finally, it makes appropriate stylistic, grammatical,
and other changes in Rule 4.
Rule 4 of the Federal Rules of Civil Procedure relates to the
issuance and service of process. Subsection (c) authorizes service of
process by personnel of the Marshals Service, by a person specially
appointed by the Court, or ''by a person authorized to serve process in
an action brought in the courts of general jurisdiction of the state in
which the district court is held or in which service is made.''
Subsection (d) describes how a summons and complaint must be served and
designates those persons who must be served in cases involving specified
categories of defendants. Mail service is not directly authorized.
Subsection (d)(7), however, authorizes service under the law of the
state in which the district court sits upon defendants described in
subsections (d)(1) (certain individuals) and (d)(3) (organizations).
Thus, if state law authorizes service by mail of a summons and complaint
upon an individual or organization described in subsections (d)(1) or
(3), then subsection (d)(7) authorizes service by mail for United States
district courts in that state. /4/
The Supreme Court's proposed modifications of Rule 4 were designed to
alleviate the burden on the Marshals Service of serving summonses and
complaints in private civil actions. Appendix II, at 7 (Report of the
Committee on Rules of Practice and Procedure), 16 (Advisory Committee
Note). While the Committee received no complaints about the goal of
reducing the role of the Marshals Service, the Court's proposals simply
failed to achieve that goal. See House Report No. 97-662, at 2-3
(1982).
The Court's proposed Rule 4(c)(2)(B) required the Marshals Service to
serve summonses and complaints ''pursuant to any statutory provision
expressly providing for service by a United States Marshal or his
deputy.'' /5/ One such statutory provision is 28 U.S.C. 569(b), which
compels marshals to ''execute all lawful writs, process and orders
issued under authority of the United States, including those of the
courts * * *.'' (emphasis added). Thus, any party could have invoked 28
U.S.C. 569(b) to utilize a marshal for service of a summons and
complaint, thereby thwarting the intent of the new subsection to limit
the use of marshals. The Justice Department acknowledges that the
proposed subsection did not accomplish its objectives. /6/
Had 28 U.S.C. 569(b) been inconsistent with proposed Rule 4(c)(2)(B),
the latter would have nullified the former under 28 U.S.C. 2072, which
provides that ''All laws in conflict with such rules shall be of no
further force or effect after such rules have taken effect.'' Since
proposed Rule 4(c)(2)(B) specifically referred to statutes such as 28
U.S.C. 569(b), however, the new subsection did not conflict with 28
U.S.C. 569(b) and did not, therefore, supersede it.
H.R. 7154 cures this problem and achieves the desired reduction in
the role of the Marshals Service by authorizing marshals to serve
summonses and complaints ''on behalf of the United States''. By so
doing, H.R. 7154 eliminates the loophole in the Court's proposed
language and still provides for service by marshals on behalf of the
Government. /7/
The Supreme Court's proposed subsection (d)(7) and (8) authorized, as
an alternative to personal service, mail service of summonses and
complaints on individuals and organizations described in subsection
(d)(1) and (3), but only through registered or certified mail,
restricted delivery. Critics of that system of mail service argued that
registered and certified mail were not necessarily effective methods of
providing actual notice to defendants of claims against them. This was
so, they argued, because signatures may be illegible or may not match
the name of the defendant, or because it may be difficult to determine
whether mail has been ''unclaimed'' or ''refused'', the latter
apparently providing the sole basis for a default judgment. /8/
H.R. 7154 provides for a system of service by mail similar to the
system now used in California. See Cal. Civ. Pro. 415.30 (West 1973).
Service would be by ordinary mail with a notice and acknowledgment of
receipt form enclosed. If the defendant returns the acknowledgment form
to the sender within 20 days of mailing, the sender files the return and
service is complete. If the acknowledgment is not returned within 20
days of mailing, then service must be effected through some other means
provided for in the Rules.
This system of mail service avoids the notice problems created by the
registered and certified mail procedures proposed by the Supreme Court.
If the proper person receives the notice and returns the acknowledgment,
service is complete. If the proper person does not receive the mailed
form, or if the proper person receives the notice but fails to return
the acknowledgment form, another method of service authorized by law is
required. /9/ In either instance, however, the defendant will receive
actual notice of the claim. In order to encourage defendants to return
the acknowledgment form, the court can order a defendant who does not
return it to pay the costs of service unless the defendant can show good
cause for the failure to return it.
The Court's proposed amendments to Rule 4 deleted the provision in
current subsection (d)(7) that authorizes service of a summons and
complaint upon individuals and organizations ''in the manner prescribed
by the law of the state in which the district court is held for the
service of summons or other like process upon any such defendant in an
action brought in the courts of general jurisdiction of that state.''
The Committee received a variety of complaints about the deletion of
this provision. Those in favor of preserving the local option saw no
reason to forego systems of service that had been successful in
achieving effective notice. /10/
H.R. 7154 carries forward the policy of the current rule and permits
a party to serve a summons and complaint upon individuals and
organizations described in Rule 4(d)(1) and (3) in accordance with the
law of the state in which the district court sits. Thus, the bill
authorizes four methods of serving a summons and complaint on such
defendants: (1) service by a nonparty adult (Rule 4(c)(2)(A)); (2)
service by personnel of the Marshals Service, if the party qualifies,
such as because the party is proceeding in forma pauperis (Rule
4(c)(2)(B)); (3) service in any manner authorized by the law of the
state in which the district court is held (Rule 4(c)(2)(C)(i)); or (4)
service by regular mail with a notice and acknowledgment of receipt form
enclosed (Rule 4(c)(2)(C)(ii)). /11/
Rule 4 does not currently provide a time limit within which service
must be completed. Primarily because United States marshals currently
effect service of process, no time restriction has been deemed
necessary. Appendix II, at 18 (Advisory Committee Note). Along with
the proposed changes to subdivisions (c) and (d) to reduce the role of
the Marshals Service, however, came new subdivision (j), requiring that
service of a summons and complaint be made within 120 days of the filing
of the complaint. If service were not accomplished within that time,
proposed subdivision (j) required that the action ''be dismissed as to
that defendant without prejudice upon motion or upon the court's own
initiative''. Service by mail was deemed made for purposes of
subdivision (j) ''as of the date on which the process was accepted,
refused, or returned as unclaimed''. /12/
H.R. 7154 adopts a policy of limiting the time to effect service. It
provides that if a summons and complaint have not been served within 120
days of the filing of the complaint and the plaintiff fails to show
''good cause'' for not completing service within that time, then the
court must dismiss the action as to the unserved defendant. H.R. 7154
ensures that a plaintiff will be notified of an attempt to dismiss the
action. If dismissal for failure to serve is raised by the court upon
its own motion, the legislation requires that the court provide notice
to the plaintiff. If dismissal is sought by someone else, Rule 5(a) of
the Federal Rules of Civil Procedure requires that the motion be served
upon the plaintiff.
Like proposed subsection (j), H.R. 7154 provides that a dismissal for
failure to serve within 120 days shall be ''without prejudice''.
Proposed subsection (j) was criticized by some for ambiguity because, it
was argued, neither the text of subsection (j) nor the Advisory
Committee Note indicated whether a dismissal without prejudice would
toll a statute of limitation. See House Report 97-662, at 3-4 (1982).
The problem would arise when a plaintiff files the complaint within the
applicable statute of limitation period but does not effect service
within 120 days. If the statute of limitation period expires during
that period, and if the plaintiff's action is dismissed ''without
prejudice'', can the plaintiff refile the complaint and maintain the
action? The answer depends upon how the statute of limitation is
tolled. /13/
If the law provides that the statute of limitation is tolled by
filing and service of the complaint, then a dismissal under H.R. 7154
for failure to serve within the 120 days would, by the terms of the law
controlling the tolling, bar the plaintiff from later maintaining the
cause of action. /14/ If the law provides that the statute of
limitation is tolled by filing alone, then the status of the plaintiff's
cause of action turns upon the plaintiff's diligence. If the plaintiff
has not been diligent, the court will dismiss the complaint for failure
to serve within 120 days, and the plaintiff will be barred from later
maintaining the cause of action because the statute of limitation has
run. A dismissal without prejudice does not confer upon the plaintiff
any rights that the plaintiff does not otherwise possess and leaves a
plaintiff whose action has been dismissed in the same position as if the
action had never been filed. /15/ If, on the other hand, the plaintiff
has made reasonable efforts to effect service, then the plaintiff can
move under Rule 6(b) to enlarge the time within which to serve or can
oppose dismissal for failure to serve. A court would undoubtedly permit
such a plaintiff additional time within which to effect service. Thus,
a diligent plaintiff can preserve the cause of action. This result is
consistent with the policy behind the time limit for service and with
statutes of limitation, both of which are designed to encourage prompt
movement of civil actions in the federal courts.
Current subsections (d)(4) and (5) prescribe which persons must be
served in cases where an action is brought against the United States or
an officer or agency of the United States. Under subsection (d)(4),
where the United States is the named defendant, service must be made as
follows: (1) personal service upon the United States attorney, an
assistant United States attorney, or a designated clerical employee of
the United States attorney in the district in which the action is
brought; (2) registered or certified mail service to the Attorney
General of the United States in Washington, D.C.; and (3) registered or
certified mail service to the appropriate officer or agency if the
action attacks an order of that officer or agency but does not name the
officer or agency as a defendant. Under subsection (d)(5), where an
officer or agency of the United States is named as a defendant, service
must be made as in subsection (d)(4), except that personal service upon
the officer or agency involved is required. /16/
The time limit for effecting service in H.R. 7154 would present
significant difficulty to a plaintiff who has to arrange for personal
service upon an officer or agency that may be thousands of miles away.
There is little reason to require different types of service when the
officer or agency is named as a party, and H.R. 7154 therefore conforms
the manner of service under subsection (d)(5) to the manner of service
under subsection (d)(4).
Section 1 provides that the short title of the bill is the ''Federal
Rules of Civil Procedure Amendments Act of 1982''.
Section 2 of the bill consists of 7 numbered paragraphs, each
amending a different part of Rule 4 of the Federal Rules of Civil
Procedure.
Paragraph (1) deletes the requirement in present Rule 4(a) that a
summons be delivered for service to the marshal or other person
authorized to serve it. As amended by the legislation, Rule 4(a)
provides that the summons be delivered to ''the plaintiff or the
plaintiff's attorney, who shall be responsible for prompt service of the
summons and complaint''. This change effectuates the policy proposed by
the Supreme Court. See Appendix II, at -- (Advisory Committee Note).
Paragraph (2) amends current Rule 4(c), which deals with the service
of process. New Rule 4(c)(1) requires that all process, other than a
subpoena or a summons and complaint, be served by the Marshals Service
or by a person especially appointed for that purpose. Thus, the
Marshals Service or persons specially appointed will continue to serve
all process other than subpoenas and summonses and complaints, a policy
identical to that proposed by the Supreme Court. See Appendix II, at 8
(Report of the Judicial Conference Committee on Rules of Practice and
Procedure). The service of subpoenas is governed by Rule 45, /17/ and
the service of summonses and complaints is governed by new Rule 4(c)(2).
New Rule 4(c)(2)(A) sets forth the general rule that summonses and
complaints shall be served by someone who is at least 18 years old and
not a party to the action or proceeding. This is consistent with the
Court's proposal. Appendix II, at 16 (Advisory Committee Note).
Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth exceptions to
this general rule.
Subparagraph (B) sets forth 3 exceptions to the general rule. First,
subparagraph (B)(i) requires the Marshals Service (or someone specially
appointed by the court) to serve summonses and complaints on behalf of a
party proceeding in forma pauperis or a seaman authorized to proceed
under 28 U.S.C. 1916. This is identical to the Supreme Court's proposal.
See Appendix II, at 3 (text of proposed rule), 16 (Advisory Committee
Note). Second, subparagraph (B)(ii) requires the Marshals Service (or
someone specially appointed by the court) to serve a summons and
complaint when the court orders the marshals to do so in order properly
to effect service in that particular action. /18/ This, except for
nonsubstantive changes in phrasing, is identical to the Supreme Court's
proposal. See Appendix II, at 3 (text of proposed rule), 16 (Advisory
Committee Note).
Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the
general rule of service by a nonparty adult. These exceptions apply
only when the summons and complaint is to be served upon persons
described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3)
(organizations). /19/ First, subparagraph (C)(i) permits service of a
summons and complaint in a manner authorized by the law of the state in
which the court sits. This restates the option to follow local law
currently found in Rule 4(d)(7) and would authorize service by mail if
the state law so allowed. The method of mail service in that instance
would, of course, be the method permitted by state law.
Second, subparagraph (C)(ii) permits service of a summons and
complaint by regular mail. The sender must send to the defendant, by
first-class mail, postage prepaid, a copy of the summons and complaint,
together with 2 copies of a notice and acknowledgment of receipt of
summons and complaint form and a postage prepaid return envelope
addressed to the sender. If a copy of the notice and acknowledgment
form is not received by the sender within 20 days after the date of
mailing, then service must be made under Rule 4(c)(2)(A) or (B) (i.e.,
by a nonparty adult or, if the person qualifies, /20/ by personnel of
the Marshals Service or a person specially appointed by the court) in
the manner prescribed by Rule 4(d)(1) or (3) (i.e., personal or
substituted service).
New Rule 4(c)(2)(D) permits a court to penalize a person who avoids
service by mail. It authorizes the court to order a person who does not
return the notice and acknowledgment form within 20 days after mailing
to pay the costs of service, unless that person can show good cause for
failing to return the form. The purpose of this provision is to
encourage the prompt return of the form so that the action can move
forward without unnecessary delay. Fairness requires that a person who
causes another additional and unnecessary expense in effecting service
ought to reimburse the party who was forced to bear the additional
expense.
Subparagraph (E) of rule 4(c)(2) requires that the notice and
acknowledgment form described in new Rule 4(c)(2)(C)(ii) be executed
under oath or affirmation. This provision tracks the language of 28
U.S.C. 1746, which permits the use of unsworn declarations under penalty
of perjury whenever an oath or affirmation is required. Statements made
under penalty of perjury are subject to 18 U.S,C. 1621(2), which
provides felony penalties for someone who ''willfully subscribes as true
any material matter which he does not believe to be true''. The
requirement that the form be executed under oath or affirmation is
intended to encourage truthful submissions to the court, as the
information contained in the form is important to the parties. /21/
New Rule 4(c)(3) authorizes the court freely to make special
appointments to serve summonses and complaints under Rule 4(c)(2)(B) and
all other process under Rule 4(c)(1). This carries forward the policy
of present Rule 4(c).
Paragraph (3) of section 2 of the bill makes a non-substantive change
in the caption of Rule 4(d) in order to reflect more accurately the
provisions of Rule 4(d). Paragraph (3) also deletes a provision on
service of a summons and complaint pursuant to state law. This
provision is redundant in view of new Rule 4(c)(2)(C)(i).
Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to
present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that service
upon a named defendant agency or officer of the United States shall be
made by ''sending'' a copy of the summons and complaint ''by registered
or certified mail'' to the defendant. /22/ Rule 4(d)(5) currently
provides for service by ''delivering'' the copies to the defendant, but
28 U.S.C. 1391(e) authorizes delivery upon a defendant agency or officer
outside of the district in which the action is brought by means of
certified mail. Hence, the change is not a marked departure from
current practice.
Paragraph (5) of section 2 of the bill amends the caption of Rule
4(e) in order to describe subdivision (e) more accurately.
Paragraph (6) of section 2 of the bill amends Rule 4(g), which deals
with return of service. Present rule 4(g) is not changed except to
provide that, if service is made pursuant to the new system of mail
service (Rule 4(c)(2)(C)(ii)), the plaintiff or the plaintiff's attorney
must file with the court the signed acknowledgment form returned by the
person served.
Paragraph (7) of section 2 of the bill adds new subsection (j) to
provide a time limitation for the service of a summons and complaint.
New Rule 4(j) retains the Supreme Court's requirement that a summons and
complaint be served within 120 days of the filing of the complaint. See
Appendix II, at 18 (Advisory Committee Note). /23/ The plaintiff must
be notified of an effort or intention to dismiss the action. This
notification is mandated by subsection (j) if the dismissal is being
raised on the court's own initiative and will be provided pursuant to
Rule 5 (which requires service of motions upon the adverse party) if the
dismissal is sought by someone else. /24/ The plaintiff may move under
Rule 6(b) to enlarge the time period. See Appendix II, at 1d.
(Advisory Committee Note). If service is not made within the time
period or enlarged time period, however, and if the plaintiff fails to
show ''good cause'' for not completing service, then the court must
dismiss the action as to the unserved defendant. The dismissal is
''without prejudice''. The term ''without prejudice'' means that the
dismissal does not constitute an adjudication of the merits of the
complaint. A dismissal ''without prejudice'' leaves a plaintiff whose
action has been dismissed in the position in which that person would
have been if the action had never been filed.
Section 3 of the bill amends the Appendix of Forms at the end of the
Federal Rules of Civil Procedure by adding a new form 18A, ''Notice and
Acknowledgment for Service by Mail''. This new form is required by new
Rule 4(c)(2)(C)(ii), which requires that the notice and acknowledgment
form used with service by regular mail conform substantially to Form
18A.
Form 18A as set forth in section 3 of the bill is modeled upon a form
used in California. /25/ It contains 2 parts. The first part is a
notice to the person being served that tells that person that the
enclosed summons and complaint is being served pursuant to Rule
4(c)(2)(C)(ii); advises that person to sign and date the acknowledgment
form and indicate the authority to receive service if the person served
is not the party to the action (e.g., the person served is an officer of
the organization being served); and warns that failure to return the
form to the sender within 20 days may result in the court ordering the
party being served to pay the expenses involved in effecting service.
The notice also warns that if the complaint is not responded to within
20 days, a default judgment can be entered against the party being
served. The notice is dated under penalty of perjury by the plaintiff
or the plaintiff's attorney. /26/
The second part of the form contains the acknowledgment of receipt of
the summons and complaint. The person served must declare on this part
of the form, under penalty of perjury, the date and place of service and
the person's authority to receive service.
Section 4 of the bill provides that the changes in Rule 4 made by
H.R. 7154 will take effect 45 days after enactment, thereby giving the
bench and bar, as well as other interested persons and organizations
(such as the Marshals Service), an opportunity to prepare to implement
the changes made by the legislation. The delayed effective date means
that service of process issued before the effective date will be made in
accordance with current Rule 4. Accordingly, all process in the hands
of the Marshals Service prior to the effective date will be served by
the Marshals Service under the present rule.
Section 5 of the bill provides that the amendments to Rule 4 proposed
by the Supreme Court (whose effective date was postponed by Public Law
97-227) shall not take effect. This is necessary because under Public
Law 97-227 the proposed amendments will take effect on October 1, 1983.
XXXXXXX
/1/ The drafting of the rules and amendments is actually done
by a committee of the Judicial Conference of the United States. In the
case of the Federal Rules of Civil Procedure, the initial draft is
prepared by the Advisory Committee on Civil Rules. The Advisory
Committee's draft is then reviewed by the Committee on Rules of Practice
and Procedure, which must give its approval to the draft. Any draft
approved by that committee is forwarded to the Judicial Conference. If
the Judicial Conference approves the draft, it forwards the draft to the
Supreme Court. The Judicial Conference's role in the rule-making
process is defined by 28 U.S.C. 331.
For background information about how the Judicial Conference
committees operate, see Wright, ''Procedural Reform: Its Limitation and
Its Future,'' 1 Ga.L.Rev. 563, 565-66 (1967) (civil rules); statement
of United States District Judge Roszel C. Thomsen, Hearings on Proposed
Amendments to the Federal Rules of Criminal Procedure Before the
Subcommittee on Criminal Justice of the House Committee on the
Judiciary, 93d Cong., 2d Sess. at 25 (1974) (criminal rules);
statement of United States Circuit Judge J. Edward Lumbard, id. at 203
(criminal rules); J. Weinstein, Reform of Federal Court Rulemaking
Procedure (1977); Weinstein, ''Reform of Federal Rulemaking
Procedures,'' 76 Colum.L.Rev. 905 (1976).
/2/ All of the other amendments, including all of the proposed
amendments to the Federal Rules of Criminal Procedure and the Rules and
Forms Governing Proceedings in the United States District Courts under
sections 2254 and 2255 of Title 28, United States Code, took effect on
August 1, 1982, as scheduled.
/3/ The President has urged Congress to act promptly. See
President's Statement on Signing H.R. 6663 into Law, 18 Weekly Comp. of
Pres. Doc. 982 (August 2, 1982).
/4/ Where service of a summons is to be made upon a party who
is neither an inhabitant of, nor found within, the state where the
district court sits, subsection (e) authorizes service under a state
statute or rule of court that provides for service upon such a party.
This would authorize mail service if the state statute or rule of court
provided for service by mail.
/5/ The Court's proposal authorized service by the Marshals
Service in other situations. This authority, however, was not seen as
thwarting the underlying policy of limiting the use of marshals. See
Appendix II, at 16, 17 (Advisory Committee Note).
/6/ Appendix I, at 2 (letter of Assistant Attorney General
Robert A. McConnell).
/7/ The provisions of H.R. 7154 conflict with 28 U.S.C. 569(b)
because the latter is a broader command to marshals to serve all federal
court process. As a later statutory enactment, however, H.R. 7154
supersedes 28 U.S.C. 569(b), thereby achieving the goal of reducing the
role of marshals.
/8/ Proposed Rule 4(d)(8) provided that ''Service . . . shall
not be the basis for the entry of a default or a judgment by default
unless the record contains a return receipt showing acceptance by the
defendant or a returned envelope showing refusal of the process by the
defendant.'' This provision reflects a desire to preclude default
judgments on unclaimed mail. See Appendix II, at 7 (Report of the
Committee on Rules of Practice and Procedure).
The interpretation of Rule 4(d)(8) to require a refusal of delivery
in order to have a basis for a default judgment, while undoubtedly the
interpretation intended and the interpretation that reaches the fairest
result, may not be the only possible interpretation. Since a default
judgment can be entered for defendant's failure to respond to the
complaint once defendant has been served and the time to answer the
complaint has run, it can be argued that a default judgment can be
obtained where the mail was unclaimed because proposed subsection (j),
which authorized dismissal of a complaint not served within 120 days,
provided that mail service would be deemed made ''on the date on which
the process was accepted, refused, or returned as unclaimed'' (emphasis
added).
/9/ See p. 15 infra. /10/ Proponents of the California system of
mail service, in
particular, saw no reason to supplant California's proven method of mail
service with a certified mail service that they believed likely to
result in default judgments without actual notice to defendants. See
House Report No. 97-662, at 3 (1982).
/11/ The parties may, of course, stipulate to service, as is
frequently done now.
/12/ While return of the letter as unclaimed was deemed
service for the purpose of determining whether the plaintiff's action
could be dismissed, return of the letter as unclaimed was not service
for the purpose of entry of a default judgment against the defendant.
See note 8 supra.
/13/ The law governing the tolling of a statute of limitation
depends upon the type of civil action involved. In adversity action,
state law governs tolling. Walker v. Armco Steel Corp., 446 U.S. 740
(1980). In Walker, plaintiff had filed his complaint and thereby
commenced the action under Rule 3 of the Federal Rules of Civil
Procedure within the statutory period. He did not, however, serve the
summons and complaint until after the statutory period had run. The
Court held that state law (which required both filing and service within
the statutory period) governed, barring plaintiff's action.
In the federal question action, the courts of appeals have generally
held that Rule 3 governs, so that the filing of the complaint tolls a
statute of limitation. United States v. Wahl, 538 F.2d 285 (6th Cir.
1978); Windbrooke Dev. Co. v. Environmental Enterprises Inc. of Fla.,
524 F.2d 461 (5th Cir. 1975); Metropolitan Paving Co. v. International
Union of Operating Engineers, 439 F.2d 300 (10th Cir. 1971); Moore Co.
v. Sid Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.), cert.
denied, 383 U.S. 925, reh. denied, 384 U.S. 914 (1965); Hoffman v.
Halden, 268 F.2d 280 (9th Cir. 1959). The continued validity of this
line of cases, however, must be questioned in light of the Walker case,
even though the Court in that case expressly reserved judgment about
federal question actions, see Walker v. Armco Steel Corp., 446 U.S.
741, 751 n.11 (1980).
/14/ The same result obtains even if service occurs within the
120 day period, if the service occurs after the statute of limitation
has run.
/15/ See p. 19 infra. /16/ See p. 17 infra. /17/ Rule 45(c)
provides that ''A subpoena may be served by
the marshal, by his deputy, or by any other person who is not a party
and is not less than 18 years of age.''
/18/ Some litigators have voiced concern that there may be
situations in which personal service by someone other than a member of
the Marshals Service may present a risk of injury to the person
attempting to make the service. For example, a hostile defendant may
have a history of injuring persons attempting to serve process. Federal
judges undoubtedly will consider the risk of harm to private persons who
would be making personal service when deciding whether to order the
Marshals Service to make service under Rule 4(c)(2)(B)(iii).
/19/ The methods of service authorized by Rule 4(c)(2)(C) may
be invoked by any person seeking to effect service. Thus, a nonparty
adult who receives the summons and complaint for service under Rule
4(c)(1) may serve them personally or by mail in the manner authorized by
Rule 4(c)(2)(C)(ii). Similarly, the Marshals Service may utilize the
mail service authorized by Rule 4(c)(2)(C)(ii) when serving a summons
and complaint under Rule 4(c)(2)(B)(i)(iii). When serving a summons and
complaint under Rule 4(c)(2)(B)(ii), however, the Marshals Service must
serve in the manner set forth in the court's order. If no particular
manner of service is specified, then the Marshals Service may utilize
Rule 4(c)(2)(C)(ii). It would not seem to be appropriate, however, for
the Marshals Service to utilize Rule 4(c)(2)(C)(ii) in a situation where
a previous attempt to serve by mail failed. Thus, it would not seem to
be appropriate for the Marshals Service to attempt service by regular
mail when serving a summons and complaint on behalf of a plaintiff who
is proceeding in forma pauperis if that plaintiff previously attempted
unsuccessfully to serve the defendant by mail.
/20/ To obtain service by personnel of the Marshals Service or
someone specially appointed by the court, a plaintiff who has
unsuccessfully attempted mail service under Rule 4(c)(2)(C)(ii) must
meet the conditions of Rule 4(c)(2)(B) -- for example, the plaintiff
must be proceeding in forma pauperis.
/21/ For example, the sender must state the date of mailing on
the form. If the form is not returned to the sender within 20 days of
that date, then the plaintiff must serve the defendant in another manner
and the defendant may be liable for the costs of such service. Thus, a
defendant would suffer the consequences of a misstatement about the date
of mailing.
/22/ See p. 12 supra. /23/ The 120 day period begins to run upon
the filing of each
complaint. Thus, where a defendant files a cross-claim against the
plaintiff, the 120 day period begins to run upon the filing of the
cross-complaint, not upon the filing of the plaintiff's complaint
initiating the action.
/24/ The person who may move to dismiss can be the putative
defendant (i.e., the person named as defendant in the complaint filed
with the court) or, in multi-party actions, another party to the action.
(If the putative defendant moves to dismiss and the failure to effect
service is due to that person's evasion of service, a court should not
dismiss because the plaintiff has ''good cause'' for not completing
service.)
/25/ See Cal. Civ. Pro. 415.30 (West 1973). /26/ See p. 16
supra.
The amendments are technical. No substantive change is intended.
Subd. (a). Pub. L. 97-462, 2(1), substituted ''deliver the summons
to the plaintiff or the plaintiff's attorney, who shall be responsible
for prompt service of the summons and a copy of the complaint'' for
''deliver it for service to the marshal or to any other person
authorized by Rule 4(c) to serve it''.
Subd. (c). Pub. L. 97-462, 2(2), substituted provision with subd.
heading ''Service'' for provision with subd. heading ''By Whom Served''
which read: ''Service of process shall be made by a United States
marshal, by his deputy, or by some person specially appointed by the
court for that purpose, except that a subpoena may be served as provided
in Rule 45. Special appointments to serve process shall be made freely.
Service of process may also be made by a person authorized to serve
process in an action brought in the courts of general jurisdiction of
the state in which the district court is held or in which service is
made.''
Subd. (d). Pub. L. 97-462, 2(3), (4), substituted ''Summons and
Complaint: Person to be Served'' for ''Summons: Personal Service'' in
subd. heading.
Subd. (d)(5). Pub. L. 97-462, 2(4), substituted ''sending a copy of
the summons and of the complaint by registered or certified mail'' for
''delivering a copy of the summons and of the complaint''.
Subd. (d)(7). Pub. L. 97-462, 2(3)(B), struck out par. (7) which
read: ''Upon a defendant of any class referred to in paragraph (1) or
(3) of this subdivision of this rule, it is also sufficient if the
summons and complaint are served in the manner prescribed by any statute
of the United States or in the manner prescribed by the law of the state
in which the district court is held for the service of summons or other
like process upon any such defendant in an action brought in the courts
of general jurisdiction of that state.''. See subd. (c)(2)(C) of this
rule.
Subd. (e). Pub. L. 97-462, 2(5), substituted ''Summons'' for
''Same'' as subd. heading.
Subd. (g). Pub. L. 97-462, 2(6), substituted in second sentence
''deputy United States marshal'' and ''such person'' for ''his deputy''
and ''he'' and inserted third sentence ''If service is made under
subdivision (c)(2)(C)(ii) of this rule, return shall be made by the
sender's filing with the court the acknowledgment received pursuant to
such subdivision.''.
Subd. (j). Pub. L. 97-462, 2(7), added subd. (j).
Amendment by Pub. L. 97-462 effective 45 days after Jan. 12, 1983,
see section 4 of Pub. L. 97-462, set out as a note under section 2071
of this title.
Motion to quash the return of service of summons, see form 19,
Appendix of Forms.
Summons, see form 1.
Actions on war risk insurance claims, see section 1292 of Title 46,
Appendix, Shipping.
Executions in favor of United States, see section 2413 of this title.
Motions to dismiss or quash for lack of jurisdiction over the person,
insufficiency of process or service of process, see rule 12.
Process generally, see chapter 113 of this title.
Process in bankruptcy proceedings, see Rules of Bankruptcy Procedure,
Appendix to Title 11, Bankruptcy.
Process to run outside state --
Actions under Security Act of 1933, see section 77v of Title 15,
Commerce and Trade.
Actions under Security Exchange Act of 1934, see section 78aa of
Title 15.
Veterans' actions against United States on life insurance contracts,
see section 1984 of Title 38, Veterans' Benefits.
Service of notice of application for leave to perpetuate testimony by
taking deposition, see rule 27.
Venue of civil actions, see chapter 87 of this title.
28 USC Rule 5. Service and Filing of Pleadings and Other Papers
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Service: When Required. Except as otherwise provided in these
rules, every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders
because of numerous defendants, every paper relating to discovery
required to be served upon a party unless the court otherwise orders,
every written motion other than one which may be heard ex parte, and
every written notice, appearance, demand, offer of judgment, designation
of record on appeal, and similar paper shall be served upon each of the
parties. No service need be made on parties in default for failure to
appear except that pleadings asserting new or additional claims for
relief against them shall be served upon them in the manner provided for
service of summons in Rule 4.
In an action begun by seizure of property, in which no person need be
or is named as defendant, any service required to be made prior to the
filing of an answer, claim, or appearance shall be made upon the person
having custody or possession of the property at the time of its seizure.
(b) Same: How Made. Whenever under these rules service is required
or permitted to be made upon a party represented by an attorney the
service shall be made upon the attorney unless service upon the party is
ordered by the court. Service upon the attorney or upon a party shall
be made by delivering a copy to the attorney or party or by mailing it
to the attorney or party at the attorney's or party's last known address
or, if no address is known, by leaving it with the clerk of the court.
Delivery of a copy within this rule means: handing it to the attorney
or to the party; or leaving it at the attorney's or party's office with
a clerk or other person in charge thereof; or, if there is no one in
charge, leaving it in a conspicuous place therein; or, if the office is
closed or the person to be served has no office, leaving it at the
person's dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein. Service by mail is
complete upon mailing.
(c) Same: Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or of its
own initiative, may order that service of the pleadings of the
defendants and replies thereto need not be made as between the
defendants and that any cross-claim, counterclaim, or matter
constituting an avoidance or affirmative defense contained therein shall
be deemed to be denied or avoided by all other parties and that the
filing of any such pleading and service thereof upon the plaintiff
constitutes due notice of it to the parties. A copy of every such order
shall be served upon the parties in such manner and form as the court
directs.
(d) Filing; Certificate of Service. All papers after the complaint
required to be served upon a party, together with a certificate of
service, shall be filed with the court within a reasonable time after
service, but the court may on motion of a party or on its own initiative
order that depositions upon oral examination and interrogatories,
requests for documents, requests for admission, and answers and
responses thereto not be filed unless on order of the court or for use
in the proceeding.
(e) Filing With the Court Defined. The filing of papers with the
court as required by these rules shall be made by filing them with the
clerk of the court, except that the judge may permit the papers to be
filed with the judge, in which event the judge shall note thereon the
filing date and forthwith transmit them to the office of the clerk.
Papers may be filed by facsimile transmission if permitted by rules of
the district court, provided that the rules are authorized by and
consistent with standards established by the Judicial Conference of the
United States. The clerk shall not refuse to accept for filing any
paper presented for that purpose solely because it is not presented in
proper form as required by these rules or any local rules or practices.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff.
July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
Note to Subdivisions (a) and (b). Compare 2 Minn.Stat. (Mason, 1927)
9240, 9241, 9242; N.Y.C.P.A. (1937) 163, 164, and N.Y.R.C.P. (1937)
Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington, 1932) 244-249.
Note to Subdivision (d). Compare the present practice under (former)
Equity Rule 12 (Issue of Subpoena -- Time for Answer).
The words ''affected thereby,'' stricken out by the amendment,
introduced a problem of interpretation. See 1 Barron & Holtzoff,
Federal Practice & Procedure 760-61 (Wright ed. 1960). The amendment
eliminates this difficulty and promotes full exchange of information
among the parties by requiring service of papers on all the parties to
the action, except as otherwise provided in the rules. See also
subdivision (c) of Rule 5. So, for example, a third-party defendant is
required to serve his answer to the third-party complaint not only upon
the defendant but also upon the plaintiff. See amended Form 22-A and
the Advisory Committee's Note thereto.
As to the method of serving papers upon a party whose address is
unknown, see Rule 5(b).
The amendment makes clear that all papers relating to discovery which
are required to be served on any party must be served on all parties,
unless the court orders otherwise. The present language expressly
includes notices and demands, but it is not explicit as to answers or
responses as provided in Rules 33, 34, and 36. Discovery papers may be
voluminous or the parties numerous, and the court is empowered to vary
the requirement if in a given case it proves needlessly onerous.
In actions begun by seizure of property, service will at times have
to be made before the absent owner of the property has filed an
appearance. For example, a prompt deposition may be needed in a
maritime action in rem. See Rules 30(a) and 30(b)(2) and the related
notes. A provision is added authorizing service on the person having
custody or possession of the property at the time of its seizure.
Subdivision (d). By the terms of this rule and Rule 30(f)(1)
discovery materials must be promptly filed, although it often happens
that no use is made of the materials after they are filed. Because the
copies required for filing are an added expense and the large volume of
discovery filings presents serious problems of storage in some
districts, the Committee in 1978 first proposed that discovery materials
not be filed unless on order of the court or for use in the proceedings.
But such materials are sometimes of interest to those who may have no
access to them except by a requirement of filing, such as members of a
class, litigants similarly situated, or the public generally.
Accordingly, this amendment and a change in Rule 30(f)(1) continue the
requirement of filing but make it subject to an order of the court that
discovery materials not be filed unless filing is requested by the court
or is effected by parties who wish to use the materials in the
proceeding.
The amendments are technical. No substantive change is intended.
Subdivision (d). This subdivision is amended to require that the
person making service under the rule certify that service has been
effected. Such a requirement has generally been imposed by local rule.
Having such information on file may be useful for many purposes,
including proof of service if an issue arises concerning the
effectiveness of the service. The certificate will generally specify
the date as well as the manner of service, but parties employing private
delivery services may sometimes be unable to specify the date of
delivery. In the latter circumstance, a specification of the date of
transmission of the paper to the delivery service may be sufficient for
the purposes of this rule.
Subdivision (e). The words ''pleading and other'' are stricken as
unnecessary. Pleadings are papers within the meaning of the rule. The
revision also accommodates the development of the use of facsimile
transmission for filing.
Several local district rules have directed the office of the clerk to
refuse to accept for filing papers not conforming to certain
requirements of form imposed by local rules or practice. This is not a
suitable role for the office of the clerk, and the practice exposes
litigants to the hazards of time bars; for these reasons, such rules
are proscribed by this revision. The enforcement of these rules and of
the local rules is a role for a judicial officer. A clerk may of course
advise a party or counsel that a particular instrument is not in proper
form, and may be directed to so inform the court.
Additional time for service by mail, see rule 6.
Jury trial, waiver by failing to file demand, see rule 38.
28 USC Rule 6. Time
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by the local rules of any district court, by
order of court, or by any applicable statute, the day of the act, event,
or default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, or,
when the act to be done is the filing of a paper in court, a day on
which weather or other conditions have made the office of the clerk of
the district court inaccessible, in which event the period runs until
the end of the next day which is not one of the aforementioned days.
When the period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded in
the computation. As used in this rule and in Rule 77(c), ''legal
holiday'' includes New Year's Day, Birthday of Martin Luther King, Jr.,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any
other day appointed as a holiday by the President or the Congress of the
United States, or by the state in which the district court is held.
(b) Enlargement. When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any time in
its discretion (1) with or without motion or notice order the period
enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon
motion made after the expiration of the specified period permit the act
to be done where the failure to act was the result of excusable neglect;
but it may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the
extent and under the conditions stated in them.
((c) Unaffected by Expiration of Term.) (Rescinded Feb. 28, 1966,
eff. July 1, 1966)
(d) For Motions -- Affidavits. A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof shall be
served not later than 5 days before the time specified for the hearing,
unless a different period is fixed by these rules or by order of the
court. Such an order may for cause shown be made on ex parte
application. When a motion is supported by affidavit, the affidavit
shall be served with the motion; and, except as otherwise provided in
Rule 59(c), opposing affidavits may be served not later than 1 day
before the hearing, unless the court permits them to be served at some
other time.
(e) Additional Time After Service by Mail. Whenever a party has the
right or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper upon the
party and the notice or paper is served upon the party by mail, 3 days
shall be added to the prescribed period.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff.
Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivisions (a) and (b). These are amplifications along
lines common in state practices, of (former) Equity Rule 80 (Computation
of Time -- Sundays and Holidays) and of the provisions for enlargement
of time found in (former) Equity Rules 8 (Enforcement of Final Decrees)
and 16 (Defendant to Answer -- Default -- Decree Pro Confesso). See
also Rule XIII, Rules and Forms in Criminal Cases, 292 U.S. 661, 666
(1934). Compare Ala.Code Ann. (Michie, 1928) 13 and former Law Rule 8
of the Rules of the Supreme Court of the District of Columbia (1924),
superseded in 1929 by Law Rule 8, Rules of the District Court of the
United States for the District of Columbia (1937).
Note to Subdivision (c). This eliminates the difficulties caused by
the expiration of terms of court. Such statutes as U.S.C. Title 28,
(former) 12 (Trials not discontinued by new term) are not affected.
Compare Rules of the United States District Court of Minnesota, Rule 25
(Minn.Stat. (Mason, Supp. 1936), p. 1089).
Note to Subdivision (d). Compare 2 Minn.Stat. (Mason, 1927) 9246;
N.Y.R.C.P. (1937) Rules 60 and 64.
Note. Subdivision (b). The purpose of the amendment is to clarify
the finality of judgments. Prior to the advent of the Federal Rules of
Civil Procedure, the general rule that a court loses jurisdiction to
disturb its judgments, upon the expiration of the term at which they
were entered, had long been the classic device which (together with the
statutory limits on the time for appeal) gave finality to judgments.
See Note to Rule 73(a). Rule 6(c) abrogates that limit on judicial
power. That limit was open to many objections, one of them being
inequality of operation because, under it, the time for vacating a
judgment rendered early in a term was much longer than for a judgment
rendered near the end of the term.
The question to be met under Rule 6(b) is: how far should the desire
to allow correction of judgments be allowed to postpone their finality?
The rules contain a number of provisions permitting the vacation or
modification of judgments on various grounds. Each of these rules
contains express time limits on the motions for granting of relief.
Rule 6(b) is a rule of general application giving wide discretion to the
court to enlarge these time limits or revive them after they have
expired, the only exceptions stated in the original rule being a
prohibition against enlarging the time specified in Rule 59(b) and (d)
for making motions for or granting new trials, and a prohibition against
enlarging the time fixed by law for taking an appeal. It should also be
noted that Rule 6(b) itself contains no limitation of time within which
the court may exercise its discretion, and since the expiration of the
term does not end its power, there is now no time limit on the exercise
of its discretion under Rule 6(b).
Decisions of lower federal courts suggest that some of the rules
containing time limits which may be set aside under Rule 6(b) are Rules
25, 50(b), 52(b), 60(b), and 73(g).
In a number of cases the effect of Rule 6(b) on the time limitations
of these rules has been considered. Certainly the rule is susceptible
of the interpretation that the court is given the power in its
discretion to relieve a party from failure to act within the times
specified in any of these other rules, with only the exceptions stated
in Rule 6(b), and in some cases the rule has been so construed.
With regard to Rule 25(a) for substitution, it was held in Anderson
v. Brady, E.D.Ky. 1941, 1 F.R.D. 589, 4 Fed.Rules Service 25a.1, Case
1, and in Anderson v. Yungkau, C.C.A. 6th, 1946, 153 F.2d 685, cert.
granted, 1946, 66 S.Ct. 1025, that under Rule 6(b) the court had no
authority to allow substitution of parties after the expiration of the
limit fixed in Rule 25(a).
As to Rules 50(b) for judgments notwithstanding the verdict and 52(b)
for amendment of findings and vacation of judgment, it was recognized in
Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63
S.Ct. 543, that Rule 6(b) allowed the district court to enlarge the time
to make a motion for amended findings and judgment beyond the limit
expressly fixed in Rule 52(b). See Coca-Cola v. Busch, E.D.Pa. 1943, 7
Fed.Rules Service 59b.2, Case 4. Obviously, if the time limit in Rule
52(b) could be set aside under Rule 6(b), the time limit in Rule 50(b)
for granting judgment notwithstanding the verdict (and thus vacating the
judgment entered ''forthwith'' on the verdict) likewise could be set
aside.
As to Rule 59 on motions for a new trial, it has been settled that
the time limits in Rule 59(b) and (d) for making motions for or granting
new trial could not be set aside under Rule 6(b), because Rule 6(b)
expressly refers to Rule 59, and forbids it. See Safeway Stores, Inc.
v. Coe, App.D.C. 1943, 78 U.S.App.D.C. 19, 136 F.2d 771; Jusino v.
Morales & Tio, C.C.A. 1st, 1944, 139 F.2d 946; Coca-Cola Co. v. Busch,
E.D.Pa. 1943, 7 Fed.Rules Service 59b.2, Case 4; Peterson v. Chicago
Great Western Ry. Co., D.Neb. 1943, 3 F.R.D. 346, 7 Fed.Rules Service
59b.2, Case 1; Leishman v. Associated Wholesale Electric Co., 1943,
318 U.S. 203, 63 S.Ct. 543.
As to Rule 60(b) for relief from a judgment, it was held in Schram v.
O'Connor, E.D.Mich. 1941, 5 Fed.Rules Serv. 6b.31, Case 1, 2, F.R.D.
192, s. c. 5 Fed.Rules Serv. 6b.31, Case 2, 2 F.R.D. 192, that the
six-months time limit in original Rule 60(b) for making a motion for
relief from a judgment for surprise, mistake, or excusable neglect could
be set aside under Rule 6(b). The contrary result was reached in
Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den.,
1944, 323 U.S. 712, 65 S.Ct. 37; Reed v. South Atlantic Steamship Co.
of Del., D.Del. 1942, 2 F.R.D. 475, 6 Fed.Rules Serv. 60b.31, Case 1.
As to Rule 73(g), fixing the time for docketing an appeal, it was
held in Ainsworth v. Gill Glass & Fixture Co., C.C.A.3d, 1939, 104 F.2d
83, that under Rule 6(b) the district court, upon motion made after the
expiration of the forty-day period, stated in Rule 73(g), but before the
expiration of the ninety-day period therein specified, could permit the
docketing of the appeal on a showing of excusable neglect. The contrary
was held in Mutual Benefit Health & Accident Ass'n v. Snyder, C.C.A.
6th, 1940, 109 F.2d 469 and in Burke v. Canfield, App.D.C. 1940, 72
App.D.C. 127, 111 F.2d 526.
The amendment of Rule 6(b) now proposed is based on the view that
there should be a definite point where it can be said a judgment is
final; that the right method of dealing with the problem is to list in
Rule 6(b) the various other rules whose time limits may not be set
aside, and then, if the time limit in any of those other rules is too
short, to amend that other rule to give a longer time. The further
argument is that Rule 6(c) abolished the long standing device to produce
finality in judgments through expiration of the term, and since that
limitation on the jurisdiction of courts to set aside their own
judgments has been removed by Rule 6(c), some other limitation must be
substituted or judgments never can be said to be final.
In this connection reference is made to the established rule that if
a motion for new trial is seasonably made, the mere making or pendency
of the motion destroys the finality of the judgment, and even though the
motion is ultimately denied, the full time for appeal starts anew from
the date of denial. Also, a motion to amend the findings under Rule
52(b) has the same effect on the time for appeal. Leishman v.
Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543. By
the same reasoning a motion for judgment under Rule 50(b), involving as
it does the vacation of a judgment entered ''forthwith'' on the verdict
(Rule 58), operates to postpone, until an order is made, the running of
the time for appeal. The Committee believes that the abolition by Rule
6(c) of the old rule that a court's power over its judgments ends with
the term, requires a substitute limitation, and that unless Rule 6(b) is
amended to prevent enlargement of the times specified in Rules 50(b),
52(b) and 60(b), and the limitation as to Rule 59(b) and (d) is
retained, no one can say when a judgment is final. This is also true
with regard to proposed Rule 59(e), which authorizes a motion to alter
or amend a judgment, hence that rule is also included in the enumeration
in amended Rule 6(b). In consideration of the amendment, however, it
should be noted that Rule 60(b) is also to be amended so as to lengthen
the six-months period originally prescribed in that rule to one year.
As to Rule 25 on substitution, while finality is not involved, the
limit there fixed should be controlling. That rule, as amended, gives
the court power, upon showing of a reasonable excuse, to permit
substitution after the expiration of the two-year period.
As to Rule 73(g), it is believed that the conflict in decisions
should be resolved and not left to further litigation, and that the rule
should be listed as one whose limitation may not be set aside under Rule
6(b).
As to Rule 59(c), fixing the time for serving affidavits on motion
for new trial, it is believed that the court should have authority under
Rule 6(b) to enlarge the time, because, once the motion for new trial is
made, the judgment no longer has finality, and the extension of time for
affidavits thus does not of itself disturb finality.
Other changes proposed in Rule 6(b) are merely clarifying and
conforming. Thus ''request'' is substituted for ''application'' in
clause (1) because an application is defined as a motion under Rule
7(b). The phrase ''extend the time'' is substituted for ''enlarge the
period'' because the former is a more suitable expression and relates
more clearly to both clauses (1) and (2). The final phrase in Rule
6(b), ''or the period for taking an appeal as provided by law'', is
deleted and a reference to Rule 73(a) inserted, since it is proposed to
state in that rule the time for appeal to a circuit court of appeals,
which is the only appeal governed by the Federal Rules, and allows an
extension of time. See Rule 72.
Subdivision (c). The purpose of this amendment is to prevent
reliance upon the continued existence of a term as a source of power to
disturb the finality of a judgment upon grounds other than those stated
in these rules. See Hill v. Hawes, 1944, 320 U.S. 520, 64 S.Ct. 334;
Boaz v. Mutual Life Ins. Co. of New York, C.C.A. 8th, 1944, 146 F.2d
321; Bucy v. Nevada Construction Co., C.C.A. 9th, 1942, 125 F.2d 213.
Subdivision (a). This amendment is related to the amendment of Rule
77(c) changing the regulation of the days on which the clerk's office
shall be open.
The wording of the first sentence of Rule 6(a) is clarified and the
subdivision is made expressly applicable to computing periods of time
set forth in local rules.
Saturday is to be treated in the same way as Sunday or a ''legal
holiday'' in that it is not to be included when it falls on the last day
of a computed period, nor counted as an intermediate day when the period
is less than 7 days. ''Legal holiday'' is defined for purposes of this
subdivision and amended Rule 77(c). Compare the definition of
''holiday'' in 11 U.S.C. 1(18); also 5 U.S.C. 86a; Executive Order
No. 10358, ''Observance of Holidays,'' June 9, 1952, 17 Fed.Reg. 5269.
In the light of these changes the last sentence of the present
subdivision, dealing with half holidays, is eliminated.
With Saturdays and State holidays made ''dies non'' in certain cases
by the amended subdivision, computation of the usual 5-day notice of
motion or the 2-day notice to dissolve or modify a temporary restraining
order may work out so as to cause embarrassing delay in urgent cases.
The delay can be obviated by applying to the court to shorten the time,
see Rules 6(d) and 65(b).
Subdivision (b). The prohibition against extending the time for
taking action under Rule 25 (Substitution of parties) is eliminated.
The only limitation of time provided for in amended Rule 25 is the
90-day period following a suggestion upon the record of the death of a
party within which to make a motion to substitute the proper parties for
the deceased party. See Rule 25(a)(1), as amended, and the Advisory
Committee's Note thereto. It is intended that the court shall have
discretion to enlarge that period.
The amendment eliminates the references to Rule 73, which is to be
abrogated.
P. L. 88-139, 1, 77 Stat. 248, approved on October 16, 1963,
amended 28 U.S.C. 138 to read as follows: ''The district court shall
not hold formal terms.'' Thus Rule 6(c) is rendered unnecessary, and it
is rescinded.
The amendment adds Columbus Day to the list of legal holidays to
conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,
which constituted Columbus Day a legal holiday effective after January
1, 1971.
The Act, which amended Title 5, U.S.C., 6103(a), changes the day on
which certain holidays are to be observed. Washington's Birthday,
Memorial Day and Veterans Day are to be observed on the third Monday in
February, the last Monday in May and the fourth Monday in October,
respectively, rather than, as heretofore, on February 22, May 30, and
November 11, respectively. Columbus Day is to be observed on the second
Monday in October. New Year's Day, Independence Day, Thanksgiving Day
and Christmas continue to be observed on the traditional days.
Subdivision (b). The amendment confers finality upon the judgments
of magistrates by foreclosing enlargement of the time for appeal except
as provided in new Rule 74(a) (20 day period for demonstration of
excusable neglect).
Rule 6(a) is amended to acknowledge that weather conditions or other
events may render the clerk's office inaccessible one or more days.
Parties who are obliged to file something with the court during that
period should not be penalized if they cannot do so. The amendment
conforms to changes made in Federal Rule of Criminal Procedure 45(a),
effective August 1, 1982.
The Rule also is amended to extend the exclusion of intermediate
Saturdays, Sundays, and legal holidays to the computation of time
periods less than 11 days. Under the current version of the Rule,
parties bringing motions under rules with 10-day periods could have as
few as 5 working days to prepare their motions. This hardship would be
especially acute in the case of Rules 50(b) and (c)(2), 52(b), and
59(b), (d), and (e), which may not be enlarged at the discretion of the
court. See Rule 6(b). If the exclusion of Saturdays, Sundays, and
legal holidays will operate to cause excessive delay in urgent cases,
the delay can be obviated by applying to the court to shorten the time,
See Rule 6(b).
The Birthday of Martin Luther King, Jr., which becomes a legal
holiday effective in 1986, has been added to the list of legal holidays
enumerated in the Rule.
The amendments are technical. No substantive change is intended.
Answers and objections to admissions, see rule 36.
Answer to --
Complaint, see rule 12.
Cross-claim, see rule 12.
Interrogatories, see rule 33.
Demand for jury trial, see rule 38.
Motion for --
Amendment of findings, see rule 52.
New trial, see rule 59.
Relief from judgment or order, see rule 60.
Motion to --
Alter or amend judgment, see rule 59.
Set aside verdict and enter judgment, see rule 50.
Notice of appeal, see section 2107 of this title.
Objections to interrogatories, see rule 33.
Reply to counterclaim, see rule 12.
Service by mail complete upon mailing, see rule 5.
Substitution of parties, see rule 25.
28 USC III. PLEADINGS AND MOTIONS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 7. Pleadings Allowed; Form of Motions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Pleadings. There shall be a complaint and an answer; a reply to
a counterclaim denominated as such; an answer to a cross-claim, if the
answer contains a cross-claim; a third-party complaint, if a person who
was not an original party is summoned under the provisions of Rule 14;
and a third-party answer, if a third-party complaint is served. No
other pleading shall be allowed, except that the court may order a reply
to an answer or a third-party answer.
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by motion
which, unless made during a hearing or trial, shall be made in writing,
shall state with particularity the grounds therefor, and shall set forth
the relief or order sought. The requirement of writing is fulfilled if
the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions and other matters of form of
pleadings apply to all motions and other papers provided for by these
rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)
1. A provision designating pleadings and defining a motion is common
in the State practice acts. See Ill.Rev.Stat. (1937), ch. 110, 156
(Designation and order of pleadings); 2 Minn.Stat. (Mason, 1927) 9246
(Definition of motion); and N.Y.C.P.A. (1937) 113 (Definition of
motion). Former Equity Rules 18 (Pleadings -- Technical Forms
Abrogated), 29 (Defenses -- How Presented), and 33 (Testing Sufficiency
of Defense) abolished technical forms of pleading, demurrers, and pleas,
and exceptions for insufficiency of an answer.
2. Note to Subdivision (a). This preserves the substance of (former)
Equity Rule 31 (Reply -- When Required -- When Cause at Issue). Compare
the English practice, English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 23, r.r. 1, 2 (Reply to counterclaim; amended,
1933, to be subject to the rules applicable to defenses, O. 21). See O.
21, r.r. 1-14; O. 27, r. 13 (When pleadings deemed denied and put in
issue). Under the codes the pleadings are generally limited. A reply
is sometimes required to an affirmative defense in the answer. 1
Colo.Stat.Ann. (1935) 66; Ore.Code Ann. (1930) 1-614, 1-616. In
other jurisdictions no reply is necessary to an affirmative defense in
the answer, but a reply may be ordered by the court. N.C.Code Ann.
(1935) 525; 1 S.D.Comp.Laws (1929) 2357. A reply to a counterclaim
is usually required. Ark.Civ.Code (Crawford, 1934) 123-125;
Wis.Stat. (1935) 263.20, 263.21. U.S.C., Title 28, (former) 45
(District courts; practice and procedure in certain cases) is modified
insofar as it may dispense with a reply to a counterclaim.
For amendment of pleadings, see Rule 15 dealing with amended and
supplemental pleadings.
3. All statutes which use the words ''petition'', ''bill of
complaint'', ''plea'', ''demurrer'', and other such terminology are
modified in form by this rule.
Note. This amendment (to subdivision (a)) eliminates any question as
to whether the compulsory reply, where a counterclaim is pleaded, is a
reply only to the counterclaim or is a general reply to the answer
containing the counterclaim. The Commentary, Scope of Reply Where
Defendant Has Pleaded Counterclaim, 1939, 1 Fed.Rules Serv. 672; Fort
Chartres and Ivy Landing Drainage and Levee District No. Five v.
Thompson, E.D.Ill. 1945, 8 Fed.Rules Serv. 13.32, Case 1.
Certain redundant words are eliminated and the subdivision is
modified to reflect the amendment of Rule 14(a) which in certain cases
eliminates the requirement of obtaining leave to bring in a third-party
defendant.
One of the reasons sanctions against improper motion practice have
been employed infrequently is the lack of clarity of Rule 7. That rule
has stated only generally that the pleading requirements relating to
captions, signing, and other matters of form also apply to motions and
other papers. The addition of Rule 7(b)(3) makes explicit the
applicability of the signing requirement and the sanctions of Rule 11,
which have been amplified.
Form of motions in original actions in Supreme Court of the United
States as governed by Federal Rules of Civil Procedure, see rule 17,
this Appendix.
Procedure for motions in local practice, see rule 83.
Service and filing of pleadings and other papers, see rule 5.
Third party practice generally, see rule 14.
Time for service of --
Answer or reply, see rule 12.
Motions and affidavits, see rule 6.
Treating defenses as counterclaims, see rule 8.
28 USC Rule 8. General Rules of Pleading
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or
third-party claim, shall contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends, unless the court
already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks. Relief in the alternative or
of several different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If a party
is without knowledge or information sufficient to form a belief as to
the truth of an averment, the party shall so state and this has the
effect of a denial. Denials shall fairly meet the substance of the
averments denied. When a pleader intends in good faith to deny only a
part or a qualification of an averment, the pleader shall specify so
much of it as is true and material and shall deny only the remainder.
Unless the pleader intends in good faith to controvert all the averments
of the preceding pleading, the pleader may make denials as specific
denials of designated averments or paragraphs or may generally deny all
the averments except such designated averments or paragraphs as the
pleader expressly admits; but, when the pleader does so intend to
controvert all its averments, including averments of the grounds upon
which the court's jurisdiction depends, the pleader may do so by general
denial subject to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction, arbitration
and award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment, release,
res judicata, statute of frauds, statute of limitations, waiver, and any
other matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure To Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount of
damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required or
permitted shall be taken as denied or avoided.
(e) Pleading To Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct.
No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or defense or
in separate counts or defenses. When two or more statements are made in
the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency
of one or more of the alternative statements. A party may also state as
many separate claims or defenses as the party has regardless of
consistency and whether based on legal, equitable, or maritime grounds.
All statements shall be made subject to the obligations set forth in
Rule 11.
(f) Construction of Pleadings. All pleadings shall be so construed
as to do substantial justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). See (former) Equity Rules 25 (Bill of
Complaint -- Contents), and 30 (Answer -- Contents -- Counterclaim).
Compare 2 Ind.Stat.Ann. (Burns, 1933) 2-1004, 2-1015; 2 Ohio Gen.Code
Ann. (Page, 1926) 11305, 11314; Utah Rev.Stat.Ann. (1933), 104-7-2,
104-9-1.
See Rule 19(c) for the requirement of a statement in a claim for
relief of the names of persons who ought to be parties and the reason
for their omission.
See Rule 23(b) for particular requirements as to the complaint in a
secondary action by shareholders.
Note to Subdivision (b). 1. This rule supersedes the methods of
pleading prescribed in U.S.C., Title 19, 508 (Persons making seizures
pleading general issue and providing special matter); U.S.C., Title 35,
(former) 40d (Providing under general issue, upon notice, that a
statement in application for an extended patent is not true), 69 (now
282) (Pleading and proof in actions for infringement) and similar
statutes.
2. This rule is, in part, (former) Equity Rule 30 (Answer -- Contents
-- Counterclaim), with the matter on denials largely from the
Connecticut practice. See Conn.Practice Book (1934) 107, 108, and
122; Conn.Gen.Stat. (1930) 5508-5514. Compare the English practice,
English Rules Under the Judicature Act (The Annual Practice, 1937) O.
19, r.r. 17-20.
Note to Subdivision (c). This follows substantially English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15 and
N.Y.C.P.A. (1937) 242, with ''surprise'' omitted in this rule.
Note to Subdivision (d). The first sentence is similar to (former)
Equity Rule 30 (Answer -- Contents -- Counterclaim). For the second
sentence see (former) Equity Rule 31 (Reply -- When Required -- When
Cause at Issue). This is similar to English Rules Under the Judicature
Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and to the
practice in the States.
Note to Subdivision (e). This rule is an elaboration upon (former)
Equity Rule 30 (Answer -- Contents -- Counterclaim), plus a statement of
the actual practice under some codes. Compare also (former) Equity Rule
18 (Pleadings -- Technical Forms Abrogated). See Clark, Code Pleading
(1928), pp. 171-4, 432-5; Hankin, Alternative and Hypothetical
Pleading (1924), 33 Yale L.J. 365.
Note to Subdivision (f). A provision of like import is of frequent
occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110, 157(3); 2
Minn.Stat. (Mason, 1927) 9266; N.Y.C.P.A. (1937) 275; 2
N.D.Comp.Laws Ann. (1913) 7458.
The change here is consistent with the broad purposes of unification.
The amendments are technical. No substantive change is intended.
See Appendix of Forms.
Amendment of pleadings generally, see rule 15.
Defenses in law or fact, how presented, see rule 12.
Joinder of claims, see rule 18.
Relief granted in judgment even if not demanded, see rule 54.
Reply to counterclaims denominated as such, see rule 7.
28 USC Rule 9. Pleading Special Matters
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. When a party desires to
raise an issue as to the legal existence of any party or the capacity of
any party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity, the party desiring to raise the issue
shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence
of conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act it is sufficient to aver that the document was issued or
the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be
considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(h) Admiralty and Maritime Claims. A pleading or count setting forth
a claim for relief within the admiralty and maritime jurisdiction that
is also within the jurisdiction of the district court on some other
ground may contain a statement identifying the claim as an admiralty or
maritime claim for the purposes of Rules 14(c), 38(e), 82, and the
Supplemental Rules for Certain Admiralty and Maritime Claims. If the
claim is cognizable only in admiralty, it is an admiralty or maritime
claim for those purposes whether so identified or not. The amendment of
a pleading to add or withdraw an identifying statement is governed by
the principles of Rule 15. The reference in Title 28, U.S.C.
1292(a)(3), to admiralty cases shall be construed to mean admiralty and
maritime claims within the meaning of this subdivision (h).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). Compare (former) Equity Rule 25 (Bill of
Complaint -- Contents) requiring disability to be stated; Utah
Rev.Stat.Ann. (1933) 104-13-15, enumerating a number of situations
where a general averment of capacity is sufficient. For provisions
governing averment of incorporation, see 2 Minn.Stat. (Mason, 1927)
9271; N.Y.R.C.P. (1937) Rule 93; 2 N.D.Comp.Laws Ann. (1913) 7981 et
seq.
Note to Subdivision (b). See English Rules Under the Judicature Act
(The Annual Practice, 1937) O. 19, r. 22.
Note to Subdivision (c). The codes generally have this or a similar
provision. See English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 19, r. 14; 2 Minn.Stat. (Mason, 1927) 9273;
N.Y.R.C.P. (1937) Rule 92; 2 N.D.Comp.Laws Ann. (1913) 7461; 2
Wash.Rev.Stat.Ann. (Remington, 1932) 288.
Note to Subdivision (e). The rule expands the usual code provisions
on pleading a judgment by including judgments or decisions of
administrative tribunals and foreign courts. Compare Ark.Civ.Code
(Crawford, 1934) 141; 2 Minn.Stat. (Mason, 1927) 9269; N.Y.R.C.P.
(1937) Rule 95; 2 Wash.Rev.Stat.Ann. (Remington, 1932) 287.
Certain distinctive features of the admiralty practice must be
preserved for what are now suits in admiralty. This raises the
question: After unification, when a single form of action is
established, how will the counterpart of the present suit in admiralty
be identifiable? In part the question is easily answered. Some claims
for relief can only be suits in admiralty, either because the admiralty
jurisdiction is exclusive or because no nonmaritime ground of federal
jurisdiction exists. Many claims, however, are cognizable by the
district courts whether asserted in admiralty or in a civil action,
assuming the existence of a nonmaritime ground of jurisdiction. Thus at
present the pleader has power to determine procedural consequences by
the way in which he exercises the classic privilege given by the
saving-to-suitors clause (28 U.S.C. 1333) or by equivalent statutory
provisions. For example, a longshoreman's claim for personal injuries
suffered by reason of the unseaworthiness of a vessel may be asserted in
a suit in admiralty or, if diversity of citizenship exists, in a civil
action. One of the important procedural consequences is that in the
civil action either party may demand a jury trial, while in the suit in
admiralty there is no right to jury trial except as provided by statute.
It is no part of the purpose of unification to inject a right to jury
trial into those admiralty cases in which that right is not provided by
statute. Similarly as will be more specifically noted below, there is
no disposition to change the present law as to interlocutory appeals in
admiralty, or as to the venue of suits in admiralty; and, of course,
there is no disposition to inject into the civil practice as it now is
the distinctively maritime remedies (maritime attachment and
garnishment, actions in rem, possessory, petitory and partition actions
and limitation of liability). The unified rules must therefore provide
some device for preserving the present power of the pleader to determine
whether these historically maritime procedures shall be applicable to
his claim or not; the pleader must be afforded some means of
designating his claim as the counterpart of the present suit in
admiralty, where its character as such is not clear.
The problem is different from the similar one concerning the
identification of claims that were formerly suits in equity. While that
problem is not free from complexities, it is broadly true that the
modern counterpart of the suit in equity is distinguishable from the
former action at law by the character of the relief sought. This mode
of identification is possible in only a limited category of admiralty
cases. In large numbers of cases the relief sought in admiralty is
simple money damages, indistinguishable from the remedy afforded by the
common law. This is true, for example, in the case of the
longshoreman's action for personal injuries stated above. After
unification has abolished the distinction between civil actions and
suits in admiralty, the complaint in such an action would be almost
completely ambiguous as to the pleader's intentions regarding the
procedure invoked. The allegation of diversity of citizenship might be
regarded as a clue indicating an intention to proceed as at present
under the saving-to-suitors clause; but this, too, would be ambiguous
if there were also reference to the admiralty jurisdiction, and the
pleader ought not be required to forego mention of all available
jurisdictional grounds.
Other methods of solving the problem were carefully explored, but the
Advisory Committee concluded that the preferable solution is to allow
the pleader who now has power to determine procedural consequences by
filing a suit in admiralty to exercise that power under unification, for
the limited instances in which procedural differences will remain, by a
simple statement in his pleading to the effect that the claim is an
admiralty or maritime claim.
The choice made by the pleader in identifying or in failing to
identify his claim as an admiralty or maritime claim is not an
irrevocable election. The rule provides that the amendment of a
pleading to add or withdraw an identifying statement is subject to the
principles of Rule 15.
The amendment eliminates the reference to Rule 73 which is to be
abrogated and transfers to Rule 9(h) the substance of Subsection (h) of
Rule 73 which preserved the right to an interlocutory appeal in
admiralty cases which is provided by 28 U.S.C. 1292(a)(3).
The reference to Rule 26(a) is deleted, in light of the transfer of
that subdivision to Rule 30(a) and the elimination of the de bene esse
procedure therefrom. See the Advisory Committee's note to Rule 30(a).
The amendment is technical. No substantive change is intended.
Capacity to sue or be sued, see rule 17.
Pleading affirmative defenses, see rule 8.
Proof of official record, see rule 44.
28 USC Rule 10. Form of Pleadings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Caption; Names of Parties. Every pleading shall contain a
caption setting forth the name of the court, the title of the action,
the file number, and a designation as in Rule 7(a). In the complaint
the title of the action shall include the names of all the parties, but
in other pleadings it is sufficient to state the name of the first party
on each side with an appropriate indication of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each of
which shall be limited as far as practicable to a statement of a single
set of circumstances; and a paragraph may be referred to by number in
all succeeding pleadings. Each claim founded upon a separate
transaction or occurrence and each defense other than denials shall be
stated in a separate count or defense whenever a separation facilitates
the clear presentation of the matters set forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be
adopted by reference in a different part of the same pleading or in
another pleading or in any motion. A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.
The first sentence is derived in part from the opening statement of
(former) Equity Rule 25 (Bill of Complaint -- Contents). The remainder
of the rule is an expansion in conformity with usual state provisions.
For numbered paragraphs and separate statements, see Conn.Gen.Stat.
(1930) 5513; Ill.Rev.Stat. (1937) ch. 110, 157 (2); N.Y.R.C.P.
(1937) Rule 90. For incorporation by reference, see N.Y.R.C.P. (1937)
Rule 90. For written instruments as exhibits, see Ill.Rev.Stat. (1937)
ch. 110, 160.
Form of pleadings in original actions in Supreme Court of the United
States as governed by Federal Rules of Civil Procedure, see rule 17,
this Appendix.
See Appendix of Forms.
Captions in motions and other papers, see rule 7.
28 USC Rule 11. Signing of Pleadings, Motions, and Other Papers;
Sanctions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Every pleading, motion, and other paper of a party represented by an
attorney shall be signed by at least one attorney of record in the
attorney's individual name, whose address shall be stated. A party who
is not represented by an attorney shall sign the party's pleading,
motion, or other paper and state the party's address. Except when
otherwise specifically provided by rule or statute, pleadings need not
be verified or accompanied by affidavit. The rule in equity that the
averments of an answer under oath must be overcome by the testimony of
two witnesses or of one witness sustained by corroborating circumstances
is abolished. The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the pleading, motion,
or other paper; that to the best of the signer's knowledge,
information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the person who
signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of
the reasonable expenses incurred because of the filing of the pleading,
motion, or other paper, including a reasonable attorney's fee.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
Aug. 1, 1987.)
This is substantially the content of (former) Equity Rules 24
(Signature of Counsel) and 21 (Scandal and Impertinence) consolidated
and unified. Compare (former) Equity Rule 36 (Officers Before Whom
Pleadings Verified). Compare to similar purposes, English Rules Under
the Judicature Act (The Annual Practice, 1937) O. 19, r. 4, and Great
Australian Gold Mining Co. v. Martin, L. R., 5 Ch.Div. 1, 10 (1877).
Subscription of pleadings is required in many codes. 2 Minn.Stat.
(Mason, 1927) 9265; N.Y.R.C.P. (1937) Rule 91; 2 N.D.Comp.Laws Ann.
(1913) 7455.
This rule expressly continues any statute which requires a pleading
to be verified or accompanied by an affidavit, such as:
U.S.C., Title 28:
381 (former) (Preliminary injunctions and temporary restraining
orders)
762 (now 1402) (Suit against the United States).
U.S.C., Title 28, 829 (now 1927) (Costs; attorney liable for, when)
is unaffected by this rule.
For complaints which must be verified under these rules, see Rules
23(b) (Secondary Action by Shareholders) and 65 (Injunctions).
For abolition of the rule in equity that the averments of an answer
under oath must be overcome by the testimony of two witnesses or of one
witness sustained by corroborating circumstances, see Pa.Stat.Ann.
(Purdon, 1931) see 12 P.S.Pa., 1222; for the rule in equity itself,
see Greenfield v. Blumenthal, 69 F.2d 294 (C.C.A. 3d, 1934).
Since its original promulgation, Rule 11 has provided for the
striking of pleadings and the imposition of disciplinary sanctions to
check abuses in the signing of pleadings. Its provisions have always
applied to motions and other papers by virtue of incorporation by
reference in Rule 7(b)(2). The amendment and the addition of Rule
7(b)(3) expressly confirms this applicability.
Experience shows that in practice Rule 11 has not been effective in
deterring abuses. See 6 Wright & Miller, Federal Practice and
Procedure: Civil 1334 (1971). There has been considerable confusion
as to (1) the circumstances that should trigger striking a pleading or
motion or taking disciplinary action, (2) the standard of conduct
expected of attorneys who sign pleadings and motions, and (3) the range
of available and appropriate sanctions. See Rodes, Ripple & Mooney,
Sanctions Imposable for Violations of the Federal Rules of Civil
Procedure 64-65, Federal Judicial Center (1981). The new language is
intended to reduce the reluctance of courts to impose sanctions, see
Moore, Federal Practice 7.05, at 1547, by emphasizing the
responsibilities of the attorney and reenforcing those obligations by
the imposition of sanctions.
The amended rule attempts to deal with the problem by building upon
and expanding the equitable doctrine permitting the court to award
expenses, including attorney's fees, to a litigant whose opponent acts
in bad faith in instituting or conducting litigation. See, e.g.,
Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980); Hall v. Cole,
412 U.S. 1, 5 (1973). Greater attention by the district courts to
pleading and motion abuses and the imposition of sanctions when
appropriate, should discourage dilatory or abusive tactics and help to
streamline the litigation process by lessening frivolous claims or
defenses.
The expanded nature of the lawyer's certification in the fifth
sentence of amended Rule 11 recognizes that the litigation process may
be abused for purposes other than delay. See, e.g., Browning Debenture
Holders' Committee v. DASA Corp., 560 F.2d 1078 (2d Cir. 1977).
The words ''good ground to support'' the pleading in the original
rule were interpreted to have both factual and legal elements. See,
e.g., Heart Disease Research Foundation v. General Motors Corp., 15
Fed.R.Serv. 2d 1517, 1519 (S.D.N.Y. 1972). They have been replaced by a
standard of conduct that is more focused.
The new language stresses the need for some prefiling inquiry into
both the facts and the law to satisfy the affirmative duty imposed by
the rule. The standard is one of reasonableness under the
circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan Ass'n,
365 F.Supp. 975 (E.D.Pa. 1973). This standard is more stringent than the
original good-faith formula and thus it is expected that a greater range
of circumstances will trigger its violation. See Nemeroff v. Abelson,
620 F.2d 339 (2d Cir. 1980).
The rule is not intended to chill an attorney's enthusiasm or
creativity in pursuing factual or legal theories. The court is expected
to avoid using the wisdom of hindsight and should test the signer's
conduct by inquiring what was reasonable to believe at the time the
pleading, motion, or other paper was submitted. Thus, what constitutes
a reasonable inquiry may depend on such factors as how much time for
investigation was available to the signer; whether he had to rely on a
client for information as to the facts underlying the pleading, motion,
or other paper; whether the pleading, motion, or other paper was based
on a plausible view of the law; or whether he depended on forwarding
counsel or another member of the bar.
The rule does not require a party or an attorney to disclose
privileged communications or work product in order to show that the
signing of the pleading, motion, or other paper is substantially
justified. The provisions of Rule 26(c), including appropriate orders
after in camera inspection by the court, remain available to protect a
party claiming privilege or work product protection.
Amended Rule 11 continues to apply to anyone who signs a pleading,
motion, or other paper. Although the standard is the same for
unrepresented parties, who are obliged themselves to sign the pleadings,
the court has sufficient discretion to take account of the special
circumstances that often arise in pro se situations. See Haines v.
Kerner 404 U.S. 519 (1972).
The provision in the original rule for striking pleadings and motions
as sham and false has been deleted. The passage has rarely been
utilized, and decisions thereunder have tended to confuse the issue of
attorney honesty with the merits of the action. See generally Risinger,
Honesty in Pleading and its Enforcement: Some ''Striking'' Problems
with Fed. R. Civ. P. 11, 61 Minn.L.Rev. 1 (1976). Motions under this
provision generally present issues better dealt with under Rules 8, 12,
or 56. See Murchison v. Kirby, 27 F.R.D. 14 (S.D.N.Y. 1961); 5 Wright
& Miller, Federal Practice and Procedure: Civil 1334 (1969).
The former reference to the inclusion of scandalous or indecent
matter, which is itself strong indication that an improper purpose
underlies the pleading, motion, or other paper, also has been deleted as
unnecessary. Such matter may be stricken under Rule 12(f) as well as
dealt with under the more general language of amended Rule 11.
The text of the amended rule seeks to dispel apprehensions that
efforts to obtain enforcement will be fruitless by insuring that the
rule will be applied when properly invoked. The word ''sanctions'' in
the caption, for example, stresses a deterrent orientation in dealing
with improper pleadings, motions or other papers. This corresponds to
the approach in imposing sanctions for discovery abuses. See National
Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976) (per
curiam). And the words ''shall impose'' in the last sentence focus the
court's attention on the need to impose sanctions for pleading and
motion abuses. The court, however, retains the necessary flexibility to
deal appropriately with violations of the rule. It has discretion to
tailor sanctions to the particular facts of the case, with which it
should be well acquainted.
The reference in the former text to wilfullness as a prerequisite to
disciplinary action has been deleted. However, in considering the
nature and severity of the sanctions to be imposed, the court should
take account of the state of the attorney's or party's actual or
presumed knowledge when the pleading or other paper was signed. Thus,
for example, when a party is not represented by counsel, the absence of
legal advice is an appropriate factor to be considered.
Courts currently appear to believe they may impose sanctions on their
own motion. See North American Trading Corp. v. Zale Corp., 73 F.R.D.
293 (S.D.N.Y. 1979). Authority to do so has been made explicit in order
to overcome the traditional reluctance of courts to intervene unless
requested by one of the parties. The detection and punishment of a
violation of the signing requirement, encouraged by the amended rule, is
part of the court's responsibility for securing the system's effective
operation.
If the duty imposed by the rule is violated, the court should have
the discretion to impose sanctions on either the attorney, the party the
signing attorney represents, or both, or on an unrepresented party who
signed the pleading, and the new rule so provides. Although Rule 11 has
been silent on the point, courts have claimed the power to impose
sanctions on an attorney personally, either by imposing costs or
employing the contempt technique. See 5 Wright & Miller, Federal
Practice and Procedure: Civil 1334 (1969); 2A Moore, Federal Practice
11.02, at 2104 n.8. This power has been used infrequently. The amended
rule should eliminate any doubt as to the propriety of assessing
sanctions against the attorney.
Even though it is the attorney whose signature violates the rule, it
may be appropriate under the circumstances of the case to impose a
sanction on the client. See Browning Debenture Holders' Committee v.
DASA Corp., supra. This modification brings Rule 11 in line with
practice under Rule 37, which allows sanctions for abuses during
discovery to be imposed upon the party, the attorney, or both.
A party seeking sanctions should give notice to the court and the
offending party promptly upon discovering a basis for doing so. The
time when sanctions are to be imposed rests in the discretion of the
trial judge. However, it is anticipated that in the case of pleadings
the sanctions issue under Rule 11 normally will be determined at the end
of the litigation, and in the case of motions at the time when the
motion is decided or shortly thereafter. The procedure obviously must
comport with due process requirements. The particular format to be
followed should depend on the circumstances of the situation and the
severity of the sanction under consideration. In many situations the
judge's participation in the proceedings provides him with full
knowledge of the relevant facts and little further inquiry will be
necessary.
To assure that the efficiencies achieved through more effective
operation of the pleading regimen will not be offset by the cost of
satellite litigation over the imposition of sanctions, the court must to
the extent possible limit the scope of sanction proceedings to the
record. Thus, discovery should be conducted only by leave of the court,
and then only in extraordinary circumstances.
Although the encompassing reference to ''other papers'' in new Rule
11 literally includes discovery papers, the certification requirement in
that context is governed by proposed new Rule 26(g). Discovery motions,
however, fall within the ambit of Rule 11.
The amendments are technical. No substantive change is intended.
Notary public and other persons authorized to administer oaths
required by laws of the United States, see section 2903 of Title 5,
Government Organization and Employees.
Signing of motions and other papers, see rule 7.
28 USC Rule 12. Defenses and Objections -- When and How Presented -- By
Pleading or Motion -- Motion for Judgment on Pleadings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) When Presented. A defendant shall serve an answer within 20 days
after the service of the summons and complaint upon that defendant,
except when service is made under Rule 4(e) and a different time is
prescribed in the order of court under the statute of the United States
or in the statute or rule of court of the state. A party served with a
pleading stating a cross-claim against that party shall serve an answer
thereto within 20 days after the service upon that party. The plaintiff
shall serve a reply to a counterclaim in the answer within 20 days after
service of the answer or, if a reply is ordered by the court, within 20
days after service of the order, unless the order otherwise directs.
The United States or an officer or agency thereof shall serve an answer
to the complaint or to a cross-claim, or a reply to a counterclaim,
within 60 days after the service upon the United States attorney of the
pleading in which the claim is asserted. The service of a motion
permitted under this rule alters these periods of time as follows,
unless a different time is fixed by order of the court: (1) if the
court denies the motion or postpones its disposition until the trial on
the merits, the responsive pleading shall be served within 10 days after
notice of the court's action; (2) if the court grants a motion for a
more definite statement the responsive pleading shall be served within
10 days after the service of the more definite statement.
(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive pleading thereto
if one is required, except that the following defenses may at the option
of the pleader be made by motion: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3) improper
venue, (4) insufficiency of process, (5) insufficiency of service of
process, (6) failure to state a claim upon which relief can be granted,
(7) failure to join a party under Rule 19. A motion making any of these
defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one
or more other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for relief to which the adverse party
is not required to serve a responsive pleading, the adverse party may
assert at the trial any defense in law or fact to that claim for relief.
If, on a motion asserting the defense numbered (6) to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by Rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall
be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated
(1)-(7) in subdivision (b) of this rule, whether made in a pleading or
by motion, and the motion for judgment mentioned in subdivision (c) of
this rule shall be heard and determined before trial on application of
any party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, the party
may move for a more definite statement before interposing a responsive
pleading. The motion shall point out the defects complained of and the
details desired. If the motion is granted and the order of the court is
not obeyed within 10 days after notice of the order or within such other
time as the court may fix, the court may strike the pleading to which
the motion was directed or make such order as it deems just.
(f) Motion To Strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by these rules,
upon motion made by a party within 20 days after the service of the
pleading upon the party or upon the court's own initiative at any time,
the court may order stricken from any pleading any insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion
under this rule may join with it any other motions herein provided for
and then available to the party. If a party makes a motion under this
rule but omits therefrom any defense or objection then available to the
party which this rule permits to be raised by motion, the party shall
not thereafter make a motion based on the defense or objection so
omitted, except a motion as provided in subdivision (h)(2) hereof on any
of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of process
is waived (A) if omitted from a motion in the circumstances described in
subdivision (g), or (B) if it is neither made by motion under this rule
nor included in a responsive pleading or an amendment thereof permitted
by Rule 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under Rule
19, and an objection of failure to state a legal defense to a claim may
be made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). 1. Compare (former) Equity Rules 12 (Issue
of Subpoena -- Time for Answer) and 31 (Reply -- When Required -- When
Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) 9107, 9158; N.Y.C.P.A.
(1937) 263; N.Y.R.C.P. (1937) Rules 109-111.
2. U.S.C., Title 28, 763 (now 547) (Petition in action against
United States; service; appearance by district attorney) provides that
the United States as a defendant shall have 60 days within which to
answer or otherwise defend. This and other statutes which provide 60
days for the United States or an officer or agency thereof to answer or
otherwise defend are continued by this rule. Insofar as any statutes
not excepted in Rule 81 provide a different time for a defendant to
defend, such statutes are modified. See U.S.C., Title 28, (former) 45
(District courts; practice and procedure in certain cases under the
interstate commerce laws) (30 days).
3. Compare the last sentence of (former) Equity Rule 29 (Defenses --
How Presented) and N.Y.C.P.A. (1937) 283. See Rule 15(a) for time
within which to plead to an amended pleading.
Note to Subdivisions (b) and (d). 1. See generally (former) Equity
Rules 29 (Defenses -- How Presented), 33 (Testing Sufficiency of
Defense), 43 (Defect of Parties -- Resisting Objection), and 44 (Defect
of Parties -- Tardy Objection); N.Y.C.P.A. (1937) 277-280;
N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the Judicature Act
(The Annual Practice, 1937) O. 25, r.r. 1-4; Clark, Code Pleading
(1928) pp. 371-381.
2. For provisions authorizing defenses to be made in the answer or
reply see English Rules Under the Judicature Act (The Annual Practice,
1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) 378, 379. Compare
(former) Equity Rule 29 (Defenses -- How Presented); U.S.C., Title 28,
(former) 45 (District Courts; practice and procedure in certain cases
under the interstate commerce laws). U.S.C., Title 28, (former) 45,
substantially continued by this rule, provides: ''No replication need
be filed to the answer, and objections to the sufficiency of the
petition or answer as not setting forth a cause of action or defense
must be taken at the final hearing or by motion to dismiss the petition
based on said grounds, which motion may be made at any time before
answer is filed.'' Compare Calif.Code Civ.Proc. (Deering, 1937) 433; 4
Nev.Comp.Laws (Hillyer, 1929) 8600. For provisions that the defendant
may demur and answer at the same time, see Calif.Code Civ.Proc.
(Deering, 1937) 431; 4 Nev.Comp.Laws (Hillyer, 1929) 8598.
3. (Former) Equity Rule 29 (Defenses -- How Presented) abolished
demurrers and provided that defenses in point of law arising on the face
of the bill should be made by motion to dismiss or in the answer, with
further provision that every such point of law going to the whole or
material part of the cause or causes stated might be called up and
disposed of before final hearing ''at the discretion of the court.''
Likewise many state practices have abolished the demurrer, or retain it
only to attack substantial and not formal defects. See 6 Tenn.Code Ann.
(Williams, 1934) 8784; Ala.Code Ann. (Michie, 1928) 9479; 2
Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, 15-18; Kansas Gen.Stat.Ann.
(1935) 60-705, 60-706.
Note to Subdivision (c). Compare (former) Equity Rule 33 (Testing
Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112.
Note to Subdivisions (e) and (f). Compare (former) Equity Rules 20
(Further and Particular Statement in Pleading May Be Required) and 21
(Scandal and Impertinence); English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b, 8; 4 Mont.Rev.Codes Ann.
(1935) 9166, 9167; N.Y.C.P.A. (1937) 247; N.Y.R.C.P. (1937) Rules
103, 115, 116, 117; Wyo.Rev.Stat.Ann. (Courtright, 1931) 89-1033,
89-1034.
Note to Subdivision (g). Compare Rules of the District Court of the
United States for the District of Columbia (1937), Equity Rule 11; N.M.
Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii (105-408)
(1934); Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann.
(Remington, 1932) p. 160, Rule VI (e) and (f).
Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering,
1937) 434; 2 Minn.Stat. (Mason, 1927) 9252; N.Y.C.P.A. (1937) 278
and 279; Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann.
(Remington, 1932) p. 160, Rule VI (e). This rule continues U.S.C.,
Title 28, 80 (now 1359, 1447, 1919) (Dismissal or remand) (of action
over which district court lacks jurisdiction), while U.S.C., Title 28,
399 (now 1653) (Amendments to show diverse citizenship) is continued by
Rule 15.
Note. Subdivision (a). Various minor alterations in language have
been made to improve the statement of the rule. All references to bills
of particulars have been stricken in accordance with changes made in
subdivision (e).
Subdivision (b). The addition of defense (7), ''failure to join an
indispensable party,'' cures an omission in the rules, which are silent
as to the mode of raising such failure. See Commentary, Manner of
Raising Objection of Non-Joinder of Indispensable Party, 1940, 2
Fed.Rules Serv. 658 and, 1942, 5 Fed.Rules Serv. 820. In one case,
United States v. Metropolitan Life Ins. Co., E.D.Pa. 1941, 36 F.Supp.
399, the failure to join an indispensable party was raised under Rule
12(c).
Rule 12(b)(6), permitting a motion to dismiss for failure of the
complaint to state a claim on which relief can be granted, is
substantially the same as the old demurrer for failure of a pleading to
state a cause of action. Some courts have held that as the rule by its
terms refers to statements in the complaint, extraneous matter on
affidavits, depositions or otherwise, may not be introduced in support
of the motion, or to resist it. On the other hand, in many cases the
district courts have permitted the introduction of such material. When
these cases have reached circuit courts of appeals in situations where
the extraneous material so received shows that there is no genuine issue
as to any material question of fact and that on the undisputed facts as
disclosed by the affidavits or depositions, one party or the other is
entitled to judgment as a matter of law, the circuit courts, properly
enough, have been reluctant to dispose of the case merely on the face of
the pleading, and in the interest of prompt disposition of the action
have made a final disposition of it. In dealing with such situations
the Second Circuit has made the sound suggestion that whatever its label
or original basis, the motion may be treated as a motion for summary
judgment and disposed of as such. Samara v. United States, C.C.A.2d,
1942, 129 F.2d 594, cert. den., 1942, 317 U.S. 686, 63 S.Ct. 258; Boro
Hall Corp. v. General Motors Corp., C.C.A.2d, 1942, 124 F.2d 822, cert.
den., 1943, 317 U.S. 695, 63 S.Ct. 436. See also Kithcart v.
Metropolitan Life Ins. Co., C.C.A.8th, 1945, 150 F.2d 997, aff'g 62
F.Supp. 93.
It has also been suggested that this practice could be justified on
the ground that the federal rules permit ''speaking'' motions. The
Committee entertains the view that on motion under Rule 12(b)(6) to
dismiss for failure of the complaint to state a good claim, the trial
court should have authority to permit the introduction of extraneous
matter, such as may be offered on a motion for summary judgment, and if
it does not exclude such matter the motion should then be treated as a
motion for summary judgment and disposed of in the manner and on the
conditions stated in Rule 56 relating to summary judgments, and, of
course, in such a situation, when the case reaches the circuit court of
appeals, that court should treat the motion in the same way. The
Committee believes that such practice, however, should be tied to the
summary judgment rule. The term ''speaking motion'' is not mentioned in
the rules, and if there is such a thing its limitations are undefined.
Where extraneous matter is received, by tying further proceedings to the
summary judgment rule the courts have a definite basis in the rules for
disposing of the motion.
The Committee emphasizes particularly the fact that the summary
judgment rule does not permit a case to be disposed of by judgment on
the merits on affidavits, which disclose a conflict on a material issue
of fact, and unless this practice is tied to the summary judgment rule,
the extent to which a court, on the introduction of such extraneous
matter, may resolve questions of fact, on conflicting proof would be
left uncertain.
The decisions dealing with this general situation may be generally
grouped as follows: (1) cases dealing with the use of affidavits and
other extraneous material on motions; (2) cases reversing judgments to
prevent final determination on mere pleading allegations alone.
Under group (1) are: Boro Hall Corp. v. General Motors Corp.,
C.C.A.2d, 1942, 124 F.2d 822, cert. den., 1943, 317 U.S. 695, 63 S.Ct.
436; Gallup v. Caldwell, C.C.A.3d, 1941, 120 F.2d 90; Central Mexico
Light & Power Co. v. Munch, C.C.A.2d, 1940, 116 F.2d 85; National
Labor Relations Board v. Montgomery Ward & Co., App.D.C. 1944, 79
U.S.App.D.C. 200, 144 F.2d 528, cert. den., 1944, 65 S.Ct. 134;
Urquhart v. American-La France Foamite Corp., App.D.C. 1944, 79
U.S.App.D.C. 219, 144 F.2d 542; Samara v. United States, C.C.A.2d,
1942, 129 F.2d 594; Cohen v. American Window Glass Co., C.C.A.2d,
1942, 126 F.2d 111; Sperry Products Inc. v. Association of American
Railroads, C.C.A.2d, 1942, 132 F.2d 408; Joint Council Dining Car
Employees Local 370 v. Delaware, Lackawanna and Western R. Co.,
C.C.A.2d, 1946, 157 F.2d 417; Weeks v. Bareco Oil Co., C.C.A.7th,
1941, 125 F.2d 84; Carroll v. Morrison Hotel Corp., C.C.A.7th, 1945,
149 F.2d 404; Victory v. Manning, C.C.A.3rd, 1942, 128 F.2d 415;
Locals No. 1470, No. 1469, and 1512 of International Longshoremen's
Association v. Southern Pacific Co., C.C.A.5th, 1942, 131 F.2d 605;
Lucking v. Delano, C.C.A.6th, 1942, 129 F.2d 283; San Francisco Lodge
No. 68 of International Association of Machinists v. Forrestal,
N.D.Cal. 1944, 58 F.Supp. 466; Benson v. Export Equipment Corp., N.
Mex. 1945, 164 P.2d 380, construing New Mexico rule identical with Rule
12(b)(6); F. E. Myers & Bros. Co. v. Gould Pumps, Inc., W.D.N.Y. 1946,
9 Fed.Rules Serv. 12b, 33 Case 2, 5 F.R.D. 132. Cf. Kohler v. Jacobs,
C.C.A.5th, 1943, 138 F.2d 440; Cohen v. United States, C.C.A.8th,
1942, 129 F.2d 733.
Under group (2) are: Sparks v. England, C.C.A.8th, 1940, 113 F.2d
579; Continental Collieries, Inc. v. Shober, C.C.A.3d, 1942, 130 F.2d
631; Downey v. Palmer, C.C.A.2d 1940, 114 F.2d 116; DeLoach v.
Crowley's Inc., C.C.A.5th, 1942, 128 F.2d 378; Leimer v. State Mutual
Life Assurance Co. of Worcester, Mass., C.C.A.8th, 1940, 108 F.2d 302;
Rossiter v. Vogel, C.C.A.2d, 1943, 134 F.2d 908, compare s. c.,
C.C.A.2d, 1945, 148 F.2d 292; Karl Kiefer Machine Co. v. United States
Bottlers Machinery Co., C.C.A.7th, 1940, 113 F.2d 356; Chicago Metallic
Mfg. Co. v. Edward Katzinger Co., C.C.A.7th, 1941, 123 F.2d 518;
Louisiana Farmers' Protective Union, Inc. v. Great Atlantic & Pacific
Tea Co. of America, Inc., C.C.A.8th, 1942, 131 F.2d 419; Publicity
Bldg. Realty Corp. v. Hannegan, C.C.A.8th, 1943, 139 F.2d 583;
Dioguardi v. Durning, C.C.A.2d, 1944, 139 F.2d 774; Package Closure
Corp. v. Sealright Co., Inc., C.C.A.2d, 1944, 141 F.2d 972; Tahir Erk
v. Glenn L. Martin Co., C.C.A.4th, 1941, 116 F.2d 865; Bell v.
Preferred Life Assurance Society of Montgomery, Ala., 1943, 320 U.S.
238, 64 S.Ct. 5.
The addition at the end of subdivision (b) makes it clear that on a
motion under Rule 12(b)(6) extraneous material may not be considered if
the court excludes it, but that if the court does not exclude such
material the motion shall be treated as a motion for summary judgment
and disposed of as provided in Rule 56. It will also be observed that
if a motion under Rule 12(b)(6) is thus converted into a summary
judgment motion, the amendment insures that both parties shall be given
a reasonable opportunity to submit affidavits and extraneous proofs to
avoid taking a party by surprise through the conversion of the motion
into a motion for summary judgment. In this manner and to this extent
the amendment regularizes the practice above described. As the courts
are already dealing with cases in this way, the effect of this amendment
is really only to define the practice carefully and apply the
requirements of the summary judgment rule in the disposition of the
motion.
Subdivision (c). The sentence appended to subdivision (c) performs
the same function and is grounded on the same reasons as the
corresponding sentence added in subdivision (b).
Subdivision (d). The change here was made necessary because of the
addition of defense (7) in subdivision (b).
Subdivision (e). References in this subdivision to a bill of
particulars have been deleted, and the motion provided for is confined
to one for a more definite statement, to be obtained only in cases where
the movant cannot reasonably be required to frame an answer or other
responsive pleading to the pleading in question. With respect to
preparations for trial, the party is properly relegated to the various
methods of examination and discovery provided in the rules for that
purpose. Slusher v. Jones, E.D.Ky. 1943, 7 Fed.Rules Serv. 12e.231,
Case 5, 3 F.R.D. 168; Best Foods, Inc. v. General Mills, Inc., D.Del.
1943, 7 Fed.Rules Serv. 12e.231, Case 7, 3 F.R.D. 275; Braden v.
Callaway, E.D.Tenn. 1943, 8 Fed.Rules Serv. 12e.231, Case 1 (''. . .
most courts . . . conclude that the definiteness required is only such
as will be sufficient for the party to prepare responsive pleadings'').
Accordingly, the reference to the 20 day time limit has also been
eliminated, since the purpose of this present provision is to state a
time period where the motion for a bill is made for the purpose of
preparing for trial.
Rule 12(e) as originally drawn has been the subject of more judicial
rulings than any other part of the rules, and has been much criticized
by commentators, judges and members of the bar. See general discussion
and cases cited in 1 Moore's Federal Practice, 1938, Cum.Supplement,
12.07, under ''Page 657''; also, Holtzoff, New Federal Procedure and
the Courts, 1940, 35-41. And compare vote of Second Circuit Conference
of Circuit and District Judges, June 1940, recommending the abolition of
the bill of particulars; Sun Valley Mfg. Co. v. Mylish, E.D.Pa. 1944,
8 Fed.Rules Serv. 12e.231, Case 6 (''Our experience . . . has
demonstrated not only that 'the office of the bill of particulars is
fast becoming obsolete' . . . but that in view of the adequate discovery
procedure available under the Rules, motions for bills of particulars
should be abolished altogether.''); Walling v. American Steamship Co.,
W.D.N.Y. 1945, 4 F.R.D. 355, 8 Fed.Rules Serv. 12e.244, Case 8 (''. . .
the adoption of the rule was ill advised. It has led to confusion,
duplication and delay.'') The tendency of some courts freely to grant
extended bills of particulars has served to neutralize any helpful
benefits derived from Rule 8, and has overlooked the intended use of the
rules on depositions and discovery. The words ''or to prepare for
trial'' -- eliminated by the proposed amendment -- have sometimes been
seized upon as grounds for compulsory statement in the opposing pleading
of all the details which the movant would have to meet at the trial. On
the other hand, many courts have in effect read these words out of the
rule. See Walling v. Alabama Pipe Co., W.D.Mo. 1942, 3 F.R.D. 159, 6
Fed.Rules Serv. 12e.244, Case 7; Fleming v. Mason & Dixon Lines,
Inc., E.D.Tenn. 1941, 42 F.Supp. 230; Kellogg Co. v. National Biscuit
Co., D.N.J. 1941, 38 F.Supp. 643; Brown v. H. L. Green Co., S.D.N.Y.
1943, 7 Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident
Ins. Co., W.D.Mo. 1945, 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v.
Ohse, D.Neb. 1945, 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1;
Klages v. Cohen, E.D.N.Y. 1945, 9 Fed.Rules Serv. 8a.25, Case 4;
Bowles v. Lawrence, D.Mass. 1945, 8 Fed.Rules Serv. 12e.231, Case 19;
McKinney Tool & Mfg. Co. v. Hoyt, N.D.Ohio 1945, 9 Fed.Rules Serv.
12e.235, Case 1; Bowles v. Jack, D.Minn. 1945, 5 F.R.D. 1, 9 Fed.Rules
Serv. 12e.244, Case 9. And it has been urged from the bench that the
phrase be stricken. Poole v. White, N.D.W.Va. 1941. 5 Fed.Rules Serv.
12e.231, Case 4, 2 F.R.D. 40. See also Bowles v. Gabel, W.D.Mo. 1946, 9
Fed.Rules Serv. 12e.244, Case 10 (''The courts have never favored that
portion of the rules which undertook to justify a motion of this kind
for the purpose of aiding counsel in preparing his case for trial.'').
Subdivision (f). This amendment affords a specific method of raising
the insufficiency of a defense, a matter which has troubled some courts,
although attack has been permitted in one way or another. See Dysart v.
Remington-Rand, Inc., D.Conn. 1939, 31 F.Supp. 296; Eastman Kodak Co.
v. McAuley, S.D.N.Y. 1941, 4 Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D.
21; Schenley Distillers Corp. v. Renken, E.D.S.C. 1940, 34 F.Supp.
678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., S.D.N.Y.
1944, 3 F.R.D. 440; United States v. Turner Milk Co., N.D.Ill. 1941, 4
Fed.Rules Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan
Oderwald, Inc., S.D.N.Y. 1940, 31 F.Supp. 626; Teplitsky v.
Pennsylvania R. Co., N.D.Ill. 1941, 38 F.Supp. 535; Gallagher v.
Carroll, E.D.N.Y. 1939, 27 F.Supp. 568; United States v. Palmer,
S.D.N.Y. 1939, 28 F.Supp. 936. And see Indemnity Ins. Co. of North
America v. Pan American Airways, Inc., S.D.N.Y. 1944, 58 F.Supp. 338;
Commentary, Modes of Attacking Insufficient Defenses in the Answer,
1939, 1 Fed.Rules Serv. 669, 1940, 2 Fed.Rules Serv. 640.
Subdivision (g). The change in title conforms with the companion
provision in subdivision (h).
The alteration of the ''except'' clause requires that other than
provided in subdivision (h) a party who resorts to a motion to raise
defenses specified in the rule, must include in one motion all that are
then available to him. Under the original rule defenses which could be
raised by motion were divided into two groups which could be the
subjects of two successive motions.
Subdivision (h). The addition of the phrase relating to
indispensable parties is one of necessity.
This amendment conforms to the amendment of Rule 4(e). See also the
Advisory Committee's Note to amended Rule 4(b).
Subdivision (b)(7). The terminology of this subdivision is changed
to accord with the amendment of Rule 19. See the Advisory Committee's
Note to Rule 19, as amended, especially the third paragraph therein
before the caption ''Subdivision (c).''
Subdivision (g). Subdivision (g) has forbidden a defendant who makes
a preanswer motion under this rule from making a further motion
presenting any defense or objection which was available to him at the
time he made the first motion and which he could have included, but did
not in fact include therein. Thus if the defendant moves before answer
to dismiss the complaint for failure to state a claim, he is barred from
making a further motion presenting the defense of improper venue, if
that defense was available to him when he made his original motion.
Amended subdivision (g) is to the same effect. This required
consolidation of defenses and objections in a Rule 12 motion is salutary
in that it works against piecemeal consideration of a case. For
exceptions to the requirement of consolidation, see the last clause of
subdivision (g), referring to new subdivision (h)(2).
Subdivision (h). The question has arisen whether an omitted defense
which cannot be made the basis of a second motion may nevertheless be
pleaded in the answer. Subdivision (h) called for waiver of ''* * *
defenses and objections which he (defendant) does not present * * * by
motion * * * or, if he has made no motion, in his answer * * *.'' If the
clause ''if he has made no motion,'' was read literally, it seemed that
the omitted defense was waived and could not be pleaded in the answer.
On the other hand, the clause might be read as adding nothing of
substance to the preceding words; in that event it appeared that a
defense was not waived by reason of being omitted from the motion and
might be set up in the answer. The decisions were divided. Favoring
waiver, see Keefe v. Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger
v. Precision Metal Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see
also Rensing v. Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958);
P. Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282
(S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y. 1950).
Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th Cir. 1941);
Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963) (regretfully following the
Phillips case); see also Birnbaum v. Birrell, 9 F.R.D. 72 (S.D.N.Y.
1948); Johnson v. Joseph Schlitz Brewing Co., 33 F.Supp. 176
(E.D.Tenn. 1940); cf. Carter v. American Bus Lines, Inc., 22 F.R.D.
323 (D.Neb. 1958).
Amended subdivision (h)(1)(A) eliminates the ambiguity and states
that certain specified defenses which were available to a party when he
made a preanswer motion, but which he omitted from the motion, are
waived. The specified defenses are lack of jurisdiction over the
person, improper venue, insufficiency of process, and insufficiency of
service of process (see Rule 12(b)(2)-(5)). A party who by motion
invites the court to pass upon a threshold defense should bring forward
all the specified defenses he then has and thus allow the court to do a
reasonably complete job. The waiver reinforces the policy of
subdivision (g) forbidding successive motions.
By amended subdivision (h)(1)(B), the specified defenses, even if not
waived by the operation of (A), are waived by the failure to raise them
by a motion under Rule 12 or in the responsive pleading or any amendment
thereof to which the party is entitled as a matter of course. The
specified defenses are of such a character that they should not be
delayed and brought up for the first time by means of an application to
the court to amend the responsive pleading.
Since the language of the subdivisions is made clear, the party is
put on fair notice of the effect of his actions and omissions and can
guard himself against unintended waiver. It is to be noted that while
the defenses specified in subdivision (h)(1) are subject to waiver as
there provided, the more substantial defenses of failure to state a
claim upon which relief can be granted, failure to join a party
indispensable under Rule 19, and failure to state a legal defense to a
claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of
jurisdiction over the subject matter (see Rule 12(b)(1)), are expressly
preserved against waiver by amended subdivision (h)(2) and (3).
The amendments are technical. No substantive change is intended.
Bill of particulars, see rule 7, Title 18, Appendix, Crimes and
Criminal Procedure.
Demurrers as abolished, see rule 12.
Motion raising defenses and objections, see rule 12 and note of
Advisory Committee under the rule.
Answer presenting defenses under subd. (b) of this rule, see form
20, Appendix of Forms.
Motion to dismiss, presenting defenses of failure to state a claim,
of lack of service of process, of improper venue, and of lack of
jurisdiction under subd. (b) of this rule, see form 19.
Demurrers abolished, see rule 7.
Dismissal of actions --
Claims of opposing party, judgment on counterclaim or cross-claim,
see rule 13.
Class actions, see rule 23(c).
Costs of previously-dismissed action, see rule 41.
Depositions, right to use depositions in former action, see rule 26.
Failure to serve answers to interrogatories, see rule 37.
Findings of fact and conclusions of law, necessity, see rule 52.
Voluntary and involuntary dismissal, see rule 41.
District courts --
Jurisdiction, see chapter 85 of this title.
Trials, hearings, and orders in chambers, see rule 77.
Venue, see chapter 87 of this title.
Evidence on motions, see rule 43.
Findings of fact and conclusions of law unnecessary, see rule 52.
Indication of simplicity and brevity of statement, see rule 84.
Judgment, definition of, see rule 54.
Motions --
Adoption of statement by reference, see rule 10.
Courts always open for making, see section 452 of this title.
Evidence on, see rule 43.
Extension of time, see rule 6.
Form of, see rule 7.
Motion day and oral hearings, see rule 78.
Technical forms not required, see rule 8.
Time for motions generally, see rule 6.
Parties --
Necessary joinder, see rule 19.
Third-party defendant, defenses to third-party plaintiff and
plaintiff's claims, see rule 14.
Pleadings --
Affirmative defenses, see rule 8.
Form of, see rule 10.
Pleadings allowed, see rule 7.
Striking for failure to serve answer to interrogatory, see rule 37.
Waiver, objections to venue, see section 1406 of this title.
28 USC Rule 13. Counterclaim and Cross-Claim
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading the
pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. But the
pleader need not state the claim if (1) at the time the action was
commenced the claim was the subject of another pending action, or (2)
the opposing party brought suit upon the claim by attachment or other
process by which the court did not acquire jurisdiction to render a
personal judgment on that claim, and the pleader is not stating any
counterclaim under this Rule 13.
(b) Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction
or occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may
not diminish or defeat the recovery sought by the opposing party. It
may claim relief exceeding in amount or different in kind from that
sought in the pleading of the opposing party.
(d) Counterclaim Against the United States. These rules shall not be
construed to enlarge beyond the limits now fixed by law the right to
assert counterclaims or to claim credits against the United States or an
officer or agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving a pleading
may, with the permission of the court, be presented as a counterclaim by
supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect, or
when justice requires, the pleader may by leave of court set up the
counterclaim by amendment.
(g) Cross-Claim Against Co-Party. A pleading may state as a
cross-claim any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein or relating to any property
that is the subject matter of the original action. Such cross-claim may
include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a counterclaim or
cross-claim in accordance with the provisions of Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(b), judgment on a counterclaim or
cross-claim may be rendered in accordance with the terms of Rule 54(b)
when the court has jurisdiction so to do, even if the claims of the
opposing party have been dismissed or otherwise disposed of.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
1. This is substantially (former) Equity Rule 30 (Answer -- Contents
-- Counterclaim), broadened to include legal as well as equitable
counterclaims.
2. Compare the English practice, English Rules Under the Judicature
Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and O. 21, r.r.
10 -- 17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181, 182 (1881).
3. Certain States have also adopted almost unrestricted provisions
concerning both the subject matter of and the parties to a counterclaim.
This seems to be the modern tendency. Ark.Civ.Code (Crawford, 1934)
117 (as amended) and 118; N.J.Comp.Stat. (2 Cum.Supp. 1911-1924),
N.Y.C.P.A. (1937) 262, 266, 267 (all as amended, Laws of 1936, ch.
324), 268, 269, and 271; Wis.Stat. (1935) 263.14 (1)(c).
4. Most codes do not expressly provide for a counterclaim in the
reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll, 1932)
Civ.Pract. 98 does provide, however, for such counterclaim.
5. The provisions of this rule respecting counterclaims are subject
to Rule 82 (Jurisdiction and Venue Unaffected). For a discussion of
Federal jurisdiction and venue in regard to counterclaims and
cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations
in Federal Procedure (1936), 45 Yale L.J. 393, 410 et seq.
6. This rule does not affect such statutes of the United States as
U.S.C., Title 28, 41(1) (now 1332, 1345, 1359) (United States as
plaintiff; civil suits at common law and in equity), relating to
assigned claims in actions based on diversity of citizenship.
7. If the action proceeds to judgment without the interposition of a
counterclaim as required by subdivision (a) of this rule, the
counterclaim is barred. See American Mills Co. v. American Surety Co.,
260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306 (1922); Marconi Wireless
Telegraph Co. v. National Electric Signalling Co., 206 Fed. 295
(E.D.N.Y., 1913); Hopkins, Federal Equity Rules (8th ed., 1933), p.
213; Simkins, Federal Practice (1934), p. 663
8. For allowance of credits against the United States see U.S.C.,
Title 26, 1672-1673 (see 7442) (Suits for refunds of internal revenue
taxes -- limitations); U.S.C., Title 28, 774 (now 2406) (Suits by
United States against individuals; credits), (former) 775 (Suits under
postal laws; credits); U.S.C., Title 31, 227 (now 3728) (Offsets
against judgments and claims against United States).
Note. Subdivision (a). The use of the word ''filing'' was
inadvertent. The word ''serving'' conforms with subdivision (e) and
with usage generally throughout the rules.
The removal of the phrase ''not the subject of a pending action'' and
the addition of the new clause at the end of the subdivision is designed
to eliminate the ambiguity noted in Prudential Insurance Co. of America
v. Saxe, App.D.C. 1943, 77 U.S.App.D.C. 144, 134 F.2d 16, 33-34, cert.
den., 1943, 319 U.S. 745, 63 S.Ct. 1033. The rewording of the
subdivision in this respect insures against an undesirable possibility
presented under the original rule whereby a party having a claim which
would be the subject of a compulsory counterclaim could avoid stating it
as such by bringing an independent action in another court after the
commencement of the federal action but before serving his pleading in
the federal action.
Subdivision (g). The amendment is to care for a situation such as
where a second mortgagee is made defendant in a foreclosure proceeding
and wishes to file a cross-complaint against the mortgagor in order to
secure a personal judgment for the indebtedness and foreclose his lien.
A claim of this sort by the second mortgagee may not necessarily arise
out of the transaction or occurrence that is the subject matter of the
original action under the terms of Rule 13(g).
Subdivision (h). The change clarifies the interdependence of Rules
13(i) and 54(b).
When a defendant, if he desires to defend his interest in property,
is obliged to come in and litigate in a court to whose jurisdiction he
could not ordinarily be subjected, fairness suggests that he should not
be required to assert counterclaims, but should rather be permitted to
do so at his election. If, however, he does elect to assert a
counterclaim, it seems fair to require him to assert any other which is
compulsory within the meaning of Rule 13(a). Clause (2), added by
amendment to Rule 13(a), carries out this idea. It will apply to
various cases described in Rule 4(e), as amended, where service is
effected through attachment or other process by which the court does not
acquire jurisdiction to render a personal judgment against the
defendant. Clause (2) will also apply to actions commenced in State
courts jurisdictionally grounded on attachment or the like, and removed
to the Federal courts.
Rule 13(h), dealing with the joinder of additional parties to a
counterclaim or cross-claim, has partaken of some of the textual
difficulties of Rule 19 on necessary joinder of parties. See Advisory
Committee's Note to Rule 19, as amended; cf. 3 Moore's Federal
Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A Barron &
Holtzoff, Federal Practice and Procedure 399 (Wright ed. 1960). Rule
13(h) has also been inadequate in failing to call attention to the fact
that a party pleading a counterclaim or cross-claim may join additional
persons when the conditions for permissive joinder of parties under Rule
20 are satisfied.
The amendment of Rule 13(h) supplies the latter omission by expressly
referring to Rule 20, as amended, and also incorporates by direct
reference the revised criteria and procedures of Rule 19, as amended.
Hereafter, for the purpose of determining who must or may be joined as
additional parties to a counterclaim or cross-claim, the party pleading
the claim is to be regarded as a plaintiff and the additional parties as
plaintiffs or defendants as the case may be, and amended Rules 19 and 20
are to be applied in the usual fashion. See also Rules 13(a)
(compulsory counterclaims) and 22 (interpleader).
The amendment of Rule 13(h), like the amendment of Rule 19, does not
attempt to regulate Federal jurisdiction or venue. See Rule 82. It
should be noted, however, that in some situations the decisional law has
recognized ''ancillary'' Federal jurisdiction over counterclaims and
cross-claims and ''ancillary'' venue as to parties to these claims.
The amendments are technical. No substantive change is intended.
Counterclaim, see forms 20 and 21, Appendix of Forms.
Cross-claim, see form 20.
Counterclaim --
Default judgment against counter-claimants, see rule 55.
Dismissal, see rule 41.
Mistake in designation of defense, see rule 8.
Reply, see rule 7.
Requisites of pleading, see rule 8.
Service of pleadings, numerous defendants, see rule 5.
Summary judgment, see rule 56.
Third party practice, see rule 14.
Time for reply by United States, see rule 12.
Time of service of reply, see rule 12.
Voluntary dismissal, see rule 41.
Cross-claim --
Answer to, if answer contains a cross-claim, see rule 7.
Default judgment against, see rule 55.
Dismissal, see rule 41.
Joinder, see rule 18.
Requisites of pleading, see rule 8.
Service of pleadings, numerous defendants, see rule 5.
Summary judgment, see rule 56.
Third party practice, see rule 14.
Time for answer by United States, see rule 12.
28 USC Rule 14. Third-Party Practice
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to the third-party
plaintiff for all or part of the plaintiff's claim against the
third-party plaintiff. The third-party plaintiff need not obtain leave
to make the service if the third-party plaintiff files the third-party
complaint not later than 10 days after serving the original answer.
Otherwise the third-party plaintiff must obtain leave on motion upon
notice to all parties to the action. The person served with the summons
and third-party complaint, hereinafter called the third-party defendant,
shall make any defenses to the third-party plaintiff's claim as provided
in Rule 12 and any counterclaims against the third-party plaintiff and
cross-claims against other third-party defendants as provided in Rule
13. The third-party defendant may assert against the plaintiff any
defenses which the third-party plaintiff has to the plaintiff's claim.
The third-party defendant may also assert any claim against the
plaintiff arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party
plaintiff. The plaintiff may assert any claim against the third-party
defendant arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party
plaintiff, and the third-party defendant thereupon shall assert any
defenses as provided in Rule 12 and any counterclaims and cross-claims
as provided in Rule 13. Any party may move to strike the third-party
claim, or for its severance or separate trial. A third-party defendant
may proceed under this rule against any person not a party to the action
who is or may be liable to the third-party defendant for all or part of
the claim made in the action against the third-party defendant. The
third-party complaint, if within the admiralty and maritime
jurisdiction, may be in rem against a vessel, cargo, or other property
subject to admiralty or maritime process in rem, in which case
references in this rule to the summons include the warrant of arrest,
and references to the third-party plaintiff or defendant include, where
appropriate, the claimant of the property arrested.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is
asserted against a plaintiff, the plaintiff may cause a third party to
be brought in under circumstances which under this rule would entitle a
defendant to do so.
(c) Admiralty and Maritime Claims. When a plaintiff asserts an
admiralty or maritime claim within the meaning of Rule 9(h), the
defendant or claimant, as a third-party plaintiff, may bring in a
third-party defendant who may be wholly or partly liable, either to the
plaintiff or to the third-party plaintiff, by way of remedy over,
contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences. In such a case
the third-party plaintiff may also demand judgment against the
third-party defendant in favor of the plaintiff, in which event the
third-party defendant shall make any defenses to the claim of the
plaintiff as well as to that of the third-party plaintiff in the manner
provided in Rule 12 and the action shall proceed as if the plaintiff had
commenced it against the third-party defendant as well as the
third-party plaintiff.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Third-party impleader is in some aspects a modern innovation in law
and equity although well known in admiralty. Because of its many
advantages a liberal procedure with respect to it has developed in
England, in the Federal admiralty courts, and in some American State
jurisdictions. See English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 16A, r.r. 1-13; United States Supreme Court
Admiralty Rules (1920), Rule 56 (Right to Bring in Party Jointly
Liable); Pa.Stat.Ann. (Purdon, 1936) Title 12, 141; Wis.Stat. (1935)
260.19, 260.20; N.Y.C.P.A. (1937) 193 (2), 211(a). Compare La.Code
Pract. (Dart, 1932) 378-388. For the practice in Texas as developed
by judicial decision, see Lottman v. Cuilla, 288 S.W. 123, 126 (Tex.,
1926). For a treatment of this subject see Gregory, Legislative Loss
Distribution in Negligence Actions (1936); Shulman and Jaegerman, Some
Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L.J.
393, 417, et seq.
Third-party impleader under the conformity act has been applied in
actions at law in the Federal courts. Lowry and Co., Inc., v. National
City Bank of New York, 28 F.2d 895 (S.D.N.Y., 1928); Yellow Cab Co. of
Philadelphia v. Rodgers, 61 F.2d 729 (C.C.A.3d, 1932).
Note. The provisions in Rule 14(a) which relate to the impleading of
a third party who is or may be liable to the plaintiff have been deleted
by the proposed amendment. It has been held that under Rule 14(a) the
plaintiff need not amend his complaint to state a claim against such
third party if he does not wish to do so. Satink v. Holland Township,
D.N.J. 1940, 31 F.Supp. 229, noted, 1940, 88 U.Pa.L.Rev. 751; Connelly
v. Bender, E.D.Mich. 1941, 46 F.Supp. 368; Whitmire v. Partin
(Milton), E.D.Tenn. 1941, 2 F.R.D. 83, 5 Fed.Rules Serv. 14a.513, Case
2; Crim v. Lumbermen's Mutual Casualty Co., D.D.C. 1939, 26 F.Supp.
715; Carbola Chemical Co., Inc. v. Trundle, S.D.N.Y. 1943, 3 F.R.D.
502, 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express, Inc. v.
Automobile Ins. Co. of Hartford, Conn. (Providence Washington Ins.
Co.), N.D.Ohio 1945, 8 Fed.Rules Serv. 14a.513, Case 3. In Delano v.
Ives, E.D.Pa. 1941, 40 F.Supp. 672, the court said: ''. . . the weight
of authority is to the effect that a defendant cannot compel the
plaintiff, who has sued him, to sue also a third party whom he does not
wish to sue, by tendering in a third party complaint the third party as
an additional defendant directly liable to the plaintiff.'' Thus
impleader here amounts to no more than a mere offer of a party to the
plaintiff, and if he rejects it, the attempt is a time-consuming
futility. See Satink v. Holland Township, supra; Malkin v. Arundel
Corp., D.Md. 1941, 36 F.Supp. 948; also Koenigsberger, Suggestions for
Changes in the Federal Rules of Civil Procedure, 1941, 4 Fed.Rules Serv.
1010. But cf. Atlantic Coast Line R. Co. v. United States Fidelity &
Guaranty Co., M.D.Ga. 1943, 52 F.Supp. 177. Moreover, in any case where
the plaintiff could not have joined the third party originally because
of jurisdictional limitations such as lack of diversity of citizenship,
the majority view is that any attempt by the plaintiff to amend his
complaint and assert a claim against the impleaded third party would be
unavailing. Hoskie v. Prudential Ins. Co. of America (Lorrac Real
Estate Corp.), E.D.N.Y. 1941, 39 F.Supp. 305; Johnson v. G. J.
Sherrard Co. (New England Telephone & Telegraph Co.), D.Mass. 1941, 5
Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164; Thompson v. Cranston,
W.D.N.Y. 1942, 6 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 270, aff'd
C.C.A.2d, 1942, 132 F.2d 631, cert. den., 1943, 319 U.S. 741, 63 S.Ct.
1028; Friend v. Middle Atlantic Transportation Co., C.C.A.2d, 1946,
153 F.2d 778, cert. den., 1946, 66 S.Ct. 1370; Herrington v. Jones,
E.D.La. 1941, 5 Fed.Rules Serv. 14a.511, Case 2, 2 F.R.D. 108; Banks v.
Employers' Liability Assurance Corp. (Central Surety & Ins. Corp.),
W.D.Mo. 1943, 7 Fed.Rules Serv. 14a.11, Case 2; Saunders v. Baltimore
& Ohio R. Co., S.D.W.Va. 1945, 9 Fed.Rules Serv. 14a.62, Case 2; Hull
v. United States Rubber Co. (Johnson Larsen & Co.), E.D.Mich. 1945, 9
Fed.Rules Serv. 14a.62, Case 3. See also concurring opinion of Circuit
Judge Minton in People of State of Illinois for use of Trust Co. of
Chicago v. Maryland Casualty Co., C.C.A.7th, 1942, 132 F.2d 850, 853.
Contra: Sklar v. Hayes (Singer), E.D.Pa. 1941, 4 Fed.Rules Serv.
14a.511, Case 2, 1 F.R.D. 594. Discussion of the problem will be found
in Commentary, Amendment of Plaintiff's Pleading to Assert Claim Against
Third-Party Defendant, 1942, 5 Fed.Rules Serv. 811; Commentary,
Federal Jurisdiction in Third-Party Practice, 1943, 6 Fed.Rules Serv.
766; Holtzoff, Some Problems Under Federal Third-Party Practice, 1941,
3 La.L.Rev. 408, 419-420; 1. Moore's Federal Practice, 1938,
Cum.Supplement 14.08. For these reasons therefore, the words ''or to
the plaintiff'' in the first sentence of subdivision (a) have been
removed by the amendment; and in conformance therewith the words ''the
plaintiff'' in the second sentence of the subdivision, and the words
''or to the third-party plaintiff'' in the concluding sentence thereof
have likewise been eliminated.
The third sentence of Rule 14(a) has been expanded to clarify the
right of the third-party defendant to assert any defenses which the
third-party plaintiff may have to the plaintiff's claim. This protects
the impleaded third-party defendant where the third-party plaintiff
fails or neglects to assert a proper defense to the plaintiff's action.
A new sentence has also been inserted giving the third-party defendant
the right to assert directly against the original plaintiff any claim
arising out of the transaction or occurrence that is the subject matter
of the plaintiff's claim against the third-party plaintiff. This
permits all claims arising out of the same transaction or occurrence to
be heard and determined in the same action. See Atlantic Coast Line R.
Co. v. United States Fidelity & Guaranty Co., M.D.Ga. 1943, 52 F.Supp.
177. Accordingly, the next to the last sentence of subdivision (a) has
also been revised to make clear that the plaintiff may, if he desires,
assert directly against the third-party defendant either by amendment or
by a new pleading any claim he may have against him arising out of the
transaction or occurrence that is the subject matter of the plaintiff's
claim against the third-party plaintiff. In such a case, the
third-party defendant then is entitled to assert the defenses,
counter-claims and cross-claims provided in Rules 12 and 13.
The sentence reading ''The third-party defendant is bound by the
adjudication of the third-party plaintiff's liability to the plaintiff,
as well as of his own to the plaintiff, or to the third-party
plaintiff'' has been stricken from Rule 14(a), not to change the law,
but because the sentence states a rule of substantive law which is not
within the scope of a procedural rule. It is not the purpose of the
rules to state the effect of a judgment.
The elimination of the words ''the third-party plaintiff, or any
other party'' from the second sentence of Rule 14(a), together with the
insertion of the new phrases therein, are not changes of substance but
are merely for the purpose of clarification.
Under the amendment of the initial sentences of the subdivision, a
defendant as a third-party plaintiff may freely and without leave of
court bring in a third-party defendant if he files the third-party
complaint not later than 10 days after he serves his original answer.
When the impleader comes so early in the case, there is little value in
requiring a preliminary ruling by the court on the propriety of the
impleader.
After the third-party defendant is brought in, the court has
discretion to strike the third-party claim if it is obviously
unmeritorious and can only delay or prejudice the disposition of the
plaintiff's claim, or to sever the third-party claim or accord it
separate trial if confusion or prejudice would otherwise result. This
discretion, applicable not merely to the cases covered by the amendment
where the third-party defendant is brought in without leave, but to all
impleaders under the rule, is emphasized in the next-to-last sentence of
the subdivision, added by amendment.
In dispensing with leave of court for an impleader filed not later
than 10 days after serving the answer, but retaining the leave
requirement for impleaders sought to be effected thereafter, the amended
subdivision takes a moderate position on the lines urged by some
commentators, see Note, 43 Minn.L.Rev. 115 (1958); cf. Pa.R.Civ.P.
2252-53 (60 days after service on the defendant); Minn.R.Civ.P. 14.01
(45 days). Other commentators would dispense with the requirement of
leave regardless of the time when impleader is effected, and would rely
on subsequent action by the court to dismiss the impleader if it would
unduly delay or complicate the litigation or would be otherwise
objectionable. See 1A Barron & Holtzoff, Federal Practice & Procedure
649-50 (Wright ed. 1960); Comment, 58 Colum.L.Rev. 532, 546 (1958);
cf. N.Y.Civ.Prac. Act 193-a; Me.R.Civ.P. 14. The amended subdivision
preserves the value of a preliminary screening, through the leave
procedure, of impleaders attempted after the 10-day period.
The amendment applies also when an impleader is initiated by a
third-party defendant against a person who may be liable to him, as
provided in the last sentence of the subdivision.
Rule 14 was modeled on Admiralty Rule 56. An important feature of
Admiralty Rule 56 was that it allowed impleader not only of a person who
might be liable to the defendant by way of remedy over, but also of any
person who might be liable to the plaintiff. The importance of this
provision was that the defendant was entitled to insist that the
plaintiff proceed to judgment against the third-party defendant. In
certain cases this was a valuable implementation of a substantive right.
For example, in a case of ship collision where a finding of mutual
fault is possible, one ship- owner, if sued alone, faces the prospect of
an absolute judgment for the full amount of the damage suffered by an
innocent third party; but if he can implead the owner of the other
vessel, and if mutual fault is found, the judgment against the original
defendant will be in the first instance only for a moiety of the
damages; liability for the remainder will be conditioned on the
plaintiff's inability to collect from the third-party defendant.
This feature was originally incorporated in Rule 14, but was
eliminated by the amendment of 1946, so that under the amended rule a
third party could not be impleaded on the basis that he might be liable
to the plaintiff. One of the reasons for the amendment was that the
Civil Rule, unlike the Admiralty Rule, did not require the plaintiff to
go to judgment against the third-party defendant. Another reason was
that where jurisdiction depended on diversity of citizenship the
impleader of an adversary having the same citizenship as the plaintiff
was not considered possible.
Retention of the admiralty practice in those cases that will be
counterparts of a suit in admiralty is clearly desirable.
The amendments are technical. No substantive change is intended.
Third party answer, service of third party complaint, see rule 7.
Third party claim --
Dismissal of, see rule 41.
Joinder, see rule 18.
Judgment on less than all claims, see rule 54.
Requisites, see rule 8.
Separate trial, see rule 42.
Third party complaint, leave to summon person not an original party,
see rule 7.
Third party plaintiff, default judgment against, see rule 55.
Third party tort liability to United States for hospital and medical
care, see section 2651 et. seq. of Title 42, The Public Health and
Welfare.
28 USC Rule 15. Amended and Supplemental Pleadings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Amendments. A party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar, the party may so
amend it at any time within 20 days after it is served. Otherwise a
party may amend the party's pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given
when justice so requires. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading
or within 10 days after service of the amended pleading, whichever
period may be the longer, unless the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not raised by
the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice
the party in maintaining the party's action or defense upon the merits.
The court may grant a continuance to enable the objecting party to meet
such evidence.
(c) Relation Back of Amendments. An amendment of a pleading relates
back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute
of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision (2) is
satisfied and, within the period provided by Rule 4(j) for service of
the summons and complaint, the party to be brought in by amendment (A)
has received such notice of the institution of the action that the party
will not be prejudiced in maintaining a defense on the merits, and (B)
knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought against
the party.
The delivery or mailing of process to the United States Attorney, or
United States Attorney's designee, or the Attorney General of the United
States, or an agency or officer who would have been a proper defendant
if named, satisfies the requirement of subparagraphs (A) and (B) of this
paragraph (3) with respect to the United States or any agency or officer
thereof to be brought into the action as a defendant.
(d) Supplemental Pleadings. Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit the party
to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statement of a claim for relief or
defense. If the court deems it advisable that the adverse party plead
to the supplemental pleading, it shall so order, specifying the time
therefor.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991; Dec. 9, 1991, Pub. L. 102-198, 11(a), 105 Stat. 1626.)
See generally for the present federal practice, (former) Equity Rules
19 (Amendments Generally), 28 (Amendment of Bill as of Course), 32
(Answer to Amended Bill), 34 (Supplemental Pleading), and 35 (Bills of
Revivor and Supplemental Bills -- Form); U.S.C., Title 28, 399 (now
1653) (Amendments to show diverse citizenship) and (former) 777 (Defects
of Form; amendments). See English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 28, r.r. 1-13; O. 20, r. 4; O. 24, r.r.
1-3.
Note to Subdivision (a). The right to serve an amended pleading once
as of course is common. 4 Mont.Rev.Codes Ann. (1935) 9186; 1 Ore.Code
Ann. (1930) 1-904; 1 S.C.Code (Michie, 1932) 493; English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 28, r. 2.
Provision for amendment of pleading before trial, by leave of court, is
in almost every code. If there is no statute the power of the court to
grant leave is said to be inherent. Clark, Code Pleading, (1928) pp.
498, 509.
Note to Subdivision (b). Compare (former) Equity Rule 19 (Amendments
Generally) and code provisions which allow an amendment ''at any time in
furtherance of justice,'' (e. g., Ark.Civ.Code (Crawford, 1934) 155)
and which allow an amendment of pleadings to conform to the evidence,
where the adverse party has not been misled and prejudiced (e.g.,
N.M.Stat.Ann. (Courtright, 1929) 105-601, 105-602).
Note to Subdivision (c). ''Relation back'' is a well recognized
doctrine of recent and now more frequent application. Compare Ala.Code
Ann. (Michie, 1928) 9513; Ill.Rev.Stat. (1937) ch. 110, 170(2); 2
Wash.Rev.Stat.Ann. (Remington, 1932) 308-3(4). See U.S.C., Title 28,
399 (now 1653) (Amendments to show diverse citizenship) for a provision
for ''relation back.''
Note to Subdivision (d). This is an adaptation of Equity Rule 34
(Supplemental Pleading).
Rule 15(d) is intended to give the court broad discretion in allowing
a supplemental pleading. However, some cases, opposed by other cases
and criticized by the commentators, have taken the rigid and formalistic
view that where the original complaint fails to state a claim upon which
relief can be granted, leave to serve a supplemental complaint must be
denied. See Bonner v. Elizabeth Arden, Inc., 177 F.2d 703 (2d Cir.
1949); Bowles v. Senderowitz, 65 F.Supp. 548 (E.D.Pa.), rev'd on other
grounds, 158 F.2d 435 (3d Cir. 1946), cert. denied, Senderowitz v.
Fleming, 330 U.S. 848, 67 S.Ct. 1091, 91 L.Ed. 1292 (1947); cf.
LaSalle Nat. Bank v. 222 East Chestnut St. Corp., 267 F.2d 247 (7th
Cir.), cert. denied, 361 U.S. 836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959).
But see Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162
(5th Cir. 1958); Genuth v. National Biscuit Co., 81 F.Supp. 213
(S.D.N.Y. 1948), app. dism., 177 F.2d 962 (2d Cir. 1949); 3 Moore's
Federal Practice 15.01 (5) (Supp. 1960); 1A Barron & Holtzoff,
Federal Practice & Procedure 820-21 (Wright ed. 1960). Thus plaintiffs
have sometimes been needlessly remitted to the difficulties of
commencing a new action even though events occurring after the
commencement of the original action have made clear the right to relief.
Under the amendment the court has discretion to permit a supplemental
pleading despite the fact that the original pleading is defective. As
in other situations where a supplemental pleading is offered, the court
is to determine in the light of the particular circumstances whether
filing should be permitted, and if so, upon what terms. The amendment
does not attempt to deal with such questions as the relation of the
statute of limitations to supplemental pleadings, the operation of the
doctrine of laches, or the availability of other defenses. All these
questions are for decision in accordance with the principles applicable
to supplemental pleadings generally. Cf. Blau v. Lamb, 191 F.Supp. 906
(S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc.,
23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957).
Rule 15(c) is amplified to state more clearly when an amendment of a
pleading changing the party against whom a claim is asserted (including
an amendment to correct a misnomer or misdescription of a defendant)
shall ''relate back'' to the date of the original pleading.
The problem has arisen most acutely in certain actions by private
parties against officers or agencies of the United States. Thus an
individual denied social security benefits by the Secretary of Health,
Education, and Welfare may secure review of the decision by bringing a
civil action against that officer within sixty days. 42 U.S.C. 405(g)
(Supp. III, 1962). In several recent cases the claimants instituted
timely action but mistakenly named as defendant the United States, the
Department of HEW, the ''Federal Security Administration'' (a
nonexistent agency), and a Secretary who had retired from the office
nineteen days before. Discovering their mistakes, the claimants moved
to amend their complaints to name the proper defendant; by this time
the statutory sixty-day period had expired. The motions were denied on
the ground that the amendment ''would amount to the commencement of a
new proceeding and would not relate back in time so as to avoid the
statutory provision * * * that suit be brought within sixty days * * *''
Cohn v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961);
see also Cunningham v. United States, 199 F.Supp. 541 (W.D.Mo. 1958);
Hall v. Department of HEW, 199 F.Supp. 833 (S.D.Tex. 1960); Sandridge
v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn. 1959). (The
Secretary of Health, Education, and Welfare has approved certain
ameliorative regulations under 42 U.S.C. 405(g). See 29 Fed.Reg. 8209
(June 30, 1964); Jacoby, The Effect of Recent Changes in the Law of
''Nonstatutory'' Judicial Review, 53 Geo.L.J. 19, 42-43 (1964); see
also Simmons v. United States Dept. HEW, 328 F.2d 86 (3d Cir. 1964).)
Analysis in terms of ''new proceeding'' is traceable to Davis v. L.
L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. Arkansas Land &
Lumber Co., 275 U.S. 460 (1928), but those cases antedate the adoption
of the Rules which import different criteria for determining when an
amendment is to ''relate back''. As lower courts have continued to rely
on the Davis and Mellon cases despite the contrary intent of the Rules,
clarification of Rule 15(c) is considered advisable.
Relation back is intimately connected with the policy of the statute
of limitations. The policy of the statute limiting the time for suit
against the Secretary of HEW would not have been offended by allowing
relation back in the situations described above. For the government was
put on notice of the claim within the stated period -- in the particular
instances, by means of the initial delivery of process to a responsible
government official (see Rule 4(d)(4) and (5). In these circumstances,
characterization of the amendment as a new proceeding is not responsive
to the realty, but is merely question-begging; and to deny relation
back is to defeat unjustly the claimant's opportunity to prove his case.
See the full discussion by Byse, Suing the ''Wrong'' Defendant in
Judicial Review of Federal Administrative Action: Proposals for Reform,
77 Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act 46(4).
Much the same question arises in other types of actions against the
government (see Byse, supra, at 45 n. 15). In actions between private
parties, the problem of relation back of amendments changing defendants
has generally been better handled by the courts, but incorrect criteria
have sometimes been applied, leading sporadically to doubtful results.
See 1A Barron & Holtzoff, Federal Practice & Procedure 451 (Wright ed.
1960); 1 id. 186 (1960); 2 id. 543 (1961); 3 Moore's Federal
Practice, par. 15.15 (Cum.Supp. 1962); Annot., Change in Party After
Statute of Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has
been amplified to provide a general solution. An amendment changing the
party against whom a claim is asserted relates back if the amendment
satisfies the usual condition of Rule 15(c) of ''arising out of the
conduct * * * set forth * * * in the original pleading,'' and if, within
the applicable limitations period, the party brought in by amendment,
first, received such notice of the institution of the action -- the
notice need not be formal -- that he would not be prejudiced in
defending the action, and, second, knew or should have known that the
action would have been brought against him initially had there not been
a mistake concerning the identity of the proper party. Revised Rule
15(c) goes on to provide specifically in the government cases that the
first and second requirements are satisfied when the government has been
notified in the manner there described (see Rule 4(d)(4) and (5). As
applied to the government cases, revised Rule 15(c) further advances the
objectives of the 1961 amendment of Rule 25(d) (substitution of public
officers).
The relation back of amendments changing plaintiffs is not expressly
treated in revised Rule 15(c) since the problem is generally easier.
Again the chief consideration of policy is that of the statute of
limitations, and the attitude taken in revised Rule 15(c) toward change
of defendants extends by analogy to amendments changing plaintiffs.
Also relevant is the amendment of Rule 17(a) (real party in interest).
To avoid forfeitures of just claims, revised Rule 17(a) would provide
that no action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a reasonable
time has been allowed for correction of the defect in the manner there
stated.
The amendments are technical. No substantive change is intended.
The rule has been revised to prevent parties against whom claims are
made from taking unjust advantage of otherwise inconsequential pleading
errors to sustain a limitations defense.
Paragraph (c)(1). This provision is new. It is intended to make it
clear that the rule does not apply to preclude any relation back that
may be permitted under the applicable limitations law. Generally, the
applicable limitations law will be state law. If federal jurisdiction
is based on the citizenship of the parties, the primary reference is the
law of the state in which the district court sits. Walker v. Armco
Steel Corp., 446 U.S. 740 (1980). If federal jurisdiction is based on a
federal question, the reference may be to the law of the state governing
relations between the parties. E.g., Board of Regents v. Tomanio, 446
U.S. 478 (1980). In some circumstances, the controlling limitations law
may be federal law. E.g., West v. Conrail, Inc., 107 S.Ct. 1538
(1987). Cf. Burlington Northern R. Co. v. Woods, 480 U.S. 1 (1987);
Stewart Organization v. Ricoh, 108 S.Ct. 2239 (1988). Whatever may be
the controlling body of limitations law, if that law affords a more
forgiving principle of relation back than the one provided in this rule,
it should be available to save the claim. Accord, Marshall v.
Mulrenin, 508 F.2d 39 (1st cir. 1974). If Schiavone v. Fortune, 106
S.Ct. 2379 (1986) implies the contrary, this paragraph is intended to
make a material change in the rule.
Paragraph (c)(3). This paragraph has been revised to change the
result in Schiavone v. Fortune, supra, with respect to the problem of a
misnamed defendant. An intended defendant who is notified of an action
within the period allowed by Rule 4(m) for service of a summons and
complaint may not under the revised rule defeat the action on account of
a defect in the pleading with respect to the defendant's name, provided
that the requirements of clauses (A) and (B) have been met. If the
notice requirement is met within the Rule 4(m) period, a complaint may
be amended at any time to correct a formal defect such as a misnomer or
misidentification. On the basis of the text of the former rule, the
Court reached a result in Schiavone v. Fortune that was inconsistent
with the liberal pleading practices secured by Rule 8. See Bauer,
Schiavone: An Un-Fortune-ate Illustration of the Supreme Court's Role
as Interpreter of the Federal Rules of Civil Procedure, 63 NOTRE DAME L.
REV. 720 (1988); Brussack, Outrageous Fortune: The Case for Amending
Rule 15(c) Again, 61 S. CAL. L. REV. 671 (1988); Lewis, The Excessive
History of Federal Rule 15(c) and Its Lessons for Civil Rules Revision,
86 MICH. L. REV. 1507 (1987).
In allowing a name-correcting amendment within the time allowed by
Rule 4(m), this rule allows not only the 120 days specified in that
rule, but also any additional time resulting from any extension ordered
by the court pursuant to that rule, as may be granted, for example, if
the defendant is a fugitive from service of the summons.
This revision, together with the revision of Rule 4(i) with respect
to the failure of a plaintiff in an action against the United States to
effect timely service on all the appropriate officials, is intended to
produce results contrary to those reached in Gardner v. Gartman, 880
F.2d 797 (4th cir. 1989), Rys v. U.S. Postal Service, 886 F.2d 443 (1st
cir. 1989), Martin's Food & Liquor, Inc. v. U.S. Dept. of Agriculture,
14 F.R.S.3d 86 (N.D. Ill. 1988). But cf. Montgomery v. United States
Postal Service, 867 F.2d 900 (5th cir. 1989), Warren v. Department of
the Army, 867 F.2d 1156 (8th cir. 1989); Miles v. Department of the
Army, 881 F.2d 777 (9th cir. 1989), Barsten v. Department of the
Interior, 896 F.2d 422 (9th cir. 1990); Brown v. Georgia Dept. of
Revenue, 881 F.2d 1018 (11th cir. 1989).
Subd. (c)(3). Pub. L. 102-198 substituted ''Rule 4(j)'' for ''Rule
4(m)''.
Jurisdiction, amendment to show, see section 1653 of this title.
Recasting of pleadings on removal of cause, see section 1447 of this
title.
Substitution of successor to public officer by supplemental pleading,
see rule 25.
Time for service of pleadings, see rule 12.
28 USC Rule 16. Pretrial Conferences; Scheduling; Management
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Pretrial Conferences; Objectives. In any action, the court may
in its discretion direct the attorneys for the parties and any
unrepresented parties to appear before it for a conference or
conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case will
not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough
preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions
exempted by district court rule as inappropriate, the judge, or a
magistrate when authorized by district court rule, shall, after
consulting with the attorneys for the parties and any unrepresented
parties, by a scheduling conference, telephone, mail, or other suitable
means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, a final pretrial
conference, and trial; and
(5) any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in no event more
than 120 days after filing of the complaint. A schedule shall not be
modified except by leave of the judge or a magistrate when authorized by
district court rule upon a showing of good cause.
(c) Subjects To Be Discussed at Pretrial Conferences. The
participants at any conference under this rule may consider and take
action with respect to
(1) the formulation and simplification of the issues, including the
elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof, stipulations regarding the
authenticity of documents, and advance rulings from the court on the
admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence;
(5) the identification of witnesses and documents, the need and
schedule for filing and exchanging pretrial briefs, and the date or
dates for further conferences and for trial;
(6) the advisability of referring matters to a magistrate or master;
(7) the possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof
problems; and
(11) such other matters as may aid in the disposition of the action.
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into stipulations
and to make admissions regarding all matters that the participants may
reasonably anticipate may be discussed.
(d) Final Pretrial Conference. Any final pretrial conference shall
be held as close to the time of trial as reasonable under the
circumstances. The participants at any such conference shall formulate
a plan for trial, including a program for facilitating the admission of
evidence. The conference shall be attended by at least one of the
attorneys who will conduct the trial for each of the parties and by any
unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this
rule, an order shall be entered reciting the action taken. This order
shall control the subsequent course of the action unless modified by a
subsequent order. The order following a final pretrial conference shall
be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on behalf of a
party at a scheduling or pretrial conference, or if a party or party's
attorney is substantially unprepared to participate in the conference,
or if a party or party's attorney fails to participate in good faith,
the judge, upon motion or the judge's own initiative, may make such
orders with regard thereto as are just, and among others any of the
orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in
addition to any other sanction, the judge shall require the party or the
attorney representing the party or both to pay the reasonable expenses
incurred because of any noncompliance with this rule, including
attorney's fees, unless the judge finds that the noncompliance was
substantially justified or that other circumstances make an award of
expenses unjust.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
Aug. 1, 1987.)
1. Similar rules of pre-trial procedure are now in force in Boston,
Cleveland, Detroit, and Los Angeles, and a rule substantially like this
one has been proposed for the urban centers of New York state. For a
discussion of the successful operation of pre-trial procedure in
relieving the congested condition of trial calendars of the courts in
such cities and for the proposed New York plan, see A Proposal for
Minimizing Calendar Delay in Jury Cases (Dec. 1936 -- published by The
New York Law Society); Pre-Trial Procedure and Administration, Third
Annual Report of the Judicial Council of the State of New York (1937),
pp. 207-243; Report of the Commission on the Administration of Justice
in New York State (1934), pp. (288)-(290). See also Pre-Trial Procedure
in the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of
the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland,
The Theory and Practice of Pre-Trial Procedure (Dec. 1937) 36
Mich.L.Rev. 215-226, 21 J.Am.Jud.Soc. 125. Compare the English procedure
known as the ''summons for directions,'' English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 38a; and a similar
procedure in New Jersey, N.J.Comp.Stat. (2 Cum.Supp. 1911-1924); N.J.
Supreme Court Rules, 2 N.J.Misc.Rep. (1924) 1230, Rules 94, 92, 93, 95
(the last three as amended 1933, 11 N.J.Misc.Rep. (1933) 955).
2. Compare the similar procedure under Rule 56(d) (Summary Judgment
-- Case Not Fully Adjudicated on Motion). Rule 12(g) (Consolidation of
Motions), by requiring to some extent the consolidation of motions
dealing with matters preliminary to trial, is a step in the same
direction. In connection with clause (5) of this rule, see Rules 53(b)
(Masters; Reference) and 53(e)(3) (Master's Report; In Jury Actions).
Rule 16 has not been amended since the Federal Rules were promulgated
in 1938. In many respects, the rule has been a success. For example,
there is evidence that pretrial conferences may improve the quality of
justice rendered in the federal courts by sharpening the preparation and
presentation of cases, tending to eliminate trial surprise, and
improving, as well as facilitating, the settlement process. See 6
Wright & Miller, Federal Practice and Procedure: Civil 1522 (1971).
However, in other respects particularly with regard to case management,
the rule has not always been as helpful as it might have been. Thus
there has been a widespread feeling that amendment is necessary to
encourage pretrial management that meets the needs of modern litigation.
See Report of the National Commission for the Review of Antitrust Laws
and Procedures (1979).
Major criticism of Rule 16 has centered on the fact that its
application can result in over-regulation of some cases and
under-regulation of others. In simple, run-of-the-mill cases, attorneys
have found pretrial requirements burdensome. It is claimed that
over-administration leads to a series of mini-trials that result in a
waste of an attorney's time and needless expense to a client. Pollack,
Pretrial Procedures More Effectively Handled, 65 F.R.D. 475 (1974).
This is especially likely to be true when pretrial proceedings occur
long before trial. At the other end of the spectrum, the discretionary
character of Rule 16 and its orientation toward a single conference late
in the pretrial process has led to under-administration of complex or
protracted cases. Without judicial guidance beginning shortly after
institution, these cases often become mired in discovery.
Four sources of criticism of pretrial have been identified. First,
conferences often are seen as a mere exchange of legalistic contentions
without any real analysis of the particular case. Second, the result
frequently is nothing but a formal agreement on minutiae. Third, the
conferences are seen as unnecessary and time-consuming in cases that
will be settled before trial. Fourth, the meetings can be ceremonial
and ritualistic, having little effect on the trial and being of minimal
value, particularly when the attorneys attending the sessions are not
the ones who will try the case or lack authority to enter into binding
stipulations. See generally McCargo v. Hedrick, 545 F.2d 393 (4th Cir.
1976); Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D.
475 (1974); Rosenberg, The Pretrial Conference and Effective Justice 45
(1964).
There also have been difficulties with the pretrial orders that issue
following Rule 16 conferences. When an order is entered far in advance
of trial, some issues may not be properly formulated. Counsel naturally
are cautious and often try to preserve as many options as possible. If
the judge who tries the case did not conduct the conference, he could
find it difficult to determine exactly what was agreed to at the
conference. But any insistence on a detailed order may be too
burdensome, depending on the nature or posture of the case.
Given the significant changes in federal civil litigation since 1938
that are not reflected in Rule 16, it has been extensively rewritten and
expanded to meet the challenges of modern litigation. Empirical studies
reveal that when a trial judge intervenes personally at an early stage
to assume judicial control over a case and to schedule dates for
completion by the parties of the principal pretrial steps, the case is
disposed of by settlement or trial more efficiently and with less cost
and delay than when the parties are left to their own devices.
Flanders, Case Management and Court Management in United States District
Courts 17, Federal Judicial Center (1977). Thus, the rule mandates a
pretrial scheduling order. However, although scheduling and pretrial
conferences are encouraged in appropriate cases, they are not mandated.
Subdivision (a); Pretrial Conferences; Objectives. The amended rule
makes scheduling and case management an express goal of pretrial
procedure. This is done in Rule 16(a) by shifting the emphasis away
from a conference focused solely on the trial and toward a process of
judicial management that embraces the entire pretrial phase, especially
motions and discovery. In addition, the amendment explicitly recognizes
some of the objectives of pretrial conferences and the powers that many
courts already have assumed. Rule 16 thus will be a more accurate
reflection of actual practice.
Subdivision (b); Scheduling and Planning. The most significant
change in Rule 16 is the mandatory scheduling order described in Rule
16(b), which is based in part on Wisconsin Civil Procedure Rule 802.10.
The idea of scheduling orders is not new. It has been used by many
federal courts. See, e.g., Southern District of Indiana, Local Rule 19.
Although a mandatory scheduling order encourages the court to become
involved in case management early in the litigation, it represents a
degree of judicial involvement that is not warranted in many cases.
Thus, subdivision (b) permits each district court to promulgate a local
rule under Rule 83 exempting certain categories of cases in which the
burdens of scheduling orders exceed the administrative efficiencies that
would be gained. See Eastern District of Virginia, Local Rule 12(1).
Logical candidates for this treatment include social security disability
matters, habeas corpus petitions, forfeitures, and reviews of certain
administrative actions.
A scheduling conference may be requested either by the judge, a
magistrate when authorized by district court rule, or a party within 120
days after the summons and complaint are filed. If a scheduling
conference is not arranged within that time and the case is not exempted
by local rule, a scheduling order must be issued under Rule 16(b), after
some communication with the parties, which may be by telephone or mail
rather than in person. The use of the term ''judge'' in subdivision (b)
reflects the Advisory Committee's judgment that is it preferable that
this task should be handled by a district judge rather than a
magistrate, except when the magistrate is acting under 28 U.S.C.
636(c). While personal supervision by the trial judge is preferred, the
rule, in recognition of the impracticality or difficulty of complying
with such a requirement in some districts, authorizes a district by
local rule to delegate the duties to a magistrate. In order to
formulate a practicable scheduling order, the judge, or a magistrate
when authorized by district court rule, and attorneys are required to
develop a timetable for the matters listed in Rule 16(b)(1)-(3). As
indicated in Rule 16(b)(4)-(5), the order may also deal with a wide
range of other matters. The rule is phrased permissively as to clauses
(4) and (5), however, because scheduling these items at an early point
may not be feasible or appropriate. Even though subdivision (b) relates
only to scheduling, there is no reason why some of the procedural
matters listed in Rule 16(c) cannot be addressed at the same time, at
least when a scheduling conference is held.
Item (1) assures that at some point both the parties and the
pleadings will be fixed, by setting a time within which joinder of
parties shall be completed and the pleadings amended.
Item (2) requires setting time limits for interposing various motions
that otherwise might be used as stalling techniques.
Item (3) deals with the problem of procrastination and delay by
attorneys in a context in which scheduling is especially important --
discovery. Scheduling the completion of discovery can serve some of the
same functions as the conference described in Rule 26(f).
Item (4) refers to setting dates for conferences and for trial.
Scheduling multiple pretrial conferences may well be desirable if the
case is complex and the court believes that a more elaborate pretrial
structure, such as that described in the Manual for Complex Litigation,
should be employed. On the other hand, only one pretrial conference may
be necessary in an uncomplicated case.
As long as the case is not exempted by local rule, the court must
issue a written scheduling order even if no scheduling conference is
called. The order, like pretrial orders under the former rule and those
under new Rule 16(c), normally will ''control the subsequent course of
the action.'' See Rule 16(e). After consultation with the attorneys for
the parties and any unrepresented parties -- a formal motion is not
necessary -- the court may modify the schedule on a showing of good
cause if it cannot reasonably be met despite the diligence of the party
seeking the extension. Since the scheduling order is entered early in
the litigation, this standard seems more appropriate than a ''manifest
injustice'' or ''substantial hardship'' test. Otherwise, a fear that
extensions will not be granted may encourage counsel to request the
longest possible periods for completing pleading, joinder, and
discovery. Moreover, changes in the court's calendar sometimes will
oblige the judge or magistrate when authorized by district court rule to
modify the scheduling order.
The district courts undoubtedly will develop several prototype
scheduling orders for different types of cases. In addition, when no
formal conference is held, the court may obtain scheduling information
by telephone, mail, or otherwise. In many instances this will result in
a scheduling order better suited to the individual case than a standard
order, without taking the time that would be required by a formal
conference.
Rule 16(b) assures that the judge will take some early control over
the litigation, even when its character does not warrant holding a
scheduling conference. Despite the fact that the process of preparing a
scheduling order does not always bring the attorneys and judge together,
the fixing of time limits serves
to stimulate litigants to narrow the areas of inquiry and
advocacy to those they believe are truly relevant and material. Time
limits not only compress the amount of time for litigation, they should
also reduce the amount of resources invested in litigation. Litigants
are forced to establish discovery priorities and thus to do the most
important work first.
Report of the National Commission for the Review of Antitrust Laws
and Procedures 28 (1979).
Thus, except in exempted cases, the judge or a magistrate when
authorized by district court rule will have taken some action in every
case within 120 days after the complaint is filed that notifies the
attorneys that the case will be moving toward trial. Subdivision (b) is
reenforced by subdivision (f), which makes it clear that the sanctions
for violating a scheduling order are the same as those for violating a
pretrial order.
Subdivision (c); Subjects to be Discussed at Pretrial Conferences.
This subdivision expands upon the list of things that may be discussed
at a pretrial conference that appeared in original Rule 16. The
intention is to encourage better planning and management of litigation.
Increased judicial control during the pretrial process accelerates the
processing and termination of cases. Flanders, Case Management and
Court Management in United States District Courts, Federal Judicial
Center (1977). See also Report of the National Commission for the
Review of Antitrust Laws and Procedures (1979).
The reference in Rule 16(c)(1) to ''formulation'' is intended to
clarify and confirm the court's power to identify the litigable issues.
It has been added in the hope of promoting efficiency and conserving
judicial resources by identifying the real issues prior to trial,
thereby saving time and expense for everyone. See generally Meadow Gold
Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir. 1960). The notion is
emphasized by expressly authorizing the elimination of frivolous claims
or defenses at a pretrial conference. There is no reason to require
that this await a formal motion for summary judgment. Nor is there any
reason for the court to wait for the parties to initiate the process
called for in Rule 16(c)(1).
The timing of any attempt at issue formulation is a matter of
judicial discretion. In relatively simple cases it may not be necessary
or may take the form of a stipulation between counsel or a request by
the court that counsel work together to draft a proposed order.
Counsel bear a substantial responsibility for assisting the court in
identifying the factual issues worthy of trial. If counsel fail to
identify an issue for the court, the right to have the issue tried is
waived. Although an order specifying the issues is intended to be
binding, it may be amended at trial to avoid manifest injustice. See
Rule 16(e). However, the rule's effectiveness depends on the court
employing its discretion sparingly.
Clause (6) acknowledges the widespread availability and use of
magistrates. The corresponding provision in the original rule referred
only to masters and limited the function of the reference to the making
of ''findings to be used as evidence'' in a case to be tried to a jury.
The new text is not limited and broadens the potential use of a
magistrate to that permitted by the Magistrate's Act.
Clause (7) explicitly recognizes that it has become commonplace to
discuss settlement at pretrial conferences. Since it obviously eases
crowded court dockets and results in savings to the litigants and the
judicial system, settlement should be facilitated at as early a stage of
the litigation as possible. Although it is not the purpose of Rule
16(b)(7) to impose settlement negotiations on unwilling litigants, it is
believed that providing a neutral forum for discussing the subject might
foster it. See Moore's Federal Practice 16.17; 6 Wright & Miller,
Federal Practice and Procedure: Civil 1522 (1971). For instance, a
judge to whom a case has been assigned may arrange, on his own motion or
a at a party's request, to have settlement conferences handled by
another member of the court or by a magistrate. The rule does not make
settlement conferences mandatory because they would be a waste of time
in many cases. See Flanders, Case Management and Court Management in
the United States District Courts, 39, Federal Judicial Center (1977).
Requests for a conference from a party indicating a willingness to talk
settlement normally should be honored, unless thought to be frivolous or
dilatory.
A settlement conference is appropriate at any time. It may be held
in conjunction with a pretrial or discovery conference, although various
objectives of pretrial management, such as moving the case toward trial,
may not always be compatible with settlement negotiations, and thus a
separate settlement conference may be desirable. See 6 Wright & Miller,
Federal Practice and Procedure: Civil 1522, at p. 751 (1971).
In addition to settlement, Rule 16(c)(7) refers to exploring the use
of procedures other than litigation to resolve the dispute. This
includes urging the litigants to employ adjudicatory techniques outside
the courthouse. See, for example, the experiment described in Green,
Marks & Olson, Settling Large Case Litigation: An Alternative Approach,
11 Loyola of L.A. L.Rev. 493 (1978).
Rule 16(c)(10) authorizes the use of special pretrial procedures to
expedite the adjudication of potentially difficult or protracted cases.
Some district courts obviously have done so for many years. See Rubin,
The Managed Calendar: Some Pragmatic Suggestions About Achieving the
Just, Speedy and Inexpensive Determination of Civil Cases in Federal
Courts, 4 Just. Sys. J. 135 (1976). Clause 10 provides an explicit
authorization for such procedures and encourages their use. No
particular techniques have been described; the Committee felt that
flexibility and experience are the keys to efficient management of
complex cases. Extensive guidance is offered in such documents as the
Manual for Complex Litigation.
The rule simply identifies characteristics that make a case a strong
candidate for special treatment. The four mentioned are illustrative,
not exhaustive, and overlap to some degree. But experience has shown
that one or more of them will be present in every protracted or
difficult case and it seems desirable to set them out. See Kendig,
Procedures for Management of Non-Routine Cases, 3 Hofstra L.Rev. 701
(1975).
The last sentence of subdivision (c) is new. See Wisconsin Civil
Procedure Rule 802.11(2). It has been added to meet one of the
criticisms of the present practice described earlier and insure proper
preconference preparation so that the meeting is more than a ceremonial
or ritualistic event. The reference to ''authority'' is not intended to
insist upon the ability to settle the litigation. Nor should the rule
be read to encourage the judge conducting the conference to compel
attorneys to enter into stipulations or to make admissions that they
consider to be unreasonable, that touch on matters that could not
normally have been anticipated to arise at the conference, or on
subjects of a dimension that normally require prior consultation with
and approval from the client.
Subdivision (d); Final Pretrial Conference. This provision has been
added to make it clear that the time between any final pretrial
conference (which in a simple case may be the only pretrial conference)
and trail should be as short as possible to be certain that the
litigants make substantial progress with the case and avoid the
inefficiency of having that preparation repeated when there is a delay
between the last pretrial conference and trial. An optimum time of 10
days to two weeks has been suggested by one federal judge. Rubin, The
Managed Calendar: Some Pragmatic Suggestions About Achieving the Just,
Speedy and Inexpensive Determination of Civil Cases in Federal Courts, 4
Just. Sys. J. 135, 141 (1976). The Committee, however, concluded that
it would be inappropriate to fix a precise time in the rule, given the
numerous variables that could bear on the matter. Thus the timing has
been left to the court's discretion.
At least one of the attorneys who will conduct the trial for each
party must be present at the final pretrial conference. At this late
date there should be no doubt as to which attorney or attorneys this
will be. Since the agreements and stipulations made at this final
conference will control the trial, the presence of lawyers who will be
involved in it is especially useful to assist the judge in structuring
the case, and to lead to a more effective trial.
Subdivision (e); Pretrial Orders. Rule 16(e) does not substantially
change the portion of the original rule dealing with pretrial orders.
The purpose of an order is to guide the course of the litigation and the
language of the original rule making that clear has been retained. No
compelling reason has been found for major revision, especially since
this portion of the rule has been interpreted and clarified by over
forty years of judicial decisions with comparatively little difficulty.
See 6 Wright & Miller, Federal Practice and Procedure: Civil 1521-30
(1971). Changes in language therefore have been kept to a minimum to
avoid confusion.
Since the amended rule encourages more extensive pretrial management
than did the original, two or more conferences may be held in many
cases. The language of Rule 16(e) recognizes this possibility and the
corresponding need to issue more than one pretrial order in a single
case.
Once formulated, pretrial orders should not be changed lightly; but
total inflexibility is undesirable. See, e.g., Clark v. Pennsylvania
R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words used to describe
the standard for amending the pretrial order probably are less important
than the meaning given them in practice. By not imposing any limitation
on the ability to modify a pretrial order, the rule reflects the reality
that in any process of continuous management what is done at one
conference may have to be altered at the next. In the case of the final
pretrial order, however, a more stringent standard is called for and the
words ''to prevent manifest injustice,'' which appeared in the original
rule, have been retained. They have the virtue of familiarity and
adequately describe the restraint the trial judge should exercise.
Many local rules make the plaintiff's attorney responsible for
drafting a proposed pretrial order, either before or after the
conference. Others allow the court to appoint any of the attorneys to
perform the task, and others leave it to the court. See Note, Pretrial
Conference: A Critical Examination of Local Rules Adopted by Federal
District Courts, 64 Va.L.Rev. 467 (1978). Rule 16 has never addressed
this matter. Since there is no consensus about which method of drafting
the order works best and there is no reason to believe that nationwide
uniformity is needed, the rule has been left silent on the point. See
Handbook for Effective Pretrial Procedure, 37 F.R.D. 225 (1964).
Subdivision (f); Sanctions. Original Rule 16 did not mention the
sanctions that might be imposed for failing to comply with the rule.
However, courts have not hesitated to enforce it by appropriate
measures. See, e.g., Link v. Wabash R. Co., 370 U.S. 628 (1962)
(district court's dismissal under Rule 41(b) after plaintiff's attorney
failed to appear at a pretrial conference upheld); Admiral Theatre
Corp. v. Douglas Theatre, 585 F.2d 877 (8th Cir. 1978) (district court
has discretion to exclude exhibits or refuse to permit the testimony of
a witness not listed prior to trial in contravention of its pretrial
order).
To reflect that existing practice, and to obviate dependence upon
Rule 41(b) or the court's inherent power to regulate litigation, cf.
Societe Internationale Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f) expressly
provides for imposing sanctions on disobedient or recalcitrant parties,
their attorneys, or both in four types of situations. Rodes, Ripple &
Mooney, Sanctions Imposable for Violations of the Federal Rules of Civil
Procedure 65-67, 80-84, Federal Judicial Center (1981). Furthermore,
explicit reference to sanctions reenforces the rule's intention to
encourage forceful judicial management.
Rule 16(f) incorporates portions of Rule 37(b)(2), which prescribes
sanctions for failing to make discovery. This should facilitate
application of Rule 16(f), since courts and lawyers already are familiar
with the Rule 37 standards. Among the sanctions authorized by the new
subdivision are: preclusion order, striking a pleading, staying the
proceeding, default judgment, contempt, and charging a party, his
attorney, or both with the expenses, including attorney's fees, caused
by noncompliance. The contempt sanction, however, is only available for
a violation of a court order. The references in Rule 16(f) are not
exhaustive.
As is true under Rule 37(b)(2), the imposition of sanctions may be
sought by either the court or a party. In addition, the court has
discretion to impose whichever sanction it feels is appropriate under
the circumstances. Its action is reviewable under the
abuse-of-discretion standard. See National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).
The amendments are technical. No substantive change is intended.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC IV. PARTIES
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 17. Parties Plaintiff and Defendant; Capacity
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, a party with whom or in
whose name a contract has been made for the benefit of another, or a
party authorized by statute may sue in that person's own name without
joining the party for whose benefit the action is brought; and when a
statute of the United States so provides, an action for the use or
benefit of another shall be brought in the name of the United States.
No action shall be dismissed on the ground that it is not prosecuted in
the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if
the action had been commenced in the name of the real party in interest.
(b) Capacity To Sue or Be Sued. The capacity of an individual, other
than one acting in a representative capacity, to sue or be sued shall be
determined by the law of the individual's domicile. The capacity of a
corporation to sue or be sued shall be determined by the law under which
it was organized. In all other cases capacity to sue or be sued shall
be determined by the law of the state in which the district court is
held, except (1) that a partnership or other unincorporated association,
which has no such capacity by the law of such state, may sue or be sued
in its common name for the purpose of enforcing for or against it a
substantive right existing under the Constitution or laws of the United
States, and (2) that the capacity of a receiver appointed by a court of
the United States to sue or be sued in a court of the United States is
governed by Title 28, U.S.C., Sections 754 and 959(a).
(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person. An infant
or incompetent person who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem. The court shall
appoint a guardian ad litem for an infant or incompetent person not
otherwise represented in an action or shall make such other order as it
deems proper for the protection of the infant or incompetent person.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988, Pub. L.
100-690, title VII, 7049, 102 Stat. 4401.)
Note to Subdivision (a). The real party in interest provision,
except for the last clause which is new, is taken verbatim from (former)
Equity Rule 37 (Parties Generally -- Intervention), except that the word
''expressly'' has been omitted. For similar provisions see N.Y.C.P.A.
(1937) 210; Wyo.Rev.Stat.Ann. (1931) 89-501, 89-502, 89-503;
English Rules Under the Judicature Act (The Annual Practice, 1937) O.
16, r. 8. See also Equity Rule 41 (Suit to Execute Trusts of Will --
Heir as Party). For examples of statutes of the United States providing
particularly for an action for the use or benefit of another in the name
of the United States, see U.S.C., Title 40, 270b (Suit by persons
furnishing labor and material for work on public building contracts * *
* may sue on a payment bond, ''in the name of the United States for the
use of the person suing''); and U.S.C., Title 25, 201 (Penalties under
laws relating to Indians -- how recovered). Compare U.S.C., Title 26,
(former) 1645(c) (Suits for penalties, fines, and forfeitures, under
this title, where not otherwise provided for, to be in name of United
States).
Note to Subdivision (b). For capacity see generally Clark and Moore,
New Federal Civil Procedure -- II. Pleadings and Parties, 44 Yale L.J.
1291, 1312-1317 (1935) and specifically Coppedge v. Clinton, 72 F.2d
531 (C.C.A.10th, 1934) (natural person); David Lupton's Sons Co. v.
Automobile Club of America, 225 U.S. 489, 32 S.Ct. 711, 56 L.Ed. 1177,
Ann.Cas. 1914A, 699 (1912) (corporation); Puerto Rico v. Russell &
Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903 (1933) (unincorporated
assn.); United Mine Workers of America v. Coronado Coal Co., 259 U.S.
344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762 (1922) (federal
substantive right enforced against unincorporated association by suit
against the association in its common name without naming all its
members as parties). This rule follows the existing law as to such
associations, as declared in the case last cited above. Compare Moffat
Tunnel League v. United States, 289 U.S. 113, 53 S.Ct. 543, 77 L.Ed.
1069 (1933). See note to Rule 23, clause (1).
Note to Subdivision (c). The provision for infants and incompetent
persons is substantially (former) Equity Rule 70 (Suits by or Against
Incompetents) with slight additions. Compare the more detailed English
provisions, English Rules Under the Judicature Act (The Annual Practice,
1937) O. 16, r.r. 16-21.
Note. The new matter (in subdivision (b)) makes clear the controlling
character of Rule 66 regarding suits by or against a federal receiver in
a federal court.
The amendment effective October 20, 1949, deleted the words ''Rule
66'' at the end of subdivision (b) and substituted the words ''Title 28,
U.S. C., 754 and 959(a)''.
The minor change in the text of the rule is designed to make it clear
that the specific instances enumerated are not exceptions to, but
illustrations of, the rule. These illustrations, of course, carry no
negative implication to the effect that there are not other instances of
recognition as the real party in interest of one whose standing as such
may be in doubt. The enumeration is simply of cases in which there
might be substantial doubt as to the issue but for the specific
enumeration. There are other potentially arguable cases that are not
excluded by the enumeration. For example, the enumeration states that
the promisee in a contract for the benefit of a third party may sue as
real party in interest; it does not say, because it is obvious, that
the third-party beneficiary may sue (when the applicable law gives him
that right.)
The rule adds to the illustrative list of real parties in interest a
bailee -- meaning, of course, a bailee suing on behalf of the bailor
with respect to the property bailed. (When the possessor of property
other than the owner sues for an invasion of the possessory interest he
is the real party in interest.) The word ''bailee'' is added primarily
to preserve the admiralty practice whereby the owner of a vessel as
bailee of the cargo, or the master of the vessel as bailee of both
vessel and cargo, sues for damage to either property interest or both.
But there is no reason to limit such a provision to maritime situations.
The owner of a warehouse in which household furniture is stored is
equally entitled to sue on behalf of the numerous owners of the
furniture stored. Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
The provision that no action shall be dismissed on the ground that it
is not prosecuted in the name of the real party in interest until a
reasonable time has been allowed, after the objection has been raised,
for ratification, substitution, etc., is added simply in the interests
of justice. In its origin the rule concerning the real party in
interest was permissive in purpose: it was designed to allow an
assignee to sue in his own name. That having been accomplished, the
modern function of the rule in its negative aspect is simply to protect
the defendant against a subsequent action by the party actually entitled
to recover, and to insure generally that the judgment will have its
proper effect as res judicata.
This provision keeps pace with the law as it is actually developing.
Modern decisions are inclined to be lenient when an honest mistake has
been made in choosing the party in whose name the action is to be filed
-- in both maritime and nonmaritime cases. See Levinson v. Deupree,
345 U.S. 648 (1953); Link Aviation, Inc. v. Downs, 325 F.2d 613
(D.C.Cir. 1963). The provision should not be misunderstood or distorted.
It is intended to prevent forfeiture when determination of the proper
party to sue is difficult or when an understandable mistake has been
made. It does not mean, for example, that, following an airplane crash
in which all aboard were killed, an action may be filed in the name of
John Doe (a fictitious person), as personal representative of Richard
Roe (another fictitious person), in the hope that at a later time the
attorney filing the action may substitute the real name of the real
personal representative of a real victim, and have the benefit of
suspension of the limitation period. It does not even mean, when an
action is filed by the personal representative of John Smith, of
Buffalo, in the good faith belief that he was aboard the flight, that
upon discovery that Smith is alive and well, having missed the fatal
flight, the representative of James Brown, of San Francisco, an actual
victim, can be substituted to take advantage of the suspension of the
limitation period. It is, in cases of this sort, intended to insure
against forfeiture and injustice -- in short, to codify in broad terms
the salutary principle of Levinson v. Deupree, 345 U.S. 648 (1953), and
Link Aviation, Inc. v. Downs, 325 F.2d 613 (D.C.Cir. 1963).
The amendments are technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
Subd. (a). Pub. L. 100-690, which directed amendment of subd. (a) by
striking ''with him'', could not be executed because of the intervening
amendment by the Court by order dated Apr. 25, 1988, eff. Aug. 1,
1988.
Action by --
One or more on behalf of class, see rule 23.
United States for use of materialmen on public building contracts,
see section 270b of Title 40, Public Buildings, Property, and Works.
Perpetuation of testimony of minor or incompetent, see rule 27.
28 USC Rule 18. Joinder of Claims and Remedies
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim, may
join, either as independent or as alternate claims, as many claims,
legal, equitable, or maritime, as the party has against an opposing
party.
(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim
is one heretofore cognizable only after another claim has been
prosecuted to a conclusion, the two claims may be joined in a single
action; but the court shall grant relief in that action only in
accordance with the relative substantive rights of the parties. In
particular, a plaintiff may state a claim for money and a claim to have
set aside a conveyance fraudulent as to that plaintiff, without first
having obtained a judgment establishing the claim for money.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). 1. Recent development, both in code and
common law states, has been toward unlimited joinder of actions. See
Ill.Rev.Stat. (1937) ch. 110, 168; N.J.S.A. 2:27-37, as modified by
N.J.Sup.Ct.Rules, Rule 21, 2 N.J.Misc. 1208 (1924); N.Y.C.P.A. (1937)
258 as amended by Laws of 1935, ch. 339.
2. This provision for joinder of actions has been patterned upon
(former) Equity Rule 26 (Joinder of Causes of Action) and broadened to
include multiple parties. Compare the English practice, English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 18, r.r. 1-9
(noting rules 1 and 6). The earlier American codes set forth classes of
joinder, following the now abandoned New York rule. See N.Y.C.P.A.
258 before amended in 1935; Compare Kan.Gen.Stat.Ann. (1935) 60-601;
Wis.Stat. (1935) 263.04 for the more liberal practice.
3. The provisions of this rule for the joinder of claims are subject
to Rule 82 (Jurisdiction and Venue Unaffected). For the jurisdictional
aspects of joinder of claims, see Shulman and Jaegerman, Some
Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L.J.
393, 397-410. For separate trials of joined claims, see Rule 42(b).
Note to Subdivision (b). This rule is inserted to make it clear that
in a single action a party should be accorded all the relief to which he
is entitled regardless of whether it is legal or equitable or both.
This necessarily includes a deficiency judgment in foreclosure actions
formerly provided for in (former) Equity Rule 10 (Decree for Deficiency
in Foreclosures, Etc.). In respect to fraudulent conveyances the rule
changes the former rule requiring a prior judgment against the owner
(Braun v. American Laundry Mach. Co., 56 F.2d 197 (S.D.N.Y. 1932)) to
conform to the provisions of the Uniform Fraudulent Conveyance Act, 9
and 10. See McLaughlin, Application of the Uniform Fraudulent
Conveyance Act, 46 Harv.L.Rev. 404, 444 (1933).
The Rules ''proceed upon the theory that no inconvenience can result
from the joinder of any two or more matters in the pleadings, but only
from trying two or more matters together which have little or nothing in
common.'' Sunderland, The New Federal Rules, 45 W.Va.L.Q. 5, 13 (1938);
see Clark, Code Pleading 58 (2d ed. 1947). Accordingly, Rule 18(a) has
permitted a party to plead multiple claims of all types against an
opposing party, subject to the court's power to direct an appropriate
procedure for trying the claims. See Rules 42(b), 20(b), 21.
The liberal policy regarding joinder of claims in the pleadings
extends to cases with multiple parties. However, the language used in
the second sentence of Rule 18(a) -- ''if the requirements of Rules 19
(necessary joinder of parties), 20 (permissive joinder of parties), and
22 (interpleader) are satisfied'' -- has led some courts to infer that
the rules regulating joinder of parties are intended to carry back to
Rule 18(a) and to impose some special limits on joinder of claims in
multiparty cases. In particular, Rule 20(a) has been read as
restricting the operation of Rule 18(a) in certain situations in which a
number of parties have been permissively joined in an action. In
Federal Housing Admr. v. Christianson, 26 F.Supp. 419 (D.Conn. 1939),
the indorsee of two notes sued the three comakers of one note, and
sought to join in the action a count on a second note which had been
made by two of the three defendants. There was no doubt about the
propriety of the joinder of the three parties defendant, for a right to
relief was being asserted against all three defendants which arose out
of a single ''transaction'' (the first note) and a question of fact or
law ''common'' to all three defendants would arise in the action. See
the text of Rule 20(a). The court, however, refused to allow the
joinder of the count on the second note, on the ground that this right
to relief, assumed to arise from a distinct transaction, did not involve
a question common to all the defendants but only two of them. For
analysis of the Christianson case and other authorities, see 2 Barron &
Holtzoff, Federal Practice & Procedure, 533.1 (Wright ed. 1961); 3
Moore's Federal Practice, par. 18.04(3) (2d ed. 1963).
If the court's view is followed, it becomes necessary to enter at the
pleading stage into speculations about the exact relation between the
claim sought to be joined against fewer than all the defendants properly
joined in the action, and the claims asserted against all the
defendants. Cf. Wright, Joinder of Claims and Parties Under Modern
Pleading Rules, 36 Minn.L.Rev. 580, 605-06 (1952). Thus if it could be
found in the Christianson situation that the claim on the second note
arose out of the same transaction as the claim on the first or out of a
transaction forming part of a ''series,'' and that any question of fact
or law with respect to the second note also arose with regard to the
first, it would be held that the claim on the second note could be
joined in the complaint. See 2 Barron & Holtzoff, supra, at 199; see
also id. at 198 n. 60.4; cf. 3 Moore's Federal Practice, supra, at
1811. Such pleading niceties provide a basis for delaying and wasteful
maneuver. It is more compatible with the design of the Rules to allow
the claim to be joined in the pleading, leaving the question of possible
separate trial of that claim to be later decided. See 2 Barron &
Holtzoff, supra, 533.1; Wright, supra, 36 Minn.L.Rev. at 604-11;
Developments in the Law -- Multiparty Litigation in the Federal Courts,
71 Harv. 874, 970-71 (1958); Commentary, Relation Between Joinder of
Parties and Joinder of Claims, 5 F.R.Serv. 822 (1942). It is
instructive to note that the court in the Christianson case, while
holding that the claim on the second note could not be joined as a
matter of pleading, held open the possibility that both claims would
later be consolidated for trial under Rule 42(a). See 26 F.Supp. 419.
Rule 18(a) is now amended not only to overcome the Christianson
decision and similar authority, but also to state clearly as a
comprehensive proposition, that a party asserting a claim (an original
claim, counterclaim, cross-claim, or third-party claim) may join as many
claims as he has against an opposing party. See Noland Co., Inc. v.
Graver Tank & Mfg. Co., 301 F.2d 43, 49-51 (4th Cir. 1962); but cf.
C. W. Humphrey Co. v. Security Alum. Co., 31 F.R.D. 41 (E.D.Mich.
1962) This permitted joinder of claims is not affected by the fact that
there are multiple parties in the action. The joinder of parties is
governed by other rules operating independently.
It is emphasized that amended Rule 18(a) deals only with pleading.
As already indicated, a claim properly joined as a matter of pleading
need not be proceeded with together with the other claim if fairness or
convenience justifies separate treatment.
Amended Rule 18(a), like the rule prior to amendment, does not
purport to deal with questions of jurisdiction or venue which may arise
with respect to claims properly joined as a matter of pleading. See
Rule 82.
See also the amendment of Rule 20(a) and the Advisory Committee's
Note thereto.
Free joinder of claims and remedies is one of the basic purposes of
unification of the admiralty and civil procedure. The amendment
accordingly provides for the inclusion in the rule of maritime claims as
well as those which are legal and equitable in character.
The amendments are technical. No substantive change is intended.
Claim for debt and to set aside fraudulent conveyance, see form 13,
Appendix of Forms.
Counterclaims, see rule 13.
General rules of pleading, see rule 8.
One form of action, see rule 2.
Separate trial of joined claims, see rule 42.
Severance of claim against party, see rule 21.
28 USC Rule 19. Joinder of Persons Needed for Just Adjudication
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Persons To Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party in the action if (1) in the person's absence complete relief
cannot be accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated
that the disposition of the action in the person's absence may (i) as a
practical matter impair or impede the person's ability to protect that
interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest. If the
person has not been so joined, the court shall order that the person be
made a party. If the person should join as a plaintiff but refuses to
do so, the person may be made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects to venue and joinder
of that party would render the venue of the action improper, that party
shall be dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a
person as described in subdivision (a)(1)-(2) hereof cannot be made a
party, the court shall determine whether in equity and good conscience
the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable. The
factors to be considered by the court include: first, to what extent a
judgment rendered in the person's absence might be prejudicial to the
person or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or avoided; third,
whether a judgment rendered in the person's absence will be adequate;
fourth, whether the plaintiff will have an adequate remedy if the action
is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) hereof who are not
joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). The first sentence with verbal differences
(e.g., ''united'' interest for ''joint'' interest) is to be found in
(former) Equity Rule 37 (Parties Generally -- Intervention). Such
compulsory joinder provisions are common. Compare Alaska Comp. Laws
(1933) 3392 (containing in same sentence a ''class suit'' provision);
Wyo.Rev.Stat.Ann. (Courtright, 1931) 89-515 (immediately followed by
''class suit'' provisions, 89-516). See also (former) Equity Rule 42
(Joint and Several Demands). For example of a proper case for
involuntary plaintiff, see Independent Wireless Telegraph Co. v. Radio
Corp. of America, 269 U.S. 459, 46 S.Ct. 166, 70 L.Ed. 357 (1926).
The joinder provisions of this rule are subject to Rule 82
(Jurisdiction and Venue Unaffected).
Note to Subdivision (b). For the substance of this rule see (former)
Equity Rule 39 (Absence of Persons Who Would be Proper Parties) and
U.S.C., Title 28, 111 (now 1391) (When part of several defendants
cannot be served); Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63
L.Ed. 997 (1919). See also the second and third sentences of (former)
Equity Rule 37 (Parties Generally -- Intervention).
Note to Subdivision (c). For the substance of this rule see the
fourth subdivision of (former) Equity Rule 25 (Bill of Complaint --
Contents).
Whenever feasible, the persons materially interested in the subject
of an action -- see the more detailed description of these persons in
the discussion of new subdivision (a) below -- should be joined as
parties so that they may be heard and a complete disposition made. When
this comprehensive joinder cannot be accomplished -- a situation which
may be encountered in Federal courts because of limitations on service
of process, subject matter jurisdiction, and venue -- the case should be
examined pragmatically and a choice made between the alternatives of
proceeding with the action in the absence of particular interested
persons, and dismissing the action.
Even if the court is mistaken in its decision to proceed in the
absence of an interested person, it does not by that token deprive
itself of the power to adjudicate as between the parties already before
it through proper service of process. But the court can make a legally
binding adjudication only between the parties actually joined in the
action. It is true that an adjudication between the parties before the
court may on occasion adversely affect the absent person as a practical
matter, or leave a party exposed to a later inconsistent recovery by the
absent person. These are factors which should be considered in deciding
whether the action should proceed, or should rather be dismissed; but
they do not themselves negate the court's power to adjudicate as between
the parties who have been joined.
The foregoing propositions were well understood in the older equity
practice, see Hazard, Indispensable Party: The Historical Origin of a
Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and Rule 19 could be
and often was applied in consonance with them. But experience showed
that the rule was defective in its phrasing and did not point clearly to
the proper basis of decision.
Textual defects. -- (1) The expression ''persons * * * who ought to
be parties if complete relief is to be accorded between those already
parties,'' appearing in original subdivision (b), was apparently
intended as a description of the persons whom it would be desirable to
join in the action, all questions of feasibility of joinder being put to
one side; but it was not adequately descriptive of those persons.
(2) The word ''Indispensable,'' appearing in original subdivision
(b), was apparently intended as an inclusive reference to the interested
persons in whose absence it would be advisable, all factors having been
considered, to dismiss the action. Yet the sentence implied that there
might be interested persons, not ''indispensable.'' in whose absence the
action ought also to be dismissed. Further, it seemed at least
superficially plausible to equate the word ''indispensable'' with the
expression ''having a joint interest,'' appearing in subdivision (a).
See United States v. Washington Inst. of Tech., Inc., 138 F.2d 25, 26
(3d Cir. 1943); cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir.
1947). But persons holding an interest technically ''joint'' are not
always so related to an action that it would be unwise to proceed
without joining all of them, whereas persons holding an interest not
technically ''joint'' may have this relation to an action. See Reed,
Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 356
ff., 483 (1957).
(3) The use of ''indispensable'' and ''joint interest'' in the
context of original Rule 19 directed attention to the technical or
abstract character of the rights or obligations of the persons whose
joinder was in question, and correspondingly distracted attention from
the pragmatic considerations which should be controlling.
(4) The original rule, in dealing with the feasibility of joining a
person as a party to the action, besides referring to whether the person
was ''subject to the jurisdiction of the court as to both service of
process and venue,'' spoke of whether the person could be made a party
''without depriving the court of jurisdiction of the parties before
it.'' The second quoted expression used ''jurisdiction'' in the sense of
the competence of the court over the subject matter of the action, and
in this sense the expression was apt. However, by a familiar confusion,
the expression seems to have suggested to some that the absence from the
lawsuit of a person who was ''indispensable'' or ''who ought to be (a)
part(y)'' itself deprived the court of the power to adjudicate as
between the parties already joined. See Samuel Goldwyn, Inc. v. United
Artists Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum
Co. of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v.
Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert. denied,
329 U.S. 782 (1946), noted in 56 Yale L.J. 1088 (1947); Reed, supra, 55
Mich.L.Rev. at 332-34.
Failure to point to correct basis of decision. The original rule did
not state affirmatively what factors were relevant in deciding whether
the action should proceed or be dismissed when joinder of interested
persons was infeasible. In some instances courts did not undertake the
relevant inquiry or were misled by the ''jurisdiction'' fallacy. In
other instances there was undue preoccupation with abstract
classifications of rights or obligations, as against consideration of
the particular consequences of proceeding with the action and the ways
by which these consequences might be ameliorated by the shaping of final
relief or other precautions.
Although these difficulties cannot be said to have been general
analysis of the cases showed that there was good reason for attempting
to strengthen the rule. The literature also indicated how the rule
should be reformed. See Reed, supra (discussion of the important case
of Shields v. Barrow, 17 How. (58 U.S.) 130 (1854), appears at 55
Mich.L.Rev., p. 340 ff.); Hazard, supra; N.Y. Temporary Comm. on
Courts, First Preliminary Report, Legis.Doc. 1957, No. 6(b), pp. 28,
233; N.Y. Judicial Council, Twelfth Ann.Rep., Legis.Doc. 1946, No. 17,
p. 163; Joint Comm. on Michigan Procedural Revision, Final Report,
Pt. III, p. 69 (1960); Note, Indispensable Parties in the Federal
Courts, 65 Harv.L.Rev. 1050 (1952); Developments in the Law --
Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 879
(1958); Mich.Gen.Court Rules, R. 205 (effective Jan. 1, 1963);
N.Y.Civ.Prac.Law & Rules, 1001 (effective Sept. 1, 1963).
New subdivision (a) defines the persons whose joinder in the action
is desirable. Clause (1) stresses the desirability of joining those
persons in whose absence the court would be obliged to grant partial or
''hollow'' rather than complete relief to the parties before the court.
The interests that are being furthered here are not only those of the
parties, but also that of the public in avoiding repeated lawsuits on
the same essential subject matter. Clause (2)(i) recognizes the
importance of protecting the person whose joinder is in question against
the practical prejudice to him which may arise through a disposition of
the action in his absence. Clause (2)(ii) recognizes the need for
considering whether a party may be left, after the adjudication, in a
position where a person not joined can subject him to a double or
otherwise inconsistent liability. See Reed, supra, 55 Mich.L.Rev. at
330, 338; Note, supra, 65 Harv.L.Rev. at 1052-57; Developments in the
Law, supra, 71 Harv.L.Rev. at 881-85.
The subdivision (a) definition of persons to be joined is not couched
in terms of the abstract nature of their interests -- ''joint,''
''united,'' ''separable,'' or the like. See N.Y. Temporary Comm. on
Courts, First Preliminary Report, supra; Developments in the Law,
supra, at 880. It should be noted particularly, however, that the
description is not at variance with the settled authorities holding that
a tortfeasor with the usual ''joint-and-several'' liability is merely a
permissive party to an action against another with like liability. See
3 Moore's Federal Practice 2153 (2d ed. 1963); 2 Barron & Holtzoff,
Federal Practice & Procedure 513.8 (Wright ed. 1961). Joinder of these
tortfeasors continues to be regulated by Rule 20; compare Rule 14 on
third-party practice.
If a person as described in subdivision (a)(1)(2) is amenable to
service of process and his joinder would not deprive the court of
jurisdiction in the sense of competence over the action, he should be
joined as a party; and if he has not been joined, the court should
order him to be brought into the action. If a party joined has a valid
objection to the venue and chooses to assert it, he will be dismissed
from the action.
Subdivision (b). -- When a person as described in subdivision
(a)(1)-(2) cannot be made a party, the court is to determine whether in
equity and good conscience the action should proceed among the parties
already before it, or should be dismissed. That this decision is to be
made in the light of pragmatic considerations has often been
acknowledged by the courts. See Roos v. Texas Co., 23 F.2d 171 (2d
Cir. 1927), cert. denied, 277 U.S. 587 (1928); Niles-Bement-Pond Co.
v. Iron Moulders, Union, 254 U.S. 77, 80 (1920). The subdivision sets
out four relevant considerations drawn from the experience revealed in
the decided cases. The factors are to a certain extent overlapping, and
they are not intended to exclude other considerations which may be
applicable in particular situations.
The first factor brings in a consideration of what a judgment in the
action would mean to the absentee. Would the absentee be adversely
affected in a practical sense, and if so, would the prejudice be
immediate and serious, or remote and minor? The possible collateral
consequences of the judgment upon the parties already joined are also to
be appraised. Would any party be exposed to a fresh action by the
absentee, and if so, how serious is the threat? See the elaborate
discussion in Reed, supra; cf. A. L. Smith Iron Co. v. Dickson, 141
F.2d 3 (2d Cir. 1944); Caldwell Mfg. Co. v. Unique Balance Co., 18
F.R.D. 258 (S.D.N.Y. 1955).
The second factor calls attention to the measures by which prejudice
may be averted or lessened. The ''shaping of relief'' is a familiar
expedient to this end. See, e.g., the award of money damages in lieu of
specific relief where the latter might affect an absentee adversely.
Ward v. Deavers, 203 F.2d 72 (D.C.Cir. 1953); Miller & Lux, Inc. v.
Nickel, 141 F.Supp. 41 (N.D.Calif. 1956). On the use of ''protective
provisions,'' see Roos v. Texas Co., supra; Atwood v. Rhode Island
Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir. 1921), cert. denied, 257
U.S. 661 (1922); cf. Stumpf v. Fidelity Gas Co., 294 F.2d 886 (9th
Cir. 1961); and the general statement in National Licorice Co. v.
Labor Board, 309 U.S. 350, 363 (1940).
Sometimes the party is himself able to take measures to avoid
prejudice. Thus a defendant faced with a prospect of a second suit by
an absentee may be in a position to bring the latter into the action by
defensive interpleader. See Hudson v. Newell, 172 F.2d 848, 852 mod.,
176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, 198 F.2d 83, 86 (D.C.Cir.
1952); Abel v. Brayton Flying Service, Inc., 248 F.2d 713, 716 (5th
Cir. 1957) (suggestion of possibility of counterclaim under Rule 13(h));
cf. Parker Rust-Proof Co. v. Western Union Tel. Co., 105 F.2d 976 (2d
Cir. 1939) cert. denied, 308 U.S. 597 (1939). See also the absentee
may sometimes be able to avert prejudice to himself by voluntarily
appearing in the action or intervening on an ancillary basis. See
Developments in the Law, supra, 71 Harv.L.Rev. at 882; Annot.,
Intervention or Subsequent Joinder of Parties as Affecting Jurisdiction
of Federal Court Based on Diversity of Citizenship, 134 A.L.R. 335
(1941); Johnson v. Middleton, 175 F.2d 535 (7th Cir. 1949); Kentucky
Nat. Gas Corp. v. Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v.
McCormack, 159 F.2d 219 (5th Cir. 1947). The court should consider
whether this, in turn, would impose undue hardship on the absentee.
(For the possibility of the court's informing an absentee of the
pendency of the action, see comment under subdivision (c) below.)
The third factor -- whether an ''adequate'' judgment can be rendered
in the absence of a given person -- calls attention to the extent of the
relief that can be accorded among the parties joined. It meshes with
the other factors, especially the ''shaping of relief'' mentioned under
the second factor. Cf. Kroese v. General Steel Castings Corp., 179
F.2d 760 (3d Cir. 1949), cert. denied, 339 U.S. 983 (1950).
The fourth factor, looking to the practical effects of a dismissal,
indicates that the court should consider whether there is any assurance
that the plaintiff, if dismissed, could sue effectively in another forum
where better joinder would be possible. See Fitzgerald v. Haynes, 241
F.2d 417, 420 (3d Cir. 1957); Fouke v. Schenewerk, 197 F.2d 234, 236
(5th Cir. 1952); cf. Warfield v. Marks, 190 F.2d 178 (5th Cir. 1951).
The subdivision uses the word ''indispensable'' only in a conclusory
sense, that is, a person is ''regarded as indispensable'' when he cannot
be made a party and, upon consideration of the factors above mention, it
is determined that in his absence it would be preferable to dismiss the
action, rather than to retain it.
A person may be added as a party at any stage of the action on motion
or on the court's initiative (see Rule 21); and a motion to dismiss, on
the ground that a person has not been joined and justice requires that
the action should not proceed in his absence, may be made as late as the
trial on the merits (see Rule 12(h)(2), as amended; cf. Rule 12(b)(7),
as amended). However, when the moving party is seeking dismissal in
order to protect himself against a later suit by the absent person
(subdivision (a)(2)(ii)), and is not seeking vicariously to protect the
absent person against a prejudicial judgment (subdivision (a)(2)(i)),
his undue delay in making the motion can properly be counted against him
as a reason for denying the motion. A joinder question should be
decided with reasonable promptness, but decision may properly be
deferred if adequate information is not available at the time. Thus the
relationship of an absent person to the action, and the practical
effects of an adjudication upon him and others, may not be sufficiently
revealed at the pleading stage; in such a case it would be appropriate
to defer decision until the action was further advanced. Cf. Rule
12(d).
The amended rule makes no special provision for the problem arising
in suits against subordinate Federal officials where it has often been
set up as a defense that some superior officer must be joined.
Frequently this defense has been accompanied by or intermingled with
defenses of sovereign community or lack of consent of the United States
to suit. So far as the issue of joinder can be isolated from the rest,
the new subdivision seems better adapted to handle it than the
predecessor provision. See the discussion in Johnson v. Kirkland, 290
F.2d 440, 446-47 (5th Cir. 1961) (stressing the practical orientation of
the decisions); Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955).
Recent legislation, P.L. 87-748, 76 Stat. 744, approved October 5,
1962, adding 1361, 1391(e) to Title 28, U.S.C., vests original
jurisdiction in the District Courts over actions in the nature of
mandamus to compel officials of the United States to perform their legal
duties, and extends the range of service of process and liberalizes
venue in these actions. If, then, it is found that a particular
official should be joined in the action, the legislation will make it
easy to bring him in.
Subdivision (c) parallels the predecessor subdivision (c) of Rule 19.
In some situations it may be desirable to advise a person who has not
been joined of the fact that the action is pending, and in particular
cases the court in its discretion may itself convey this information by
directing a letter or other informal notice to the absentee.
Subdivision (d) repeats the exception contained in the first clause
of the predecessor subdivision (a).
The amendments are technical. No substantive change is intended.
Class actions, see rule 23.
Indispensable party, defense of failure to join, see rule 12.
Interpleader, see rule 22.
Intervention, see rule 24.
Jurisdiction and venue unaffected by these rules, see rule 82.
Lien enforcement, ordering absent defendant to appear or plead, see
section 1655 of this title.
Misjoinder and nonjoinder of parties, see rule 21.
Permissive joinder of parties, see rule 20.
Substitution of parties, see rule 25.
28 USC Rule 20. Permissive Joinder of Parties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally, or in
the alternative in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question
of law or fact common to all these persons will arise in the action.
All persons (and any vessel, cargo or other property subject to
admiralty process in rem) may be joined in one action as defendants if
there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of the
same transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all defendants will arise
in the action. A plaintiff or defendant need not be interested in
obtaining or defending against all the relief demanded. Judgment may be
given for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their
respective liabilities.
(b) Separate Trials. The court may make such orders as will prevent
a party from being embarrassed, delayed, or put to expense by the
inclusion of a party against whom the party asserts no claim and who
asserts no claim against the party, and may order separate trials or
make other orders to prevent delay or prejudice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
The provisions for joinder here stated are in substance the
provisions found in England, California, Illinois, New Jersey, and New
York. They represent only a moderate expansion of the present federal
equity practice to cover both law and equity actions.
With this rule compare also (former) Equity Rules 26 (Joinder of
Causes of Action), 37 (Parties Generally -- Intervention), 40 (Nominal
Parties), and 42 (Joint and Several Demands).
The provisions of this rule for the joinder of parties are subject to
Rule 82 (Jurisdiction and Venue Unaffected).
Note to Subdivision (a). The first sentence is derived from English
Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r.
1. Compare Calif.Code Civ.Proc. (Deering, 1937) 378, 379a;
Ill.Rev.Stat. (1937) ch. 110, 147-148; N.J.Comp.Stat. (2 Cum.Supp.,
1911-1924), N.Y.C.P.A. (1937) 209, 211. The second sentence is
derived from English Rules Under the Judicature Act (he Annual Practice,
1937) O. 16, r. 4. The third sentence is derived from O. 16, r. 5,
and the fourth from O. 16, r.r. 1 and 4.
Note to Subdivision (b). This is derived from English Rules Under
the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 1 and 5.
See the amendment of Rule 18(a) and the Advisory Committee's Note
thereto. It has been thought that a lack of clarity in the antecedent
of the word ''them,'' as it appeared in two places in Rule 20(a),
contributed to the view, taken by some courts, that this rule limited
the joinder of claims in certain situations of permissive party joinder.
Although the amendment of Rule 18(a) should make clear that this view
is untenable, it has been considered advisable to amend Rule 20(a) to
eliminate any ambiguity. See 2 Barron & Holtzoff, Federal Practice &
Procedure 202 (Wright Ed. 1961).
A basic purpose of unification of admiralty and civil procedure is to
reduce barriers to joinder; hence the reference to ''any vessel,'' etc.
The amendments are technical. No substantive change is intended.
Collusive and improper joinder of parties, jurisdiction of district
courts, see section 1359 of this title.
Interpleader, see rule 22.
Intervention, see rule 24.
Misjoinder and nonjoinder of parties, see rule 21.
Necessary joinder of parties, see rule 19.
Substitution of parties, see rule 25.
28 USC Rule 21. Misjoinder and Non-Joinder of Parties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or of its own initiative at any stage of the action and on such
terms as are just. Any claim against a party may be severed and
proceeded with separately.
See English Rules Under the Judicature Act (The Annual Practice,
1937) O. 16, r. 11. See also (former) Equity Rules 43 (Defect of
Parties -- Resisting Objection) and 44 (Defect of Parties -- Tardy
Objection).
For separate trials see Rules 13(i) (Counterclaims and Cross-Claims:
Separate Trials; Separate Judgments), 20(b) (Permissive Joinder of
Parties: Separate Trials), and 42(b) (Separate Trials, generally) and
the note to the latter rule.
Collusive and improper joinder of parties, jurisdiction of district
courts, see section 1359 of this title.
Intervention of parties, see rule 24.
Necessary joinder of parties, see rule 19.
Permissive joinder of parties, see rule 20.
Removal of causes, realignment of parties, see section 1447 of this
title.
28 USC Rule 22. Interpleader
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(1) Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that
the plaintiff is or may be exposed to double or multiple liability. It
is not ground for objection to the joinder that the claims of the
several claimants or the titles on which their claims depend do not have
a common origin or are not identical but are adverse to and independent
of one another, or that the plaintiff avers that the plaintiff is not
liable in whole or in part to any or all of the claimants. A defendant
exposed to similar liability may obtain such interpleader by way of
cross-claim or counterclaim. The provisions of this rule supplement and
do not in any way limit the joinder of parties permitted in Rule 20.
(2) The remedy herein provided is in addition to and in no way
supersedes or limits the remedy provided by Title 28, U.S.C., 1335,
1397, and 2361. Actions under those provisions shall be conducted in
accordance with these rules.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff.
Aug. 1, 1987.)
The first paragraph provides for interpleader relief along the newer
and more liberal lines of joinder in the alternative. It avoids the
confusion and restrictions that developed around actions of strict
interpleader and actions in the nature of interpleader. Compare John
Hancock Mutual Life Insurance Co. v. Kegan et al., 22 F.Supp. 326
(D.C.Md., 1938). It does not change the rules on service of process,
jurisdiction, and venue, as established by judicial decision.
The second paragraph allows an action to be brought under the recent
interpleader statute when applicable. By this paragraph all remedies
under the statute are continued, but the manner of obtaining them is in
accordance with these rules. For temporary restraining orders and
preliminary injunctions under this statute, see Rule 65(e).
This rule substantially continues such statutory provisions as
U.S.C., Title 38, 445 (now 1984) (Actions on claims; jurisdiction;
parties; procedure; limitation; witnesses; definitions) (actions
upon veterans' contracts of insurance with the United States), providing
for interpleader by the United States where it acknowledges indebtedness
under a contract of insurance with the United States; U.S.C., Title 49,
97 (Interpleader of conflicting claimants) (by carrier which has issued
bill of lading). See Chafee, The Federal Interpleader Act of 1936: I
and II (1936), 45 Yale L.J. 963, 1161.
The amendment effective October 20, 1949, substituted the reference
to ''Title 28, U.S.C., 1335, 1397, and 2361,'' at the end of the first
sentence of paragraph (2), for the reference to ''Section 24(26) of the
Judicial Code, as amended, U.S.C., Title 28, 41(26).'' The amendment
also substituted the words ''those provisions'' in the second sentence
of paragraph (2) for the words ''that section.''
The amendment is technical. No substantive change is intended.
28 USC Rule 23. Class Actions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and
in addition:
(1) the prosecution of separate actions by or against individual
members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests of the
other members not parties to the adjudications or substantially impair
or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect
to the class as a whole; or
(3) the court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy. The matters pertinent to the findings include: (A) the
interest of members of the class in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature
of any litigation concerning the controversy already commenced by or
against members of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; (D)
the difficulties likely to be encountered in the management of a class
action.
(c) Determination by Order Whether Class Action To Be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order whether it
is to be so maintained. An order under this subdivision may be
conditional, and may be altered or amended before the decision on the
merits.
(2) In any class action maintained under subdivision (b)(3), the
court shall direct to the members of the class the best notice
practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort. The notice
shall advise each member that (A) the court will exclude the member from
the class if the member so requests by a specified date; (B) the
judgment, whether favorable or not, will include all members who do not
request exclusion; and (C) any member who does not request exclusion
may, if the member desires, enter an appearance through counsel.
(3) The judgment in an action maintained as a class action under
subdivision (b)(1) or (b)(2), whether or not favorable to the class,
shall include and describe those whom the court finds to be members of
the class. The judgment in an action maintained as a class action under
subdivision (b)(3), whether or not favorable to the class, shall include
and specify or describe those to whom the notice provided in subdivision
(c)(2) was directed, and who have not requested exclusion, and whom the
court finds to be members of the class.
(4) When appropriate (A) an action may be brought or maintained as a
class action with respect to particular issues, or (B) a class may be
divided into subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which
this rule applies, the court may make appropriate orders: (1)
determining the course of proceedings or prescribing measures to prevent
undue repetition or complication in the presentation of evidence or
argument; (2) requiring, for the protection of the members of the class
or otherwise for the fair conduct of the action, that notice be given in
such manner as the court may direct to some or all of the members of any
step in the action, or of the proposed extent of the judgment, or of the
opportunity of members to signify whether they consider the
representation fair and adequate, to intervene and present claims or
defenses, or otherwise to come into the action; (3) imposing conditions
on the representative parties or on intervenors; (4) requiring that the
pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly; (5) dealing with similar procedural matters. The orders
may be combined with an order under Rule 16, and may be altered or
amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be dismissed
or compromised without the approval of the court, and notice of the
proposed dismissal or compromise shall be given to all members of the
class in such manner as the court directs.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). This is a substantial restatement of
(former) Equity Rule 38 (Representatives of Class) as that rule has been
construed. It applies to all actions, whether formerly denominated
legal or equitable. For a general analysis of class actions, effect of
judgment, and requisites of jurisdiction see Moore, Federal Rules of
Civil Procedure: Some Problems Raised by the Preliminary Draft, 25
Georgetown L.J. 551, 570 et seq. (1937); Moore and Cohn, Federal Class
Actions, 32 Ill.L.Rev. 307 (1937); Moore and Cohn, Federal Class
Actions -- Jurisdiction and Effect of Judgment, 32 Ill.L.Rev. 555 -- 567
(1938); Lesar, Class Suits and the Federal Rules, 22 Minn.L.Rev. 34
(1937); cf. Arnold and James, Cases on Trials, Judgments and Appeals
(1936) 175; and see Blume, Jurisdictional Amount in Representative
Suits, 15 Minn.L.Rev. 501 (1931).
The general test of (former) Equity Rule 38 (Representatives of
Class) that the question should be ''one of common or general interest
to many persons constituting a class so numerous as to make it
impracticable to bring them all before the court,'' is a common test.
For states which require the two elements of a common or general
interest and numerous persons, as provided for in (former) Equity Rule
38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws Ann. (Supp., 1936) 4918
(7); Georgia Code (1933) 37-1002, and see English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 16, r. 9. For statutory
provisions providing for class actions when the question is one of
common or general interest or when the parties are numerous, see
Ala.Code Ann. (Michie, 1928) 5701; 2 Ind.Stat.Ann. (Burns, 1933)
2-220; N.Y.C.P.A. (1937) 195; Wis.Stat. (1935) 260.12. These
statutes have, however, been uniformly construed as though phrased in
the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86 S.W.2d 155
(1935). The rule adopts the test of (former) Equity Rule 38, but
defines what constitutes a ''common or general interest''. Compare with
code provisions which make the action dependent upon the propriety of
joinder of the parties. See Blume, The ''Common Questions'' Principle
in the Code Provision for Representative Suits, 30 Mich.L.Rev. 878
(1932). For discussion of what constitutes ''numerous persons'' see
Wheaton, Representative Suits Involving Numerous Litigants, 19 Corn.L.Q.
399 (1934); Note, 36 Harv.L.Rev. 89 (1922).
Clause (1), Joint, Common, or Secondary Right. This clause is
illustrated in actions brought by or against representatives of an
unincorporated association. See Oster v. Brotherhood of Locomotive
Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v.
Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A., N.S., 1067 (1906); Colt
v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932). Compare Rule 17(b) as
to when an unincorporated association has capacity to sue or be sued in
its common name; United Mine Workers of America v. Coronado Coal Co.,
259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762 (1922) (an
unincorporated association was sued as an entity for the purpose of
enforcing against it a federal substantive right); Moore, Federal Rules
of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25
Georgetown L.J. 551, 566 (for discussion of jurisdictional requisites
when an unincorporated association sues or is sued in its common name
and jurisdiction is founded upon diversity of citizenship). For an
action brought by representatives of one group against representatives
of another group for distribution of a fund held by an unincorporated
association, see Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942 (U.S.
1853). Compare Christopher, et al. v. Brusselback, 302 U.S. 500, 58
S.Ct. 350, 82 L.Ed. 388 (1938).
For an action to enforce rights held in common by policyholders
against the corporate issuer of the policies, see Supreme Tribe of Ben
Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921). See
also Terry v. Little, 101 U.S. 216, 25 L.Ed. 864 (1880); John A.
Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596 (D.C.N.Y., 1917)
dealing with the right held in common by creditors to enforce the
statutory liability of stockholders.
Typical of a secondary action is a suit by stockholders to enforce a
corporate right. For discussion of the general nature of these actions
see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct.
466, 80 L.Ed. 688 (1936); Glenn, The Stockholder's Suit -- Corporate
and Individual Grievances, 33 Yale L.J. 580 (1924); McLaughlin,
Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46
Yale L.J. 421 (1937). See also Subdivision (b) of this rule which deals
with Shareholder's Action; Note, 15 Minn.L.Rev. 453 (1931).
Clause (2). A creditor's action for liquidation or reorganization of
a corporation is illustrative of this clause. An action by a
stockholder against certain named defendants as representatives of
numerous claimants presents a situation converse to the creditor's
action.
Clause (3). See Everglades Drainage League v. Napoleon Broward
Drainage Dist., 253 Fed. 246 (D.C.Fla., 1918); Gramling v. Maxwell,
52 F.2d 256 (D.C.N.C., 1931), approved in 30 Mich.L.Rev. 624 (1932);
Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921); Duke of
Bedford v. Ellis (1901) A.C. 1, for class actions when there were
numerous persons and there was only a question of law or fact common to
them; and see Blume, The ''Common Questions'' Principle in the Code
Provision for Representative Suits, 30 Mich.L.Rev. 878 (1932).
Note to Subdivision (b). This is (former) Equity Rule 27
(Stockholder's Bill) with verbal changes. See also Hawes v. Oakland,
104 U.S. 450, 26 L.Ed. 827 (1882) and former Equity Rule 94, promulgated
January 23, 1882, 104 U.S. IX.
Note to Subdivision (c). See McLaughlin, Capacity of
Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L.J.
421 (1937).
Note. Subdivision (b), relating to secondary actions by shareholders,
provides among other things, that in such an action the complainant
''shall aver (1) that the plaintiff was a shareholder at the time of the
transaction of which he complains or that his share thereafter devolved
on him by operation of law . . .''
As a result of the decision in Erie R. Co. v. Tompkins, 304 U.S.
64, 58 S.Ct. 817 (decided April 25, 1938, after this rule was
promulgated by the Supreme Court, though before it took effect) a
question has arisen as to whether the provision above quoted deals with
a matter of substantive right or is a matter of procedure. If it is a
matter of substantive law or right, then under Erie R. Co. v. Tompkins
clause (1) may not be validly applied in cases pending in states whose
local law permits a shareholder to maintain such actions, although not a
shareholder at the time of the transactions complained of. The Advisory
Committee, believing the question should be settled in the courts,
proposes no change in Rule 23 but thinks rather that the situation
should be explained in an appropriate note.
The rule has a long history. In Hawes v. Oakland, 1882, 104 U.S.
450, the Court held that a shareholder could not maintain such an action
unless he owned shares at the time of the transactions complained of, or
unless they devolved on him by operation of law. At that time the
decision in Swift v. Tyson, 1842, 16 Peters 1, was the law, and the
federal courts considered themselves free to establish their own
principles of equity jurisprudence, so the Court was not in 1882 and has
not been, until Erie R. Co. v. Tompkins in 1938, concerned with the
question whether Hawes v. Oakland dealt with substantive right or
procedure.
Following the decision in Hawes v. Oakland, and at the same term,
the Court, to implement its decision, adopted (former) Equity Rule 94,
which contained the same provision above quoted from Rule 23 F.R.C.P.
The provision in (former) Equity Rule 94 was later embodied in (former)
Equity Rule 27, of which the present Rule 23 is substantially a copy.
In City of Quincy v. Steel, 1887, 120 U.S. 241, 245, 7 S.Ct. 520,
the Court referring to Hawes v. Oakland said: ''In order to give
effect to the principles there laid down, this Court at that term
adopted Rule 94 of the rules of practice for courts of equity of the
United States.''
Some other cases dealing with (former) Equity Rules 94 or 27 prior to
the decision in Erie R. Co. v. Tompkins are Dimpfel v. Ohio & Miss.
R. R., 1884, 110 U.S. 209, 3 S.Ct. 573; Illinois Central R. Co. v.
Adams, 1901, 180 U.S. 28, 34, 21 S.Ct. 251; Venner v. Great Northern
Ry., 1908, 209 U.S. 24, 30, 28 S.Ct. 328; Jacobson v. General Motors
Corp., S.D.N.Y. 1938, 22 F.Supp. 255, 257. These cases generally treat
Hawes v. Oakland as establishing a ''principle'' of equity, or as
dealing not with jurisdiction but with the ''right'' to maintain an
action, or have said that the defense under the equity rule is analogous
to the defense that the plaintiff has no ''title'' and results in a
dismissal ''for want of equity.''
Those state decisions which held that a shareholder acquiring stock
after the event may maintain a derivative action are founded on the view
that it is a right belonging to the shareholder at the time of the
transaction and which passes as a right to the subsequent purchaser.
See Pollitz v. Gould, 1911, 202 N.Y. 11, 94 N.E. 1088.
The first case arising after the decision in Erie R. Co. v.
Tompkins, in which this problem was involved, was Summers v. Hearst,
S.D.N.Y. 1938, 23 F.Supp. 986. It concerned (former) Equity Rule 27, as
Federal Rule 23 was not then in effect. In a well considered opinion
Judge Leibell reviewed the decisions and said: ''The federal cases that
discuss this section of Rule 27 support the view that it states a
principle of substantive law.'' He quoted Pollitz v. Gould, 1911, 202
N.Y. 11, 94 N.E. 1088, as saying that the United States Supreme Court
''seems to have been more concerned with establishing this rule as one
of practice than of substantive law'' but that ''whether it be regarded
as establishing a principle of law or a rule of practice, this authority
has been subsequently followed in the United States courts.''
He then concluded that, although the federal decisions treat the
equity rule as ''stating a principle of substantive law'', if (former)
''Equity Rule 27 is to be modified or revoked in view of Erie R. Co.
v. Tompkins, it is not the province of this Court to suggest it, much
less impliedly to follow that course by disregarding the mandatory
provisions of the Rule.''
Some other federal decisions since 1938 touch the question.
In Picard v. Sperry Corporation, S.D.N.Y. 1941, 36 F.Supp. 1006,
1009-10, affirmed without opinion, C.C.A.2d, 1941, 120 F.2d 328, a
shareholder, not such at the time of the transactions complained of,
sought to intervene. The court held an intervenor was as much subject
to Rule 23 as an original plaintiff; and that the requirement of Rule
23(b) was ''a matter of practice,'' not substance, and applied in New
York where the state law was otherwise, despite Erie R. Co. v.
Tompkins. In York v. Guaranty Trust Co. of New York, C.C.A.2d, 1944,
143 F.2d 503, rev'd on other grounds, 1945, 65 S.Ct. 1464, the court
said: ''Restrictions on the bringing of stockholders' actions, such as
those imposed by F.R.C.P. 23(b) or other state statutes are
procedural,'' citing the Picard and other cases.
In Gallup v. Caldwell, C.C.A.3d, 1941, 120 F.2d 90, 95, arising in
New Jersey, the point was raised but not decided, the court saying that
it was not satisfied that the then New Jersey rule differed from Rule
23(b), and that ''under the circumstances the proper course was to
follow Rule 23(b).''
In Mullins v. De Soto Securities Co., W.D.La. 1942, 45 F.Supp. 871,
878, the point was not decided, because the court found the Louisiana
rule to be the same as that stated in Rule 23(b).
In Toebelman v. Missouri-Kansas Pipe Line Co., D.Del. 1941, 41
F.Supp. 334, 340, the court dealt only with another part of Rule 23(b),
relating to prior demands on the stockholders and did not discuss Erie
R. Co. v. Tompkins, or its effect on the rule.
In Perrott v. United States Banking Corp., D.Del. 1944, 53 F.Supp.
953, it appeared that the Delaware law does not require the plaintiff to
have owned shares at the time of the transaction complained of. The
court sustained Rule 23(b), after discussion of the authorities, saying:
''It seems to me the rule does not go beyond procedure. * * * Simply
because a particular plaintiff cannot qualify as a proper party to
maintain such an action does not destroy or even whittle at the cause of
action. The cause of action exists until a qualified plaintiff can get
it started in a federal court.''
In Bankers Nat. Corp. v. Barr, S.D.N.Y. 1945, 9 Fed.Rules Serv.
23b.11, Case 1, the court held Rule 23(b) to be one of procedure, but
that whether the plaintiff was a stockholder was a substantive question
to be settled by state law.
The New York rule, as stated in Pollitz v. Gould, supra, has been
altered by an act of the New York Legislature, Chapter 667, Laws of
1944, effective April 9, 1944, General Corporation Law, 61, which
provides that ''in any action brought by a shareholder in the right of a
. . . corporation, it must appear that the plaintiff was a stockholder
at the time of the transaction of which he complains, or that his stock
thereafter devolved upon him by operation of law.'' At the same time a
further and separate provision was enacted, requiring under certain
circumstances the giving of security for reasonable expenses and
attorney's fees, to which security the corporation in whose right the
action is brought and the defendants therein may have recourse.
(Chapter 668, Laws of 1944, effective April 9, 1944, General Corporation
Law, 61-b.) These provisions are aimed at so-called ''strike''
stockholders' suits and their attendant abuses. Shielcrawt v. Moffett,
Ct.App. 1945, 294 N.Y. 180, 61 N.E.2d 435, rev'g 51 N.Y.S.2d 188, aff'g
49 N.Y.S.2d 64; Noel Associates, Inc. v. Merrill, Sup.Ct. 1944, 184
Misc. 646, 63 N.Y.S.2d 143.
Insofar as 61 is concerned, it has been held that the section is
procedural in nature. Klum v. Clinton Trust Co., Sup.Ct. 1944, 183
Misc. 340, 48 N.Y.S.2d 267; Noel Associates, Inc. v. Merrill, supra.
In the latter case the court pointed out that ''The 1944 amendment to
Section 61 rejected the rule laid down in the Pollitz case and
substituted, in place thereof, in its precise language, the rule which
has long prevailed in the Federal Courts and which is now Rule 23(b) . .
.'' There is, nevertheless, a difference of opinion regarding the
application of the statute to pending actions. See Klum v. Clinton
Trust Co., supra (applicable); Noel Associates, Inc. v. Merrill,
supra (inapplicable).
With respect to 61-b, which may be regarded as a separate problem,
Noel Associates, Inc. v. Merrill, supra, it has been held that even
though the statute is procedural in nature -- a matter not definitely
decided -- the Legislature evinced no intent that the provision should
apply to actions pending when it became effective. Shielcrawt v.
Moffett, supra. As to actions instituted after the effective date of
the legislation, the constitutionality of 61-b is in dispute. See Wolf
v. Atkinson, Sup.Ct. 1944, 182 Misc. 675, 49 N.Y.S.2d 703
(constitutional); Citron v. Mangel Stores Corp., Sup.Ct. 1944, 50
N.Y.S.2d 416 (unconstitutional); Zlinkoff, The American Investor and
the Constitutionality of Section 61-B of the New York General
Corporation Law, 1945, 54 Yale L.J. 352.
New Jersey also enacted a statute, similar to Chapters 667 and 668 of
the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp. 14:3-15. The
New Jersey provision similar to Chapter 668, 61-b, differs, however, in
that it specifically applies retroactively. It has been held that this
provision is procedural and hence will not govern a pending action
brought against a New Jersey corporation in the New York courts.
Shielcrawt v. Moffett, Sup.Ct.N.Y. 1945, 184 Misc. 1074, 56 N.Y.S.2d
134.
See also generally, 2 Moore's Federal Practice, 1938, 2250-2253, and
Cum.Supplement 23.05.
The decisions here discussed show that the question is a debatable
one, and that there is respectable authority for either view, with a
recent trend towards the view that Rule 23(b)(1) is procedural. There
is reason to say that the question is one which should not be decided by
the Supreme Court ex parte, but left to await a judicial decision in a
litigated case, and that in the light of the material in this note, the
only inference to be drawn from a failure to amend Rule 23(b) would be
that the question is postponed to await a litigated case.
The Advisory Committee is unanimously of the opinion that this course
should be followed.
If, however, the final conclusion is that the rule deals with a
matter of substantive right, then the rule should be amended by adding a
provision that Rule 23(b)(1) does not apply in jurisdictions where state
law permits a shareholder to maintain a secondary action, although he
was not a shareholder at the time of the transactions of which he
complains.
Difficulties with the original rule. The categories of class actions
in the original rule were defined in terms of the abstract nature of the
rights involved: the so-called ''true'' category was defined as
involving ''joint, common, or secondary rights''; the ''hybrid''
category, as involving ''several'' rights related to ''specific
property''; the ''spurious'' category, as involving ''several'' rights
affected by a common question and related to common relief. It was
thought that the definitions accurately described the situations
amendable to the class-suit device, and also would indicate the proper
extent of the judgment in each category, which would in turn help to
determine the res judicata effect of the judgment if questioned in a
later action. Thus the judgments in ''true'' and ''hybrid'' class
actions would extend to the class (although in somewhat different ways);
the judgment in a ''spurious'' class action would extend only to the
parties including intervenors. See Moore, Federal Rules of Civil
Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo.L.J.
551, 570-76 (1937).
In practice, the terms ''joint,'' ''common,'' etc., which were used
as the basis of the Rule 23 classification proved obscure and uncertain.
See Chaffee, Some Problems of Equity 245-46, 256-57 (1950); Kalven &
Rosenfield, The Contemporary Function of the Class Suit, 8 U. of
Chi.L.Rev. 684, 707 & n. 73 (1941); Keeffe, Levy & Donovan, Lee
Defeats Ben Hur, 33 Corn.L.Q. 327, 329-36 (1948); Developments in the
Law: Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874,
931 (1958); Advisory Committee's Note to Rule 19, as amended. The
courts had considerable difficulty with these terms. See, e.g., Gullo
v. Veterans' Coop. H. Assn., 13 F.R.D. 11 (D.D.C. 1952); Shipley v.
Pittsburgh & L. E. R. Co., 70 F.Supp. 870 (W.D.Pa. 1947); Deckert v.
Independence Shares Corp., 27 F.Supp. 763 (E.D.Pa. 1939), rev'd, 108
F.2d 51 (3d Cir. 1939), rev'd, 311 U.S. 282 (1940), on remand, 39
F.Supp. 592 (E.D.Pa. 1941), rev'd sub nom. Pennsylvania Co. for Ins.
on Lives v. Deckert, 123 F.2d 979 (3d Cir. 1941) (see Chafee, supra, at
264-65).
Nor did the rule provide an adequate guide to the proper extent of
the judgments in class actions. First, we find instances of the courts
classifying actions as ''true'' or intimating that the judgments would
be decisive for the class where these results seemed appropriate but
were reached by dint of depriving the word ''several'' of coherent
meaning. See, e.g., System Federation No. 91 v. Reed, 180 F.2d 991
(6th Cir. 1950); Wilson v. City of Paducah, 100 F.Supp. 116 (W.D.Ky.
1951); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261
(8th Cir. 1944); Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir.
1944), cert. denied, 323 U.S. 776 (1944); United States v. American
Optical Co., 97 F.Supp. 66 (N.D.Ill. 1951); (National Hairdressers' &
C. Assn. v. Philad. Co., 34 F.Supp. 264 (D.Del. 1940); 41 F.Supp. 701
(D.Del. 1940), aff'd mem., 129 F.2d 1020 (3d Cir. 1942). Second, we find
cases classified by the courts as ''spurious'' in which, on a realistic
view, it would seem fitting for the judgments to extend to the class.
See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245 (E.D.Pa. 1954);
aff'd 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway Corp.,
81 F.Supp. 957 (D.Del. 1949); York v. Guaranty Trust Co., 143 F.2d 503
(2d Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 90 (1945)
(see Chafee, supra, at 208); cf. Webster Eisenlohr, Inc. v. Kalodner,
145 F.2d 316, 320 (3d Cir. 1944), cert. denied, 325 U.S. 807 (1945). But
cf. the early decisions, Duke of Bedford v. Ellis (1901), A.C. 1;
Sheffield Waterworks v. Yeomans, L.R. 2 Ch.App. 8 (1866); Brown v.
Vermuden, 1 Ch.Cas. 272, 22 Eng.Rep. 796 (1676).
The ''spurious'' action envisaged by original Rule 23 was in any
event an anomaly because, although denominated a ''class'' action and
pleaded as such, it was supposed not to adjudicate the rights or
liabilities of any person not a party. It was believed to be an
advantage of the ''spurious'' category that it would invite decisions
that a member of the ''class'' could, like a member of the class in a
''true'' or ''hybrid'' action, intervene on an ancillary basis without
being required to show an independent basis of Federal jurisdiction, and
have the benefit of the date of the commencement of the action for
purposes of the statute of limitations. See 3 Moore's Federal Practice,
pars. 23.10(1), 23.12 (2d ed. 1963). These results were attained in
some instances but not in others. On the statute of limitations, see
Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961),
pet. cert. dism., 371 U.S. 801 (1963); but cf. P. W. Husserl, Inc.
v. Newman, 25 F.R.D. 264 (S.D.N.Y. 1960); Athas v. Day, 161 F.Supp.
916 (D.Colo. 1958). On ancillary intervention, see Amen v. Black, 234
F.2d 12 (10th Cir. 1956), cert. granted, 352 U.S. 888 (1956), dism.
on stip., 355 U.S. 600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D.
128 (W.D.Mo. 1952). The results, however, can hardly depend upon the
mere appearance of a ''spurious'' category in the rule; they should
turn no more basic considerations. See discussion of subdivision (c)(1)
below.
Finally, the original rule did not squarely address itself to the
question of the measures that might be taken during the course of the
action to assure procedural fairness, particularly giving notice to
members of the class, which may in turn be related in some instances to
the extension of the judgment to the class. See Chafee, supra, at
230-31; Keeffe, Levy & Donovan, supra; Developments in the Law, supra,
71 Harv.L.Rev. at 937-38; Note, Binding Effect of Class Actions, 67
Harv.L.Rev. 1059, 1062-65 (1954); Note, Federal Class Actions: A
Suggested Revision of Rule 23, 46 Colum.L.Rev. 818, 833-36 (1946);
Mich.Gen.Court R. 208.4 (effective Jan. 1, 1963); Idaho R.Civ.P. 23(d);
Minn.R.Civ.P. 23.04; N.Dak.R.Civ.P. 23(d).
The amended rule describes in more practical terms the occasions for
maintaining class actions; provides that all class actions maintained
to the end as such will result in judgments including those whom the
court finds to be members of the class, whether or not the judgment is
favorable to the class; and refers to the measures which can be taken
to assure the fair conduct of these actions.
Subdivision (a) states the prerequisites for maintaining any class
action in terms of the numerousness of the class making joinder of the
members impracticable, the existence of questions common to the class,
and the desired qualifications of the representative parties. See
Weinstein, Revision of Procedure; Some Problems in Class Actions, 9
Buffalo L.Rev. 433, 458-59 (1960); 2 Barron & Holtzoff, Federal
Practice & Procedure 562, at 265, 572, at 351-52 (Wright ed. 1961).
These are necessary but not sufficient conditions for a class action.
See, e.g., Giordano v. Radio Corp. of Am., 183 F.2d 558, 560 (3d Cir.
1950); Zachman v. Erwin, 186 F.Supp. 681 (S.D.Tex. 1959); Baim &
Blank, Inc. v. Warren Connelly Co., Inc., 19 F.R.D. 108 (S.D.N.Y.
1956). Subdivision (b) describes the additional elements which in
varying situations justify the use of a class action.
Subdivision (b)(1). The difficulties which would be likely to arise
if resort were had to separate actions by or against the individual
members of the class here furnish the reasons for, and the principal key
to, the propriety and value of utilizing the class-action device. The
considerations stated under clauses (A) and (B) are comparable to
certain of the elements which define the persons whose joinder in an
action is desirable as stated in Rule 19(a), as amended. See amended
Rule 19(a)(2)(i) and (ii), and the Advisory Committee's Note thereto;
Hazard, Indispensable Party; The Historical Origin of a Procedural
Phantom, 61 Colum.L.Rev. 1254, 1259-60 (1961); cf. 3 Moore, supra, par.
23.08, at 3435.
Clause (A): One person may have rights against, or be under duties
toward, numerous persons constituting a class, and be so positioned that
conflicting or varying adjudications in lawsuits with individual members
of the class might establish incompatible standards to govern his
conduct. The class action device can be used effectively to obviate the
actual or virtual dilemma which would thus confront the party opposing
the class. The matter has been stated thus: ''The felt necessity for a
class action is greatest when the courts are called upon to order or
sanction the alteration of the status quo in circumstances such that a
large number of persons are in a position to call on a single person to
alter the status quo, or to complain if it is altered, and the
possibility exists that (the) actor might be called upon to act in
inconsistent ways.'' Louisell & Hazard, Pleading and Procedure; State
and Federal 719 (1962); see Supreme Tribe of Ben-Hur v. Cauble, 255
U.S. 356, 366-67 (1921). To illustrate: Separate actions by
individuals against a municipality to declare a bond issue invalid or
condition or limit it, to prevent or limit the making of a particular
appropriation or to compel or invalidate an assessment, might create a
risk of inconsistent or varying determinations. In the same way,
individual litigations of the rights and duties of riparian owners, or
of landowners' rights and duties respecting a claimed nuisance, could
create a possibility of incompatible adjudications. Actions by or
against a class provide a ready and fair means of achieving unitary
adjudication. See Maricopa County Mun. Water Con. Dist. v. Looney,
219 F.2d 529 (9th Cir. 1955); Rank v. Krug, 142 F.Supp. 1, 154-59
(S.D.Calif. 1956), on app., State of California v. Rank, 293 F.2d 340,
348 (9th Cir. 1961); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert.
denied 359 U.S. 978 (1959); cf. Martinez v. Maverick Cty. Water Con.
& Imp. Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, par.
23.11(2), at 3458-59.
Clause (B): This clause takes in situations where the judgment in a
nonclass action by or against an individual member of the class, while
not technically concluding the other members, might do so as a practical
matter. The vice of an individual actions would lie in the fact that
the other members of the class, thus practically concluded, would have
had no representation in the lawsuit. In an action by policy holders
against a fraternal benefit association attacking a financial
reorganization of the society, it would hardly have been practical, if
indeed it would have been possible, to confine the effects of a
validation of the reorganization to the individual plaintiffs.
Consequently a class action was called for with adequate representation
of all members of the class. See Supreme Tribe of Ben-Hur v. Cauble,
255 U.S. 356 (1921); Waybright v. Columbian Mut. Life Ins. Co., 30
F.Supp. 885 (W.D.Tenn. 1939); cf. Smith v. Swormstedt, 16 How. (57
U.S.) 288 (1853). For much the same reason actions by shareholders to
compel the declaration of a dividend the proper recognition and handling
of redemption or pre-emption rights, or the like (or actions by the
corporation for corresponding declarations of rights), should ordinarily
be conducted as class actions, although the matter has been much
obscured by the insistence that each shareholder has an individual
claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245 (E.D.Pa.
1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway
Corp., 81 F.Supp. 957 (D.Del. 1949); Zahn v. Transamerica Corp., 162
F.2d 36 (3d Cir. 1947); Speed v. Transamerica Corp., 100 F.Supp. 461
(D.Del. 1951); Sobel v. Whittier Corp., 95 F.Supp. 643 (E.D.Mich.
1951), app. dism., 195 F.2d 361 (6th Cir. 1952); Goldberg v. Whittier
Corp., 111 F.Supp. 382 (E.D.Mich. 1953); Dann v. Studebaker-Packard
Corp., 288 F.2d 201 (6th Cir. 1961); Edgerton v. Armour & Co.,94
F.Supp. 549 (S.D.Calif. 1950); Ames v. Mengel Co., 190 F.2d 344 (2d
Cir. 1951). (These shareholders' actions are to be distinguished from
derivative actions by shareholders dealt with in new Rule 23.1). The
same reasoning applies to an action which charges a breach of trust by
an indenture trustee or other fiduciary similarly affecting the members
of a large class of security holders or other beneficiaries, and which
requires an accounting or like measures to restore the subject of the
trust. See Bosenberg v. Chicago T. & T. Co., 128 F.2d 245 (7th Cir.
1942); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261
(8th Cir. 1944); Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir.
1944), cert. denied, 323 U.S. 776 (1944); cf. York v. Guaranty Trust
Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds not here relevant,
326 U.S. 99 (1945).
In various situations an adjudication as to one or more members of
the class will necessarily or probably have an adverse practical effect
on the interests of other members who should therefore be represented in
the lawsuit. This is plainly the case when claims are made by numerous
persons against a fund insufficient to satisfy all claims. A class
action by or against representative members to settle the validity of
the claims as a whole, or in groups, followed by separate proof of the
amount of each valid claim and proportionate distribution of the fund,
meets the problem. Cf. Dickinson v. Burnham, 197 F.2d 973 (2d Cir.
1952), cert. denied, 344 U.S. 875 (1952); 3 Moore, supra, at par.
23.09. The same reasoning applies to an action by a creditor to set
aside a fraudulent conveyance by the debtor and to appropriate the
property to his claim, when the debtor's assets are insufficient to pay
all creditors' claims. See Hefferman v. Bennett & Armour, 110
Cal.App.2d 564, 243 P.2d 846 (1952); cf. City & County of San
Francisco v. Market Street Ry., 95 Cal.App.2d 648, 213 P.2d 780 (1950).
Similar problems, however, can arise in the absence of a fund either
present or potential. A negative or mandatory injunction secured by one
of a numerous class may disable the opposing party from performing
claimed duties toward the other members of the class or materially
affect his ability to do so. An adjudication as to movie ''clearances
and runs'' nominally affecting only one exhibitor would often have
practical effects on all the exhibitors in the same territorial area.
Cf. United States v. Paramount Pictures, Inc., 66 F.Supp. 323, 341-46
(S.D.N.Y. 1946); 334 U.S. 131, 144-48 (1948). Assuming a sufficiently
numerous class of exhibitors, a class action would be advisable. (Here
representation of subclasses of exhibitors could become necessary; see
subdivision (c)(3)(B).)
Subdivision (b)(2). This subdivision is intended to reach situations
where a party has taken action or refused to take action with respect to
a class, and final relief of an injunctive nature or of a corresponding
declaratory nature, settling the legality of the behavior with respect
to the class as a whole, is appropriate. Declaratory relief
''corresponds'' to injunctive relief when as a practical matter it
affords injunctive relief or serves as a basis for later injunctive
relief. The subdivision does not extend to cases in which the
appropriate final relief relates exclusively or predominantly to money
damages. Action or inaction is directed to a class within the meaning
of this subdivision even if it has taken effect or is threatened only as
to one or a few members of the class, provided it is based on grounds
which have general application to the class.
Illustrative are various actions in the civil-rights field where a
party is charged with discriminating unlawfully against a class, usually
one whose members are incapable of specific enumeration. See Potts v.
Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F.2d 201
(5th Cir. 1963), cert. denied, 377 U.S. 972 (1964); Brunson v. Board
of Trustees of School District No. 1, Clarendon City, S.C., 311 F.2d
107 (4th Cir. 1962), cert. denied, 373 U.S. 933 (1963); Green v.
School Bd. of Roanoke, Va., 304 F.2d 118 (4th Cir. 1962); Orleans
Parish School Bd. v. Bush, 242 F.2d 156 (5th Cir. 1957), cert.
denied, 354 U.S. 921 (1957); Mannings v. Board of Public Inst. of
Hillsborough County, Fla., 277 F.2d 370 (5th Cir. 1960); Northcross v.
Board of Ed. of City of Memphis, 302 F.2d 818 (6th Cir. 1962), cert.
denied 370 U.S. 944 (1962); Frasier v. Board of Trustees of Univ. of
N.C., 134 F.Supp. 589 (M.D.N.C. 1955, 3-judge court), aff'd, 350 U.S.
979 (1956). Subdivision (b)(2) is not limited to civil-rights cases.
Thus an action looking to specific or declaratory relief could be
brought by a numerous class of purchasers, say retailers of a given
description, against a seller alleged to have undertaken to sell to that
class at prices higher than those set for other purchasers, say
retailers of another description, when the applicable law forbids such a
pricing differential. So also a patentee of a machine, charged with
selling or licensing the machine on condition that purchasers or
licensees also purchase or obtain licenses to use an ancillary
unpatented machine, could be sued on a class basis by a numerous group
of purchasers or licensees, or by a numerous group of competing sellers
or licensors of the unpatented machine, to test the legality of the
''tying'' condition.
Subdivision (b)(3). In the situations to which this subdivision
relates, class-action treatment is not as clearly called for as in those
described above, but it may nevertheless be convenient and desirable
depending upon the particular facts. Subdivision (b)(3) encompasses
those cases in which a class action would achieve economies of time,
effort, and expense, and promote, uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or bringing
about other undesirable results. Cf. Chafee, supra, at 201.
The court is required to find, as a condition of holding that a class
action may be maintained under this subdivision, that the questions
common to the class predominate over the questions affecting individual
members. It is only where this predominance exists that economies can
be achieved by means of the class-action device. In this view, a fraud
perpetrated on numerous persons by the use of similar misrepresentations
may be an appealing situation for a class action, and it may remain so
despite the need, if liability is found, for separate determination of
the damages suffered by individuals within the class. On the other
hand, although having some common core, a fraud case may be unsuited for
treatment as a class action if there was material variation in the
representation made or in the kinds or degrees of reliance by the
persons to whom they were addressed. See Oppenheimer v. F. J. Young &
Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City Bank
of N.Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in other
contexts, see Hughes v. Encyclopaedia Brittanica, 199 F.2d 295 (7th
Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d 819 (6th
Cir. 1944). A ''mass accident'' resulting in injuries to numerous
persons is ordinarily not appropriate for a class action because of the
likelihood that significant questions, not only of damages but of
liability and defenses of liability, would be present, affecting the
individuals in different ways. In these circumstances an action
conducted nominally as a class action would degenerate in practice into
multiple lawsuits separately tried. See Pennsylvania R.R. v. United
States, 111 F.Supp. 80 (D.N.J. 1953); cf. Weinstein, supra, 9 Buffalo
L.Rev. at 469. Private damage claims by numerous individuals arising
out of concerted antitrust violations may or may not involve
predominating common questions. See Union Carbide & Carbon Corp. v.
Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S. 801
(1963); cf. Weeks v. Bareco Oil Co., 125 F.2d 84 (7th Cir. 1941);
Kainz v. Anheuser-Busch, Inc., 194 F.2d 737 (7th Cir. 1952); Hess v.
Anderson, Clayton & Co., 20 F.R.D. 466 (S.D.Calif. 1957).
That common questions predominate is not itself sufficient to justify
a class action under subdivision (b)(3), for another method of handling
the litigious situation may be available which has greater practical
advantages. Thus one or more actions agreed to by the parties as test
or model actions may be preferable to a class action; or it may prove
feasible and preferable to consolidate actions. Cf. Weinstein, supra,
9 Buffalo L.Rev. at 438-54. Even when a number of separate actions are
proceeding simultaneously, experience shows that the burdens on the
parties and the courts can sometimes be reduced by arrangements for
avoiding repetitious discovery or the like. Currently the Coordinating
Committee on Multiple Litigation in the United States District Courts (a
subcommittee of the Committee on Trial Practice and Technique of the
Judicial Conference of the United States) is charged with developing
methods for expediting such massive litigation. To reinforce the point
that the court with the aid of the parties ought to assess the relative
advantages of alternative procedures for handling the total controversy,
subdivision (b)(3) requires, as a further condition of maintaining the
class action, that the court shall find that that procedure is
''superior'' to the others in the particular circumstances.
Factors (A)-(D) are listed, non-exhaustively, as pertinent to the
findings. The court is to consider the interests of individual members
of the class in controlling their own litigations and carrying them on
as they see fit. See Weeks v. Bareco Oil Co., 125 F.2d 84, 88-90,
93-94 (7th Cir. 1941) (anti-trust action); see also Pentland v. Dravo
Corp., 152 F.2d 851 (3d Cir. 1945), and Chaffee, supra, at 273-75,
regarding policy of Fair Labor Standards Act of 1938, 16(b), 29 U.S.C.
216(b), prior to amendment by Portal-to-Portal Act of 1947, 5(a). (The
present provisions of 29 U.S.C. 216(b) are not intended to be affected
by Rule 23, as amended.)
In this connection the court should inform itself of any litigation
actually pending by or against the individuals. The interests of
individuals in conducting separate lawsuits may be so strong as to call
for denial of a class action. On the other hand, these interests may be
theoretic rather than practical; the class may have a high degree of
cohesion and prosecution of the action through representatives would be
quite unobjectionable, or the amounts at stake for individuals may be so
small that separate suits would be impracticable. The burden that
separate suits would impose on the party opposing the class, or upon the
court calendars, may also fairly be considered. (See the discussion,
under subdivision (c)(2) below, of the right of members to be excluded
from the class upon their request.)
Also pertinent is the question of the desirability of concentrating
the trial of the claims in the particular forum by means of a class
action, in contrast to allowing the claims to be litigated separately in
forums to which they would ordinarily be brought. Finally, the court
should consider the problems of management which are likely to arise in
the conduct of a class action.
Subdivision (c)(1). In order to give clear definition to the action,
this provision requires the court to determine, as early in the
proceedings as may be practicable, whether an action brought as a class
action is to be so maintained. The determination depends in each case
on satisfaction of the terms of subdivision (a) and the relevant
provisions of subdivision (b).
An order embodying a determination can be conditional; the court may
rule, for example, that a class action may be maintained only if the
representation is improved through intervention of additional parties of
a stated type. A determination once made can be altered or amended
before the decision on the merits if, upon fuller development of the
facts, the original determination appears unsound. A negative
determination means that the action should be stripped of its character
as a class action. See subdivision (d)(4). Although an action thus
becomes a nonclass action, the court may still be receptive to
interventions before the decision on the merits so that the litigation
may cover as many interests as can be conveniently handled; the
questions whether the intervenors in the nonclass action shall be
permitted to claim ''ancillary'' jurisdiction or the benefit of the date
of the commencement of the action for purposes of the statute of
limitations are to be decided by reference to the laws governing
jurisdiction and limitations as they apply in particular contexts.
Whether the court should require notice to be given to members of the
class of its intention to make a determination, or of the order
embodying it, is left to the court's discretion under subdivision
(d)(2).
Subdivision (c)(2) makes special provision for class actions
maintained under subdivision (b)(3). As noted in the discussion of the
latter subdivision, the interests of the individuals in pursuing their
own litigations may be so strong here as to warrant denial of a class
action altogether. Even when a class action is maintained under
subdivision (b)(3), this individual interest is respected. Thus the
court is required to direct notice to the members of the class of the
right of each member to be excluded from the class upon his request. A
member who does not request exclusion may, if he wishes, enter an
appearance in the action through his counsel; whether or not he does
so, the judgment in the action will embrace him.
The notice setting forth the alternatives open to the members of the
class, is to be the best practicable under the circumstances, and shall
include individual notice to the members who can be identified through
reasonable effort. (For further discussion of this notice, see the
statement under subdivision (d)(2) below.)
Subdivision (c)(3). The judgment in a class action maintained as
such to the end will embrace the class, that is, in a class action under
subdivision (b)(1) or (b)(2), those found by the court to be class
members; in a class action under subdivision (b)(3), those to whom the
notice prescribed by subdivision (c)(2) was directed, excepting those
who requested exclusion or who are ultimately found by the court not to
be members of the class. The judgment has this scope whether it is
favorable or unfavorable to the class. In a (b)(1) or (b)(2) action the
judgment ''describes'' the members of the class, but need not specify
the individual members; in a (b)(3) action the judgment ''specifies''
the individual members who have been identified and described the
others.
Compare subdivision (c)(4) as to actions conducted as class actions
only with respect to particular issues. Where the class-action
character of the lawsuit is based solely on the existence of a ''limited
fund,'' the judgment, while extending to all claims of class members
against the fund, has ordinarily left unaffected the personal claims of
nonappearing members against the debtor. See 3 Moore, supra, par.
23.11(4).
Hitherto, in a few actions conducted as ''spurious'' class actions
and thus nominally designed to extend only to parties and others
intervening before the determination of liability, courts have held or
intimated that class members might be permitted to intervene after a
decision on the merits favorable to their interests, in order to secure
the benefits of the decision for themselves, although they would
presumably be unaffected by an unfavorable decision. See, as to the
propriety of this so-called ''one-way'' intervention in ''spurious''
actions, the conflicting views expressed in Union Carbide & Carbon Corp.
v. Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S.
801 (1963); York v. Guaranty Trust Co., 143 F.2d 503, 529 (2d Cir.
1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945);
Pentland v. Dravo Corp., 152 F.2d 851, 856 (3d Cir. 1945); Speed v.
Transamerica Corp., 100 F.Supp. 461, 463 (D.Del. 1951); State
Wholesale Grocers v. Great Atl. & Pac. Tea Co., 24 F.R.D. 510
(N.D.Ill. 1959); Alabama Ind. Serv. Stat. Assn. v. Shell Pet Corp., 28
F.Supp. 386, 390 (N.D.Ala. 1939); Tolliver v. Cudahy Packing Co., 39
F.Supp. 337, 339 (E.D.Tenn. 1941); Kalven & Rosenfield, supra, 8 U. of
Chi.L.Rev. 684 (1941); Comment, 53 Nw.U.L.Rev. 627, 632-33 (1958);
Developments in the Law, supra, 71 Harv.L.Rev. at 935; 2 Barron &
Holtzoff, supra, 568; but cf. Lockwood v. Hercules Powder Co., 7
F.R.D. 24, 28-29 (W.D.Mo. 1947); Abram v. San Joaquin Cotton Oil Co.,
46 F.Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at 280, 285;
3 Moore, supra, par. 23.12, at 3476. Under proposed subdivision
(c)(3), one-way intervention is excluded; the action will have been
early determined to be a class or nonclass action, and in the former
case the judgment, whether or not favorable, will include the class, as
above stated.
Although thus declaring that the judgment in a class action includes
the class, as defined, subdivision (c)(3) does not disturb the
recognized principle that the court conducting the action cannot
predetermine the res judicata effect of the judgment; this can be
tested only in a subsequent action. See Restatement, Judgments 86,
comment (h), 116 (1942). The court, however, in framing the judgment
in any suit brought as a class action, must decide what its extent or
coverage shall be, and if the matter is carefully considered, questions
of res judicata are less likely to be raised at a later time and if
raised will be more satisfactorily answered. See Chafee, supra, at 294;
Weinstein, supra, 9 Buffalo L.Rev. at 460.
Subdivision (c)(4). This provision recognizes that an action may be
maintained as a class action as to particular issues only. For example,
in a fraud or similar case the action may retain its ''class'' character
only through the adjudication of liability to the class; the members of
the class may thereafter be required to come in individually and prove
the amounts of their respective claims.
Two or more classes may be represented in a single action. Where a
class is found to include subclasses divergent in interest, the class
may be divided correspondingly, and each subclass treated as a class.
Subdivision (d) is concerned with the fair and efficient conduct of
the action and lists some types of orders which may be appropriate.
The court should consider how the proceedings are to be arranged in
sequence, and what measures should be taken to simplify the proof and
argument. See subdivision (d)(1). The orders resulting from this
consideration, like the others referred to in subdivision (d), may be
combined with a pretrial order under Rule 16, and are subject to
modification as the case proceeds.
Subdivision (d)(2) sets out a non-exhaustive list of possible
occasions for orders requiring notice to the class. Such notice is not
a novel conception. For example, in ''limited fund'' cases, members of
the class have been notified to present individual claims after the
basic class decision. Notice has gone to members of a class so that
they might express any opposition to the representation, see United
States v. American Optical Co., 97 F.Supp. 66 (N.D.Ill. 1951), and
1950-51 CCH Trade Cases 64573-74 (par. 62869); cf. Weeks v. Bareco Oil
Co., 125 F.2d 84, 94 (7th Cir. 1941), and notice may encourage
interventions to improve the representation of the class. Cf.
Oppenheimer v. F. J. Young & Co., 144 F.2d 387 (2d Cir. 1944). Notice
has been used to poll members on a proposed modification of a consent
decree. See record in Sam Fox Publishing Co. v. United States, 366
U.S. 683 (1961).
Subdivision (d)(2) does not require notice at any stage, but rather
calls attention to its availability and invokes the court's discretion.
In the degree that there is cohesiveness or unity in the class and the
representation is effective, the need for notice to the class will tend
toward a minimum. These indicators suggest that notice under
subdivision (d)(2) may be particularly useful and advisable in certain
class actions maintained under subdivision (b)(3), for example, to
permit members of the class to object to the representation. Indeed,
under subdivision (c)(2), notice must be ordered, and is not merely
discretionary, to give the members in a subdivision (b)(3) class action
an opportunity to secure exclusion from the class. This mandatory
notice pursuant to subdivision (c)(2), together with any discretionary
notice which the court may find it advisable to give under subdivision
(d)(2), is designed to fulfill requirements of due process to which the
class action procedure is of course subject. See Hansberry v. Lee, 311
U.S. 32 (1940); Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306 (1950); cf. Dickinson v. Burnham, 197 F.2d 973, 979 (2d Cir.
1952), and studies cited at 979 n. 4; see also All American Airways,
Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954); Gart v. Cole, 263
F.2d 244, 248-49 (2d Cir. 1959), cert. denied, 359 U.S. 978 (1959).
Notice to members of the class, whenever employed under amended Rule
23, should be accommodated to the particular purpose but need not comply
with the formalities for service of process. See Chafee, supra, at
230-31; Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946). The fact that
notice is given at one stage of the action does not mean that it must be
given at subsequent stages. Notice is available fundamentally ''for the
protection of the members of the class or otherwise for the fair conduct
of the action'' and should not be used merely as a device for the
undesirable solicitation of claims. See the discussion in Cherner v.
Transitron Electronic Corp., 201 F.Supp. 934 (D.Mass. 1962); Hormel v.
United States, 17 F.R.D. 303 (S.D.N.Y. 1955).
In appropriate cases the court should notify interested government
agencies of the pendency of the action or of particular steps therein.
Subdivision (d)(3) reflects the possibility of conditioning the
maintenance of a class action, e.g., on the strengthening of the
representation, see subdivision (c)(1) above; and recognizes that the
imposition of conditions on intervenors may be required for the proper
and efficient conduct of the action.
As to orders under subdivision (d)(4), see subdivision (c)(1) above.
Subdivision (e) requires approval of the court, after notice, for the
dismissal or compromise of any class action.
The amendments are technical. No substantive change is intended.
Capacity of unincorporated association to sue or be sued, see rule
17.
Process on corporations in stockholder's derivative action, see
section 1695 of this title.
Venue in stockholder's derivative action, see section 1401 of this
title.
28 USC Rule 23.1. Derivative Actions by Shareholders
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
In a derivative action brought by one or more shareholders or members
to enforce a right of a corporation or of an unincorporated association,
the corporation or association having failed to enforce a right which
may properly be asserted by it, the complaint shall be verified and
shall allege (1) that the plaintiff was a shareholder or member at the
time of the transaction of which the plaintiff complains or that the
plaintiff's share or membership thereafter devolved on the plaintiff by
operation of law, and (2) that the action is not a collusive one to
confer jurisdiction on a court of the United States which it would not
otherwise have. The complaint shall also allege with particularity the
efforts, if any, made by the plaintiff to obtain the action the
plaintiff desires from the directors or comparable authority and, if
necessary, from the shareholders or members, and the reasons for the
plaintiff's failure to obtain the action or for not making the effort.
The derivative action may not be maintained if it appears that the
plaintiff does not fairly and adequately represent the interests of the
shareholders or members similarly situated in enforcing the right of the
corporation or association. The action shall not be dismissed or
compromised without the approval of the court, and notice of the
proposed dismissal or compromise shall be given to shareholders or
members in such manner as the court directs.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987,
eff. Aug. 1, 1987.)
A derivative action by a shareholder of a corporation or by a member
of an unincorporated association has distinctive aspects which require
the special provisions set forth in the new rule. The next-to-the-last
sentence recognizes that the question of adequacy of representation may
arise when the plaintiff is one of a group of shareholders or members.
Cf. 3 Moore's Federal Practice, par. 23.08 (2d ed. 1963).
The court has inherent power to provide for the conduct of the
proceedings in a derivative action, including the power to determine the
course of the proceedings and require that any appropriate notice be
given to shareholders or members.
The amendments are technical. No substantive change is intended.
28 USC Rule 23.2. Actions Relating to Unincorporated Associations
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative
parties may be maintained only if it appears that the representative
parties will fairly and adequately protect the interests of the
association and its members. In the conduct of the action the court may
make appropriate orders corresponding with those described in Rule
23(d), and the procedure for dismissal or compromise of the action shall
correspond with that provided in Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966.)
Although an action by or against representatives of the membership of
an unincorporated association has often been viewed as a class action,
the real or main purpose of this characterization has been to give
''entity treatment'' to the association when for formal reasons it
cannot sue or be sued as a jural person under Rule 17(b). See Louisell
& Hazard, Pleading and Procedure: State and Federal 718 (1962); 3
Moore's Federal Practice, par. 23.08 (2d ed. 1963); Story, J. in West
v. Randall, 29 Fed.Cas. 718, 722-23, No. 17,424 (C.C.D.R.I. 1820);
and, for examples, Gibbs v. Buck, 307 U.S. 66 (1939); Tunstall v.
Brotherhood of Locomotive F. & E., 148 F.2d 403 (4th Cir. 1945);
Oskoian v. Canuel, 269 F.2d 311 (1st Cir. 1959). Rule 23.2 deals
separately with these actions, referring where appropriate to Rule 23.
28 USC Rule 24. Intervention
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of the United
States confers an unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede
the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (1) when a statute of the United
States confers a conditional right to intervene; or (2) when an
applicant's claim or defense and the main action have a question of law
or fact in common. When a party to an action relies for ground of claim
or defense upon any statute or executive order administered by a federal
or state governmental officer or agency or upon any regulation, order,
requirement, or agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its discretion the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion
to intervene upon the parties as provided in Rule 5. The motion shall
state the grounds therefor and shall be accompanied by a pleading
setting forth the claim or defense for which intervention is sought.
The same procedure shall be followed when a statute of the United States
gives a right to intervene. When the constitutionality of an act of
Congress affecting the public interest is drawn in question in any
action in which the United States or an officer, agency, or employee
thereof is not a party, the court shall notify the Attorney General of
the United States as provided in Title 28, U.S.C., 2403. When the
constitutionality of any statute of a State affecting the public
interest is drawn in question in any action in which that State or any
agency, officer, or employee thereof is not a party, the court shall
notify the attorney general of the State as provided in Title 28, U.S.C.
2403. A party challenging the constitutionality of legislation should
call the attention of the court to its consequential duty, but failure
to do so is not a waiver of any constitutional right otherwise timely
asserted.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991.)
The right to intervene given by the following and similar statutes is
preserved, but the procedure for its assertion is governed by this rule:
U.S.C., Title 28:
45a (now 2323) (Special attorneys; participation by Interstate
Commerce Commission; intervention) (in certain cases under interstate
commerce laws)
48 (now 2322) (Suits to be against United States; intervention
by United States)
401 (now 2403) (Intervention by United States;
constitutionality of Federal statute)
U.S.C., Title 40:
276a-2(b) (Bonds of contractors for public buildings or works;
rights of persons furnishing labor and materials).
Compare with the last sentence of (former) Equity Rule 37 (Parties
Generally -- Intervention). This rule amplifies and restates the
present federal practice at law and in equity. For the practice in
admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42
(Claims Against Proceeds in Registry). See generally Moore and Levi,
Federal Intervention: I The Right to Intervene and Reorganization
(1936), 45 Yale L.J. 565. Under the codes two types of intervention are
provided, one for the recovery of specific real or personal property (2
Ohio Gen.Code Ann. (Page, 1926) 11263; Wyo.Rev.Stat.Ann. (Courtright,
1931) 89-522), and the other allowing intervention generally when the
applicant has an interest in the matter in litigation (1 Colo.Stat.Ann.
(1935) Code Civ.Proc. 22; La.Code Pract. (Dart, 1932) Arts. 389-394;
Utah Rev.Stat.Ann. (1933) 104-3-24). The English intervention practice
is based upon various rules and decisions and falls into the two
categories of absolute right and discretionary right. For the absolute
right see English Rules Under the Judicature Act (The Annual Practice,
1937) O. 12, r. 24 (admiralty), r. 25 (land), r. 23 (probate); O.
57, r. 12 (execution); J. A. (1925) 181, 182, 183(2) (divorce); In
re Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497
(receivership); Wilson v. Church, 9 Ch.D. 552 (1878) (representative
action). For the discretionary right see O. 16, r. 11 (nonjoinder)
and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916), Vavasseur v. Krupp, 9
Ch.D. 351 (1878) (persons out of the jurisdiction).
Note. Subdivision (a). The addition to subdivision (a)(3) covers the
situation where property may be in the actual custody of some other
officer or agency -- such as the Secretary of the Treasury -- but the
control and disposition of the property is lodged in the court wherein
the action is pending.
Subdivision (b). The addition in subdivision (b) permits the
intervention of governmental officers or agencies in proper cases and
thus avoids exclusionary constructions of the rule. For an example of
the latter, see Matter of Bender Body Co., Ref.Ohio 1941, 47 F.Supp.
224, aff'd as moot, N.D.Ohio 1942, 47 F.Supp. 224, 234, holding that the
Administrator of the Office of Price Administration, then acting under
the authority of an Executive Order of the President, could not
intervene in a bankruptcy proceeding to protest the sale of assets above
ceiling prices. Compare, however, Securities and Exchange Commission v.
United States Realty & Improvement Co., 1940, 310 U.S. 434, 60 S.Ct.
1044, where permissive intervention of the Commission to protect the
public interest in an arrangement proceeding under Chapter XI of the
Bankruptcy Act was upheld. See also dissenting opinion in Securities
and Exchange Commission v. Long Island Lighting Co., C.C.A.2d, 1945,
148 F.2d 252, judgment vacated as moot and case remanded with direction
to dismiss complaint, 1945, 325 U.S. 833, 65 S.Ct. 1085. For discussion
see Commentary, Nature of Permissive Intervention Under Rule 24b, 1940,
3 Fed.Rules Serv. 704; Berger, Intervention by Public Agencies in
Private Litigation in the Federal Courts, 1940, 50 Yale L.J. 65.
Regarding the construction of subdivision (b)(2), see Allen
Calculators, Inc. v. National Cash Register Co., 1944, 322 U.S. 137, 64
S. Ct. 905.
This amendment conforms to the amendment of Rule 5(a). See the
Advisory Committee's Note to that amendment.
In attempting to overcome certain difficulties which have arisen in
the application of present Rule 24(a)(2) and (3), this amendment draws
upon the revision of the related Rules 19 (joinder of persons needed for
just adjudication) and 23 (class actions), and the reasoning underlying
that revision.
Rule 24(a)(3) as amended in 1948 provided for intervention of right
where the applicant established that he would be adversely affected by
the distribution or disposition of property involved in an action to
which he had not been made a party. Significantly, some decided cases
virtually disregarded the language of this provision. Thus Professor
Moore states: ''The concept of a fund has been applied so loosely that
it is possible for a court to find a fund in almost any in personam
action.'' 4 Moore's Federal Practice, par. 24.09(3), at 55 (2d ed.
1962), and see, e.g., Formulabs, Inc. v. Hartley Pen Co., 275 F.2d 52
(9th Cir. 1960). This development was quite natural, for Rule 24(a)(3)
was unduly restricted. If an absentee would be substantially affected
in a practical sense by the determination made in an action, he should,
as a general rule, be entitled to intervene, and his right to do so
should not depend on whether there is a fund to be distributed or
otherwise disposed of. Intervention of right is here seen to be a kind
of counterpart to Rule 19(a)(2)(i) on joinder of persons needed for a
just adjudication: where, upon motion of a party in an action, an
absentee should be joined so that he may protect his interest which as a
practical matter may be substantially impaired by the disposition of the
action, he ought to have a right to intervene in the action on his own
motion. See Louisell & Hazard, Pleading and Procedure: State and
Federal 749-50 (1962).
The general purpose of original Rule 24(a)(2) was to entitle an
absentee, purportedly represented by a party, to intervene in the action
if he could establish with fair probability that the representation was
inadequate. Thus, where an action is being prosecuted or defended by a
trustee, a beneficiary of the trust should have a right to intervene if
he can show that the trustee's representation of his interest probably
is inadequate; similarly a member of a class should have the right to
intervene in a class action if he can show the inadequacy of the
representation of his interest by the representative parties before the
court.
Original Rule 24(a)(2), however, made it a condition of intervention
that ''the applicant is or may be bound by a judgment in the action,''
and this created difficulties with intervention in class actions. If
the ''bound'' language was read literally in the sense of res judicata,
it could defeat intervention in some meritorious cases. A member of a
class to whom a judgment in a class action extended by its terms (see
Rule 23(c)(3), as amended) might be entitled to show in a later action,
when the judgment in the class action was claimed to operate as res
judicata against him, that the ''representative'' in the class action
had not in fact adequately represented him. If he could make this
showing, the class-action judgment might be held not to bind him. See
Hansberry v. Lee, 311 U.S. 32 (1940). If a class member sought to
intervene in the class action proper, while it was still pending, on
grounds of inadequacy of representation, he could be met with the
argument: if the representation was in fact inadequate, he would not be
''bound'' by the judgment when it was subsequently asserted against him
as res judicata, hence he was not entitled to intervene; if the
representation was in fact adequate, there was no occasion or ground for
intervention. See Sam Fox Publishing Co. v. United States, 366 U.S.
683 (1961); cf. Sutphen Estates, Inc. v. United States, 342 U.S. 19
(1951). This reasoning might be linguistically justified by original
Rule 24(a)(2); but it could lead to poor results. Compare the
discussion in International M. & I. Corp. v. Von Clemm, 301 F.2d 857
(2d Cir. 1962); Atlantic Refining Co. v. Standard Oil Co., 304 F.2d
387 (D.C.Cir. 1962). A class member who claims that his
''representative'' does not adequately represent him, and is able to
establish that proposition with sufficient probability, should not be
put to the risk of having a judgment entered in the action which by its
terms extends to him, and be obliged to test the validity of the
judgment as applied to his interest by a later collateral attack.
Rather he should, as a general rule, be entitled to intervene in the
action.
The amendment provides that an applicant is entitled to intervene in
an action when his position is comparable to that of a person under Rule
19(a)(2)(i), as amended, unless his interest is already adequately
represented in the action by existing parties. The Rule 19(a)(2)(i)
criterion imports practical considerations, and the deletion of the
''bound'' language similarly frees the rule from undue preoccupation
with strict considerations of res judicata.
The representation whose adequacy comes into question under the
amended rule is not confined to formal representation like that provided
by a trustee for his beneficiary or a representative party in a class
action for a member of the class. A party to an action may provide
practical representation to the absentee seeking intervention although
no such formal relationship exists between them, and the adequacy of
this practical representation will then have to be weighed. See
International M. & I. Corp. v. Von Clemm, and Atlantic Refining Co.
v. Standard Oil Co., both supra; Wolpe v. Poretsky, 144 F.2d 505
(D.C.Cir. 1944), cert. denied, 323 U.S. 777 (1944); cf. Ford Motor
Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir. 1957); and generally,
Annot., 84 A.L.R.2d 1412 (1961).
An intervention of right under the amended rule may be subject to
appropriate conditions or restrictions responsive among other things to
the requirements of efficient conduct of the proceedings.
The amendments are technical. No substantive change is intended.
Language is added to bring Rule 24(c) into conformity with the
statute cited, resolving some confusion reflected in district court
rules. As the text provides, counsel challenging the constitutionality
of legislation in an action in which the appropriate government is not a
party should call the attention of the court to its duty to notify the
appropriate governmental officers. The statute imposes the burden of
notification on the court, not the party making the constitutional
challenge, partly in order to protect against any possible waiver of
constitutional rights by parties inattentive to the need for notice.
For this reason, the failure of a party to call the court's attention to
the matter cannot be treated as a waiver.
Motion to intervene as defendant, see form 23, Appendix of Forms.
Intervention of --
Parties interested in action to enforce, suspend or annul orders of
the Interstate Commerce Commission, see section 2323 of this title.
United States where constitutionality of federal statute is
questioned, see section 2403 of this title.
28 USC Rule 25. Substitution of Parties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties. The motion for
substitution may be made by any party or by the successors or
representatives of the deceased party and, together with the notice of
hearing, shall be served on the parties as provided in Rule 5 and upon
persons not parties in the manner provided in Rule 4 for the service of
a summons, and may be served in any judicial district. Unless the
motion for substitution is made not later than 90 days after the death
is suggested upon the record by service of a statement of the fact of
the death as provided herein for the service of the motion, the action
shall be dismissed as to the deceased party.
(2) In the event of the death of one or more of the plaintiffs or of
one or more of the defendants in an action in which the right sought to
be enforced survives only to the surviving plaintiffs or only against
the surviving defendants, the action does not abate. The death shall be
suggested upon the record and the action shall proceed in favor of or
against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon
motion served as provided in subdivision (a) of this rule may allow the
action to be continued by or against the party's representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subdivision (a) of
this rule.
(d) Public Officers; Death or Separation From Office.
(1) When a public officer is a party to an action in his official
capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action does not abate and the officer's successor is
automatically substituted as a party. Proceedings following the
substitution shall be in the name of the substituted party, but any
misnomer not affecting the substantial rights of the parties shall be
disregarded. An order of substitution may be entered at any time, but
the omission to enter such an order shall not affect the substitution.
(2) A public officer who sues or is sued in an official capacity may
be described as a party by the officer's official title rather than by
name; but the court may require the officer's name to be added.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.
July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
Aug. 1, 1987.)
Note to Subdivision (a). 1. The first paragraph of this rule is
based upon (former) Equity Rule 45 (Death of Party -- Revivor) and
U.S.C., Title 28, (former) 778 (Death of parties; substitution of
executor or administrator). The scire facias procedure provided for in
the statute cited is superseded and the writ is abolished by Rule 81
(b). Paragraph two states the content of U.S.C., Title 28, (former)
779 (Death of one of several plaintiffs or defendants). With these two
paragraphs compare generally English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 17, r.r. 1-10.
2. This rule modifies U.S.C., Title 28, (former) 778 (Death of
parties; substitution of executor or administrator), 779 (Death of one
of several plaintiffs or defendants), and 780 (Survival of actions,
suits, or proceedings, etc.) insofar as they differ from it.
Note to Subdivisions (b) and (c). These are a combination and
adaptation of N.Y.C.P.A. (1937) 83 and Calif.Code Civ.Proc. (Deering,
1937) 385; see also 4 Nev.Comp.Laws (Hillyer, 1929) 8561.
Note to Subdivision (d). With the first and last sentences compare
U.S.C., Title 28, (former) 780 (Survival of actions, suits, or
proceedings, etc.). With the second sentence of this subdivision compare
Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311 (1933).
The amendment effective October 19, 1949, inserted the words, ''the
Canal Zone, a territory, an insular possession,'' in the first sentence
of subdivision (d), and, in the same sentence, after the phrase ''or
other governmental agency,'' deleted the words, ''or any other officer
specified in the act of February 13, 1925, ch. 229, 11 (43 Stat. 941),
formerly section 780 of this title''.
Subdivision (d)(1). Present Rule 25(d) is generally considered to be
unsatisfactory. 4 Moore's, Federal Practice 25.01(7) (2d ed. 1950;
Wright, Amendments to the Federal Rules: The Function of a Continuing
Rules Committee, 7 Vand.L.Rev. 521, 529 (1954); Developments in the Law
-- Remedies Against the United States and Its Officials, 70 Harv.L.Rev.
827, 931-34 (1957). To require, as a condition of substituting a
successor public officer as a party to a pending action, that an
application be made with a showing that there is substantial need for
continuing the litigation, can rarely serve any useful purpose and
fosters a burdensome formality. And to prescribe a short, fixed time
period for substitution which cannot be extended even by agreement, see
Snyder v. Buck, 340 U.S. 15, 19 (1950), with the penalty of dismissal of
the action, ''makes a trap for unsuspecting litigants which seems
unworthy of a great government.'' Vibra Brush Corp. v. Schaffer, 256
F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found
means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284
(9th Cir. 1954) (substitution of defendant officer unnecessary on
theory that only a declaration of status was sought), it has operated
harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter v.
Folsom, 242 F.2d 516 (3d Cir. 1957).
Under the amendment, the successor is automatically substituted as a
party without an application or showing of need to continue the action.
An order of substitution is not required, but may be entered at any time
if a party desires or the court thinks fit.
The general term ''public officer'' is used in preference to the
enumeration which appears in the present rule. It comprises Federal,
State, and local officers.
The expression ''in his official capacity'' is to be interpreted in
its context as part of a simple procedural rule for substitution; care
should be taken not to distort its meaning by mistaken analogies to the
doctrine of sovereign immunity from suit or the Eleventh Amendment. The
amended rule will apply to all actions brought by public officers for
the government, and to any action brought in form against a named
officer, but intrinsically against the government or the office or the
incumbent thereof whoever he may be from time to time during the action.
Thus the amended rule will apply to actions against officers to compel
performance of official duties or to obtain judicial review of their
orders. It will also apply to actions to prevent officers from acting
in excess of their authority or under authority not validly conferred,
cf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from
enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S. 123
(1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it will
apply whenever effective relief would call for corrective behavior by
the one then having official status and power, rather than one who has
lost that status and power through ceasing to hold office. Cf. Land v.
Dollar, 330 U.S. 731 (1947); Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682 (1949). Excluded from the operation of the amended
rule will be the relatively infrequent actions which are directed to
securing money judgments against the named officers enforceable against
their personal assets; in these cases Rule 25(a)(1), not Rule 25(d),
applies to the question of substitution. Examples are actions against
officers seeking to make them pay damages out of their own pockets for
defamatory utterances or other misconduct in some way related to the
office, see Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360
U.S. 593 (1959); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949),
cert. denied, 339 U.S. 949 (1950). Another example is the anomalous
action for a tax refund against a collector of internal revenue, see
Ignelzi v. Granger, 16 F.R.D. 517 (W.D.Pa. 1955), 28 U.S.C. 2006, 4
Moore, supra, 25.05, p. 531; but see 28 U.S.C. 1346(a)(1),
authorizing the bringing of such suits against the United States rather
than the officer.
Automatic substitution under the amended rule, being merely a
procedural device for substituting a successor for a past officeholder
as a party, is distinct from and does not affect any substantive issues
which may be involved in the action. Thus a defense of immunity from
suit will remain in the case despite a substitution.
Where the successor does not intend to pursue the policy of his
predecessor which gave rise to the lawsuit, it will be open to him,
after substitution, as plaintiff to seek voluntary dismissal of the
action, or as defendant to seek to have the action dismissed as moot or
to take other appropriate steps to avert a judgment or decree. Contrast
Ex parte La Prade, supra; Allen v. Regents of the University System,
304 U.S. 439 (1938); McGrath v. National Assn. of Mfgrs., 344 U.S.
804 (1952); Danenberg v. Cohen, 213 F.2d 944 (7th Cir. 1954).
As the present amendment of Rule 25(d)(1) eliminates a specified time
period to secure substitution of public officers, the reference in Rule
6(b) (regarding enlargement of time) to Rule 25 will no longer apply to
these public-officer substitutions.
As to substitution on appeal, the rules of the appellate courts
should be consulted.
Subdivision (d)(2). This provision, applicable in ''official
capacity'' cases as described above, will encourage the use of the
official title without any mention of the officer individually, thereby
recognizing the intrinsic character of the action and helping to
eliminate concern with the problem of substitution. If for any reason
it seems desirable to add the individual's name, this may be done upon
motion or on the court's initiative; thereafter the procedure of
amended Rule 25(d)(1) will apply if the individual named ceases to hold
office.
For examples of naming the office or title rather than the
officeholder, see Annot., 102 A.L.R. 943, 948-52; Comment, 50
Mich.L.Rev. 443, 450 (1952); cf. 26 U.S.C. 7484. Where an action is
brought by or against a board or agency with continuity of existence, it
has been often decided that there is no need to name the individual
members and substitution is unnecessary when the personnel changes. 4
Moore, supra, 25.09, p. 536. The practice encouraged by amended Rule
25(d)(2) is similar.
Present Rule 25(a)(1), together with present Rule 6(b), results in an
inflexible requirement that an action be dismissed as to a deceased
party if substitution is not carried out within a fixed period measured
from the time of the death. The hardships and inequities of this
unyielding requirement plainly appear from the cases. See e.g.,
Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436 (1947);
Iovino v. Waterson, 274 F.2d 41 (1959), cert. denied, Carlin v.
Sovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867 (1960); Perry v.
Allen, 239 F.2d 107 (5th Cir. 1956); Starnes v. Pennsylvania R.R., 26
F.R.D. 625 (E.D.N.Y.), aff'd per curiam, 295 F.2d 704 (2d Cir. 1961),
cert. denied, 369 U.S. 813, 82 S.Ct. 688, 7 L.Ed.2d 612 (1962); Zdanok
v. Glidden Co., 28 F.R.D. 346 (S.D.N.Y. 1961). See also 4 Moore's
Federal Practice 25.01(9) (Supp. 1960); 2 Barron & Holtzoff, Federal
Practice & Procedure 621, at 420-21 (Wright ed. 1961).
The amended rule establishes a time limit for the motion to
substitute based not upon the time of the death, but rather upon the
time information of the death as provided by the means of a suggestion
of death upon the record, i.e., service of a statement of the fact of
the death. Cf. Ill.Ann.Stat., ch. 110, 54(2) (Smith-Hurd 1956). The
motion may not be made later than 90 days after the service of the
statement unless the period is extended pursuant to Rule 6(b), as
amended. See the Advisory Committee's Note to amended Rule 6(b). See
also the new Official Form 30.
A motion to substitute may be made by any party or by the
representative of the deceased party without awaiting the suggestion of
death. Indeed, the motion will usually be so made. If a party or the
representative of the deceased party desires to limit the time within
which another may make the motion, he may do so by suggesting the death
upon the record.
A motion to substitute made within the prescribed time will
ordinarily be granted, but under the permissive language of the first
sentence of the amended rule (''the court may order'') it may be denied
by the court in the exercise of a sound discretion if made long after
the death -- as can occur if the suggestion of death is not made or is
delayed -- and circumstances have arisen rendering it unfair to allow
substitution. Cf. Anderson v. Yungkau, supra, 329 U.S. at 485, 486, 67
S.Ct. at 430, 431, 91 L.Ed. 436, where it was noted under the present
rule that settlement and distribution of the state of a deceased
defendant might be so far advanced as to warrant denial of a motion for
substitution even though made within the time limit prescribed by that
rule. Accordingly, a party interested in securing substitution under
the amended rule should not assume that he can rest indefinitely
awaiting the suggestion of death before he makes his motion to
substitute.
The amendments are technical. No substantive change is intended.
Depositions, right to use after substitution, see rule 26.
Extension of time for substitution, prohibiting, see rule 6.
28 USC V. DEPOSITIONS AND DISCOVERY
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
This statement is intended to serve as a general introduction to the
amendments of Rules 26-37, concerning discovery, as well as related
amendments of other rules. A separate note of customary scope is
appended to amendments proposed for each rule. This statement provides
a framework for the consideration of individual rule changes.
The discovery rules, as adopted in 1938, were a striking and
imaginative departure from tradition. It was expected from the outset
that they would be important, but experience has shown them to play an
even larger role than was initially foreseen. Although the discovery
rules have been amended since 1938, the changes were relatively few and
narrowly focused, made in order to remedy specific defects. The
amendments now proposed reflect the first comprehensive review of the
discovery rules undertaken since 1938. These amendments make
substantial changes in the discovery rules. Those summarized here are
among the more important changes.
Scope of Discovery. New provisions are made and existing provisions
changed affecting the scope of discovery: (1) The contents of insurance
policies are made discoverable (Rule 26(b)(2)). (2) A showing of good
cause is no longer required for discovery of documents and things and
entry upon land (Rule 34). However, a showing of need is required for
discovery of ''trial preparation'' materials other than a party's
discovery of his own statement and a witness' discovery of his own
statement; and protection is afforded against disclosure in such
documents of mental impressions, conclusions, opinions, or legal
theories concerning the litigation. (Rule 26(b)(3)). (3) Provision is
made for discovery with respect to experts retained for trial
preparation, and particularly those experts who will be called to
testify at trial (Rule 26(b)(4)). (4) It is provided that
interrogatories and requests for admission are not objectionable simply
because they relate to matters of opinion or contention, subject of
course to the supervisory power of the court (Rules 33(b), 36(a)). (5)
Medical examination is made available as to certain nonparties. (Rule
35(a)).
Mechanics of Discovery. A variety of changes are made in the
mechanics of the discovery process, affecting the sequence and timing of
discovery, the respective obligations of the parties with respect to
requests, responses, and motions for court orders, and the related
powers of the court to enforce discovery requests and to protect against
their abusive use. A new provision eliminates the automatic grant of
priority in discovery to one side (Rule 26(d)). Another provides that a
party is not under a duty to supplement his responses to requests for
discovery, except as specified (Rule 26(e)).
Other changes in the mechanics of discovery are designed to encourage
extrajudicial discovery with a minimum of court intervention. Among
these are the following: (1) The requirement that a plaintiff seek
leave of court for early discovery requests is eliminated or reduced,
and motions for a court order under Rule 34 are made unnecessary.
Motions under Rule 35 are continued. (2) Answers and objections are to
be served together and an enlargement of the time for response is
provided. (3) The party seeking discovery, rather than the objecting
party, is made responsible for invoking judicial determination of
discovery disputes not resolved by the parties. (4) Judicial sanctions
are tightened with respect to unjustified insistence upon or objection
to discovery. These changes bring Rules 33, 34, and 36 substantially
into line with the procedure now provided for depositions.
Failure to amend Rule 35 in the same way is based upon two
considerations. First, the Columbia Survey (described below) finds that
only about 5 percent of medical examinations require court motions, of
which about half result in court orders. Second and of greater
importance, the interest of the person to be examined in the privacy of
his person was recently stressed by the Supreme Court in Schlagenhauf v.
Holder, 379 U.S. 104 (1964). The court emphasized the trial judge's
responsibility to assure that the medical examination was justified,
particularly as to its scope.
Rearrangement of Rules. A limited rearrangement of the discovery
rules has been made, whereby certain provisions are transferred from one
rule to another. The reasons for this rearrangement are discussed below
in a separate section of this statement, and the details are set out in
a table at the end of this statement.
Optional Procedures. In two instances, new optional procedures have
been made available. A new procedure is provided to a party seeking to
take the deposition of a corporation or other organization (Rule
30(b)(6)). A party on whom interrogatories have been served requesting
information derivable from his business records may under specified
circumstances produce the records rather than give answers (Rule 33(c)).
Other Changes. This summary of changes is by no means exhaustive.
Various changes have been made in order to improve, tighten, or clarify
particular provisions, to resolve conflicts in the case law, and to
improve language. All changes, whether mentioned here or not, are
discussed in the appropriate note for each rule.
Despite widespread acceptance of discovery as an essential part of
litigation, disputes have inevitably arisen concerning the values
claimed for discovery and abuses alleged to exist. Many disputes about
discovery relate to particular rule provisions or court decisions and
can be studied in traditional fashion with a view to specific amendment.
Since discovery is in large measure extra-judicial, however, even these
disputes may be enlightened by a study of discovery ''in the field.''
And some of the larger questions concerning discovery can be pursued
only by a study of its operation at the law office level and in
unreported cases.
The Committee, therefore, invited the Project for Effective Justice
of Columbia Law School to conduct a field survey of discovery. Funds
were obtained from the Ford Foundation and the Walter E. Meyer Research
Institute of Law, Inc. The survey was carried on under the direction of
Prof. Maurice Rosenberg of Columbia Law School. The Project for
Effective Justice has submitted a report to the Committee entitled
''Field Survey of Federal Pretrial Discovery'' (hereafter referred to as
the Columbia Survey). The Committee is deeply grateful for the benefit
of this extensive undertaking and is most appreciative of the
cooperation of the Project and the funding organizations. The Committee
is particularly grateful to Professor Rosenberg who not only directed
the survey but has given much time in order to assist the Committee in
assessing the results.
The Columbia Survey concludes, in general, that there is no empirical
evidence to warrant a fundamental change in the philosophy of the
discovery rules. No widespread or profound failings are disclosed in
the scope or availability of discovery. The costs of discovery do not
appear to be oppressive, as a general matter, either in relation to
ability to pay or to the stakes of the litigation. Discovery frequently
provides evidence that would not otherwise be available to the parties
and thereby makes for a fairer trial or settlement. On the other hand,
no positive evidence is found that discovery promotes settlement.
More specific findings of the Columbia Survey are described in other
Committee notes, in relation to particular rule provisions and
amendments. Those interested in more detailed information may obtain it
from the Project for Effective Justice.
The present discovery rules are structured entirely in terms of
individual discovery devices, except for Rule 27 which deals with
perpetuation of testimony, and Rule 37 which provides sanctions to
enforce discovery. Thus, Rules 26 and 28 to 32 are in terms addressed
only to the taking of a deposition of a party or third person. Rules 33
to 36 then deal in succession with four additional discovery devices:
Written interrogatories to parties, production for inspection of
documents and things, physical or mental examination and requests for
admission.
Under the rules as promulgated in 1938, therefore, each of the
discovery devices was separate and self-contained. A defect of this
arrangement is that there is no natural location in the discovery rules
for provisions generally applicable to all discovery or to several
discovery devices. From 1938 until the present, a few amendments have
applied a discovery provision to several rules. For example, in 1948,
the scope of deposition discovery in Rule 26(b) and the provision for
protective orders in Rule 30(b) were incorporated by reference in Rules
33 and 34. The arrangement was adequate so long as there were few
provisions governing discovery generally and these provisions were
relatively simple.
As will be seen, however, a series of amendments are now proposed
which govern most or all of the discovery devices. Proposals of a
similar nature will probably be made in the future. Under these
circumstances, it is very desirable, even necessary, that the discovery
rules contain one rule addressing itself to discovery generally.
Rule 26 is obviously the most appropriate rule for this purpose. One
of its subdivisions, Rule 26(b), in terms governs only scope of
deposition discovery, but it has been expressly incorporated by
reference in Rules 33 and 34 and is treated by courts as setting a
general standard. By means of a transfer to Rule 26 of the provisions
for protective orders now contained in Rule 30(b), and a transfer from
Rule 26 of provisions addressed exclusively to depositions, Rule 26 is
converted into a rule concerned with discovery generally. It becomes a
convenient vehicle for the inclusion of new provisions dealing with the
scope, timing, and regulation of discovery. Few additional transfers
are needed. See table showing rearrangement of rules, set out below.
There are, to be sure, disadvantages in transferring any provision
from one rule to another. Familiarity with the present pattern,
reinforced by the references made by prior court decisions and the
various secondary writings about the rules, is not lightly to be
sacrificed. Revision of treatises and other references works is
burdensome and costly. Moreover, many States have adopted the existing
pattern as a model for their rules.
On the other hand, the amendments now proposed will in any event
require revision of texts and reference works as well as reconsideration
by States following the Federal model. If these amendments are to be
incorporated in an understandable way, a rule with general discovery
provisions is needed. As will be seen, the proposed rearrangement
produces a more coherent and intelligible pattern for the discovery
rules taken as a whole. The difficulties described are those
encountered whenever statutes are reexamined and revised. Failure to
rearrange the discovery rules now would freeze the present scheme,
making future change even more difficult.
28 USC Rule 26. General Provisions Governing Discovery
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Discovery Methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things
or permission to enter upon land or other property, for inspection and
other purposes; physical and mental examinations; and requests for
admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of
the court in accordance with these rules, the scope of discovery is as
follows:
(1) In General. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
subdivision (a) shall be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
is obtainable from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information
sought; or (iii) the discovery is unduly burdensome or expensive,
taking into account the needs of the case, the amount in controversy,
limitations on the parties' resources, and the importance of the issues
at stake in the litigation. The court may act upon its own initiative
after reasonable notice or pursuant to a motion under subdivision (c).
(2) Insurance Agreements. A party may obtain discovery of the
existence and contents of any insurance agreement under which any person
carrying on an insurance business may be liable to satisfy part or all
of a judgment which may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. Information
concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purposes of this paragraph, an
application for insurance shall not be treated as part of an insurance
agreement.
(3) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision
(b)(1) of this rule and prepared in anticipation of litigation or for
trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject matter
previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Rule 37(a)(4) apply to
the award of expenses incurred in relation to the motion. For purposes
of this paragraph, a statement previously made is (A) a written
statement signed or otherwise adopted or approved by the person making
it, or (B) a stenographic, mechanical, electrical, or other recording,
or a transcription thereof, which is a substantially verbatim recital of
an oral statement by the person making it and contemporaneously
recorded.
(4) Trial Preparation: Experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
subdivision (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as
follows:
(A)(i) A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion. (ii) Upon motion, the court may order further
discovery by other means, subject to such restrictions as to scope and
such provisions, pursuant to subdivision (b)(4)(C) of this rule,
concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial, only as provided in Rule
35(b) or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions
(b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to
discovery obtained under subdivision (b)(4)(A)(ii) of this rule the
court may require, and with respect to discovery obtained under
subdivision (b)(4)(B) of this rule the court shall require, the party
seeking discovery to pay the other party a fair portion of the fees and
expenses reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(c) Protective Orders. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in which
the action is pending or alternatively, on matters relating to a
deposition, the court in the district where the deposition is to be
taken may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (1) that the discovery
not be had; (2) that the discovery may be had only on specified terms
and conditions, including a designation of the time or place; (3) that
the discovery may be had only by a method of discovery other than that
selected by the party seeking discovery; (4) that certain matters not
be inquired into, or that the scope of the discovery be limited to
certain matters; (5) that discovery be conducted with no one present
except persons designated by the court; (6) that a deposition after
being sealed be opened only by order of the court; (7) that a trade
secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
court.
If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just, order that any
party or person provide or permit discovery. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion,
for the convenience of parties and witnesses and in the interests of
justice, orders otherwise, methods of discovery may be used in any
sequence and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party's
discovery.
(e) Supplementation of Responses. A party who has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement the response to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response
with respect to any question directly addressed to (A) the identity and
location of persons having knowledge of discoverable matters, and (B)
the identity of each person expected to be called as an expert witness
at trial, the subject matter on which the person is expected to testify,
and the substance of the person's testimony.
(2) A party is under a duty seasonably to amend a prior response if
the party obtains information upon the basis of which (A) the party
knows that the response was incorrect when made, or (B) the party knows
that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses.
(f) Discovery Conference. At any time after commencement of an
action the court may direct the attorneys for the parties to appear
before it for a conference on the subject of discovery. The court shall
do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made
a reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion. Each party and each party's attorney
are under a duty to participate in good faith in the framing of a
discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or
additions to matters set forth in the motion shall be served not later
than 10 days after service of the motion.
Following the discovery conference, the court shall enter an order
tentatively identifying the issues for discovery purposes, establishing
a plan and schedule for discovery, setting limitations on discovery, if
any; and determining such other matters, including the allocation of
expenses, as are necessary for the proper management of discovery in the
action. An order may be altered or amended whenever justice so
requires.
Subject to the right of a party who properly moves for a discovery
conference to prompt convening of the conference, the court may combine
the discovery conference with a pretrial conference authorized by Rule
16.
(g) Signing of Discovery Requests, Responses, and Objections. Every
request for discovery or response or objection thereto made by a party
represented by an attorney shall be signed by at least one attorney of
record in the attorney's individual name, whose address shall be stated.
A party who is not represented by an attorney shall sign the request,
response, or objection and state the party's address. The signature of
the attorney or party constitutes a certification that the signer has
read the request, response, or objection, and that to the best of the
signer's knowledge, information, and belief formed after a reasonable
inquiry it is: (1) consistent with these rules and warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law; (2) not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation; and (3) not unreasonable or unduly
burdensome or expensive, given the needs of the case, the discovery
already had in the case, the amount in controversy, and the importance
of the issues at stake in the litigation. If a request, response, or
objection is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the party
making the request, response, or objection, and a party shall not be
obligated to take any action with respect to it until it is signed.
If a certification is made in violation of the rule, the court, upon
motion or upon its own initiative, shall impose upon the person who made
the certification, the party on whose behalf the request, response, or
objection is made, or both, an appropriate sanction, which may include
an order to pay the amount of the reasonable expenses incurred because
of the violation, including a reasonable attorney's fee.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff.
July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff.
Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987.)
Note to Subdivision (a). This rule freely authorizes the taking of
depositions under the same circumstances and by the same methods whether
for the purpose of discovery or for the purpose of obtaining evidence.
Many states have adopted this practice on account of its simplicity and
effectiveness, safeguarding it by imposing such restrictions upon the
subsequent use of the deposition at the trial or hearing as are deemed
advisable. See Ark.Civ.Code (Crawford, 1934) 606-607; Calif.Code
Civ.Proc. (Deering, 1937) 2021; 1 Colo.Stat.Ann. (1935) Code Civ.Proc.
376; Idaho Code Ann. (1932) 16-906; Ill. Rules of Pract., Rule 19
(Ill.Rev.Stat. (1937) ch. 110, 259.19); Ill.Rev.Stat. (1937) ch. 51,
24; 2 Ind.Stat.Ann. (Burns, 1933) 2-1501, 2-1506; Ky.Codes (Carroll,
1932) Civ.Pract. 557; 1 Mo.Rev.Stat. (1929) 1753; 4 Mont.Rev.Codes
Ann. (1935) 10645; Neb.Comp.Stat. (1929) ch. 20, 1246-7; 4
Nev.Comp.Laws (Hillyer, 1929) 9001; 2 N.H.Pub.Laws (1926) ch. 337,
1; N.C.Code Ann. (1935) 1809; 2 N.D.Comp.Laws Ann. (1913)
7889-7897; 2 Ohio Gen.Code Ann. (Page, 1926) 11525-6; 1 Ore.Code
Ann. (1930) Title 9, 1503; 1 S.D.Comp.Laws (1929) 2713-16;
Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann.
(1933) 104-51-7; Wash. Rules of Practice adopted by the Supreme Ct.,
Rule 8, 2 Wash.Rev.Stat.Ann. (Remington, 1932) 308-8; W.Va.Code (1931)
ch. 57, art. 4, 1. Compare (former) Equity Rules 47 (Depositions --
To be Taken in Exceptional Instances); 54 (Depositions Under Revised
Statutes, Sections 863, 865, 866, 867 -- Cross-Examination); 58
(Discovery -- Interrogatories -- Inspection and Production of Documents
-- Admission of Execution or Genuineness).
This and subsequent rules incorporate, modify, and broaden the
provisions for depositions under U.S.C., Title 28, (former) 639
(Depositions de bene esse; when and where taken; notice), 640 (Same;
mode of taking), 641 (Same; transmission to court), 644 (Depositions
under dedimus potestatem and in perpetuam), 646 (Deposition under
dedimus potestatem; how taken). These statutes are superseded insofar
as they differ from this and subsequent rules. U.S.C., Title 28,
(former) 643 (Depositions; taken in mode prescribed by State laws) is
superseded by the third sentence of Subdivision (a).
While a number of states permit discovery only from parties or their
agents, others either make no distinction between parties or agents of
parties and ordinary witnesses, or authorize the taking of ordinary
depositions, without restriction, from any persons who have knowledge of
relevant facts. See Ark.Civ.Code (Crawford, 1934) 606-607; 1 Idaho
Code Ann. (1932) 16-906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat.
(1937) ch. 110, 259.19); Ill.Rev.Stat. (1937) ch. 51, 24; 2
Ind.Stat.Ann. (Burns, 1933) 2-1501; Ky.Codes (Carroll, 1932)
Civ.Pract. 554-558; 2 Md.Ann.Code (Bagby, 1924) Art. 35, 21; 2
Minn.Stat. (Mason, 1927) 9820; 1 Mo.Rev.Stat. (1929) 1753, 1759;
Neb.Comp.Stat. (1929) ch. 20, 1246-7; 2 N.H.Pub.Laws (1926) ch.
337, 1; 2 N.D.Comp.Laws Ann. (1913) 7897; 2 Ohio Gen.Code Ann.
(Page, 1926) 11525-6; 1 S.D.Comp.Laws (1929) 2713-16; Tex.Stat.
(Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933)
104-51-7; Wash. Rules of Practice adopted by Supreme Ct., Rule 8, 2
Wash.Rev.Stat.Ann. (Remington, 1932) 308-8; W.Va.Code (1931) ch. 57,
art. 4, 1.
The more common practice in the United States is to take depositions
on notice by the party desiring them, without any order from the court,
and this has been followed in these rules. See Calif.Code Civ.Proc.
(Deering 1937) 2031; 2 Fla.Comp.Gen.Laws Ann. (1927) 4405-7; 1
Idaho Code Ann. (1932) 16-902; Ill. Rules of Pract., Rule 19
(Ill.Rev.Stat. (1937) ch. 110, 25919); Ill.Rev.Stat. (1937) ch. 51,
24; 2 Ind.Stat.Ann. (Burns, 1933) 2-1502; Kan.Gen.Stat.Ann. (1935)
60-2827; Ky.Codes (Carroll, 1932) Civ.Pract. 565; 2 Minn.Stat.
(Mason, 1927) 9820; 1 Mo.Rev.Stat. (1929) 1761; 4 Mont.Rev.Codes
Ann. (1935) 10651; Nev.Comp.Laws (Hillyer, 1929) 9002; N.C.Code Ann.
(1935) 1809; 2 N.D.Comp.Laws Ann. (1913) 7895; Utah Rev.Stat.Ann.
(1933) 104-51-8.
Note to Subdivision (b). While the old chancery practice limited
discovery to facts supporting the case of the party seeking it, this
limitation has been largely abandoned by modern legislation. See
Ala.Code Ann. (Michie, 1928) 7764-7773; 2 Ind.Stat.Ann. (Burns, 1933)
2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935) 11185; Ky.Codes
(Carroll, 1932) Civ.Pract. 557, 606 (8); La.Code Pract. (Dart, 1932)
arts. 347-356; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, 61-67; 1
Mo.Rev.Stat. (1929) 1753, 1759; Neb.Comp.Stat. (1929) 20-1246,
20-1247; 2 N.H.Pub.Laws (1926) ch. 337, 1; 2 Ohio Gen.Code Ann.
(Page, 1926) 11497, 11526; Tex.Stat. (Vernon, 1928) arts. 3738,
3753, 3769; Wis.Stat. (1935) 326.12; Ontario Consol.Rules of Pract.
(1928) Rules 237-347; Quebec Code of Civ.Proc. (Curran, 1922)
286-290.
Note to Subdivisions (d), (e), and (f). The restrictions here placed
upon the use of depositions at the trial or hearing are substantially
the same as those provided in U.S.C., Title 28, (former) 641, for
depositions taken, de bene esse, with the additional provision that any
deposition may be used when the court finds the existence of exceptional
circumstances. Compare English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 37, r. 18 (with additional provision
permitting use of deposition by consent of the parties). See also
(former) Equity Rule 64 (Former Depositions, Etc., May be Used Before
Master); and 2 Minn. Stat. (Mason, 1927) 9835 (Use in a subsequent
action of a deposition filed in a previously dismissed action between
the same parties and involving the same subject matter).
Note. Subdivision (a). The amendment eliminates the requirement of
leave of court for the taking of a deposition except where a plaintiff
seeks to take a deposition within 20 days after the commencement of the
action. The retention of the requirement where a deposition is sought
by a plaintiff within 20 days of the commencement of the action protects
a defendant who has not had an opportunity to retain counsel and inform
himself as to the nature of the suit; the plaintiff, of course, needs
no such protection. The present rule forbids the plaintiff to take a
deposition, without leave of court, before the answer is served.
Sometimes the defendant delays the serving of an answer for more than 20
days, but as 20 days are sufficient time for him to obtain a lawyer,
there is no reason to forbid the plaintiff to take a deposition without
leave merely because the answer has not been served. In all cases, Rule
30(a) empowers the court, for cause shown, to alter the time of the
taking of a deposition, and Rule 30(b) contains provisions giving ample
protection to persons who are unreasonably pressed. The modified
practice here adopted is along the line of that followed in various
states. See, e.g., 8 Mo.Rev.Stat.Ann., 1939, 1917; 2 Burns'
Ind.Stat.Ann., 1933, 2-1506.
Subdivision (b). The amendments to subdivision (b) make clear the
broad scope of examination and that it may cover not only evidence for
use at the trial but also inquiry into matters in themselves
inadmissible as evidence but which will lead to the discovery of such
evidence. The purpose of discovery is to allow a broad search for
facts, the names of witnesses, or any other matters which may aid a
party in the preparation or presentation of his case. Engl v. Aetna
Life Ins. Co., C.C.A.2d, 1943, 139 F.2d 469; Mahler v. Pennsylvania
R. Co., E.D.N.Y. 1945, 8 Fed.Rules Serv. 33,351, Case 1. In such a
preliminary inquiry admissibility at trial should not be the test as to
whether the information sought is within the scope of proper
examination. Such a standard unnecessarily curtails the utility of
discovery practice. Of course, matters entirely without bearing either
as direct evidence or as leads to evidence are not within the scope of
inquiry, but to the extent that the examination develops useful
information, it functions successfully as an instrument of discovery,
even if it produces no testimony directly admissible. Lewis v. United
Air Lines Transportation Corp., D.Conn. 1939, 27 F.Supp. 946; Engl v.
Aetna Life Ins. Co., supra; Mahler v. Pennsylvania R. Co., supra;
Bloomer v. Sirian Lamp Co., D.Del. 1944, 8 Fed.Rules Serv. 26b.31,
Case 3; Rousseau v. Langley, S.D.N.Y. 1945, 9 Fed.Rules Serv. 34.41,
Case 1 (Rule 26 contemplates ''examinations not merely for the narrow
purpose of adducing testimony which may be offered in evidence but also
for the broad discovery of information which may be useful in
preparation for trial.''); Olson Transportation Co. v. Socony-Vacuum
Co., E.D.Wis. 1944, 8 Fed.Rules Serv. 34.41, Case 2 (''. . . the Rules .
. . permit 'fishing' for evidence as they should.''); Note, 1945, 45
Col.L.Rev. 482. Thus hearsay, while inadmissible itself, may suggest
testimony which properly may be proved. Under Rule 26 (b) several
cases, however, have erroneously limited discovery on the basis of
admissibility, holding that the word ''relevant'' in effect meant
''material and competent under the rules of evidence''. Poppino v.
Jones Store Co., W.D.Mo. 1940, 1 F.R.D. 215, 3 Fed.Rules Serv. 26b.5,
Case 1; Benevento v. A. & P. Food Stores, Inc., E.D.N.Y. 1939, 26
F.Supp. 424. Thus it has been said that inquiry might not be made into
statements or other matters which, when disclosed, amounted only to
hearsay. See Maryland for use of Montvila v. Pan-American Bus Lines,
Inc., D.Md. 1940, 1 F.R.D. 213, 3 Fed.Rules Serv. 26b.211, Case 3;
Gitto v. ''Italia,'' Societa Anonima Di Navigazione, E.D.N.Y. 1940, 31
F.Supp. 567; Rose Silk Mills, Inc. v. Insurance Co. of North America,
S.D.N.Y. 1939, 29 F.Supp. 504; Colpak v. Hetterick, E.D.N.Y. 1941, 40
F.Supp. 350; Matthies v. Peter F. Connolly Co., E.D.N.Y. 1941, 6
Fed.Rules Serv. 30a.22, Case 1, 2 F.R.D. 277; Matter of Examination of
Citizens Casualty Co. of New York S.D.N.Y. 1942, 3 F.R.D. 171, 7
Fed.Rules Serv. 26b.211, Case 1; United States v. Silliman, D.C.N.J.
1944 8 Fed.Rules Serv. 26b.52, Case 1. The contrary and better view,
however, has often been stated. See e.g., Engl v. Aetna Life Ins.
Co., supra; Stevenson v. Melady, S.D.N.Y. 1940, 3 Fed.Rules Serv.
26b.31, Case 1, 1 F.R.D. 329; Lewis v. United Air Lines Transport
Corp., supra; Application of Zenith Radio Corp., E.D.Pa. 1941, 4
Fed.Rules Serv. 30b. 21, Case 1, 1 F.R.D. 627; Steingut v. Guaranty
Trust Co. of New York, S.D.N.Y. 1941, 1 F.R.D. 723, 4 Fed.Rules Serv.
26b.5. Case 2: DeSeversky v. Republic Aviation Corp, E.D.N.Y. 1941, 2
F.R.D. 183, 5 Fed.Rules Serv. 26b.31, Case 5; Moore v. George A.
Hormel & Co., S.D.N.Y. 1942, 6 Fed.Rules Serv. 30b.41, Case 1, 2 F.R.D.
340; Hercules Powder Co. v. Rohm & Haas Co., D.Del. 1943, 7 Fed.Rules
Serv. 45b.311, Case 2, 3 F.R.D. 302; Bloomer v. Sirian Lamp Co.,
supra; Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore,
Inc., D.Mass. 1944, 8 Fed.Rules Serv. 26b.31, Case 1; Patterson Oil
Terminals, Inc. v. Charles Kurz & Co., Inc., E.D.Pa. 1945, 9 Fed.Rules
Serv. 33.321, Case 2; Pueblo Trading Co. v. Reclamation Dist. No.
1500, N.D.Cal. 1945, 9 Fed.Rules Serv. 33.321, Case 4, 4 F.R.D. 471. See
also discussion as to the broad scope of discovery in Hoffman v.
Palmer, C.C.A.2d, 1942, 129 F.2d 976, 995-997, aff'd on other grounds,
1942, 318 U.S. 109, 63 S.Ct. 477; Note, 1945, 45 Col.L.Rev. 482.
This amendment conforms to the amendment of Rule 28(b). See the
next-to-last paragraph of the Advisory Committee's Note to that
amendment.
The requirement that the plaintiff obtain leave of court in order to
serve notice of taking of a deposition within 20 days after commencement
of the action gives rises to difficulties when the prospective deponent
is about to become unavailable for examination. The problem is not
confined to admiralty, but has been of special concern in that context
because of the mobility of vessels and their personnel. When Rule 26
was adopted as Admiralty Rule 30A in 1961, the problem was alleviated by
permitting depositions de bene esse, for which leave of court is not
required. See Advisory Committee's Note to Admiralty Rule 30A (1961).
A continuing study is being made in the effort to devise a
modification of the 20-day rule appropriate to both the civil and
admiralty practice to the end that Rule 26(a) shall state a uniform rule
applicable alike to what are now civil actions and suits in admiralty.
Meanwhile, the exigencies of maritime litigation require preservation,
for the time being at least, of the traditional de bene esse procedure
for the post-unification counterpart of the present suit in admiralty.
Accordingly, the amendment provides for continued availability of that
procedure in admiralty and maritime claims within the meaning of Rule
9(h).
A limited rearrangement of the discovery rules is made, whereby
certain rule provisions are transferred, as follows: Existing Rule
26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c) is
transferred to Rule 30(c). Existing Rules 26(d), (e), and (f) are
transferred to Rule 32. Revisions of the transferred provisions, if
any, are discussed in the notes appended to Rules 30, 31, and 32. In
addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this
rearrangement is to establish Rule 26 as a rule governing discovery in
general. (The reasons are set out in the Advisory Committee's
explanatory statement.)
Subdivision (a) -- Discovery Devices. This is a new subdivision
listing all of the discovery devices provided in the discovery rules and
establishing the relationship between the general provisions of Rule 26
and the specific rules for particular discovery devices. The provision
that the frequency of use of these methods is not limited confirms
existing law. It incorporates in general form a provision now found in
Rule 33.
Subdivision (b) -- Scope of Discovery. This subdivision is recast to
cover the scope of discovery generally. It regulates the discovery
obtainable through any of the discovery devices listed in Rule 26(a).
All provisions as to scope of discovery are subject to the initial
qualification that the court may limit discovery in accordance with
these rules. Rule 26(c) (transferred from 30(b)) confers broad powers
on the courts to regulate or prevent discovery even though the materials
sought are within the scope of 26(b), and these powers have always been
freely exercised. For example, a party's income tax return is generally
held not privileged, 2A Barron & Holtzoff, Federal Practice and
Procedure, 65.2 (Wright ed. 1961), and yet courts have recognized that
interests in privacy may call for a measure of extra protection. E.g.,
Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y. 1964).
Similarly, the courts have in appropriate circumstances protected
materials that are primarily of an impeaching character. These two
types of materials merely illustrate the many situations, not capable of
governance by precise rule, in which courts must exercise judgment. The
new subsections in Rule 26(d) do not change existing law with respect to
such situations.
Subdivision (b)(1) -- In General. The language is changed to provide
for the scope of discovery in general terms. The existing subdivision,
although in terms applicable only to depositions, is incorporated by
reference in existing Rules 33 and 34. Since decisions as to relevance
to the subject matter of the action are made for discovery purposes well
in advance of trial, a flexible treatment of relevance is required and
the making of discovery, whether voluntary or under court order, is not
a concession or determination of relevance for purposes of trial. Cf. 4
Moore's Federal Practice 26-16(1) (2d ed. 1966).
Subdivision (b)(2) -- Insurance Policies. Both cases and
commentators are sharply in conflict on the question whether defendant's
liability insurance coverage is subject to discovery in the usual
situation when the insurance coverage is not itself admissible and does
not bear on another issue on the case. Examples of Federal cases
requiring disclosure and supporting comments: Cook v. Welty, 253
F.Supp. 875 (D.D.C. 1966) (cases cited); Johanek v. Aberle, 27 F.R.D.
272 (D.Mont. 1961); Williams, Discovery of Dollar Limits in Liability
Policies in Automobile Tort Cases, 10 Ala.L.Rev. 355 (1958); Thode,
Some Reflections on the 1957 Amendments to the Texas Rules, 37
Tex.L.Rev. 33, 40-42 (1958). Examples of Federal cases refusing
disclosure and supporting comments: Bisserier v. Manning, 207 F.Supp.
476 (D.N.J. 1962); Cooper v. Stender, 30 F.R.D. 389 (E.D.Tenn. 1962);
Frank, Discovery and Insurance Coverage, 1959 Ins.L.J. 281; Fournier,
Pre-Trial Discovery of Insurance Coverage and Limits, 28 Ford L.Rev. 215
(1959).
The division in reported cases is close. State decisions based on
provisions similar to the federal rules are similarly divided. See
cases collected in 2A Barron & Holtzoff, Federal Practice and Procedure
647.1, nn. 45.5, 45.6 (Wright ed. 1961). It appears to be difficult if
not impossible to obtain appellate review of the issue. Resolution by
rule amendment is indicated. The question is essentially procedural in
that it bears upon preparation for trial and settlement before trial,
and courts confronting the question, however, they have decided it, have
generally treated it as procedural and governed by the rules.
The amendment resolves this issue in favor of disclosure. Most of
the decisions denying discovery, some explicitly, reason from the text
of Rule 26(b) that it permits discovery only of matters which will be
admissible in evidence or appear reasonably calculated to lead to such
evidence; they avoid considerations of policy, regarding them as
foreclosed. See Bisserier v. Manning, supra. Some note also that
facts about a defendant's financial status are not discoverable as such,
prior to judgment with execution unsatisfied, and fear that, if courts
hold insurance coverage discoverable, they must extend the principle to
other aspects of the defendant's financial status. The cases favoring
disclosure rely heavily on the practical significance of insurance in
the decisions lawyers make about settlement and trial preparation. In
Clauss v. Danker, 264 F.Supp. 246 (S.D.N.Y. 1967), the court held that
the rules forbid disclosure but called for an amendment to permit it.
Disclosure of insurance coverage will enable counsel for both sides
to make the same realistic appraisal of the case, so that settlement and
litigation strategy are based on knowledge and not speculation. It will
conduce to settlement and avoid protracted litigation in some cases,
though in others it may have an opposite effect. The amendment is
limited to insurance coverage, which should be distinguished from any
other facts concerning defendant's financial status (1) because
insurance is an asset created specifically to satisfy the claim; (2)
because the insurance company ordinarily controls the litigation; (3)
because information about coverage is available only from defendant or
his insurer; and (4) because disclosure does not involve a significant
invasion of privacy.
Disclosure is required when the insurer ''may be liable'' on part or
all of the judgment. Thus, an insurance company must disclose even when
it contests liability under the policy, and such disclosure does not
constitute a waiver of its claim. It is immaterial whether the
liability is to satisfy the judgment directly or merely to indemnify or
reimburse another after he pays the judgment.
The provision applies only to persons ''carrying on an insurance
business'' and thus covers insurance companies and not the ordinary
business concern that enters into a contract of indemnification. Cf.
N.Y.Ins. Law 41. Thus, the provision makes no change in existing law
on discovery of indemnity agreements other than insurance agreements by
persons carrying on an insurance business. Similarly, the provision
does not cover the business concern that creates a reserve fund for
purposes of self-insurance.
For some purposes other than discovery, an application for insurance
is treated as a part of the insurance agreement. The provision makes
clear that, for discovery purposes, the application is not to be so
treated. The insurance application may contain personal and financial
information concerning the insured, discovery of which is beyond the
purpose of this provision.
In no instance does disclosure make the facts concerning insurance
coverage admissible in evidence.
Subdivision (b)(3) -- Trial Preparation: Materials. Some of the most
controversial and vexing problems to emerge from the discovery rules
have arisen out of requests for the production of documents or things
prepared in anticipation of litigation or for trial. The existing rules
make no explicit provision for such materials. Yet, two verbally
distinct doctrines have developed, each conferring a qualified immunity
on these materials -- the ''good cause'' requirement in Rule 34 (now
generally held applicable to discovery of documents via deposition under
Rule 45 and interrogatories under Rule 33) and the work-product doctrine
of Hickman v. Taylor, 329 U.S. 495 (1947). Both demand a showing of
justification before production can be had, the one of ''good cause''
and the other variously described in the Hickman case: ''necessity or
justification,'' ''denial * * * would unduly prejudice the preparation
of petitioner's case,'' or ''cause hardship or injustice'' 329 U.S. at
509-510.
In deciding the Hickman case, the Supreme Court appears to have
expressed a preference in 1947 for an approach to the problem of trial
preparation materials by judicial decision rather than by rule.
Sufficient experience has accumulated, however, with lower court
applications of the Hickman decision to warrant a reappraisal.
The major difficulties visible in the existing case law are (1)
confusion and disagreement as to whether ''good cause'' is made out by a
showing of relevance and lack of privilege, or requires an additional
showing of necessity, (2) confusion and disagreement as to the scope of
the Hickman work-product doctrine, particularly whether it extends
beyond work actually performed by lawyers, and (3) the resulting
difficulty of relating the ''good cause'' required by Rule 34 and the
''necessity or justification'' of the work-product doctrine, so that
their respective roles and the distinctions between them are understood.
Basic Standard. Since Rule 34 in terms requires a showing of ''good
cause'' for the production of all documents and things, whether or not
trial preparation is involved, courts have felt that a single formula is
called for and have differed over whether a showing of relevance and
lack of privilege is enough or whether more must be shown. When the
facts of the cases are studied, however, a distinction emerges based
upon the type of materials. With respect to documents not obtained or
prepared with an eye to litigation, the decisions, while not uniform,
reflect a strong and increasing tendency to relate ''good cause'' to a
showing that the documents are relevant to the subject matter of the
action. E.g., Connecticut Mutual Life Ins. Co. v. Shields, 17 F.R.D.
273 (S.D.N.Y. 1959), with cases cited; Houdry Process Corp. v.
Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y. 1955); see Bell
v. Commercial Ins. Co., 280 F.2d 514, 517 (3d Cir. 1960). When the
party whose documents are sought shows that the request for production
is unduly burdensome or oppressive, courts have denied discovery for
lack of ''good cause'', although they might just as easily have based
their decision on the protective provisions of existing Rule 30(b) (new
Rule 26(c)). E.g., Lauer v. Tankrederi, 39 F.R.D. 334 (E.D.Pa. 1966).
As to trial-preparation materials, however, the courts are
increasingly interpreting ''good cause'' as requiring more than
relevance. When lawyers have prepared or obtained the materials for
trial, all courts require more than relevance; so much is clearly
commanded by Hickman. But even as to the preparatory work of
nonlawyers, while some courts ignore work-product and equate ''good
cause'' with relevance, e.g., Brown v. New York, N.H. & H. RR., 17
F.R.D. 324 (S.D.N.Y. 1955), the more recent trend is to read ''good
cause'' as requiring inquiry into the importance of and need for the
materials as well as into alternative sources for securing the same
information. In Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th
Cir. 1962), statements of witnesses obtained by claim agents were held
not discoverable because both parties had had equal access to the
witnesses at about the same time, shortly after the collision in
question. The decision was based solely on Rule 34 and ''good cause'';
the court declined to rule on whether the statements were work-product.
The court's treatment of ''good cause'' is quoted at length and with
approval in Schlagenhauf v. Holder, 379 U.S. 104, 117-118 (1964). See
also Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958); Hauger v.
Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir. 1954); Burke v.
United States, 32 F.R.D. 213 (E.D.N.Y. 1963). While the opinions dealing
with ''good cause'' do not often draw an explicit distinction between
trial preparation materials and other materials, in fact an overwhelming
proportion of the cases in which special showing is required are cases
involving trial preparation materials.
The rules are amended by eliminating the general requirement of
''good cause'' from Rule 34 but retaining a requirement of a special
showing for trial preparation materials in this subdivision. The
required showing is expressed, not in terms of ''good cause'' whose
generality has tended to encourage confusion and controversy, but in
terms of the elements of the special showing to be made: substantial
need of the materials in the preparation of the case and inability
without undue hardship to obtain the substantial equivalent of the
materials by other means.
These changes conform to the holdings of the cases, when viewed in
light of their facts. Apart from trial preparation, the fact that the
materials sought are documentary does not in and of itself require a
special showing beyond relevance and absence of privilege. The
protective provisions are of course available, and if the party from
whom production is sought raises a special issue of privacy (as with
respect to income tax returns or grand jury minutes) or points to
evidence primarily impeaching, or can show serious burden or expense,
the court will exercise its traditional power to decide whether to issue
a protective order. On the other hand, the requirement of a special
showing for discovery of trial preparation materials reflects the view
that each side's informal evaluation of its case should be protected,
that each side should be encouraged to prepare independently, and that
one side should not automatically have the benefit of the detailed
preparatory work of the other side. See Field and McKusick, Maine Civil
Practice 264 (1959).
Elimination of a ''good cause'' requirement from Rule 34 and the
establishment of a requirement of a special showing in this subdivision
will eliminate the confusion caused by having two verbally distinct
requirements of justification that the courts have been unable to
distinguish clearly. Moreover, the language of the subdivision suggests
the factors which the courts should consider in determining whether the
requisite showing has been made. The importance of the materials sought
to the party seeking them in preparation of his case and the difficulty
he will have obtaining them by other means are factors noted in the
Hickman case. The courts should also consider the likelihood that the
party, even if he obtains the information by independent means, will not
have the substantial equivalent of the documents the production of which
he seeks.
Consideration of these factors may well lead the court to distinguish
between witness statements taken by an investigator, on the one hand,
and other parts of the investigative file, on the other. The court in
Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir. 1968), while it
naturally addressed itself to the ''good cause'' requirements of Rule
34, set forth as controlling considerations the factors contained in the
language of this subdivision. The analysis of the court suggests
circumstances under which witness statements will be discoverable. The
witness may have given a fresh and contemporaneous account in a written
statement while he is available to the party seeking discovery only a
substantial time thereafter. Lanham, supra at 127-128; Guilford, supra
at 926. Or he may be reluctant or hostile. Lanham, supra at 128-129;
Brookshire v. Pennsylvania RR., 14 F.R.D. 154 (N.D.Ohio 1953); Diamond
v. Mohawk Rubber Co., 33 F.R.D. 264 (D.Colo. 1963). Or he may have a
lapse of memory. Tannenbaum v. Walker, 16 F.R.D. 570 (E.D.Pa. 1954).
Or he may probably be deviating from his prior statement. Cf. Hauger v.
Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir. 1954). On the other
hand, a much stronger showing is needed to obtain evaluative materials
in an investigator's reports. Lanham, supra at 131-133; Pickett v. L.
R. Ryan, Inc., 237 F.Supp. 198 (E.D.S.C. 1965).
Materials assembled in the ordinary course of business, or pursuant
to public requirements unrelated to litigation, or for other
nonlitigation purposes are not under the qualified immunity provided by
this subdivision. Gossman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir.
1963); cf. United States v. New York Foreign Trade Zone Operators,
Inc., 304 F.2d 792 (2d Cir. 1962). No change is made in the existing
doctrine, noted in the Hickman case, that one party may discover
relevant facts known or available to the other party, even though such
facts are contained in a document which is not itself discoverable.
Treatment of Lawyers; Special Protection of Mental Impressions,
Conclusions, Opinions, and Legal Theories Concerning the Litigation. --
The courts are divided as to whether the work-product doctrine extends
to the preparatory work only of lawyers. The Hickman case left this
issue open since the statements in that case were taken by a lawyer. As
to courts of appeals, compare Alltmont v. United States, 177 F.2d 971,
976 (3d Cir. 1949), cert. denied, 339 U.S. 967 (1950) (Hickman applied
to statements obtained by FBI agents on theory it should apply to ''all
statements of prospective witnesses which a party has obtained for his
trial counsel's use''), with Southern Ry. v. Campbell, 309 F.2d 569
(5th Cir. 1962) (statements taken by claim agents not work-product), and
Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962)
(avoiding issue of work-product as to claim agents, deciding case
instead under Rule 34 ''good cause''). Similarly, the district courts
are divided on statements obtained by claim agents, compare, e.g., Brown
v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955) with Hanke
v. Milwaukee Electric Ry. & Transp. Co., 7 F.R.D. 540 (E.D. Wis.
1947); investigators, compare Burke v. United States, 32 F.R.D. 213
(E.D.N.Y.1963) with Snyder v. United States, 20 F.R.D. 7
(E.D.N.Y.1956); and insurers, compare Gottlieb v. Bresler, 24 F.R.D.
371 (D.D.C.1959) with Burns v. Mulder, 20 F.R.D. 605 (ED.Pa 1957). See
4 Moore's Federal Practice 26.23 (8.1) (2d ed. 1966); 2A Barron &
Holtzoff, Federal Practice and Procedure 652.2 (Wright ed. 1961).
A complication is introduced by the use made by courts of the ''good
cause'' requirement of Rule 34, as described above. A court may
conclude that trial preparation materials are not work-product because
not the result of lawyer's work and yet hold that they are not
producible because ''good cause'' has not been shown. Cf. Guilford
Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962), cited and
described above. When the decisions on ''good cause'' are taken into
account, the weight of authority affords protection of the preparatory
work of both lawyers and nonlawyers (though not necessarily to the same
extent) by requiring more than a showing of relevance to secure
production.
Subdivision (b)(3) reflects the trend of the cases by requiring a
special showing, not merely as to materials prepared by an attorney, but
also as to materials prepared in anticipation of litigation or
preparation for trial by or for a party or any representative acting on
his behalf. The subdivision then goes on to protect against disclosure
the mental impressions, conclusions, opinions, or legal theories
concerning the litigation of an attorney or other representative of a
party. The Hickman opinion drew special attention to the need for
protecting an attorney against discovery of memoranda prepared from
recollection of oral interviews. The courts have steadfastly
safeguarded against disclosure of lawyers' mental impressions and legal
theories, as well as mental impressions and subjective evaluations of
investigators and claim-agents. In enforcing this provision of the
subdivision, the courts will sometimes find it necessary to order
disclosure of a document but with portions deleted.
Rules 33 and 36 have been revised in order to permit discovery
calling for opinions, contentions, and admissions relating not only to
fact but also to the application of law to fact. Under those rules, a
party and his attorney or other representative may be required to
disclose, to some extent, mental impressions, opinions, or conclusions.
But documents or parts of documents containing these matters are
protected against discovery by this subdivision. Even though a party
may ultimately have to disclose in response to interrogatories or
requests to admit, he is entitled to keep confidential documents
containing such matters prepared for internal use.
Party's Right to Own Statement. -- An exception to the requirement of
this subdivision enables a party to secure production of his own
statement without any special showing. The cases are divided. Compare,
e.g., Safeway Stores, Inc. v. Reynolds, 176 F.2d 476 (D.C. Cir. 1949);
Shupe v. Pennsylvania RR., 19 F.R.D. 144 (W.D.Pa. 1956); with e.g.,
New York Central RR. v. Carr, 251 F.2d 433 (4th Cir. 1957); Belback
v. Wilson Freight Forwarding Co., 40 F.R.D. 16 (W.D.Pa. 1966).
Courts which treat a party's statement as though it were that of any
witness overlook the fact that the party's statement is, without more,
admissible in evidence. Ordinarily, a party gives a statement without
insisting on a copy because he does not yet have a lawyer and does not
understand the legal consequences of his actions. Thus, the statement
is given at a time when he functions at a disadvantage. Discrepancies
between his trial testimony and earlier statement may result from lapse
of memory or ordinary inaccuracy; a written statement produced for the
first time at trial may give such discrepancies a prominence which they
do not deserve. In appropriate cases the court may order a party to be
deposed before his statement is produced. E.g., Smith v. Central Linen
Service Co., 39 F.R.D. 15 (D.Md. 1966); McCoy v. General Motors Corp.,
33 F.R.D. 354 (W.D.Pa. 1963).
Commentators strongly support the view that a party be able to secure
his statement without a showing. 4 Moore's Federal Practice 26.23
(8.4) (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and
Procedure 652.3 (Wright ed. 1961); see also Note, Developments in the
Law -- Discovery, 74 Harv.L.Rev. 940, 1039 (1961). The following states
have by statute or rule taken the same position: Statutes:
Fla.Stat.Ann. 92.33; Ga.Code Ann. 38-2109(b); La.Stat.Ann.R.S.
13:3732; Mass.Gen.Laws Ann. c. 271, 44; Minn.Stat.Ann. 602.01;
N.Y.C.P.L.R. 3101(e). Rules: Mo.R.C.P. 56.01(a); N.Dak.R.C.P. 34(b);
Wyo.R.C.P. 34(b); cf. Mich.G.C.R. 306.2.
In order to clarify and tighten the provision on statements by a
party, the term ''statement'' is defined. The definition is adapted
from 18 U.S.C. 3500(e) (Jencks Act). The statement of a party may of
course be that of plaintiff or defendant, and it may be that of an
individual or of a corporation or other organization.
Witness' Right to Own Statement. -- A second exception to the
requirement of this subdivision permits a nonparty witness to obtain a
copy of his own statement without any special showing. Many, though not
all, of the considerations supporting a party's right to obtain his
statement apply also to the non-party witness. Insurance companies are
increasingly recognizing that a witness is entitled to a copy of his
statement and are modifying their regular practice accordingly.
Subdivision (b)(4) -- Trial Preparation: Experts. This is a new
provision dealing with discovery of information (including facts and
opinions) obtained by a party from an expert retained by that party in
relation to litigation or obtained by the expert and not yet transmitted
to the party. The subdivision deals separately with those experts whom
the party expects to call as trial witnesses and with those experts who
have been retained or specially employed by the party but who are not
expected to be witnesses. It should be noted that the subdivision does
not address itself to the expert whose information was not acquired in
preparation for trial but rather because he was an actor or viewer with
respect to transactions or occurrences that are part of the subject
matter of the lawsuit. Such an expert should be treated as an ordinary
witness.
Subsection (b)(4)(A) deals with discovery of information obtained by
or through experts who will be called as witnesses at trial. The
provision is responsive to problems suggested by a relatively recent
line of authorities. Many of these cases present intricate and
difficult issues as to which expert testimony is likely to be
determinative. Prominent among them are food and drug, patent, and
condemnation cases. See, e.g., United States v. Nysco Laboratories,
Inc., 26 F.R.D. 159, 162 (E.D.N.Y. 1960) (food and drug); E. I. du Pont
de Nemours & Co. v. Phillips Petroleum Co., 24 F.R.D. 416, 421 (D.Del.
1959) (patent); Cold Metal Process Co. v. Aluminum Co. of America, 7
F.R.D. 425 (N.D.Ohio 1947), aff'd. Sachs v. Aluminum Co. of America,
167 F.2d 570 (6th Cir. 1948) (same); United States v. 50.34 Acres of
Land, 13 F.R.D. 19 (E.D.N.Y. 1952) (condemnation).
In cases of this character, a prohibition against discovery of
information held by expert witnesses produces in acute form the very
evils that discovery has been created to prevent. Effective
cross-examination of an expert witness requires advance preparation.
The lawyer even with the help of his own experts frequently cannot
anticipate the particular approach his adversary's expert will take or
the data on which he will base his judgment on the stand. McGlothlin,
Some Practical Problems in Proof of Economic, Scientific, and Technical
Facts, 23 F.R.D. 467, 478 (1958). A California study of discovery and
pretrial in condemnation cases notes that the only substitute for
discovery of experts' valuation materials is ''lengthy -- and often
fruitless -- cross-examination during trial,'' and recommends pretrial
exchange of such material. Calif.Law Rev.Comm'n, Discovery in Eminent
Domain Proceedings 707-710 (Jan.1963). Similarly, effective rebuttal
requires advance knowledge of the line of testimony of the other side.
If the latter is foreclosed by a rule against discovery, then the
narrowing of issues and elimination of surprise which discovery normally
produces are frustrated.
These considerations appear to account for the broadening of
discovery against experts in the cases cited where expert testimony was
central to the case. In some instances, the opinions are explicit in
relating expanded discovery to improved cross-examination and rebuttal
at trial. Franks v. National Dairy Products Corp., 41 F.R.D. 234
(W.D.Tex. 1966); United States v. 23.76 Acres, 32 F.R.D. 593 (D.Md.
1963); see also an unpublished opinion of Judge Hincks, quoted in
United States v. 48 Jars, etc., 23 F.R.D. 192, 198 (D.D.C. 1958). On
the other hand, the need for a new provision is shown by the many cases
in which discovery of expert trial witnesses is needed for effective
cross-examination and rebuttal, and yet courts apply the traditional
doctrine and refuse disclosure. E.g., United States v. Certain Parcels
of Land, 25 F.R.D. 192 (N.D.Cal. 1959); United States v. Certain
Acres, 18 F.R.D. 98 (M.D.Ga. 1955).
Although the trial problems flowing from lack of discovery of expert
witnesses are most acute and noteworthy when the case turns largely on
experts, the same problems are encountered when a single expert
testifies. Thus, subdivision (b)(4)(A) draws no line between complex
and simple cases, or between cases with many experts and those with but
one. It establishes by rule substantially the procedure adopted by
decision of the court in Knighton v. Villian & Fassio, 39 F.R.D. 11
(D.Md. 1965). For a full analysis of the problem and strong
recommendations to the same effect, see Friedenthal, Discovery and Use
of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455, 485-488
(1962); Long, Discovery and Experts under the Federal Rules of Civil
Procedure, 38 F.R.D. 111 (1965).
Past judicial restrictions on discovery of an adversary's expert,
particularly as to his opinions, reflect the fear that one side will
benefit unduly from the other's better preparation. The procedure
established in subsection (b)(4)(A) holds the risk to a minimum.
Discovery is limited to trial witnesses, and may be obtained only at a
time when the parties know who their expert witnesses will be. A party
must as a practical matter prepare his own case in advance of that time,
for he can hardly hope to build his case out of his opponent's experts.
Subdivision (b)(4)(A) provides for discovery of an expert who is to
testify at the trial. A party can require one who intends to use the
expert to state the substance of the testimony that the expert is
expected to give. The court may order further discovery, and it has
ample power to regulate its timing and scope and to prevent abuse.
Ordinarily, the order for further discovery shall compensate the expert
for his time, and may compensate the party who intends to use the expert
for past expenses reasonably incurred in obtaining facts or opinions
from the expert. Those provisions are likely to discourage abusive
practices.
Subdivision (b)(4)(B) deals with an expert who has been retained or
specially employed by the party in anticipation of litigation or
preparation for trial (thus excluding an expert who is simply a general
employee of the party not specially employed on the case), but who is
not expected to be called as a witness. Under its provisions, a party
may discover facts known or opinions held by such an expert only on a
showing of exceptional circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on the same
subject by other means.
Subdivision (b)(4)(B) is concerned only with experts retained or
specially consulted in relation to trial preparation. Thus the
subdivision precludes discovery against experts who were informally
consulted in preparation for trial, but not retained or specially
employed. As an ancillary procedure, a party may on a proper showing
require the other party to name experts retained or specially employed,
but not those informally consulted.
These new provisions of subdivision (b)(4) repudiate the few
decisions that have held an expert's information privileged simply
because of his status as an expert, e.g., American Oil Co. v.
Pennsylvania Petroleum Products Co., 23 F.R.D. 680, 685-686 (D.R.I.
1959). See Louisell, Modern California Discovery 315-316 (1963). They
also reject as ill-considered the decisions which have sought to bring
expert information within the work-product doctrine. See United States
v. McKay, 372 F.2d 174, 176-177 (5th Cir. 1967). The provisions adopt a
form of the more recently developed doctrine of ''unfairness''. See
e.g., United States v. 23.76 Acres of Land, 32 F.R.D. 593, 597 (D.Md.
1963); Louisell, supra, at 317-318; 4 Moore's Federal Practice 26.24
(2d ed. 1966).
Under subdivision (b)(4)(C), the court is directed or authorized to
issue protective orders, including an order that the expert be paid a
reasonable fee for time spent in responding to discovery, and that the
party whose expert is made subject to discovery be paid a fair portion
of the fees and expenses that the party incurred in obtaining
information from the expert. The court may issue the latter order as a
condition of discovery, or it may delay the order until after discovery
is completed. These provisions for fees and expenses meet the objection
that it is unfair to permit one side to obtain without cost the benefit
of an expert's work for which the other side has paid, often a
substantial sum. E.g., Lewis v. United Air Lines Transp. Corp., 32
F.Supp. 21 (W.D.Pa. 1940); Walsh v. Reynolds Metal Co., 15 F.R.D. 376
(D.N.J. 1954). On the other hand, a party may not obtain discovery
simply by offering to pay fees and expenses. Cf. Boynton v. R. J.
Reynolds Tobacco Co., 36 F.Supp. 593 (D.Mass. 1941).
In instances of discovery under subdivision (b)(4)(B), the court is
directed to award fees and expenses to the other party, since the
information is of direct value to the discovering party's preparation of
his case. In ordering discovery under (b)(4)(A)(ii), the court has
discretion whether to award fees and expenses to the other party; its
decision should depend upon whether the discovering party is simply
learning about the other party's case or is going beyond this to develop
his own case. Even in cases where the court is directed to issue a
protective order, it may decline to do so if it finds that manifest
injustice would result. Thus, the court can protect, when necessary and
appropriate, the interests of an indigent party.
Subdivision (c) -- Protective Orders. The provisions of existing
Rule 30(b) are transferred to this subdivision (c), as part of the
rearrangement of Rule 26. The language has been changed to give it
application to discovery generally. The subdivision recognizes the
power of the court in the district where a deposition is being taken to
make protective orders. Such power is needed when the deposition is
being taken far from the court where the action is pending. The court
in the district where the deposition is being taken may, and frequently
will, remit the deponent or party to the court where the action is
pending.
In addition, drafting changes are made to carry out and clarify the
sense of the rule. Insertions are made to avoid any possible
implication that a protective order does not extend to ''time'' as well
as to ''place'' or may not safeguard against ''undue burden or
expense.''
The new reference to trade secrets and other confidential commercial
information reflects existing law. The courts have not given trade
secrets automatic and complete immunity against disclosure, but have in
each case weighed their claim to privacy against the need for
disclosure. Frequently, they have been afforded a limited protection.
See, e.g., Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th
Cir. 1965); Julius M. Ames Co. v. Bostitch, Inc., 235 F.Supp. 856
(S.D.N.Y. 1964).
The subdivision contains new matter relating to sanctions. When a
motion for a protective order is made and the court is disposed to deny
it, the court may go a step further and issue an order to provide or
permit discovery. This will bring the sanctions of Rule 37(b) directly
into play. Since the court has heard the contentions of all interested
persons, an affirmative order is justified. See Rosenberg, Sanctions to
Effectuate Pretrial Discovery, 58 Col.L.Rev. 480, 492-493 (1958). In
addition, the court may require the payment of expenses incurred in
relation to the motion.
Subdivision (d) -- Sequence and Priority. This new provision is
concerned with the sequence in which parties may proceed with discovery
and with related problems of timing. The principal effects of the new
provision are first, to eliminate any fixed priority in the sequence of
discovery, and second, to make clear and explicit the court's power to
establish priority by an order issued in a particular case.
A priority rule developed by some courts, which confers priority on
the party who first serves notice of taking a deposition, is
unsatisfactory in several important respects:
First, this priority rule permits a party to establish a priority
running to all depositions as to which he has given earlier notice.
Since he can on a given day serve notice of taking many depositions he
is in a position to delay his adversary's taking of depositions for an
inordinate time. Some courts have ruled that deposition priority also
permits a party to delay his answers to interrogatories and production
of documents. E.g., E. I. du Pont de Nemours & Co. v. Phillips
Petroleum Co., 23 F.R.D. 237 (D.Del. 1959); but cf. Sturdevant v.
Sears, Roebuck & Co., 32 F.R.D. 426 (W.D.Mo. 1963).
Second, since notice is the key to priority, if both parties wish to
take depositions first a race results. See Caldwell-Clements, Inc. v.
McGraw-Hill Pub. Co., 11 F.R.D. 156 (S.D.N.Y. 1951) (description of
tactics used by parties). But the existing rules on notice of
deposition create a race with runners starting from different positions.
The plaintiff may not give notice without leave of court until 20 days
after commencement of the action, whereas the defendant may serve notice
at any time after commencement. Thus, a careful and prompt defendant
can almost always secure priority. This advantage of defendants is
fortuitous, because the purpose of requiring plaintiff to wait 20 days
is to afford defendant an opportunity to obtain counsel, not to confer
priority.
Third, although courts have ordered a change in the normal sequence
of discovery on a number of occasions, e.g., Kaeppler v. James H.
Matthews & Co., 200 F.Supp. 229 (E.D.Pa. 1961); Park & Tilford
Distillers Corp. v. Distillers Co., 19 F.R.D. 169 (S.D.N.Y. 1956), and
have at all times avowed discretion to vary the usual priority, most
commentators are agreed that courts in fact grant relief only for ''the
most obviously compelling reasons.'' 2A Barron & Holtzoff, Federal
Practice and Procedure 447-47 (Wright ed. 1961); see also Younger,
Priority of Pretrial Examination in the Federal Courts -- A Comment, 34
N.Y.U.L.Rev. 1271 (1959); Freund, The Pleading and Pretrial of an
Antitrust Claim, 46 Corn.L.Q. 555, 564, (1964). Discontent with the
fairness of actual practice has been evinced by other observers.
Comments, 59 Yale L.J. 117, 134-136 (1949); Yudkin, Some Refinements in
Federal Discovery Procedure, 11 Fed.B.J. 289, 296-297 (1951);
Developments in the Law-Discovery, 74 Harv.L.Rev. 940, 954-958 (1961).
Despite these difficulties, some courts have adhered to the priority
rule, presumably because it provides a test which is easily understood
and applied by the parties without much court intervention. It thus
permits deposition discovery to function extrajudicially, which the
rules provide for and the courts desire. For these same reasons, courts
are reluctant to make numerous exceptions to the rule.
The Columbia Survey makes clear that the problem of priority does not
affect litigants generally. It found that most litigants do not move
quickly to obtain discovery. In over half of the cases, both parties
waited at least 50 days. During the first 20 days after commencement of
the action -- the period when defendant might assure his priority by
noticing depositions -- 16 percent of the defendants acted to obtain
discovery. A race could not have occurred in more than 16 percent of
the cases and it undoubtedly occurred in fewer. On the other hand, five
times as many defendants as plaintiffs served notice of deposition
during the first 19 days. To the same effect, see Comment, Tactical Use
and Abuse of Depositions Under the Federal Rules, 59 Yale L.J. 117, 134
(1949).
These findings do not mean, however, that the priority rule is
satisfactory or that a problem of priority does not exist. The court
decisions show that parties do bottle on this issue and carry their
disputes to court. The statistics show that these court cases are not
typical. By the same token, they reveal that more extensive exercise of
judicial discretion to vary the priority will not bring a flood of
litigation, and that a change in the priority rule will in fact affect
only a small fraction of the cases.
It is contended by some that there is no need to alter the existing
priority practice. In support, it is urged that there is no evidence
that injustices in fact result from present practice and that, in any
event, the courts can and do promulgate local rules, as in New York, to
deal with local situations and issue orders to avoid possible injustice
in particular cases.
Subdivision (d) is based on the contrary view that the rule of
priority based on notice is unsatisfactory and unfair in its operation.
Subdivision (d) follows an approach adapted from Civil Rule 4 of the
District Court for the Southern District of New York. That rule
provides that starting 40 days after commencement of the action, unless
otherwise ordered by the court, the fact that one part is taking a
deposition shall not prevent another party from doing so
''concurrently.'' In practice, the depositions are not usually taken
simultaneously; rather, the parties work out arrangements for
alternation in the taking of depositions. One party may take a complete
deposition and then the other, or, if the depositions are extensive, one
party deposes for a set time, and then the other. See
Caldwell-Clements, Inc. v. McGraw-Hill Pub. Co., 11 F.R.D. 156
(S.D.N.Y. 1951).
In principle, one party's initiation of discovery should not wait
upon the other's completion, unless delay is dictated by special
considerations. Clearly the principle is feasible with respect to all
methods of discovery other than depositions. And the experience of the
Southern District of New York shows that the principle can be applied to
depositions as well. The courts have not had an increase in motion
business on this matter. Once it is clear to lawyers that they bargain
on an equal footing, they are usually able to arrange for an orderly
succession of depositions without judicial intervention. Professor
Moore has called attention to Civil Rule 4 and suggested that it may
usefully be extended to other areas. 4 Moore's Federal Practice 1154
(2d ed. 1966).
The court may upon motion and by order grant priority in a particular
case. But a local court rule purporting to confer priority in certain
classes of cases would be inconsistent with this subdivision and thus
void.
Subdivision (e) -- Supplementation of Responses. The rules do not
now state whether interrogatories (and questions at deposition as well
as requests for inspection and admissions) impose a ''continuing
burden'' on the responding party to supplement his answers if he obtains
new information. The issue is acute when new information renders
substantially incomplete or inaccurate an answer which was complete and
accurate when made. It is essential that the rules provide an answer to
this question. The parties can adjust to a rule either way, once they
know what it is. See 4 Moore's Federal Practice 33.25(4) (2d ed.
1966).
Arguments can be made both ways. Imposition of a continuing burden
reduces the proliferation of additional sets of interrogatories. Some
courts have adopted local rules establishing such a burden. E.g.,
E.D.Pa.R. 20(f), quoted in Taggart v. Vermont Transp. Co., 32 F.R.D.
587 (E.D.Pa. 1963); D.Me.R.15(c). Others have imposed the burden by
decision, E.g., Chenault v. Nebraska Farm Products, Inc., 9 F.R.D. 529,
533 (D.Nebr. 1949). On the other hand, there are serious objections to
the burden, especially in protracted cases. Although the party signs
the answers, it is his lawyer who understands their significance and
bears the responsibility to bring answers up to date. In a complex case
all sorts of information reaches the party, who little understands its
bearing on answers previously given to interrogatories. In practice,
therefore, the lawyer under a continuing burden must periodically
recheck all interrogatories and canvass all new information. But a full
set of new answers may no longer be needed by the interrogating party.
Some issues will have been dropped from the case, some questions are now
seen as unimportant, and other questions must in any event be
reformulated. See Novick v. Pennsylvania RR., 18 F.R.D. 296, 298
(W.D.Pa. 1955).
Subdivision (e) provides that a party is not under a continuing
burden except as expressly provided. Cf. Note, 68 Harv.L.Rev. 673, 677
(1955). An exception is made as to the identity of persons having
knowledge of discoverable matters, because of the obvious importance to
each side of knowing all witnesses and because information about
witnesses routinely comes to each lawyer's attention. Many of the
decisions on the issue of a continuing burden have in fact concerned the
identity of witnesses. An exception is also made as to expert trial
witnesses in order to carry out the provisions of Rule 26(b)(4). See
Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md.
1967).
Another exception is made for the situation in which a party, or more
frequently his lawyer, obtains actual knowledge that a prior response is
incorrect. This exception does not impose a duty to check the accuracy
of prior responses, but it prevents knowing concealment by a party or
attorney. Finally, a duty to supplement may be imposed by order of the
court in a particular case (including an order resulting from a pretrial
conference) or by agreement of the parties. A party may of course make
a new discovery request which requires supplementation of prior
responses.
The duty will normally be enforced, in those limited instances where
it is imposed, through sanctions imposed by the trial court, including
exclusion of evidence, continuance, or other action, as the court may
deem appropriate.
Subdivision (f). This subdivision is new. There has been widespread
criticism of abuse of discovery. The Committee has considered a number
of proposals to eliminate abuse, including a change in Rule 26(b)(1)
with respect to the scope of discovery and a change in Rule 33(a) to
limit the number of questions that can be asked by interrogatories to
parties.
The Committee believes that abuse of discovery, while very serious in
certain cases, is not so general as to require such basic changes in the
rules that govern discovery in all cases. A very recent study of
discovery in selected metropolitan districts tends to support its
belief. P. Connolly, E. Holleman, & M. Kuhlman, Judicial Controls and
the Civil Litigative Process: Discovery (Federal Judicial Center,
1978). In the judgment of the Committee abuse can best be prevented by
intervention by the court as soon as abuse is threatened.
To this end this subdivision provides that counsel who has attempted
without success to effect with opposing counsel a reasonable program or
plan for discovery is entitled to the assistance of the court.
It is not contemplated that requests for discovery conferences will
be made routinely. A relatively narrow discovery dispute should be
resolved by resort to Rules 26(c) or 37(a), and if it appears that a
request for a conference is in fact grounded in such a dispute, the
court may refer counsel to those rules. If the court is persuaded that
a request is frivolous or vexatious, it can strike it. See Rules 11 and
7(b)(2).
A number of courts routinely consider discovery matters in
preliminary pretrial conferences held shortly after the pleadings are
closed. This subdivision does not interfere with such a practice. It
authorizes the court to combine a discovery conference with a pretrial
conference under Rule 16 if a pretrial conference is held sufficiently
early to prevent or curb abuse.
Excessive discovery and evasion or resistance to reasonable discovery
requests pose significant problems. Recent studies have made some
attempt to determine the sources and extent of the difficulties. See
Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal
Problems and Abuses, American Bar Foundation (1980); Connolly, Holleman
& Kuhlman, Judicial Controls and the Civil Litigative Process:
Discovery, Federal Judicial Center (1978); Ellington, A Study of
Sanctions for Discovery Abuse, Department of Justice (1979); Schroeder
& Frank, The Proposed Changes in the Discovery Rules, 1978 Ariz.St.L.J.
475.
The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants. ''Mutual knowledge of
all the relevant facts gathered by both parties is essential to proper
litigation.'' Hickman v. Taylor, 329 U.S. 495, 507 (1947). Thus the
spirit of the rules is violated when advocates attempt to use discovery
tools as tactical weapons rather than to expose the facts and illuminate
the issues by overuse of discovery or unnecessary use of defensive
weapons or evasive responses. All of this results in excessively costly
and time-consuming activities that are disproportionate to the nature of
the case, the amount involved, or the issues or values at stake.
Given our adversary tradition and the current discovery rules, it is
not surprising that there are many opportunities, if not incentives, for
attorneys to engage in discovery that, although authorized by the broad,
permissive terms of the rules, nevertheless results in delay. See
Brazil, The Adversary Character of Civil Discovery: A Critique and
Proposals for Change, 31 Vand.L.Rev. 1259 (1978). As a result, it has
been said that the rules have ''not infrequently (been) exploited to the
disadvantage of justice.'' Herbert v. Lando, 441 U.S. 153, 179 (1979)
(Powell, J., concurring). These practices impose costs on an already
overburdened system and impede the fundamental goal of the ''just,
speedy, and inexpensive determination of every action.'' Fed.R.Civ.P. 1.
Subdivision (a); Discovery Methods. The deletion of the last
sentence of Rule 26(a)(1), which provided that unless the court ordered
otherwise under Rule 26(c) ''the frequency of use'' of the various
discovery methods was not to be limited, is an attempt to address the
problem of duplicative, redundant, and excessive discovery and to reduce
it. The amendment, in conjunction with the changes in Rule 26(b)(1), is
designed to encourage district judges to identify instances of needless
discovery and to limit the use of the various discovery devices
accordingly. The question may be raised by one of the parties,
typically on a motion for a protective order, or by the court on its own
initiative. It is entirely appropriate to consider a limitation on the
frequency of use of discovery at a discovery conference under Rule 26(f)
or at any other pretrial conference authorized by these rules. In
considering the discovery needs of a particular case, the court should
consider the factors described in Rule 26(b)(1).
Subdivision (b); Discovery Scope and Limits. Rule 26(b)(1) has been
amended to add a sentence to deal with the problem of over-discovery.
The objective is to guard against redundant or disproportionate
discovery by giving the court authority to reduce the amount of
discovery that may be directed to matters that are otherwise proper
subjects of inquiry. The new sentence is intended to encourage judges
to be more aggressive in identifying and discouraging discovery overuse.
The grounds mentioned in the amended rule for limiting discovery
reflect the existing practice of many courts in issuing protective
orders under Rule 26(c). See e.g., Carlson Cos. v. Sperry & Hutchinson
Co., 374 F.Supp. 1080 (D.Minn. 1974); Dolgow v. Anderson, 53 F.R.D.
661 (E.D.N.Y. 1971); Mitchell v. American Tobacco Co., 33 F.R.D. 262
(M.D.Pa. 1963); Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941). On the
whole, however, district judges have been reluctant to limit the use of
the discovery devices. See, e.g., Apco Oil Co. v. Certified Transp.,
Inc., 46 F.R.D. 428 (W.D.Mo. 1969). See generally 8 Wright & Miller,
Federal Practice and Procedure: Civil 2036, 2037, 2039, 2040 (1970).
The first element of the standard, Rule 26(b)(1)(i), is designed to
minimize redundancy in discovery and encourage attorneys to be sensitive
to the comparative costs of different methods of securing information.
Subdivision (b)(1)(ii) also seeks to reduce repetitiveness and to oblige
lawyers to think through their discovery activities in advance so that
full utilization is made of each deposition, document request, or set of
interrogatories. The elements of Rule 26(b)(1)(iii) address the problem
of discovery that is disproportionate to the individual lawsuit as
measured by such matters as its nature and complexity, the importance of
the issues at stake in a case seeking damages, the limitations on a
financially weak litigant to withstand extensive opposition to a
discovery program or to respond to discovery requests, and the
significance of the substantive issues, as measured in philosophic,
social, or institutional terms. Thus the rule recognizes that many
cases in public policy spheres, such as employment practices, free
speech, and other matters, may have importance far beyond the monetary
amount involved. The court must apply the standards in an even-handed
manner that will prevent use of discovery to wage a war of attrition or
as a device to coerce a party, whether financially weak or affluent.
The rule contemplates greater judicial involvement in the discovery
process and thus acknowledges the reality that it cannot always operate
on a self-regulating basis. See Connolly, Holleman & Kuhlman, Judicial
Controls and the Civil Litigative Process: Discovery 77, Federal
Judicial Center (1978). In an appropriate case the court could restrict
the number of depositions, interrogatories, or the scope of a production
request. But the court must be careful not to deprive a party of
discovery that is reasonably necessary to afford a fair opportunity to
develop and prepare the case.
The court may act on motion, or its own initiative. It is entirely
appropriate to resort to the amended rule in conjunction with a
discovery conference under Rule 26(f) or one of the other pretrial
conferences authorized by the rules.
Subdivision (g); Signing of Discovery Requests, Responses, and
Objections. Rule 26(g) imposes an affirmative duty to engage in
pretrial discovery in a responsible manner that is consistent with the
spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is
designed to curb discovery abuse by explicitly encouraging the
imposition of sanctions. The subdivision provides a deterrent to both
excessive discovery and evasion by imposing a certification requirement
that obliges each attorney to stop and think about the legitimacy of a
discovery request, a response thereto, or an objection. The term
''response'' includes answers to interrogatories and to requests to
admit as well as responses to production requests.
If primary responsibility for conducting discovery is to continue to
rest with the litigants, they must be obliged to act responsibly and
avoid abuse. With this in mind, Rule 26(g), which parallels the
amendments to Rule 11, requires an attorney or unrepresented party to
sign each discovery request, response, or objection. Motions relating
to discovery are governed by Rule 11. However, since a discovery
request, response, or objection usually deals with more specific subject
matter than motions or papers, the elements that must be certified in
connection with the former are spelled out more completely. The
signature is a certification of the elements set forth in Rule 26(g).
Although the certification duty requires the lawyer to pause and
consider the reasonableness of his request, response, or objection, it
is not meant to discourage or restrict necessary and legitimate
discovery. The rule simply requires that the attorney make a reasonable
inquiry into the factual basis of his response, request, or objection.
The duty to make a ''reasonable inquiry'' is satisfied if the
investigation undertaken by the attorney and the conclusions drawn
therefrom are reasonable under the circumstances. It is an objective
standard similar to the one imposed by Rule 11. See the Advisory
Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed.
Sav. & Loan Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). In making the
inquiry, the attorney may rely on assertions by the client and on
communications with other counsel in the case as long as that reliance
is appropriate under the circumstances. Ultimately, what is reasonable
is a matter for the court to decide on the totality of the
circumstances.
Rule 26(g) does not require the signing attorney to certify the
truthfulness of the client's factual responses to a discovery request.
Rather, the signature certifies that the lawyer has made a reasonable
effort to assure that the client has provided all the information and
documents available to him that are responsive to the discovery demand.
Thus, the lawyer's certification under Rule 26(g) should be
distinguished from other signature requirements in the rules, such as
those in Rules 30(e) and 33.
Nor does the rule require a party or an attorney to disclose
privileged communications or work product in order to show that a
discovery request, response, or objection is substantially justified.
The provisions of Rule 26(c), including appropriate orders after in
camera inspection by the court, remain available to protect a party
claiming privilege or work product protection.
The signing requirement means that every discovery request, response,
or objection should be grounded on a theory that is reasonable under the
precedents or a good faith belief as to what should be the law. This
standard is heavily dependent on the circumstances of each case. The
certification speaks as of the time it is made. The duty to supplement
discovery responses continues to be governed by Rule 26(e).
Concern about discovery abuse has led to widespread recognition that
there is a need for more aggressive judicial control and supervision.
ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied)
(Powell, J., dissenting). Sanctions to deter discovery abuse would be
more effective if they were diligently applied ''not merely to penalize
those whose conduct may be deemed to warrant such a sanction, but to
deter those who might be tempted to such conduct in the absence of such
a deterrent.'' National Hockey League v. Metropolitan Hockey Club, 427
U.S. 639, 643 (1976). See also Note, The Emerging Deterrence
Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev.
1033 (1978). Thus the premise of Rule 26(g) is that imposing sanctions
on attorneys who fail to meet the rule's standards will significantly
reduce abuse by imposing disadvantages therefor.
Because of the asserted reluctance to impose sanctions on attorneys
who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers'
Views of its Effectiveness, Principal Problems and Abuses, American Bar
Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse,
Department of Justice (1979), Rule 26(g) makes explicit the authority
judges now have to impose appropriate sanctions and requires them to use
it. This authority derives from Rule 37, 28 U.S.C. 1927, and the
court's inherent power. See Roadway Express, Inc., v. Piper, 447 U.S.
752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62
(D.Col. 1980); Note, Sanctions Imposed by Courts on Attorneys Who Abuse
the Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule
mandates that sanctions be imposed on attorneys who fail to meet the
standards established in the first portion of Rule 26(g). The nature of
the sanction is a matter of judicial discretion to be exercised in light
of the particular circumstances. The court may take into account any
failure by the party seeking sanctions to invoke protection under Rule
26(c) at an early stage in the litigation.
The sanctioning process must comport with due process requirements.
The kind of notice and hearing required will depend on the facts of the
case and the severity of the sanction being considered. To prevent the
proliferation of the sanction procedure and to avoid multiple hearings,
discovery in any sanction proceeding normally should be permitted only
when it is clearly required by the interests of justice. In most cases
the court will be aware of the circumstances and only a brief hearing
should be necessary.
The amendments are technical. No substantive change is intended.
Certification and filing of depositions, see rule 30.
Consequences of refusal to appear for deposition, see rule 37.
Continuance to procure depositions opposing motion for summary
judgment, see rule 56.
Depositions --
Before action or pending appeal, see rule 27.
Of witnesses upon written interrogatories, see rule 31.
Opposing motion for summary judgment, see rule 56.
Effect of errors and irregularities in depositions, see rule 32.
Examination and cross-examination of deponents, see Federal Rules of
Evidence, rules 607, 611.
Failure to attend or serve subpoena, expenses, see rule 30.
Motion to terminate or limit examination, see rule 30.
Notice for taking deposition, see rule 30.
Objections to admissibility of depositions, see rule 32.
Order compelling answer to question propounded upon oral examination,
see rule 37.
Orders for protection of parties and deponents, see rule 30.
Persons before whom depositions may be taken, see rule 28.
Record of examination, see rule 30.
Stipulations regarding taking depositions, see rule 29.
Subpoena for taking depositions, see rule 45.
Time and place for depositions, see rules 30 and 45.
Written interrogatories of party, see rule 33.