PART V—PROCEDURE
CHAPTER 111 —GENERAL PROVISIONS
Amendments
1994—
1990—
1984—
Cross References
Criminal procedure, see
Removal of cases from State courts, procedure, see
§1651. Writs
(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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§342, 376, 377 (Mar. 3, 1911, ch. 231, §§234, 261, 262,
Section consolidates
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
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
The provision in
1949 Act
This section corrects a grammatical error in subsection (a) of
Amendments
1949—Subsec. (a). Act May 24, 1949, inserted "and" after "jurisdictions".
Writ of Error
Act Jan. 31, 1928, ch. 14, §2,
Rules of the Supreme Court
Procedure on petition for an extraordinary writ, see rule 20, Appendix to this title.
Federal Rules of Civil Procedure
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.
Cross References
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
Federal Communications Act and orders of Commission, enforcement of, see
Federal Power Act, and orders thereunder, enforcement and prevention of violations, see
Federal Trade Commission Act, and orders thereunder, enforcement of, see
Interstate Commerce Act, enforcement of, see
National Railroad Adjustment Board, enforcement of orders, see
Securities and Public Utilities Holding Companies Acts and orders of Securities and Exchange Commission, enforcement of, see
Stockyards Act, adopting by reference
Tariff Act and orders of Tariff Commission, enforcement of, see
Puerto Rico, power of supreme and district courts to grant mandamus, see
Section Referred to in Other Sections
This section is referred to in
§1652. State laws as rules of decision
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,
Historical Revision Notes
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.
§1653. Amendment of pleadings to show jurisdiction
Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §399 (Mar. 3, 1911, ch. 231, §274c, as added Mar. 3, 1915, ch. 90,
Section was extended to permit amendment of all jurisdictional allegations instead of merely allegations of diversity of citizenship as provided by
Changes were made in phraseology.
Federal Rules of Civil Procedure
Amended and supplemental pleadings, see rules 12 and 15, Appendix to this title.
§1654. Appearance personally or by counsel
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,
Historical Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §394 (Mar. 3, 1911, ch. 231, §272,
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
Changes were made in phraseology.
1949 Act
This section restores in
Amendments
1949—Act May 24, 1949, inserted "as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein".
§1655. Lien enforcement; absent defendants
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §118 (Mar. 3, 1911, ch. 231, §57,
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.
Federal Rules of Civil Procedure
Process and relief from judgment or order, see rules 4 and 60, Appendix to this title.
§1656. Creation of new district or division or transfer of territory; lien enforcement
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §122 (Mar. 3, 1911, ch. 231, §60,
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.
Amendments
1978—
Federal Rules of Civil Procedure
Effect of rule 69 on this section, see note by Advisory Committee under rule 69, Appendix to this title.
§1657. Priority of civil actions
(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
(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
Effective Date
Section 403 of
Section Referred to in Other Sections
This section is referred to in title 12 section 1821.
§1658. Time limitations on the commencement of civil actions arising under Acts of Congress
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
References in Text
The date of the enactment of this section, referred to in text, is the date of enactment of
Effective Date
Section 313(c) of
§1659. Stay of certain actions pending disposition of related proceedings before the United States International Trade Commission
(a)
(1) 30 days after the party is named as a respondent in the proceeding before the Commission, or
(2) 30 days after the district court action is filed,
whichever is later.
(b)
(Added
References in Text
Section 337 of the Tariff Act of 1930, referred to in text, is classified to
The Federal Rules of Evidence and the Federal Rules of Civil Procedure, referred to in subsec. (b), are set out in the Appendix to this title.
Effective Date
Section applicable with respect to complaints filed under
CHAPTER 113 —PROCESS
Amendments
1964—
Federal Rules of Civil Procedure
Process, see Rule 4, Appendix to this title.
§1691. Seal and teste of process
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §721 (R.S. §911; Mar. 3, 1911, ch. 231, §291,
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.
Immunity From Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display
Presidential determination of cultural significance of objects and exhibition or display thereof in the national interest, see
Federal Rules of Civil Procedure
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.
Cross References
Habeas corpus, see
Power of courts to issue writs, see
Power of Supreme Court to prescribe rules of procedure and evidence, see
Writs venire facias abolished, see Historical and Revision Notes under
§1692. Process and orders affecting property in different districts
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §117 (Mar. 3, 1911, ch. 231, §56,
Provisions of
For explanation of revision of
Changes were made in phraseology.
Cross References
Receivers of property in different districts, see
§1693. Place of arrest in civil action
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §112 (Mar. 3, 1911, ch. 231, §51,
Venue provisions of
The exception at the beginning of the section was substituted for "Except as provided in
Changes were made in phraseology.
Cross References
Venue generally, see
Waiver of venue, see
§1694. Patent infringement action
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §109 (Mar. 3, 1911, ch. 231, §48,
Venue provisions of
Changes were made in phraseology.
Cross References
Venue in patent infringement action, see
§1695. Stockholder's derivative action
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §112 (Mar. 3, 1911, ch. 231, §51,
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
Venue provisions of
Changes were made in phraseology.
Cross References
Venue in stockholder's derivative action, see
§1696. Service in foreign and international litigation
(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
CHAPTER 115 —EVIDENCE; DOCUMENTARY
Amendments
1994—
1980—
1976—
1964—
1951—Act Aug. 28, 1951, ch. 351, §2,
1949—Act May 24, 1949, ch. 139, §92(a),
Federal Rules of Civil Procedure
Civil cases—
Proof of official record, see rule 44, Appendix to this title.
Subpoena for production of documentary evidence, see rule 45.
Federal Rules of Criminal Procedure
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.
§1731. Handwriting
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §638 (Feb. 26, 1913, ch. 79,
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.
Federal Rules of Civil Procedure
Evidence, civil actions, see rule 43, Appendix to this title.
Federal Rules of Criminal Procedure
Criminal proceedings, see rule 26, Title 18, Appendix, Crimes and Criminal Procedure.
§1732. Record made in regular course of business; photographic copies
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §695 (June 20, 1936, ch. 640, §1,
Changes in phraseology were made.
Amendments
1975—
1961—Subsec. (b).
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).
Federal Rules of Civil Procedure
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27 and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in title 26 section 5555.
§1733. Government records and papers; copies
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§661–667, 671 (R.S. §§882–886, 889; July 31, 1894, ch. 174, §§17, 22,
The consolidation of
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,
Words "of any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly", in
Changes were made in phraseology.
References in Text
The Federal Rules of Evidence, referred to in subsec. (c), are set out in the Appendix to this title.
Amendments
1975—Subsec. (c).
Federal Rules of Civil Procedure
Proof of official record, see rule 44, Appendix to this title.
Subpoena for production of documentary evidence, see rule 45.
Federal Rules of Criminal Procedure
Proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
Subpoena for production of documentary evidence, see rule 17.
Cross References
Authenticated and certified copy of Government record by Archivist admissible in evidence, see
Authentication—
Copies of documents, etc., in the office of the Commissioner of Indian Affairs is made by
Original papers on file in the Bureau of Land Management are provided for by
Records by Secretary of the Interior, see
Records of the Postal Service, see
Certified copies of schedules and tariffs of rates, etc., copies as evidence, see
Judicial notice of seals—
Departments of Commerce and Labor, see
Department of Defense, see
Departments of the Army, Air Force, and Navy, see
Provisions relating to the requisites of the certificates of national banks, and the acknowledgment and filing thereof, are made by
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
Verification of official documents by Secretary of Agriculture, see
Section Referred to in Other Sections
This section is referred to in title 31 section 704.
§1734. Court record lost or destroyed, generally
(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,
Historical and Revision Notes
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,
Changes were made in phraseology.
Federal Rules of Civil Procedure
Effect of rule 44 on former
Proof of official records, see rule 44.
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1735. Court record lost or destroyed where United States interested
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§685, 686 (R.S. §§903, 904; Jan. 31, 1879, ch. 39, §§2, 3,
A provision of
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
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
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.
Federal Rules of Civil Procedure
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1736. Congressional Journals
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §676 (R.S. §895).
Changes in phraseology were made.
Federal Rules of Civil Procedure
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1737. Copy of officer's bond
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§326, 499, 513, and 514 (R.S. §§783, 795; Feb. 22, 1875, ch. 95, §3,
The requirement that certified copies be furnished is new.
The other provisions of
Changes were made in phraseology.
§1738. State and Territorial statutes and judicial proceedings; full faith and credit
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,
Historical and Revision Notes
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
Words "and its Territories and Possessions" were added in two places so as to make this section and
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.
Federal Rules of Civil Procedure
Authentication of copy of official record, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Full faith and credit, see Const., art. 4, §1.
§1738A. Full faith and credit given to child custody determinations
(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
Congressional Findings and Declaration of Purpose
Section 7 of
"(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
"(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."
State Court Proceedings for Custody Determinations; Priority Treatment; Fees, Costs, and Other Expenses
Section 8(c) of
"(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."
§1738B. Full faith and credit for child support orders
(a)
(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and
(2) shall not seek or make a modification of such an order except in accordance with subsection (e).
(b)
"child" means—
(A) a person under 18 years of age; and
(B) a person 18 or more years of age with respect to whom a child support order has been issued pursuant to the laws of a State.
"child's State" means the State in which a child resides.
"child support" means a payment of money, continuing support, or arrearages or the provision of a benefit (including payment of health insurance, child care, and educational expenses) for the support of a child.
"child support order"—
(A) means a judgment, decree, or order of a court requiring the payment of child support in periodic amounts or in a lump sum; and
(B) includes—
(i) a permanent or temporary order; and
(ii) an initial order or a modification of an order.
"contestant" means—
(A) a person (including a parent) who—
(i) claims a right to receive child support;
(ii) is a party to a proceeding that may result in the issuance of a child support order; or
(iii) is under a child support order; and
(B) a State or political subdivision of a State to which the right to obtain child support has been assigned.
"court" means a court or administrative agency of a State that is authorized by State law to establish the amount of child support payable by a contestant or make a modification of a child support order.
"modification" means a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order.
"State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian country (as defined in
(c)
(1) a court that makes the order, pursuant to the laws of the State in which the court is located—
(A) has subject matter jurisdiction to hear the matter and enter such an order; and
(B) has personal jurisdiction over the contestants; and
(2) reasonable notice and opportunity to be heard is given to the contestants.
(d)
(e)
(1) the court has jurisdiction to make such a child support order; and
(2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any contestant; or
(B) each contestant has filed written consent to that court's making the modification and assuming continuing, exclusive jurisdiction over the order.
(f)
(g)
(1)
(2)
(3)
(Added
Congressional Findings and Declaration of Purpose
Section 2 of
"(a)
"(1) there is a large and growing number of child support cases annually involving disputes between parents who reside in different States;
"(2) the laws by which the courts of different jurisdictions determine their authority to establish child support orders are not uniform;
"(3) those laws, along with the limits imposed by the Federal system on the authority of each State to take certain actions outside its own boundaries—
"(A) encourage noncustodial parents to relocate outside the States where their children and the custodial parents reside to avoid the jurisdiction of the courts of such States, resulting in an increase in the amount of interstate travel and communication required to establish and collect on child support orders and a burden on custodial parents that is expensive, time consuming, and disruptive of occupations and commercial activity;
"(B) contribute to the pressing problem of relatively low levels of child support payments in interstate cases and to inequities in child support payments levels that are based solely on the noncustodial parent's choice of residence;
"(C) encourage a disregard of court orders resulting in massive arrearages nationwide;
"(D) allow noncustodial parents to avoid the payment of regularly scheduled child support payments for extensive periods of time, resulting in substantial hardship for the children for whom support is due and for their custodians; and
"(E) lead to the excessive relitigation of cases and to the establishment of conflicting orders by the courts of various jurisdictions, resulting in confusion, waste of judicial resources, disrespect for the courts, and a diminution of public confidence in the rule of law; and
"(4) among the results of the conditions described in this subsection are—
"(A) the failure of the courts of the States to give full faith and credit to the judicial proceedings of the other States;
"(B) the deprivation of rights of liberty and property without due process of law;
"(C) burdens on commerce among the States; and
"(D) harm to the welfare of children and their parents and other custodians.
"(b)
"(c)
"(1) to facilitate the enforcement of child support orders among the States;
"(2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and
"(3) to avoid jurisdictional competition and conflict among State courts in the establishment of child support orders."
§1739. State and Territorial nonjudicial records; full faith and credit
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,
Historical and Revision Notes
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
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
See also Rule 44 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Federal Rules of Civil Procedure
Authentication of copy of official record, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1740. Copies of consular papers
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §677 (R.S. §896; Apr. 5, 1906, ch. 1366, §3,
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
See also Rule 44 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
Federal Rules of Civil Procedure
Authentication of copy of official record see rule 44 Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1741. Foreign official documents
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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §695e (June 20, 1936, ch. 640, §6,
Words "Nothing contained in this section shall be deemed to alter, amend, or repeal
See also Rule 44 of the Federal Rules of Civil Procedure.
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in
Amendments
1964—
1949—Act May 24, 1949, corrected spelling of "admissible".
Federal Rules of Civil Procedure
Authentication of copy of official record, see rule 44 Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in title 22 sections 1204, 4222.
[§1742. Repealed. Pub. L. 88–619, §6(a), Oct. 3, 1964, 78 Stat. 996 ]
Section, act June 25, 1948, ch. 646,
§1743. Demand on postmaster
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §670 (R.S. §890; June 10, 1921, ch. 18, §301,
Provisions in
The last clause of
Changes were made in phraseology.
Transfer of Functions
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
Federal Rules of Civil Procedure
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1744. Copies of Patent Office documents, generally
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,
Historical and Revision Notes
Based on
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.
Amendments
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".
Change of Name
Patent Office and Commissioner of Patents redesignated Patent and Trademark Office and Commissioner of Patents and Trademarks, respectively, by section 3 of
Transfer of Functions
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,
Federal Rules of Civil Procedure
Proof of official record, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 44, Title 18, Appendix, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in
§1745. Copies of foreign patent documents
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
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §674 (R.S. §893).
Changes were made in phraseology.
Prior Provisions
A prior section 1745, act June 25, 1948, ch. 646,
Amendments
1964—
1949—Act May 24, 1949, renumbered
Change of Name
Patent Office redesignated Patent and Trademark Office, by section 3 of
Federal Rules of Civil Procedure
Proof of official records, see rule 44, Appendix to this title.
Effect of rule 44 on former
Federal Rules of Criminal Procedure
Proof of official records, see rule 27, and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.
§1746. Unsworn declarations under penalty of perjury
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
Prior Provisions
A prior section 1746 was renumbered
Section Referred to in Other Sections
This section is referred to in title 8 section 1357; title 10 section 931; title 18 sections 152, 1546, 1621, 1623; title 25 section 399.
CHAPTER 117 —EVIDENCE; DEPOSITIONS
Amendments
1964—
Depositions in Admiralty Cases
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:
"
"
"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,
"
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.
Federal Rules of Civil Procedure
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.
Federal Rules of Criminal Procedure
Subpoena for taking depositions in criminal cases, see rule 17, Title 18, Appendix, Crimes and Criminal Procedure.
Rules of the United States Court of Federal Claims
Subpoena to witness in foreign country, see rule 45, Appendix to this title.
§1781. Transmittal of letter rogatory or request
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §653 (R.S. §875; Feb. 27, 1877, ch. 69, §1,
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
The last sentence of
The revised section extends the provisions of
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.
Amendments
1964—
Federal Rules of Civil Procedure
Persons before whom depositions may be taken in foreign countries, see rule 28, Appendix to this title.
§1782. Assistance to foreign and international tribunals and to litigants before such tribunals
(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,
Historical and Revision Notes
1948 Act
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,
Provisions in
Only the last sentence of
The revised section omits this limitation in view of the general application of the last sentence of
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
The provisions of
Changes were made in phraseology.
1949 Act
This amendment corrects restrictive language in
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.
Amendments
1964—
1949—Act May 24, 1949, struck out "residing" after "witness", and substituted "judicial proceeding" for "civil action" after "to be used in any".
Cross References
Fees of witnesses in the United States courts, see
Letters rogatory from United States courts, see
§1783. Subpoena of person in foreign country
(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
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§711, 712, and 713 (July 3, 1926, ch. 762, §§1–3,
Word "resident" was substituted for "or domiciled therein." (See reviser's note under
Words "or any assistant or district attorney acting under him," after "Attorney General" in
Changes were made in phraseology.
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b), are set out in the Appendix to this title.
Amendments
1964—
Federal Rules of Civil Procedure
Civil case, subpoena of witness in foreign country, see Rule 45, Appendix to this title.
Federal Rules of Criminal Procedure
Criminal case, subpoena of witness in foreign country, see Rule 17 Title 18, Appendix, Crimes and Criminal Procedure.
Rules of the United States Court of Federal Claims
Subpoena to witness in foreign country, see rule 45, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
§1784. Contempt
(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
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§714, 715, 716, 717, and 718 (July 3, 1926, ch. 762, §§4–8,
The last sentence omits specific reference to
Changes were made in phraseology.
Amendments
1964—
Federal Rules of Civil Procedure
Civil cases, contempt for failure to obey subpoena, see Rule 45, Appendix to this title.
Federal Rules of Criminal Procedure
Criminal cases, contempt for failure to obey subpoena, see Rule 17, Title 18, Appendix, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in
[§1785. Repealed. Pub. L. 88–619, §12(a), Oct. 3, 1964, 78 Stat. 998 ]
Section, act June 25, 1948, ch. 646,
CHAPTER 119 —EVIDENCE; WITNESSES
Amendments
1978—
1970—
Federal Rules of Civil Procedure
Civil cases—
Evidence, see Federal Rules of Evidence, Appendix to this title.
Subpoena for attendance of witnesses, see Rule 45.
Federal Rules of Criminal Procedure
Subpoena for attendance of witnesses, see Rule 17, Title 18, Appendix, Crimes and Criminal Procedure.
Rules of Evidence
Evidence, see Rule 26, Federal Rules of Criminal Procedure, Title 18, Appendix, Crimes and Criminal Procedure, and Federal Rules of Evidence, Appendix to this title.
Expert witnesses, see section 701 et seq., Federal Rules of Evidence.
Cross References
Criminal cases, witnesses and evidence, see
Chapter Referred to in Other Sections
This chapter is referred to in title 11 section 503.
§1821. Per diem and mileage generally; subsistence
(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
(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
(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
(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
(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
(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 (
(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
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §600c,
Section consolidates part of
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
Provision of
Changes were made in phraseology.
Senate Revision Amendment
By Senate amendments, all provisions relating to the Tax Court were eliminated. Therefore, as finally enacted,
1949 Act
This section restores certain provisions of the original statute, R.S. §848, which were inadvertently omitted from revised title 28, U.S.C., §1821.
References in Text
Subsection (c) of
Amendments
1992—Subsec. (d)(1).
Subsec. (d)(4).
Subsec. (f).
1990—Subsec. (b).
1978—
1968—
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.
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Effective Date of 1992 Amendment
Section 2(d) of
Effective Date of 1978 Amendment
Section 2 of
Effective Date of 1968 Amendment
Amendment by
Payment of Fact Witness Fee to Incarcerated Person Prohibited
Similar provisions were contained in the following prior appropriation acts:
Federal Rules of Civil Procedure
Subpoena, see rule 45, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1822. Competency of interested persons; share of penalties payable
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,
Historical and Revision Notes
Based on
Changes were made in phraseology.
[§1823. Repealed. Pub. L. 91–563, §5(a), Dec. 19, 1970, 84 Stat. 1478 ]
Section, acts June 25, 1948, ch. 646,
§1824. Mileage fees under summons as both witness and juror
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §602 (May 27, 1908, ch. 200, §1,
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
Changes were made in phraseology.
Federal Rules of Civil Procedure
Subpoena, see rule 45, Appendix to this title.
§1825. Payment of fees
(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
(b) In proceedings in forma pauperis for a writ of habeas corpus, and in proceedings in forma pauperis under
(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
(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
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§600c, 608 (R.S. §§236, 823, 848, 855; June 10, 1921, ch. 18, §305,
Section consolidates parts of
Provisions in
Words in
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.
Amendments
1986—
"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
"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—
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Effective Date of 1986 Amendment
Amendment by
Cross References
Accounts of marshal, see
Section Referred to in Other Sections
This section is referred to in
§1826. Recalcitrant witnesses
(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
(Added
Amendments
1984—Subsec. (c).
Section Referred to in Other Sections
This section is referred to in
§1827. Interpreters in courts of the United States
(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
(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
(Added
References in Text
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
The Judicial Improvements and Access to Justice Act, referred to in subsec. (g)(1), is
Amendments
1988—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e)(2).
Subsec. (g)(1) to (3).
"(1) Except as otherwise provided in this subsection or
"(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).
Subsec. (h).
Subsec. (i).
Subsec. (j).
Subsec. (k).
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Effective Date of 1988 Amendment
Section 712 of title VII of
Effective Date
Section effective ninety days after Oct. 28, 1978, see section 10(b) of
Short Title
For short title of
Impact on Existing Programs
Section 711 of title VII of
Section Referred to in Other Sections
This section is referred to in
§1828. Special interpretation services
(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
(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
Amendments
1982—Subsec. (b).
Effective Date
Section effective ninety days after Oct. 28, 1978, see section 10(b) of
Section Referred to in Other Sections
This section is referred to in
CHAPTER 121 —JURIES; TRIAL BY JURY
Amendments
1992—
1988—
1983—
1980—
1978—
1968—
Chapter Referred to in Other Sections
This chapter is referred to in title 5 section 8101.
§1861. Declaration of policy
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§411 and 415 (Mar. 3, 1911, ch. 231, §§275, 278,
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.
Amendments
1968—
1957—
Effective Date of 1968 Amendment
Section 104 of
Short Title of 1978 Amendment
Short Title
Section 1 of
Federal Rules of Civil Procedure
Jurors and juries, see Rules 38, 39, and 48, Appendix to this title.
Federal Rules of Criminal Procedure
Jurors and juries, see Rules 23 and 24, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Constitutional provisions relating to trial by jury, see Const. Amends. 6 and 7.
Section Referred to in Other Sections
This section is referred to in
§1862. Discrimination prohibited
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,
Historical and Revision Notes
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.
Amendments
1980—
1968—
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1863. Plan for random jury selection
(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
(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
(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
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940, ed., §415 (Mar. 3, 1911, ch. 231, §278,
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.
References in Text
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
The date of enactment of the Jury Selection and Service Act of 1968, referred to in subsec. (c), is the date of enactment of
Amendments
1992—Subsec. (b)(2).
1988—Subsec. (b)(5).
Subsec. (b)(6).
1978—Subsec. (b)(7) to (9).
1972—Subsec. (b)(4).
1968—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Refilling of Master Jury Wheel Not Later Than September 1, 1973; Refilling of Qualified Jury Wheel Not Later Than October 1, 1973; Retroactive Effect
Sections 3 and 4 of
"
"(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.
"
"(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."
Section Referred to in Other Sections
This section is referred to in
§1864. Drawing of names from the master jury wheel; completion of juror qualification form
(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
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§412, 412a (Mar. 3, 1911, ch. 231, §276,
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
The limitation in
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.
Senate Revision Amendment
As finally enacted, act July 9, 1947, ch. 211, title IV,
Amendments
1988—Subsec. (a).
1968—
Effective Date of 1968 Amendment
Amendment by
Federal Rules of Civil Procedure
Jurors and juries, see rules 38, 39, 46, 47, and 48, Appendix to this title.
Federal Rules of Criminal Procedure
Jurors and juries, see rules 6, 23, 24, and 51, Title 18, Appendix, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in
§1865. Qualifications for jury service
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§181, 413 (Mar. 3, 1911, ch. 231, §§100, 277,
Section consolidates a part of section 181 with
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
Changes were made in phraseology.
Amendments
1988—Subsec. (a).
1978—Subsec. (b)(5).
1972—Subsec. (b)(1).
1968—Subsec. (a).
Subsec. (b).
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1866. Selection and summoning of jury panels
(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
(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
(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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§417, 418 (Mar. 3, 1911, ch. 231, §§280, 281,
Section consolidates parts of
The requirement of
1949 Act
This section amends
Amendments
1988—Subsec. (c)(1).
1983—Subsec. (b).
1978—Subsec. (c).
1970—Subsec. (b).
1968—Subsec. (a).
Subsec. (b).
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.
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1867. Challenging compliance with selection procedures
(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
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §416 (Mar. 3, 1911, ch. 231, §279,
Provisions for service by a disinterested person when marshal or his deputy is disqualified is incorporated in
Provision for payment and reimbursement of postage and registry fee were omitted as covered by
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
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.
Amendments
1968—
1957—
Effective Date of 1968 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1868. Maintenance and inspection of records
After the master jury wheel is emptied and refilled pursuant to
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§416, 417 (Mar. 3, 1911, ch. 231, §§279, 280,
Section consolidates parts of
The remaining portion of
The remainder of
Words, "in the opinion of the court, disqualified" were substituted for "not an indifferent person, or is interested in the event of the cause".
Amendments
1968—
Effective Date of 1968 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1869. Definitions
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
(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
(k) "publicly draw", as referred to in
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §423 (Mar. 3, 1911, ch. 231, §286,
References in Text
The Voting Rights Act of 1965, referred to in subsec. (c), is
Amendments
1988—Subsec. (a).
Subsec. (f).
1986—Subsec. (f).
1978—Subsec. (f).
Subsec. (h).
Subsecs. (j) to (l).
1972—Subsec. (h).
1970—Subsec. (f).
1968—
1963—
Effective Date of 1986 Amendment
Section 4(a) of
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1972 Amendment
Section 2 of
Effective Date of 1970 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Termination of United States District Court for the District of the Canal Zone
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
§1870. Challenges
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §424 (Mar. 3, 1911, ch. 231, §287,
Provisions of
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
Changes were made in phraseology.
Amendments
1959—
Federal Rules of Civil Procedure
Alternate jurors, challenges, see rule 47, Appendix to this title.
Jurors and juries, see rules 38, 39, 47 and 48.
Federal Rules of Criminal Procedure
Criminal cases, jury challenges, see rule 24, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Challenges in summary trials, see
Section Referred to in Other Sections
This section is referred to in
§1871. Fees
(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
(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
(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
(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,
Historical and Revision Notes
1948 Act
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,
Section consolidates
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.
1949 Act
This section incorporates in
Amendments
1992—Subsec. (c)(5).
1990—Subsec. (b).
1978—Subsecs. (a) to (g).
1968—
1965—
1957—
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.
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Refreshment of Jurors
Cross References
Accounts of marshal, see
Section Referred to in Other Sections
This section is referred to in
§1872. Issues of fact in Supreme Court
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §343 (Mar. 3, 1911, ch. 231, §235,
Changes were made in phraseology.
§1873. Admiralty and maritime cases
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §770 (R.S. §§566, 648; Mar. 3, 1911, ch. 231, §291,
Words "and Territories" following words "in different States" were omitted as obsolete. The act of February 26, 1845, ch. 20,
The first sentence of
Changes were made in phraseology.
Federal Rules of Civil Procedure
Jury trial of right, see rule 38, Appendix to this title.
Federal Rules of Criminal Procedure
Trial by jury, see rule 23, Title 18, Appendix, Crimes and Criminal Procedure.
§1874. Actions on bonds and specialties
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,
Historical and Revision Notes
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.
§1875. Protection of jurors' employment
(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
(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
Amendments
1983—Subsec. (d)(1).
Subsec. (d)(2).
Effective Date
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
Section Referred to in Other Sections
This section is referred to in
§1876. Trial by jury in the Court of International Trade
(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
(3) each party shall be entitled to challenge jurors in accordance with
(4) jurors shall be compensated in accordance with
(Added
Effective Date
Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(C) of
§1877. Protection of jurors
(a) Subject to the provisions of this section and
(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
(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
§1878. Optional use of a one-step summoning and qualification 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
(b) Jury selection conducted under this section shall be subject to challenge under
(Added
Amendments
1992—
"(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
"(b) Jury selection conducted pursuant to this section shall be subject to challenge under
Effective Date of 1992 Amendment
Amendment by
Savings Provision
Section 403(c) of
CHAPTER 123 —FEES AND COSTS
Amendments
1992—
1988—
1986—
1984—
1982—
1978—
Cross References
Jury fees, see
Witnesses, fees and subsistence, see
Chapter Referred to in Other Sections
This chapter is referred to in title 11 sections 507, 707, 1112, 1208, 1225, 1307, 1325; title 26 section 1398.
§1911. Supreme Court
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §330 (Mar. 3, 1911, ch. 231, §223,
The second paragraph was inserted to give statutory sanction to existing practice.
Changes were made in phraseology.
Rules of the Supreme Court
Fees to be charged pursuant to this section, see rule 38, Appendix to this title.
Cross References
Payment by clerk into Treasury of all fees, costs, and emoluments, see
§1912. Damages and costs on affirmance
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §878, and
Section consolidates
Words "prevailing party" were substituted for "the respondents in error," contained in said
Senate Revision Amendment
By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore,
Rules of the Supreme Court
Interest and damages, see rule 42, Appendix to this title.
Cross References
Damages and costs in Courts of Appeals, see rules of the various Courts of Appeals.
§1913. Courts of appeals
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §543 (Mar. 3, 1891, ch. 517, §2,
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
Changes were made in phraseology.
Court Fees for Electronic Access to Information
"(a) The Judicial Conference shall hereafter prescribe reasonable fees, pursuant to
"(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
Similar provisions were contained in the following prior appropriation act:
Court of Appeals Fee Schedule
(Effective January 1, 1995)
Following are fees to be charged for services to be performed by clerks of the courts of appeals. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in items 2, 4, and 13. No fees under this schedule shall be charged to federal agencies or programs which are funded from judiciary appropriations, including, but not limited to, agencies, organizations, and individuals providing services authorized by the Criminal Justice Act, 18 U.S.C. §3006A, and Bankruptcy Administrator programs.
(1) For docketing a case on appeal or review, or docketing any other proceeding, $100. 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.
(3) For certifying 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 the magnetic tape recordings, either cassette or reel-to-reel, $15 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.
(7) For each microfiche or microfilm 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) 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.
(13) 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. This fee shall apply to the United States.
Cross References
Fees and costs, see rules of the various Courts of Appeals.
Power of Judicial Conference of the United States, see
Section Referred to in Other Sections
This section is referred to in
§1914. District court; filing and miscellaneous fees; rules of court
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§549, 553 and 555 (R.S. §828; June 28, 1902, ch. 1301, §1,
Section consolidates
The phrase "filing fee" was substituted for the inconsistent and misleading words of
The provision in
The provision in
Words "or appeal from a deportation order of a United States Commissioner" in
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.
Codification
Amendments
1986—Subsec. (a).
Subsec. (d).
1978—Subsec. (a).
Effective Date of 1986 Amendment
Section 4(c) of
Effective Date of 1978 Amendment
Amendment by
Court Fees for Electronic Access to Information
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
District Court Fee Schedule
(Effective January 1, 1995)
Following are fees to be charged for services to be performed by clerks of the district courts. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in items 2, 4, and 14. No fees under this schedule shall be charged to federal agencies or programs which are funded from judiciary appropriations, including, but not limited to, agencies, organizations, and individuals providing services authorized by the Criminal Justice Act, 18 U.S.C. §3006A, and Bankruptcy Administrator programs.
(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. This fee shall apply to services rendered on behalf of the United States if the information requested is available through electronic access.
(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. This fee shall apply to services rendered on behalf of the United States if the record or paper requested is available through electronic access.
(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. This fee shall apply to the United States.
Cross References
Advance payment of fees, see local rules of the various district courts.
Appeal of certiorari, fee on filing notice of or petition, or upon receipt of order allowing, or notice of allowance of, see
Exemption of United States from payment of fees, see
Payment by clerk into Treasury of all fees, costs and other moneys collected, see
Power of Judicial Conference of the United States, see
Reporter's fee for copy of transcript, see
Taxation of costs, see
In admiralty and maritime cases, see
Section Referred to in Other Sections
This section is referred to in
§1915. Proceedings in forma pauperis
(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
(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,
Historical and Revision Notes
1948 Act
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,
Section consolidates a part of section 9a(c)(e) with
For distribution of other provisions of
Words "and willful false swearing in any affidavit provided for in this section or
A proviso in
The provision in
The provision of
Changes in phraseology were made.
1949 Act
This amendment clarifies the meaning of subsection (b) of
Amendments
1979—Subsec. (b).
1959—Subsec. (a).
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".
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Federal Rules of Civil Procedure
Default judgment, see rule 55, Appendix to this title.
Cross References
Fair housing, enforcement by private persons in Federal or State courts without payment of fees, costs, or security, see
Reporters for United States District Court, see
Section Referred to in Other Sections
This section is referred to in
§1916. Seamen's suits
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §837 (June 12, 1917, ch. 27, §1,
Changes in phraseology were made.
Section Referred to in Other Sections
This section is referred to in
§1917. District courts; fee on filing notice of or petition for appeal
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §552 (Feb. 11, 1925, ch. 204, §5,
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.
§1918. District courts; fines, forfeitures and criminal proceedings
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §822 (R.S. §974).
Changes were made in phraseology.
Cross References
Docket fees and costs of briefs, see notes under
Particular items taxable as costs, see
Witness fees, see notes under
Section Referred to in Other Sections
This section is referred to in title 21 section 844.
§1919. Dismissal for lack of jurisdiction
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §80 (Mar. 3, 1911, ch. 231, §37,
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
Changes were made in phraseology.
Amendments
1992—
1980—
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
§1920. Taxation of costs
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
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
(June 25, 1948, ch. 646,
Historical and Revision Notes
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,
For distribution of other provisions of
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.
Amendments
1978—Par. (6).
Effective Date of 1978 Amendment
Amendment by
Federal Rules of Civil Procedure
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.
Cross References
Authority to administer oaths, see
Costs, denial of to plaintiff where plaintiff recovers less than $10,000, see
Definition of "court of the United States," see
Exemption of United States for costs except where statute permits taxation, see
Fees and costs in admiralty and maritime cases, see
Marshal's fees, see
Per diem, mileage and subsistence of witnesses, see notes under
Reporter's transcript, fees for, see
Taxation of costs in fine, forfeiture and criminal proceedings, see
Section Referred to in Other Sections
This section is referred to in
§1921. United States marshal's fees
(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
(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 1½ 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 (
(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
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §574 (R.S. §§823, 829; May 28, 1896, ch. 252, §6,
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
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.
References in Text
The Comprehensive Forfeiture Act of 1984, referred to in subsec. (c)(1), is chapter III of title II of
Amendments
1990—Subsec. (c)(1).
1988—
1986—
1962—
1950—Act Sept. 9, 1950, increased mileage fees from 6 to 10 cents a mile.
Effective Date of 1986 Amendment
Section 39(b) of
Effective Date of 1962 Amendment
Section 3 of
Collection and Disposition of Fees and Expenses for Services
Federal Rules of Civil Procedure
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.
Cross References
Collection of fees and accounting by marshal, see
Execution of all lawful writs and process, see
Power of State sheriff, see
Section Referred to in Other Sections
This section is referred to in title 12 section 3711.
1 So in original. Probably should be capitalized.
§1922. Witness fees before United States commissioners
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §828 (R.S. §981; May 28, 1896, ch. 252, §19,
Last clause of
Changes were made in phraseology.
Change of Name
Reference to United States commissioners deemed to be reference to United States magistrates pursuant to
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Cross References
Compensation of United States magistrate judges, see
Liability of United States for costs, see
§1923. Docket fees and costs of briefs
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§571, 572, and 578 (R.S. §§823, 824; May 28, 1896, ch. 252, §§6, 24,
Section consolidates
The phrase "$20 on trial or final hearing in civil, criminal, or admiralty cases" was substituted for the following provisions of
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.
Codification
Section 408(c) of
Amendments
1978—Subsec. (b).
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".
Effective Date of 1978 Amendment
Amendment by
Federal Rules of Civil Procedure
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.
Federal Rules of Criminal Procedure
Depositions, see rule 15, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Taxation of costs—
Admiralty cases, see
Criminal cases, see
Section Referred to in Other Sections
This section is referred to in
§1924. Verification of bill of costs
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §831 (R.S. §984; June 10, 1921, ch. 18, §304,
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.
§1925. Admiralty and maritime cases
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,
Historical and Revision Notes
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,
Federal Rules of Civil Procedure
Fees and costs in admiralty proceedings, see Rules 41, 43, 54 and Rules C and E, Appendix to this title.
§1926. Court of Federal Claims
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §304 (Mar. 3, 1911, ch. 231, §191,
For distribution of other provisions of
Changes were made in phraseology.
Amendments
1992—
1982—
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1982 Amendment
Amendment by
Court Fees for Electronic Access to Information
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
Court of Federal Claims Fee Schedule
(Effective January 1, 1995)
Following are fees to be charged for services to be performed by the clerk of the United States Court of Federal Claims. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in items 2 and 8. No fees under this schedule shall be charged to federal agencies or programs which are funded from judiciary appropriations, including, but not limited to, agencies, organizations, and individuals providing services authorized by the Criminal Justice Act, 18 U.S.C. §3006A, and Bankruptcy Administrator programs.
(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. This fee shall apply to services rendered on behalf of the United States if the record or paper requested is available through electronic access.
(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.
(8) 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. This fee shall apply to the United States.
§1927. Counsel's liability for excessive costs
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,
Historical and Revision Notes
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
Changes were made in phraseology.
Amendments
1980—
Federal Rules of Civil Procedure
Costs, see rules 11 and 54, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
§1928. Patent infringement action; disclaimer not filed
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,
Historical and Revision Notes
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.
Change of Name
Patent Office redesignated Patent and Trademark Office, by section 3 of
Federal Rules of Civil Procedure
Costs, see rule 54, Appendix to this title.
Cross References
Costs where disclaimer not filed in patent infringement action, see
§1929. Extraordinary expenses not expressly authorized
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,
Historical and Revision Notes
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,
Provision for payment of expenses under
The first sentence of said section 577 is incorporated in
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.
§1930. Bankruptcy fees
(a) Notwithstanding
(1) For a case commenced under
(2) For a case commenced under
(3) For a case commenced under
(4) For a case commenced under
(5) For a case commenced under
(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
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
(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
(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
Codification
Amendments
1993—Subsec. (a)(1).
Subsec. (a)(3).
1991—Subsec. (a)(3).
Subsec. (a)(6).
1989—Subsec. (a)(1).
1986—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5), (6).
1984—
Subsecs. (a), (c), (e).
Effective Date of 1993 Amendment
Section 111(a) of
Section 111(b) of
Effective Date of 1991 Amendment
Section 111 of
Effective Date of 1989 Amendment; Miscellaneous Fees
Section 406(a) of
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date
Section effective Oct. 1, 1979, see section 402(c) of
Report on Bankruptcy Fees
Section 111(d) of
"(1)
"(2)
"(A)(i) an estimate of the costs and benefits that would result from waiving bankruptcy fees payable by debtors who are individuals, and
"(ii) recommendations regarding various revenue sources to offset the net cost of waiving such fees; and
"(B)(i) an evaluation of the effects that would result in cases under chapters 11 and 13 of
"(ii) recommendations regarding various methods to implement such a graduated bankruptcy fee system.
"(3)
"(4)
Court Fees for Electronic Access to Information
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
Issuance of Notices to Creditors and Other Interested Parties
Section 403 of
Collection and Disposition of Fees in Bankruptcy Cases
Section 404(a) of
Bankruptcy Court Fee Schedule
(Effective January 1, 1995)
Following are fees to be charged for services to be performed by clerks of the bankruptcy courts. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in items 1, 5, and 23, or to bankruptcy administrators appointed under
(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. This fee shall apply to services rendered on behalf of the United States if the record or paper requested is available through electronic access.
(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. This fee shall apply to services rendered on behalf of the United States if the information requested is available through electronic access.
(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
(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. This fee shall apply to the United States.
Language To Clarify Reopened Bankruptcy Code Cases
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.
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "$800."
§1931. Disposition of filing fees
(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
(b) If the court authorizes a fee under section 1914(a) or an amount included in a judgment for costs under
(Added
Codification
Amendments
1992—
"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—
Effective Date of 1992 Amendment
Amendment by
Collection and Deposit of Miscellaneous Bankruptcy Fees
Section 406(b) of
[Section 111(a), (b) of
Section Referred to in Other Sections
This section is referred to in
CHAPTER 125 —PENDING ACTIONS AND JUDGMENTS
Amendments
1988—
1980—
1958—
Federal Rules of Civil Procedure
Judgments, see rules 54 to 58, Appendix to this title.
Cross References
Declaratory judgments, see
§1961. Interest
(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
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §811 (R.S. §966; Mar. 3, 1911, ch. 231, §291,
Changes were made in phraseology.
References in Text
Section 6621 of the Internal Revenue Code of 1986, referred to in subsec. (c)(1), is classified to
Amendments
1992—Subsec. (c)(3).
1986—Subsec. (c)(1).
1983—Subsec. (b).
1982—Subsec. (a).
Subsec. (b).
Subsecs. (b), (c).
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 1511(c)(17) of
Effective Date of 1982 Amendments
Section 2(m) of
Amendment by
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
Cross References
Interest on—
Affirmed judgments of Court of Federal Claims, see
Judgments against United States, see
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be capitalized.
§1962. Lien
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§812 and 814 (R.S. §967; Aug. 1, 1888, ch. 729, §1,
Section consolidates
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
Amendments
1990—
Effective Date of 1990 Amendment
Amendment by
Federal Rules of Civil Procedure
Judgments, see rules 54 to 58, Appendix to this title.
Cross References
Declaratory judgments, see
Section Referred to in Other Sections
This section is referred to in title 18 section 3613.
§1963. Registration of judgments of the district courts and the Court of International Trade
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,
Historical and Revision Notes
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.
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.
Amendments
1990—
1988—
1958—
1954—Act Aug. 23, 1954, extended provisions of section to District Court for Territory of Alaska.
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Section 1002(c) of title X of
Effective Date of 1958 Amendment
Amendment by
[§1963A. Repealed. Pub. L. 100–702, title X, §1002(b)(2), Nov. 19, 1988, 102 Stat. 4664 ]
Section, added
Effective Date of Repeal
Repeal effective 90 days after Nov. 19, 1988, see section 1002(c) of
§1964. Constructive notice of pending actions
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
Effective Date
Section 2 of
CHAPTER 127 —EXECUTIONS AND JUDICIAL SALES
§2001. Sale of realty generally
(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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §847 (Mar. 3, 1893, ch. 225, §1,
A provision making the section applicable to pending proceedings was deleted as obsolete.
The term "court of the United States" is defined in
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in subsection (a) of
Amendments
1949—Subsec. (a). Act May 24, 1949, corrected spelling of "ancillary" in second par.
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
Cross References
Sale of property in bankruptcy proceedings, see
Section Referred to in Other Sections
This section is referred to in
§2002. Notice of sale of realty
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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §849 (Mar. 3, 1893, ch. 225, §3,
A provision making the section applicable to pending proceedings was deleted as obsolete.
Word "under" was substituted for "ordered pursuant to
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.
1949 Act
This section corrects a typographical error in
Amendments
1949—Act May 24, 1949, substituted "11" for "II" after "Title" in third par.
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
§2003. Marshal's incapacity after levy on or sale of realty
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,
Historical and Revision Notes
1948 Act
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.
1949 Act
This section corrects a typographical error in
Amendments
1949—Act May 24, 1949, corrected spelling of "realty" in first par.
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
§2004. Sale of personalty generally
Any personalty sold under any order or decree of any court of the United States shall be sold in accordance with
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §848 (Mar. 3, 1893, ch. 225, §2,
A provision making the section applicable to pending proceedings was deleted as obsolete.
Changes were made in phraseology.
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
§2005. Appraisal of goods taken on execution
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,
Historical and Revision Notes
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.
Federal Rules of Civil Procedure
Execution, see rule 69, Appendix to this title.
§2006. Execution against revenue officer
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §842 (R.S. §989).
Changes were made in phraseology.
Federal Rules of Civil Procedure
Execution, against certain public officers, see rule 69, Appendix to this title.
Judgment, see rule 54.
Cross References
Executions in favor of United States, see
Section Referred to in Other Sections
This section is referred to in title 26 section 7422.
§2007. Imprisonment for debt
(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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§843, 844, and 845 (R.S. §§990, 991, 992; May 28, 1896, ch. 252, §19,
Changes were made in phraseology.
Change of Name
Reference to United States commissioner deemed to be reference to United States magistrate, pursuant to
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Federal Rules of Civil Procedure
Execution and seizure of person or property, see rules 64 and 69, Appendix to this title.
CHAPTER 129 —MONEYS PAID INTO COURT
Amendments
1990—
1982—
Chapter Referred to in Other Sections
This chapter is referred to in title 11 section 347.
§2041. Deposit of moneys in pending or adjudicated cases
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §851 (R.S. §995; May 29, 1920, ch. 214, §1,
Changes were made in phraseology.
Amendments
1982—
Registry Administration Account
Federal Rules of Civil Procedure
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.
Cross References
Condemnation proceedings, deposit in registry of court, see
Court officers depositing registry moneys, see
Depositaries of public moneys and financial agents of Government, see
Limitation of liability, deposit of value of interest in court, see
Powers upon designation and assignment, exception as to permanent designation of depository of funds, see
Section Referred to in Other Sections
This section is referred to in
§2042. Withdrawal
No money deposited under
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §852 (R.S. §996; Feb. 19, 1897, ch. 265, §3,
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
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." * * *
Amendments
1982—
Federal Rules of Civil Procedure
Deposit in court, see rule 67, Appendix to this title.
Cross References
Unclaimed moneys, see
Section Referred to in Other Sections
This section is referred to in title 18 section 3666.
§2043. Deposit of other moneys
Except for public moneys deposited under
(Added
Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
---|---|---|
28:2043 | 31:725v(b)(related to clerks). | June 26, 1934, ch. 756, §23(b)(related to clerks), |
The words "Except for public moneys deposited under
§2044. Payment of fine with bond money
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
Effective Date
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
CHAPTER 131 —RULES OF COURTS
Amendments
1988—
1982—
1975—
1966—
1964—
1954—Act July 27, 1954, ch. 583, §2,
Federal Rules of Criminal Procedure
Criminal procedure rules are set out in Title 18, Appendix, Crimes and Criminal Procedure.
§2071. Rule-making power generally
(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
(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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§219, 263, 296, 307, 723, 731, and 761, and
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
Provisions of
For rule-making power of the Supreme Court in copyright infringement actions, see
Senate Revision Amendment
By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore,
1949 Act
This amendment clarifies
Amendments
1988—
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.
Effective Date of 1988 Amendment
Section 407 of title IV of
Effective Date of 1983 Amendment
Short Title of 1983 Amendment
Savings Provision
Section 406 of title IV of
Tax Court Rulemaking Not Affected
Section 405 of title IV of
Admiralty Rules
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.
Federal Rules of Civil Procedure
Rules by district courts, authority to make, see rule 83, Appendix to this title.
Federal Rules of Criminal Procedure
Court of Appeals, rules, see rule 57, Title 18, Appendix, Crimes and Criminal Procedure.
District court rules, see rule 57.
Cross References
Court of Appeals—
Designation and assignment of District Court judge to sit on, see
Designation of places for terms or sessions of, see
Participation by members of bar at judicial conference of circuit, see
Court of International Trade—
Assignment or reassignment of cases, see
Notice of time and place of hearing before judge or division, see
District Court—
Advance payment of fees, see
Division of business, see
Exercise of judicial powers, see
Regular terms, see
Special terms, see
Tax Court rules, see
Section Referred to in Other Sections
This section is referred to in
§2072. Rules of procedure and evidence; power to prescribe
(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
(Added
Prior Provisions
A prior section 2072, acts June 25, 1948, ch. 646,
Amendments
1990—Subsec. (c).
Change of Name
Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of
Effective Date
Section effective Dec. 1, 1988, see section 407 of
Applicability to Virgin Islands
Rules of civil procedure promulgated under this section as applicable to the District Court of the Virgin Islands, see
Admiralty Rules
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.
Federal Rules of Civil Procedure
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 Referred to in Other Sections
This section is referred to in
§2073. Rules of procedure and evidence; method of prescribing
(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
(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 or 2075, 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
(Added
Prior Provisions
A prior section 2073, acts June 25, 1948, ch. 646,
Amendments
1994—Subsec. (a)(2).
Subsecs. (d), (e).
Effective Date of 1994 Amendment
Amendment by
Effective Date
Section effective Dec. 1, 1988, see section 407 of
§2074. Rules of procedure and evidence; submission to Congress; effective date
(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
Prior Provisions
A prior section 2074, act July 27, 1954, ch. 583, §1,
Effective Date
Section effective Dec. 1, 1988, see section 407 of
Modification of Amendments to Federal Rules of Evidence Proposed April 29, 1994; Effective Date
"(a)
"(b)
"(c)
Modification of Amendments to Federal Rules of Criminal Procedure Proposed April 29, 1994; Effective Date
"(a)
"(b)
"(c)
Amendments to Civil Rules Proposed April 30, 1991
"(a)
"(b)
Amendments to Civil Rules Proposed April 28, 1982
Amendments to Criminal Rules and Rules of Evidence Proposed April 30, 1979; Postponement of Effective Date
"(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)'."
Approval and Effective Date of Rules Governing Section 2254 Cases and Section 2255 Proceedings for United States District Courts
Postponement of Effective Date of Proposed Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of this Title
Approval and Effective Date of Amendments Proposed November 20, 1972 and December 18, 1972
Congressional Approval Requirement for Proposed Rules of Evidence for United States Courts and Amendments to Federal Rules of Civic Procedure and Criminal Procedure; Suspension of Effectiveness of Such Rules
§2075. Bankruptcy rules
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.
The Supreme Court shall transmit to Congress not later than May 1 of the year in which a rule prescribed under this section is to become effective a copy of the proposed rule. The rule shall take effect no earlier than December 1 of the year in which it is transmitted to Congress unless otherwise provided by law.
(Added
Amendments
1994—
1978—
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Rules Promulgated by Supreme Court
Applicability of Rules to Cases Under Title 11
Additional Rulemaking Power
Section Referred to in Other Sections
This section is referred to in
[§2076. Repealed. Pub. L. 100–702, title IV, §401(c), Nov. 19, 1988, 102 Stat. 4650 ]
Section, added
Effective Date of Repeal
Repeal effective Dec. 1, 1988, see section 407 of
§2077. Publication of rules; advisory committees
(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
(b) Each court, except the Supreme Court, that is authorized to prescribe rules of the conduct of such court's business under
(Added
Amendments
1990—Subsec. (b).
1988—Subsec. (b).
Effective Date of 1990 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date
Section effective Oct. 1, 1982, see section 402 of
CHAPTER 133 —REVIEW—MISCELLANEOUS PROVISIONS
Historical and Revision Notes
1949 Act
This section inserts in the chapter analysis of
Amendments
1988—
1982—
1970—
1962—
1958—
1949—Act May 24, 1949, ch. 139, §105,
Federal Rules of Appellate Procedure
See Appendix to this title.
Federal Rules of Criminal Procedure
Stay of execution and relief pending review, see rule 38, Title 18, Appendix, Crimes and Criminal Procedure.
§2101. Supreme Court; time for appeal or certiorari; docketing; stay
(a) A direct appeal to the Supreme Court from any decision under
(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 Appeals for the Armed Forces shall be as prescribed by rules of the Supreme Court.
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§47, 47a, 349a, 350, 380, 380a,
Section consolidates
Subsection (a) of the revised section is derived from
Subsection (b) is in accord with
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
In subsection (c), words "in a civil action, suit, or proceeding" were added because
Words "or the United States Court of Appeals for the District of Columbia" in
Words in
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.
1949 Act
This section clarifies the meaning of subsection (c) of
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.
Amendments
1994—Subsec. (g).
1988—Subsec. (a).
1983—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.
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1983 Amendment
Amendment by
Federal Rules of Appellate Procedure
Criminal cases, time for appeal, see rule 4, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in
§2102. Priority of criminal case on appeal from State court
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §351 (Mar. 3, 1911, ch. 231, §253,
Changes were made in phraseology.
[§2103. Repealed. Pub. L. 100–352, §5(c), June 27, 1988, 102 Stat. 663 ]
Section, acts June 25, 1948, ch. 646,
Effective Date of Repeal
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
§2104. Reviews of State court decisions
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,
Historical and Revision Notes
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.
Amendments
1988—
Effective Date of 1988 Amendment
Amendment by
§2105. Scope of review; abatement
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §879 (R.S. §1011; Feb. 18, 1875, ch. 80, §1,
The revised language is substituted for the provisions of
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.
§2106. Determination
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§344, 876, 877 (R.S. §701; Mar. 3, 1891, ch. 517, §§10, 11,
Section consolidates part of
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,
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
Changes were made in phraseology.
§2107. Time for appeal to court of appeals
(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,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§227a, 230, and
Section consolidates
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
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
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
The last paragraph was added in conformity with
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
Changes were made in phraseology.
Senate Revision Amendment
By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore,
1949 Act
This amendment to
This amendment eliminates as surplusage the words "in any such action, suit or proceeding," from the fourth paragraph of
Amendments
1991—
"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—
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".
Federal Rules of Appellate Procedure
Criminal cases, time for appeal, see rule 4, Appendix to this title.
Section Referred to in Other Sections
This section is referred to in title 15 section 29; title 21 section 848.
§2108. Proof of amount in controversy
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,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §231 (Feb. 13, 1925, ch. 229, §9,
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
§2109. Quorum of Supreme Court justices absent
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
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,
Historical and Revision Notes
Based on portions of
Section consolidates portions of
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
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
The provisions of
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.
[§2110. Repealed. Pub. L. 97–164, title I, §136, Apr. 2, 1982, 96 Stat. 41 ]
Section, acts June 25, 1948, ch. 646,
Effective Date of Repeal
Repeal effective Oct. 1, 1982, see section 402 of
§2111. Harmless error
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,
Historical and Revision Notes
1949 Act
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.
Federal Rules of Civil Procedure
Harmless error, see rule 61, Appendix to this title.
§2112. Record on review and enforcement of agency orders
(a) The rules prescribed under the authority of
(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
(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
(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
Amendments
1988—Subsec. (a).
1966—Subsec. (a).
Subsec. (b).
Effective Date of 1988 Amendment
Section 3 of
Savings Provision
Section 5(c) of
Section Referred to in Other Sections
This section is referred to in
§2113. Definition
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
Effective Date
Section effective the first day of the seventh calendar month which begins after July 29, 1970, see section 199(a) of