I-SEARCH (tm) V1.89P Retrieved Documents Listing on 10/22/93 at 10:55:24. Database: USCODE Search: (28:CITE) ------DocID 36161 Document 1 of 1452------ -CITE- 28 USC TITLE 28 -EXPCITE- TITLE 28 -HEAD- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE -MISC1- THIS TITLE WAS ENACTED BY ACT JUNE 25, 1948, CH. 646, SEC. 1, 62 STAT. 869 Part Sec. I. Organization of Courts 1 II. Department of Justice 501 III. Court Officers and Employees 601 IV. Jurisdiction and Venue 1251 V. Procedure 1651 VI. Particular Proceedings 2201 AMENDMENTS 1966 - Pub. L. 89-554, Sec. 4(a), Sept. 6, 1966, 80 Stat. 611, substituted 'Department of Justice' for 'United States Attorneys and Marshals' in item for part II. Table Showing Disposition of All Sections of Former Title 28 --------------------------------------------------------------------- Title 28 Former Sections Title 28 New Sections --------------------------------------------------------------------- 1-4bb 132-134 1 nt 133 5 135 5a T. 48 Sec. 1392a 5b Elim. 6, 7 751 8 751, 954 9 604, 755 9a 1915 9a(a) 753, 1920 9a(b) 753 9a(c) 550, 604, 753, 1915 9a(d) 753 9a(e) 1915 9b Rep. See Civ. Proc. R. 75. 10 457 11, 12 Rep. See Civ. Proc. R. 6(c), Cr. Proc. R. 45(c). 13 452 14 Rep. See Cr. Proc. R. 45(c). 15 141 16 140, 296 17 291, 292, 295, 296 18 296 19 Rep. 20 295 21 292 22 291, 296 23 296 24 455 25 144 26 143 27 137 41(1) 1331, 1332, 1341, 1342, 1345, 1354, 1359 41(2) Rep. 41(3) 1333, 1356 41(4) Rep. 41(5) 1340 41(6) 1339 41(7) 1338 41(8) 1337 41(9) 1355 41(10) Rep. 41(11) 1357 41(12-14) 1343 41(15) 1344 41(16) 1348 41(17) 1350 41(18) 1351 41(19) 1334 41(20) 1346, 2401, 2402 41(21) Rep. 41(22) Rep. 41(23) 1337 41(24) 1353 41(25) 1357, 1399 41(26) 1335, 1397, 2361 41(27), (28) 1336 42 1349 43 1398 44 2321 45 Rep. 45a 2323 46 2324 47 1253, 2101, 2284, 2325 47a 1253, 2101, 2284 48 2322 49-51 Rep. 52 Elim. 53 T. 15 Sec. 146a 71 1441, 1445, 1447 72 1446, 1447 73 Rep. 74 1443, 1446, 1447 75 1446 76 1442, 1446, 1447 77 1442 78 1449 79 1450 80 1359, 1447, 1919 81 1447 82 Rep. 83 1447, 1448 101 T. 18 Sec. 3235 102 T. 18 Sec. 3238 103 T. 18 Sec. 3237 104 1395 105 1396 106-108 1395 109 1400, 1694 110 1394 111 1391 112 1391, 1401, 1693, 1695 113 1392 114 1393, 1441 115 Rep. See Civ. Proc. R. 4(f). 116 1392 117 754, 1692 118 1655 119 1404 120 Rep. 121 1405; T. 18 Sec. 3240 122 1656 123 Rep. 124 959; T. 18 Sec. 1911 124a 960 125 959 126 458 127 957 128 604, 752 141 Rep. 142 81 143 82 144 83 145 84 146 85, 140 147 86 148 87 149 89 149a, 149b Rep. 150 90 150a Rep. 151 92 152 93 153 94 154, 155 Rep. 156, 156a 95 157 96 158 97 159 98 160 99 161 Rep. 162 Rep. 163 1404 164 Rep. See Civ. Proc. R. 77. 165 Rep. 166 100 167 101 168 102 169 103 170 104 171 105 172 106 173 107 174 108 175 109 176 110 177 111 178, 178a 112 179 113 179a Elim. 180 114 181 115, 1865 182 116, 138 182a 116 183 117 184 118 184a Elim. 185 120 186 121 186a Elim. 187 122 188 123 189 124 189a Elim. 190 125 191 126 192, 192a 127 193 128 194 129 195 130 196 131 211 41 211a Rep. 212 43, 46 213 44 213a-213h Elim. 214 Rep. 215 42 216 45, 47, 292 216a 45 217 Rep. 218 231, 456 219 2071 220 547 221 711, 956 222 711, 954 222a 604, 712 223 48 224 Rep. 225(a) 1291, 1293 225(b) 1292 225(c) Rep. 225(d) 1294 225(e), (f) Rep. 226 Rep. 227 1292 227a 1292, 2107 228, 228a Rep. See Civ. Proc. R. 73. 229 Rep. 230 2107 231 2108 241 171, 173, 453 242 Rep. 243 174, 175 244 791, 795, 956 245 604 246 952 247 Rep. 248 415, 791 249 T. 18 Sec. 282 250(1) 1491, 1501 250(2) 1503, 2501 250(3) 1496 250a 1497, 2501 250b Rep. 251 Rep. 252 2508 253 2512 254 1493, 2510 255 2510 256 Rep. 257 1492, 2509 258 2412 259 1502 259a T. 25 Sec. 70w (Rep. See T. 28 Sec. 1505). 260 1500 261 2502 262 2501 263 792, 2071 264 459, 953 265 Rep. See Ct. Claims R. 1, 10, 16 et seq. (FOOTNOTE 1) 266 Rep. See Ct. Claims R. 10. (FOOTNOTE 1) 267, 268 Rep. 268a 604, 793 269 792, 2503 270 456, 792, 794 271 Rep. 272 2507 273 Rep. 274 2504 275, 275a 2505 276 2503 277 Rep. See Ct. Claims R. 40 et seq. (FOOTNOTE 1) 278 2503 278a 604, 793 279, 280 2514 281, 282 2515 283 2520 283a 791, 2520 284 2516 285 2517 286 2519 287 1494, 2511 288 1255 289 791 290, 291 Rep. 292 2506 293 Rep. 296 251-254, 456, 1581, 2071, 2639, 2640 296a 456 297 2636 301 211-213, 215, 293, 296 301a 213 301b (See former 301a) 302 214, 452, 456, 604 303 604, 832 304 604, 831, 956, 957, 1926 305 604, 831, 833, 834, 956 306 604, 834 307 211, 2071 308 1256, 1541 309 Rep. 309a 1542 310 2601 311 Rep. 312 216 321 1 322 4 323 3 324 5 325 671-673 326 671, 1737 327 671, 954 328 675 329 6 330 1911 331 672 332, 333 673 334 411 335 412 336 Elim. 337 413 338 2 339, 340 Rep. 341 1251 342 1651 343 1872 344 1257, 2103, 2106 345 Rep. 346, 347 1254 348, 349 Rep. 349a 1252, 2101 350 2101 351 2102 352 Rep. See Sup. Ct. R. 32. 353 Rep. 354 676 371(1) Rep. 371(2) 1355 371(3) 1333 371(4) 1333, 1356 371(5) 1338 371(6) 1334 371(7) 1251 371(8) 1251, 1351 372 453 373 454 374 456 374a Elim. 374b 604 374c, 374d 752 375 136, 294, 371 375a 294, 371 375b-375d 372 375e Rep. 375f 294 375g, 375h 373 376, 377 1651 377a-377c D.C. Code, Sec. 16-3501 to 16-3503 378 Rep. 379 2283 380 1253, 2101, 2281, 2284 380a 1253, 2101, 2282, 2284 381 Rep. See Civ. Proc. R. 65. 382 Rep. See Civ. Proc. R. 65(c). 383 Rep. See Civ. Proc. R. 65(d). 384 Rep. 385 459; T. 18 Sec. 401 386 T. 18 Sec. 402, 3691 387 T. 18 Sec. 402 388 Rep. 389 T. 18 Sec. 402, 3691 390 T. 18 Sec. 3285 390a T. 18 Sec. 402 391 Rep. See Civ. Proc. R. 59, 61; Cr. Proc. R. 33, 52. 392 T. 18 Sec. 3043 393 T. 22 Sec. 258a 394 1654 395 556, 955 396 556, 955 397, 398 Rep. 399 1653 400 2201, 2202 401 2403 402 374 411 1861 412, 412a 1864 413 1865 414 Rep. 415 1861, 1863 416 1867, 1868 417 1866, 1868 417a Rep. See Cr. Proc. R. 24(c). 418 1866 419 T. 18 Sec. 3321 420 Rep. See Cr. Proc. R. 6(c). 421 Rep. See Cr. Proc. R. 6(a), (g). 422 Rep. See Cr. Proc. R. 6(g). 423 1869 424 1870 425 Rep. See Cr. Proc. R. 24(b). 426 Rep. 430, 430a Rep. 431-432a Rep. 433, 434 Rep. 441-443 Rep. 444 601, 603, 606, 608 445 602, 603, 607 446 604, 609 447 604, 605 448 332 449 333, 456 450 333, 604, 610 451-453 2241 454 2242 455-461 2243 462 2252 463(a) 2253 463(b)-(d) Rep. 464 Rep. See Civ. Proc. R. 73-75, 81(a)(2). 465 2251 466 2253 481 501 481a Elim. 482 504 483 502 484 550 485-489 547 490 541 490a Elim. 491 541 492, 493 542 494 543 495 548 496-498 564 499 564, 1737 500-502 564 503 547 504 549 504a T. 18 Sec. 3053 505 550 506 546 507 554 508 555 509, 510 Rep. 511 506, 544, 545 512 951 513, 514 952, 1737 515-517 952 518, 519 Rep. 520 Rep. See Civ. Proc. R. 81(b). 521 Rep. 522 T. 18 Sec. 2076 523 953 523a, 523b 457 524 505, 541, 751 525 636, 953 526 631 527 631, 958 528 638 528a 638, 639 529 Rep. See Cr. Proc. R. 55. 530 413, 414 530a Elim. 531 T. 18 Sec. 1910 541, 542 671 543 1913 544 604, 711, 961, 962 545 604 546 711 547 604, 713 548 Rep. 549 1914 550, 551 Rep. 552 1917 553 1914 554 Rep. 555 1914 556 Rep. 557 604, 751 558 604 559 Rep. 560 604, 962 561, 561a 604 562 604, 962 563 604, 961 564 Rep. 565, 566 604 567-569 751 570 Rep. 571, 572 1923 572a T. 18 Sec. 155 573 Rep. 574 553, 1921 575 Rep. 576 553 577 551, 1929 578 1923 578a 551 578b, 578c Rep. 579 508, 552 580 508 581 Rep. 582, 583 552, 553 584, 584a, 585 553 586 509, 550 586a Rep. 587 509, 553 588, 589 Rep. 590 T. 18 Sec. 203 591 Rep. 592 509 593 510 594 502 595, 596 604, 755 597-597c 635 598-599a 636 600-600b 1871 600c 1821, 1825 600d Rep. 601 Elim. 602 1824 603-604a 1823 605 Rep. 606, 607 T. 44 Sec. 325, 326 (See Rev. T. 44 Table) 608 1825, 1871 609 Rep. 631 Rep. See Civ. Proc. R. 43. 632 T. 18 Sec. 3481 633 Rep. 634 T. 18 Sec. 3486 635 Rep. See Civ. Proc. R. 43(a). 636 Rep. See Civ. Proc. R. 34, 55. 637 2072, 2073 638 1731 639-641 Note prec. 1781 642 Rep. See Civ. Proc. R. 28. 643, 644 Rep. See Civ. Proc. R. 26 et seq. 645 Rep. See Civ. Proc. R. 27(a)(4). 646 Rep. See Civ. Proc. R. 26 et seq. 647 Rep. See Civ. Proc. R. 45; Cr. Proc. R. 17. 648 Rep. See Civ. Proc. R. 45(d); Cr. Proc. R. 17(f). 649-652 1782 653 1781, 1782 654 Rep. See Civ. Proc. R. 45(e)(1); Cr. Proc. R. 17(e). 655 Rep. See Civ. Proc. R. 45; Cr. Proc. R. 17. 656 Rep. See Cr. Proc. R. 17(b). 657 Rep. See Cr. Proc. R. 46(b). 658 Rep. 659 Rep. See Cr. Proc. R. 46(b). 660 Rep. 661-667 1733 668 T. 18 Sec. 3497 669 Rep. 670 1743 671 1733 672 Rep. 673 1744 674 1745 675 Rep. 676 1736 677 1740 678-680 Rep. 681-684 1734 685, 686 1735 687 1738 688 1739 689 1742 690 T. 30 Sec. 53 695 1732 695a T. 18 Sec. 3491 695b T. 18 Sec. 3492 695c T. 18 Sec. 3493 695d T. 18 Sec. 3494 695e 1741 695e-1 T. 22 Sec. 4222 695f T. 18 Sec. 3495 695g T. 18 Sec. 3496 695h Rep. 701 1782 702 1785 703, 704 1782 711-713 1783 714-718 1784 721 1691 722 Rep. See Civ. Proc. R. 4. 723 2071, 2073 723a T. 18 Sec. 3772 723a-1 T. 18 Sec. 3771 723b, 723c 2072 724 Rep. 725 1652 726 Rep. See Civ. Proc. R. 64. 727 Rep. See Civ. Proc. R. 69. 728 Rep. 729 T. 42 Sec. 1988 730 2072, 2073 731 2071 732-734 Rep. 735 Rep. See Civ. Proc. R. 4; Cr. Proc. R. 4, 9; Adm. R. 1. (FOOTNOTE 2) 736 Rep. 737 See 2710 738 See 2711 739 See 2712 740 See 2713 741 See 2714 742 See 2715 743 See 2716 744 See 2717 745 Rep. 746 Rep. See Civ. Proc. R. 64. 747 2463 748-750 2405 751, 752 Rep. 753 Adm. R. 6-8, 10, 12 (FOOTNOTE 2) 754 2464 755-757 Rep. 758 636 759, 760 Rep. 761 2071, 2072 762 1402 763 Rep. See Civ. Proc. R. 4(d), 12(a), 55(e). 764 Rep. See Civ. Proc. R. 52, 75. 765 2411 766 2409 767 Rep. See Civ. Proc. R. 4(h). 768 Rep. See Sup. Ct. R. 20. 769 Rep. See Civ. Proc. R. 40. 770 1873 771 Adm. R. 46 1/2 (FOOTNOTE 2) 772 Rep. See Civ. Proc. R. 39(c), 48. 773 Rep. See Civ. Proc. R. 38 et seq. 774 2406 775 Rep. 776 Rep. See Civ. Proc. R. 46, 63, 75. 777 Rep. See Civ. Proc. R. 1, 15, 61. 778-780 Rep. See Civ. Proc. R. 25, 81. 780a 2404 781 2407 782 Rep. See Civ. Proc. R. 12(a). 783 Rep. 784 T. 19 Sec. 579 785 1874 786 Rep. 787 T. 19 Sec. 580 788 See 2718 789 Rep. 790 Rep. See Civ. Proc. R. 75; Adm. R. 49. (FOOTNOTE 2) 791 2462 792 2284 811 1961 811a Rep. 812 1962 813 Rep. 814 1962 815 Rep. See Civ. Proc. R. 41(d), 42(a), 54(d), 68. 816 Rep. 817 Elim. 818 2465 819 Rep. 820 Rep. 821 1928 822 1918 823, 824 Rep. 825 Rep. See Civ. Proc. R. 42(a). 826 Rep. 827 2465 828 1922 829 1927 830 1920 831 1924 832-836 1915 837 1916 838 Rep. See Civ. Proc. R. 4. 839 2413 840 Rep. See Civ. Proc. R. 59, 62. 841 Rep. See Civ. Proc. R. 62(f). 842 2006 843-845 2007 846 2005 847 2001 848 2004 849 2002 850 2003 851 2041 852 2042 861 Rep. 861a Rep. 861b Elim. 862 Rep. 863 Rep. See Civ. Proc. R. 75; Adm. R. 49. (FOOTNOTE 2) 864 Rep. See Civ. Proc. R. 75(k). 865-867 Rep. 868 Rep. See Sup. Ct. R. 10, 36. 869 Rep. 870 2408 871 2104 872 Rep. See Civ. Proc. R. 73. 873 Rep. 874 Rep. See Civ. Proc. R. 62(d), 73(d); Sup. Ct. R. 36. 875 Rep. See Civ. Proc. R. 46, 52, 73, 75. 876, 877 2106 878 1912 879 2105 880 Rep. 901, 902 2410 903 1444 904, 905 2410 906 Rep. 921 2672 922 2673 931(a) 1346, 1402, 2402, 2411, 2412, 2674 931(b) 2675, 2676 932 1346, 2411 933(a)(1) 1291 933(a)(2) 1504, 2110 933(b) Rep. 934 2677 941 2671 942 2401 943 2680 944 2678 945 2679 946 Elim. ------------------------------- (FOOTNOTE 1) Court of Claims Rules were replaced by U.S. Claims Court Rules effective Oct. 1, 1982. (FOOTNOTE 2) Admiralty Rules were superseded July 1, 1966, by Supplemental Rules for Certain Admiralty and Maritime Claims. ENACTMENT INTO LAW; CITATION Section 1 of act June 25, 1948, ch. 646, 62 Stat. 869, provided in part: 'That title 28 of the United States Code, entitled 'Judicial Code and Judiciary' is hereby revised, codified, and enacted into law, and may be cited as 'Title 28, United States Code, section XXX.' ' LEGISLATIVE CONSTRUCTION Section 33 of act June 25, 1948, ch. 646, 62 Stat. 991, provided that: 'No inference of a legislative construction is to be drawn by reason of the chapter in Title 28, Judiciary and Judicial Procedure, as set out in section 1 of this Act, in which any section is placed, nor by reason of the catchlines used in such title.' SEPARABILITY Section 34 of act June 25, 1948, ch. 646, 62 Stat. 991, provided that: 'If any part of Title 28, Judiciary and Judicial Procedure, as set out in section 1 of this Act, shall be held invalid, the remainder shall not be affected thereby.' EFFECTIVE DATE Section 38 of act June 25, 1948, ch. 646, 62 Stat. 992, provided that: 'The provisions of this Act shall take effect on September 1, 1948.' REPEALS; RIGHTS AND LIABILITIES SAVED Section 39 of act June 25, 1948, ch. 646, 62 Stat. 992, repealed the sections or parts thereof of the Revised Statutes of the United States, Statutes at Large, or the Revised Statutes of the District of Columbia covering provisions codified in this title, but saved any rights or liabilities then existing under said sections or parts thereof. R.S. Sec. 1012 as affected by act Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167 (section 880 of former Title 28, Judicial Code and Judiciary), provided that appeals from district courts shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. This provision was repealed by act June 25, 1948, ch. 646, Sec. 39, 62 Stat. 992. Section 2 of act Jan. 31, 1928, ch. 14, 45 Stat. 54, as amended Apr. 26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, Sec. 23, 62 Stat. 990 (section 861b of former Title 28, Judicial Code and Judiciary), provided that: 'All Acts of Congress referring to writs of error shall be construed as amended to the extent necessary to substitute appeal for writ of error.' WRITS OF ERROR Act Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54 (section 861a of former Title 28, Judicial Code and Judiciary), provided that: 'The writ of error in cases, civil and criminal, is abolished. All relief which heretofore (Jan. 31, 1928) could be obtained by writ of error shall hereafter be obtainable by appeal.' This provision was omitted from the 1948 Revised Judicial Code as obsolete, and repealed by act June 25, 1948, ch. 646, Sec. 39, 62 Stat. 992. TITLE 28 AS CONTINUATION OF EXISTING LAW; CHANGE OF NAME OF CIRCUIT COURTS OF APPEALS Section 2(b) of act June 25, 1948, ch. 646, 62 Stat. 985, provided that: 'The provisions of Title 28, Judiciary and Judicial Procedure, of the United States Code, set out in section 1 of this Act, with respect to the organization of each of the several courts therein provided for and of the Administrative Office of the United States Courts, shall be construed as continuations of existing law, and the tenure of the judges, officers, and employees thereof and of the United States attorneys and marshals and their deputies and assistants, in office on the effective date of this Act (Sept. 1, 1948), shall not be affected by its enactment, but each of them shall continue to serve in the same capacity under the appropriate provisions of title 28, as set out in section 1 of this Act, pursuant to his prior appointment: Provided, however, That each circuit court of appeals shall, as in said title 28 set out, hereafter be known as a United States court of appeals. No loss of rights, interruption of jurisdiction, or prejudice to matters pending in any of such courts on the effective date of this Act shall result from its enactment.' -CROSS- CROSS REFERENCES District of Columbia, organization of courts, see Title 11 of District of Columbia Code. Territorial courts, see Title 48, Territories and Insular Possessions. United States Tax Court, see section 7441 et seq. of Title 26, Internal Revenue Code. -SECREF- TITLE REFERRED TO IN OTHER SECTIONS This title is referred to in title 9 section 4; title 5 section 8477; title 10 section 1054; title 11 section 105; title 12 section 2244; title 16 sections 18i, 558c, 742l, 823b, 3375; title 22 sections 2702, 4606; title 23 section 307; title 29 section 1706; title 42 sections 233, 300g-3, 300i-1, 300j-23, 3789h, 5055, 8433; title 43 section 1737; title 48 sections 1424-4, 1614, 1694, 1694c. ------DocID 37010 Document 2 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 28 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 28. Briefs -STATUTE- (a) Brief of the appellant. - The brief of the appellant shall contain under appropriate headings and in the order here indicated: (1) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited. (2) A statement of the issues presented for review. (3) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)). (4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. (5) A short conclusion stating the precise relief sought. (b) Brief of the appellee. - The brief of the appellee shall conform to the requirements of subdivision (a)(1)-(4), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant. (c) Reply brief. - The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of court. All reply briefs shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the reply brief where they are cited. (d) References in briefs to parties. - Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as 'appellant' and 'appellee'. It promotes clarity to use the designations used in the lower court or in the agency proceedings, or the actual names of parties, or descriptive terms such as 'the employee,' 'the injured person,' 'the taxpayer,' 'the ship,' 'the stevedore,' etc. (e) References in briefs to the record. - References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see Rule 30(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 30(c). If the record is reproduced in accordance with the provisions of Rule 30(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f) Reproduction of statutes, rules, regulations, etc. - If determination of the issues presented requires the study of statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in pamphlet form. (g) Length of briefs. - Except by permission of the court, or as specified by local rule of the court of appeals, principal briefs shall not exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages containing the corporate disclosure statement, table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc. (h) Briefs in cases involving cross appeals. - If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and Rules 30 and 31, unless the parties otherwise agree or the court otherwise orders. The brief of the appellee shall contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant. (i) Briefs in cases involving multiple appellants or appellees. - In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs. (j) Citation of supplemental authorities. - When pertinent and significant authorities come to the attention of a party after the party's brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is based upon Supreme Court Rule 40. For variations in present circuit rules on briefs see 2d Cir. Rule 17, 3d Cir. Rule 24, 5th Cir. Rule 24, and 7th Cir. Rule 17. All circuits now limit the number of pages of briefs, a majority limiting the brief to 50 pages of standard typographic printing. Fifty pages of standard typographic printing is the approximate equivalent of 70 pages of typewritten text, given the page sizes required by Rule 32 and the requirement set out there that text produced by a method other than standard typographic must be double spaced. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment eliminates the distinction appearing in the present rule between the permissible length in pages of printed and typewritten briefs, investigation of the matter having disclosed that the number of words on the printed page is little if any larger than the number on a page typed in standard elite type. The provision is made subject to local rule to permit the court of appeals to require that typewritten briefs be typed in larger type and permit a correspondingly larger number of pages. Subdivision (j). Proposed new Rule 28(j) makes provision for calling the court's attention to authorities that come to the party's attention after the brief has been filed. It is patterned after the practice under local rule in some of the circuits. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT While Rule 28(g) can be read as requiring that tables of authorities be included in a reply brief, such tables are often not included. Their absence impedes efficient use of the reply brief to ascertain the appellant's response to a particular argument of the appellee or to the appellee's use of a particular authority. The amendment to Rule 28(c) is intended to make it clear that such tables are required in reply briefs. The amendment to Rule 28(j) is technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT The amendment provides that the corporate disclosure statement required by new rule 26.1 shall be treated similarly to tables of contents and tables of citations and shall not be counted for purposes of the number of pages allowed in a brief. -CROSS- CROSS REFERENCES Harmless error, see section 2111 of this title. ------DocID 37072 Document 3 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 28 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 28. Persons Before Whom Depositions May Be Taken -STATUTE- (a) Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term officer as used in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29. (b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed 'To the Appropriate Authority in (here name the country).' Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. (c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES In effect this rule is substantially the same as U.S.C., Title 28, (former) Sec. 639 (Depositions de bene esse; when and where taken; notice). U.S.C., Title 28, (former) Sec. 642 (Depositions, acknowledgements, and affidavits taken by notaries public) does not conflict with subdivision (a). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The added language (in subdivision (a)) provides for the situation, occasionally arising, when depositions must be taken in an isolated place where there is no one readily available who has the power to administer oaths and take testimony according to the terms of the rule as originally stated. In addition, the amendment affords a more convenient method of securing depositions in the case where state lines intervene between the location of various witnesses otherwise rather closely grouped. The amendment insures that the person appointed shall have adequate power to perform his duties. It has been held that a person authorized to act in the premises, as, for example, a master, may take testimony outside the district of his appointment. Consolidated Fastener Co. v. Columbian Button & Fastener Co., C.C.N.D.N.Y. 1898, 85 Fed. 54; Mathieson Alkali Works v. Arnold Hoffman & Co., C.C.A.1st, 1929, 31 F.2d 1. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT The amendment of clause (1) is designed to facilitate depositions in foreign countries by enlarging the class of persons before whom the depositions may be taken on notice. The class is no longer confined, as at present, to a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States. In a country that regards the taking of testimony by a foreign official in aid of litigation pending in a court of another country as an infringement upon its sovereignty, it will be expedient to notice depositions before officers of the country in which the examination is taken. See generally Symposium, Letters Rogatory (Grossman ed. 1956); Doyle, Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 37 (1959); Heilpern, Procuring Evidence Abroad, 14 Tul.L.Rev. 29 (1939); Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 526-29 (1953); Smit, International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1056-58 (1961). Clause (2) of amended subdivision (b), like the corresponding provision of subdivision (a) dealing with depositions taken in the United States, makes it clear that the appointment of a person by commission in itself confers power upon him to administer any necessary oath. It has been held that a letter rogatory will not be issued unless the use of a notice or commission is shown to be impossible or impractical. See, e.g., United States v. Matles, 154 F.Supp. 574 (E.D.N.Y. 1957); The Edmund Fanning, 89 F.Supp. 282 (E.D.N.Y. 1950); Branyan v. Koninklijke Luchtvaart Maatschappij, 13 F.R.D. 425 (S.D.N.Y. 1953). See also Ali Akber Kiachif v. Philco International Corp., 10 F.R.D. 277 (S.D.N.Y. 1950). The intent of the fourth sentence of the amended subdivision is to overcome this judicial antipathy and to permit a sound choice between depositions under a letter rogatory and on notice or by commission in the light of all the circumstances. In a case in which the foreign country will compel a witness to attend or testify in aid of a letter rogatory but not in aid of a commission, a letter rogatory may be preferred on the ground that it is less expensive to execute, even if there is plainly no need for compulsive process. A letter rogatory may also be preferred when it cannot be demonstrated that a witness will be recalcitrant or when the witness states that he is willing to testify voluntarily, but the contingency exists that he will change his mind at the last moment. In the latter case, it may be advisable to issue both a commission and a letter rogatory, the latter to be executed if the former fails. The choice between a letter rogatory and a commission may be conditioned by other factors, including the nature and extent of the assistance that the foreign country will give to the execution of either. In executing a letter rogatory the courts of other countries may be expected to follow their customary procedure for taking testimony. See United States v. Paraffin Wax, 2255 Bags, 23 F.R.D. 289 (E.D.N.Y. 1959). In many non-common-law countries the judge questions the witness, sometimes without first administering an oath, the attorneys put any supplemental questions either to the witness or through the judge, and the judge dictates a summary of the testimony, which the witness acknowledges as correct. See Jones, supra, at 530-32; Doyle, supra, at 39-41. The last sentence of the amended subdivision provides, contrary to the implications of some authority, that evidence recorded in such a fashion need not be excluded on that account. See The Mandu, 11 F.Supp. 845 (E.D.N.Y. 1935). But cf. Nelson v. United States, 17 Fed.Cas. 1340 (No. 10,116) (C.C.D.Pa. 1816); Winthrop v. Union Ins. Co., 30 Fed.Cas. 376 (No. 17901) (C.C.D.Pa. 1807). The specific reference to the lack of an oath or a verbatim transcript is intended to be illustrative. Whether or to what degree the value or weight of the evidence may be affected by the method of taking or recording the testimony is left for determination according to the circumstances of the particular case, cf. Uebersee Finanz-Korporation, A.G. v. Brownell, 121 F.Supp. 420 (D.D.C. 1954); Danisch v. Guardian Life Ins. Co., 19 F.R.D. 235 (S.D.N.Y. 1956); the testimony may indeed be so devoid of substance or probative value as to warrant its exclusion altogether. Some foreign countries are hostile to allowing a deposition to be taken in their country, especially by notice or commission, or to lending assistance in the taking of a deposition. Thus compliance with the terms of amended subdivision (b) may not in all cases ensure completion of a deposition abroad. Examination of the law and policy of the particular foreign country in advance of attempting a deposition is therefore advisable. See 4 Moore's Federal Practice 28.05-28.08 (2d ed. 1950). NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT The amendments are clarifying. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Certification and filing of depositions by officer, see rule 30. Compensation of person taking deposition, see section 1821 of this title. Foreign witnesses, depositions of, see section 1781 of this title. Letters rogatory, failure to respond, see rule 37. Taking responses to written interrogatories and preparation of record, see rule 31. Waiver as to disqualification of officer, see rule 32. ------DocID 37171 Document 4 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 28 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 28. Notice: Condemnation -STATUTE- United States District Court for the Southern District of New York CIVIL ACTION, FILE NUMBER XX United States of America, Plaintiff v. 1,000 Acres of Land in Notice (here insert a general location as 'City of XX' or 'County of XX'), John Doe et al., and Unknown Owners, Defendants To (here insert the names of the defendants to whom the notice is directed): You are hereby notified that a complaint in condemnation has heretofore been filed in the office of the clerk of the United States District Court for the Southern District of New York, in the United States Court House in New York City, New York, for the taking (here state the interest to be acquired, as 'an estate in fee simple') for use (here state briefly the use, 'as a site for a post-office building') of the following described property in which you have or claim an interest. (Here insert brief description of the property in which the defendants, to whom the notice is directed, have or claim an interest.) The authority for the taking is (here state briefly, as 'the Act of XXX, XXX Stat. XXX, U.S.C., Title XXX, Sec. XXX'.) (FOOTNOTE 1) You are further notified that if you desire to present any objection or defense to the taking of your property you are required to serve your answer on the plaintiff's attorney at the address herein designated within twenty days after XXXXXXXX. (FOOTNOTE 2) Your answer shall identify the property in which you claim to have an interest, state the nature and extent of the interest you claim, and state all of your objections and defenses to the taking of your property. All defenses and objections not so presented are waived. And in case of your failure so to answer the complaint, judgment of condemnation of that part of the above-described property in which you have or claim an interest will be rendered. But without answering, you may serve on the plaintiff's attorney a notice of appearance designating the property in which you claim to be interested. Thereafter you will receive notice of all proceedings affecting it. At the trial of the issue of just compensation, whether or not you have previously appeared or answered, you may present evidence as to the amount of the compensation to be paid for your property, and you may share in the distribution of the award. XXXXXXXXXXXXXXXXX United States Attorney. Address XXXXXXXXXXXXX (Here state an address within the district where the United States Attorney may be served as 'United States Court House, New York, N.Y.'.) Dated XXXX (FOOTNOTE 1) And where appropriate add a citation to any applicable Executive Order. (FOOTNOTE 2) Here insert the words 'personal service of this notice upon you,' if personal service is to be made pursuant to subdivision (d)(3)(i) of this rule (Rule 71A); or, insert the date of the last publication of notice, if service by publication is to be made pursuant to subdivision (d)(3)(ii) of this rule. -SOURCE- (Added May 1, 1951, eff. Aug. 1, 1951.) ------DocID 37457 Document 5 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 28 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 28. Persons Before Whom Depositions May Be Taken - Commissions and Letters Rogatory -STATUTE- (a) Within the United States. At any place within the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court. A person so appointed has power to administer oaths and take testimony. (b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. (c) Commissions and Letters Rogatory - How Issued - When Issued - Interrogatories - Objections to Interrogatories. (1) A commission or a letter rogatory shall be issued in the name of the President of the United States and under the seal of the court to examine witnesses resident in another country. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. (2) Commissions or letters rogatory to take depositions shall be issued only upon order pursuant to a motion made in writing, after answer is filed, setting forth the names and addresses of the witnesses whose testimony is sought. (3) The proposed interrogatories shall be annexed to the motion for a commission or a letter rogatory. Unless the court orders otherwise, cross-interrogatories shall be served within 15 days after the motion is granted; within 10 days thereafter, redirect interrogatories may be served; and within 10 days thereafter, recross-interrogatories may be served. (4) Objections to all interrogatories may be made at the trial to the same extent and under the same conditions as provided in Rule 32 with respect to depositions on oral examination. Any objections to such interrogatories which are required to be made prior to the issuance of a commission or a letter rogatory shall be served within the time provided for the next succeeding interrogatories, or in the case of recross-interrogatories, within 10 days after service thereof. (d) Commissions and Letters Rogatory - To Whom Issued - Taking of Testimony - Use of Testimony. (1) Commissions may be issued to an American consul, or to a notary public, or other officer authorized to administer oaths by the laws of the country where the deposition is taken. Letters rogatory may be issued to a foreign or international tribunal, officer, or agency and may be addressed 'To the Appropriate Judicial Authority in (here name the country).' (2) Such commissions or letters rogatory, together with all interrogatories, shall be forwarded by the clerk of the court immediately after the time for filing objections to the last interrogatory has expired, or, if objection is made, immediately after the court's ruling on the last interrogatory becomes final, with directions to proceed promptly to take the testimony of the witness in response to all the interrogatories and to prepare, certify, and return the deposition to the clerk of the court, attaching thereto the commission or letter rogatory and all interrogatories. (3) The answers of each witness under oath to all interrogatories shall be in writing and signed by the official commissioned pursuant to paragraph (1) of this subdivision. The testimony so taken may be used in the same manner as prescribed in Rule 32. (e) Return, Notice, Filing of Deposition. Upon the return of the deposition the clerk of the court shall open and file it forthwith and give notice thereof to the parties. Any written motion to suppress such deposition, or any part thereof, shall be served within 30 days after the mailing of the notice. Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it departs from the requirements for depositions taken within the United States under these rules. (f) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37350 Document 6 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 28 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 28. Persons Before Whom Depositions May Be Taken -STATUTE- (a) Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held or before a person appointed by the court. A person so appointed has power to administer oaths and take testimony. The term officer as used in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29. (b) In Foreign Countries. In a foreign country, depositions may be taken: (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States; or (2) before a person commissioned by the court and a person so commissioned shall have the power by virtue of the person's commission to administer any necessary oath and take testimony; or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed 'To the Appropriate Authority in (here name the country).' Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. (c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. (d) Fees. The party at whose instance the deposition is taken shall be responsible for the payment of the officer's fees for taking, transcribing, and returning the deposition. ------DocID 37294 Document 7 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 28 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- Rule 28. Oral Argument -STATUTE- .1. Oral argument should emphasize and clarify the written arguments appearing in the briefs on the merits. Counsel should assume that all Justices of the Court have read the briefs in advance of oral argument. The Court looks with disfavor on oral argument read from a prepared text. .2. The petitioner or appellant is entitled to open and conclude the argument. A cross-writ of certiorari shall be argued with the initial writ of certiorari as one case in the time allowed for that one case and the Court will advise the parties who will open and close. .3. Unless otherwise directed, one-half hour on each side is allowed for argument. Counsel is not required to use all the allotted time. A request for additional time to argue must be presented by a motion to the Court under Rule 21 not later than 15 days after service of the petitioner's or appellant's brief on the merits and shall set forth with specificity and conciseness why the case cannot be presented within the half-hour limitation. Additional time is rarely accorded. .4. Only one attorney will be heard for each side, except by special permission granted upon a request presented not later than 15 days after service of the petitioner's or appellant's brief on the merits. The request must be presented by a motion to the Court under Rule 21 and shall set forth with specificity and conciseness why more than one attorney should argue. Divided argument is not favored. .5. In any case, and regardless of the number of counsel participating, counsel having the opening must present the case fairly and completely and not reserve points of substance for rebuttal. .6. Oral argument will not be allowed on behalf of any party for whom no brief has been filed. .7. By leave of the Court, and subject to paragraph .4 of this Rule, counsel for an amicus curiae whose brief has been duly filed pursuant to Rule 37 may, with the consent of a party, argue orally on the side of that party. In the absence of consent, counsel for an amicus curiae may orally argue only by leave of the Court on a motion particularly setting forth why oral argument is thought to provide assistance to the Court not otherwise available. The motion will be granted only in the most extraordinary circumstances. ------DocID 17770 Document 8 of 1452------ -CITE- 15 USC Sec. 80a-28 -EXPCITE- TITLE 15 CHAPTER 2D SUBCHAPTER I -HEAD- Sec. 80a-28. Face-amount certificate companies -STATUTE- (a) Issuance or sale of certificates It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless - (1) such company, if organized before March 15, 1940, was actively and continuously engaged in selling face-amount certificates on and before that date, and has outstanding capital stock worth upon a fair valuation of assets not less than $50,000; or if organized on or after March 15, 1940, has capital stock in an amount not less than $250,000 which has been bona fide subscribed and paid for in cash; and (2) such company maintains at all times minimum certificate reserves on all its outstanding face-amount certificates in an aggregate amount calculated and adjusted as follows: (A) the reserves for each certificate of the installment type shall be based on assumed annual, semi-annual, quarterly, or monthly reserve payments according to the manner in which gross payments for any certificate year are made by the holder, which reserve payments shall be sufficient in amount, as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, to provide the minimum maturity or face amount of the certificate when due. Such reserve payments may be graduated according to certificate years so that the reserve payment or payments for the first certificate year shall amount to at least 50 per centum of the required gross annual payment for such year and the reserve payment or payments for each of the second to fifth certificate years inclusive shall amount to at least 93 per centum of each such year's required gross annual payment and for the sixth and each subsequent certificate year the reserve payment or payments shall amount to at least 96 per centum of each such year's required gross annual payment: Provided, That such aggregate reserve payments shall amount to at least 93 per centum of the aggregate gross annual payments required to be made by the holder to obtain the maturity of the certificate. The company may at its option take as loading from the gross payment or payments for a certificate year, as and when made by the certificate holder, an amount or amounts equal in the aggregate for such year to not more than the excess, if any, of the gross payment or payments required to be made by the holder for such year, over and above the percentage of the gross annual payment required herein for such year for reserve purposes. Such loading may be taken by the company prior to or after the setting up of the reserve payment or payments for such year and the reserve payment or payments for such year may be graduated and adjusted to correspond with the amount of the gross payment or payments made by the certificate holder for such year less the loading so taken; (B) if the foregoing minimum percentages of the gross annual payments required under the provisions of such certificate should produce reserve payments larger than are necessary at 3 1/2 per centum per annum compounded annually to provide the minimum maturity or face amount of the certificate when due, the reserve shall be based upon reserve payments accumulated as provided under preceding subparagraph (A) of this paragraph except that in lieu of the 3 1/2 per centum rate specified therein, such rate shall be lowered to the minimum rate, expressed in multiples of one-eighth of 1 per centum, which will accumulate such reserve payments to the maturity value when due; (C) if the actual annual gross payment to be made by the certificate holder on any certificate issued prior to or after the effective date of this chapter is less than the amount of any assumed reserve payment or payments for a certificate year, such company shall maintain as a part of such minimum certificate reserves a deficiency reserve equal to the total present value of future deficiencies in the gross payments, calculated at a rate not to exceed 3 1/2 per centum per annum compounded annually; (D) for each certificate of the installment type the amount of the reserve shall at any time be at least equal to (1) the then amount of the reserve payments set up under subparagraphs (A) or (B) of this paragraph; (2) the accumulations on such reserve payments as computed under subparagraphs (A) or (B) of this paragraph; (3) the amount of any deficiency reserve required under subparagraph (C) of this paragraph; and (4) such amount as shall have been credited to the account of each certificate holder in the form of any credit, or any dividend, or any interest in addition to the minimum maturity amount specified in such certificate, plus any accumulations on any amount or amounts so credited, at a rate not exceeding 3 1/2 per centum per annum compounded annually; (E) for each certificate which is fully paid, including any fully paid obligations resulting from or effected upon the maturity of the previously issued certificate, and for each paid-up certificate issued as provided in subsection (f) of this section prior to maturity, the amount of the reserve shall at any time be at least equal to (1) such amount as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, will provide the amount or amounts payable when due and (2) such amount as shall have been credited to the account of each such certificate holder in the form of any credit, or any dividend, or any interest in addition to the minimum maturity amount specified in the certificate, plus any accumulations on any amount or amounts so credited, at a rate not exceeding 3 1/2 per centum per annum compounded annually; (F) for each certificate of the installment type under which gross payments have been made by or credited to the holder thereof covering a payment period or periods or any part thereof beyond the then current payment period as defined by the terms of such certificate, and for which period or periods no reserve has been set up under subparagraph (A) or (B) of this paragraph, an advance payment reserve shall be set up and maintained in the amount of the present value of any such unapplied advance gross payments, computed at a rate not to exceed 3 1/2 per centum per annum compounded annually; (G) such appropriate contingency reserves for death and disability benefits and for reinstatement rights on any such certificate providing for such benefits or rights as the Commission shall prescribe by rule, regulation, or order based upon the experience of face-amount companies in relation to such contingencies. At no time shall the aggregate certificate reserves herein required by subparagraphs (A) to (F) of this paragraph, be less than the aggregate surrender values and other amounts to which all certificate holders may be then entitled. For the purpose of this subsection, no certificate of the installment type shall be deemed to be outstanding if before a surrender value has been attained the holder thereof has been in continuous default in making his payments thereon for a period of one year. (b) Asset requirements prior to sale of certificates It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless such company has, in cash or qualified investments, assets having a value not less than the aggregate amount of the capital stock requirement and certificate reserves as computed under the provisions of subsection (a) of this section. As used in this subsection, 'qualified investments' means investments of a kind which life-insurance companies are permitted to invest in or hold under the provisions of the Code of the District of Columbia as heretofore or hereafter amended, and such other investments as the Commission shall by rule, regulation, or order authorize as qualified investments. Such investments shall be valued in accordance with the provisions of said Code where such provisions are applicable. Investments to which such provisions do not apply shall be valued in accordance with such rules, regulations, or orders as the Commission shall prescribe for the protection of investors. (c) Certificate reserve requirements The Commission shall by rule, regulation, or order, in the public interest or for the protection of investors, require a registered face-amount certificate company to deposit and maintain, upon such terms and conditions as the Commission shall prescribe and as are appropriate for the protection of investors, with one or more institutions having the qualifications required by paragraph (1) of section 80a-26(a) of this title for a trustee of a unit investment trust, all or any part of the investments maintained by such company as certificate reserve requirements under the provisions of subsection (b) of this section: Provided, however, That where qualified investments are maintained on deposit by such company in respect of its liabilities under certificates issued to or held by residents of any State as required by the statute of such State or by any order, regulation, or requirement of such State or any official or agency thereof, the amount so on deposit, but not to exceed the amount of reserves required by subsection (a) of this section for the certificates so issued or held, shall be deducted from the amount of qualified investments that may be required to be deposited hereunder. Assets which are qualified investments under subsection (b) of this section and which are deposited under or as permitted by this subsection, may be used and shall be considered as a part of the assets required to be maintained under the provisions of said subsection (b). (d) Provisions required in certificate It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless such certificate contains a provision or provisions to the effect - (1) that, in respect of any certificate of the installment type, during the first certificate year the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the reserve payments as specified in subparagraph (A) or (B) of paragraph (2) of subsection (a) of this section and at the end of such certificate year, a value payable in cash at least equal to 50 per centum of the amount of the gross annual payment required thereby for such year; (2) that, in respect of any certificate of the installment type, at any time after the expiration of the first certificate year and prior to maturity, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by numbered items (1) and (2) of subparagraph (D) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser, but in no event shall such value be less than 50 per centum of the amount of such reserve. The amount of the surrender value for the end of each certificate year shall be set out in the certificate; (3) that, in respect of any certificate of the installment type, the holder of the certificate, upon surrender thereof for cash or upon receipt of a paid-up certificate as provided in subsection (f) of this section, shall be entitled to a value payable in cash equal to the then amount of any advance payment reserve under such certificate required by subparagraph (F) of paragraph (2) of subsection (a) of this section in addition to any other amounts due the holder hereunder; (4) that at any time prior to maturity, in respect of any certificate which is fully paid, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by item (1) of subparagraph (E) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser: Provided, however, That such surrender charge shall not apply as to any obligations of a fully paid type resulting from the maturity of a previously issued certificate. The amount of the surrender value for the end of each certificate year shall be set out in the certificate; (5) that in respect of any certificate, the holder of the certificate, upon maturity, upon surrender thereof for cash or upon receipt of a paid-up certificate as provided in subsection (f) of this section, shall be entitled to a value payable in cash equal to the then amount of the reserve, if any, for such certificate required by item (4) of subparagraph (D) of paragraph (2) of subsection (a) of this section or item (2) of subparagraph (E) of paragraph (2) of said subsection (a) in addition to any other amounts due the holder hereunder. The term 'certificate year' as used in this section in respect of any certificate of the installment type means a period or periods for which one year's payment or payments as provided by the certificate have been made thereon by the holder and the certificate maintained in force by such payments for the time for which the same have been made, and in respect of any certificate which is fully paid or paid-up means any year ending on the anniversary of the date of issuance of the certificate. Any certificate may provide for loans or advances by the company to the certificate holder on the security of such certificate upon terms prescribed therein but at an interest rate not exceeding 6 per centum per annum. The amount of the required reserves, deposits, and the surrender values thereof available to the holder may be adjusted to take into account any unpaid balance on such loans or advances and interest thereon, for the purposes of this subsection and subsections (b) and (c) of this section. Any certificate may provide that the company at its option may, prior to the maturity thereof, defer any payment or payments to the certificate holder to which he may be entitled under this subsection, for a period of not more than thirty days: Provided, That in the event such option is exercised by the company, interest shall accrue on any payment or payments due to the holder, for the period of such deferment at a rate equal to that used in accumulating the reserves for such certificate: And provided further, That the Commission may, by rules and regulations or orders in the public interest or for the protection of investors, make provision for any other deferment upon such terms and conditions as it shall prescribe. (e) Liability of holder to legal action for unpaid amount of certificate It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, which certificate makes the holder liable to any legal action or proceeding for any unpaid amount on such certificate. (f) Optional right to paid up certificate in lieu of cash surrender value It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, (1) unless such face-amount certificate contains a provision or provisions to the effect that the holder shall have an optional right to receive a paid-up certificate in lieu of the then attained cash surrender value provided therein and in the amount of such value plus accumulations thereon at a rate to be specified in the paid-up certificate equal to that used in computing the reserve on the original certificate under subparagraph (A) or (B) of paragraph (2) of subsection (a) of this section, such paid-up certificate to become due and payable at the end of a period equal to the balance of the term of such original certificate before maturity; and during the period prior to maturity such paid-up certificate shall have a cash value upon surrender thereof equal to the then amount of the reserve therefor; and (2) unless such face-amount certificate contains a further provision or provisions to the effect that if the holder be in continuous default in his payments on such certificate for a period of six months without having exercised his option to receive a paid-up certificate, as herein provided, the company at the expiration of such six months shall pay the surrender value in cash if such value is less than $100 or if such value is $100 or more shall issue such paid-up certificate to such holder and such payment or issuance, plus the payment of all other amounts to which he may be then entitled under the original certificate, shall operate to cancel his original certificate: Provided, That in lieu of the issuance of a new paid-up certificate the original certificate may be converted into a paid-up certificate with the same effect; and (3) unless, where such certificate provides, in the event of default, for the deferment of payments thereon by the holder or of the due dates of such payments or of the maturity date of the certificate, it shall also provide in effect for the right of reinstatement by the holder of the certificate after default and for an option in the holder, at the time of reinstatement, to make up the payment or payments for the default period next preceding such reinstatement with interest thereon not exceeding 6 per centum per annum, with the same effect as if no such default in making such payments had occurred. The term 'default' as used in this subsection shall, without restricting its usual meaning, include a failure to make a payment or payments as and when provided by the certificate. (g) Application of section to company issuing certificates only to holders of previously issued certificates The foregoing provisions of this section shall not apply to a face-amount certificate company which on or before the effective date of this chapter has discontinued the offering of face-amount certificates to the public and issues face-amount certificates only to the holders of certificates previously issued pursuant to an obligation expressed or implied in such certificates. (h) Declaration or payment of dividends It shall be unlawful for any registered face-amount certificate company which does not maintain the minimum certificate reserve on all its outstanding face-amount certificates issued prior to the effective date of this chapter, in an aggregate amount calculated and adjusted as provided in this section to declare or pay any dividends on the shares of such company for or during any calendar year which shall exceed one-third of the net earnings for the next preceding calendar year or which shall exceed 10 per centum of the aggregate net earnings for the next preceding five calendar years, whichever is the lesser amount, or any dividend which shall have been forbidden by the Commission pursuant to the provision of the next sentence of this paragraph. At least thirty days before such company shall declare, pay, or distribute any dividend, it shall give the Commission written notice of its intention to declare, pay, or distribute the same; and if at any time it shall appear to the Commission that the declaration, payment or distribution of any dividend for or during any calendar year might impair the financial integrity of such company or its ability to meet its liabilities under its outstanding face-amount certificates, it may by order forbid the declaration, distribution, or payment of any such dividend. (i) Application of section to certificates issued prior to effective date of section The foregoing provisions of this section shall apply to all face-amount certificates issued prior to the effective date of this subsection; to the collection or acceptance of any payment on such certificates; to the issuance of face-amount certificates to the holders of such certificates pursuant to an obligation expressed or implied in such certificates; to the provisions of such certificates; to the minimum certificate reserves and deposits maintained with respect thereto; and to the assets that the issuer of such certificate was and is required to have with respect to such certificates. With respect to all face-amount certificates issued after the effective date of this subsection, the provisions of this section shall apply except as hereinafter provided. (1) Notwithstanding subparagraph (A) of paragraph (2) of subsection (a) of this section, the reserves for each certificate of the installment type shall be based on assumed annual, semiannual, quarterly, or monthly reserve payments according to the manner in which gross payments for any certificate year are made by the holder, which reserve payments shall be sufficient in amount, as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, to provide the minimum maturity or face amount of the certificate when due. Such reserve payments may be graduated according to certificate years so that the reserve payment or payments for the first three certificate years shall amount to at least 80 per centum of the required gross annual payment for such years; the reserve payment or payments for the fourth certificate year shall amount to at least 90 per centum of such year's required gross annual payment; the reserve payment or payments for the fifth certificate year shall amount to at least 93 per centum of such year's gross annual payment; and for the sixth and each subsequent certificate year the reserve payment or payments shall amount to at least 96 per centum of each such year's required gross annual payment: Provided, That such aggregate reserve payments shall amount to at least 93 per centum of the aggregate gross annual payments required to be made by the holder to obtain the maturity of the certificate. The company may at its option take as loading from the gross payment or payments for a certificate year, as and when made by the certificate holder, an amount or amounts equal in the aggregate for such year to not more than the excess, if any, of the gross payment or payments required to be made by the holder for such year, over and above the percentage of the gross annual payment required herein for such year for reserve purposes. Such loading may be taken by the company prior to or after the setting up of the reserve payment or payments for such year and the reserve payment or payments for such year may be graduated and adjusted to correspond with the amount of the gross payment or payments made by the certificate holder for such year less the loading so taken. (2) Notwithstanding paragraphs (1) and (2) of subsection (d) of this section, (A) in respect of any certificate of the installment type, during the first certificate year, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than 80 per centum of the amount of the gross payments made on the certificate; and (B) in respect of any certificate of the installment type, at any time after the expiration of the first certificate year and prior to maturity, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by clauses (1) and (2) of subparagraph (D) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser, but in no event shall such value be less than 80 per centum of the gross payments made on the certificate. The amount of the surrender value for the end of each certificate year shall be set out in the certificate. -SOURCE- (Aug. 22, 1940, ch. 686, title I, Sec. 28, 54 Stat. 829; Dec. 14, 1970, Pub. L. 91-547, Sec. 17, 84 Stat. 1426; Dec. 4, 1987, Pub. L. 100-181, title VI, Sec. 620, 621, 101 Stat. 1262.) -REFTEXT- REFERENCES IN TEXT For the effective date of this subchapter, referred to in subsecs. (a), (b), (d), (e), and (f), see section 80a-52 of this title. For the effective date of this chapter, referred to in subsecs. (a)(2)(C), (g), and (h), see sections 80a-52 and 80b-21 of this title. For the effective date of this subsection, referred to in subsec. (i), as the day upon expiration of 6 months after Dec. 14, 1970, see section 30(3) of Pub. L. 91-547, set out as a note under section 80a-52 of this title. -MISC2- AMENDMENTS 1987 - Subsec. (a)(2)(B). Pub. L. 100-181, Sec. 620, substituted 'paragraph' for 'subsection'. Subsec. (d)(2). Pub. L. 100-181, Sec. 621, inserted 'of' before 'subsection (a)'. 1970 - Subsec. (i). Pub. L. 91-547 added subsec. (i). EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-547 effective on expiration of six months after Dec. 14, 1970, see section 30(3) of Pub. L. 91-547, set out as a note under section 80a-2 of this title. -TRANS- TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. -CROSS- CROSS REFERENCES Organization of face-amount certificate companies by registered face-amount certificate company, see section 80a-12 of this title. Value as to assets of registered investment companies, definition of, see section 80a-2 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 80a-2, 80a-6, 80a-12 of this title. ------DocID 18457 Document 9 of 1452------ -CITE- 15 USC CHAPTER 28 -EXPCITE- TITLE 15 CHAPTER 28 -HEAD- CHAPTER 28 - DISCLOSURE OF AUTOMOBILE INFORMATION -MISC1- Sec. 1231. Definitions. 1232. Label and entry requirements. 1232a. Repealed. 1233. Violations and penalties. (a) Failure to affix required label. (b) Failure to endorse required label. (c) Removal, alteration, or illegibility of required label. ------DocID 21121 Document 10 of 1452------ -CITE- 16 USC Sec. 460m-28 -EXPCITE- TITLE 16 CHAPTER 1 SUBCHAPTER LXXI-A -HEAD- Sec. 460m-28. Flow management -STATUTE- (a) Findings The Congress finds that adjustments of flows from Bluestone Lake project during periods of low flow are necessary to respond to the congressional mandate contained in section 460m-23 of this title and that such adjustments could enhance the quality of the recreational experience in the segments of the river below the lake during those periods as well as protect the biological resources of the river. (b) Report to Congress required The Secretary of the Army, in conjunction with the Secretary of the Interior, shall conduct a study and prepare a report under this section. The report shall be submitted to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Interior and Insular Affairs of the United States House of Representatives not later than December 31, 1989. Before submission of the report to these Committees, a draft of the report shall be made available for public comment. The final report shall include the comments submitted by the Secretary of the Interior and the public, together with the response of the Secretary of the Army to those comments. (c) Contents of study The study under this section shall examine the feasibility of adjusting the timing of daily releases from Bluestone Lake project during periods when flows from the lake are less than three thousand cubic feet per second. The purpose of such adjustment shall be to improve recreation (including, but not limited to, fishing and whitewater recreation) in the New River Gorge National River. Any such adjustments in the timing of flows which are proposed in such report shall be consistent with other project purposes and shall not have significant adverse effects on fishing or on any other form of recreation in Bluestone Lake or in any segment of the river below Bluestone Lake. The study shall assess the effects of such flow adjustments on the quality of recreation on the river in the segments of the river between Hinton and Thurmond and between Thurmond and the downstream boundary of the New River Gorge National River, taking into account the levels of recreational visitation in each of such segments. (d) Test procedures As part of the study under this section, the Secretary of the Army shall conduct test releases from Bluestone Lake project during twenty-four-hour periods during the summer of 1989 when flows are less than three thousand cubic feet per second from the project. All such adjustments shall conform to the criteria specified in subsection (c) of this section. The tests shall provide adjustments in the timing of daily flows from Bluestone Lake project which permit flows higher than the twenty-four-hour average to reach downstream recreational segments of the river during morning and afternoon hours. The tests shall develop specific data on the effects of flow adjustments on the speed of the current and on water surface levels in those segments. No test shall be conducted when flows from the lake are less than one thousand seven hundred cubic feet per second and no test shall reduce flows below that level. -SOURCE- (Pub. L. 95-625, title XI, Sec. 1115, as added Pub. L. 100-534, title I, Sec. 104, Oct. 26, 1988, 102 Stat. 2701.) ------DocID 22894 Document 11 of 1452------ -CITE- 16 USC CHAPTER 28 -EXPCITE- TITLE 16 CHAPTER 28 -HEAD- CHAPTER 28 - WILD AND SCENIC RIVERS -MISC1- Sec. 1271. Congressional declaration of policy. 1272. Congressional declaration of purpose. 1273. National wild and scenic rivers system. (a) Composition; application; publication in Federal Register; expense; administration of federally owned lands. (b) Classification, designation, and administration of rivers. 1274. Component rivers and adjacent lands. (a) Designation. (b) Establishment of boundaries; classification. (c) Public inspection of maps and descriptions. (d) Comprehensive management plan for protection of river values; review of boundaries, classifications, and plans. 1275. Additions to national wild and scenic rivers system. (a) Reports by Secretaries of the Interior and Agriculture; recommendations to Congress; contents of reports. (b) Study of report by affected Federal and State officials; recommendations and comments; transmittal to President and Congress. (c) Publication in Federal Register. (d) Areas comprised by boundaries; scope of study report. 1276. Rivers constituting potential additions to national wild and scenic rivers system. (a) Enumeration of designated rivers. (b) Studies and reports. (c) State participation. (d) Continuing consideration by Federal agencies to potential national, wild, scenic and recreational river areas. 1277. Land acquisition. (a) Grant of authority to acquire; State and Indian lands; use of appropriated funds; acquisition of tracts partially outside component boundaries; disposition of lands. (b) Curtailment of condemnation power in area 50 per centum or more of which is owned in fee title by Federal or State government. (c) Curtailment of condemnation power in urban areas covered by valid and satisfactory zoning ordinances. (d) Exchange of property. (e) Transfer of jurisdiction over federally owned property to appropriate Secretary. (f) Acceptance of donated land, funds, and other property. (g) Retained right of use and occupancy; termination; fair market value; 'improved property' defined. 1278. Restrictions on water resources projects. (a) Construction projects licensed by Federal Energy Regulatory Commission. (b) Construction projects on rivers designated for potential addition to system. (c) Activities in progress affecting river of system; notice to Secretary. (d) Grants under Land and Water Conservation Fund Act of 1965. 1279. Withdrawal of public lands from entry, sale, or other disposition under public land laws. (a) Lands within authorized boundaries of components of system. (b) Lands constituting bed or bank of river; lands within bank area. 1280. Federal mining and mineral leasing laws. (a) Applicability to components of system. (b) Withdrawal from appropriation of minerals in Federal river beds or bank areas; prospecting, leases, licenses, and permits. 1281. Administration. (a) Public use and enjoyment of components; protection of features; management plans. (b) Wilderness areas. (c) Areas administered by National Park Service and Fish and Wildlife Service. (d) Statutory authorities relating to national forests. (e) Cooperative agreements with State and local governments. 1282. Assistance to State and local projects. (a) Assistance of the Secretary of the Interior. (b) Assistance of Secretaries of Interior, Agriculture, or other Federal agency heads; use of Federal facilities, equipment, etc.; conditions on permits or other authorizations. 1283. Management policies. (a) Action of Secretaries and heads of agencies; cooperative agreements. (b) Existing rights, privileges, and contracts affecting Federal lands. (c) Water pollution. 1284. Existing State jurisdiction and responsibilities. (a) Fish and wildlife. (b) Compensation for water rights. (c) Reservation of waters for other purposes or in unnecessary quantities prohibited. (d) State jurisdiction over included streams. (e) Interstate compacts. (f) Rights of access to streams. (g) Easements and rights-of-way. 1285. Claim and allowance of charitable deduction for contribution or gift of easement. 1285a. Lease of Federal lands. (a) Authority of Secretary; restrictive covenants. (b) Offer to prior owner. 1285b. Establishment of boundaries for certain component rivers in Alaska; withdrawal of minerals. 1286. Definitions. 1287. Authorization of appropriations. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 460gg-3, 460bbb-3, 544k of this title. ------DocID 25113 Document 12 of 1452------ -CITE- 18 USC APPENDIX - RULES OF CRIMINAL PROCEDURE Rule 28 -EXPCITE- TITLE 18 RULES OF CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS VI -HEAD- Rule 28. Interpreters -STATUTE- The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. Such compensation shall be paid out of funds provided by law or by the government, as the court may direct. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, eff. July 1, 1975.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The power of the court to call its own witnesses, though rarely invoked, is recognized in the Federal courts, Young v. United States, 107 F.2d 490 (C.C.A. 5th); Litsinger v. United States, 44 F.2d 45 (C.C.A. 7th). This rule provides a procedure whereby the court may, if it chooses, exercise this power in connection with expert witnesses. The rule is based, in part, on the Uniform Expert Testimony Act, drafted by the Commissioners on Uniform State Laws, Hand Book of the National Conference of Commissioners on Uniform State Laws (1937), 337; see, also, Wigmore - Evidence, 3d Ed., sec. 563; A.L.I. Code of Criminal Procedure, secs. 307-309; National Commission on Law of Observance and Enforcement - Report on Criminal Procedure, 37. Similar provisions are found in the statutes of a number of States: Wisconsin - Wis.Stat. (1941), sec. 357.12; Indiana - Ind.Stat.Ann. (Burns, 1933), sec. 9-1702; California - Cal.Pen.Code (Deering, 1941), sec. 1027. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Subdivision (a). - The original rule is made a separate subdivision. The amendment permits the court to inform the witness of his duties in writing since it often constitutes an unnecessary inconvenience and expense to require the witness to appear in court for such purpose. Subdivision (b). - This new subdivision authorizes the court to appoint and provide for the compensation of interpreters. General language is used to give discretion to the court to appoint interpreters in all appropriate situations. Interpreters may be needed to interpret the testimony of non-English speaking witnesses or to assist non-English speaking defendants in understanding the proceedings or in communicating with assigned counsel. Interpreters may also be needed where a witness or a defendant is deaf. NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Subdivision (a). This subdivision is stricken, since the subject of court-appointed expert witnesses is covered in Evidence Rule 706 in detail. Subdivision (b). The provisions of subdivision (b) are retained. Although Evidence Rule 703 specifies the qualifications of interpreters and the form of oath to be administered to them, it does not cover their appointment or compensation. EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 3771 of this title. ------DocID 25167 Document 13 of 1452------ -CITE- 19 USC Sec. 26 to 28 -EXPCITE- TITLE 19 CHAPTER 1 -HEAD- Sec. 26 to 28. Repealed. Aug. 2, 1956, ch. 887, Sec. 4(a)(12)-(14), 70 Stat. 947 -MISC1- Section 26, R.S. Sec. 2611; act Feb. 8, 1875, ch. 36, Sec. 11, 18 Stat. 309; related to oath by special examiners of drugs. Functions formerly exercised by the special examiner of drugs are covered by section 381 of Title 21, Food and Drugs. Section 27, acts Feb. 8, 1875, ch. 36, Sec. 11, 18 Stat. 309; Mar. 2, 1895, ch. 177, Sec. 5, 28 Stat. 807; related to oaths by subordinate customs officers. Section 28, act Sept. 24, 1914, ch. 309, 38 Stat. 716, provided that headquarters of customs district of Florida should be at Tampa. Section 2 of this title vests authority in the President to change from time to time the location of headquarters of customs collection district and such authority was delegated to the Secretary of the Treasury by section 1 (a) of Executive Order 10289 of September 17, 1951, set out as a note under section 301 of Title 3, The President. ------DocID 26084 Document 14 of 1452------ -CITE- 20 USC Sec. 28 -EXPCITE- TITLE 20 CHAPTER 2 -HEAD- Sec. 28. Reports to Congress by Department of Education -STATUTE- The Department of Education shall make an annual report to Congress, on or before December 1, on the administration of this chapter and shall include in such report the reports made by the State boards on the administration of this chapter by each State and the expenditure of the money allotted to each State. -SOURCE- (Feb. 23, 1917, ch. 114, Sec. 18, 39 Stat. 936; Ex. Ord. No. 6166, Sec. 15, June 10, 1933; 1939 Reorg. Plan No. I, Sec. 201, 204, eff. July 1, 1939, 4 F.R. 2728, 53 Stat. 1424; 1953 Reorg. Plan No. 1, Sec. 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Oct. 17, 1979, Pub. L. 96-88, title III, Sec. 301, title V, Sec. 507, 93 Stat. 677, 692.) -REFTEXT- REFERENCES IN TEXT This chapter, referred to in text, was in the original 'this Act', meaning act Feb. 23, 1917, which was classified to sections 11 to 15 and 16 to 28 of this title. Other sections formerly contained in this chapter were based on other acts, and have been omitted or repealed. -TRANS- TRANSFER OF FUNCTIONS 'Department of Education' substituted in text for 'Department of Health, Education, and Welfare' pursuant to sections 301 and 507 of Pub. L. 96-88, which are classified to sections 3441 and 3507 of this title and which transferred functions and offices (relating to education) of Department of Health, Education, and Welfare to Department of Education. Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare and all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by section 5 of Reorg. Plan No. 1 of 1953, set out in the Appendix to Title 5, Government Organization and Employees. Federal Security Agency and office of Administrator abolished by section 8 of Reorg. Plan No. 1 of 1953. Transfer of functions of Federal Board for Vocational Education to Department of the Interior under Ex. Ord. No. 6166, set out as a note under section 901 of Title 5, and from there to Federal Security Agency by Reorg. Plan No. I of 1939, and in 1946 abolishment of Board and its functions by Reorg. Plan No. 2 of 1946, see notes set out under section 11 of this title. -CROSS- CROSS REFERENCES Department of Education, submission of State board reports to, see section 18 of this title. ------DocID 26609 Document 15 of 1452------ -CITE- 20 USC CHAPTER 28 -EXPCITE- TITLE 20 CHAPTER 28 -HEAD- CHAPTER 28 - HIGHER EDUCATION RESOURCES AND STUDENT ASSISTANCE -MISC1- SUBCHAPTER I - POSTSECONDARY PROGRAMS FOR NONTRADITIONAL STUDENTS Sec. 1001. Findings. 1002. Definitions. 1003. Limitation on contract authority. PART A - PROGRAM AND PLANNING GRANTS 1011. Institutional development. (a) Purpose. (b) Grants. (c) Additional use of funds. (d) Applications for assistance. 1012. Establishment of off-campus program grants. (a) Purpose; off-campus education programs. (b) Uses of funds. (c) Applications for assistance. 1013. Adult and continuing education staff development. (a) Purpose. (b) Grants authorized. (c) Applications for assistance. 1014. Administration of programs by Secretary. 1015. Authorization of appropriations. PART B - NATIONAL PROGRAMS 1016. Adult learning research. (a) Establishment of program. (b) Uses of funds. (c) Application for assistance. 1016a. Authorization limitation. PART C - THE NATIONAL ADVISORY COUNCIL ON CONTINUING EDUCATION 1017. The National Advisory Council on Continuing Education. (a) Establishment and composition. (b) Advisory functions. (c) Functions relating to eliminating duplication. (d) Reports. (e) Use of services. PART D - STUDENT LITERACY CORPS 1018. Purpose. 1018a. Literacy corps program. 1018b. Uses of funds. (a) In general. (b) Limitations. 1018c. Applications. (a) Application required. (b) Contents of application. (c) Waiver. 1018d. Technical assistance and coordination contract. 1018e. Authorization of appropriations. 1018f. Definitions. SUBCHAPTER II - ACADEMIC LIBRARY AND INFORMATION TECHNOLOGY ENHANCEMENT 1021. Authorizing provisions. (a) Congressional declaration of purpose. (b) Authorization of appropriations. (c) Sectarian instruction; religious worship; divinity schools or departments. 1022. Notification of State agency. PART A - COLLEGE LIBRARY RESOURCES 1029. College library resources. (a) Grant authority; amount of grant; eligible institutions in greatest need as recipients in case of insufficiency of funds. (b) Application for grant. (c) Assurance requirement. (d) Waiver of subsection (b)(2) assurance requirement in very unusual circumstances. (e) Waiver of subsection (c) assurance requirement in very unusual circumstances; percentage limitation. (f) Allowable uses for grant funds. 1030. 'Full-time equivalent students' defined. PART B - LIBRARY TRAINING, RESEARCH, AND DEVELOPMENT 1031. Grants authorized. 1032. Library career training. (a) Allowable uses of grant funds. (b) Fellowships and traineeships. 1033. Research and demonstrations. 1034. Repealed. PART C - STRENGTHENING RESEARCH LIBRARY RESOURCES 1041. Eligibility for assistance. (a) Grant authority. (b) Grants as precluding resource development grants. (c) Eligibility for assistance of nonqualifying institutions based on demonstration of significance for scholarly research of particular collection described in grant proposal. 1042. Geographical distribution of grants. PART D - COLLEGE LIBRARY TECHNOLOGY AND COOPERATION GRANTS 1047. Establishment of program. (a) Categories of grantee institutions or organizations. (b) Competitive awards; minimum awards; expenditure period. (c) Approval by Secretary; concurrent expenditure of minimum funds from other sources. (d) Administration by expert in library technology. SUBCHAPTER III - INSTITUTIONAL AID 1051. Findings and purposes. (a) Findings. (b) Purpose. PART A - STRENGTHENING INSTITUTIONS 1057. Program purpose. (a) General authorization. (b) Grants awarded; special consideration. 1058. Definitions; eligibility. (a) Educational and general expenditures. (b) Eligible institution. (c) Enrollment of needy students. (d) Full-time equivalent students. (e) Junior or community college. (f) Historically black college or university. 1059. Duration of grant. (a) General rule. (b) Prohibition. (c) Planning grants. 1059a. Application review process. (a) Review panel. (b) Recommendations of panel. (c) Notification. PART B - STRENGTHENING HISTORICALLY BLACK COLLEGES AND UNIVERSITIES 1060. Findings and purposes. 1061. Definitions. 1062. Grants to institutions. (a) General authorization; uses of funds. (b) Limitations. 1063. Allotments to institutions. (a) Allotment; Pell Grant basis. (b) Allotment; graduates basis. (c) Allotment; graduate and professional student basis. (d) Minimum allotment. (e) Reallotment. (f) Special merger rule. (g) Special rule for certain District of Columbia eligible institutions. 1063a. Applications. (a) Contents. (b) Approval. 1063b. Professional or graduate institutions. (a) General authorization. (b) Duration. (c) Uses of funds. (d) Application. (e) Eligible professional or graduate institutions. 1063c. Reporting and audit requirements. (a) Recordkeeping. (b) Repayment of unexpended funds. PART C - CHALLENGE GRANTS FOR INSTITUTIONS ELIGIBLE FOR ASSISTANCE UNDER PART A OR PART B 1064. Establishment of challenge grant program. (a) General authorization; eligibility. (b) Uses of funds. (c) Duration of grant. (d) Contents of applications. (e) Notice of approval. (f) Preference. 1065. Endowment challenge grants. (a) Purpose; definitions. (b) Grants authorized. (c) Grant agreement; endowment fund provisions. (d) Repayment provisions. (e) Audit information. (f) Selection criteria. (g) Application. (h) Termination and recovery provisions. PART D - GENERAL PROVISIONS 1066. Applications for assistance. (a) Application required; approval. (b) Contents. (c) Priority criteria publication required. (d) Eligibility data. 1067. Waiver authority and reporting requirement. (a) Waiver requirements; need-based assistance students. (b) Waiver determinations; expenditures. 1068. Application review process. (a) Review panel. (b) Recommendations of panel. (c) Notification. 1069. Cooperative arrangements. (a) General authority. (b) Priority. (c) Duration. 1069a. Special payments rules. (a) Historically Black college payments rule. (b) Other institutions special payment rule. (c) Special rule for unobligated part A and part B funds. 1069b. Assistance to institutions under other programs. (a) Assistance eligibility. (b) Waiver applicability. (c) Limitation. 1069c. Limitations. 1069d. Penalties. 1069e. Challenge Grant application required. 1069f. Authorization of appropriations. (a) Authorizations. (b) Use of multiple year awards. (c) Reservations. (d) Ratable reduction in fiscal years in which amounts appropriated are insufficient. SUBCHAPTER IV - STUDENT ASSISTANCE PART A - GRANTS TO STUDENTS IN ATTENDANCE AT INSTITUTIONS OF HIGHER EDUCATION 1070. Statement of purpose; program authorization. (a) Purpose. (b) Secretary required to carry out purposes. SUBPART 1 - BASIC EDUCATIONAL OPPORTUNITY GRANTS 1070a. Basic educational opportunity grants: amount and determinations; applications. (a) Program authority and method of distribution. (b) Purpose and amount of grants. (c) Period of eligibility for grants. (d) Applications for grants. (e) Distribution of grants to students. (f) Calculation of eligibility. (g) Adjustments for insufficient appropriations. (h) Use of excess funds. (i) Noncontractor status of institutions. 1070a-1. Family contribution schedule for Pell Grants; data elements. (a) General rule for determination of expected family contribution. (b) Exclusion of forced sale proceeds. 1070a-2. Eligibility determination for dependent students. (a) Computation of student aid index. (b) Contribution from parents' income and assets. (c) Standard contribution from parents' income. (d) Determination of effective family income. (e) Total offsets against income. (f) Assessment of discretionary income. (g) Contribution from parents' assets. (h) Contribution from student's (and spouse's) income. (i) Determination of student's (and spouse's) effective income. (j) Total offsets against student's (and spouse's) income. (k) Assessment of student's (and spouse's) income. (l) Determination of contribution from student's (and spouse's) assets. 1070a-3. Eligibility determination for independent students with dependents other than a spouse. (a) Computation of student aid index. (b) Computing the standard contribution from student's (and spouse's) income. (c) Determination of discretionary income. (d) Total offsets against income. (e) Assessment of discretionary income. (f) Contribution from student's (and spouse's) assets. 1070a-4. Eligibility determination for single independent students or for married independent students without other dependents. (a) Computation of student aid index. (b) Computing the standard contribution from student's (and spouse's) income. (c) Determination of effective family income. (d) Total offsets against income. (e) Assessment of discretionary income. (f) Contribution from student's (and spouse's) assets. 1070a-5. Regulations; updated tables. (a) Authority to prescribe regulations restricted. (b) Provisions governing updated tables. 1070a-6. Definitions; determinations. SUBPART 2 - SUPPLEMENTAL EDUCATIONAL OPPORTUNITY GRANTS 1070b. Purpose; appropriations authorized. (a) Purpose of subpart. (b) Authorization of appropriations. 1070b-1. Amount and duration of grants. (a) Amount of grant. (b) Period for receipt of grants; continuing eligibility. (c) Distribution of grant during academic year. 1070b-2. Agreements with institutions; selection of recipients. (a) Institutional eligibility. (b) Eligibility for selection. (c) Selection of individuals and determination of amount of awards. (d) Use of funds for less-than-full-time students. (e) Use and transfer of funds for administrative expenses. 1070b-3. Allocation of funds. (a) Allocation based on previous allocation. (b) Allocation of excess based on pro rata share. (c) Allocation of excess based on fair share. (d) Determination of institution's need. (e) Reallocation of excess allocations. (f) Filing deadlines. SUBPART 3 - GRANTS TO STATES FOR STATE STUDENT INCENTIVES 1070c. Purpose; appropriations authorized. (a) Purpose of subpart. (b) Authorization of appropriations; availability. 1070c-1. Allotment among States. (a) Allotment based on number of eligible students in attendance. (b) Reallotment. (c) Allotments subject to continuing compliance. 1070c-2. Applications for State student incentive grant programs. (a) Submission and contents of applications. (b) Payment of Federal share of grants made by qualified program. (c) Reservation and disbursement of allotments and reallotments. 1070c-3. Administration of State programs; judicial review. (a) Disapproval of applications; suspension of eligibility. (b) Review of decisions. 1070c-4. 'Community service' defined. SUBPART 4 - SPECIAL PROGRAMS FOR STUDENTS FROM DISADVANTAGED BACKGROUNDS 1070d. Program authority; authorization of appropriations. (a) Grants and contracts authorized. (b) Eligible grant and contract recipients. (c) Authorization of appropriations. (d) Definitions. 1070d-1. Talent search. (a) Program authority. (b) Tutorial services. (c) Requirements for approval of applications. 1070d-1a. Upward bound program. (a) Program authority. (b) Permissible services. (c) Requirements for approval of applications. (d) Maximum stipends. 1070d-1b. Student support services. (a) Program authority. (b) Permissible services. (c) Requirements for approval of applications. (d) Ronald E. McNair Post-Baccalaureate Achievement Program. 1070d-1c. Educational opportunity centers. (a) Program authority; services provided. (b) Tutorial and counseling services. (c) Requirements for approval of applications. 1070d-1d. Staff development activities. SUBPART 5 - SPECIAL PROGRAMS FOR STUDENTS WHOSE FAMILIES ARE ENGAGED IN MIGRANT AND SEASONAL FARMWORK 1070d-2. Maintenance and expansion of existing programs. (a) Program authority. (b) Services provided by high school equivalency program. (c) Services provided by college assistance migrant program. (d) Management plan required. (e) Three-year grant period; consideration of prior experience. (f) Minimum allocations. (g) Authorization of appropriations. SUBPART 6 - ROBERT C. BYRD HONORS SCHOLARSHIP PROGRAM 1070d-31. Statement of purpose. 1070d-32. Definitions. 1070d-33. Scholarships authorized. (a) Program authority. (b) Period of award. (c) Use at any institution permitted. (d) Byrd Scholars. 1070d-34. Allocation among States. 1070d-35. Agreements. 1070d-36. Eligibility of scholars. (a) High school graduation or equivalent and admission to institution required. (b) Selection based on promise of academic achievement. 1070d-37. Selection of scholars. (a) Establishment of criteria. (b) Adoption of procedures. (c) Consultation requirement. 1070d-38. Stipends and scholarship conditions. (a) Amount of award. (b) Use of award. 1070d-39. Awards ceremony. (a) Local ceremony. (b) Timing of selection. 1070d-40. Construction of needs provisions. 1070d-41. Authorization of appropriations. SUBPART 7 - ASSISTANCE TO INSTITUTIONS OF HIGHER EDUCATION 1070e. Payments to institutions of higher education. (a) Cost of education payments. (b) Computation of amount. (c) Applications; contents and manner of filing. (d) Apportionment of appropriations. (e) Limitation on appropriations. 1070e-1. Veterans education outreach program. (a) Authorization of appropriations. (b) Size and duration of awards. (c) Eligibility for awards. (d) Coordination of programs. (e) Administration of program. (f) Dissemination of information. SUBPART 8 - SPECIAL CHILD CARE SERVICES FOR DISADVANTAGED COLLEGE STUDENTS 1070f. Special child care services for disadvantaged college students. (a) Program authority. (b) Applications. (c) Authorization of appropriations. (d) 'Low-income individual' defined. PART B - ROBERT T. STAFFORD STUDENT LOAN PROGRAM 1071. Statement of purpose; nondiscrimination; and appropriations authorized. (a) Purpose; discrimination prohibited. (b) Authorization of appropriations. (c) Robert B. Stafford Student Loan Program. 1072. Advances for reserve funds of State and nonprofit private loan insurance programs. (a) Purpose of and authority for advances to reserve funds. (b) Limitations on total advances. (c) Advances for insurance obligations. (d) Recovery of advances during fiscal years 1988 and 1989. 1073. Effects of adequate non-Federal programs. (a) Federal insurance barred to lenders with access to State or private insurance. (b) Exceptions. 1074. Scope and duration of Federal loan insurance program. (a) Limitations on amounts of loans covered by Federal insurance. (b) Apportionment of amounts. 1075. Limitations on individual federally insured loans and on Federal loan insurance. (a) Annual and aggregate limits. (b) Level of insurance coverage based on default rate. 1076. Sources of funds. 1077. Eligibility of student borrowers and terms of federally insured student loans. (a) List of requirements. (b) Special rules for multiple disbursement. (c) Minimum repayment rate. 1077a. Applicable interest rates. (a) Rates to be consistent for borrower's entire debt. (b) Reduction for new borrowers after decline in Treasury bill rates. (c) Rates for supplemental loans for students and loans for parents. (d) Interest rates for new borrowers after July 1, 1988. (e) Treatment of excess interest payments on new borrower accounts resulting from decline in Treasury bill rates. (f) Lesser rates permitted. (g) Definitions. 1078. Federal payments to reduce student interest costs. (a) Federal interest subsidies. (b) Insurance program agreements to qualify loans for interest subsidies. (c) Guaranty agreements for reimbursing losses. (d) Usury laws inapplicable. (e) Payments for lender referral services. (f) Payments of certain costs. (g) Action on insurance program and guaranty agreements. (h) Lending by guaranty agencies. (i) Multiple disbursement of loans. (j) Lenders-of-last-resort. (k) Information on defaults. (l) Preclaims assistance and supplemental preclaims assistance. 1078-1. Supplemental loans for students. (a) Authority to borrow. (b) Limitations on amounts of loans. (c) Payment of principal and interest. (d) Refinancing. 1078-2. PLUS loans. (a) Authority to borrow. (b) Limitations on amounts of loans. (c) Payment of principal and interest. (d) Refinancing. 1078-3. Consolidation loans. (a) Agreements with eligible lenders. (b) Contents of agreements, certificates of insurance, and loan notes. (c) Payment of principal and interest. (d) Termination of authority. 1078-4. Commingling of funds. 1078-5. State garnishment law requirements. (a) Requirements for additional cost payments. (b) Hearing requirements. (c) Notice requirements. (d) 'Disposable pay' defined. 1078-6. Default reduction program. (a) Program requirements. (b) Other repayment incentives. 1078-7. Requirements for disbursement of student loans. (a) Multiple disbursement required. (b) Disbursement and endorsement requirements. (c) Method of multiple disbursement. (d) Withholding of second disbursement. (e) Exclusion of PLUS, consolidation, and foreign study loans. (f) Beginning of period of enrollment. 1079. Certificate of Federal loan insurance - effective date of insurance. (a) Loan-by-loan insurance. (b) Comprehensive insurance coverage certificate. (c) Charges for Federal insurance. (d) Assignability of insurance. (e) Consolidation not to affect insurance. 1080. Default of student under Federal loan insurance program. (a) Notice to Secretary and payment of loss. (b) Effect of payment of loss. (c) Forbearance not precluded. (d) Care and diligence required of holders. 1080a. Reports to credit bureaus and institutions of higher education. (a) Agreements to exchange information. (b) Additional information. (c) Contents of agreements. (d) Contractor status of participants. (e) Disclosure to institutions. (f) Duration of authority. 1081. Insurance fund. (a) Establishment. (b) Borrowing authority. 1082. Legal powers and responsibilities. (a) General powers. (b) Financial operations responsibilities. (c) Data collection. (d) Delegation. (e) Use of information on borrowers. (f) Audit of financial transactions. (g) Civil penalties. (h) Authority of the Secretary to impose and enforce limitations, suspensions, and terminations. (i) Authority to sell defaulted loans. (j) Authority of Secretary to take emergency actions against lenders. 1083. Student loan information by eligible lenders. (a) Required disclosure before disbursement. (b) Required disclosure before repayment. (c) Cost of disclosure and consequences of nondisclosure. (d) Separate statement. 1084. Participation by Federal credit unions in Federal, State, and private student loan insurance programs. 1085. Definitions for student loan insurance program. (a) Eligible institution. (b) Institution of higher education. (c) Vocational school. (d) Eligible lender. (e) Line of credit. (f) Due diligence. (g) Temporarily totally disabled. (h) Parental leave. (i) Holder. (j) Guaranty agency. (k) Insurance beneficiary. (l) Default. (m) Cohort default rate. (n) Impact of loss of accreditation. 1086. District of Columbia student loan insurance program. (a) Authority. (b) Binding effect on minors. (c) Appropriations authorized. 1087. Repayment by Secretary of loans of bankrupt, deceased, or disabled borrowers. (a) Repayment in full. (b) Repayment of amount discharged. 1087-1. Special allowances. (a) Findings. (b) Computation and payment. (c) Origination fees. (d) Lending from proceeds of tax exempt obligations. (e) Regulations to prevent denial of loans to eligible students. 1087-2. Student Loan Marketing Association. (a) Purpose. (b) Establishment. (c) Board of Directors. (d) Authority of Association. (e) Advances to lenders that do not discriminate. (f) Stock of the Association. (g) Preferred stock. (h) Debt obligations. (i) General corporate powers. (j) Accounting, auditing, and reporting. (k) Report on audits by Treasury. (l) Lawful investment instruments; effect of and exemptions from other laws. (m) Preparation of obligations. (n) Report on operations and activities. (o) Loan consolidations. (p) Advances for direct loans by guaranty agencies. (q) Lender of last resort. PART C - INCOME CONTINGENT DIRECT LOAN DEMONSTRATION PROJECT 1087a. Statement of purpose. 1087b. Demonstration project authorized. (a) General authority. (b) Authorization of appropriations. (c) Allotment; maximum number of grants. 1087c. Agreements with institutions of higher education. 1087d. Terms of loan under pilot program. (a) Conditions, limitations, and requirements. (b) Authority of Secretary to prescribe other terms. 1087e. Feasibility study. (a) Study. (b) Report. PART D - DIRECT LOANS TO STUDENTS IN INSTITUTIONS OF HIGHER EDUCATION 1087aa. Appropriations authorized. (a) Program authority. (b) Authorization of appropriations. (c) Use of appropriations. 1087bb. Allocation of funds. (a) Allocation based on previous allocation. (b) Allocation of excess based on pro rata share. (c) Allocation of excess based on share of excess eligible amounts. (d) Determination of institution's self-help need. (e) Anticipated collections. (f) Default penalty. (g) Applicable maximum default rate. (h) Definition of default rate. (i) Filing deadlines. (j) Reallocation of excess allocations. 1087cc. Agreements with institutions of higher education. (a) Contents of agreements. (b) Administrative expenses. (c) Cooperative agreements with credit bureau organizations. 1087cc-1. Student loan information by eligible institutions. (a) Disclosure required prior to disbursement. (b) Disclosure required prior to repayment. (c) Costs and effects of disclosures. 1087dd. Terms of loans. (a) Terms and conditions. (b) Demonstration of need and eligibility required. (c) Contents of loan agreement. (d) Availability of loan fund to all eligible students. 1087ee. Cancellation of loans for certain public service. (a) Cancellation of percentage of debt based on years of qualifying service. (b) Reimbursement for cancellation. 1087ff. Distribution of assets from student loan funds. (a) In general. (b) Distribution of late collections. (c) Distribution of excess capital. 1087gg. Collection of defaulted loans. (a) Authority of Secretary to collect referred, transferred, or assigned loans. (b) Collection of referred, transferred, or assigned loans. 1087hh. General authority of Secretary. PART E - NEED ANALYSIS 1087kk. Amount of need. 1087ll. Cost of attendance. 1087mm. Family contribution. 1087nn. Data elements used in determining expected family contribution. 1087oo. Family contribution for dependent students. (a) Computation of expected family contribution. (b) Parents' contribution from adjusted available income. (c) Parents' available income. (d) Parents' income supplemental amount from assets. (e) Assessment schedule. (f) Computations in case of separation, divorce, remarriage, or death. (g) Student contribution from available income. (h) Student (and spouse) income supplemental amount from assets. (i) Adjustments for enrollment periods other than 9 months. 1087pp. Family contribution for independent students without dependents. (a) Computation of expected family contribution. (b) Student's contribution from income. (c) Student's income supplemental amount from assets. 1087qq. Family contribution for independent students with dependents. (a) Computation of expected family contribution. (b) Family's available income. (c) Family's income supplemental amount from assets. (d) Assessment schedule. 1087rr. Regulations; updated tables. (a) Authority to prescribe regulations restricted. (b) Standard maintenance allowance. (c) Adjusted net worth of a farm or business. (d) Asset protection allowance. (e) Assessment schedules and rates. (f) 'Consumer Price Index' defined. 1087ss. Simplified needs test. (a) Applicable to all title IV programs. (b) Elements in tests. (c) Simplified application form. 1087tt. Discretion of student financial aid administrators. (a) In general. (b) Adjustments to assets taken into account. (c) Asset adjustment as example. 1087uu. Student assistance and other Federal programs. (a) Attendance costs not treated as income or resources. (b) Attendance costs. 1087uu-1. Native American students. 1087vv. Definitions. (a) Total income. (b) Untaxed income and benefits of parents and independent students with dependents. (c) Untaxed income and benefits of dependent students or independent students without dependents. (d) Independent student. (e) Displaced homemaker. (f) Excludable income. (g) Assets. (h) Net assets. (i) Treatment of income taxes paid to other jurisdictions. PART F - GENERAL PROVISIONS RELATING TO STUDENT ASSISTANCE PROGRAMS 1088. Definitions. (a) Institution of higher education. (b) Proprietary institution of higher education. (c) Post secondary vocational institution. (d) Academic year. (e) Impact of loss of accreditation. 1089. Master calendar. (a) Secretary required to comply with schedule. (b) Timing for reallocations. (c) Delay of effective date of late publications. (d) Notice to Congress. 1090. Forms and regulations. (a) Common financial aid form and processing. (b) Certification of capability. (c) Information to committees of Congress. (d) Information on eligibility for assistance. (e) Toll-free information. (f) Notice of student aid receipt. 1091. Student eligibility. (a) In general. (b) Eligibility for student loans. (c) Satisfactory progress. (d) Ability to benefit. (e) Certification for GSL eligibility. (f) Verification limitations. (g) Loss of eligiblity for violation of loan limits. (h) Immigration status verification required. (i) Limitations of enforcement actions against institutions. (j) Validity of loan guarantees for loan payments made before immigration status verification completed. 1091a. Statute of limitations. (a) In general. (b) Assessment of costs and other charges. 1092. Institutional and financial assistance information for students. (a) Information dissemination activities. (b) Exit counseling for borrowers. (c) Financial assistance information personnel. (d) Departmental publication of descriptions of assistance programs. (e) Disclosures required with respect to athletically related student aid. (f) Disclosure of campus security policy and campus crime statistics. 1092a. Combined payment plan. (a) Eligibility for plan. (b) Applicability of other requirements. (c) Lender eligibility. (d) Borrower selection of competing offers. (e) Effect of plan. (f) Notes and insurance certificates. (g) Termination of borrower eligibility. (h) Fees and premiums. (i) Commencement of repayment. 1092b. National Student Loan Data System. (a) Development of System. (b) Additional information. (c) Verification. (d) Report to Congress. 1093. Training in financial aid and student support services. (a) Program authority. (b) Use of funds. (c) Authorization of appropriations. 1094. Program participation agreements. (a) Required for programs of assistance; contents. (b) Hearings. (c) Audits; financial responsibility; enforcement of standards. (d) 'Eligible institution' defined. 1095. Transfer of allotments. 1096. Administrative expenses. (a) Amount of payments. (b) Purpose of payments. 1097. Criminal penalties. (a) In general. (b) Assignment of loans. (c) Inducements to lend or assign. (d) Obstruction of justice. 1098. Advisory Committee on Student Financial Assistance. (a) Establishment and purpose. (b) Independence of Advisory Committee. (c) Membership. (d) Functions of the Committee. (e) Operations of the Committee. (f) Submission to Department for comment. (g) Compensation and expenses. (h) Personnel and resources. (i) Availability of funds. (j) Special institutional lender study. 1099. Exemption from State disclosure requirements. SUBCHAPTER V - EDUCATOR RECRUITMENT, RETENTION, AND DEVELOPMENT 1101. Statement of purpose; applicability. 1101a. Authorization of appropriations. (a) Mid-career teacher training programs. (b) School, college, and university partnerships. (c) Professional development and leadership programs. (d) Teacher scholarships and fellowships. (e) Task forces on teacher education. PART A - MIDCAREER TEACHER TRAINING FOR NONTRADITIONAL STUDENTS 1103. Statement of purpose. 1103a. Selection procedures. 1103b. Applications. (a) Contents of applications. (b) Review of applications. 1103c. Amount of grants. 1103d. Reports and information. PART B - SCHOOL, COLLEGE, AND UNIVERSITY PARTNERSHIPS 1105. Purpose. 1105a. Partnership agreement. (a) Partnership agreement. (b) Contents of agreement. 1105b. Grants. (a) Division between school-year and summer programs. (b) Amount and use of grants. (c) Preferences. 1105c. Application for grants. (a) Application required. (b) Contents of application. 1105d. Community college pilot project. (a) Program authorized. (b) Partnership agreements. (c) Amount and use of grants. (d) Application. (e) Award of grants. (f) Eligible institutions. (g) Reports and information. PART C - PROFESSIONAL DEVELOPMENT AND LEADERSHIP PROGRAMS SUBPART 1 - PROFESSIONAL DEVELOPMENT RESOURCE CENTERS 1107. Program authority and purpose. (a) Authority. (b) Purpose. 1107a. Geographical distribution of grants. 1107b. Grant requirements. (a) Eligible applicants. (b) 'Professional development resource centers' defined. (c) Use of funds. 1107c. Professional development policy board. 1107d. Submission and approval of applications. (a) Submission. (b) Minimum requirements. (c) Selection procedures. (d) Subcontracting. (e) Reservation for direct expenditures. SUBPART 2 - LEADERSHIP IN EDUCATIONAL ADMINISTRATION DEVELOPMENT 1109. Purpose; intention; regulations. (a) Purpose. (b) Intention. (c) Regulations. 1109a. Allocation of appropriations. 1109b. Technical assistance centers. (a) Eligible grants recipients. (b) Grant requirements. (c) Selection of grantees. 1109c. General criteria for grants. (a) Grant requirements. (b) Duration of grant. 1109d. Definitions. PART D - TEACHER SCHOLARSHIPS AND FELLOWSHIPS SUBPART 1 - CONGRESSIONAL TEACHER SCHOLARSHIP PROGRAMS 1111. Purpose. (a) Purpose. (b) Designation. 1111a. Allocation among States. (a) Per capita allocation. (b) Use of census data. 1111b. Grant applications. (a) Submission of applications. (b) Content of applications. (c) Selection criteria and procedures. (d) Solicitation of views on selection criteria and procedures. 1111c. Amount and duration of and relation to other assistance. (a) Limitations on amount and duration. (b) Consideration of award in other programs. (c) Assistance not to exceed need. (d) Assistance not to exceed cost of attendance. 1111d. Selection of Congressional Teacher Scholars. (a) Selection by statewide panels. (b) Eligibility for selection; selection criteria and procedures. 1111e. Scholarship conditions. 1111f. Scholarship repayment provisions. 1111g. Exceptions to repayment provisions. (a) Deferral during certain periods. (b) Forgiveness if permanently totally disabled. 1111h. Federal administration of State programs; judicial review. (a) Disapproval hearing required. (b) Suspension of eligibility. (c) Court review. SUBPART 2 - CHRISTA MC AULIFFE FELLOWSHIP PROGRAM 1113. Declaration of purpose; designation. (a) Purpose. (b) Designation. 1113a. Use of funds for fellowships and administration. 1113b. Christa McAuliffe fellowships. (a) Award distribution and amounts. (b) Use of awards. 1113c. Selection of Christa McAuliffe teacher fellowships. 1113d. Evaluation of applications. (a) Submission to and review by statewide panel. (b) Public announcement. 1113e. Fellowship repayment provisions. PART E - STATE TASK FORCES ON TEACHER TRAINING 1115. State task forces on teacher training. (a) In general. (b) Task force. (c) Membership of task force. (d) Alternative membership. (e) Long-range planning. (f) Disposition of funds to States. (g) State applications. SUBCHAPTER VI - INTERNATIONAL EDUCATION PROGRAMS PART A - INTERNATIONAL AND FOREIGN LANGUAGE STUDIES 1121. Findings and purposes. 1122. Graduate and undergraduate language and area centers. (a) Grant authority. (b) Stipends and allowances. (c) Travel expenses. 1123. Language resource centers. 1124. Undergraduate international studies and foreign language programs. (a) Grant authority; projects and activities. (b) Model programs; applications for grants; eligible institutions; computation of total number of students; criteria; annual report. (c) Nonprofit agencies and organizations. 1124a. Intensive summer language institutes. 1125. Research; studies; annual report. (a) Research and studies. (b) Annual report. 1125a. Periodicals published outside the United States. (a) Additional authorization of appropriations. (b) Grant purposes. (c) Approval of grant recipients. (d) Copyrights. 1125b. Selection of grant recipients. (a) Basis for awards. (b) Excellence in meeting objectives. (c) Equitable distribution of assistance. 1126. Equitable distribution of funds. (a) Excellence as criterion. (b) Equitable distribution within criterion of excellence. 1127. Authorization of appropriations. PART B - BUSINESS AND INTERNATIONAL EDUCATION PROGRAMS 1130. Congressional findings and declaration of purposes. 1130-1. Centers for international business education. (a) Grants for establishing and operating centers; purposes. (b) Costs covered by Federal share. (c) Scope of programs and activities. (d) Center advisory council; functions, membership, etc. (e) Duration of grants; allotment of Federal and non-Federal shares. (f) Conditions for grants. 1130a. Education and training programs. (a) Grant and contract authority. (b) Eligible activities. (c) Application for grant or contract. (d) Federal share. 1130b. Authorization of appropriations. PART C - GENERAL PROVISIONS 1131. Repealed. 1132. Definitions. SUBCHAPTER VII - CONSTRUCTION, RECONSTRUCTION, AND RENOVATION OF ACADEMIC FACILITIES 1132a. Purposes. (a) In general. (b) Priority on renovation. 1132a-1. Appropriations authorized. (a) Parts A and B. (b) Other programs. PART A - GRANTS FOR THE CONSTRUCTION, RECONSTRUCTION, AND RENOVATION OF UNDERGRADUATE ACADEMIC FACILITIES 1132b. State plan. (a) Submission and contents of plan. (b) Hearing required before disapproval. (c) Suspension for noncompliance. 1132b-1. Basic criteria. (a) Secretary to prescribe criteria. (b) Rulemaking procedures required. 1132b-2. Allotment of funds. (a) Use for public community colleges and technical institutes; others. (b) Allotment for public community colleges and technical institutes. (c) Allotment for other institutions. (d) Aggregate limits and ratable reductions. (e) Reallocation. (f) Use for construction, reconstruction, renovation. (g) Use for maintenance. PART B - GRANTS FOR CONSTRUCTION, RECONSTRUCTION, AND RENOVATION OF GRADUATE ACADEMIC FACILITIES 1132c. Grants. (a) Grant to institutions; State limitation. (b) Peer review required. (c) Cost limitations. (d) Use for maintenance. PART C - LOANS FOR CONSTRUCTION, RECONSTRUCTION, AND RENOVATION OF ACADEMIC FACILITIES 1132d. Eligibility conditions, amounts, and terms. (a) Selection of recipients. (b) Terms of loans. (c) Use for maintenance. 1132d-1. General provisions for loan program. (a) Conclusiveness of Secretary's transactions. (b) General authority. (c) Computation of allowable discounts. (d) Nondiscrimination between borrowers in offering discounted prepayment. 1132d-2. Revolving loan fund. (a) Establishment. (b) Management of fund. PART D - GRANTS TO PAY INTEREST ON DEBT 1132e. Annual interest grants. (a) Grant authority. (b) Limits on grants. (c) State allocation limits. (d) Requirements for grants. PART E - COLLEGE CONSTRUCTION LOAN INSURANCE ASSOCIATION 1132f. Congressional declaration of purpose; definition; incorporation. (a) Purpose. (b) Status as non-governmental entity. (c) Corporate powers and limitations. (d) 'Education facilities purpose' defined. 1132f-1. Criteria for guarantees and insurance. (a) General rule. (b) Allocation of reinsurance capacity. (c) Direct insurance and guarantee activities; limitations. (d) Notice of services. (e) Nondiscrimination required. 1132f-2. Process of organization. 1132f-3. Operation and election of Board of Directors. (a) In general. (b) Cumulative voting. 1132f-4. Initial capital. (a) Authority to issue common stock. (b) Subscription by Secretary. (c) Subscription by Association. (d) Annual issuance. 1132f-5. Issue of nonvoting stock and debt to public. 1132f-6. Obligations not federally guaranteed; no Federal priority. 1132f-7. Authority of Secretary to sell common stock; right of first refusal. (a) Authority to sell. (b) Purchase price. (c) Board of Directors elected after majority buy-out. (d) Right of first refusal to Association. (e) Authority of Association with respect to Corporation. 1132f-8. Use of stock sale proceeds. 1132f-9. Audits; reports to President and Congress. (a) Accounting. (b) Reports. PART F - HOUSING AND OTHER EDUCATIONAL FACILITIES LOANS 1132g. Federal assistance in form of loans. (a) Authority and conditions for loans. (b) Use of loans for previously made contracts. (c) Amount and conditions of loans. (d) Use of funds from title IV of Housing Act of 1950. (e) Use of funds. (f) Appropriation to cover notes and obligations not covered by loan repayment. 1132g-1. General provisions. (a) Budget and accounting. (b) Use of funds. (c) Legal powers. (d) Computation of allowable discounts. (e) Nondiscrimination between borrowers in offering discounted prepayment. (f) Contracts for supplies or services. (g) Applicability of Government Corporation Control Act. (h) Wage rates. (i) Limitation. 1132g-2. Apportionment; priorities. (a) Apportionment. (b) Priorities. 1132g-3. Definitions. (a) Housing. (b) Educational institution. (c) Undergraduate academic facilities. (d) Development cost. (e) Faculties. (f) Other educational facilities. PART G - SPECIAL PROGRAMS 1132h. Welch Hall. (a) Program authority. (b) Application. (c) Authorization of appropriations. 1132h-1. Academic Health Education Center authorized. (a) Assistance authorized. (b) Terms and conditions. (c) Authorization of appropriations. 1132h-2. Estey Hall. (a) Program authority. (b) Application. (c) Authorization of appropriations. 1132h-3. Electronic instructional network for gifted and talented students. (a) Assistance authorized. (b) Application. (c) Authorization of appropriations. 1132h-4. Mary McLeod Bethune Memorial Fine Arts Center. (a) General authority. (b) Application. (c) Uses. (d) Authorization of appropriations. 1132h-5. University of Connecticut Behavioral Science Facility. (a) General authority. (b) Application. (c) Authorization of appropriations. 1132h-6. University of Rhode Island business administration program. (a) General authority. (b) Application. (c) Authorization of appropriations. PART H - GENERAL 1132i. Recovery of payments. (a) Public benefit. (b) Recovery upon cessation of public benefit. (c) Prohibition on use for religion. 1132i-1. Definitions. 1132i-2. Sales of obligations required. PART I - AGRICULTURE, STRATEGIC METALS, MINERALS, FORESTRY AND OCEANS COLLEGE AND UNIVERSITY RESEARCH FACILITIES AND INSTRUMENTATION MODERNIZATION PROGRAM 1132j. Program authority. (a) Purpose. (b) Financial assistance authorized. (c) Program requirements. (d) Matching requirements. (e) Selection criteria. (f) Set-aside. (g) Consultations for rulemaking. (h) Authorization of appropriations. SUBCHAPTER VIII - COOPERATIVE EDUCATION 1133. Appropriations authorized; reservations. (a) Appropriations authorized. (b) Reservations. (c) Availability of appropriations. 1133a. Grants for cooperative education programs. (a) Grants authorized; maximum amount of grant. (b) Applications. (c) Duration of grants; Federal share. (d) Factors for special consideration of applications. 1133b. Demonstration and innovation projects; training and resource centers; and research. (a) Authorization. (b) Administrative provision. (c) Supplement not supplant. SUBCHAPTER IX - GRADUATE PROGRAMS PART A - GRANTS TO INSTITUTIONS TO ENCOURAGE MINORITY PARTICIPATION IN GRADUATE EDUCATION 1134. Program authorized. 1134a. Submission and contents of applications. (a) Required information. (b) Selection requirements. 1134b. Use of funds. PART B - PATRICIA ROBERTS HARRIS FELLOWSHIPS 1134d. Statement of purpose; designation of awards. (a) Purpose. (b) Designation. 1134e. Program authorized. (a) Grants by Secretary. (b) Distribution and amounts of grants. (c) Applications. (d) Selection of applications. (e) Priorities for fellowships. (f) Institutional payments. (g) Use for religious purposes prohibited. 1134f. Award of fellowships. (a) Awards based on need. (b) Requirements for award. PART C - JACOB K. JAVITS FELLOWS PROGRAM 1134h. Award of Jacob K. Javits Fellowships. (a) Number and timing of awards. (b) Designation of fellows. (c) Interruptions of study. 1134i. Allocation of fellowships. (a) Fellowship Board. (b) Use of selection panels. (c) Fellowship portability. 1134j. Stipends. (a) Award by Secretary. (b) Institutional payments. 1134k. Fellowship conditions. (a) Requirements for receipt. (b) Reports from recipients. PART D - GRADUATE ASSISTANCE IN AREAS OF NATIONAL NEED 1134l. Purpose. 1134m. Grants to academic departments and programs of institutions. (a) Grant authority. (b) Award and duration of grants. (c) Preference to continuing grant recipients. 1134n. Institutional eligibility. (a) Eligibility criteria. (b) Designation of areas of national need. 1134o. Criteria for applications. (a) Selection of applications. (b) Contents of applications. 1134p. Awards to graduate students. (a) Commitments to graduate students. (b) Amount of stipends. (c) Academic progress required. 1134q. Additional assistance for cost of education. (a) Use for tuition and fees. (b) Use for overhead prohibited. PART E - ASSISTANCE FOR TRAINING IN THE LEGAL PROFESSION 1134r. Program authorized. (a) Grants and contracts. (b) Use of funds. PART F - LAW SCHOOL CLINICAL EXPERIENCE PROGRAMS 1134s. Program authorization. (a) Grant and contract purposes. (b) Use of funds. (c) Limitations on amounts. (d) 'Accredited law school' defined. 1134t. Applications. (a) Requirements. (b) Distribution of grants and contracts. PART G - AUTHORIZATION OF APPROPRIATIONS 1134u. Amount and duration of authorization. (a) Part A. (b) Part B. (c) Part C. (d) Part D. (e) Part E. (f) Part F. (g) Limitation on appropriations for parts A and D. SUBCHAPTER X - POSTSECONDARY IMPROVEMENT PROGRAMS PART A - FUND FOR THE IMPROVEMENT OF POSTSECONDARY EDUCATION 1135. Authorization of program. 1135a. Consultation. 1135a-1. National Board of the Fund for the Improvement of Postsecondary Education. (a) Establishment. (b) Chairman; membership. (c) Functions. (d) Information and assistance. 1135a-2. Administrative provisions. (a) Appointment of technical employees. (b) Review and evaluation procedures. 1135a-3. Authorization of appropriations. PART B - MINORITY SCIENCE AND ENGINEERING IMPROVEMENT PROGRAMS SUBPART 1 - MINORITY SCIENCE IMPROVEMENT PROGRAM 1135b. Purpose; authority. (a) Congressional declaration of purpose. (b) Grant authority. 1135b-1. Grant recipient selection. (a) Establishment of criteria. (b) Priorities to be given in criteria. (c) Required criteria. 1135b-2. Use of funds. (a) Types of grants. (b) Authorized uses for each type of grant. 1135b-3. Administration. SUBPART 2 - SCIENCE AND ENGINEERING ACCESS PROGRAMS 1135c. Minority support in science and engineering programs. 1135c-1. Special service projects program. 1135c-2. Supportable activities. SUBPART 3 - ADMINISTRATIVE AND GENERAL PROVISIONS 1135d. Eligibility for grants. 1135d-1. Grant application. (a) Submission and contents of applications. (b) Approval based on likelihood of progress. 1135d-2. Cross program and cross agency cooperation. 1135d-3. Administrative provisions. (a) Technical staff. (b) Procedures for grant review. 1135d-4. Advisory provisions. (a) Advisory Board for the Minority Science and Engineering Improvement Programs. (b) Purposes of the Board. (c) Constitution of Board. (d) Compensation of the Board. 1135d-5. Definitions. 1135d-6. Authorization of appropriations. (a) Authorizations. (b) Appropriation limitation. (c) Additional authorization. PART C - INNOVATIVE PROJECTS FOR COMMUNITY SERVICES AND STUDENT FINANCIAL INDEPENDENCE 1135e. Statement of purpose. 1135e-1. Innovative projects for community services and student financial independence. (a) General authority. (b) Applications. (c) Applicable procedures. 1135e-2. Authorization of appropriations. (a) Authorization. (b) Requisite concurrent appropriations. SUBCHAPTER XI - PARTNERSHIPS FOR ECONOMIC DEVELOPMENT AND URBAN COMMUNITY SERVICE PART A - PARTNERSHIPS FOR ECONOMIC DEVELOPMENT 1136. Findings and purpose. (a) Findings. (b) Purpose. 1136a. Use of economic development funds. (a) Allowable activities. (b) Special projects authorized. (c) Dissemination projects. (d) Maximum grant. 1136b. Requirements for economic development grant applications. (a) Local involvement. (b) General conditions. (c) Special consideration. PART B - URBAN COMMUNITY SERVICE 1137. Purpose. 1137a. Use of urban community service funds. (a) Allowable activities. (b) Priority needs. 1137b. Contents for applications for urban community services projects. (a) Evaluation and selection of applications. (b) Selection priorities. PART C - GENERAL PROVISIONS 1138. Administrative provisions. (a) Peer review. (b) Duration of grants. (c) Geographic distribution. (d) Non-Federal match required. (e) Waiver of matching requirement. 1138a. Authorization of appropriations. 1138b. Definitions. PART D - WAGNER INSTITUTE OF URBAN PUBLIC POLICY 1139. Purpose; designation. 1139a. Application for and use of funds. (a) Application. (b) Use of funds. 1139b. Authorization of appropriations. SUBCHAPTER XII - GENERAL PROVISIONS 1141. Definitions. 1142. Antidiscrimination requirements for institutions of higher education receiving Federal assistance; exception. 1142a, 1142b. Repealed. 1143. Federal-State relationships; State agreements. (a) Agreements required between States and Secretary. (b) Terms and conditions of agreements. (c) Adequacy of information and assurances. (d) Modification of agreements; failure to comply. (e) Entities authorized to act on behalf of States. (f) 'Applicable program' defined. 1144. Federal control over education prohibited. 1144a. Treatment of territories and territorial student assistance. (a) Waiver of eligibility criteria. (b) Promulgation of regulations; adaptation or modification of programs to needs of territories. (c) Authorization of appropriations. 1145. National Advisory Committee on Accreditation and Institutional Eligibility. (a) Establishment; membership; Chairman. (b) Term of office. (c) Committee functions. (d) Meetings. (e) Annual report to Congress. (f) Termination. 1145a. Commission to study postsecondary institutional and programmatic recognition process. (a) Establishment. (b) Membership and composition. (c) Appointment of members; conditions; effect of vacancies; compensation and travel expenses of members. (d) Study of institutional and programmatic recognition process for eligibility determinations. (e) Submission of information by interested parties. (f) Narrative and statistical reports. (g) Additional reports. (h) Appointment, compensation and travel expenses of support personnel; office space, supplies and equipment; authority of Commission in conducting study; assistance, support and detail of personnel from other agencies; contracts, technical assistance etc. (i) Report and recommendations to Congressional committees. (j) Authorization of appropriations. 1145b. Student representation. 1145c. Financial responsibility of foreign students. 1145d. Disclosures of foreign gifts. (a) Disclosure reports. (b) Contents of reports. (c) Additional disclosures on receipt of restricted or conditional gifts or contracts. (d) Reports required by other laws; filing of copy with Secretary. (e) Public availability of reports. (f) Action to compel compliance; reimbursement of costs. (g) Promulgation of regulations. (h) Definitions. 1145d-1. Application of peer review process. 1145e. Aggregate limit of authorization of appropriations. 1145f. Technology transfer centers. (a) Appropriations; establishment and purposes of centers. (b) Awarding of financial assistance. (c) Operation of centers; establishment of affiliate centers. (d) Contents of application. (e) Operation of center by consortium; mechanism for assessing percentage of operating costs paid by members; definition. (f) Board; establishment, functions, and membership. (g) Awarding of grants; duration and renewal of grants; non-Federal sources of grants. (h) Funding and operation of affiliate center. (i) Regional centers; establishment and priorities. 1145g. Drug and alcohol abuse prevention. (a) Certification requirements. (b) Availability to Secretary and public of annual distributions and biennial reviews. (c) Regulations; sanctions. (d) Procedures applicable upon termination of financial assistance. 1146. Contract authority. 1146a. Contracting authority subject to appropriations. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 1203a, 1206a, 1234i, 2397e, 3441 of this title; title 11 sections 362, 541; title 25 sections 13, 13d-2, 309b, 640c-2, 1809; title 26 sections 144, 150; title 38 section 246; title 42 section 294a. ------DocID 29024 Document 16 of 1452------ -CITE- 22 USC Sec. 277d-28 -EXPCITE- TITLE 22 CHAPTER 7 SUBCHAPTER IV -HEAD- Sec. 277d-28. Authorization of appropriations -STATUTE- There is authorized to be appropriated to the Department of State for use of the United States Section, International Boundary and Water Commission, United States and Mexico, not in excess of $300,000 for the initial cost of the work authorized in sections 277d-26 to 277d-28 of this title, and not to exceed $30,000 based on December 1975 prices, plus or minus such amounts as may be justified by reason of ordinary fluctuations in operation and maintenance costs involved therein, annually thereafter for necessary maintenance. -SOURCE- (Pub. L. 88-411, Sec. 3, Aug. 10, 1964, 78 Stat. 386; Pub. L. 93-126, Sec. 7(b), Oct. 18, 1973, 87 Stat. 452; Pub. L. 95-105, title V, Sec. 514(b), Aug. 17, 1977, 91 Stat. 862.) -MISC1- AMENDMENTS 1977 - Pub. L. 95-105 inserted 'based on December 1975 prices, plus or minus such amounts as may be justified by reason of ordinary fluctuations in operation and maintenance costs involved therein,' after '$30,000'. 1973 - Pub. L. 93-126 substituted '$30,000' for '$20,000'. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95-105 effective Oct. 1, 1977, see section 514(d) of Pub. L. 95-105, set out as a note under section 277d-3 of this title. ------DocID 30004 Document 17 of 1452------ -CITE- 22 USC CHAPTER 28 -EXPCITE- TITLE 22 CHAPTER 28 -HEAD- CHAPTER 28 - INTERNATIONAL ATOMIC ENERGY AGENCY PARTICIPATION -MISC1- Sec. 2021. Agency appointments by President. (a) Representative and deputy representative; terms; functions. (b) Specified sessions. (c) Designation of other persons. (d) Compensation; allowances and benefits. 2022. Purpose of participation; reports to Congress. 2023. Actions and votes of representatives. 2024. Authorization of appropriations for payment of expenses. 2025. Effect of employment on retirement, insurance, and other civil service rights and privileges. (a) Federal employees. (b) Presidential appointees or elected officers. (c) Regulations. 2026. Termination of authority and participation in Agency. -CROSS- CROSS REFERENCES Atomic Energy Act of 1954, see section 2011 et seq. of Title 42, The Public Health and Welfare. ------DocID 31506 Document 18 of 1452------ -CITE- 24 USC Sec. 26 to 28 -EXPCITE- TITLE 24 CHAPTER 1 -HEAD- Sec. 26 to 28. Repealed. July 1, 1944, ch. 373, title XIII, Sec. 1313, 58 Stat. 714 -MISC1- Section 26, acts Mar. 3, 1919, ch. 98, Sec. 1, 40 Stat. 1302; Aug. 9, 1921, ch. 57, Sec. 7, 42 Stat. 149; July 3, 1930, ch. 863, Sec. 1, 46 Stat. 1016, provided for additional hospital and sanatorium facilities. See sections 249, 251, and 253 of Title 42, The Public Health and Welfare, and section 763c of Title 33, Navigation and Navigable Waters. Section 26a, R.S. Sec. 4803; acts June 26, 1884, ch. 121, Sec. 15, 23 Stat. 57; Mar. 3, 1905, ch. 1484, Sec. 1, 33 Stat. 1217; Aug. 14, 1912, ch. 288, Sec. 1, 37 Stat. 309; 1939 Reorg. Plan No. I, Sec. 201, 205(b), eff. July 1, 1939, 4 F.R. 2728, 2729, 53 Stat. 1424, 1425, provided for use of certain funds for the relief of sick and disabled seamen. See section 249 of Title 42, The Public Health and Welfare. Section 27, act Mar. 3, 1919, ch. 98, Sec. 2, 40 Stat. 1302, provided for transfer of hospitals to Treasury Department for the Public Health Service. See section 248 of Title 42. Section 28, acts Mar. 3, 1919, ch. 98, Sec. 3, 40 Stat. 1303; Mar. 4, 1921, ch. 156, 41 Stat. 1365, provided for transfer of property and equipment by Secretary of War to the Treasury Department for use of the Public Health Service. RENUMBERING OF REPEALING ACT For renumbering of act July 1, 1944, which repealed these sections, see note set out under sections 1, 2 of this title. ------DocID 31703 Document 19 of 1452------ -CITE- 25 USC Sec. 28 to 31 -EXPCITE- TITLE 25 CHAPTER 2 -HEAD- Sec. 28 to 31. Repealed. Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 632, 634 -MISC1- Section 28, R.S. Sec. 2056; act May 17, 1882, ch. 163, Sec. 1, 22 Stat. 87, fixed term of office for Indian Agents. Section 29, R.S. Sec. 2057, provided for a bond by Indian Agents. Section 30, R.S. Sec. 2060, prescribed limits of residence of Indian Agents. Section 31, R.S. Sec. 2058, related to duties of Indian Agents. ------DocID 32428 Document 20 of 1452------ -CITE- 25 USC Sec. 640d-28 -EXPCITE- TITLE 25 CHAPTER 14 SUBCHAPTER XXII -HEAD- Sec. 640d-28. Life estates -STATUTE- (a) Omitted (b) Application for lease; contents; filing date; extension Any Navajo head of household who desires to do so may submit an application for a life estate lease to the Commissioner. Such application shall contain such information as the Commissioner may prescribe by regulation, such regulation to be promulgated by the Commissioner within ninety days of July 8, 1980. To be considered, such application must be filed with the Commissioner on or before April 1, 1981: Provided, That the Commissioner may, for good cause, grant an extension of one hundred and eighty days. (c) Application groupings Upon receipt of applications filed pursuant to this section, the Commissioner shall group them in the following order: (A) Applicants who are determined to be at least 50 per centum disabled as certified by a physician approved by the Commissioner. Such applicants shall be ranked in the order of the severity of their disability. (B) Applicants who are not at least 50 per centum disabled shall be ranked in order of their age with oldest listed first and the youngest listed last: Provided, That, if any applicant physically resides in quarter quad Nos. 78 NW, 77 NE, 77 NW, 55 SW, or 54 SE as designated on the Mediator's partition map, such applicant shall be given priority over another applicant of equal age. (C) Applicants who did not, as of December 22, 1974, and continuously thereafter, maintain a separate place of abode and actually remain domiciled on Hopi partitioned lands, and who, but for this subsection would be required to relocate, shall be rejected by the Commissioner. (D) Applicants who were not at least forty-nine years of age on December 22, 1974, or are not at least 50 per centum disabled, shall also be rejected by the Commissioner. (d) Number of leases; priorities The Commissioner shall have authority to award life estate leases to not more than one hundred and twenty applicants with first priority being given to applicants listed pursuant to subsection (c)(A) of this section and the next priority being given to the applicants listed pursuant to subsection (c)(B) of this section, in order of such listing. (e) Area; allowable livestock; assistance by Secretary in feeding livestock Each life estate lease shall consist of a fenced area not exceeding ninety acres of land which shall include the life tenant's present residence and may be used by the life tenant to feed not to exceed twenty-five sheep units per year or equivalent livestock. The Secretary, under existing authority, shall make available to life estate tenants such assistance during that tenure, as may be necessary to enable such tenant to feed such livestock at an adequate nutritional level. (f) Individuals permitted to reside; regulations No person may reside on a life estate other than the life tenant, his or her spouse, and minor dependents, and/or such persons who are necessarily present to provide for the care of the life tenant. The Commissioner shall promulgate regulations to carry out the intent of this subsection. (g) Termination The life estate tenure shall end by voluntary relinquishment, or at the death of the life tenant or the death of his or her spouse, whichever occurs last: Provided, That each survivorship right shall apply only to those persons who were lawfully married to each other on or before July 8, 1980. (h) Relocation benefits upon voluntary relinquishment; compensation upon death of life tenant or surviving spouse; relocation of dependents Nothing in this section shall be construed as prohibiting any such applicant who receives a life estate lease under this section from relinquishing, prior to its termination, such estate at any time and voluntarily relocating. Upon voluntary relinquishment of such estate, by such means or instrument as the Secretary shall prescribe, such applicant shall be entitled to relocation benefits from the Secretary comparable to those provided by section 640d-14 of this title. For life estates terminated by the death of the life tenant or his or her surviving spouse, compensation shall be paid to the estate of the deceased life tenant or surviving spouse based on the fair market value of the habitation and improvements at the time of the expiration of such tenure and not before. Such payment shall be in lieu of any other payment pursuant to subsection (a) of section 640d-14 of this title. Assistance provided pursuant to section 640d-14(b) of this title, shall be paid to any head of household lawfully residing on such life estate pursuant to subsection (f) of this section who is required to move by the termination of such life estate by the death of the life tenant and his or her surviving spouse and who does not maintain a residence elsewhere. Compensation under section 640d-14(a) of this title shall be paid and distributed in accordance with the last will and testament of the life tenant or surviving spouse or, in the event no valid last will and testament is left, compensation shall be paid and distributed to his or her heirs in accordance with existing Federal law. Upon termination of a life estate by whatever means, the dependents residing with the individuals having such life estate so terminated shall have ninety days following such termination within which to relocate. (i) Payment of fair market rental value The Secretary shall pay, on an annual basis, the fair market rental value of such life estate leases to the tribe to whom the lands leased were partitioned. (j) Improvements Nothing in this subchapter or any other law shall be construed to prevent a life tenant from making reasonable improvements on the life estate which are related to the residence and agricultural purposes of the life tenancy. (k) Additional leases for Hopi heads of household The Commissioner is authorized to grant not to exceed ten additional life estate leases to Hopi heads of household residing on Navajo-partitioned lands under such terms of this section as may be appropriate. -SOURCE- (Pub. L. 93-531, Sec. 30, as added Pub. L. 96-305, Sec. 11, July 8, 1980, 94 Stat. 934, and amended Pub. L. 100-666, Sec. 4(b), Nov. 16, 1988, 102 Stat. 3930.) -COD- CODIFICATION Subsec. (a) provided for the repeal of section 640d-4(a)(4) of this title. -MISC3- AMENDMENTS 1988 - Subsecs. (b) to (d), (f), (k). Pub. L. 100-666 substituted 'Commissioner' for 'Commission' wherever appearing. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 640d-9, 640d-24 of this title. ------DocID 33407 Document 21 of 1452------ -CITE- 25 USC CHAPTER 28 -EXPCITE- TITLE 25 CHAPTER 28 -HEAD- CHAPTER 28 - INDIAN EDUCATION PROGRAM -MISC1- SUBCHAPTER I - FINANCIAL ASSISTANCE TO LOCAL EDUCATIONAL AGENCIES FOR THE EDUCATION OF INDIAN CHILDREN Sec. 2601. Declaration of policy. 2602. Grants to local educational agencies. (a) In general. (b) Amount of grants. (c) Grants to schools that are not, or have not been, local educational agencies. (d) Grants for demonstration projects. 2603. Uses of Federal funds. 2604. Applications for grants; conditions for approval. (a) In general. (b) Approval of applications. (c) Amendments of applications. (d) Eligibility forms. (e) Auditing; penalties for false information. 2605. Payments. (a) In general. (b) Denial of payments if payments taken into account by State. (c) Reduction for failure to maintain fiscal effort. 2606. Authorization of appropriations; adjustments. (a) In general. (b) Reallocations. SUBCHAPTER II - SPECIAL PROGRAMS AND PROJECTS TO IMPROVE EDUCATIONAL OPPORTUNITIES FOR INDIAN CHILDREN 2621. Improvement of educational opportunities for Indian children. (a) In general. (b) Demonstration projects. (c) Services and programs to improve educational opportunities. (d) Training. (e) Grants for evaluation and technical assistance. (f) Applications for grants. (g) Authorization of appropriations. 2622. Special educational training programs for teachers of Indian children. (a) In general. (b) Fellowships and traineeships. (c) Authorization of appropriations. 2623. Fellowships for Indian students. (a) In general. (b) Stipends. (c) Payments to institutions in lieu of tuition. (d) Special rules. (e) Authorization of appropriations. 2624. Gifted and talented. (a) Establishment of centers. (b) Demonstration projects. (c) Additional grants. (d) Information network. (e) Authorization of appropriations. SUBCHAPTER III - SPECIAL PROGRAMS RELATING TO ADULT EDUCATION FOR INDIANS 2631. Improvement of educational opportunities for adult Indians. (a) In general. (b) Educational services. (c) Information and evaluation. (d) Applications. (e) Authorization of appropriations. SUBCHAPTER IV - PROGRAM ADMINISTRATION 2641. Office of Indian Education. (a) In general. (b) Director. (c) Indian preference. 2642. National Advisory Council on Indian Education. (a) In general. (b) Functions. (c) Contracting. (d) Funding. 2643. Authorization of appropriations. SUBCHAPTER V - MISCELLANEOUS 2651. Definitions. ------DocID 33540 Document 22 of 1452------ -CITE- 26 USC Sec. 28 -EXPCITE- TITLE 26 Subtitle A CHAPTER 1 Subchapter A PART IV Subpart B -HEAD- Sec. 28. Clinical testing expenses for certain drugs for rare diseases or conditions -STATUTE- (a) General rule There shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to 50 percent of the qualified clinical testing expenses for the taxable year. (b) Qualified clinical testing expenses For purposes of this section - (1) Qualified clinical testing expenses (A) In general Except as otherwise provided in this paragraph, the term 'qualified clinical testing expenses' means the amounts which are paid or incurred by the taxpayer during the taxable year which would be described in subsection (b) of section 41 if such subsection were applied with the modifications set forth in subparagraph (B). (B) Modifications For purposes of subparagraph (A), subsection (b) of section 41 shall be applied - (i) by substituting 'clinical testing' for 'qualified research' each place it appears in paragraphs (2) and (3) of such subsection, and (ii) by substituting '100 percent' for '65 percent' in paragraph (3)(A) of such subsection. (C) Exclusion for amounts funded by grants, etc. The term 'qualified clinical testing expenses' shall not include any amount to the extent such amount is funded by any grant, contract, or otherwise by another person (or any governmental entity). (D) Special rule For purposes of this paragraph, section 41 shall be deemed to remain in effect for periods after December 31, 1991. (2) Clinical testing (A) In general The term 'clinical testing' means any human clinical testing - (i) which is carried out under an exemption for a drug being tested for a rare disease or condition under section 505(i) of the Federal Food, Drug, and Cosmetic Act (or regulations issued under such section), (ii) which occurs - (I) after the date such drug is designated under section 526 of such Act, and (II) before the date on which an application with respect to such drug is approved under section 505(b) or 507 of such Act or, if the drug is a biological product, before the date on which a license for such drug is issued under section 351 of the Public Health Service Act; (FOOTNOTE 1) and (FOOTNOTE 1) So in original. The semicolon probably should be a comma. (iii) which is conducted by or on behalf of the taxpayer to whom the designation under such section 526 applies. (B) Testing must be related to use for rare disease or condition Human clinical testing shall be taken into account under subparagraph (A) only to the extent such testing is related to the use of a drug for the rare disease or condition for which it was designated under section 526 of the Federal Food, Drug, and Cosmetic Act. (c) Coordination with credit for increasing research expenditures (1) In general Except as provided in paragraph (2), any qualified clinical testing expenses for a taxable year to which an election under this section applies shall not be taken into account for purposes of determining the credit allowable under section 41 for such taxable year. (2) Expenses included in determining base period research expenses Any qualified clinical testing expenses for any taxable year which are qualified research expenses (within the meaning of section 41(b)) shall be taken into account in determining base period research expenses for purposes of applying section 41 to subsequent taxable years. (d) Definition and special rules (1) Rare disease or condition For purposes of this section, the term 'rare disease or condition' means any disease or condition which - (A) affects less than 200,000 persons in the United States, or (B) affects more than 200,000 persons in the United States but for which there is no reasonable expectation that the cost of developing and making available in the United States a drug for such disease or condition will be recovered from sales in the United States of such drug. Determinations under the preceding sentence with respect to any drug shall be made on the basis of the facts and circumstances as of the date such drug is designated under section 526 of the Federal Food, Drug, and Cosmetic Act. (2) Limitation based on amount of tax The credit allowed by this section for any taxable year shall not exceed the excess (if any) of - (A) the regular tax (reduced by the sum of the credits allowable under subpart A and section 27), over (B) the tentative minimum tax for the taxable year. (3) Special limitations on foreign testing (A) In general No credit shall be allowed under this section with respect to any clinical testing conducted outside the United States unless - (i) such testing is conducted outside the United States because there is an insufficient testing population in the United States, and (ii) such testing is conducted by a United States person or by any other person who is not related to the taxpayer to whom the designation under section 526 of the Federal Food, Drug, and Cosmetic Act applies. (B) Special limitation for corporations to which section 936 applies No credit shall be allowed under this section with respect to any clinical testing conducted by a corporation to which an election under section 936 applies. (4) Certain rules made applicable Rules similar to the rules of paragraphs (1) and (2) of section 41(f) shall apply for purposes of this section. (5) Election This section shall apply to any taxpayer for any taxable year only if such taxpayer elects (at such time and in such manner as the Secretary may by regulations prescribe) to have this section apply for such taxable year. (e) Termination This section shall not apply to any amount paid or incurred after December 31, 1991. -SOURCE- (Added Pub. L. 97-414, Sec. 4(a), Jan. 4, 1983, 96 Stat. 2053, Sec. 44H, and renumbered Sec. 28 and amended Pub. L. 98-369, div. A, title IV, Sec. 471(c), 474(g), title VI, Sec. 612(e)(1), July 18, 1984, 98 Stat. 826, 831, 912; Pub. L. 99-514, title II, Sec. 231(d)(3)(A), 232, title VII, Sec. 701(c)(2), title XII, Sec. 1275(c)(4), title XVIII, Sec. 1879(b)(1), (2), Oct. 22, 1986, 100 Stat. 2178, 2180, 2340, 2599, 2905; Pub. L. 100-647, title I, Sec. 1018(q)(1), title IV, Sec. 4008(c)(1), Nov. 10, 1988, 102 Stat. 3585, 3653; Pub. L. 101-239, title VII, Sec. 7110(a)(3), Dec. 19, 1989, 103 Stat. 2323; Pub. L. 101-508, title XI, Sec. 11402(b)(2), 11411, Nov. 5, 1990, 104 Stat. 1388-473, 1388-479.) -REFTEXT- REFERENCES IN TEXT Sections 505(b), (i), 507, and 526 of the Federal Food, Drug, and Cosmetic Act, referred to in subsecs. (b)(2)(A) and (d)(1), (3)(A)(ii), are classified to sections 355(b), (i), 357, and 360bb, respectively, of Title 21, Food and Drugs. Section 351 of the Public Health Service Act, referred to in subsec. (b)(2)(A)(ii)(II), is classified to section 262 of Title 42, The Public Health and Welfare. -MISC2- AMENDMENTS 1990 - Subsec. (b)(1)(D). Pub. L. 101-508, Sec. 11402(b)(2), substituted 'December 31, 1991' for 'December 31, 1990'. Subsec. (e). Pub. L. 101-508, Sec. 11411, substituted 'December 31, 1991' for 'December 31, 1990'. 1989 - Subsec. (b)(1)(D). Pub. L. 101-239 substituted '1990' for '1989'. 1988 - Subsec. (b)(1)(D). Pub. L. 100-647, Sec. 4008(c)(1), substituted '1989' for '1988'. Subsec. (b)(2)(A)(ii)(II). Pub. L. 100-647, Sec. 1018(q)(1), amended subcl. (II) generally. Prior to amendment, subcl. (II) read as follows: 'before the date on which an application with respect to such drug is approved under section 505(b) of such Act or, if the drug is a biological product, before the date on which a license for such drug is issued under section 351 of the Public Health Services Act, and'. 1986 - Subsec. (b)(1). Pub. L. 99-514, Sec. 231(d)(3)(A)(i), (iv), substituted '41' for '30' in subpars. (A), (B), and (D), and substituted '1988' for '1985' in subpar. (D). Subsec. (b)(2)(A)(ii)(I). Pub. L. 99-514, Sec. 1879(b)(1)(A), substituted 'the date such drug' for 'the date of such drug'. Subsec. (b)(2)(A)(ii)(II). Pub. L. 99-514, Sec. 1879(b)(1)(B), inserted 'or, if the drug is a biological product, before the date on which a license for such drug is issued under section 351 of the Public Health Services Act'. Subsec. (c). Pub. L. 99-514, Sec. 231(d)(3)(A)(i), (ii), substituted '41' for '30' in pars. (1) and (2) and '41(b)' for '30(b)' in par. (2). Subsec. (d)(1). Pub. L. 99-514, Sec. 1879(b)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: 'For purposes of this section, the term 'rare disease or condition' means any disease or condition which occurs so infrequently in the United States that there is no reasonable expectation that the cost of developing and making available in the United States a drug for such disease or condition will be recovered from sales in the United States of such drug. Determinations under the preceding sentence with respect to any drug shall be made on the basis of the facts and circumstances as of the date such drug is designated under section 526 of the Federal Food, Drug, and Cosmetic Act.' Subsec. (d)(2). Pub. L. 99-514, Sec. 701(c)(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: 'The credit allowed by this section for any taxable year shall not exceed the taxpayer's tax liability for the taxable year (as defined in section 26(b)), reduced by the sum of the credits allowable under subpart A and section 27.' Subsec. (d)(3)(B). Pub. L. 99-514, Sec. 1275(c)(4), struck out '934(b) or' before '936' in heading and amended text generally. Prior to amendment, text read as follows: 'No credit shall be allowed under this section with respect to any clinical testing conducted by a corporation to which section 934(b) applies or to which an election under section 936 applies.' Subsec. (d)(4). Pub. L. 99-514, Sec. 231(d)(3)(A)(iii), substituted 'section 41(f)' for 'section 30(f)'. Subsec. (e). Pub. L. 99-514, Sec. 232, substituted '1990' for '1987'. 1984 - Pub. L. 98-369, Sec. 471(c), renumbered section 44H of this title as this section. Subsec. (b)(1)(A), (B), (D). Pub. L. 98-369, Sec. 474(g)(1)(A), substituted 'section 30' for 'section 44F'. Subsec. (c)(1). Pub. L. 98-369, Sec. 474(g)(1)(A), substituted 'section 30' for 'section 44F'. Subsec. (c)(2). Pub. L. 98-369, Sec. 474(g)(1)(A), (B), substituted 'section 30' for 'section 44F' and 'section 30(b)' for 'section 44F(b)'. Subsec. (d)(2). Pub. L. 98-369, Sec. 612(e)(1), substituted 'section 26(b)' for 'section 25(b)'. Pub. L. 98-369, Sec. 474(g)(2), amended par. (2) generally, substituting 'shall not exceed the taxpayer's tax liability for the taxable year (as defined in section 25(b), reduced by the sum of the credits allowable under subpart A and section 27' for 'shall not exceed the amount of the tax imposed by this chapter for the taxable year reduced by the sum of the credits allowable under a section of this subpart having a lower number or letter designation than this section, other than the credits allowable by sections 31, 39, and 43. For purposes of the preceding sentence, the term 'tax imposed by this chapter' shall not include any tax treated as not imposed by this chapter under the last sentence of section 53(a)'. Subsec. (d)(4). Pub. L. 98-369, Sec. 474(g)(1)(C), substituted 'section 30(f)' for 'section 44F(f)'. EFFECTIVE DATE OF 1990 AMENDMENT Section 11402(c) of Pub. L. 101-508 provided that: 'The amendments made by this section (amending this section and section 41 of this title and repealing provisions set out as a note under section 41 of this title) shall apply to taxable years beginning after December 31, 1989.' EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 1018(q)(1) of Pub. L. 100-647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99-514, to which such amendment relates, see section 1019(a) of Pub. L. 100-647, set out as a note under section 1 of this title. Amendment by section 4008(c)(1) of Pub. L. 100-647 applicable to taxable years beginning after Dec. 31, 1988, see section 4008(d) of Pub. L. 100-647, set out as a note under section 41 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 231(d)(3)(A) of Pub. L. 99-514 applicable to taxable years beginning after Dec. 31, 1985, see section 231(g) of Pub. L. 99-514, set out as a note under section 41 of this title. Amendment by section 701(c)(2) of Pub. L. 99-514 applicable to taxable years beginning after Dec. 31, 1986, with certain exceptions and qualifications, see section 701(f) of Pub. L. 99-514, set out as an Effective Date note under section 55 of this title. Amendment by section 1275(c)(4) of Pub. L. 99-514 applicable to taxable years beginning after Dec. 31, 1986, with certain exceptions and qualifications, see section 1277 of Pub. L. 99-514, set out as a note under section 931 of this title. Section 1879(b)(3) of Pub. L. 99-514 provided that: 'The amendments made by this subsection (amending this section) shall apply to amounts paid or incurred after December 31, 1982, in taxable years ending after such date.' EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 474(g) of Pub. L. 98-369 applicable to taxable years beginning after Dec. 31, 1983, and to carrybacks from such years, see section 475(a) of Pub. L. 98-369, set out as a note under section 21 of this title. Amendment by section 612(e)(1) of Pub. L. 98-369, applicable to interest paid or accrued after December 31, 1984, on indebtedness incurred after December 31, 1984, see section 612(g) of Pub. L. 98-369, set out as an Effective Date note under section 25 of this title. EFFECTIVE DATE Section 4(d) of Pub. L. 97-414 provided that: 'The amendments made by this section (enacting this section and amending sections 280C and 6096 of this title) shall apply to amounts paid or incurred after December 31, 1982, in taxable years ending after such date.' APPLICABILITY OF CERTAIN AMENDMENTS BY PUBLIC LAW 99-514 IN RELATION TO TREATY OBLIGATIONS OF UNITED STATES For applicability of amendment by section 701(c)(2) of Pub. L. 99-514 notwithstanding any treaty obligation of the United States in effect on Oct. 22, 1986, with provision that for such purposes any amendment by title I of Pub. L. 100-647 be treated as if it had been included in the provision of Pub. L. 99-514 to which such amendment relates, see section 1012(aa)(2), (4) of Pub. L. 100-647, set out as a note under section 861 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI (Sec. 1101-1147 and 1171-1177) or title XVIII (Sec. 1800-1899A) of Pub. L. 99-514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99-514, as amended, set out as a note under section 401 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 29, 53, 55, 280C of this title; title 42 section 236. ------DocID 6935 Document 23 of 1452------ -CITE- 2 USC Sec. 28 -EXPCITE- TITLE 2 CHAPTER 2 -HEAD- Sec. 28. Parliamentary precedents of House of Representatives -STATUTE- (a) Periodic compilation; other useful materials; index digest; date of completion The Parliamentarian of the House of Representatives, at the beginning of the fifth fiscal year following the completion and publication of the parliamentary precedents of the House authorized by the Legislative Branch Appropriation Act, 1966 (79 Stat. 270; Public Law 89-90), and at the beginning of each fifth fiscal year thereafter, shall commence the compilation and preparation for printing of the parliamentary precedents of the House of Representatives, together with such other materials as may be useful in connection therewith, and an index digest of such precedents and other materials. Each such compilation and preparation for printing of the parliamentary precedents of the House shall be completed by the close of the fiscal year immediately following the fiscal year in which such work is commenced. (b) Form, number, and distribution of compilation As so compiled and prepared, such precedents and other materials and index digest shall be printed on pages of such size, and in such type and format, as the Parliamentarian may determine and shall be printed in such numbers and for such distribution as may be provided by law enacted prior to printing. (c) Appointment and compensation of personnel; utilization of services of personnel of Federal agencies For the purpose of carrying out each such compilation and preparation, the Parliamentarian may - (1) subject to the approval of the Speaker, appoint (as employees of the House of Representatives) clerical and other personnel and fix their respective rates of pay; and (2) utilize the services of personnel of the Library of Congress and the Government Printing Office. -SOURCE- (Pub. L. 91-510, title III, Sec. 331, Oct. 26, 1970, 84 Stat. 1186.) -REFTEXT- REFERENCES IN TEXT The Legislative Branch Appropriation Act, 1966, referred to in subsec. (a), is Pub. L. 89-90, July 27, 1965, 79 Stat. 265. For complete classification of this Act to the Code, see Tables. -MISC2- EFFECTIVE DATE Section effective immediately prior to noon on Jan. 3, 1971, see section 601(1) of Pub. L. 91-510, set out as an Effective Date of 1970 Amendment note under section 72a of this title. -CROSS- CROSS REFERENCES Establishment of Office of Parliamentarian of House of Representatives, see section 287 et seq. of this title. ------DocID 36162 Document 24 of 1452------ -CITE- 28 USC PART I -EXPCITE- TITLE 28 PART I -HEAD- PART I - ORGANIZATION OF COURTS -MISC1- Chap. Sec. 1. Supreme Court 1 3. Courts of appeals 41 5. District courts 81 6. Bankruptcy judges 151 7. United States Claims Court 171 (9. Repealed.) 11. Court of International Trade 251 13. Assignment of judges to other courts 291 15. Conferences and councils of judges 331 17. Resignation and retirement of judges (FOOTNOTE 1) 371 (FOOTNOTE 1) Chapter heading amended by Pub. L. 92-397 without corresponding amendment of analysis. 19. Distribution of reports and digests 411 21. General provisions applicable to courts and judges 451 23. Civil justice expense and delay reduction plans 471 AMENDMENTS 1990 - Pub. L. 101-650, title I, Sec. 103(d), Dec. 1, 1990, 104 Stat. 5096, added item for chapter 23. 1984 - Pub. L. 98-353, title I, Sec. 104(b), July 10, 1984, 98 Stat. 342, added item for chapter 6. 1982 - Pub. L. 97-164, title I, Sec. 105(b), 106, Apr. 2, 1982, 96 Stat. 28, substituted 'United States Claims Court' for 'Court of Claims' in item for chapter 7 and struck out item for chapter 9 'Court of Customs and Patent Appeals'. 1980 - Pub. L. 96-417, title V, Sec. 501(1), Oct. 10, 1980, 94 Stat. 1742, substituted 'Court of International Trade' for 'Customs Court' in item for chapter 11. 1978 - Pub. L. 98-598, title II, Sec. 201(b), Nov. 6, 1978, 92 Stat. 2660, directed amendment of analysis of chapters comprising part I by adding item for chapter 6 'Bankruptcy courts', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -EXEC- EXECUTIVE ORDER NO. 11992 Ex. Ord. No. 11992, May 24, 1977, 42 F.R. 27195, which established Committee on Selection of Federal Judicial Officers and provided for its membership, functions, etc., was revoked, and Committee terminated, by Ex. Ord. No. 12305, May 5, 1981, 46 F.R. 25421, set out as a note under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees. ------DocID 36163 Document 25 of 1452------ -CITE- 28 USC CHAPTER 1 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- CHAPTER 1 - SUPREME COURT -MISC1- Sec. 1. Number of justices; quorum. 2. Terms of court. 3. Vacancy in office of Chief Justice; disability. 4. Precedence of associate justices. 5. Salaries of justices. 6. Records of former court of appeals. -CROSS- RULES OF THE SUPREME COURT See Appendix to this title. CROSS REFERENCES Allotment of Supreme Court Justices to circuits, see section 42 of this title. Circuit justices competent to sit as judges of the courts of appeals, see section 43 of this title. Jurisdiction of Supreme Court, see section 1251 et seq. of this title. ------DocID 36164 Document 26 of 1452------ -CITE- 28 USC Sec. 1 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 1. Number of justices; quorum -STATUTE- The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 869.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 321 (Mar. 3, 1911, ch. 231, Sec. 215, 36 Stat. 1152). Appointment of 'judges of the Supreme Court' by the President by and with the advice and consent of the Senate is provided by U.S. Constitution art. 2, Sec. 2, cl. 2. SHORT TITLE OF 1990 AMENDMENTS Pub. L. 101-650, Sec. 1, Dec. 1, 1990, 104 Stat. 5089, provided: 'That this Act (see Tables for classification) may be cited as the 'Judicial Improvements Act of 1990'.' Pub. L. 101-650, title I, Sec. 101, Dec. 1, 1990, 104 Stat. 5089, provided that: 'This title (enacting chapter 23 of this title and provisions set out as notes under section 471 of this title) may be cited as the 'Civil Justice Reform Act of 1990'.' Pub. L. 101-650, title II, Sec. 201, Dec. 1, 1990, 104 Stat. 5098, provided that: 'This title (amending sections 44 and 133 of this title and enacting provisions set out as notes under sections 44, 133, and 331 of this title) may be cited as the 'Federal Judgeship Act of 1990'.' Pub. L. 101-650, title III, Sec. 301, Dec. 1, 1990, 104 Stat. 5104, provided that: 'This title (enacting sections 178, 1367, and 1658 of this title and section 8440b of Title 5, Government Organization and Employees, amending sections 108, 112, 122, 133, 152, 158, 332, 333, 375, 376, 377, 601, 602, 604, 631, 636, 995, 996, 1334, 1391, 1441, 1452, 1499, 1605, 1610, 1821, 1871, and 2072 of this title, sections 8331, 8334, 8336, 8339, and 8402 of Title 5, provisions set out in the Appendix to Title 5, and section 305 of Title 11, Bankruptcy, renumbering section 15 of Title 9, Arbitration, as section 16 of Title 9, enacting provisions set out as notes under sections 376, 620, 631, 1367, and 1658 of this title, section 8331 of Title 5, section 307 of Title 11, and sections 3006A and 3551 of Title 18, Crimes and Criminal Procedure, and amending provisions set out as notes under sections 533 and 581 of this title) may be cited as the 'Federal Courts Study Committee Implementation Act of 1990'.' Pub. L. 101-650, title IV, Sec. 401, Dec. 1, 1990, 104 Stat. 5122, provided that: 'This title (amending sections 332, 372, 453, and 2077 of this title and provisions set out in the Appendix to Title 5, Government Organization and Employees, and enacting provisions set out as notes under sections 332 and 372 of this title) may be cited as the 'Judicial Discipline and Removal Reform Act of 1990'.' Pub. L. 101-647, title XXXVI, Sec. 3601, Nov. 29, 1990, 104 Stat. 4933, provided that: 'This title (enacting chapter 176 and section 2044 of this title, amending sections 550, 1962, 1963, and 2410 of this title, section 523 of Title 11, Bankruptcy, and sections 3142 and 3552 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as a note under section 3001 of this title) may be cited as the 'Federal Debt Collection Procedures Act of 1990'.' SHORT TITLE OF 1988 AMENDMENTS Pub. L. 100-702, Sec. 1, Nov. 19, 1988, 102 Stat. 4642, provided that: 'This Act (see Tables for classification) may be cited as the 'Judicial Improvements and Access to Justice Act'.' Pub. L. 100-702, title VII, Sec. 701, Nov. 19, 1988, 102 Stat. 4654, provided that: 'This title (amending section 1827 of this title and enacting provisions set out as notes under section 1827 of this title) may be cited as the 'Court Interpreter Amendments Act of 1988'.' Pub. L. 100-694, Sec. 1, Nov. 18, 1988, 102 Stat. 4563, provided that: 'This Act (enacting section 831c-2 of Title 16, Conservation, amending sections 2671, 2674, and 2679 of this title, and enacting provisions set out as notes under sections 2671 and 2679 of this title) may be cited as the 'Federal Employees Liability Reform and Tort Compensation Act of 1988'.' Pub. L. 100-659, Sec. 1, Nov. 15, 1988, 102 Stat. 3910, provided that: 'This Act (enacting section 377 of this title and section 8440a of Title 5, Government Organization and Employees, amending sections 155, 375, 376, 604, 631, and 636 of this title and sections 8334 and 8402 of Title 5, and enacting provisions set out as notes under sections 376 and 377 of this title) may be cited as the 'Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988'.' SHORT TITLE OF 1987 AMENDMENT Pub. L. 100-191, Sec. 1, Dec. 15, 1987, 101 Stat. 1293, provided that: 'This Act (enacting section 599 of this title, amending sections 49 and 591 to 598 of this title, sections 203 and 205 of Pub. L. 95-521, set out in the Appendix to Title 5, Government Organization and Employees, and section 202 of Title 18, Crimes and Criminal Procedure, enacting provisions set out as a note under section 591 of this title, and amending provisions set out as a note under section 591 of this title) may be cited as the 'Independent Counsel Reauthorization Act of 1987'.' SHORT TITLE OF 1986 AMENDMENTS Pub. L. 99-657, Sec. 1, Nov. 14, 1986, 100 Stat. 3670, provided that: 'This Act (amending sections 90 and 121 of this title and enacting provisions set out as a note under section 121 of this title) may be cited as the 'Judicial Housekeeping Act of 1986'.' Pub. L. 99-570, Sec. 1151, Oct. 27, 1986, 100 Stat. 3207-12, provided that: 'This subtitle (subtitle D (Sec. 1151-1153) of title I of Pub. L. 99-570, amending section 524 of this title, section 1963 of Title 18, Crimes and Criminal Procedure, section 1613a of Title 19, Customs Duties, and section 853 of Title 21, Food and Drugs, and repealing section 1613b of Title 19) may be cited as the 'Department of Justice Assets Forfeiture Fund Amendments Act of 1986'.' Pub. L. 99-363, Sec. 1, July 11, 1986, 100 Stat. 770, provided that: 'This Act (amending section 994 of this title) may be cited as the 'Sentencing Guidelines Act of 1986'.' Pub. L. 99-336, Sec. 1, June 19, 1986, 100 Stat. 633, provided that: 'This Act (amending sections 376, 620, 1441, 1914, and 2342 of this title, section 288d of Title 2, The Congress, and sections 8706, 8714a, 8714b, and 8714c of Title 5, Government Organization and Employees, and enacting provisions set out as notes under sections 376, 620, 1441, 1914, and 2342 of this title, and section 8706 of Title 5) may be cited as the 'Judicial Improvements Act of 1985'.' SHORT TITLE OF 1984 AMENDMENTS Pub. L. 98-620, Sec. 404, Nov. 8, 1984, 98 Stat. 3361, provided that: 'This subtitle (subtitle B (Sec. 404-411) of title IV of Pub. L. 98-620, amending sections 85, 90, 93, 112, 124, and 126 of this title and enacting provisions set out as notes under sections 85, 90, 93, and 124 of this title) may be cited as the 'Federal District Court Organization Act of 1984'.' Pub. L. 98-620, prec. Sec. 412, Nov. 8, 1984, 98 Stat. 3362, provided that: 'This subtitle (subtitle C (Sec. 412-416) of title IV of Pub. L. 98-620, enacting section 798 of this title, amending section 1292 of this title, section 1071 of Title 15, Commerce and Trade, section 1337 of Title 19, Customs Duties, and sections 142 to 144 of Title 35, Patents, and enacting provisions set out as notes under section 713 of this title and section 142 of Title 35) may be cited as the 'Technical Amendments to the Federal Courts Improvement Act of 1982'.' For short title of Pub. L. 98-353 as the Bankruptcy Amendments and Federal Judgeship Act of 1984, see section 1 of Pub. L. 98-353, set out as a note under section 151 of this title. SHORT TITLE OF 1983 AMENDMENT Pub. L. 97-409, Sec. 1, Jan. 3, 1983, 96 Stat. 2039, provided: 'That this Act (amending sections 49, 591, and 592 to 598 of this title and amending provisions set out as a note under section 591 of this title) may be cited as the 'Ethics in Government Act Amendments of 1982'.' SHORT TITLE OF 1982 AMENDMENTS For short title of sections 2 to 6 of Pub. L. 97-394 as the Indian Claims Limitation Act of 1982, see section 1 of Pub. L. 97-394, set out as a note under section 2415 of this title. Pub. L. 97-292, Sec. 1, Oct. 12, 1982, 96 Stat. 1259, provided: 'That this Act (amending section 534 of this title) may be cited as the 'Missing Children Act'.' Pub. L. 97-164, Sec. 1, Apr. 2, 1982, 96 Stat. 25, provided: 'That this Act (see Tables for classification) may be cited as the 'Federal Courts Improvement Act of 1982'.' SHORT TITLE OF 1980 AMENDMENTS Pub. L. 96-486, Sec. 1, Dec. 1, 1980, 94 Stat. 2369, provided: 'That this Act (amending section 1331 of this title and section 2072 of Title 15, Commerce and Trade, and enacting provisions set out as a note under section 1331 of this title) may be cited as the 'Federal Question Jurisdictional Amendments Act of 1980'.' Pub. L. 96-462, Sec. 1, Oct. 15, 1980, 94 Stat. 2053, provided that: 'This Act (amending sections 84, 95, 105, 113, and 124 of this title and enacting provisions set out as notes under sections 84, 95, 105, and 113 of this title) may be cited as the 'Federal District Court Organization Act of 1980'.' Pub. L. 96-458, Sec. 1, Oct. 15, 1980, 94 Stat. 2035, provided that: 'This Act (amending sections 331, 332, 372, and 604 of this title and enacting provisions set out as notes under section 331 of this title) may be cited as the 'Judicial Councils Reform and Judicial Conduct and Disability Act of 1980'.' Pub. L. 96-452, Sec. 1, Oct. 14, 1980, 94 Stat. 1994, provided: 'That this Act (amending sections 41, 44, and 48 of this title and enacting provisions set out as notes under section 41 of this title) may be cited as the 'Fifth Circuit Court of Appeals Reorganization Act of 1980'.' Pub. L. 96-417, Sec. 1, Oct. 10, 1980, 94 Stat. 1727, provided: 'That this Act (see Tables for classification) may be cited as the 'Customs Courts Act of 1980'.' SHORT TITLE OF 1979 AMENDMENT For short title of Pub. L. 96-82, as the 'Federal Magistrate Act of 1979', see section 1 of Pub. L. 96-82, set out as a note under section 631 of this title. SHORT TITLE OF 1978 AMENDMENTS For short title of Pub. L. 95-572 as the 'Jury System Improvements Act of 1978', see section 1 of Pub. L. 95-572, set out as a note under section 1861 of this title. Pub. L. 95-539, Sec. 1, Oct. 28, 1978, 92 Stat. 2040, provided: 'That this Act (enacting sections 1827 and 1828 of this title, amending sections 602 to 604 and 1920 of this title, enacting provisions set out as notes under section 602 of this title, and repealing a provision set out as a note under section 602 of this title) may be cited as the 'Court Interpreters Act'.' Pub. L. 95-408, Sec. 1, Oct. 2, 1978, 92 Stat. 883, provided that: 'This Act (amending sections 89, 93, 97, 98, 104, 112, 114, 133 of this title and enacting provisions set out as a note under section 89 of this title) may be cited as the 'Federal District Court Organization Act of 1978'.' SHORT TITLE OF 1976 AMENDMENTS Pub. L. 94-583, Sec. 1, Oct. 21, 1976, 90 Stat. 2891, provided: 'That this Act (enacting sections 1330 and 1602 to 1611 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under section 1602 of this title) may be cited as the 'Foreign Sovereign Immunities Act of 1976'.' Pub. L. 94-554, Sec. 1, Oct. 19, 1976, 90 Stat. 2603, provided: 'That this Act (amending section 376 of this title and enacting provisions set out as notes under section 376 of this title) may be cited as the 'Judicial Survivors' Annuities Reform Act'.' SHORT TITLE OF 1970 AMENDMENT Pub. L. 91-271, title I, Sec. 101, June 2, 1970, 84 Stat. 274, provided that: 'This title (enacting sections 256 and 257 of this title, amending sections 253 to 255, 1541, 1582, 2601, 2602, and 2631 to 2639 of this title, repealing sections 1583 and 2640 to 2642 of this title, and enacting provisions set out as notes under sections 1 and 256 of this title) may be cited as 'The Customs Courts Act of 1970'.' SHORT TITLE OF 1966 AMENDMENT Pub. L. 89-504, title II, Sec. 201, July 18, 1966, 80 Stat. 293, provided that: 'This title (enacting provisions set out as notes under sections 603, 604, and 753 of this title) may be cited as the 'Federal Judicial Salary Act of 1966'.' SHORT TITLE OF 1964 AMENDMENT Pub. L. 88-426, title IV, Sec. 401, Aug. 14, 1964, 78 Stat. 433, provided that: 'This title (amending sections 5, 44, 135, 173, 213, 252, 603, and 792 of this title, section 867 of Title 10, Armed Forces, section 68 of former Title 11, Bankruptcy, and section 7443 of Title 26, Internal Revenue Code, and enacting provisions set out as notes under sections 603, 604 and 753 of this title) may be cited as the 'Federal Judicial Salary Act of 1964'.' -CROSS- RULES OF THE SUPREME COURT Quorum, see rule 4, Appendix to this title. CROSS REFERENCES Appointment of Supreme Court Justices, see Const., Art. 2, Sec. 2, cl. 2. Creation of Supreme Court, see Const., Art. 3, Sec. 1. Justices to hold office during good behavior, see Const., Art. 3, Sec. 1. Oath of Justice, see section 453 of this title. Official station of Supreme Court Justices, see section 456 of this title. ------DocID 36165 Document 27 of 1452------ -CITE- 28 USC Sec. 2 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 2. Terms of court -STATUTE- The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 869.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 338 (Mar. 3, 1911, ch. 231, Sec. 230, 36 Stat. 1156; Sept. 6, 1916, ch. 448, Sec. 1, 39 Stat. 726). Minor changes in phraseology were made. -CROSS- RULES OF THE SUPREME COURT Term, see rule 3, Appendix to this title. CROSS REFERENCES Courts always open, see section 452 of this title. Official station of Supreme Court Justices, see section 456 of this title. Seat of the Government, see chapter 3 of Title 4, Flag and Seal, Seat of Government, and the States. ------DocID 36166 Document 28 of 1452------ -CITE- 28 USC Sec. 3 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 3. Vacancy in office of Chief Justice; disability -STATUTE- Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 869.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 323 (Mar. 3, 1911, ch. 231, Sec. 217, 36 Stat. 1152). The sentence, 'This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice', was omitted as covered by last portion of revised section. Minor changes were made in phraseology. For seniority of commissions, see section 4 of this title. ------DocID 36167 Document 29 of 1452------ -CITE- 28 USC Sec. 4 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 4. Precedence of associate justices -STATUTE- Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 869.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 322 (Mar. 3, 1911, ch. 231, Sec. 216, 36 Stat. 1152). Minor changes in phraseology were made. ------DocID 36168 Document 30 of 1452------ -CITE- 28 USC Sec. 5 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 5. Salaries of justices -STATUTE- The Chief Justice and each associate justice shall each receive a salary at annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 870; Mar. 2, 1955, ch. 9, Sec. 1(a), 69 Stat. 9; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(a), 78 Stat. 434; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(1), 89 Stat. 422.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 324 (Mar. 3, 1911, ch. 231, Sec. 218, 36 Stat. 1152; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716). The provision 'to be paid monthly' was omitted since the time of payment of salaries is a matter of administrative convenience. (See 20 Comp. Gen. 834.) Minor changes in phraseology were made. -REFTEXT- REFERENCES IN TEXT Section 225 of the Federal Salary Act of 1967, referred to in text, is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81 Stat. 642, as amended, which is classified to chapter 11 (Sec. 351 et seq.) of Title 2, The Congress. -MISC2- AMENDMENTS 1975 - Pub. L. 94-82 substituted provisions setting the annual salary of the Chief Justice and each associate justice at rates determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provisions granting the Chief Justice and each associate justice a salary of $40,000 and $39,500 a year, respectively. 1964 - Pub. L. 88-426 increased salary of Chief Justice from $35,500 to $40,000 and that of Associate Justices from $35,000 to $39,500. 1955 - Act Mar. 2, 1955, increased salary of Chief Justice from $25,500 to $35,500 and salaries of Associate Justices from $25,000 to $35,000 a year. EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on first day of first pay period which begins on or after July 1, 1964, except to extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88-426. EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress. SALARY INCREASES 1991 - Salaries of Chief Justice and Associate Justices increased to $160,600 and $153,600 per annum, respectively, effective on first day of first pay period beginning on or after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1990 - Salaries of Chief Justice and Associate Justices continued respectively at $115,000 and $110,000 per annum, and increased to $124,000 and $118,600, respectively, effective on first day of first pay period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under section 5332 of Title 5. 1989 - Salaries of Chief Justice and Associate Justices increased in the amount of 25 percent of their respective rates (as last in effect before the increase), effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5. Salaries of Chief Justice and Associate Justices continued respectively at $115,000 and $110,000 per annum by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a note under section 5332 of Title 5. 1988 - Salaries of Chief Justice and Associate Justices continued respectively at $115,000 and $110,000 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5. 1987 - Salaries of Chief Justice and Associate Justices increased respectively to $115,000 and $110,000 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of Chief Justice and Associate Justices increased to $111,700 and $107,200, respectively, effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of Chief Justice and Associate Justices increased to $108,400 and $104,100, respectively, effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of Chief Justice and Associate Justices increased to $104,700 and $100,600, respectively, effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of Chief Justice and Associate Justices increased to $100,700 and $96,700, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 140 of Pub. L. 97-92, funds are not available to pay a salary at a rate which exceeds the rate in effect on Dec. 15, 1981, which was $96,800 for the Chief Justice and $93,000 for the Associate Justices. Maximum rates payable after Dec. 17, 1982, increased from $96,800 and $93,000 to $100,700 and $96,700, respectively, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1941, set out as a note under section 5318 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5. 1981 - Salaries of Chief Justice and Associate Justices increased to $96,800 and $93,000, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Salaries of Chief Justice and Associate Justices increased to $92,400 and $88,700, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $79,125 for the Chief Justice and $75,960 for the Associate Justices. Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Salaries of Chief Justice and Associate Justices increased to $84,700 and $81,300, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $79,125 for the Chief Justice and $75,960 for the Associate Justices. Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Salaries of Chief Justice and Associate Justices increased to $79,100 and $76,000, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087, further provided that pursuant to the Legislative Branch Appropriation Act, 1979 (Pub. L. 95-391, title III Sec. 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 5), funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $75,000 for the Chief Justice and $72,000 for the Associate Justices. 1977 - Salaries of Chief Justice and Associate Justices increased respectively to $75,000 and $72,000 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1976 - Salaries of Chief Justice and Associate Justices increased to $68,800 and $66,000, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1976, by Ex. Order No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941, further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $65,600 for the Chief Justice and $63,000 for the Associate Justices. 1975 - Salaries of Chief Justice and Associate Justices increased to $65,600 and $63,000, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1975, by Ex. Order No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly set out as a note under section 5332 of Title 5. 1969 - Salaries of Chief Justice and Associate Justices increased respectively from $40,000 and $39,500 to $62,500 and $60,000 per annum, commencing Feb. 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1946 - Salary of Chief Justice was increased from $20,500 to $25,500 a year, and salaries of associate justices were increased from $20,000 to $25,000 a year, by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716. 1926 - Salary of Chief Justice was increased from $15,000 to $20,500 a year, and salaries of associate justices were increased from $14,500 to $20,000 a year, by act Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919. 1911 - Salary of Chief Justice was set at $15,000 a year and salaries of associate justices were set at $14,500 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1152. -CROSS- CROSS REFERENCES Compensation not to be diminished during continuance in office, see Const. Art. 3, Sec. 1. Payment of salaries by marshal of Supreme Court, see section 672 of this title. Retirement of Justices, see section 371 et seq. of this title. Traveling and subsistence expenses of Justices, payment of, see section 456 of this title. ------DocID 36169 Document 31 of 1452------ -CITE- 28 USC Sec. 6 -EXPCITE- TITLE 28 PART I CHAPTER 1 -HEAD- Sec. 6. Records of former court of appeals -STATUTE- The records and proceedings of the court of appeals, appointed previous to the adoption of the Constitution, shall be kept until deposited with the National Archives of the United States in the office of the clerk of the Supreme Court, who shall furnish copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court. Such copies shall have the same faith and credit as proceedings of the Supreme Court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 870; Oct. 25, 1951, ch. 562, Sec. 4(7), 65 Stat. 640.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 329 (Mar. 3, 1911, ch. 231, Sec. 222, 36 Stat. 1153). In a letter dated August 8, 1944, the clerk of the Supreme Court advised that many of the early records mentioned in this section were destroyed by fire. Others are on file in the Clerk's office. Minor changes in phraseology were made. AMENDMENTS 1951 - Act Oct. 25, 1951, inserted 'until deposited with the National Archives of the United States' in first sentence. -CROSS- CROSS REFERENCES Management and disposition of records, see sections 2101 et seq., 2301 et seq., 2501 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. of Title 44, Public Printing and Documents. ------DocID 36170 Document 32 of 1452------ -CITE- 28 USC CHAPTER 3 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- CHAPTER 3 - COURTS OF APPEALS -MISC1- Sec. 41. Number and composition of circuits. 42. Allotment of Supreme Court justices to circuits. 43. Creation and composition of courts. 44. Appointment, tenure, residence and salary of circuit judges. 45. Chief judges; precedence of judges. 46. Assignment of judges; panels; hearings; quorum. 47. Disqualification of trial judge to hear appeal. 48. Terms of court. 49. Assignment of judges to division to appoint independent counsels. AMENDMENTS 1983 - Pub. L. 97-409, Sec. 2(b)(2), Jan. 3, 1983, 96 Stat. 2039, substituted 'independent counsels' for 'special prosecutors' in item 49. 1978 - Pub. L. 95-521, title VI, Sec. 602(b), Oct. 26, 1978, 92 Stat. 1874, added item 49. Pub. L. 95-486, Sec. 5(c), Oct. 20, 1978, 92 Stat. 1633, substituted 'panels' for 'divisions' in item 46. -CROSS- CROSS REFERENCES Jurisdiction of courts of appeals, see section 1291 et seq. of this title. ------DocID 36171 Document 33 of 1452------ -CITE- 28 USC Sec. 41 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 41. Number and composition of circuits -STATUTE- The thirteen judicial circuits of the United States are constituted as follows: --------------------------------------------------------------------- Circuits Composition --------------------------------------------------------------------- District of Columbia District of Columbia. First Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island. Second Connecticut, New York, Vermont. Third Delaware, New Jersey, Pennsylvania, Virgin Islands. Fourth Maryland, North Carolina, South Carolina, Virginia, West Virginia. Fifth District of the Canal Zone, Louisiana, Mississippi, Texas. Sixth Kentucky, Michigan, Ohio, Tennessee. Seventh Illinois, Indiana, Wisconsin. Eighth Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota. Ninth Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, Hawaii. Tenth Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming. Eleventh Alabama, Florida, Georgia. Federal All Federal judicial districts. ------------------------------- -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 870; Oct. 31, 1951, ch. 655, Sec. 34, 65 Stat. 723; Oct. 14, 1980, Pub. L. 96-452, Sec. 2, 94 Stat. 1994; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 101, 96 Stat. 25.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C. 1940 ed., Sec. 211, and section 864 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 12, 1900, ch. 191, Sec. 35, 31 Stat. 85; Mar. 3, 1911, ch. 231, Sec. 116, 36 Stat. 1131; Jan. 28, 1915, ch. 22, Sec. 1, 2, 38 Stat. 803; Mar. 2, 1917, ch. 145, Sec. 42, 39 Stat. 966; Feb. 13, 1925, ch. 229, Sec. 1, 13, 43 Stat. 936, 942; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Feb. 28, 1929, ch. 363, Sec. 1, 45 Stat. 1346; May 17, 1932, ch. 190, 47 Stat. 158). Form of section was simplified. The District of Columbia was added as a separate circuit. This is in accord with the decision of the Supreme Court of the United States which held the Court of Appeals for the District of Columbia to be a circuit court of appeals within the Transfer Act of Sept. 14, 1922, ch. 305, 42 Stat. 837, incorporated in the Judicial Code as Sec. 238(a), but repealed by act Feb. 13, 1925, ch. 229, Sec. 13, 43 Stat. 942. (See Swift and Co. v. U.S., 1928, 48 S.Ct. 311, 276 U.S. 311, 72 L.Ed. 587.) In recognizing the District of Columbia as a separate circuit, the Supreme Court recently used this language: '* * * the eleven circuits forming the single federal judicature * * *'. Comm'r. v. Bedford's Estate, 65 S.Ct. 1157, at page 1160, 325 U.S. 283, 89 L.Ed. 611. See section 17 of title 28, U.S.C., 1940 ed., providing, 'For the purposes of sections 17-23 of this title, the District of Columbia shall be deemed to be a judicial circuit * * *', and act Dec. 23, 1944, ch. 724, 58 Stat. 925, which amended section 215 of title 28, U.S.C., 1940 ed., incorporated in section 42 of this title. Such amendment provided that for the purposes of said section 215 'the District of Columbia shall be deemed to be a judicial circuit.' Many other acts of Congress have recognized the District of Columbia as a separate circuit. (See the following acts; Aug. 24, 1937, ch. 754, 50 Stat. 751; Feb. 11, 1938, ch. 25, 52 Stat. 28; Aug. 5, 1939, ch. 433, 53 Stat. 1204; Aug. 7, 1939, ch. 501, 53 Stat. 1223; Dec. 29, 1942, ch. 835, 56 Stat. 1094; May 11, 1944, ch. 192, 58 Stat. 218; Dec. 23, 1944, ch. 724, 58 Stat. 925.) See also the following acts recognizing the Court of Appeals for the District of Columbia as a circuit court of appeals: Aug. 15, 1921, ch. 64, 42 Stat. 162; July 5, 1935, ch. 372, 49 Stat. 454; Aug. 24, 1937, ch. 754, 50 Stat. 751; Apr. 6, 1942, ch. 210, 56 Stat. 198; May 9, 1942, ch. 295, 56 Stat. 271. See also Rule 81(d) Federal Rules of Civil Procedure. In the following cases the Supreme Court of the United States has recognized the status of the Court of Appeals of the District of Columbia as a permanent establishment within the federal judicial system: O'Donoghue v. United States, 1933, 53 S.Ct. 740, 289 U.S. 516, 77 L.Ed. 1356; Federal Trade Commission v. Klesner, 1927, 47 S.Ct. 557, 274 U.S. 145, 71 L.Ed. 972; Claiborne-Annapolis Ferry v. United States, 1932, 52 S.Ct. 440, 285 U.S. 382, 76 L.Ed. 808; United States v. California Canneries, 1929, 49 S.Ct. 423, 279 U.S. 553, 73 L.Ed. 838. Alaska, Canal Zone, and Virgin Islands were added to the 9th, 5th, and 3rd Circuits, respectively, to conform to section 1294 of this title. Some of the provisions of section 864 of title 48, U.S.C., 1940 ed., have been retained in said title. For those which were incorporated in other sections of this revised title, see Distribution Table. AMENDMENTS 1982 - Pub. L. 97-164 increased number of judicial circuits from twelve to thirteen through addition of Federal circuit composed of all Federal judicial districts. 1980 - Pub. L. 96-452 substituted 'twelve' for 'eleven' in text preceding table, substituted 'District of the Canal Zone' for 'Alabama, Canal Zone, Florida, Georgia' in item relating to fifth circuit, and added new item relating to eleventh circuit. 1951 - Act Oct. 31, 1951, inserted reference to Guam in that part relating to composition of Ninth judicial circuit. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Section 12 of Pub. L. 96-452 provided that: 'This Act and the amendments made by this Act (amending this section and sections 44 and 48 of this title, and enacting provisions set out as notes under this section) shall take effect on October 1, 1981.' -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -MISC5- NORTHERN MARIANA ISLANDS Pub. L. 95-157, Sec. 1(a), Nov. 8, 1977, 91 Stat. 1265, provided that the Northern Mariana Islands be part of the same judicial circuit as Guam, i.e., the Ninth Circuit. See section 1694(a) of Title 48, Territories and Insular Possessions. ASSIGNMENT OF JUDGES AND PROCEDURE FOR ADMINISTRATION OF PENDING CASES WITH REGARD TO REORGANIZATION OF THE FIFTH CIRCUIT COURT OF APPEALS Sections 5 to 10 of Pub. L. 96-452 provided that: 'Sec. 5. Each circuit judge in regular active service of the former fifth circuit whose official station on the day before the effective date of this Act (Oct. 1, 1981) - '(1) is in Louisiana, Mississippi, or Texas is assigned as a circuit judge of the new fifth circuit; and '(2) is in Alabama, Florida, or Georgia is assigned as a circuit judge of the eleventh circuit. 'Sec. 6. Each judge who is a senior judge of the former fifth circuit on the day before the effective date of this Act (Oct. 1, 1981) may elect to be assigned to the new fifth circuit or to the eleventh circuit and shall notify the Director of the Administrative Office of the United States Courts of such election. 'Sec. 7. The seniority of each judge - '(1) who is assigned under section 5 of this Act; or '(2) who elects to be assigned under section 6 of this Act; shall run from the date of commission of such judge as a judge of the former fifth circuit. 'Sec. 8. The eleventh circuit is authorized to hold terms or sessions of court at New Orleans, Louisiana, until such time as adequate facilities for such court are provided in Atlanta, Georgia. 'Sec. 9. The provisions of the following paragraphs of this section apply to any case in which, on the day before the effective date of this Act (Oct. 1, 1981), an appeal or other proceeding has been filed with the former fifth circuit: '(1) If the matter has been submitted for decision, further proceedings in respect of the matter shall be had in the same manner and with the same effect as if this Act (amending sections 41, 44, and 48 of this title, and enacting provisions set out as notes under this section) had not been enacted. '(2) If the matter has not been submitted for decision, the appeal or proceeding, together with the original papers, printed records, and record entries duly certified, shall, by appropriate orders, be transferred to the court to which it would have gone had this Act been in full force and effect at the time such appeal was taken or other proceeding commenced, and further proceedings in respect of the case shall be had in the same manner and with the same effect as if the appeal or other proceeding had been filed in such court. '(3) A petition for rehearing or a petition for rehearing en banc in a matter decided before the effective date of this Act (Oct. 1, 1981), or submitted before the effective date of this Act and decided on or after the effective date as provided in paragraph (1) of this section, shall be treated in the same manner and with the same effect as though this Act had not been enacted. If a petition for rehearing en banc is granted, the matter shall be reheard by a court comprised as though this Act had not been enacted. 'Sec. 10. As used in sections 5, 6, 7, 8, and 9 of this Act, the term - '(1) 'former fifth circuit' means the fifth judicial circuit of the United States as in existence on the day before the effective date of this Act (Oct. 1, 1981); '(2) the term 'new fifth circuit' means the fifth judicial circuit of the United States established by the amendment made by section 2(2) of this Act (amending item relating to the fifth circuit in this section); and '(3) the term 'eleventh circuit' means the eleventh judicial circuit of the United States established by the amendment made by section 2(3) of this Act (adding item relating to the eleventh circuit in this section).' ADMINISTRATIVE ACTION BY FIFTH CIRCUIT COURT OF APPEALS; TERMINATION OF COURT Section 11 of Pub. L. 96-452 provided that: 'The court of appeals for the fifth circuit as constituted on the day before the effective date of this Act (Oct. 1, 1981) may take such administrative action as may be required to carry out this Act (amending sections 41, 44, and 48 of this title, and enacting provisions set out as notes under this section). Such court shall cease to exist for administrative purposes on July 1, 1984.' APPEALS COURT ADMINISTRATIVE UNITS Pub. L. 95-486, Sec. 6, Oct. 20, 1978, 92 Stat. 1633, provided that: 'Any court of appeals having more than 15 active judges may constitute itself into administrative units complete with such facilities and staff as may be prescribed by the Administrative Office of the United States Courts, and may perform its en banc function by such number of members of its en banc courts as may be prescribed by rule of the court of appeals.' COMMISSION ON REVISION OF THE FEDERAL APPELLATE SYSTEM Pub. L. 92-489, Oct. 13, 1972, 86 Stat. 807, as amended by Pub. L. 93-420, Sept. 19, 1974, 88 Stat. 1153, provided for the establishment, membership, travel expenses, personnel, experts and consultants, administrative and research services, cooperation of other governmental agencies, and appropriations of not to exceed $606,000 of a Commission on Revision of the Federal Court Appellate System which Commission was to study the geographical division of the judicial circuits and the structure and internal procedures of the appellate court system and to report to the President, Congress, and the Chief Justice its recommendations for changes in the geographical boundaries of the circuits to expedite disposition of judicial business and for changes in the appellate court structure to expedite disposition of the appellate courts caseload in a manner consistent with fundamental concepts of fairness and due process. The Commission was to cease existence ninety days after submission of its final report, which report was submitted June 20, 1975. CONTINUATION OF ORGANIZATION OF COURT Section 2(b) of act June 25, 1948, ch. 646, 62 Stat. 985, provided in part that the provisions of this title as set out in section 1 of act June 25, 1948, with respect to the organization of each of the several courts therein provided, shall be construed as continuations of existing law, and the tenure of the judges, officers, and employees thereof and of the United States attorneys and marshals and their deputies and assistants, in office on Sept. 1, 1948, shall not be affected by its enactment, but each of them shall continue to serve in the same capacity under the appropriate provisions of this title, pursuant to his prior appointment. -CROSS- CROSS REFERENCES Circuits in which decisions are reviewable, see section 1294 of this title. ------DocID 36172 Document 34 of 1452------ -CITE- 28 USC Sec. 42 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 42. Allotment of Supreme Court justices to circuits -STATUTE- The Chief Justice of the United States and the associate justices of the Supreme Court shall from time to time be allotted as circuit justices among the circuits by order of the Supreme Court. The Chief Justice may make such allotments in vacation. A justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 870.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 215 (Mar. 3, 1911, ch. 231, Sec. 119, 36 Stat. 1131; Dec. 23, 1944, ch. 724, 58 Stat. 925). The authority of the Chief Justice in vacation to assign a circuit justice to more than one circuit was extended by omitting the phrase 'whenever by reason of death or resignation, no Justice is allotted to a circuit.' The provision in section 215 of Title 28, U.S.C., 1940 ed., that, for the purposes of said section, the 'District of Columbia shall be deemed to be a judicial circuit,' was omitted, since the District of Columbia is made a judicial circuit by section 41 of this title. The last paragraph was added to make clear the intent of Congress that the powers of the Court to assign the justices among the several circuits should be completely flexible. Changes were made in phraseology. ------DocID 36173 Document 35 of 1452------ -CITE- 28 USC Sec. 43 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 43. Creation and composition of courts -STATUTE- (a) There shall be in each circuit a court of appeals, which shall be a court of record, known as the United States Court of Appeals for the circuit. (b) Each court of appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 870; Nov. 13, 1963, Pub. L. 88-176, Sec. 1(a), 77 Stat. 331.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3, 1911, ch. 231, Sec. 117, 36 Stat. 1131). The provision in section 212 of title 28, U.S.C., 1940 ed., for a three-judge court of appeals was permissive and did not limit the power of the court to sit in banc. Thus, subsection (b) reflects present status of law, namely, that court is composed of not only circuit judges of the circuit in active service, of whom there may be more than three, but the circuit justice or justices and judges who may be assigned or designated to the court. (See Textile Mills Securities Corporation v. Commissioner of Internal Revenue, 1942, 62 S.Ct. 272, 314 U.S. 326, 86 L.Ed. 249 and Reviser's Notes under section 46 of this title.) Words 'with appellate jurisdiction, as hereinafter limited and established' were omitted as covered by section 1291 et seq. of this title, conferring appellate jurisdiction on the courts of appeals. The term 'court of appeals' was substituted in this section and throughout this title for the term 'circuit court of appeals.' Provision for a quorum of the court is now covered by section 46(d) of this title. AMENDMENTS 1963 - Subsec. (b). Pub. L. 88-176 inserted 'regular' before 'active service'. -CHANGE- CHANGE OF NAME OF COURT Section 2(b) of act June 25, 1948, provided in part that each circuit court of appeals should, after Sept. 1, 1948, be known as a United States Court of Appeals, but that the enactment of act June 25, 1948 should in no way entail any loss of rights, interruption of jurisdiction, or prejudice to matters pending in any such courts on Sept. 1, 1948. -CROSS- CROSS REFERENCES Assignment of circuit judges and judges of Court of Claims to other circuits or courts, see section 291 et seq. of this title. Authority to create courts inferior to Supreme Court, see Const., Art. 3, Sec. 1. ------DocID 36174 Document 36 of 1452------ -CITE- 28 USC Sec. 44 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 44. Appointment, tenure, residence and salary of circuit judges -STATUTE- (a) The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows: --------------------------------------------------------------------- Circuits Number of Judges --------------------------------------------------------------------- District of Columbia 12 First 6 Second 13 Third 14 Fourth 15 Fifth 17 Sixth 16 Seventh 11 Eighth 11 Ninth 28 Tenth 12 Eleventh 12 Federal 12. ------------------------------- (b) Circuit judges shall hold office during good behavior. (c) Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service. While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of this Act, and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia. (d) Each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 871; Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493; Feb. 10, 1954, ch. 6, Sec. 1, 68 Stat. 8; Mar. 2, 1955, ch. 9, Sec. 1(b), 69 Stat. 10; May 19, 1961, Pub. L. 87-36, Sec. 1(b), 75 Stat. 80; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(b), 78 Stat. 434; Mar. 18, 1966, Pub. L. 89-372, Sec. 1(b), 80 Stat. 75; June 18, 1968, Pub. L. 90-347, Sec. 3, 82 Stat. 184; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(2), 89 Stat. 422; Oct. 20, 1978, Pub. L. 95-486, Sec. 3(b), 92 Stat. 1632; Oct. 14, 1980, Pub. L. 96-452, Sec. 3, 94 Stat. 1994; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 102, 96 Stat. 25; July 10, 1984, Pub. L. 98-353, title II, Sec. 201(b), 98 Stat. 346; Dec. 1, 1990, Pub. L. 101-650, title II, Sec. 202(b), 104 Stat. 5099.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 213, and sections 11-201, 11-202, District of Columbia Code, 1940 ed. (Feb. 9, 1893, ch. 74, Sec. 1, 27 Stat. 434; Mar. 3, 1901, ch. 854, Sec. 221, 222, 31 Stat. 1224; Mar. 3, 1911, ch. 231, Sec. 118, 36 Stat. 1131; Jan. 13, 1912, ch. 9, 37 Stat. 52; Feb. 25, 1919, ch. 29, Sec. 2, 40 Stat. 1156; Sept. 14, 1922, ch. 306, Sec. 6, 42 Stat. 840; Mar. 3, 1925, ch. 437, 43 Stat. 1116; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; Feb. 28, 1929, ch. 363, Sec. 2, 45 Stat. 1347; Mar. 1, 1929, ch. 413, Sec. 1, 2, 45 Stat. 1414; June 10, 1930, ch. 437, 46 Stat. 538; June 10, 1930, ch. 438, 46 Stat. 538; June 19, 1930, ch. 538, 46 Stat. 785; June 16, 1933, ch. 102, 48 Stat. 310; Aug. 2, 1935, ch. 425, Sec. 1, 49 Stat. 508; June 24, 1936, ch. 735, Sec. 1, 49 Stat. 1903; Apr. 14, 1937, ch. 80, 50 Stat. 64; May 31, 1938, ch. 290, Sec. 1, 3, 52 Stat. 584, 585; May 24, 1940, ch. 209, Sec. 1, 54 Stat. 219; Dec. 14, 1942, ch. 731, 56 Stat. 1050; Dec. 7, 1944, ch. 521, Sec. 1, 58 Stat. 796; July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716). This section includes the members of the United States Court of Appeals for the District of Columbia and designates them as 'judges' rather than as 'justices', thus harmonizing it with the provisions of section 41 of this title, which specifically designates the District of Columbia as a judicial circuit of the United States. In doing so it consolidates sections 11-201, 11-202 of the District of Columbia Code, 1940 ed., which provided for one 'chief justice' and five associate 'justices.' Act February 9, 1893, established a court of appeals for the District of Columbia to consist of one chief justice and two associate justices whose jurisdiction was almost entirely to review the judgments of the Supreme Court of the District of Columbia, the name of which was changed in 1936 to the District Court of the United States for the District of Columbia. Circuit courts were established by the first Judiciary Act of September 24, 1789, Sec. 4, and R.S. Sec. 608, enacted June 22, 1874. R.S. Sec. 605 provided that the words 'circuit justice' and 'justice of a circuit' should designate the justice of the Supreme Court of the United States allotted to any circuit; that 'judge' when applied to any circuit included such justice. The Judiciary Appropriation Act, 1945, Act June 26, 1944, ch. 277, Sec. 202, 58 Stat. 358, provided that as used in that Act, 'the term 'circuit court of appeals' includes the United States Court of Appeals for the District of Columbia; the term 'senior circuit judge' includes the Chief Justice of the United States Court of Appeals for the District of Columbia; and the term 'circuit judge' includes associate justice of the United States Court of Appeals for the District of Columbia; and the term 'judge' includes justice.' Provisions in section 11-202 of the District of Columbia Code, 1940 ed., and section 213 of title 28, U.S.C., 1940 ed., for payment of salaries in monthly installments were omitted, since time of payment is a matter of administrative convenience (20 Comp. Gen. 834). The exception in subsection (c) extends to circuit judges in the District of Columbia the effect of the recent decision in U.S. ex rel. Laughlin v. Eicher, D.C. 1944, 56 F.Supp. 972, holding that residence requirement of section 1 of title 28, U.S.C., 1940 ed., did not apply to district judges in the District of Columbia. (See Reviser's Note under section 134 of this title.) The provision in section 213 of the title 28, U.S.C., 1940 ed., that 'it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law,' was omitted as unnecessary since the duty to serve is implied by the creation and composition of the court in section 43 of this title. Last sentence, providing that nothing in section 213 of title 28, U.S.C., 1940 ed., should prevent a circuit judge from holding district court as provided by law, was omitted as unnecessary. (See section 291 of this title authorizing assignments to district courts.) Subsection (b) was added in conformity with the U.S. Constitution, art. 3. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The effective date of this Act, referred to in subsec. (c), is the effective date of Pub. L. 97-164, Oct. 1, 1982. See Effective Date of 1982 Amendment note set out under section 171 of this title. Section 225 of the Federal Salary Act of 1967, referred to in subsec. (d), is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81 Stat. 642, as amended, which is classified to chapter 11 (Sec. 351 et seq.) of Title 2, The Congress. -MISC2- AMENDMENTS 1990 - Subsec. (a). Pub. L. 101-650 altered number of permanent circuit judgeships in named circuits as follows: --------------------------------------------------------------------- Circuits Former New --------------------------------------------------------------------- Third 12 14 Fourth 11 15 Fifth 16 17 Sixth 15 16 Eighth 10 11 Tenth 10 12 ------------------------------- 1984 - Subsec. (a). Pub. L. 98-353 altered number of permanent circuit judgeships in named circuits as follows: --------------------------------------------------------------------- Circuits Former New --------------------------------------------------------------------- District of Columbia 11 12 First 4 6 Second 11 13 Third 10 12 Fourth 10 11 Fifth 14 16 Sixth 11 15 Seventh 9 11 Eighth 9 10 Ninth 23 28 Tenth 8 10 Eleventh 12 12 Federal 12 12 ------------------------------- 1982 - Subsec. (a). Pub. L. 97-164, Sec. 102(a), inserted item relating to Federal circuit with 12 judges. Subsec. (c). Pub. L. 97-164, Sec. 102(b), inserted provision relating to requirement that judges of Federal judicial circuit reside within fifty miles of the District of Columbia. 1980 - Subsec. (a). Pub. L. 96-452 substituted '14' for '26' in item relating to fifth circuit, and added item relating to eleventh circuit. 1978 - Subsec. (a). Pub. L. 95-486 altered number of permanent circuit judgeships in the named circuits as follows: --------------------------------------------------------------------- Circuits Former New --------------------------------------------------------------------- District of Columbia 9 11 First 3 4 Second 9 11 Third 9 10 Fourth 7 10 Fifth 15 26 Sixth 9 11 Seventh 8 9 Eighth 8 9 Ninth 13 23 Tenth 7 8 ------------------------------- 1975 - Subsec. (d). Pub. L. 94-82 substituted provision that each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provision that each circuit judge shall receive a salary of $33,000 a year. 1968 - Subsec. (a). Pub. L. 90-347 increased the number of circuit judges in the enumerated circuits as follows: Third Circuit, eight to nine; Fifth Circuit, nine to fifteen; Sixth Circuit, eight to nine; Ninth Circuit, nine to thirteen, and Tenth Circuit, six to seven. 1966 - Subsec. (a). Pub. L. 89-372 increased the number of circuit judges in the enumerated circuits as follows: Fourth Circuit, five to seven; Sixth Circuit, six to eight; Seventh Circuit, seven to eight; Eighth Circuit, seven to eight. 1964 - Subsec. (d). Pub. L. 88-426 increased the salary of the circuit judges from $25,500 to $33,000. 1961 - Subsec. (a). Pub. L. 87-36 increased the number of circuit judges in the enumerated circuits, as follows: Second Circuit, six to nine; Third Circuit, seven to eight; Fourth Circuit, three to five; Fifth Circuit, seven to nine; Seventh Circuit, six to seven; and Tenth Circuit, five to six. 1955 - Subsec. (d). Act Mar. 2, 1955, increased the salary of circuit judges from '$17,500' a year to '$25,500'. 1954 - Subsec. (a). Act Feb. 10, 1954, increased the number of circuit judges in the Fifth Circuit from six to seven, and in the Ninth Circuit from seven to nine. 1949 - Subsec. (a). Act Aug. 3, 1949, increased the number of circuit judges for the District of Columbia from six to nine, for the third circuit from six to seven, for the seventh circuit from five to six, and for the tenth circuit from four to five. EFFECTIVE DATE OF 1990 AMENDMENT Section 206 of title II of Pub. L. 101-650 provided that: 'This title (amending this section and section 133 of this title and enacting provisions set out as notes under this section and sections 133 and 331 of this title) shall take effect on the date of the enactment of this title (Dec. 1, 1990).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-452 effective Oct. 1, 1981, see section 12 of Pub. L. 96-452, set out as a note under section 41 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on first day of first pay period which begins on or after July 1, 1964, except to extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88-426. EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress. NOMINATION TO FEDERAL JUDGESHIP ON NONDISCRIMINATORY BASIS Section 211 of Pub. L. 98-353 provided that: 'It is the sense of the Congress that the President, in selecting individuals for nomination to the Federal judgeships created by this Act (see Short Title of 1984 Amendment note set out under section 151 of this title), shall give due consideration to qualified individuals without regard to race, color, sex, religion, or national origin.' CONTINUED SERVICE OF JUDGES OF COURT OF CLAIMS AND COURT OF CUSTOMS AND PATENT APPEALS AS JUDGES OF COURT OF APPEALS FOR THE FEDERAL CIRCUIT Section 165 of Pub. L. 97-164 provided that: 'The judges of the United States Court of Claims and of the United States Court of Customs and Patent Appeals in regular active service on the effective date of this Act (Oct. 1, 1982) shall continue in office as judges of the United States Court of Appeals for the Federal Circuit. Senior judges of the United States Court of Claims and of the United States Court of Customs and Patent Appeals on the effective date of this Act shall continue in office as senior judges of the United States Court of Appeals for the Federal Circuit.' CONGRESSIONAL STATEMENT REGARDING APPOINTMENT OF JUDGES OF UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND UNITED STATES CLAIMS COURT Section 168 of Pub. L. 97-164 provided that: 'The Congress - '(1) takes notice of the fact that the quality of the Federal judiciary is determined by the competence and experience of its judges; and '(2) suggests that the President, in nominating individuals to judgeships on the United States Court of Appeals for the Federal Circuit and the United States Claims Court, select from a broad range of qualified individuals.' SALARY INCREASES 1991 - Salaries of circuit judges increased to $132,700 per annum, effective on first day of first pay period beginning on or after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1990 - Salaries of circuit judges continued at $95,000 per annum, and increased to $102,500, effective on first day of first pay period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under section 5332 of Title 5. 1989 - Salaries of circuit judges increased in the amount of 25 percent of their rates (as last in effect before the increase), effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5. Salaries of circuit judges continued at $95,000 per annum by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a note under section 5332 of Title 5. 1988 - Salaries of circuit judges continued at $95,000 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5. 1987 - Salaries of circuit judges increased to $95,000 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of circuit judges increased to $85,700 effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 55 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of circuit judges increased to $83,200 effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of circuit judges increased to $80,400 effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of circuit judges increased to $77,300 effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 140 of Pub. L. 97-92 funds are not available to pay a salary at a rate which exceeds the rate in effect on Dec. 15, 1981, which was $74,300. Maximum rate payable after Dec. 17, 1982, increased from $74,300 to $77,300, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1914, set out as a note under section 5318 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5. 1981 - Salaries of circuit judges increased to $74,300 effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Salaries of circuit judges increased to $70,900 effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $60,662.50. Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Salaries of circuit judges increased to $65,000 effective on first day of first applicable pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $60,662.50 for circuit judges. Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Salaries of circuit judges increased to $60,700 effective on first day of first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087 further provided that pursuant to the Legislative Branch Appropriation Act, 1979 (Pub. L. 95-391, title III, Sec. 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 5), funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $57,500. 1977 - Salaries of circuit judges increased to $57,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1976 - Salaries of circuit judges increased to $46,800 effective on first day of first pay period beginning on or after Oct. 1, 1976, by Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941 further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $44,600. 1975 - Salaries of circuit judges increased to $44,600 effective on first day of first pay period beginning on or after Oct. 1, 1975, by Ex. Ord. No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly set out as a note under section 5332 of Title 5. 1969 - Salary of circuit judge increased from $33,000 to $42,500 per annum, commencing Feb. 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1946 - Salaries of circuit judges increased from $12,500 to $17,500 a year by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716. 1926 - Salaries of circuit judges increased from $8,500 to $12,500 a year by act Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919. 1919 - Salaries of circuit judges increased from $7,000 to $8,500 a year by act Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156. 1911 - Salaries of circuit court judges had been set at $7,000 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1131. ADDITIONAL JUDGES Since 1925, the appointment of additional judges was authorized by the following acts: Second circuit. Act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584. Third circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493; act Dec. 7, 1944, ch. 521, Sec. 1, 58 Stat. 796; act June 10, 1930, ch. 438, 46 Stat. 538; act June 24, 1936, ch. 735, Sec. 1, 49 Stat. 1903, repealed by act May 31, 1938, ch. 290, Sec. 3, 52 Stat. 585. Fifth circuit. Act Dec. 14, 1942, ch. 731, 56 Stat. 1050; act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584; act June 10, 1930, ch. 437, 46 Stat. 538. Sixth circuit. Act May 24, 1940, ch. 209, Sec. 1, 54 Stat. 219; act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584. Seventh circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493; act May 31, 1938, ch. 290, Sec. 1, 52 Stat. 584. Eighth circuit. Act May 24, 1940, ch. 209, Sec. 1, 54 Stat. 219; act Mar. 3, 1925, ch. 436, 43 Stat. 1116. Ninth circuit. Act Apr. 14, 1937, ch. 80, 50 Stat. 64; act Aug. 2, 1935, ch. 425, Sec. 1, 49 Stat. 508; act June 16, 1933, ch. 102, 48 Stat. 310 (removing limitation on filling of vacancy); act Mar. 1, 1929, ch. 413, 45 Stat. 1414. Tenth circuit. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493. District of Columbia Court of Appeals. Act Aug. 3, 1949, ch. 387, Sec. 1, 63 Stat. 493; act May 31, 1938, ch. 290, Sec. 2, 52 Stat. 584; act June 19, 1930, ch. 538, 46 Stat. 785. Act Feb. 28, 1929, ch. 363, Sec. 2, 45 Stat. 1346, 1347 provided that 'There shall be in the sixth, seventh, and tenth circuits, respectively, four circuit judges; and in the second and eighth circuits, respectively, five circuit judges; and, in each of the other circuits three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate.' Another part of section 1 of act Feb. 10, 1954, which amended subsec. (a) of this section, provided for the appointment by the President, by and with the advice and consent of the Senate, of the additional judges for the Fifth and Ninth Circuits, provided for in such amendment. Section 1(a) of Pub. L. 87-36 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, three additional circuit judges for the second circuit, one additional circuit judge for the third circuit, two additional circuit judges for the fourth circuit, two additional circuit judges for the fifth circuit, one additional circuit judge for the seventh circuit, and one additional circuit judge for the tenth circuit.' Section 1(a) of Pub. L. 89-372 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, two additional circuit judges for the fourth circuit, two additional circuit judges for the sixth circuit, one additional circuit judge for the seventh circuit, and one additional circuit judge for the eighth circuit.' Section 1(c) of Pub. L. 89-372, as amended by Pub. L. 90-347, Sec. 2, June 18, 1968, 82 Stat. 183, provided that: 'The President shall appoint, by and with the advice and consent of the Senate, four additional circuit judges for the fifth circuit.' The second sentence of section 1(c) of Pub. L. 89-372 which provided that the first four vacancies occurring in the office of circuit judge in the fifth circuit shall not be filled was deleted by section 2 of Pub. L. 90-347, which also made those judgeships permanent and further provided that the present incumbents of such judgeships shall henceforth hold their offices under this section. Section 1 of Pub. L. 90-347 provided: 'That the President shall appoint, by and with the advice and consent of the Senate, one additional circuit judge for the third circuit, two additional circuit judges for the fifth circuit, one additional circuit judge for the sixth circuit, four additional circuit judges for the ninth circuit, and one additional circuit judge for the tenth circuit.' Section 3(a) of Pub. L. 95-486 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional circuit judgeship for the first circuit, two additional circuit judgeships for the second circuit, one additional circuit judgeship for the third circuit, three additional circuit judgeships for the fourth circuit, eleven additional circuit judgeships for the fifth circuit, two additional circuit judgeships for the sixth circuit, one additional circuit judgeship for the seventh circuit, one additional circuit judgeship for the eighth circuit, ten additional circuit judgeships for the ninth circuit, one additional circuit judgeship for the tenth circuit, and two additional circuit judgeships for the District of Columbia.' Section 201(a) of Pub. L. 98-353 provided that: '(1) Subject to the provisions of paragraph (2), the President shall appoint, by and with the advice and consent of the Senate, two additional circuit judges for the first circuit court of appeals, two additional circuit judges for the second circuit court of appeals, two additional circuit judges for the third circuit court of appeals, one additional circuit judge for the fourth circuit court of appeals, two additional circuit judges for the fifth circuit court of appeals, four additional circuit judges for the sixth circuit court of appeals, two additional circuit judges for the seventh circuit court of appeals, one additional circuit judge for the eighth circuit court of appeals, five additional circuit judges for the ninth circuit court of appeals, two additional circuit judges for the tenth circuit court of appeals, and one additional circuit judge for the District of Columbia circuit court of appeals. '(2) The President shall appoint, by and with the advice and consent of the Senate, no more than 11 of such judges prior to January 21, 1985.' Section 202(a) of Pub. L. 101-650 provided that: 'The President shall appoint, by and with the advice and consent of the Senate - '(1) 2 additional circuit judges for the third circuit court of appeals; '(2) 4 additional circuit judges for the fourth circuit court of appeals; '(3) 1 additional circuit judge for the fifth circuit court of appeals; '(4) 1 additional circuit judge for the sixth circuit court of appeals; '(5) 1 additional circuit judge for the eighth circuit court of appeals; and '(6) 2 additional circuit judges for the tenth circuit court of appeals.' -EXEC- EXECUTIVE ORDER NO. 11972 Ex. Ord. No. 11972, Feb. 14, 1977, 42 F.R. 9659, as amended by Ex. Ord. No. 11993, May 24, 1977, 42 F.R. 27197, which related to the United States Circuit Judge Nominating Commission, was revoked by Ex. Ord. No. 12059, May 11, 1978, 43 F.R. 20949, formerly set out as a note below. EXECUTIVE ORDER NO. 12059 Ex. Ord. No. 12059, May 11, 1978, 43 F.R. 20949, as amended by Ex. Ord. No. 12097, Nov. 8, 1978, 43 Stat. 52455, which established the United States Circuit Judge Nominating Commission and provided for its membership, functions, etc., was revoked by Ex. Ord. No. 12305, May 5, 1981, 46 F.R. 25421, set out as a note under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees. -CROSS- CROSS REFERENCES Assignment of circuit judges to other circuits or courts, see section 291 et seq. of this title. Compensation not to be diminished during continuance in office, see Const., Art. 3, Sec. 1. Judges to hold office during good behavior, see Const., Art. 3, Sec. 1. Oath of judge, see section 453 of this title. Official station of circuit judges, see section 456 of this title. Retirement of judges, see section 371 et seq. of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 992 of this title. ------DocID 36175 Document 37 of 1452------ -CITE- 28 USC Sec. 45 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 45. Chief judges; precedence of judges -STATUTE- (a)(1) The chief judge of the circuit shall be the circuit judge in regular active service who is senior in commission of those judges who - (A) are sixty-four years of age or under; (B) have served for one year or more as a circuit judge; and (C) have not served previously as chief judge. (2)(A) In any case in which no circuit judge meets the qualifications of paragraph (1), the youngest circuit judge in regular active service who is sixty-five years of age or over and who has served as circuit judge for one year or more shall act as the chief judge. (B) In any case under subparagraph (A) in which there is no circuit judge in regular active service who has served as a circuit judge for one year or more, the circuit judge in regular active service who is senior in commission and who has not served previously as chief judge shall act as the chief judge. (3)(A) Except as provided in subparagraph (C), the chief judge of the circuit appointed under paragraph (1) shall serve for a term of seven years and shall serve after expiration of such term until another judge is eligible under paragraph (1) to serve as chief judge of the circuit. (B) Except as provided in subparagraph (C), a circuit judge acting as chief judge under subparagraph (A) or (B) of paragraph (2) shall serve until a judge has been appointed who meets the qualifications under paragraph (1). (C) No circuit judge may serve or act as chief judge of the circuit after attaining the age of seventy years unless no other circuit judge is qualified to serve as chief judge of the circuit under paragraph (1) or is qualified to act as chief judge under paragraph (2). (b) The chief judge shall have precedence and preside at any session of the court which he attends. Other circuit judges of the court in regular active service shall have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. The circuit justice, however, shall have precedence over all the circuit judges and shall preside at any session which he attends. (c) If the chief judge desires to be relieved of his duties as chief judge while retaining his active status as circuit judge, he may so certify to the Chief Justice of the United States, and thereafter the chief judge of the circuit shall be such other circuit judge who is qualified to serve or act as chief judge under subsection (a). (d) If a chief judge is temporarily unable to perform his duties as such, they shall be performed by the circuit judge in active service, present in the circuit and able and qualified to act, who is next in precedence. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 871; Oct. 31, 1951, ch. 655, Sec. 35, 65 Stat. 723; Aug. 6, 1958, Pub. L. 85-593, Sec. 1, 72 Stat. 497; Apr. 2, 1982, Pub. L. 97-164, title II, Sec. 201, 204, 96 Stat. 51, 53.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 216 and 216a of title 28, U.S.C., 1940 ed. (Mar. 3, 1911, ch. 231, Sec. 120, 36 Stat. 1132; May 23, 1934, ch. 339, 48 Stat. 796). Subsection (a), providing for 'chief judge,' is new. Such term is adopted to replace the term 'senior circuit judge' in recognition of the great increase in administrative duties of such judge. Subsection (b) conforms with section 4 of this title relating to precedence of associate justices of the Supreme Court, and consolidates the provisions of the second and third sentences of section 216 of title 28, U.S.C., 1940 ed. The designation when filed in the court of appeals will not only record the transfer of function from the relieved chief judge to his successor, but will also determine the question of willingness of the successor to serve. Other provisions of section 216 of title 28, U.S.C., 1940 ed., are covered by section 47 of this title. Subsection (c) is new. Subsection (d) is based on section 216a of title 28, U.S.C., 1940 ed. The official status of the Chief Justice of the Court of Appeals for the District of Columbia holding office on the effective date of the act is preserved by section 2 of the bill to enact revised Title 28. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 201(a), designated existing first sentence of subsec. (a) as par. (1), substituted 'The chief judge of the circuit shall be the circuit judge in regular active service who is senior in commission of those judges who - (A) are sixty-four years of age or under; (B) have served for one year or more as a circuit judge; and (C) have not served previously as chief judge' for 'The circuit judge in regular active service who is senior in commission and under seventy years of age shall be the chief judge of the circuit' in par. (1) as so designated, designated existing second sentence of subsec. (a) as par. (2)(A), substituted 'In any case in which no circuit judge meets the qualifications of paragraph (1), the youngest circuit judge in regular active service who is sixty-five years of age or over and who has served as circuit judge for one year or more shall act as the chief judge' for 'If all the circuit judges in regular active service are seventy years of age or older the youngest shall act as chief judge until a judge has been appointed and qualified who is under seventy years of age, but a judge may not act as chief judge until he has served as a circuit judge for one year' in par. (2)(A) as so designated, and added pars. (2)(B) and (3). Subsec. (b). Pub. L. 97-164, Sec. 204, inserted 'of the court in regular active service' after 'circuit judges' in second sentence. Subsec. (c). Pub. L. 97-164, Sec. 201(b), amended subsec. (c) generally, substituting 'the chief judge of the circuit shall be such other circuit judge who is qualified to serve or act as chief judge under subsection (a)' for 'the circuit judge in active service next in precedence and willing to serve shall be designated by the Chief Justice as the chief judge of the circuit'. 1958 - Subsec. (a). Pub. L. 85-593 provided that chief judges of circuit courts cease to serve as such upon reaching the age of seventy, that the youngest circuit judge act as chief judge where all circuit judges in regular active service are seventy years or older until a judge under seventy has been appointed and qualified, and that circuit judge must have served one year before acting as chief judge. 1951 - Subsec. (a). Act Oct. 31, 1951, inserted 'in active service who is'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Section 3 of Pub. L. 85-593, as amended by Pub. L. 95-486, Sec. 4, Oct. 20, 1978, 92 Stat. 1632, provided that: 'The amendments to sections 45 and 136 of title 28 of the United States Code made by this Act shall take effect at the expiration of one year from the date of enactment of this Act (Aug. 6, 1958).' SAVINGS PROVISION Section 203 of part A of title II of Pub. L. 97-164 provided that: '(a) The amendments to section 45 of title 28, United States Code, and to section 136 of such title, made by sections 201 and 202 of this Act, shall not apply to or affect any person serving as chief judge on the effective date of this Act (Oct. 1, 1982). '(b) The provisions of section 45(a) of title 28, United States Code, as in effect on the day before the effective date of this Act (Oct. 1, 1982), shall apply to the chief judge of a circuit serving on such effective date. The provisions of section 136(a) of title 28, United States Code, as in effect on the day before the effective date of this part (Oct. 1, 1982), shall apply to the chief judge of a district court serving on such effective date.' APPOINTMENT OF CHIEF JUDGE OF COURT OF APPEALS FOR THE FEDERAL CIRCUIT Section 166 of Pub. L. 97-164 provided that: 'Notwithstanding the provisions of section 45(a) of title 28, United States Code, the first chief judge of the United States Court of Appeals for the Federal Circuit shall be the Chief Judge of the United States Court of Claims or the Chief Judge of the United States Court of Customs and Patent Appeals, whoever has served longer as chief judge of his court. Notwithstanding section 45 of title 28, United States Code, whichever of the two chief judges does not become the first chief judge of the United States Court of Appeals for the Federal Circuit under the preceding sentence shall, while in active service, have precedence and be deemed senior in commission over all the circuit judges of the United States Court of Appeals for the Federal Circuit (other than the first chief judge of that circuit). When the person who first serves as chief judge of the United States Court of Appeals for the Federal Circuit vacates that position, the position shall be filled in accordance with section 45(a) of title 28, United States Code, as modified by the preceding sentence of this section.' CHIEF JUDGE OF COURT OF APPEALS FOR DISTRICT OF COLUMBIA Section 2(a) of act June 25, 1948, provided in part that the Chief Justice of the Court of Appeals for the District of Columbia in office on Sept. 1, 1948, shall thereafter be known as the Chief Judge. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 372 of this title. ------DocID 36176 Document 38 of 1452------ -CITE- 28 USC Sec. 46 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 46. Assignment of judges; panels; hearings; quorum -STATUTE- (a) Circuit judges shall sit on the court and its panels in such order and at such times as the court directs. (b) In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness. Such panels shall sit at the times and places and hear the cases and controversies assigned as the court directs. The United States Court of Appeals for the Federal Circuit shall determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine by rule the number of judges, not less than three, who constitute a panel. (c) Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service, or such number of judges as may be prescribed in accordance with section 6 of Public Law 95-486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member. (d) A majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c), shall constitute a quorum. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 871; Nov. 13, 1963, Pub. L. 88-176, Sec. 1(b), 77 Stat. 331; Oct. 20, 1978, Pub. L. 95-486, Sec. 5(a), (b), 92 Stat. 1633; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 103, title II, Sec. 205, 96 Stat. 25, 53.) -MISC1- HISTORICAL AND REVISION NOTES Based in part on title 28, U.S.C., 1940 ed., Sec. 212 (Mar. 3, 1911, ch. 231, Sec. 117, 36 Stat. 1131). Subsections (a)-(c) authorize the establishment of divisions of the court and provide for the assignment of circuit judges for hearings and rehearings in banc. The Supreme Court of the United States has ruled that, notwithstanding the three-judge provision of section 212 of title 28, U.S.C., 1940 ed., a court of appeals might lawfully consist of a greater number of judges, and that the five active circuit judges of the third circuit might sit in banc for the determination of an appeal. (See Textile Mills Securities Corporation v. Commissioner of Internal Revenue, 1941, 62 S.Ct. 272, 314 U.S. 326, 86 L.Ed. 249.) The Supreme Court in upholding the unanimous view of the five judges as to their right to sit in banc, notwithstanding the contrary opinion in Langs Estate v. Commissioner of Internal Revenue, 1938, 97 F.2d 867, said in the Textile Mills case: 'There are numerous functions of the court, as a 'court of record, with appellate jurisdiction', other than hearing and deciding appeals. Under the Judicial Code these embrace: prescribing the form of writs and other process and the form and style of its seal (28 U.S.C., Sec. 219); the making of rules and regulations (28 U.S.C., Sec. 219); the appointment of a clerk (28 U.S.C., Sec. 221) and the approval of the appointment and removal of deputy clerks (28 U.S.C., Sec. 222); and the fixing of the 'times' when court shall be held (28 U.S.C., Sec. 223). Furthermore, those various sections of the Judicial Code provide that each of these functions shall be performed by the court.' This section preserves the interpretation established by the Textile Mills case but provides in subsection (c) that cases shall be heard by a court of not more than three judges unless the court has provided for hearing in banc. This provision continues the tradition of a three-judge appellate court and makes the decision of a division, the decision of the court, unless rehearing in banc is ordered. It makes judges available for other assignments, and permits a rotation of judges in such manner as to give to each a maximum of time for the preparation of opinions. Whether divisions should sit simultaneously at the same or different places in the circuit is a matter for each court to determine. -REFTEXT- REFERENCES IN TEXT Section 6 of Public Law 95-486 (92 Stat. 1633), referred to in subsec. (c), is section 6 of Pub. L. 95-486, Oct. 20, 1978, 92 Stat. 1633, which is set out as an Appeals Court Administrative Units note under section 41 of this title. -MISC2- AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 103(a), substituted 'panels' for 'divisions'. Subsec. (b). Pub. L. 97-164, Sec. 103(b), substituted 'panels' for 'divisions' wherever appearing and inserted provisions requiring that at least a majority of the panels of each circuit be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness, and that the United States Court of Appeals for the Federal Circuit determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and determine by rule the number of judges, not less than three, who constitute a panel. Subsec. (c). Pub. L. 97-164, Sec. 103(c), 205, inserted provision that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide and that, as an alternative to the requirement that a court in banc consist of all circuit judges in regular active service, such a court may consist of such number of judges as may be prescribed in accordance with section 6 of Public Law 95-486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member. Subsec. (d). Pub. L. 97-164, Sec. 103(d), substituted 'panel' for 'division'. 1978 - Pub. L. 95-486, Sec. 5(b), substituted 'panels' for 'divisions' in section catchline. Subsec. (c). Pub. L. 95-486, Sec. 5(a), substituted 'panel' for 'division' and struck out provision authorizing a retired circuit judge to sit as a judge of the court in banc in the rehearing of a case if he sat in the court or division in the original hearing of such case. 1963 - Subsec. (c). Pub. L. 88-176 inserted 'regular' before 'active service' wherever appearing, and provided that a retired circuit judge shall be competent to sit as a judge of the court in banc, in a rehearing if he sat in at the original hearing. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36177 Document 39 of 1452------ -CITE- 28 USC Sec. 47 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 47. Disqualification of trial judge to hear appeal -STATUTE- No judge shall hear or determine an appeal from the decision of a case or issue tried by him. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 872.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 216, and District of Columbia Code, 1940 ed., Sec. 11-205 (Feb. 9, 1893, ch. 74, Sec. 6, 27 Stat. 435; July 30, 1894, ch. 172, Sec. 2, 28 Stat. 161; Mar. 3, 1901, ch. 854, Sec. 225, 31 Stat. 1225; Mar. 3, 1911, ch. 231, Sec. 120, 36 Stat. 1132). The provision in section 11-205 of the District of Columbia Code, 1940 ed., that a justice of the district court while on the bench of the Court of Appeals in the District of Columbia shall not sit in review of judgment, order, or decree rendered by him below, was consolidated with a similar provision of section 216 of title 28, U.S.C., 1940 ed. The consolidation simplifies the language without change of substance. References in said section 11-205 to the power to prescribe rules, requisites of record on appeal, forms of bills of exception, and procedure on appeal, were omitted as covered by Rules 73, 75, 76, of the Federal Rules of Civil Procedure and by Rule 51 of the Federal Rules of Criminal Procedure. Said section 11-205 contained a provision that on a divided opinion by the Court of Appeals for the District of Columbia the decision of the lower court should stand affirmed. This was omitted as unnecessary as merely expressing a well-established rule of law. Other provisions of said section 11-205 are incorporated in section 48 of this title. The provision of section 216 of title 28, U.S.C., 1940 ed., with respect to the competency of justices and judges to sit, was omitted as covered by section 43 of this title. Specific reference in said section 216 to the Chief Justice of the United States was likewise omitted inasmuch as he sits as a circuit justice. The provision of said section 216 with respect to assignment of district judges was omitted as covered by section 291 et seq. of this title. Provision of said section 216 relating to presiding judge was omitted as covered by section 44 of this title. ------DocID 36178 Document 40 of 1452------ -CITE- 28 USC Sec. 48 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 48. Terms of court -STATUTE- (a) The courts of appeals shall hold regular sessions at the places listed below, and at such other places within the respective circuit as each court may designate by rule. --------------------------------------------------------------------- Circuits Places --------------------------------------------------------------------- District of Columbia Washington. First Boston. Second New York. Third Philadelphia. Fourth Richmond, Asheville. Fifth New Orleans, Fort Worth, Jackson. Sixth Cincinnati. Seventh Chicago. Eighth St. Louis, Kansas City, Omaha, St. Paul. Ninth San Francisco, Los Angeles, Portland, Seattle. Tenth Denver, Wichita, Oklahoma City. Eleventh Atlanta, Jacksonville, Montgomery. Federal District of Columbia, and in any other place listed above as the court by rule directs. ------------------------------- (b) Each court of appeals may hold special sessions at any place within its circuit as the nature of the business may require, and upon such notice as the court orders. The court may transact any business at a special session which it might transact at a regular session. (c) Any court of appeals may pretermit, with the consent of the Judicial Conference of the United States, any regular session of court at any place for insufficient business or other good cause. (d) The times and places of the sessions of the Court of Appeals for the Federal Circuit shall be prescribed with a view to securing reasonable opportunity to citizens to appear before the court with as little inconvenience and expense to citizens as is practicable. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 872; Oct. 31, 1951, ch. 655, Sec. 36, 65 Stat. 723; Oct. 14, 1980, Pub. L. 96-452, Sec. 4, 94 Stat. 1994; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 104, 96 Stat. 26.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 223 and Sec. 11-205 District of Columbia Code, 1940 ed. (Feb. 9, 1893, ch. 74, Sec. 6, 27 Stat. 435; July 30, 1894, ch. 172, Sec. 2, 28 Stat. 161; Mar. 3, 1901, ch. 854, Sec. 225, 31 Stat. 1225; Mar. 3, 1911, ch. 231, Sec. 126, 36 Stat. 1132; July 17, 1916, ch. 246, 39 Stat. 385; Jan. 8, 1925, ch. 57, 43 Stat. 729; July 3, 1926, ch. 735, 44 Stat. 809; Feb. 28, 1929, ch. 363, Sec. 3, 45 Stat. 1347; May 17, 1932, ch. 190, 47 Stat. 158). This section consolidates section 223 of title 28, U.S.C., 1940 ed., with part of section 11-205 of the District of Columbia Code. Reference to San Juan as a place for holding court in the First Circuit was omitted. The revised section will permit the holding of terms at San Juan when the public interest requires. The phrase 'and at such other places within the respective circuits as may be designated by rule of court' was added to enable each court of appeals to hold such additional regular terms as changing circumstances might require. The provisions of such section 223, for furnishing suitable rooms and accommodation at Oakland City, were omitted as obsolete since the erection of a new Federal building there. The provisions as to fixed times for holding court in the Fifth Circuit was omitted as inconsistent with the practice in the other circuits. Words 'San Francisco, Los Angeles, Portland, Seattle' were substituted for 'San Francisco and two other places designated by the court' to conform with the practice in the Ninth Circuit. Changes were made in phraseology. SENATE REVISION AMENDMENT By Senate amendment, Jacksonville (Fla.) was added as a place for holding a regular session of the Court of Appeals for the Fifth Circuit. See 80th Congress Senate Report No. 1559. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 104(a), (b), designated introductory provisions and table of circuits as subsec. (a) and substituted provisions directing the courts of appeals to hold regular sessions at the places listed in the table and at such other places within the circuits as each court might designate by rule, for provisions which directed that terms or sessions of courts of appeals be held annually at the places listed in the table and at such other places as the courts might designate by rule and authorized each court of appeals to hold special terms at any place within its circuit, and added to the table an item for the Federal circuit, with sessions to be held in the District of Columbia and in any other place listed elsewhere in the table as the Federal circuit court might by rule direct. Subsec. (b). Pub. L. 97-164, Sec. 104(c), added subsec. (b). Subsec. (c). Pub. L. 97-164, Sec. 104(c), designated existing provisions following table of circuits as subsec. (c) and substituted 'regular session' for 'regular term or session'. Subsec. (d). Pub. L. 97-164, Sec. 104(c), added subsec. (d). 1980 - Pub. L. 96-452 substituted 'New Orleans, Fort Worth, Jackson' for 'New Orleans, Atlanta, Fort Worth, Jacksonville, Montgomery' in item relating to fifth circuit, and added item relating to eleventh circuit. 1951 - Act Oct. 31, 1951, inserted last par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-452 effective Oct. 1, 1981, see section 12 of Pub. L. 96-452, set out as a note under section 41 of this title. SURVEY OF JUDICIAL BUSINESS IN ALASKA Section 23(a) of Pub. L. 86-70, June 25, 1959, 73 Stat. 147, provided that: 'The Judicial Conference of the United States, with the assistance of the Administrative Office of the United States Courts, shall conduct a study, including a field survey, of the Federal judicial business arising in the State of Alaska with a view toward directing the United States Court of Appeals for the Ninth Circuit to hold such terms of court in Anchorage or such other Alaskan cities as may be necessary for the prompt and efficient administration of justice.' -CROSS- CROSS REFERENCES Courts always open, see section 452 of this title. ------DocID 36179 Document 41 of 1452------ -CITE- 28 USC Sec. 49 -EXPCITE- TITLE 28 PART I CHAPTER 3 -HEAD- Sec. 49. Assignment of judges to division to appoint independent counsels -STATUTE- (a) Beginning with the two-year period commencing on the date of the enactment of this section, three judges or justices shall be assigned for each successive two-year period to a division of the United States Court of Appeals for the District of Columbia to be the division of the court for the purpose of appointing independent counsels. The Clerk of the United States Court of Appeals for the District of Columbia Circuit shall serve as the clerk of such division of the court and shall provide such services as are needed by such division of the court. (b) Except as provided under subsection (f) of this section, assignment to such division of the court shall not be a bar to other judicial assignments during the term of such division. (c) In assigning judges or justices to sit on such division of the court, priority shall be given to senior circuit judges and retired justices. (d) The Chief Justice of the United States shall designate and assign three circuit court judges or justices, one of whom shall be a judge of the United States Court of Appeals for the District of Columbia, to such division of the court. Not more than one judge or justice or senior or retired judge or justice may be named to such division from a particular court. (e) Any vacancy in such division of the court shall be filled only for the remainder of the two-year period in which such vacancy occurs and in the same manner as initial assignments to such division were made. (f) Except as otherwise provided in chapter 40 of this title, no member of such division of the court who participated in a function conferred on the division under chapter 40 of this title involving an independent counsel shall be eligible to participate in any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 602(a), Oct. 26, 1978, 92 Stat. 1873, and amended Pub. L. 97-409, Sec. 2(b)(1), Jan. 3, 1983, 96 Stat. 2039; Pub. L. 99-554, title I, Sec. 144(g)(3), Oct. 27, 1986, 100 Stat. 3097; Pub. L. 100-191, Sec. 4, 5(a), Dec. 15, 1987, 101 Stat. 1307.) -REFTEXT- REFERENCES IN TEXT The date of enactment of this section, referred to in subsec. (a), is Oct. 26, 1978. -MISC2- AMENDMENTS 1987 - Subsec. (a). Pub. L. 100-191, Sec. 4, inserted at end: 'The Clerk of the United States Court of Appeals for the District of Columbia Circuit shall serve as the clerk of such division of the court and shall provide such services as are needed by such division of the court.' Subsec. (f). Pub. L. 100-191, Sec. 5(a), substituted 'involving an independent counsel' for 'involving a independent counsel'. 1986 - Subsec. (f). Pub. L. 99-554 substituted 'chapter 40' for 'chapter 39' in two places. 1983 - Pub. L. 97-409, Sec. 2(b)(1)(B), substituted 'independent counsels' for 'special prosecutors' in section catchline. Subsec. (a). Pub. L. 97-409, Sec. 2(b)(1)(B), substituted 'independent counsels' for 'special prosecutors'. Subsec. (f). Pub. L. 97-409, Sec. 2(b)(1)(A), (C), substituted 'independent counsel' for 'special prosecutor' wherever appearing and 'independent counsel's' for 'special prosecutor's'. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. EFFECTIVE DATE Section effective Oct. 26, 1978, see section 604 of Pub. L. 95-521, set out as a note under section 591 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 593, 595 of this title. ------DocID 36180 Document 42 of 1452------ -CITE- 28 USC CHAPTER 5 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- CHAPTER 5 - DISTRICT COURTS -MISC1- Sec. 81. Alabama. 81A. Alaska. 82. Arizona. 83. Arkansas. 84. California. 85. Colorado. 86. Connecticut. 87. Delaware. 88. District of Columbia. 89. Florida. 90. Georgia. 91. Hawaii. 92. Idaho. 93. Illinois. 94. Indiana. 95. Iowa. 96. Kansas. 97. Kentucky. 98. Louisiana. 99. Maine. 100. Maryland. 101. Massachusetts. 102. Michigan. 103. Minnesota. 104. Mississippi. 105. Missouri. 106. Montana. 107. Nebraska. 108. Nevada. 109. New Hampshire. 110. New Jersey. 111. New Mexico. 112. New York. 113. North Carolina. 114. North Dakota. 115. Ohio. 116. Oklahoma. 117. Oregon. 118. Pennsylvania. 119. Puerto Rico. 120. Rhode Island. 121. South Carolina. 122. South Dakota. 123. Tennessee. 124. Texas. 125. Utah. 126. Vermont. 127. Virginia. 128. Washington. 129. West Virginia. 130. Wisconsin. 131. Wyoming. 132. Creation and composition of district courts. 133. Appointment and number of district judges. 134. Tenure and residence of district judges. 135. Salaries of district judges. 136. Chief judges; precedence of district judges. 137. Division of business among district judges. 138. Terms abolished. 139. Times for holding regular sessions. 140. Adjournment. 141. Special sessions; places; notice. (142. Repealed.) 143. Vacant judgeship as affecting proceedings. 144. Bias or prejudice of judge. HISTORICAL AND REVISION NOTES Sections 81-131 of this chapter show the territorial composition of districts and divisions by counties as of January 1, 1945. All references to dates were omitted as unnecessary. All references to fixed terms of holding court were also omitted in order to vest in each district court a wider discretion and greater flexibility in the disposition of its business. Such times will now be determined by rule of court rather than by statute. See sections 138 and 141 of this title. AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 115(c)(3), Apr. 2, 1982, 96 Stat. 32, struck out item 142 'Accommodations at places for holding court'. 1963 - Pub. L. 88-139, Sec. 3(a), Oct. 16, 1963, 77 Stat. 248, substituted 'Terms abolished' for 'Times for holding regular terms' in item 138, 'Times for holding regular sessions' for 'Term continued until terminated' in item 139, and 'sessions' for 'terms' in item 141. 1958 - Pub. L. 85-508, Sec. 12(a), July 7, 1958, 72 Stat. 348, added item 81A. SHORT TITLE OF 1978 AMENDMENT For short title of Pub. L. 95-408, Oct. 2, 1978, 92 Stat. 883, as 'Federal District Court Organization Act of 1978', see note set out under section 1 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE See Appendix to this title. CROSS REFERENCES Guam and Virgin Islands district courts, see sections 1424, 1424b, and 1611 et seq. of Title 48, Territories and Insular Possessions. Jurisdiction and venue of district courts, see sections 1331 et seq. and 1391 et seq. of this title. Northern Mariana Islands district court, see sections 1694 to 1694e of Title 48, Territories and Insular Possessions. Three-judge courts, composition, see section 2284 of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 451, 1827, 1869 of this title; title 18 section 3006A; title 22 section 1623. ------DocID 36181 Document 43 of 1452------ -CITE- 28 USC Sec. 81 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 81. Alabama -STATUTE- Alabama is divided into three judicial districts to be known as the Northern, Middle, and Southern Districts of Alabama. NORTHERN DISTRICT (a) The Northern District comprises seven divisions. (1) The Northwestern Division comprises the counties of Colbert, Franklin, and Lauderdale. Court for the Northwestern Division shall be held at Florence. (2) The Northeastern Division comprises the counties of Cullman, Jackson, Lawrence, Limestone, Madison, and Morgan. Court for the Northeastern Division shall be held at Huntsville and Decatur. (3) The Southern Division comprises the counties of Blount, Jefferson, and Shelby. Court for the Southern Division shall be held at Birmingham. (4) The Eastern Division comprises the counties of Calhoun, Clay, Cleburne, and Talladega. Court for the Eastern Division shall be held at Anniston. (5) The Western Division comprises the counties of Bibb, Greene, Pickens, Sumter, and Tuscaloosa. Court for the Western Division shall be held at Tuscaloosa. (6) The Middle Division comprises the counties of Cherokee, De Kalb, Etowah, Marshall, and Saint Clair. Court for the Middle Division shall be held at Gadsden. (7) The Jasper Division comprises the counties of Fayette, Lamar, Marion, Walker, and Winston. Court for the Jasper Division shall be held at Jasper. MIDDLE DISTRICT (b) The Middle District comprises three divisions. (1) The Northern Division comprises the counties of Autauga, Barbour, Bullock, Butler, Chilton, Coosa, Covington, Crenshaw, Elmore, Lowndes, Montgomery, and Pike. Court for the Northern Division shall be held at Montgomery. (2) The Southern Division comprises the counties of Coffee, Dale, Geneva, Henry, and Houston. Court for the Southern Division shall be held at Dothan. (3) The Eastern Division comprises the counties of Chambers, Lee, Macon, Randolph, Russell, and Tallapoosa. Court for the Eastern Division shall be held at Opelika. SOUTHERN DISTRICT (c) The Southern District comprises two divisions. (1) The Northern Division comprises the counties of Dallas, Hale, Marengo, Perry, and Wilcox. Court for the Northern Division shall be held at Selma. (2) The Southern Division comprises the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Mobile, Monroe, and Washington. Court for the Southern Division shall be held at Mobile. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 873; May 19, 1961, Pub. L. 87-36, Sec. 3(a), 75 Stat. 83.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed. Sec. 142 (Mar. 3, 1911, ch. 231, Sec. 70, 36 Stat. 1105; Feb. 28, 1913, ch. 89, 37 Stat. 698; June 27, 1922, ch. 247, 42 Stat. 667). Provisions relating to the places for the maintenance of the clerks' offices were omitted as covered by section 751 of this title, providing that deputy clerks may be designated to reside and maintain offices at such places for holding court as the judge may determine. Provisions that the offices of the court shall be kept open at all times were omitted as covered by section 452 of this title. A provision requiring the district judge for the northern district to reside at Birmingham was omitted as incongruous with section 134 of this title, requiring every district judge to reside within the district for which he is appointed. Likewise the provision of section 142 of title 28, U.S.C., 1940 ed., requiring the court to remain in session at Birmingham at least 6 months in each calendar year was omitted as unnecessary and not in harmony with provisions respecting other districts. The provisions for furnishing rooms and accommodations at Florence, Gadsden, Jasper and Opelika were omitted as obsolete upon advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available in each of these places. Changes in arrangement and phraseology were made. AMENDMENTS 1961 - Subsec. (a)(2). Pub. L. 87-36 provided for holding court at Decatur. ------DocID 36182 Document 44 of 1452------ -CITE- 28 USC Sec. 81A -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 81A. Alaska -STATUTE- Alaska constitutes one judicial district. Court shall be held at Anchorage, Fairbanks, Juneau, Ketchikan, and Nome. -SOURCE- (Added Pub. L. 85-508, Sec. 12(b), July 7, 1958, 72 Stat. 348, and amended Pub. L. 86-70, Sec. 23(b), June 25, 1959, 73 Stat. 147.) -MISC1- AMENDMENTS 1959 - Pub. L. 86-70 inserted 'Ketchikan,'. EFFECTIVE DATE OF 1959 AMENDMENT Section 12 of Pub. L. 85-508 provided in part that this section, and the amendments to sections 133, 333, 373, 376, 460, 610, 753, 1252, 1291, 1292, 1294, 1346, 1963, 2072, 2201 and 2410 of this title, section 341b of Title 5, Government Organization and Employees, and sections 3241, 3401, 3771 and 3772 of Title 18, Crimes and Criminal Procedure, are effective on the admission of Alaska into the Union. Admission as a State was accomplished Jan. 3, 1959 upon issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508. See notes set out preceding section 21 of Title 48, Territories and Insular Possessions. CONTINUATION OF SUITS Section 13 of Pub. L. 85-508 provided that: 'No writ, action, indictment, cause, or proceeding pending in the District Court for the Territory of Alaska on the date when said Territory shall become a State, and no case pending in an appellate court upon appeal from the District Court for the Territory of Alaska at the time said Territory shall become a State, shall abate by the admission of the State of Alaska into the Union, but the same shall be transferred and proceeded with as hereinafter provided. 'All civil causes of action and all criminal offenses which shall have arisen or been committed prior to the admission of said State, but as to which no suit, action, or prosecution shall be pending at the date of such admission, shall be subject to prosecution in the appropriate State courts or in the United States District Court for the District of Alaska in like manner, to the same extent, and with like right of appellate review, as if said State had been created and said courts had been established prior to the accrual of said causes of action or the commission of such offenses; and such of said criminal offenses as shall have been committed against the laws of the Territory shall be tried and punished by the appropriate courts of said State, and such as shall have been committed against the laws of the United States shall be tried and punished in the United States District Court for the District of Alaska.' APPEALS Section 14 of Pub. L. 85-508 provided that: 'All appeals taken from the District Court for the Territory of Alaska to the Supreme Court of the United States or the United States Court of Appeals for the Ninth Circuit, previous to the admission of Alaska as a State, shall be prosecuted to final determination as though this Act had not been passed. All cases in which final judgement has been rendered in such district court, and in which appeals might be had except for the admission of such State, may still be sued out, taken, and prosecuted to the Supreme Court of the United States or the United States Court of Appeals for the Ninth Circuit under the provisions of then existing law, and there held and determined in like manner; and in either case, the Supreme Court of the United States, or the United States Court of Appeals, in the event of reversal, shall remand the said cause to either the State supreme court or other final appellate court of said State, or the United States district court for said district, as the case may require: Provided, That the time allowed by existing law for appeals from the district court for said Territory shall not be enlarged thereby.' TRANSFER OF CASES Section 15 of Pub. L. 85-508 provided that: 'All causes pending or determined in the District Court for the Territory of Alaska at the time of the admission of Alaska as a State which are of such nature as to be within the jurisdiction of a district court of the United States shall be transferred to the United States District Court for the District of Alaska for final disposition and enforcement in the same manner as is now provided by law with reference to the judgments and decrees in existing United States district courts. All other causes pending or determined in the District Court for the Territory of Alaska at the time of the admission of Alaska as a State shall be transferred to the appropriate State court of Alaska. All final judgments and decrees rendered upon such transferred cases in the United States District Court for the District of Alaska may be reviewed by the Supreme Court of the United States or by the United States Court of Appeals for the Ninth Circuit in the same manner as is now provided by law with reference to the judgments and decrees in existing United States district courts.' SUCCESSION OF COURTS Section 16 of Pub. L. 85-508 provided that: 'Jurisdiction of all cases pending or determined in the District Court for the Territory of Alaska not transferred to the United States District Court for the District of Alaska shall devolve upon and be exercised by the courts of original jurisdiction created by said State, which shall be deemed to be the successor of the District Court for the Territory of Alaska with respect to cases not so transferred and, as such, shall take and retain custody of all records, dockets, journals, and files of such court pertaining to such cases. The files and papers in all cases so transferred to the United States district court, together with a transcript of all book entries to complete the record in such particular cases so transferred, shall be in like manner transferred to said district court.' PENDING CASES Section 17 of Pub. L. 85-508 provided that: 'All cases pending in the District Court for the Territory of Alaska at the time said Territory becomes a State not transferred to the United States District Court for the District of Alaska shall be proceeded with and determined by the courts created by said State with the right to prosecute appeals to the appellate courts created by said State, and also with the same right to prosecute appeals or writs of certiorari from the final determination in said causes made by the court of last resort created by such State to the Supreme Court of the United States, as now provided by law for appeals and writs of certiorari from the court of last resort of a State to the Supreme Court of the United States.' TERMINATION OF JURISDICTION OF DISTRICT COURT FOR THE TERRITORY OF ALASKA Section 18 of Pub. L. 85-508 provided that: 'The provisions of the preceding sections with respect to the termination of the jurisdiction of the District Court for the Territory of Alaska, the continuation of suits, the succession of courts, and the satisfaction of rights of litigants in suits before such courts, shall not be effective until three years after the effective date of this Act (see section 8(b) of Pub. L. 85-508, set out as a note preceding section 21 of Title 48, Territories and Insular Possessions), unless the President, by Executive order, shall sooner proclaim that the United States District Court for the District of Alaska, established in accordance with the provisions of this Act, is prepared to assume the functions imposed upon it. During such period of three years or until such Executive order is issued, the United States District Court for the Territory of Alaska shall continue to function as heretofore. The tenure of the judges, the United States attorneys, marshals, and other officers of the United States District Court for the Territory of Alaska shall terminate at such time as that court shall cease to function as provided in this section.' SCHEDULE OF FEES, MILEAGE, OR OTHER COMPENSATION Section 23(c) of Pub. L. 86-70, June 25, 1959, 73 Stat. 147, provided that: 'Such authority as has been exercised by the Attorney General heretofore, with regard to the Federal court system in Alaska, pursuant to section 30 of the Act of June 6, 1900 (48 U.S.C. 25) shall continue to be exercised by him after the court created by section 12(b) of the Act of July 7, 1958 (72 Stat. 339, 348) (this section), providing for the admission of the State of Alaska into the Union, is established.' -EXEC- EX. ORD. NO. 10867. ASSUMPTION OF FUNCTIONS BY UNITED STATES DISTRICT COURT FOR DISTRICT OF ALASKA Ex. Ord. No. 10867, Feb. 20, 1960, 25 F.R. 1584, provided: WHEREAS the act of July 7, 1958, 72 Stat. 339 (set out as a note preceding section 21 of Title 48, Territories and Insular Possessions), relating to the admission of the State of Alaska into the Union, provides that the United States District Court for the Territory of Alaska shall continue to function as theretofore for a period of three years after the effective date of that act, unless the President, by Executive order, shall sooner proclaim that the United States District Court for the District of Alaska, established in accordance with the provisions of that act, is prepared to assume the functions imposed upon it; and WHEREAS that act further provides that its provisions relating to the termination of the jurisdiction of the District Court for the Territory of Alaska, the continuation of suits, the succession of courts, and the satisfaction of the rights of litigants in suits before such courts shall not be effective until the expiration of the above-mentioned three-year period or until such Executive order is issued; and that the tenure of the judges, the United States Attorneys, Marshals, and other officers of the United States District Court for the Territory of Alaska shall terminate at such time as that court shall cease to function; and WHEREAS, I have appointed, by and with the advice and consent of the Senate, and commissioned the Honorable Walter N. Hodge to be United States District Judge for the District of Alaska, and he has taken his oath of office; and WHEREAS Judge Hodge has appointed an acting United States Attorney, an acting United States Marshal, and other court officers; and WHEREAS the United States District Court for the District of Alaska is now prepared to assume the functions imposed upon it: NOW, THEREFORE, by virtue of the authority vested in me by section 18 of the said act of July 7, 1958 (set out as a note above), I hereby proclaim that the United States District Court for the District of Alaska is prepared to assume the functions imposed upon it. Accordingly, the jurisdiction of the District Court for the Territory of Alaska and the tenure of the judges, the United States Attorneys, Marshals, and other officers of that court are now terminated. Dwight D. Eisenhower. ------DocID 36183 Document 45 of 1452------ -CITE- 28 USC Sec. 82 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 82. Arizona -STATUTE- Arizona constitutes one judicial district. Court shall be held at Globe, Phoenix, Prescott, and Tucson. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 874.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 143 (June 20, 1910, ch. 310, Sec. 31, 36 Stat. 576; Oct. 3, 1913, ch. 17, Sec. 1, 2, 38 Stat. 203). A provision for transfer of causes, civil or criminal, from one place for holding court to another was omitted. Such provision, as to civil cases, is covered by section 1404 of this title, and, as to criminal cases, is rendered unnecessary because of inherent power of the court and Rules 18-20 of the Federal Rules of Criminal Procedure, relating to venue. A provision for making an interlocutory order at any place designated for holding court was omitted as unnecessary in view of Federal Rules of Civil Procedure, rule 77(b). A provision requiring the clerk to keep his office at the State capital was omitted as covered by section 751 of this title. Changes in arrangement and phraseology were made. ------DocID 36184 Document 46 of 1452------ -CITE- 28 USC Sec. 83 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 83. Arkansas -STATUTE- Arkansas is divided into two judicial districts to be known as the Eastern and Western Districts of Arkansas. EASTERN DISTRICT (a) The Eastern District comprises five divisions. (1) The Eastern Division comprises the counties of Cross, Lee, Monroe, Phillips, Saint Francis, and Woodruff. Court for the Eastern Division shall be held at Helena. (2) The Western Division comprises the counties of Conway, Faulkner, Lonoke, Perry, Pope, Prairie, Pulaski, Saline, Van Buren, White and Yell. Court for the Western Division shall be held at Little Rock. (3) The Pine Bluff Division comprises the counties of Arkansas, Chicot, Cleveland, Dallas, Desha, Drew, Grant, Jefferson, and Lincoln. Court for the Pine Bluff Division shall be held at Pine Bluff. (4) The Northern Division comprises the counties of Cleburne, Fulton, Independence, Izard, Jackson, Sharp, and Stone. Court for the Northern Division shall be held at Batesville. (5) The Jonesboro Division comprises the counties of Clay, Craighead, Crittenden, Greene, Lawrence, Mississippi, Poinsett, and Randolph. Court for the Jonesboro Division shall be held at Jonesboro. WESTERN DISTRICT (b) The Western District comprises six divisions. (1) The Texarkana Division comprises the counties of Hempstead, Howard, Lafayette, Little River, Miller, Nevada, and Sevier. Court for the Texarkana Division shall be held at Texarkana. (2) The El Dorado Division comprises the counties of Ashley, Bradley, Calhoun, Columbia, Ouachita, and Union. Court for the El Dorado Division shall be held at El Dorado. (3) The Fort Smith Division comprises the counties of Crawford, Franklin, Johnson, Logan, Polk, Scott, and Sebastian. Court for the Fort Smith Division shall be held at Fort Smith. (4) The Harrison Division comprises the counties of Baxter, Boone, Carroll, Marion, Newton, and Searcy. Court for the Harrison Division shall be held at Harrison. (5) The Fayetteville Division comprises the counties of Benton, Madison, and Washington. Court for the Fayetteville Division shall be held at Fayetteville. (6) The Hot Springs Division comprises the counties of Clark, Garland, Hot Springs, Montgomery, and Pike. Court for the Hot Springs Division shall be held at Hot Springs. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 874; May 19, 1961, Pub. L. 87-36, Sec. 5, 75 Stat. 84.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 144 (Mar. 3, 1911, ch. 231, Sec. 71, 36 Stat. 1106; Apr. 12, 1924, ch. 87, Sec. 1, 43 Stat. 90; Feb. 17, 1925, ch. 252, 43 Stat. 948; Apr. 16, 1926, ch. 147, Sec. 1, 44 Stat. 296; Apr. 21, 1926, ch. 168, 44 Stat. 304; Feb. 7, 1928, ch. 29, Sec. 1, 45 Stat. 58; Apr. 17, 1940, ch. 100, 54 Stat. 109; June 11, 1940, ch. 321, Sec. 1, 54 Stat. 302). A provision making inoperative the terms of the last paragraph of this section, whenever court accommodations shall be provided in Federal buildings was omitted as unnecessary. When such buildings become available the Director of the Administrative Office of the United States Courts will, under section 604 of this title, provide court accommodations therein. Provisions relating to places for maintenance of clerks' offices and requiring said offices to be kept open at all times were omitted as covered by sections 452 and 751 of this title. The provision authorizing the referee in bankruptcy for the western division of the eastern district to serve by appointment in the Hot Springs division of the western district is to be transferred to title 11, U.S.C., 1940 ed., Bankruptcy. The provision with reference to court accommodations at Fayetteville and Hot Springs was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1961 - Subsec. (a). Pub. L. 87-36 struck out from enumeration in par. (1) the parish of Desha and in par. (2) the parishes of Arkansas, Chicot, Cleveland, Dallas, Drew, Grant, Jefferson, and Lincoln, added par. (3) consisting of such parishes, and redesignated former par. (3) and (4) as (4) and (5), respectively. ------DocID 36185 Document 47 of 1452------ -CITE- 28 USC Sec. 84 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 84. California -STATUTE- California is divided into four judicial districts to be known as the Northern, Eastern, Central, and Southern Districts of California. NORTHERN DISTRICT (a) The Northern District comprises the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake Marin, Mendocino, Monterey, Napa, San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo, and Sonoma. Court for the Northern District shall be held at Eureka, Oakland, San Francisco, and San Jose. EASTERN DISTRICT (b) The Eastern District comprises the counties of Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Fresno, Glenn, Inyo, Kern, Kings, Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, Yolo, and Yuba. Court for the Eastern District shall be held at Fresno, Redding, and Sacramento. CENTRAL DISTRICT (c) The Central District comprises the counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura. Court for the Central District shall be held at Los Angeles and Santa Ana. SOUTHERN DISTRICT (d) The Southern District comprises the counties of Imperial and San Diego. Court for the Southern District shall be held at San Diego. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 875; Mar. 18, 1966, Pub. L. 89-372, Sec. 3(a), 80 Stat. 75; Oct. 15, 1980, Pub. L. 96-462, Sec. 2, 94 Stat. 2053.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 145 and section 76 of title 16, Conservation (Mar. 3, 1911, ch. 231, Sec. 72, 36 Stat. 1107; May 16, 1916, ch. 122, 39 Stat. 122; June 2, 1920, ch. 218, Sec. 2, 41 Stat. 731; Mar. 1, 1929, ch. 421, 45 Stat. 1424). A provision relating to the place for maintenance of a clerk's office, and requiring such office to be kept open at all times, was omitted as covered by sections 452 and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1980 - Subsec. (c). Pub. L. 96-462 inserted 'and Santa Ana' after 'at Los Angeles'. 1966 - Pub. L. 89-372 expanded the number of judicial districts in California from two to four by creating an Eastern and a Central District in addition to the existing Northern and Southern Districts, removed the provisions separating the Northern and Southern Districts into divisions, transferred to the newly created Eastern Division the counties of Alpine, Almador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba from the Northern District and Fresno, Inyo Kern, Kings, Madera, Mariposa, Merced, and Tulare from the Southern District, transferred to the newly created Central District the counties of Los Angeles, Orange, Riverside, San Bernardino, San Louis Obispo, Santa Barbara, and Ventura from the Southern District, substituted Eureka, Oakland, San Francisco, and San Jose for Eureka, Sacramento, and San Francisco as places for holding court for the Northern District, removed Fresno and Los Angeles from the list of places for holding court for the Southern District leaving San Diego as the only place for holding of court in the Southern District, and provided for the holding of court in Los Angeles for the Central District and in Fresno, Redding, and Sacramento for the Eastern District. EFFECTIVE DATE OF 1980 AMENDMENT; SAVINGS PROVISION Section 7 of Pub. L. 96-462 provided that: '(a) This Act and the amendments made by this Act (amending sections 84, 95, 105, 113, and 124 of this title and enacting provisions set out as notes under sections 84, 95, 105, and 113 of this title) shall take effect on October 1, 1981. '(b) Nothing in this Act shall affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act (Oct. 1, 1981).' EFFECTIVE DATE OF 1966 AMENDMENT Section 3(i) of Pub. L. 89-372 provided that: 'The provisions of this section (amending this section and enacting provisions set out as a note under this section and section 133 of this title) shall become effective six months after the date of enactment of this Act (Mar. 18, 1966).' STUDY OF JUDICIAL BUSINESS IN CENTRAL DISTRICT, CALIFORNIA AND EASTERN DISTRICT, NEW YORK AND RECOMMENDATIONS FOR CREATION OF NEW JUDICIAL DISTRICTS Pub. L. 95-573, Sec. 5, Nov. 2, 1978, 92 Stat. 2458, required the Director of the Administrative Office of the United States Courts to conduct a study of the judicial business of the Central District of California and the Eastern District of New York, within one year of Nov. 2, 1978, and to make recommendations to Congress with respect to the need for creation of new judicial districts. CREATION OF EASTERN AND CENTRAL DISTRICTS: TRANSFER OF DISTRICT JUDGES; TRANSFER AND APPOINTMENT OF UNITED STATES ATTORNEYS AND UNITED STATES MARSHALS Section 3(b)-(g) of Pub. L. 89-372 provided that: '(b) The two district judges for the northern district of California holding office on the day before the effective date of this section (see Effective Date fo 1966 Amendment note above) and whose official station is Sacramento shall, on and after such date, be district judges for the eastern district of California. All other district judges for the northern district of California holding office on the day before the effective date of this section shall, on and after such date, be district judges for the northern district of California. '(c) The district judge for the southern district of California, residing in the northern division thereof and holding office on the day before the effective date of this section (see Effective Date of 1966 Amendment note above), shall, on and after such date, be a district judge for the eastern district of California. The two district judges for the southern district of California holding office on the day before the effective date of this section (see Effective Date of 1966 Amendment note above), and whose official station is San Diego shall, on and after such date, be the district judges for the southern district of California. All other district judges for the southern district of California holding office on the day before the effective date of this section shall, on and after such date, be district judges for the central district of California. '(d) Nothing in this Act (amending sections 44, 84, and 133 of this title and enacting provisions set out as notes under sections 44, 84, and 133 of this title) shall in any manner affect the tenure of office of the United States attorney and the United States marshal for the northern district of California who are in office on the effective date of this section (see Effective Date of 1966 Amendment note above), and who shall be during the remainder of their present terms of office the United States attorney and marshal for such district as constituted by this Act. '(e) Nothing in this Act (amending sections 44, 84, and 133 of this title and enacting provisions set out as notes under sections 44, 84, and 133 of this title) shall in any manner affect the tenure of office of the United States attorney and the United States marshal for the southern district of California who are in office on the effective date of this section, and who shall be during the remainder of their present terms of office the United States attorney and marshal for the central district of California. '(f) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney and a United States marshal for the southern district of California. '(g) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney and a United States marshal for the eastern district of California.' ------DocID 36186 Document 48 of 1452------ -CITE- 28 USC Sec. 85 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 85. Colorado -STATUTE- Colorado constitutes one judicial district. Court shall be held at Boulder, Denver, Durango, Grand Junction, Montrose, Pueblo, and Sterling. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 875; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 409, 98 Stat. 3362.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 146 (Mar. 3, 1911, ch. 231, Sec. 73, 36 Stat. 1108; June 12, 1916, ch. 143, 39 Stat. 225; May 29, 1924, ch. 209, 43 Stat. 243). A provision for furnishing rooms and accommodations at Sterling was omitted as obsolete upon advice from the Director of the Administrative Office of the United States Courts that Federal accommodations are now available. A provision authorizing adjournment at Denver when there is not business for terms at other places, is incorporated in section 138 of this title. Provisions as to clerk's and marshal's deputies and maintenance of offices were deleted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1984 - Pub. L. 98-620 provided for holding court at Boulder. EFFECTIVE DATE OF 1984 AMENDMENT Section 411 of Pub. L. 98-620 provided that: '(a) The amendments made by this subtitle (subtitle B (Sec. 404-411) of title IV of Pub. L. 98-620, amending sections 85, 90, 93, 112, 124, and 126 of this title and enacting provisions set out as notes under sections 1, 90, 93, and 124 of this title) shall take effect on January 1, 1985. '(b) The amendments made by this subtitle shall not affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on the effective date of this subtitle (Jan. 1, 1985).' ------DocID 36187 Document 49 of 1452------ -CITE- 28 USC Sec. 86 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 86. Connecticut -STATUTE- Connecticut constitutes one judicial district. Court shall be held at Bridgeport, Hartford, New Haven, New London, and Waterbury. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 875; May 19, 1961, Pub. L. 87-36, Sec. 3(b), 75 Stat. 83; Sept. 7, 1966, Pub. L. 89-558, 80 Stat. 705.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 147 (Mar. 3, 1911, ch. 231, Sec. 74, 36 Stat. 1108; Feb. 27, 1921, ch. 74, 41 Stat. 1146; June 15, 1933, ch. 80, 48 Stat. 148; Dec. 28, 1945, ch. 599, 59 Stat. 663). Changes in arrangement and phraseology were made. AMENDMENTS 1966 - Pub. L. 89-558 provided for holding court at New London. 1961 - Pub. L. 87-36 provided for holding court at Bridgeport and Waterbury. ------DocID 36188 Document 50 of 1452------ -CITE- 28 USC Sec. 87 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 87. Delaware -STATUTE- Delaware constitutes one judicial district. Court shall be held at Wilmington. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 875.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 148 (Mar. 3, 1911, ch. 231, Sec. 75, 36 Stat. 1108). Minor changes in phraseology were made. ------DocID 36189 Document 51 of 1452------ -CITE- 28 USC Sec. 88 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 88. District of Columbia -STATUTE- The District of Columbia constitutes one judicial district. Court shall be held at Washington. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 875.) -MISC1- HISTORICAL AND REVISION NOTES This section expressly makes the District of Columbia a judicial district of the United States. Section 41 of this title also makes the District of Columbia a judicial circuit of the United States. Section 11-305 of the District of Columbia Code, 1940 ed., provides that the District Court of the United States for the District of Columbia shall possess the same powers and exercise the same jurisdiction as the district courts of the United States, and shall be deemed a court of the United States. It is consonant with the ruling of the Supreme Court in O'Donoghue v. United States, 1933, 53 S.Ct. 740, 289 U.S. 516, 77 L.Ed. 1356, that the (then called) Supreme Court and Court of Appeals of the District of Columbia are constitutional courts of the United States, ordained and established under article III of the Constitution, Congress enacted that the Court of Appeals 'shall hereafter be known as the United States Court of Appeals for the District of Columbia' (Act of June 7, 1934, 48 Stat. 926); and also changed the name of the Supreme Court of the District of Columbia to 'district court of the United States for the District of Columbia' (Act of June 25, 1936, 49 Stat. 1921). In Federal Trade Commission v. Klesner, 1927, 47 S.Ct. 557, 274 U.S. 145, 71 L.Ed. 972, the Supreme Court ruled: '* * * The parallelism between the Supreme Court of the District (of Columbia) and the Court of Appeals of the District (of Columbia), on the one hand, and the district courts of the United States and the circuit courts of appeals, on the other, in the consideration and disposition of cases involving what among the States would be regarded as within Federal jurisdiction, is complete.' See also to the same effect Clairborne-Annapolis Ferry Company v. United States, 1932, 52 S.Ct. 440, 285 U.S. 382, 76 L.Ed. 808. ------DocID 36190 Document 52 of 1452------ -CITE- 28 USC Sec. 89 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 89. Florida -STATUTE- Florida is divided into three judicial districts to be known as the Northern, Middle, and Southern Districts of Florida. NORTHERN DISTRICT (a) The Northern District comprises the counties of Alachua, Bay, Calhoun, Dixie, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Okaloosa, Santa Rosa, Taylor, Wakulla, Walton, and Washington. Court for the Northern District shall be held at Gainesville, Marianna, Panama City, Pensacola, and Tallahassee. MIDDLE DISTRICT (b) The Middle District comprises the counties of Baker, Bradford, Brevard, Charlotte, Citrus, Clay, Collier, Columbia, De Soto, Duval, Flagler, Glades, Hamilton, Hardee, Hendry, Hernando, Hillsborough, Lake, Lee, Manatee, Marion, Nassau, Orange, Osceola, Pasco, Pinellas, Polk, Putnam, St. Johns, Sarasota, Seminole, Sumter, Suwannee, Union, and Volusia. Court for the Middle District shall be held at Fernandina, Fort Myers, Jacksonville, Live Oak, Ocala, Orlando, Saint Petersburg, and Tampa. SOUTHERN DISTRICT (c) The Southern District comprises the counties of Broward, Dade, Highlands, Indian River, Martin, Monroe, Okeechobee, Palm Beach, and St. Lucie. Court for the Southern District shall be held at Fort Lauderdale, Fort Pierce, Key West, Miami, and West Palm Beach. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 876; July 17, 1952, ch. 929, 66 Stat. 757; May 19, 1961, Pub. L. 87-36, Sec. 3(f), 75 Stat. 83; July 30, 1962, Pub. L. 87-562, Sec. 1, 76 Stat. 247; June 2, 1970, Pub. L. 91-272, Sec. 10, 84 Stat. 298; Oct. 2, 1978, Pub. L. 95-408, Sec. 4(a), 92 Stat. 884; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1021(a), 102 Stat. 4672.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 149 (Mar. 3, 1911, ch. 231, Sec. 76, 36 Stat. 1108; June 15, 1933, ch. 77, 48 Stat. 147; Aug. 25, 1937, ch. 763, Sec. 1, 50 Stat. 800). A provision requiring rooms and accommodations to be furnished at Orlando without cost to the United States was omitted as obsolete, upon advice of the Director of the Administrative Office for the United States Courts that Federal accommodations are now available in Orlando. A provision requiring court to be open at all times was omitted as covered by section 452 of this title. A provision that no deputy clerk or deputy marshal should be appointed at Fort Pierce, was omitted as incongruous with other sections of this title. See sections 541 (see 561), 542 (see 561), and 751 of this title. The provision respecting court accommodations at Fort Pierce and Panama City was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-702, Sec. 1021(a)(1), added Collier, Glades, and Hendry to the counties comprising the Middle District. Subsec. (c). Pub. L. 100-702, Sec. 1021(a)(2), struck out Collier, Glades, and Hendry from the counties comprising the Southern District. 1978 - Subsec. (a). Pub. L. 95-408, Sec. 4(a)(1), added Madison to the counties comprising the Northern District. Subsec. (b). Pub. L. 95-408, Sec. 4(a)(2), struck out Madison from the counties comprising the Middle District. 1970 - Subsec. (c). Pub. L. 91-272 provided for holding court at Fort Lauderdale. 1962 - Pub. L. 87-562 struck out provisions which authorized court for the Northern District to be held at Live Oak, and for the Southern District at Fernandina, Fort Myers, Jacksonville, Ocala, Orlando, and Tampa, and removed the counties of Baker, Bradford, Brevard, Charlotte, Citrus, Clay, Columbia, De Soto, Duval, Flagler, Hamilton, Hardee, Hernando, Hillsborough, Lake, Lee, Madison, Manatee, Marion, Nassau, Orange, Osceola, Pasco, Pinellas, Polk, Putnam, Saint Johns, Sarasota, Seminole, Sumter, Suwannee, Union, and Volusia from the Southern District and created the Middle District to comprise such counties. 1961 - Subsec. (a). Pub. L. 87-36 provided for holding court at Live Oak. 1952 - Subsec. (b). Act July 17, 1952, provided for holding court at Fort Myers and West Palm Beach. EFFECTIVE DATE OF 1988 AMENDMENT Section 1021(b), (c) of title X of Pub. L. 100-702 provided that: '(b) Effective Date. - (1) The amendments made by this section (amending this section) shall take effect 90 days after the date of enactment of this title (Nov. 19, 1988). '(2) The amendments made by subsection (a) (amending this section) shall apply to any action commenced in the United States District Court for the Middle District of Florida, or in the United States District Court for the Southern District of Florida, on or after the effective date of this title (probably should be effective date of this section), and shall not affect any action pending in either such court on such effective date. '(c) Juries. - The amendments made by this section (amending this section) shall not affect the composition, or preclude the service, of any grand or petit jury summoned, empaneled, or actually serving on the effective date of this title (probably should be effective date of this section).' EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Section 5 of Pub. L. 95-408 provided that: '(a) The amendments made by this Act (amending this section and sections 93, 97, 98, 104, 112, 114, and 133 of this title and enacting provisions set out as a note under section 81 of this title) shall take effect 180 days after the date of enactment of this Act (Oct. 2, 1978). '(b) Nothing in this Act shall affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act.' EFFECTIVE DATE OF 1962 AMENDMENT Section 5 of Pub. L. 87-562 provided that: 'This Act (amending this section and section 133 of this title and enacting provisions set out as notes under sections 89 and 142 of this title) shall become effective ninety days after the date of enactment (July 30, 1962).' DISTRICT JUDGES, UNITED STATES ATTORNEYS, AND UNITED STATES MARSHALS DESIGNATIONS; TENURE; APPOINTMENTS Section 2 of Pub. L. 87-562 provided that: '(a) The district judge appointed September 26, 1950, the district judge appointed August 13, 1955, and the district judge appointed March 8, 1961, all for the Southern District of Florida, shall hereafter be designated as district judges for the Middle District of Florida. '(b) The district judge for the Northern and Southern Districts of Florida shall hereafter be designated as the district judge for the Northern, Middle, and Southern Districts of Florida. '(c) Nothing in this Act (amending this section and section 133 of this title, and enacting provisions set out as notes under this section and section 142 of this title) shall in any manner affect the tenure of office of the United States Attorney and the United States Marshal for the Northern District of Florida who are in office at the time of the enactment of this Act (July 30, 1962), and who shall be during the remainder of their present terms of office the United States Attorney and Marshal for such district as constituted by this Act. '(d) Nothing in this Act (amending sections 89 and 133 of this title, and enacting provisions set out as notes under sections 89 and 142 of this title) shall in any manner affect the tenure of office of the United States Attorney and the United States Marshal for the Southern District of Florida who are in office at the time of the enactment of this Act (July 30, 1962), and who shall be during the remainder of their present terms of office the United States Attorney and Marshal for the Middle District of Florida as constituted by this Act. '(e) The President is authorized to appoint, by and with the advice and consent of the Senate, a United States Attorney and a United States Marshal for the Southern District of Florida.' ELIMINATION OF DISTRICT JUDGESHIP FOR NORTHERN, MIDDLE, AND SOUTHERN DISTRICTS OF FLORIDA District judgeship for northern, middle, and southern districts changed to district judgeship for middle district only, see section 2(b) of Pub. L. 89-372, set out as a note under section 133 of this title. ------DocID 36191 Document 53 of 1452------ -CITE- 28 USC Sec. 90 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 90. Georgia -STATUTE- Georgia is divided into three judicial districts to be known as the Northern, Middle, and Southern Districts of Georgia. NORTHERN DISTRICT (a) The Northern District comprises four divisions. (1) The Gainesville Division comprises the counties of Banks, Barrow, Dawson, Fannin, Forsyth, Gilmer, Habersham, Hall, Jackson, Lumpkin, Pickens, Rabun, Stephens, Towns, Union, and White. Court for the Gainesville Division shall be held at Gainesville. (2) The Atlanta Division comprises the counties of Cherokee, Clayton, Cobb, De Kalb, Douglas, Fulton, Gwinnett, Henry, Newton, and Rockdale. Court for the Atlanta Division shall be held at Atlanta. (3) The Rome Division comprises the counties of Bartow, Catoosa, Chattooga, Dade, Floyd, Gordon, Murray, Paulding, Polk, Walker, and Whitfield. Court for the Rome Division shall be held at Rome. (4) The Newnan Division comprises the counties of Carroll, Coweta, Fayette, Haralson, Heard, Meriwether, Pike, Spalding, and Troup. Court for the Newnan Division shall be held at Newnan. MIDDLE DISTRICT (b) The Middle District comprises seven divisions. (1) The Athens Division comprises the counties of Clarke, Elbert, Franklin, Greene, Hart, Madison, Morgan, Oconee, Oglethorpe, and Walton. Court for the Athens Division shall be held at Athens. (2) The Macon Division comprises the counties of Baldwin, Bibb, Bleckley, Butts, Crawford, Hancock, Houston, Jasper, Jones, Lamar, Monroe, Peach, Pulaski, Putnam, Twiggs, Upson, Washington, and Wilkinson. Court for the Macon Division shall be held at Macon. (3) The Columbus Division comprises the counties of Chattahoochee, Clay, Harris, Marion, Muscogee, Quitman, Randolph, Stewart, Talbot, and Taylor. Court for the Columbus Division shall be held at Columbus. (4) The Americus Division comprises the counties of Ben Hill, Crisp, Dooly, Lee, Macon, Schley, Sumter, Terrell, Webster, and Wilcox. Court for the Americus Division shall be held at Americus. (5) The Albany Division comprises the counties of Baker, Calhoun, Dougherty, Early, Miller, Mitchell, Turner, and Worth. Court for the Albany Division shall be held at Albany. (6) The Valdosta Division comprises the counties of Berrien, Clinch, Cook, Echols, Irwin, Lanier, Lowndes, and Tift. Court for the Valdosta Division shall be held at Valdosta. (7) The Thomasville Division comprises the counties of Brooks, Colquitt, Decatur, Grady, Seminole, and Thomas. Court for the Thomasville Division shall be held at Thomasville. SOUTHERN DISTRICT (c) The Southern District comprises six divisions. (1) The Augusta Division comprises the Counties of Burke, Columbia, Glascock, Jefferson, Lincoln, McDuffie, Richmond, Taliaferro, Warren, and Wilkes. Court for the Augusta Division shall be held at Augusta. (2) The Dublin Division comprises the counties of Dodge, Johnson, Laurens, Montgomery, Telfair, Treutlen, and Wheeler. Court for the Dublin Division shall be held at Dublin. (3) The Savannah Division comprises the counties of Bryan, Chatham, Effingham, and Liberty. Court for the Savannah Division shall be held at Savannah. (4) The Waycross Division comprises the counties of Atkinson, Bacon, Brantley, Charlton, Coffee, Pierce, and Ware. Court for the Waycross Division shall be held at Waycross. (5) The Brunswick Division comprises the counties of Appling, Camden, Glynn, Jeff Davis, Long, McIntosh, and Wayne. Court for the Brunswick Division shall be held at Brunswick. (6) The Statesboro Division comprises the counties of Bulloch, Candler, Emanuel, Evans, Jenkins, Screven, Tattnall, and Toombs. Court for the Statesboro Division shall be held at Statesboro. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 876; Aug. 16, 1949, ch. 444, 63 Stat. 610; Oct. 31, 1951, ch. 655, Sec. 36a, 65 Stat. 723; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 408(a)-(c), 98 Stat. 3362; Nov. 14, 1986, Pub. L. 99-657, Sec. 3, 100 Stat. 3670.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 150 (Mar. 3, 1911, ch. 231, Sec. 77, 36 Stat. 1108; May 28, 1926, ch. 414, Sec. 1, 2, 44 Stat. 670; Aug. 22, 1935, ch. 603, Sec. 1-3, 49 Stat. 680, 681; June 20, 1936, ch. 639, 49 Stat. 1561; Aug. 21, 1937, ch. 728, Sec. 1, 2, 50 Stat. 739, 740; Mar. 6, 1942, ch. 153, Sec. 1-3, 56 Stat. 139; Oct. 29, 1945, ch. 435, 59 Stat. 550). Provisions for furnishing rooms and accommodations at Americus and Dublin were omitted as obsolete upon advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available in each of those places. The provisions respecting court accommodations at Brunswick, Newnan, or Thomasville were omitted as covered by section 142 of this title. Since the latest amendment of section 150 of title 28, U.S.C., 1940 ed., the former counties of Campbell and Milton were merged with Fulton County in the Atlanta Division of the Northern District. Changes in arrangement and phraseology were made. AMENDMENTS 1986 - Subsec. (c)(1). Pub. L. 99-657, Sec. 3(1), substituted 'Jefferson, Lincoln' for 'Lincoln'. Subsec. (c)(3). Pub. L. 99-657, Sec. 3(2), substituted 'and Liberty' for 'Evans, Liberty, Screven, and Tattnall'. Subsec. (c)(6). Pub. L. 99-657, Sec. 3(3), substituted 'Evans, Jenkins, Screven, Tattnall' for 'Jefferson, Jenkins'. 1984 - Subsec. (a)(1). Pub. L. 98-620, Sec. 408(a), added Fannin, Gilmer, and Pickens to the counties comprising the Gainesville Division of the Northern District. Subsec. (a)(2). Pub. L. 98-620, Sec. 408(b), struck out Fannin, Gilmer, and Pickens from the counties comprising the Atlanta Division of the Northern District. Subsec. (c)(6). Pub. L. 98-620, Sec. 408(c), substituted 'Statesboro' for 'Swainsboro' in three places. 1951 - Subsec. (c)(6). Act Oct. 31, 1951, struck out 'Washington,'. 1949 - Subsec. (c). Act Aug. 16, 1949, created a Swainsboro division and provided for holding court there. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-657 effective 90 days after Nov. 14, 1986, and not to affect any action commenced before and pending on such effective date, or to affect the composition, or preclude the service, of any grand or petit jury summoned, empaneled, or actually serving on such date, see section 4 of Pub. L. 99-657, set out as a note under section 121 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Section 408(d) of Pub. L. 98-620 provided that: 'The amendments made by this section (amending this section) shall apply to any action commenced in the United States District Court for the Northern District of Georgia on or after the effective date of this subtitle (Jan. 1, 1985), and shall not affect any action pending in such court on such effective date.' Amendment by Pub. L. 98-620 effective Jan. 1, 1985, and not to affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on that date, see section 411 of Pub. L. 98-620, set out as a note under section 85 of this title. ------DocID 36192 Document 54 of 1452------ -CITE- 28 USC Sec. 91 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 91. Hawaii -STATUTE- Hawaii constitutes one judicial district which includes the Midway Islands, Wake Island, Johnston Island, Sand Island, Kingman Reef, Palmyra Island, Baker Island, Howland Island, Jarvis Island, Canton Island, and Enderbury Island: Provided, That the inclusion of Canton and Enderbury Islands in such judicial district shall in no way be construed to be prejudicial to the claims of the United Kingdom to said Islands in accordance with the agreement of April 6, 1939, between the Governments of the United States and of the United Kingdom to set up a regime for their use in common. Court shall be held at Honolulu. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 877; May 24, 1949, ch. 139, Sec. 64a, 63 Stat. 99; Mar. 18, 1959, Pub. L. 86-3, Sec. 14(i), 73 Stat. 11; July 12, 1960, Pub. L. 86-624, Sec. 19, 74 Stat. 416.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 641 and 642a of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; Feb. 12, 1925, ch. 220, 43 Stat. 890; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; Aug. 13, 1940, ch. 662, 54 Stat. 784). Section consolidates parts of sections 641 and 642a of title 48, U.S.C., 1940 ed. The provisions of section 641 of title 48, U.S.C., 1940 ed., with reference to regular and special terms and the times of holding same were omitted as covered by sections 138 and 141 of this title. Provisions of section 642a of title 48, U.S.C., 1940 ed., relating to jurisdiction of civil actions and criminal offenses, were omitted as covered by the general jurisdictional provisions of this title and revised title 18 (H. R. 3190, 80th Cong.). Provisions of section 642a of title 48, U.S.C., 1940 ed., as to appeals were omitted as covered by section 1295 of this title. Provisions of said section 642a with reference to juries and jury trials were omitted as covered by chapter 121 of this title. Other provisions of section 641 of title 48, U.S.C., 1940 ed., are incorporated in sections 132 and 133 of this title. Changes were made in phraseology. AMENDMENTS 1960 - Pub. L. 86-624 struck out Kure Island. 1959 - Pub. L. 86-3 included Palmyra Island. 1949 - Act May 24, 1949, inserted provisions relating to inclusion of Canton and Enderbury Islands. EFFECTIVE DATE OF 1959 AMENDMENT Section 14 of Pub. L. 86-3 provided that the amendments of sections 91, 373, 1252, 1293, and 1294 of this title, sections 3771 and 3772 of Title 18, Crimes and Criminal Procedure, and section 644a of Title 48, Territories and Insular Possessions, the repeal of sections 536, 539, 634, 634a, and 645 of title 48, and notes set out under sections 371 and 373 of this title, are effective on admission of the State of Hawaii into the Union. See Admission of Hawaii as State note below. CANTON AND ENDERBURY ISLANDS; SOVEREIGNTY OF KIRIBATI By a treaty of friendship, TIAS 10777, which entered into force Sept. 23, 1983, the United States recognized the sovereignty of Kiribati over Canton Island and Enderbury Island. ADMISSION OF HAWAII AS STATE Admission of Hawaii into the Union was accomplished Aug. 21, 1959, on issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding section 491 of Title 48, Territories and Insular Possessions. COURT OF THE UNITED STATES; DISTRICT JUDGES Section 9(a) of Pub. L. 86-3 provided that: 'The United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall thence forth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States: Provided, however, That the terms of office of the district judges for the district of Hawaii then in office shall terminate upon the effective date of this section and the President, pursuant to sections 133 and 134 of title 28, United States Code, as amended by this Act, shall appoint, by and with the advice and consent of the Senate, two district judges for the said district who shall hold office during good behavior.' Section 9 of Pub. L. 86-3 provided in part that subsec. (a) of that section should be effective upon the admission of the State of Hawaii into the Union. CONTINUATION OF SUITS Section 12 of Pub. L. 86-3 provided that: 'No writ, action, indictment, cause, or proceeding pending in any court of the Territory of Hawaii or in the United States District Court for the District of Hawaii shall abate by reason of the admission of said State into the Union, but the same shall be transferred to and proceeded with in such appropriate State courts as shall be established under the constitution of said State, or shall continue in the United States District Court for the District of Hawaii, as the nature of the case may require. And no writ, action, indictment, cause or proceeding shall abate by reason of any change in the courts, but shall be proceeded with in the State or United States courts according to the laws thereof, respectively. And the appropriate State courts shall be the successors of the courts of the Territory as to all cases arising within the limits embraced within the jurisdiction of such courts, respectively, with full power to proceed with the same, and award mesne or final process therein, and all the files, records, indictments, and proceedings relating to any such writ, action, indictment, cause or proceeding shall be transferred to such appropriate State courts and the same shall be proceeded with therein in due course of law. 'All civil causes of action and all criminal offenses which shall have arisen or been committed prior to the admission of said State, but as to which no writ, action, indictment or proceeding shall be pending at the date of such admission, shall be subject to prosecution in the appropriate State courts or in the United States District Court for the District of Hawaii in like manner, to the same extent, and with like right of appellate review, as if said State had been created and said State courts had been established prior to the accrual of such causes of action or the commission of such offenses. The admission of said State shall effect no change in the substantive or criminal law governing such causes of action and criminal offenses which shall have arisen or been committed; and such of said criminal offenses as shall have been committed against the laws of the Territory shall be tried and punished by the appropriate courts of said State, and such as shall have been committed against the laws of the United States shall be tried and punished in the United States District Court for the District of Hawaii.' APPEALS Section 13 of Pub. L. 86-3 provided that: 'Parties shall have the same rights of appeal from and appellate review of final decisions of the United States District Court for the District of Hawaii or the Supreme Court of the Territory of Hawaii in any case finally decided prior to admission of said State into the Union, whether or not an appeal therefrom shall have been perfected prior to such admission, and the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the United States shall have the same jurisdiction therein, as by law provided prior to admission of said State into the Union, and any mandate issued subsequent to the admission of said State shall be to the United States District Court for the District of Hawaii or a court of the State, as may be appropriate. Parties shall have the same rights of appeal from and appellate review of all orders, judgments, and decrees of the United States District Court for the District of Hawaii and of the Supreme Court of the State of Hawaii as successor to the Supreme Court of the Territory of Hawaii, in any case pending at the time of admission of said State into the Union, and the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the United States shall have the same jurisdiction therein, as by law provided in any case arising subsequent to the admission of said State into the Union.' EXTENSION OF JURISDICTION OF UNITED STATES DISTRICT COURT FOR DISTRICT OF HAWAII AND OF CIVIL AND CRIMINAL LAWS TO MIDWAY, WAKE, JOHNSON, SAND, ETC., ISLANDS The jurisdiction of the United States District Court for the District of Hawaii and the laws of the United States relating to civil acts or offenses consummated or committed on the high seas on board a vessel belonging to the United States were extended to the Midway Islands, Wake, Johnson, Sand, etc., Islands by section 644a of Title 48, Territories and Insular Possessions. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Application of rules, see note by Advisory Committee under rule 54, Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 36193 Document 55 of 1452------ -CITE- 28 USC Sec. 92 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 92. Idaho -STATUTE- Idaho, exclusive of Yellowstone National Park, constitutes one judicial district. Court shall be held at Boise, Coeur d'Alene, Moscow, and Pocatello. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 877; June 2, 1970, Pub. L. 91-272, Sec. 5, 84 Stat. 297.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 151 (Mar. 3, 1911, ch. 231, Sec. 78, 36 Stat. 1109; May 11, 1939, ch. 121, 53 Stat. 738). All of Yellowstone National Park is included in the judicial district of Wyoming by section 131 of this title. Those parts of the park lying in Idaho are accordingly excluded from the judicial district of Idaho. A provision as to the places for maintenance of the clerk's offices, and requiring that they be open at all times, was omitted as covered by sections 452-751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Pub. L. 91-272 struck out provisions which had divided the judicial district of Idaho into a Northern Division, a Central Division, a Southern Division, and an Eastern Division. ------DocID 36194 Document 56 of 1452------ -CITE- 28 USC Sec. 93 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 93. Illinois -STATUTE- Illinois is divided into three judicial districts to be known as the Northern, Central, and Southern Districts of Illinois. NORTHERN DISTRICT (a) The Northern District comprises two divisions. (1) The Eastern Division comprises the counties of Cook, Du Page, Grundy, Kane, Kendall, Lake, La Salle, and Will. Court for the Eastern Division shall be held at Chicago. (2) The Western Division comprises the counties of Boone, Carroll, De Kalb, Jo Daviess, Lee, McHenry, Ogle, Stephenson, Whiteside, and Winnebago. Court for the Western Division shall be held at Freeport and Rockford. CENTRAL DISTRICT (b) The Central District comprises the counties of Adams, Brown, Bureau, Cass, Champaign, Christian, Coles, De Witt, Douglas, Edgar, Ford, Fulton, Greene, Hancock, Henderson, Henry, Iroquois, Kankakee, Knox, Livingston, Logan, McDonough, McLean, Macoupin, Macon, Marshall, Mason, Menard, Mercer, Montgomery, Morgan, Moultrie, Peoria, Piatt, Pike, Putnam, Rock Island, Sangamon, Schuyler, Scott, Shelby, Stark, Tazewell, Vermilion, Warren, and Woodford. Court for the Central District shall be held at Champaign/Urbana, Danville, Peoria, Quincy, Rock Island, and Springfield. SOUTHERN DISTRICT (c) The Southern District comprises the counties of Alexander, Bond, Calhoun, Clark, Clay, Clinton, Crawford, Cumberland, Edwards, Effingham, Fayette, Franklin, Gallatin, Hamilton, Hardin, Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence, Madison, Marion, Massac, Monroe, Perry, Pope, Pulaski, Randolph, Richland, St. Clair, Saline, Union, Wabash, Washington, Wayne, White, and Williamson. Court for the Southern District shall be held at Alton, Benton, Cairo, and East Saint Louis. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 878; Aug. 10, 1950, ch. 675, Sec. 1, 64 Stat. 438; May 19, 1961, Pub. L. 87-36, Sec. 3(c), 75 Stat. 83; June 2, 1970, Pub. L. 91-272, Sec. 8, 84 Stat. 297; Oct. 2, 1978, Pub. L. 95-408, Sec. 4(b)(1), 92 Stat. 884; Nov. 2, 1978, Pub. L. 95-573, Sec. 1, 92 Stat. 2458; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 406(a), (c), 98 Stat. 3361.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 152 (Mar. 3, 1911, ch. 231, Sec. 79, 36 Stat. 1110; Aug. 12, 1937, ch. 594, 50 Stat. 624; June 6, 1940, ch. 247, 54 Stat. 237). Provisions relating to appointment of deputy marshals and maintenance of offices by deputy marshals and deputy clerks were omitted as covered by sections 452, 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1984 - Subsec. (a)(1). Pub. L. 98-620, Sec. 406(a)(1), struck out De Kalb and McHenry from the counties comprising the Eastern Division of the Northern District. Subsec. (a)(2). Pub. L. 98-620, Sec. 406(a)(2), added De Kalb and McHenry to the counties comprising the Western Division of the Northern District. Subsec. (b). Pub. L. 98-620, Sec. 406(c), provided for holding court at Champaign/Urbana. 1978 - Pub. L. 95-408 substituted in introductory provisions 'Northern, Central, and Southern Districts of Illinois' for 'Northern, Southern, and Eastern Districts of Illinois'. Subsec. (a)(1). Pub. L. 95-573, Sec. 1(1), struck out Kankakee from the counties comprising the Eastern Division of the Northern District. Pub. L. 95-408 added Kankakee to the counties comprising the Eastern Division of the Northern District. Subsec. (b). Pub. L. 95-573, Sec. 1(2), added Kankakee to the counties comprising the Central District. Pub. L. 95-408 substituted 'Central District' for 'Southern District' in heading, struck out subsec. (b)(1) and (2) designations, which divided Southern District into a Northern and Southern Division, and in such newly created Central District, added counties of Champaign, Coles, Douglas, Edgar, Ford, Iroquois, Moultrie, Piatt, Shelby, and Vermilion to, and struck out counties of Bond, Calhoun, Jersey, and Madison from, those counties comprising the new Central District, and substituted provisions for holding of a term of Court for Central District at Danville, Peoria, Quincy, Rock Island, and Springfield for provisions for holding of a term of Court for Northern Division of the former Southern District at Peoria and Rock Island and for Southern Division of former Southern District at Alton, Quincy, and Springfield. Subsec. (c). Pub. L. 95-408 substituted 'Southern District' for 'Eastern District' in heading, and in such Southern District added counties of Bond, Calhoun, Jersey, and Madison to, and struck out counties of Champaign, Coles, Douglas, Edgar, Ford, Iroquois, Kankakee, Moultrie, Piatt, Shelby and Vermilion from, those counties comprising Southern District, and substituted provisions for holding of a term of Court for Southern District at Alton, Benton, Cairo, and East Saint Louis for provisions for holding of a term of Court for Eastern District at Benton, Cairo, Danville, and East Saint Louis. 1970 - Subsec. (a)(2). Pub. L. 91-272 provided for holding court at Rockford. 1961 - Subsec. (b)(2). Pub. L. 87-36 provided for holding court at Alton. 1950 - Subsec. (b)(1). Act Aug. 10, 1950, provided for holding court at Rock Island. EFFECTIVE DATE OF 1984 AMENDMENT Section 406(b) of Pub. L. 98-620 provided that: 'The amendments made by subsection (a) of this section (amending this section) shall apply to any action commenced in the United States District Court for the Northern District of Illinois on or after the effective date of this subtitle (Jan. 1, 1985), and shall not affect any action pending in such court on such effective date.' Amendment by Pub. L. 98-620 effective Jan. 1, 1985, and not to affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on that date, see section 411 of Pub. L. 98-620, set out as a note under section 85 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Section 6 of Pub. L. 95-573, as amended by Pub. L. 96-4, Sec. 2, Mar. 30, 1979, 93 Stat. 7, provided that: '(a) Except as provided in subsection (b) of this section, the provisions of this Act (amending this section and sections 99, 112, and 118 of this title and enacting a provision set out as a note under section 84 of this title) shall take effect 180 days after the date of enactment of this Act (Nov. 2, 1978). '(b)(1) The provisions of section 5 of this Act (set out as a note under section 84 of this title) shall take effect on the date of enactment of this Act (Nov. 2, 1978). '(2) The provisions of the first section of this Act (amending this section) shall take effect on March 31, 1979. '(c) Nothing in this Act (amending this section and sections 99, 112, and 118 of this title and enacting provisions set out as a note under section 84 of this title) shall affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act.' EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. DISTRICT JUDGES, UNITED STATES ATTORNEYS, ASSISTANT UNITED STATES ATTORNEYS, AND UNITED STATES MARSHALS FOR CENTRAL AND SOUTHERN DISTRICTS; DESIGNATION; TENURE; APPOINTMENT; GRAND JURY Pub. L. 95-408, Sec. 4(b)(2)-(4), as added Pub. L. 96-4, Sec. 1, Mar. 30, 1979, 93 Stat. 6, provided that: '(2) The district judge for the Eastern District of Illinois in office on the effective date of this Act (180 days after Oct. 2, 1978) who is senior in commission shall, on and after the effective date of this Act, be a district judge for the Southern District of Illinois. The remaining district judge for the Eastern District of Illinois who is in office on the effective date of this Act and the district judges for the Southern District of Illinois who are in office on the effective date of this Act shall, on and after the effective date of this Act, be district judges for the Central District of Illinois. The President shall appoint, by and with the advice and consent of the Senate, a second district judge for the Southern District of Illinois. '(3) This section does not in any manner affect the tenure of the United States attorney, the assistant United States attorneys, or the United States marshal for the Eastern District of Illinois or for the Southern District of Illinois who are in office on the effective date of this Act (180 days after Oct. 2, 1978). The United States attorney, the assistant United States attorneys, and the United States marshal for the Eastern District and for the Southern District of Illinois shall, on the effective date of this Act, become the United States attorney, the assistant United States attorneys, and the United States marshal for the Southern District and for the Central District of Illinois, respectively. '(4) Notwithstanding section 3240 of title 18, United States Code, any grand jury impaneled on or after the effective date of this Act (180 days after Oct. 2, 1978) by a district court for the Central District or the Southern District of Illinois may inquire into and return indictments charging offenses against the criminal laws of the United States alleged to have been committed anywhere within the territory of the respective judicial districts as such districts were constituted before or after the effective date of this Act.' ------DocID 36195 Document 57 of 1452------ -CITE- 28 USC Sec. 94 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 94. Indiana -STATUTE- Indiana is divided into two judicial districts to be known as the Northern and Southern Districts of Indiana. NORTHERN DISTRICT (a) The Northern District comprises three divisions. (1) The Fort Wayne Division comprises the counties of Adams, Allen, Blackford, De Kalb, Grant, Huntington, Jay, Lagrange, Noble, Steuben, Wells, and Whitley. Court for the Fort Wayne Division shall be held at Fort Wayne. (2) The South Bend Division comprises the counties of Cass, Elkhart, Fulton, Kosciusko, La Porte, Marshall, Miami, Pulaski, St. Joseph, Starke, and Wabash. Court for the South Bend Division shall be held at South Bend. (3) The Hammond Division comprises the counties of Benton, Carroll, Jasper, Lake, Newton, Porter, Tippecanoe, Warren, and White. Court for the Hammond Division shall be held at Hammond and Lafayette. SOUTHERN DISTRICT (b) The Southern District comprises four divisions. (1) The Indianapolis Division comprises the counties of Bartholomew, Boone, Brown, Clinton, Decatur, Delaware, Fayette, Fountain, Franklin, Hamilton, Hancock, Hendricks, Henry, Howard, Johnson, Madison, Marion, Monroe, Montgomery, Morgan, Randolph, Rush, Shelby, Tipton, Union, and Wayne. Court for the Indianapolis Division shall be held at Indianapolis and Richmond. (2) The Terre Haute Division comprises the counties of Clay, Greene, Knox, Owen, Parke, Putnam, Sullivan, Vermilion, and Vigo. Court for the Terre Haute Division shall be held at Terre Haute. (3) The Evansville Division comprises the counties of Davies, Dubois, Gibson, Martin, Perry, Pike, Posey, Spencer, Vanderburgh, and Warrick. Court for the Evansville Division shall be held at Evansville. (4) The New Albany Division comprises the counties of Clark, Crawford, Dearborn, Floyd, Harrison, Jackson, Jefferson, Jennings, Lawrence, Ohio, Orange, Ripley, Scott, Switzerland, and Washington. Court for the New Albany Division shall be held at New Albany. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 878; Feb. 10, 1954, ch. 6, Sec. 2(b)(7), 68 Stat. 11; June 2, 1970, Pub. L. 91-272, Sec. 9, 84 Stat. 298.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 153 (Mar. 3, 1911, ch. 231, Sec. 80, 36 Stat. 1110; Apr. 21, 1928, ch. 393, 45 Stat. 437). Words 'when the time fixed as above for the sitting of a court shall fall on a legal holiday the terms shall begin on the next day following,' were omitted as within the discretion of the court and coverable by rule of court. A provision that terms should not be limited to any particular number of days, and that a term about to commence in another division might be adjourned until the business of the court in session was concluded, was omitted as covered by section 140 of this title. A provision authorizing indictments for offenses committed in divisions other than that wherein a grand jury is sitting was omitted as covered by Federal Rules of Criminal Procedure, Rules 6, 7. Provisions as to maintenance of clerks' offices were omitted as covered by sections 452 and 751 of this title. The following provisions were omitted as either executed or covered by section 501 (now 541) et seq. and section 541 (now 561) et seq. of this title, containing similar provisions as to United States attorneys and marshals: 'A. The senior district judge for the district of Indiana in office immediately prior to April 21, 1928, shall be the district judge for the southern district as constituted by this section; the junior district judge for the district of Indiana immediately prior to April 21, 1928, shall be the district judge for the northern district as constituted by this section; and the district attorney and marshal for the district of Indiana in office immediately prior to April 21, 1928, shall be during the remainder of their present terms of office the district attorney and marshal for the southern district as constituted by this section. 'B. The President is authorized and directed to appoint, by and with the advice and consent of the Senate, a district attorney and a marshal for the United States District Court for the Northern District of Indiana.' Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Subsec. (b)(1). Pub. L. 91-272 provided for holding court at Richmond. 1954 - Subsec. (a)(3). Act Feb. 10, 1954, provided for holding court at Lafayette. ------DocID 36196 Document 58 of 1452------ -CITE- 28 USC Sec. 95 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 95. Iowa -STATUTE- Iowa is divided into two judicial districts to be known as the Northern and Southern Districts of Iowa. NORTHERN DISTRICT (a) The Northern District comprises four divisions. (1) The Cedar Rapids Division comprises the counties of Benton, Cedar, Grundy, Hardin, Iowa, Jones, Linn, and Tama. Court for the Cedar Rapids Division shall be held at Cedar Rapids. (2) The Eastern Division comprises the counties of Allamakee, Black Hawk, Bremer, Buchanan, Chickasaw, Clayton, Delaware, Dubuque, Fayette, Floyd, Howard, Jackson, Mitchell, and Winneshiek. Court for the Eastern Division shall be held at Dubuque and Waterloo. (3) The Western Division comprises the counties of Buena Vista, Cherokee, Clay, Crawford, Dickinson, Ida, Lyon, Monona, O'Brien, Osceola, Plymouth, Sac, Sioux, and Woodbury. Court for the Western Division shall be held at Sioux City. (4) The Central Division comprises the counties of Butler, Calhoun, Carroll, Cerro Gordo, Emmet, Franklin, Hamilton, Hancock, Humboldt, Kossuth, Palo Alto, Pocahontas, Webster, Winnebago, Worth and Wright. Court for the Central Division shall be held at Fort Dodge and Mason City. SOUTHERN DISTRICT (b) The Southern District comprises six divisions. (1) The Central Division comprises the counties of Boone, Dallas, Greene, Guthrie, Jasper, Madison, Marion, Marshall, Polk, Poweshiek, Story, and Warren. Court for the Central Division shall be held at Des Moines. (2) The Eastern Division comprises the counties of Des Moines, Henry, Lee, Louisa, and Van Buren. Court for the Eastern Division shall be held at Keokuk. (3) The Western Division comprises the counties of Audubon, Cass, Fremont, Harrison, Mills, Montgomery, Page, Pottawattamie, and Shelby. Court for the Western Division shall be held at Council Bluffs. (4) The Southern Division comprises the counties of Adair, Adams, Clarke, Decatur, Lucas, Ringgold, Taylor, Union, and Wayne. Court for the Southern Division shall be held at Creston. (5) The Davenport Division comprises the counties of Clinton, Johnson, Muscatine, Scott, and Washington. Court for the Davenport Division shall be held at Davenport. (6) The Ottumwa Division comprises the counties of Appanoose, Davis, Jefferson, Keokuk, Mahaska, Monroe, and Wapello. Court for the Ottumwa Division shall be held at Ottumwa. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 877; Oct. 15, 1980, Pub. L. 96-462, Sec. 3(a), 94 Stat. 2053.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 156 and 156a (Mar. 3, 1911, ch. 231, Sec. 81, 36 Stat. 1111; Mar. 3, 1913, ch. 122, 37 Stat. 734; Feb. 23, 1916, ch. 32, 39 Stat. 12; Apr. 27, 1916, ch. 90, 39 Stat. 55; Mar. 4, 1923, ch. 256, 42 Stat. 1483; Jan. 28, 1925, ch. 104, 43 Stat. 794; July 5, 1937, ch. 428, 50 Stat. 474). A provision relating to the maintenance of clerk's office was omitted as covered by section 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1980 - Subsec. (b)(3). Pub. L. 96-462, Sec. 3(a)(1), added Fremont and Page counties to Western Division of Southern District. Subsec. (b)(4). Pub. L. 96-462, Sec. 3(a)(2), struck out references to Fremont and Page counties in list of counties comprising Southern Division of Southern District. EFFECTIVE DATE OF 1980 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 96-462 effective Oct. 1, 1981, but not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on Oct. 1, 1981, see section 7 of Pub. L. 96-462, set out as a note under section 84 of this title. Section 3(b) of Pub. L. 96-462 provided that: 'The amendments made by subsection (a) (amending this section) shall not apply to any action commenced before the effective date of such amendments (Oct. 1, 1981) and pending in the United States District Court for the Southern District of Iowa on such date.' ------DocID 36197 Document 59 of 1452------ -CITE- 28 USC Sec. 96 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 96. Kansas -STATUTE- Kansas constitutes one judicial district. Court shall be held at Kansas City, Lawrence, Leavenworth, Salina, Topeka, Hutchinson, Wichita, Dodge City, and Fort Scott. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 880; Aug. 27, 1949, ch. 516, 63 Stat. 666; Oct. 27, 1986, Pub. L. 99-554, title I, Sec. 141, 100 Stat. 3096.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 157 (Mar. 3, 1911, ch. 231, Sec. 82, 36 Stat. 1112; Sept. 6, 1916, ch. 447, 39 Stat. 725; June 7, 1924, ch. 319, 43 Stat. 607; June 13, 1938, ch. 349, 52 Stat. 673). Provisions as to the appointment and residence of deputy marshals and deputy clerks and maintenance of offices by them were omitted. See sections 541 (see 561), 542 (see 561), and 751 of this title. A provision making inoperative the terms of the last paragraph of this section, whenever, upon the recommendation of the Attorney General, court accommodations should be provided in Federal buildings, was omitted as unnecessary. When such buildings become available the Director of the Administrative Office of the United States Courts will, under section 604 of this title, provide court accommodations therein. The provision respecting court accommodations at Hutchinson was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1986 - Pub. L. 99-554 provided for holding court at Lawrence. 1949 - Act Aug. 27, 1949, abolished the three divisions which constituted the judicial district, and added Dodge City as an additional place for holding court. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. ------DocID 36198 Document 60 of 1452------ -CITE- 28 USC Sec. 97 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 97. Kentucky -STATUTE- Kentucky is divided into two judicial districts to be known as the Eastern and Western Districts of Kentucky. EASTERN DISTRICT (a) The Eastern District comprises the counties of Anderson, Bath, Bell, Boone, Bourbon, Boyd, Boyle, Bracken, Breathitt, Campbell, Carroll, Carter, Clark, Clay, Elliott, Estill, Fayette, Fleming, Floyd, Franklin, Gallatin, Garrard, Grant, Greenup, Harlan, Harrison, Henry, Jackson, Jessamine, Johnson, Kenton, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary, Madison, Magoffin, Martin, Mason, Menifee, Mercer, Montgomery, Morgan, Nicholas, Owen, Owsley, Pendleton, Perry, Pike, Powell, Pulaski, Robertson, Rockcastle, Rowan, Scott, Shelby, Trimble, Wayne, Whitley, Wolfe, and Woodford. Court for the Eastern District shall be held at Ashland, Catlettsburg, Covington, Frankfort, Jackson, Lexington, London, Pikeville, and Richmond. WESTERN DISTRICT (b) The Western District comprises the counties of Adair, Allen, Ballard, Barren, Breckenridge, Bullitt, Butler, Caldwell, Calloway, Carlisle, Casey, Christian, Clinton, Crittenden, Cumberland, Daviess, Edmonson, Fulton, Graves, Grayson, Green, Hancock, Hardin, Hart, Henderson, Hickman, Hopkins, Jefferson, Larue, Livingston, Logan, Lyon, McCracken, McLean, Marion, Marshall, Meade, Metcalfe, Monroe, Muhlenberg, Nelson, Ohio, Oldham, Russell, Simpson, Spencer, Taylor, Todd, Trigg, Union, Warren, Washington, and Webster. Court for the Western District shall be held at Bowling Green, Louisville, Owensboro, and Paducah. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 880; Oct. 2, 1978, Pub. L. 95-408, Sec. 2(a), 92 Stat. 883.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 158 (Mar. 3, 1911, ch. 231, Sec. 83, 36 Stat. 1112; Jan. 29, 1920, ch. 57, 41 Stat. 400; June 22, 1936, ch. 707, 49 Stat. 1822). Last paragraph of section 158 of title 28, U.S.C., 1940 ed., relating to process, was omitted as covered by Rule 4 of the Federal Rules of Civil Procedure. Provisions relating to maintenance of clerk's offices were omitted as covered by sections 452 and 751 of this title. Provisions for furnishing rooms and accommodations at Lexington and Pikeville were omitted as obsolete on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available in each of those places. Words 'with the waters thereof,' after the list of counties in each district, were omitted as unnecessary and inconsistent with other sections of this chapter. McCreary County of the Eastern District was formed from parts of the counties of Pulaski, Wayne, and Whitley since the latest amendment of the Judicial Code. Changes in arrangement and phraseology were made. AMENDMENTS 1978 - Subsec. (a). Pub. L. 95-408 provided for holding court at Ashland. EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. ------DocID 36199 Document 61 of 1452------ -CITE- 28 USC Sec. 98 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 98. Louisiana -STATUTE- Louisiana is divided into three judicial districts to be known as the Eastern, Middle, and Western Districts of Louisiana. EASTERN DISTRICT (a) The Eastern District comprises the parishes of Assumption, Jefferson, Lafourche, Orleans, Plaquemines, Saint Bernard, Saint Charles, Saint James, Saint John the Baptist, Saint Tammany, Tangipahoa, Terrebonne, and Washington. Court for the Eastern District shall be held at New Orleans, and Houma. MIDDLE DISTRICT (b) The Middle District comprises the parishes of Ascension, East Baton Rouge, East Feliciana, Iberville, Livingston, Pointe Coupee, Saint Helena, West Baton Rouge, and West Feliciana. Court for the Middle District shall be held at Baton Rouge. WESTERN DISTRICT (c) The Western District comprises the parishes of Acadia, Allen, Avoyelles, Beauregard, Bienville, Bossier, Caddo, Calcasieu, Caldwell, Cameron, Catahoula, Claiborne, Concordia, Jefferson Davis, De Soto, East Carroll, Evangeline, Franklin, Grant, Iberia, Jackson, Lafayette, La Salle, Lincoln, Madison, Morehouse, Natchitoches, Ouachita, Rapides, Red River, Richland, Sabine, Saint Landry, Saint Martin, Saint Mary, Tensas, Union, Vermilion, Vernon, Webster, West Carroll, and Winn. Court for the Western District shall be held at Alexandria, Lafayette, Lake Charles, Monroe, Opelousas, and Shreveport. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 881; May 19, 1961, Pub. L. 87-36, Sec. 4, 75 Stat. 83; Dec. 18, 1971, Pub. L. 92-208, Sec. 3(a), 85 Stat. 741; Oct. 2, 1978, Pub. L. 95-408, Sec. 3(a), 92 Stat. 883; July 10, 1984, Pub. L. 98-353, title II, Sec. 203(b), 98 Stat. 350.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 159 (Mar. 3, 1911, ch. 231, Sec. 84, 36 Stat. 1113). Provisions relating to the maintenance of offices by the clerks were omitted as covered by sections 452 and 751 of this title. The parishes of Allen, Beauregard, and Jefferson Davis of the Lake Charles Division of the Western District were formed out of part of Calcasieu Parish since the enactment of the Judicial Code. Changes in arrangement and phraseology were made. AMENDMENTS 1984 - Subsec. (a). Pub. L. 98-353 inserted ', and Houma' after 'New Orleans'. 1978 - Subsec. (c). Pub. L. 95-408 struck out par. (1) to (6) designations which had divided the parishes of Western District into six divisions. 1971 - Pub. L. 92-208 created a Middle District consisting of the nine parishes formerly making up Baton Rouge Division of Eastern District and designated as the entire Eastern District the thirteen parishes formerly making up New Orleans Division of Eastern District. 1961 - Pub. L. 87-36 struck out from enumeration in subsec. (a)(1) the parishes of Iberia and Saint Mary, in subsec. (b)(1) Lafayette, Saint Martin and Vermilion, and in subsec. (b)(5) Acadia, and created sixth division of subsec. (b), consisting of such parishes. EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. EFFECTIVE DATE OF 1971 AMENDMENT Section 3(f) of Pub. L. 92-208 provided that: 'The provisions of this section (amending this section and sections 133 and 134 of this title and enacting provisions set out below) shall become effective one hundred and twenty days after the date of enactment of this Act (Dec. 18, 1971).' DISTRICT JUDGE, UNITED STATES ATTORNEY, AND UNITED STATES MARSHAL FOR MIDDLE DISTRICT; DESIGNATION; TENURE; APPOINTMENT Section 3(b), (c) of Pub. L. 92-208 provided that: '(b) The district judge for the Eastern District of Louisiana holding office on the day immediately prior to the effective date of this section (see Effective Date of 1971 Amendment Note above), and whose official station on such date is Baton Rouge, shall, on and after such date, be the district judge for the Middle District of Louisiana. All other district judges for the Eastern District of Louisiana holding office on the day immediately prior to the effective date of this section shall be district judges for the Eastern District of Louisiana as constituted by this section. '(c)(1) Nothing in this section shall in any manner affect the tenure of office of the United States attorney and the United States marshal for the Eastern District of Louisiana who are in office on the effective date of this section, and who shall be during the remainder of their present terms of office the United States attorney and marshal for the Eastern District of Louisiana as constituted by this section. '(2) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney and marshal for the Middle District of Louisiana.' ------DocID 36200 Document 62 of 1452------ -CITE- 28 USC Sec. 99 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 99. Maine -STATUTE- Maine constitutes one judicial district. Court shall be held at Bangor and Portland. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 881; Nov. 2, 1978, Pub. L. 95-573, Sec. 2, 92 Stat. 2458.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 160 (Mar. 3, 1911, ch. 231, Sec. 85, 36 Stat. 1114; Dec. 22, 1911, ch. 7, 37 Stat. 51; Sept. 8, 1916, ch. 475, Sec. 1, 3, 39 Stat. 850; Mar. 4, 1923, ch. 279, 42 Stat. 1506). Changes in arrangement and phraseology were made. AMENDMENTS 1978 - Pub. L. 95-573 struck out provision for two separate divisions, (1) the Northern Division comprising the counties of Aroostook, Hancock, Penobscot, Piscataquis, Somerset, Waldo, and Washington and (2) the Southern Division comprising the counties of Androscoggin, Cumberland, Franklin, Kennebec, Knox, Lincoln, Oxford, Sagadahoc, and York. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-573 effective 180 days after Nov. 2, 1978, see section 6 of Pub. L. 95-573, set out as a note under section 93 of this title. ------DocID 36201 Document 63 of 1452------ -CITE- 28 USC Sec. 100 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 100. Maryland -STATUTE- Maryland constitutes one judicial district comprising two divisions. (1) The Northern Division comprises the counties of Allegany, Anne Arundel, Baltimore, Caroline, Carroll, Cecil, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Anne's, Somerset, Talbot, Washington, Wicomico, and Worcester, and the City of Baltimore. Court for the Northern Division shall be held at Baltimore, Cumberland, and Denton. (2) The Southern Division comprises the counties of Calvert, Charles, Montgomery, Prince George's, and St. Mary's. Court for the Southern Division shall be held at a suitable site in Montgomery or Prince George's County not more than five miles from the boundary of Montgomery and Prince George's Counties. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 882; Dec. 14, 1970, Pub. L. 91-546, Sec. 4, 84 Stat. 1412; Oct. 14, 1988, Pub. L. 100-487, Sec. 1, 102 Stat. 2431.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 166 (Mar. 3, 1911, ch. 231, Sec. 86, 36 Stat. 1114; Mar. 3, 1925, ch. 422, 43 Stat. 1106). Provisions relating to appointment of a deputy clerk and a deputy marshal and the maintenance of offices by such deputies were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. The provisions respecting court accommodations at Denton were omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1988 - Pub. L. 100-702 amended section generally. Prior to amendment, section provided that Maryland constituted one judicial district and that court be held at Baltimore, Cumberland, Denton, and at a suitable site in Prince Georges County not more than five miles from the boundary of Montgomery and Prince Georges Counties. 1970 - Pub. L. 91-546 added a suitable site in Prince Georges County not more than five miles from the boundary of Montgomery and Prince Georges Counties to the list of enumerated places for holding court in Maryland. EFFECTIVE DATE OF 1988 AMENDMENT Section 2 of Pub. L. 100-487 provided that: '(a) In General. - This Act and the amendments made by this Act (amending this section) shall take effect 180 days after the date of the enactment of this Act (Oct. 14, 1988). '(b) Pending Cases Not Affected. - This Act and the amendments made by this Act shall not affect any action commenced before the effective date of this Act and pending in the United States District Court for the District of Maryland on such date. '(c) Juries Not Affected. - This Act and the amendments made by this Act shall not affect the composition, or preclude the service, of any grand or petit jury summoned, empaneled, or actually serving in the Judicial District of Maryland on the effective date of this Act.' ------DocID 36202 Document 64 of 1452------ -CITE- 28 USC Sec. 101 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 101. Massachusetts -STATUTE- Massachusetts constitutes one judicial district. Court shall be held at Boston, New Bedford, Springfield, and Worcester. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 882.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 167 (Mar. 3, 1911, ch. 231, Sec. 87, 36 Stat. 1114; May 1, 1922, ch. 173, 42 Stat. 503; May 17, 1926, ch. 306, 44 Stat. 559). Words 'and the terms at Boston shall not be terminated or affected by the terms at Springfield, New Bedford, or Worcester,' were omitted as covered by section 138 of this title. Provisions relating to appointment of deputy clerks and deputy marshals, and maintenance of office by said deputies were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. Provisions for furnishing rooms and accommodations at Springfield and Worcester were omitted as obsolete upon advice of Director of the Administrative Office of the United States Courts that federal accommodations have been provided at such places. A provision requiring the return of all process to the terms at Boston and the keeping of all court papers in the clerk's office at Boston, unless otherwise specially ordered by the court, was omitted, since such matters can be regulated more appropriately by court rule or order. See Federal Rules of Civil Procedure, Rule 4(g). The provision respecting court accommodations at New Bedford was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. ------DocID 36203 Document 65 of 1452------ -CITE- 28 USC Sec. 102 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 102. Michigan -STATUTE- Michigan is divided into two judicial districts to be known as the Eastern and Western Districts of Michigan. EASTERN DISTRICT (a) The Eastern District comprises two divisions. (1) The Southern Division comprises the counties of Genesee, Jackson, Lapeer, Lenawee, Livingston, Macomb, Monroe, Oakland, Saint Clair, Sanilac, Shiawassee, Washtenaw, and Wayne. Court for the Southern Division shall be held at Ann Arbor, Detroit, Flint, and Port Huron. (2) The Northern Division comprises the counties of Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Crawford, Gladwin, Gratiot, Huron, Iosco, Isabella, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, and Tuscola. Court for the Northern Division shall be held at Bay City. WESTERN DISTRICT (b) The Western District comprises two divisions. (1) The Southern Division comprises the counties of Allegan, Antrim, Barry, Benzie, Berrien, Branch, Calhoun, Cass, Charlevoix, Clinton, Eaton, Emmet, Grand Traverse, Hillsdale, Ingham, Ionia, Kalamazoo, Kalkaska, Kent, Lake, Leelanau, Manistee, Mason, Mecosta, Missaukee, Montcalm, Muskegon, Newaygo, Oceana, Osceola, Ottawa, Saint Joseph, Van Buren, and Wexford. Court for the Southern Division shall be held at Grand Rapids, Kalamazoo, Lansing, and Traverse City. (2) The Northern Division comprises of counties of Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houghton, Iron, Keweenaw, Luce, Mackinac, Marquette, Menominee, Ontonagon, and Schoolcraft. Court for the Northern Division shall be held at Marquette and Sault Sainte Marie. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 882; Feb. 10, 1954, ch. 6 Sec. 2(b)(8), 68 Stat. 11; May 19, 1961, Pub. L. 87-36, Sec. 3(d), 75 Stat. 83; Oct. 6, 1964, Pub. L. 88-627, 78 Stat. 1003; June 2, 1970, Pub. L. 91-272, Sec. 11, 84 Stat. 298.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 168 (Mar. 3, 1911, ch. 231, Sec. 88, 36 Stat. 1114; July 9, 1912, ch. 222, 37 Stat. 190; Mar. 31, 1930, ch. 101, 46 Stat. 138). Provisions of section 168 of title 28, U.S.C., 1940 ed., relating to venue, were omitted as covered by section 1391 et seq. of this title. A provision for a special or adjourned term at Bay City for the hearing of admiralty cases, beginning in February of each year, was omitted. Adequate provision is made for such terms by section 141 of this title. Words 'and mileage on service of process in said northern division shall be computed from Bay City,' at the end of the section, were omitted as covered by section 553 of this title. Provisions relating to appointment and residence of deputy clerks and deputy marshals and maintenance of offices by such deputies were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Subsec. (b)(1). Pub. L. 91-272 provided for holding court at Traverse City. 1964 - Subsec. (a). Pub. L. 88-627 transferred counties of Genesee and Shiawassee from Northern Division to Southern Division, added Ann Arbor and Flint as places of court for Southern Division, and struck out Flint as a place for holding court. 1961 - Subsec. (b)(1). Pub. L. 87-36 provided for holding court at Lansing instead of Mason. 1954 - Subsec. (a)(1). Act Feb. 10, 1954, Sec. 2(b)(8)(a), struck out counties of Branch, Calhoun, Clinton, Hillsdale, and Ingham, with respect to Southern Division of Eastern District. Subsec. (a)(2). Act Feb. 10, 1954, Sec. 2(b)(8)(b), substituted 'Flint' for 'Port Huron', as a place for holding court. Subsec. (b)(1). Act Feb. 10, 1954, Sec. 2(b)(8)(c), inserted a reference to counties of Branch, Calhoun, Clinton, Hillsdale, and Ingham, with respect to composition of Southern Division of the Western District, and provided for holding court at Kalamazoo and Mason. ------DocID 36204 Document 66 of 1452------ -CITE- 28 USC Sec. 103 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 103. Minnesota -STATUTE- Minnesota constitutes one judicial district comprising six divisions. (1) The First Division comprises the counties of Dodge, Fillmore, Houston, Mower, Olmsted, Steele, Wabasha, and Winona. Court for the First Division shall be held at Winona. (2) The Second Division comprises the counties of Blue Earth, Brown, Cottonwood, Faribault, Freeborn, Jackson, Lac qui Parle, Le Sueur, Lincoln, Lyon, Martin, Murray, Nicollet, Nobles, Pipestone, Redwood, Rock, Sibley, Waseca, Watonwan, and Yellow Medicine. Court for the Second Division shall be held at Mankato. (3) The Third Division comprises the counties of Chisago, Dakota, Goodhue, Ramsey, Rice, Scott, and Washington. Court for the Third Division shall be held at Saint Paul. (4) The Fourth Division comprises the counties of Anoka, Carver, Chippewa, Hennepin, Isanti, Kandiyohi, McLeod, Meeker, Renville, Sherburne, Swift, and Wright. Court for the Fourth Division shall be held at Minneapolis. (5) The Fifth Division comprises the counties of Aitkin, Benton, Carlton, Cass, Cook, Crow Wing, Itasca, Kanabec, Koochiching, Lake, Mille Lacs, Morrison, Pine, and Saint Louis. Court for the Fifth Division shall be held at Duluth. (6) The Sixth Division comprises the counties of Becker, Beltrami, Big Stone, Clay, Clearwater, Douglas, Grant, Hubbard, Kittson, Lake of the Woods, Mahnomen, Marshall, Norman, Otter Tail, Pennington, Polk, Pope, Red Lake, Roseau, Stearns, Stevens, Todd, Traverse, Wadena, and Wilkin. Court for the Sixth Division shall be held at Fergus Falls. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 882.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 169 (Mar. 3, 1911, ch. 231, Sec. 89, 36 Stat. 1115; Apr. 10, 1926, ch. 113, 44 Stat. 238). Provisions relating to the appointment and residence of deputy clerks and the maintenance of offices by them were omitted as covered by section 751 of this title. The counties of Pennington and Lake of the Woods, in the Sixth Division, were created since the enactment of the Judicial Code. Changes in arrangement and phraseology were made. ------DocID 36205 Document 67 of 1452------ -CITE- 28 USC Sec. 104 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 104. Mississippi -STATUTE- Mississippi is divided into two judicial districts to be known as the northern and southern districts of Mississippi. NORTHERN DISTRICT (a) The northern district comprises four divisions. (1) Eastern division comprises the counties of Alcorn, Attala, Chickasaw, Choctaw, Clay, Itawamba, Lee, Lowndes, Monroe, Oktibbeha, Prentiss, Tishomingo, and Winston. Court for the eastern division shall be held at Aberdeen, Ackerman, and Corinth. (2) The western division comprises the counties of Benton, Calhoun, Grenada, Lafayette, Marshall, Montgomery, Pontotoc, Tippah, Union, Webster, and Yalobusha. Court for the Western division shall be held at Oxford. (3) The Delta division comprises the counties of Bolivar, Coahoma, De Soto, Panola, Quitman, Tallahatchie, Tate, and Tunica. Court for the Delta division shall be held at Clarksdale. (4) The Greenville division comprises the counties of Carroll, Humphreys, Leflore, Sunflower, and Washington. Court for the Greenville division shall be held at Greenville. SOUTHERN DISTRICT (b) The southern district comprises five divisions. (1) The Jackson division comprises the counties of Amite, Copiah, Franklin, Hinds, Holmes, Leake, Lincoln, Madison, Pike, Rankin, Scott, Simpson, and Smith. Court for the Jackson division shall be held at Jackson. (2) The eastern division comprises the counties of Clarke, Jasper, Kemper, Lauderdale, Neshoba, Newton, Noxubee, and Wayne. Court for the eastern division shall be held at Meridian. (3) The western division comprises the counties of Adams, Claiborne, Issaquena, Jefferson, Sharkey, Warren, Wilkinson, and Yazoo. Court for the western division shall be held at Natchez and Vicksburg: Provided, That court shall be held at Natchez if suitable quarters and accommodations are furnished at no cost to the United States. (4) The southern division comprises the counties of George, Hancock, Harrison, Jackson, Pearl River, and Stone. Court for the southern division shall be held at Biloxi and Gulfport. (5) The Hattiesburg division comprises the counties of Covington, Forrest, Greene, Jefferson Davis, Jones, Lamar, Lawrence, Marion, Perry, and Walthall. Court for the Hattiesburg division shall be held at Hattiesburg. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 883; Aug. 7, 1950, ch. 601, 64 Stat. 415; Sept. 27, 1967, Pub. L. 90-92, 81 Stat. 229; Dec. 14, 1970, Pub. L. 91-546, Sec. 2, 3, 84 Stat. 1412; Oct. 2, 1978, Pub. L. 95-408, Sec. 2(b), 92 Stat. 883.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 170 (Mar. 3, 1911, ch. 231, Sec. 90, 36 Stat. 1116; Feb. 5, 1912, ch. 28, 37 Stat. 59; May 27, 1912, ch. 136, 37 Stat. 118; Feb. 12, 1925, ch. 212, 43 Stat. 882; May 19, 1936, ch. 428, 49 Stat. 1362; May 8, 1939, ch. 116, Sec. 1, 53 Stat. 684). Provisions relating to the maintenance of offices by the clerks and marshals were omitted as covered by sections 452, 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1978 - Subsec. (a)(1). Pub. L. 95-408 provided for holding court at Corinth. 1970 - Subsec. (b)(3). Pub. L. 91-546, Sec. 3, provided for holding court at Natchez if suitable quarters and accommodations are furnished at no cost to the United States. Subsec. (b)(4). Pub. L. 91-546, Sec. 2, provided for holding court at Gulfport. 1967 - Subsec. (a)(1). Pub. L. 90-92 provided for holding court at Ackerman. 1950 - Act Aug. 7, 1950, created Greenville division in the northern district with terms of courts to be held at Greenville. EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. ------DocID 36206 Document 68 of 1452------ -CITE- 28 USC Sec. 105 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 105. Missouri -STATUTE- Missouri is divided into two judicial districts to be known as the Eastern and Western Districts of Missouri. EASTERN DISTRICT (a) The Eastern District comprises three divisions. (1) The Eastern Division comprises the counties of Crawford, Dent, Franklin, Gasconade, Iron, Jefferson, Lincoln, Maries, Phelps, Saint Charles, Saint Francois, Saint Genevieve, Saint Louis, Warren, and Washington, and the city of Saint Louis. Court for the Eastern Division shall be held at Saint Louis. (2) The Northern Division comprises the counties of Adair, Audrain, Chariton, Clark, Knox, Lewis, Linn, Macon, Marion, Monroe, Montgomery, Pike, Ralls, Randolph, Schuyler, Scotland, and Shelby. Court for the Northern Division shall be held at Hannibal. (3) The Southeastern Division comprises the counties of Bollinger, Butler, Cape Girardeau, Carter, Dunklin, Madison, Mississippi, New Madrid, Pemiscot, Perry, Reynolds, Ripley, Scott, Shannon, Stoddard, and Wayne. Court for the Southeastern Division shall be held at Cape Girardeau. WESTERN DISTRICT (b) The Western District comprises five divisions. (1) The Western Division comprises the counties of Bates, Carroll, Cass, Clay, Henry, Jackson, Johnson, Lafayette, Ray, Saint Clair, and Saline. Court for the Western Division shall be held at Kansas City. (2) The Southwestern Division comprises the counties of Barton, Barry, Jasper, Lawrence, McDonald, Newton, Stone, and Vernon. Court for the Southwestern Division shall be held at Joplin. (3) The Saint Joseph Division comprises the counties of Andrew, Atchison, Buchanan, Caldwell, Clinton, Daviess, De Kalb, Gentry, Grundy, Harrison, Holt, Livingston, Mercer, Nodaway, Platte, Putnam, Sullivan, and Worth. Court for the Saint Joseph Division shall be held at Saint Joseph. (4) The Central Division comprises the counties of Benton, Boone, Callaway, Camden, Cole, Cooper, Hickory, Howard, Miller, Moniteau, Morgan, Osage, and Pettis. Court for the Central Division shall be held at Jefferson City. (5) The Southern Division comprises the counties of Cedar, Christian, Dade, Dallas, Douglas, Greene, Howell, Laclede, Oregon, Ozark, Polk, Pulaski, Taney, Texas, Webster, and Wright. Court for the Southern Division shall be held at Springfield. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 884; May 31, 1962, Pub. L. 87-461, 76 Stat. 85; Oct. 15, 1980, Pub. L. 96-462, Sec. 4(a), 94 Stat. 2053.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 171 (Mar. 3, 1911, ch. 231, Sec. 91, 36 Stat. 1117; Dec. 22, 1911, ch. 8, 37 Stat. 51). Provisions for furnishing rooms and accommodations at Chillicothe were omitted as obsolete upon advice of Director of the Administrative Office of the United States Courts that Federal accommodations are now available in such place. 'Rolla' was omitted as a place for holding court in the Eastern Division of the Eastern District, and the provision for furnishing quarters there without cost to the United States was also omitted on advice from the clerk of court that no term of court has been held there since 1920. All cases arising in Phelps county in which Rolla is situated are heard at St. Louis. Provisions relating to the maintenance of offices by the clerks and marshals or their deputies were omitted as covered by sections 452, 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1980 - Subsec. (a)(1). Pub. L. 96-462, Sec. 4(a)(1), struck out references to Audrain and Montgomery counties in the list of counties comprising the Eastern Division of the Eastern District. Subsec. (a)(2). Pub. L. 96-462, Sec. 4(a)(2), added Audrain and Montgomery counties to the Northern Division of the Eastern District. 1962 - Subsec. (b). Pub. L. 87-461 transferred the counties of Caldwell, Grundy, Livingston, Mercer, Putnam, and Sullivan from the Western Division to the Saint Joseph Division, and omitted Chillicothe as a place for holding court. EFFECTIVE DATE OF 1980 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 96-462 effective Oct. 1, 1981, but not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on Oct. 1, 1981, see section 7 of Pub. L. 96-462, set out as a note under section 84 of this title. Section 4(b) of Pub. L. 96-462 provided that: 'The amendments made by subsection (a) (amending this section) shall not apply to any action commenced before the effective date of such amendments (Oct. 1, 1981) and pending in the United States District Court for the Eastern District of Missouri on such date.' ------DocID 36207 Document 69 of 1452------ -CITE- 28 USC Sec. 106 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 106. Montana -STATUTE- Montana, exclusive of Yellowstone National Park, constitutes one judicial district. Court shall be held at Billings, Butte, Glasgow, Great Falls, Havre, Helena, Kalispell, Lewistown, Livingston, Miles City, and Missoula. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 884.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 172 (Mar. 3, 1911, ch. 231, Sec. 92, 36 Stat. 1118; July 3, 1926, ch. 748, 44 Stat. 825; July 5, 1937, ch. 430, 50 Stat. 474; Aug. 26, 1937, ch. 819, Sec. 2, 50 Stat. 837; Aug. 7, 1939, ch. 506, 53 Stat. 1236). All of Yellowstone National Park is included in the judicial district of Wyoming by section 131 of this title. Those parts of the park lying in Montana are accordingly excluded from the judicial district of Montana. A provision for furnishing rooms and accommodations at Havre was omitted as obsolete on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available there. A provision for transfer of causes, civil or criminal, from one place of holding court to another was omitted. Such provision, as to civil cases, is covered by section 1404 of this title, and, as to criminal cases, is rendered unnecessary because of inherent power of the court and Rules 18-20 of the Federal Rules of Criminal Procedure, relating to venue. A provision for the making of any interlocutory order at any place designated for holding court was omitted as unnecessary in view of Federal Rules of Civil Procedure, Rule 77-(b). The provisions respecting court accommodations at Kalispell, Lewistown, and Livingston were omitted as covered by section 142 of this title. Changes were made in arrangement and phraseology. ------DocID 36208 Document 70 of 1452------ -CITE- 28 USC Sec. 107 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 107. Nebraska -STATUTE- Nebraska constitutes one judicial district. Court shall be held at Lincoln, North Platte, and Omaha. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 884; Aug. 9, 1955, ch. 627, Sec. 1, 69 Stat. 546.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 173 (Mar. 3, 1911, ch. 231, Sec. 93, 36 Stat. 1118). Provisions for furnishing rooms and accommodations at the various places for holding court were omitted as obsolete upon advice of Director of the Administrative Office of the United States Courts that Federal accommodations are now available at such places. A provision relating to the appointment and residence of deputy clerks and the places for keeping offices was omitted as covered by section 751 of this title. The county of Arthur in the North Platte Division was created since the enactment of the Judicial Code. Changes in arrangement and phraseology were made. AMENDMENTS 1955 - Act Aug. 9, 1955, struck out the separate divisions of the district and reduced the number of places of holding terms. EFFECTIVE DATE OF 1955 AMENDMENT Section 2 of act Aug. 9, 1955, provided that: 'The amendment made by the first section of this Act (amending this section) shall take effect on September 1, 1955.' ------DocID 36209 Document 71 of 1452------ -CITE- 28 USC Sec. 108 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 108. Nevada -STATUTE- Nevada constitutes one judicial district. Court shall be held at Carson City, Elko, Las Vegas, Reno, Ely, and Lovelock. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 885; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 324(a)(1), 104 Stat. 5120.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 174 (Mar. 3, 1911, ch. 231, Sec. 94, 36 Stat. 1118; June 24, 1930, ch. 595, 46 Stat. 806; Nov. 15, 1945, ch. 482, 59 Stat. 582). Changes in arrangement and phraseology were made. AMENDMENTS 1990 - Pub. L. 101-650 substituted ', Reno, Ely, and Lovelock' for 'and Reno'. ------DocID 36210 Document 72 of 1452------ -CITE- 28 USC Sec. 109 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 109. New Hampshire -STATUTE- New Hampshire constitutes one judicial district. Court shall be held at Concord and Littleton. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 885.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 175 (Mar. 3, 1911, ch. 231, Sec. 95, 36 Stat. 1119; Aug. 23, 1912, ch. 344, 37 Stat. 357; Feb. 20, 1926, ch. 23, 44 Stat. 8). Changes in arrangement and phraseology were made. ------DocID 36211 Document 73 of 1452------ -CITE- 28 USC Sec. 110 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 110. New Jersey -STATUTE- New Jersey constitutes one judicial district. Court shall be held at Camden, Newark and Trenton. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 885.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 176 (Mar. 3, 1911, ch. 231, Sec. 96, 36 Stat. 1119; Aug. 9, 1912, ch. 277, 37 Stat. 265; Feb. 14, 1913, ch. 53, 37 Stat. 674; May 17, 1926, ch. 311, 44 Stat. 561). Provisions relating to maintenance of offices by the clerk and marshal were omitted as covered by sections 452, 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. ------DocID 36212 Document 74 of 1452------ -CITE- 28 USC Sec. 111 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 111. New Mexico -STATUTE- New Mexico constitutes one judicial district. Court shall be held at Albuquerque, Las Cruces, Las Vegas, Roswell, Santa Fe, and Silver City. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 885.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 177 (June 20, 1910, ch. 310, Sec. 13, 36 Stat. 565; Mar. 4, 1921, ch. 149, 41 Stat. 1361; June 7, 1924, ch. 332, 43 Stat. 642). The reference to Raton as a place of holding court was omitted on advice of the clerk that court is no longer held there. Provisions for furnishing rooms and accommodations at Las Vegas were omitted as obsolete upon advice of Director of the Administrative Office of the United States Courts that Federal accommodations are now available. Provision for adjournment or continuance in case of insufficient business by orders made anywhere in the district was omitted as covered by section 138 of this title. Provisions for transfer of causes, civil or criminal, from one place of holding court to another were omitted. Such provisions, as to civil cases, are covered by section 1404 of this title, and, as to criminal cases, are rendered unnecessary because of inherent power of the court, and Rules 18-20 of the Federal Rules of Criminal Procedure, relating to venue. Provisions for appointment of deputy clerks and deputy marshals and maintenance of offices at various cities were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. The provision respecting court accommodations at Silver City was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. ------DocID 36213 Document 75 of 1452------ -CITE- 28 USC Sec. 112 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 112. New York -STATUTE- New York is divided into four judicial districts to be known as the Northern, Southern, Eastern, and Western Districts of New York. NORTHERN DISTRICT (a) The Northern District comprises the counties of Albany, Broome, Cayuga, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, Rensselaer, Saint Lawrence, Saratoga, Schenectady, Schoharie, Tioga, Tompkins, Ulster, Warren, and Washington. Court for the Northern District shall be held at Albany, Auburn, Binghamton, Malone, Syracuse, Utica, and Watertown. SOUTHERN DISTRICT (b) The Southern District comprises the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester and concurrently with the Eastern District, the waters within the Eastern District. Court for the Southern District shall be held at New York and White Plains. EASTERN DISTRICT (c) The Eastern District comprises the counties of Kings, Nassau, Queens, Richmond, and Suffolk and concurrently with the Southern District, the waters within the counties of Bronx and New York. Court for the Eastern District shall be held at Brooklyn, Hauppauge, and Hempstead (including the village of Uniondale). WESTERN DISTRICT (d) The Western District comprises the counties of Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming, and Yates. Court for the Western District shall be held at Buffalo, Canandaigua, Elmira, Jamestown, and Rochester. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 885; Dec. 18, 1967, Pub. L. 90-217, 81 Stat. 662; Dec. 14, 1970, Pub. L. 91-546, Sec. 1, 84 Stat. 1412; Apr. 28, 1978, Pub. L. 95-271, Sec. 1, 92 Stat. 221; Oct. 2, 1978, Pub. L. 95-408, Sec. 4(c), 92 Stat. 885; Nov. 2, 1978, Pub. L. 95-573, Sec. 3, 92 Stat. 2458; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 405, 98 Stat. 3361; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 324(a)(2), 104 Stat. 5120.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 178 and 178a (Mar. 3, 1911, ch. 231, Sec. 97, 36 Stat. 1119; Jan. 21, 1920, ch. 50, 41 Stat. 394; July 1, 1922, ch. 260, 42 Stat. 812; Aug. 12, 1937, ch. 591, 50 Stat. 623). A reference in section 178 of title 28, U.S.C., 1940 ed., to Franklin County in the list of Counties in the Northern District, in which one term might be held annually, in the discretion of the judge, was omitted as superseded by the provisions of said section 178a of title 28, requiring an annual term to be held at Malone, which is in Franklin County. References to seizures made, matters done and processes or orders issued respecting waters within the concurrent jurisdiction of the southern and eastern districts, were omitted as unnecessary and covered by the revised language. Provision for 20 days' notice of the special term authorized in the discretion of the court in the counties of Clinton, Jefferson, Onondaga, Oswego, Rensselaer, St. Lawrence, Saratoga, and Schenectady was omitted as unnecessary, in view of section 141 of this title providing for such notice as the district judge orders. The special provision permitting any district judge in New York to act as judge in any other district in that State upon request of the resident district judge was omitted, thus making applicable the uniform procedure for designation and assignment of district judges throughout the United States, provided by section 292 of this title. Words 'with the waters thereof' after the list of counties in each district were omitted as unnecessary and inconsistent with other sections of this chapter. The provisions with reference to the return of process in admiralty cases, the designation of judges and their powers, and the holding of sessions for the hearing of motions and for proceedings in bankruptcy and admiralty, were omitted as unnecessary and more properly the subject of rule of court. The provisions of sections 178 and 178a of title 28, U.S.C., 1940 ed., respecting court accommodations at Malone and in the counties of Schenectady, Rensselaer, Saratoga, Onondaga, St. Lawrence, Clinton, Jefferson, Oswego, and Franklin, were omitted as covered by section 142 of this title. The county of Bronx, in the southern district, was formed out of a part of New York County in 1912. Lockport was omitted as a place of holding court in the Western District. Court has not been held there for 32 years. Changes were made in arrangement and phraseology. AMENDMENTS 1990 - Subsec. (a). Pub. L. 101-650 substituted 'Utica, and Watertown' for 'and Utica'. 1984 - Subsec. (c). Pub. L. 98-620 provided for holding court at Hauppauge. 1978 - Subsec. (a). Pub. L. 95-408, Sec. 4(c)(1), added counties of Columbia, Greene, and Ulster to those counties comprising the Northern District of New York. Subsec. (b). Pub. L. 95-573 provided for holding court at White Plains. Pub. L. 95-408, Sec. 4(c)(2), struck out Columbia, Greene, and Ulster from those counties comprising the Southern District of New York. Subsec. (c). Pub. L. 95-271 substituted 'and Hempstead (including the village of Uniondale)' for 'Mineola, and Westbury'. 1970 - Subsec. (c). Pub. L. 91-546 provided for holding court at Westbury. 1967 - Subsec. (c). Pub. L. 90-217 provided for holding court at Mineola. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 effective Jan. 1, 1985, and not to affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on that date, see section 411 of Pub. L. 98-620, set out as a note under section 85 of this title. EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. PRETERMISSION OF REGULAR SESSION OF COURT AT HEMPSTEAD AND HOLDING OF SPECIAL SESSION AT WESTBURY; PROCEDURES APPLICABLE, APPROPRIATIONS, ETC. Sections 2 to 5 of Pub. L. 95-271 provided that: 'Sec. 2. The United States District Court for the Eastern District of New York, by order made anywhere within its district, may pretermit the regular session of court at Hempstead until Federal quarters and accommodations are available and ready for occupancy, except that for the entire period and such pretermission, a special session of the court shall be held at Westbury. Pretermission may be ordered without regard to the provisions of section 140(a) of title 28, United States Code. 'Sec. 3. Notwithstanding the provisions of section 142 of title 28, United States Code, the Administrator of General Services, at the request of the Director of the Administrative Office of the United States Courts, shall continue to provide existing quarters and accommodations at Westbury for the duration of the special session held pursuant to section 2 of this Act. Appropriations to the judicial branch of Government shall be available to the Director to make necessary disbursements for such quarters and accommodations, and to pay user charges as required by section 210 of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 490), at rates otherwise authorized by law. 'Sec. 4. Notwithstanding the provisions of section 456 of title 28, United States Code, any judge, and any officer or employee of the judicial branch, whose official station is, on the day before the date of enactment of this Act (Apr. 28, 1978), Westbury, may maintain that official station for the duration of the special session held pursuant to section 2 of this Act. 'Sec. 5. The Director of the Administrative Office of the United States Courts may pay travel and transportation expenses in accordance with subchapter II, chapter 57 of title 5, United States Code, to any officer or employee of the judicial branch whose official station changes as a consequence of this Act (enacting this provision and amending subsec. (c) of this section) and who relocates his residence incident to such change of official station.' ------DocID 36214 Document 76 of 1452------ -CITE- 28 USC Sec. 113 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 113. North Carolina -STATUTE- North Carolina is divided into three judicial districts to be known as the Eastern, Middle, and Western Districts of North Carolina. EASTERN DISTRICT (a) The Eastern District comprises the counties of Beaufort, Bertie, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe, Franklin, Gates, Granville, Greene, Halifax, Harnett, Hertford, Hyde, Johnston, Jones, Lenoir, Martin, Nash, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Robeson, Sampson, Tyrrell, Vance, Wake, Warren, Washington, Wayne, and Wilson and that portion of Durham County encompassing the Federal Correctional Institution, Butner, North Carolina. Court for the Eastern District shall be held at Clinton, Elizabeth City, Fayetteville, New Bern, Raleigh, Washington, Wilmington, and Wilson. MIDDLE DISTRICT (b) The Middle District comprises the counties of Alamance, Cabarrus, Caswell, Chatham, Davidson, Davie, Durham (excluding that portion of Durham County encompassing the Federal Correctional Institution, Butner, North Carolina), Forsythe, Guilford, Hoke, Lee, Montgomery, Moore, Orange, Person, Randolph, Richmond, Rockingham, Rowan, Scotland, Stanly, Stokes, Surry, and Yadkin. Court for the Middle District shall be held at Durham, Greensboro, and Winston-Salem. WESTERN DISTRICT (c) The Western District comprises the counties of Alexander, Alleghany, Anson, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Cherokee, Clay, Cleveland, Gaston, Graham, Haywood, Henderson, Iredell, Jackson, Lincoln, McDowell, Macon, Madison, Mecklenburg, Mitchell, Polk, Rutherford, Swain, Transylvania, Union, Watauga, Wilkes, and Yancey. Court for the Western District shall be held at Asheville, Bryson City, Charlotte, Shelby, and Statesville. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 886; Nov. 2, 1965, Pub. L. 89-319, 79 Stat. 1186; Oct. 15, 1980, Pub. L. 96-462, Sec. 5(a)-(c), 94 Stat. 2053, 2054.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 179 (Mar. 3, 1911, ch. 231, Sec. 98, 36 Stat. 1120; Oct. 7, 1914, ch. 318, 38 Stat. 728; Mar. 17, 1920, ch. 101, Sec. 1, 41 Stat. 531; June 7, 1924, ch. 359, Sec. 1, 43 Stat. 661; Dec. 24, 1924, ch. 18, 43 Stat. 721; June 12, 1926, ch. 566, 44 Stat. 734; June 22, 1926, ch. 645, 44 Stat. 758; June 22, 1926, ch. 646, 44 Stat. 758; Mar. 2, 1927, ch. 276, 44 Stat. 1339; Apr. 25, 1928, ch. 432, 45 Stat. 457; May 10, 1928, ch. 516, 45 Stat. 495; Feb. 20, 1933, ch. 107, 47 Stat. 859; Feb. 28, 1933, ch. 133, 47 Stat. 1350; June 28, 1935, ch. 330, Sec. 1, 2, 49 Stat. 429; June 24, 1936, ch. 744, 49 Stat. 1898; June 24, 1936, ch. 759, 49 Stat. 1910; Aug. 17, 1937, ch. 688, 50 Stat. 671). References to civil and criminal terms at Raleigh were omitted as more properly the subject of rule of court. The following language at the end of section 179 of title 28, U.S.C., 1940 ed., was omitted: 'There shall be a judge appointed for the said middle district in the manner now provided by law who shall receive the salary provided by law for the judges of the eastern and western districts, and a district attorney, marshal, clerk, and other officers in the manner and at the salary now provided by law. All causes in the said middle district in equity, bankruptcy, or admiralty, in which orders and decrees have already been made and which are now in process of trial, shall continue and remain subject to the jurisdiction of the judge of that district by whom the same shall have been made and before whom the same shall have been partially tried and determined.' The first sentence is superfluous in view of other sections of this title governing the appointment and compensation of the judges, clerks and marshals of the district courts and of district attorneys. The last sentence is obsolete, having been enacted in 1927, and being limited to cases affected by the creation of the middle district. Provisions for maintenance of offices by the clerks at certain cities were omitted. (See Reviser's Note under sections 452 and 751 of this title.) Provisions for furnishing rooms and accommodations at Durham, Rockingham, and Winston-Salem were omitted as obsolete upon advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available in such places. The provisions respecting court accommodations at Bryson City and Shelby were omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1980 - Subsec. (a). Pub. L. 96-462, Sec. 5(a), added that portion of Durham County encompassing the Federal Correctional Institution, Butner, North Carolina to the Eastern District. Subsec. (b). Pub. L. 96-462, Sec. 5(b), struck out references to Alleghany, Ashe, Watauga, and Wilkes counties in the list of counties comprising the Middle District; inserted '(excluding that portion of Durham County encompassing the Federal Correctional Institution, Butner, North Carolina)' in first sentence as the probable intent of Congress; and struck out Rockingham, Salisbury, and Wilkesboro as places for holding court. Subsec. (c). Pub. L. 96-462, Sec. 5(c), added Alleghany, Ashe, Watauga, and Wilkes counties to the Western District. 1965 - Pub. L. 89-319 provided for holding court at Clinton. EFFECTIVE DATE OF 1980 AMENDMENT; SAVINGS PROVISIONS Amendment by Pub. L. 96-462 effective Oct. 1, 1981, but not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on Oct. 1, 1981, see section 7 of Pub. L. 96-462, set out as a note under section 84 of this title. Section 5(d) of Pub. L. 96-462 provided that: 'The amendments made by this section (amending this section) shall not apply to any action commenced before the effective date of such amendments (Oct. 1, 1981) and pending in any judicial district of North Carolina on such date.' ------DocID 36215 Document 77 of 1452------ -CITE- 28 USC Sec. 114 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 114. North Dakota -STATUTE- North Dakota constitutes one judicial district comprising four divisions. (1) The Southwestern Division comprises the counties of Adams, Billings, Bowman, Burleigh, Dunn, Emmons, Golden Valley, Grant, Hettinger, Kidder, Logan, McIntosh, McLean, Mercer, Morton, Oliver, Sioux, Slope, and Stark. Court for the Southwestern Division shall be held at Bismarck. (2) The Southeastern Division comprises the counties of Barnes, Cass, Dickey, Eddy, Foster, Griggs, La Moure, Ransom, Richland, Sargent, Steele, and Stutsman. Court for the Southeastern Division shall be held at Fargo. (3) The Northeastern Division comprises the counties of Benson, Cavalier, Grand Forks, Nelson, Pembina, Ramsey, Rolette, Towner, Traill, and Walsh. Court for the Northeastern Division shall be held at Grand Forks. (4) The Northwestern Division comprises the counties of Bottineau, Burke, Divide, McHenry, McKenzie, Mountrail, Pierce, Renville, Sheridan, Ward, Wells, and Williams. Court for the Northwestern Division shall be held at Minot. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 886; Oct. 2, 1978, Pub. L. 95-408, Sec. 3(b), 92 Stat. 883.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 180 (Mar. 3, 1911, ch. 231, Sec. 99, 36 Stat. 1121; Feb. 5, 1912, ch. 28, 37 Stat. 60; July 17, 1916, ch. 248, 39 Stat. 386; Apr. 10, 1926, ch. 112, 44 Stat. 237; June 3, 1930, ch. 394, 46 Stat. 495; June 29, 1932, ch. 305, 47 Stat. 341; June 19, 1934, ch. 664, 48 Stat. 1120; Dec. 16, 1944, ch. 604, 58 Stat. 814). A provision relating to maintenance of offices by the clerk was omitted as covered by section 751 of this title. The provision that Indian reservations shall constitute parts of the divisions within which they are situated was omitted as surplusage. Similar provisions, relating to reservations in South Dakota and Washington, respectively, appeared in sections 187 and 193 of said title 28, on which sections 122 and 128 of this title are based. They were omitted for the same reason. Such provisions did not appear in sections respecting other States containing Indian reservations. Jamestown and Devils Lake were omitted as places of holding court. The Director of the Administrative Office of the United States Courts, the district judge, and the senior circuit judge advise that court has not been held in these places for many years. Changes in arrangement and phraseology were made. AMENDMENTS 1978 - Par. (2). Pub. L. 95-408, Sec. 3(b)(1), struck out Sheridan and Wells from the counties comprising the Southeastern Division. Par. (3). Pub. L. 95-408, Sec. 3(b)(2), struck out Bottineau, McHenry and Pierce from the counties comprising the Northeastern Division. Par. (4). Pub. L. 95-408, Sec. 3(b)(3), added Bottineau, McHenry, Pierce, Sheridan and Wells to those counties comprising the Northwestern Division. EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. ------DocID 36216 Document 78 of 1452------ -CITE- 28 USC Sec. 115 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 115. Ohio -STATUTE- Ohio is divided into two judicial districts to be known as the Northern and Southern Districts of Ohio. NORTHERN DISTRICT (a) The Northern District comprises two divisions. (1) The Eastern Division comprises the counties of Ashland, Ashtabula, Carroll, Columbiana, Crawford, Cuyahoga, Geauga, Holmes, Lake, Lorain, Mahoning, Medina, Portage, Richland, Stark, Summit, Trumbull, Tuscarawas, and Wayne. Court for the Eastern Division shall be held at Cleveland, Youngstown, and Akron. (2) The Western Division comprises the counties of Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry, Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca, Van Wert, Williams, Woods, and Wyandot. Court for the Western Division shall be held at Lima and Toledo. SOUTHERN DISTRICT (b) The Southern District comprises two divisions. (1) The Western Division comprises the counties of Adams, Brown, Butler, Champaign, Clark, Clermont, Clinton, Darke, Greene, Hamilton, Highland, Lawrence, Miami, Montgomery, Preble, Scioto, Shelby, and Warren. Court for the Western Division shall be held at Cincinnati and Dayton. (2) The Eastern Division comprises the counties of Athens, Belmont, Coshocton, Delaware, Fairfield, Fayette, Franklin, Gallia, Guernsey, Harrison, Hocking, Jackson, Jefferson, Knox, Licking, Logan, Madison, Meigs, Monroe, Morgan, Morrow, Muskingum, Noble, Perry, Pickaway, Pike, Ross, Union, Vinton, and Washington. Court for the Eastern Division shall be held at Columbus and Steubenville. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 887; Feb. 10, 1954, ch. 6, Sec. 2(b)(9), 68 Stat. 11.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 181 (Mar. 3, 1911, ch. 231, Sec. 100, 36 Stat. 1121; Mar. 4, 1915, ch. 159, 38 Stat. 1187; Feb. 14, 1923, ch. 78, 42 Stat. 1246). Other provisions of said section 181 of title 28, U.S.C., 1940 ed., are incorporated in section 1865 of this title. Provisions relating to the place of institution or trial of prosecutions and civil actions and transfer thereof were omitted. Such provisions, as to civil cases, are covered by section 1391 et seq. of this title, and as to criminal cases, are rendered unnecessary because of inherent power of the court and Rules 18-20 of the Federal Rules of Criminal Procedure relating to venue. The provision respecting court accommodations at Lima was omitted as covered by section 142 of this title. Changes were made in arrangement and phraseology. AMENDMENTS 1954 - Subsec. (a)(1). Act Feb. 10, 1954, provided for holding court at Akron. ------DocID 36217 Document 79 of 1452------ -CITE- 28 USC Sec. 116 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 116. Oklahoma -STATUTE- Oklahoma is divided into three judicial districts to be known as the Northern, Eastern, and Western Districts of Oklahoma. NORTHERN DISTRICT (a) The Northern District comprises the counties of Craig, Creek, Delaware, Mayes, Nowata, Osage, Ottawa, Pawnee, Rogers, Tulsa, and Washington. Court for the Northern District shall be held at Bartlesville, Miami, Pawhuska, Tulsa, and Vinita. EASTERN DISTRICT (b) The Eastern District comprises the counties of Adair, Atoka, Bryan, Carter, Cherokee, Choctaw, Coal, Haskell, Hughes, Johnston, Latimer Le Flore Love, McCurtain, McIntosh, Marshall, Murray, Muskogee, Okfuskee, Okmulgee, Pittsburg, Pontotoc, Pushmataha, Seminole, Sequoyah, and Wagoner. Court for the Eastern District shall be held at Ada, Ardmore, Durant, Hugo, Muskogee, Okmulgee, Poteau, and S. McAlester. WESTERN DISTRICT (c) The Western District comprises the counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Harmon, Harper, Jackson, Jefferson, Kay, Kingfisher, Kiowa, Lincoln, Logan, McClain, Major, Noble, Oklahoma, Payne, Pottawatomie, Roger Mills, Stephens, Texas, Tillman, Washita, Woods, and Woodward. Court for the Western District shall be held at Chickasha, Enid, Guthrie, Lawton, Mangum, Oklahoma City, Pauls Valley, Ponca City, Shawnee, and Woodward. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 887; Aug. 4, 1966, Pub. L. 89-526, Sec. 1, 80 Stat. 335.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 182, 182a (Mar. 3, 1911, ch. 231, Sec. 101, 36 Stat. 1122; Feb. 20, 1917, ch. 102, 39 Stat. 927; June 13, 1918, ch. 98, 40 Stat. 604; Feb. 26, 1919, ch. 54, 40 Stat. 1184; June 5, 1924, ch. 259, 43 Stat. 387; Jan. 10, 1925, chs. 68, 69, 43 Stat. 730, 731; Feb. 16, 1925, ch. 233, Sec. 1, 43 Stat. 945; May 7, 1926, ch. 255, 44 Stat. 408; Apr. 21, 1928, ch. 395, 45 Stat. 440; Mar. 2, 1929, ch. 539, 45 Stat. 1518; June 28, 1930, ch. 714, 46 Stat. 829; May 13, 1936, ch. 386, 49 Stat. 1271; Aug. 12, 1937, ch. 595, 50 Stat. 625). Provisions for furnishing rooms and accommodations at Ada, Bartlesville, Mangum, Miami, Okmulgee, and Ponca City were omitted as obsolete, on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available at such places. A provision making inoperative the requirement for furnishing court accommodations without cost to the United States whenever the same shall be provided in federal buildings at Shawnee, was omitted as unnecessary. When such buildings become available the Director will, under section 604 of this title, provide court accommodations therein. A provision for adjournment of any term by an order made in chambers, is incorporated in section 140 of this title. Provisions relating to maintenance of offices by the clerks were omitted as covered by section 751 of this title. The provisions respecting court accommodations at Durant, Hugo, Poteau, Pauls Valley, Pawhuska, and Shawnee were omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1966 - Pub. L. 89-526 transferred from the Eastern District in subsec. (b) to the Western District in subsec. (c) the counties of Garvin, Grady, Jefferson, McClain, and Stephens and the places for holding court at Chickasha and Pauls Valley. EFFECTIVE DATE OF 1966 AMENDMENT Section 2 of Pub. L. 89-526 provided that: 'The amendments made by this Act (amending this section) shall take effect on the sixtieth day after the date of enactment of this Act (Aug. 4, 1966).' ------DocID 36218 Document 80 of 1452------ -CITE- 28 USC Sec. 117 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 117. Oregon -STATUTE- Oregon constitutes one judicial district. Court shall be held at Coquille, Eugene, Klamath Falls, Medford, Pendleton, and Portland. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 888; Aug. 3, 1950, ch. 514, 64 Stat. 393; June 2, 1970, Pub. L. 91-272, Sec. 7, 84 Stat. 297.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 183 (Mar. 3, 1911, ch. 231, Sec. 102, 36 Stat. 1122; Nov. 6, 1945, ch. 447, 59 Stat. 555). Provisions relating to appointment and residence of deputies by the clerk and marshal, and maintenance of offices by said officers, were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Pub. L. 91-272 provided for holding court at Coquille. 1950 - Act Aug. 3, 1950, provided for holding court at Eugene. ------DocID 36219 Document 81 of 1452------ -CITE- 28 USC Sec. 118 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 118. Pennsylvania -STATUTE- Pennsylvania is divided into three judicial districts to be known as the Eastern, Middle, and Western Districts of Pennsylvania. EASTERN DISTRICT (a) The Eastern District comprises the counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, Philadelphia, and Schuylkill. Court for the Eastern District shall be held at Allentown, Easton, Reading, and Philadelphia. MIDDLE DISTRICT (b) The Middle District comprises the counties of Adams, Bradford, Cameron, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming, and York. Court for the Middle District shall be held at Harrisburg, Lewisburg, Scranton, Wilkes-Barre, and Williamsport. WESTERN DISTRICT (c) The Western District comprises the counties of Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Somerset, Venango, Warren, Washington, and Westmoreland. Court for the Western District shall be held at Erie, Johnstown, and Pittsburgh. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 888; June 2, 1970, Pub. L. 91-272, Sec. 6, 84 Stat. 297; Nov. 2, 1978, Pub. L. 95-573, Sec. 4, 92 Stat. 2458.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 184 (Mar. 3, 1911, ch. 231, Sec. 103, 36 Stat. 1123; Mar. 3, 1913, ch. 113, 37 Stat. 730; June 6, 1914, ch. 104, 38 Stat. 385; Sept. 9, 1914, ch. 296, 38 Stat. 713; Apr. 26, 1926, ch. 185, 44 Stat. 324; June 27, 1930, ch. 634, 46 Stat. 820; Aug. 3, 1935, ch. 433, 49 Stat. 514; May 13, 1936, ch. 385, 49 Stat. 1271; June 13, 1938, ch. 351, 52 Stat. 674; Mar. 5, 1942, ch. 143, 56 Stat. 132). Provisions relating to maintenance of offices at certain places by the clerks and marshals were omitted as covered by sections 541 (see 561) and 751 of this title. Provisions for the continuance of terms were omitted as covered by section 139 of this title. Provisions with respect to the return of process, and the places of keeping court papers, were omitted as matters for determination by rule of court or for the action of the judicial council in cooperation with the Administrative Office of the United States Courts. The provisions for trial of cases at Lewisburg and Erie unless counsel consent to trial elsewhere were omitted as inconsistent with the uniform practice provided by this title. Changes were made in phraseology and arrangement. SENATE REVISION AMENDMENT By Senate amendment to the bill, Blair County was transferred from the Middle District to the Western District of Pennsylvania. This was in conformity with Act July 11, 1947, ch. 224, 61 Stat. 310, which so amended section 184 of title 28, U.S.C., 1940 ed., the source of this section. See 80th Congress Senate Report No. 1559. AMENDMENTS 1978 - Subsec. (c). Pub. L. 95-573 provided for holding court at Johnstown. 1970 - Subsec. (a). Pub. L. 91-272 provided for holding court at Allentown and Reading. ------DocID 36220 Document 82 of 1452------ -CITE- 28 USC Sec. 119 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 119. Puerto Rico -STATUTE- Puerto Rico constitutes one judicial district. Court shall be held at Mayaguez, Ponce, and San Juan. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 889.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 863 and 864 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 12, 1900, ch. 191, Sec. 34, 35, 31 Stat. 84, 85; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 2, 1917, ch. 145, Sec. 41, 42, 39 Stat. 965, 966; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; Feb. 13, 1925, ch. 229, Sec. 1, 13, 43 Stat. 936, 942; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; May 17, 1932, ch. 190, 47 Stat. 158; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118). Section consolidates parts of sections 863 and 864 of title 48, U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation. The provision of sections 863 of title 48, U.S.C., 1940 ed., for appointment of a district judge is incorporated in section 133 of this title; for tenure, in section 134 of this title, and for salary was omitted as covered by section 135 of this title. The provisions of section 863 of title 48, U.S.C., 1940 ed., for appointment and tenure of United States attorneys and marshals are incorporated in sections 501 (now 541), 504 (now 541 to 544), and 541 (see 561) of this title. The provisions of section 863 of title 48, U.S.C., 1940 ed., for appointment of United States Commissioners and other court officers are incorporated in sections 631 and 751 of this title. The provision of section 864 of title 48, U.S.C., 1940 ed., as to the holding of regular and special terms of court was omitted as covered by sections 138 and 141 of this title. The provision of section 864 of title 48, U.S.C., 1940 ed., that the district court shall be attached to the first circuit is incorporated in section 41 of this title. The provision of section 864 of title 48, U.S.C., 1940 ed., for appeals to the circuit court of appeals is incorporated in section 1295 of this title. Other provisions of sections 863 and 864 of title 48, U.S.C., 1940 ed., are retained in title 48. ------DocID 36221 Document 83 of 1452------ -CITE- 28 USC Sec. 120 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 120. Rhode Island -STATUTE- Rhode Island constitutes one judicial district. Court shall be held at Providence. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 889.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 185 (Mar. 3, 1911, ch. 231, Sec. 104, 36 Stat. 1123; Feb. 1, 1912, ch. 27, 37 Stat. 59). Changes in phraseology were made. ------DocID 36222 Document 84 of 1452------ -CITE- 28 USC Sec. 121 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 121. South Carolina -STATUTE- South Carolina constitutes one judicial district comprising eleven divisions. (1) The Charleston Division comprises the counties of Berkeley, Charleston, Clarendon, Colleton, Dorchester, and Georgetown. Court for the Charleston Division shall be held at Charleston. (2) The Columbia Division comprises the counties of Kershaw, Lee, Lexington, Richland, and Sumter. Court for the Columbia Division shall be held at Columbia. (3) The Florence Division comprises the counties of Chesterfield, Darlington, Dillon, Florence, Horry, Marion, Marlboro, and Williamsburg. Court for the Florence Division shall be held at Florence. (4) The Aiken Division comprises the counties of Aiken, Allendale, Barnwell, and Hampton. Court for the Aiken Division shall be held at Aiken. (5) The Orangeburg Division comprises the counties of Bamberg, Calhoun, and Orangeburg. Court for the Orangeburg Division shall be held at Orangeburg. (6) The Greenville Division comprises the counties of Greenville and Laurens. Court for the Greenville Division shall be held at Greenville. (7) The Rock Hill Division comprises the counties of Chester, Fairfield, Lancaster, and York. Court for the Rock Hill Division shall be held at Rock Hill. (8) The Greenwood Division comprises the counties of Abbeville, Edgefield, Greenwood, McCormick, Newberry, and Saluda. Court for the Greenwood Division shall be held at Greenwood. (9) The Anderson Division comprises the counties of Anderson, Oconee, and Pickens. Court for the Anderson Division shall be held at Anderson. (10) The Spartanburg Division comprises the counties of Cherokee, Spartanburg, and Union. Court for the Spartanburg Division shall be held at Spartanburg. (11) The Beaufort Division comprises the counties of Beaufort and Jasper. Court for the Beaufort Division shall be held at Beaufort. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 889; Oct. 7, 1965, Pub. L. 89-242, Sec. 1(a), 79 Stat. 951; Nov. 14, 1986, Pub. L. 99-657, Sec. 2, 100 Stat. 3670.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 186 (Mar. 3, 1911, ch. 231, Sec. 105, 36 Stat. 1123; Feb. 5, 1912, ch. 28, 37 Stat. 60; Mar. 3, 1915, ch. 100, Sec. 5, 38 Stat. 961; Sept. 1, 1916, ch. 434, 39 Stat. 721; Mar. 4, 1923, ch. 261, 42 Stat. 1486; Jan. 30, 1925, ch. 118, 43 Stat. 800; June 26, 1926, ch. 696, Sec. 1-3, 44 Stat. 773; June 20, 1936, ch. 637, Sec. 1-3, 49 Stat. 1558, 1559; June 12, 1940, ch. 335, 54 Stat. 344; June 28, 1943, ch. 173, title II, Sec. 204, 57 Stat. 244; Dec. 13, 1944, ch. 556, 58 Stat. 801). The last sentence of section 186 of title 28, U.S.C., 1940 ed., relating to trial of criminal cases in the division in which the offense was committed, was omitted as fully covered by Rules 18-22 of the Federal Rules of Criminal Procedure. A provision relating to the places of the clerks' offices was omitted as covered by section 751 of this title. The provision respecting court accommodations at Orangeburg was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1986 - Pub. L. 99-657, Sec. 2(1), substituted 'eleven divisions' for 'ten divisions' in introductory text. Par. (1). Pub. L. 99-657, Sec. 2(2), struck out 'Beaufort,' after 'counties of' and substituted 'and Georgetown' for 'Georgetown, and Jasper'. Par. (11). Pub. L. 99-657, Sec. 2(3), added par. (11). 1965 - Pub. L. 89-242 consolidated into a single district the 10 divisions of the state which had formerly been divided into an Eastern and a Western District. EFFECTIVE DATE OF 1986 AMENDMENT Section 4 of Pub. L. 99-657 provided that: '(a) Effective Date. - (1) The amendments made by sections 2 and 3 (amending this section and section 90 of this title) take effect 90 days after the date of the enactment of this Act (Nov. 14, 1986). '(2) The amendment made by section 4 (enacting this note) takes effect on the date of the enactment of this Act. '(b) Pending Actions. - The amendments made by this Act (amending this section and section 90 of this title) shall not affect any action commenced before the effective date of such amendments and pending on such date. '(c) Juries. - The amendments made by this Act (amending this section and section 90 of this title) shall not affect the composition, or preclude the service, of any grand or petit jury summoned, empaneled, or actually serving on the effective date of such amendments.' EFFECTIVE DATE OF 1965 AMENDMENT Section 6 of Pub. L. 89-242 provided that: 'The provisions of this Act (amending this section and section 133 of this title and enacting provisions set out as notes under this section) shall become effective on the first day of the month following the date of enactment of this Act (Oct. 7, 1965).' CONSOLIDATION OF SOUTH CAROLINA INTO A SINGLE JUDICIAL DISTRICT Sections 2 to 5 of Pub. L. 89-242 provided for the consolidation, in compliance with section 132 of this title, of the Eastern and Western Districts of South Carolina into a single district with continuing jurisdiction over civil cases and criminal acts pending or committed prior to Nov. 1, 1965, and appropriate provisions for the appointment or transfer of United States attorneys, marshalls, and other court personnel, then serving, from the two districts to the consolidated district. ------DocID 36223 Document 85 of 1452------ -CITE- 28 USC Sec. 122 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 122. South Dakota -STATUTE- South Dakota constitutes one judicial district comprising four divisions. (1) The Northern Division comprises the counties of Brown, Campbell, Clark, Codington, Corson, Day, Deuel, Edmonds, Grant, Hamlin, McPherson, Marshall, Roberts, Spink, and Walworth. Court for the Northern Division shall be held at Aberdeen. (2) The Southern Division comprises the counties of Aurora, Beadle, Bon Homme, Brookings, Brule, Charles Mix, Clay, Davison, Douglas, Hanson, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sanborn, Turner, Union, and Yankton. Court for the Southern Division shall be held at Sioux Falls. (3) The central division comprises the counties of Buffalo, Dewey, Faulk, Gregory, Haakon, Hand, Hughes, Hyde, Jerauld, Jones, Lyman, Mellette, Potter, Stanley, Sully, Todd, Tripp, and Ziebach. Court for the Central Division shall be held at Pierre. (4) The Western Division comprises the counties of Bennett, Butte, Custer, Fall River, Harding, Jackson, Lawrence, Meade, Pennington, Perkins, and Shannon. Court for the Western Division shall be held at Deadwood and Rapid City. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 889; Oct. 10, 1966, Pub. L. 89-638, 80 Stat. 883; Aug. 10, 1972, Pub. L. 92-376, 86 Stat. 529; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 324(b), 104 Stat. 5120.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 187 (Mar. 3, 1911, ch. 231, Sec. 106, 36 Stat. 1123; June 11, 1932, ch. 242, 47 Stat. 300). A provision relating to maintenance of offices by the clerk was omitted as covered by sections 452 and 751 of this title. Provisions that the Northern Division included Lake Traverse Indian Reservation and that part of Standing Rock Indian Reservation lying in South Dakota; that the Southern Division included the Yorkton Indian Reservation; that the Central Division included the Cheyenne River, Lower Brule, and Crow Creek Indian Reservations; and that the Western Division included Rosebud and Pine Ridge Indian Reservations, were all omitted as surplusage. (See Reviser's Note under section 114 of this title.) Changes in arrangement and phraseology were made. AMENDMENTS 1990 - Par. (3). Pub. L. 101-650, Sec. 324(b)(1), struck out 'Jackson,' after 'Hyde,'. Par. (4). Pub. L. 101-650, Sec. 324(b)(2), inserted 'Jackson,' after 'Harding,' and substituted 'and Shannon' for 'Shannon, Washabaugh, and Washington'. 1972 - Par. (2). Pub. L. 92-376, Sec. 1(a), removed Gregory County from the Southern Division. Par. (3). Pub. L. 92-376, Sec. 1(b), added Gregory, Mellette, Todd, and Tripp counties to the Central Division and removed Armstrong county from the Central Division. Par. (4). Pub. L. 92-376, Sec. 1(c), removed Mellette, Todd, and Tripp counties from the Western Division. 1966 - Pub. L. 89-638 provided for holding court at Rapid City. ------DocID 36224 Document 86 of 1452------ -CITE- 28 USC Sec. 123 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 123. Tennessee -STATUTE- Tennessee is divided into three judicial districts to be known as the Eastern, Middle, and Western Districts of Tennessee. EASTERN DISTRICT (a) The Eastern District comprises four divisions. (1) The Northern Division comprises the counties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Scott, Sevier, and Union. Court for the Northern Division shall be held at Knoxville. (2) The Northeastern Division comprises the counties of Carter, Cocke, Greene, Hamblen, Hancock, Hawkins, Johnson, Sullivan, Unicoi, and Washington. Court for the Northeastern Division shall be held at Greenville. (3) The Southern Division comprises the counties of Bledsoe, Bradley, Hamilton, McMinn, Marion, Meigs, Polk, Rhea, and Sequatchie. Court for the Southern Division shall be held at Chattanooga. (4) The Winchester Division comprises the counties of Bedford, Coffee, Franklin, Grundy, Lincoln, Moore, Van Buren, and Warren. Court for the Winchester Division shall be held at Winchester. MIDDLE DISTRICT (b) The Middle District comprises three divisions. (1) The Nashville Division comprises the counties of Cannon, Cheatham, Davidson, Dickson, Houston, Humphreys, Montgomery, Robertson, Rutherford, Stewart, Sumner, Trousdale, Williamson, and Wilson. Court for the Nashville Division shall be held at Nashville. (2) The Northeastern Division comprises the counties of Clay, Cumberland, De Kalb, Fentress, Jackson, Macon, Overton, Pickett, Putnam, Smith, and White. Court for the Northeastern Division shall be held at Cookeville. (3) The Columbia Division comprises the counties of Giles, Hickman, Lawrence, Lewis, Marshall, Maury, and Wayne. Court for the Columbia Division shall be held at Columbia. WESTERN DISTRICT (c) The Western District comprises two divisions. (1) The Eastern Division comprises the counties of Benton, Carroll, Chester, Crockett, Decatur, Gibson, Hardeman, Hardin, Haywood, Henderson, Henry, Lake, McNairy, Madison, Obion, Perry, and Weakley. The Eastern Division also includes the waters of Tennessee River to low-water mark on the eastern shore wherever such river forms the boundary between the western and middle districts from the north line of Alabama north to the point in Henry County, Tennessee, where the south boundary of Kentucky strikes the east bank of the river. Court for the Eastern Division shall be held at Jackson. (2) The Western Division comprises the counties of Dyer, Fayette, Lauderdale, Shelby, and Tipton. Court for the Western Division shall be held at Memphis and Dyersburg. The district judge for the Eastern District in office on November 27, 1940, shall hold court in the Northern and Northeastern Divisions. The other judge of that district shall hold the terms of court in the Southern and Winchester Divisions. Each may appoint and remove all officers and employees of the court whose official headquarters are located in the divisions within which he holds court and whose appointments are vested by law in a district judge or chief judge of a district. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 890; May 19, 1961, Pub. L. 87-36, Sec. 3(e), 75 Stat. 83; July 11, 1961, Pub. L. 87-86, 75 Stat. 203; June 2, 1970, Pub. L. 91-272, Sec. 12, 84 Stat. 298.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 188 (Mar. 3, 1911, ch. 231, Sec. 107, 36 Stat. 1124; Aug. 20, 1912, ch. 306, 37 Stat. 314; June 22, 1916, ch. 161, 39 Stat. 232; Mar. 4, 1923, ch. 289, 42 Stat. 1520; May 17, 1926, ch. 310, 44 Stat. 561; Mar. 1, 1927, ch. 244, 44 Stat. 1262; May 13, 1932, ch. 179, 47 Stat. 153; June 16, 1933, ch. 94, 48 Stat. 253; July 30, 1937, ch. 539, 50 Stat. 546; June 12, 1940, ch. 341, 54 Stat. 348; Nov. 27, 1940, ch. 920, Sec. 1, 54 Stat. 1216; Dec. 3, 1943, ch. 332, 57 Stat. 595). Words 'The said judge shall possess the same powers, perform the same duties, and receive the same compensation as other district judges,' and words, 'The President is authorized to appoint, by and with the consent of the Senate, a successor or successors to said judge as vacancies may occur. Nothing herein contained shall be construed to prevent said judge or his successors from becoming the senior district judge by succession, or from exercising the powers and rights of senior district judge of said district. The judge designated herein to hold regular and special terms of court at Winchester and Chattanooga shall make all necessary orders for the disposition of business and assignment of cases for trial in said divisions,' were deleted as superfluous, in view of sections 132 and 141 of this title. Words 'The district attorneys and marshals for the eastern, middle, and western districts of Tennessee in office immediately prior to November 27, 1940, shall be during the remainder of their present terms of office the district attorneys and marshals for such districts as constituted by this section. The district judge for the middle district of Tennessee shall be the district judge for the middle district of Tennessee as constituted by this section and shall hold regular and special terms of court at Nashville, Columbia, and Cookeville. The district judge for the western district of Tennessee shall hold regular and special terms of court at Memphis and Jackson,' at the end of the section, were deleted as temporary, and as superfluous, in view of the remainder of the section, prescribing the places for holding terms of court. A provision for furnishing rooms and accommodations by the local authorities for holding court at Columbia 'but only until such time as such accommodations shall be provided upon the recommendation of the Director of the Administrative Office of the United States Courts in a public building or other quarters provided by the Federal Government for such purpose,' was omitted on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available. An identical provision with reference to Winchester is retained in part, but the words quoted above were omitted as unnecessary since, when such buildings become available, the Director will, under section 604 of this title, provide court accommodations therein. The last paragraph of the revised section consolidates the provisions of paragraphs (e) and (f) of section 188 of title 28, U.S.C., 1940 ed., relating to the terms of court to be held in the two divisions of the eastern district by the two judges, and their respective powers of appointment of court officers and employees. Provisions relating to appointment and residence of deputy marshals and maintenance of clerk's office, were omitted as covered by sections 542 (see 561) and 751 of this title. The clerk of court in a letter dated February 7, 1945, calls attention to a rule of court providing for hearing of all bankruptcy matters arising in Haywood County at Jackson in the eastern division of the western district. The provision respecting court accommodations at Winchester was omitted as covered by section 142 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Subsec. (c)(1). Pub. L. 91-272, Sec. 12(a), added Haywood County to the enumeration of counties comprising the Eastern Division of the Western District. Subsec. (c)(2). Pub. L. 91-272, Sec. 12(b), struck out Haywood County from the enumeration of counties comprising the Western Division of the Western District. 1961 - Subsec. (c)(2). Pub. L. 87-36, as amended by Pub. L. 87-86, provided for holding court at Dyersburg. ------DocID 36225 Document 87 of 1452------ -CITE- 28 USC Sec. 124 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 124. Texas -STATUTE- Texas is divided into four judicial districts to be known as the Northern, Southern, Eastern, and Western Districts of Texas. NORTHERN DISTRICT (a) The Northern District comprises seven divisions. (1) The Dallas Division comprises the counties of Dallas, Ellis, Hunt, Johnson, Kaufman, Navarro, and Rockwall. Court for the Dallas Division shall be held at Dallas. (2) The Fort Worth Division comprises the counties of Comanche, Erath, Hood, Jack, Palo Pinto, Parker, Tarrant, and Wise. Court for the Fort Worth Division shall be held at Fort Worth. (3) The Abilene Division comprises the counties of Callahan, Eastland, Fisher, Haskell, Howard, Jones, Mitchell, Nolan, Shackleford, Stephens, Stonewall, Taylor, and Throckmorton. Court for the Abilene Division shall be held at Abilene. (4) The San Angelo Division comprises the counties of Brown, Coke, Coleman, Concho, Crockett, Glasscock, Irion, Menard, Mills, Reagan, Runnels, Schleicher, Sterling, Sutton, and Tom Green. Court for the San Angelo Division shall be held at San Angelo. (5) The Amarillo Division comprises the counties of Armstrong, Brisco, Carson, Castro, Childress, Collingsworth, Dallam, Deaf Smith, Donley, Gray, Hall, Hansford, Hartley, Hemphill, Hutchinson, Lipscomb, Moore, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, and Wheeler. Court for the Amarillo Division shall be held at Amarillo. (6) The Wichita Falls Division comprises the counties of Archer, Baylor, Clay, Cottle, Foard, Hardeman, King, Knox, Montague, Wichita, Wilbarger, and Young. Court for the Wichita Falls Division shall be held at Wichita Falls. (7) The Lubbock Division comprises the counties of Bailey, Borden, Cochran, Crosby, Dawson, Dickens, Floyd, Gaines, Garza, Hale, Hockley, Kent, Lamb, Lubbock, Lynn, Motley, Scurry, Terry, and Yoakum. Court for the Lubbock Division shall be held at Lubbock. SOUTHERN DISTRICT (b) The Southern District comprises seven divisions. (1) The Galveston Division comprises the counties of Brazoria, Chambers, Galveston, and Matagorda. Court for the Galveston Division shall be held at Galveston. (2) The Houston Division comprises the counties of Austin, Brazos, Colorado, Fayette, Fort Bend, Grimes, Harris, Madison, Montgomery, San Jacinto, Walker, Waller, and Wharton. Court for the Houston Division shall be held at Houston. (3) The Laredo Division comprises the counties of Jim Hogg, La Salle, McMullen, Webb, and Zapata. Court for the Laredo Division shall be held at Laredo. (4) The Brownsville Division comprises the counties of Cameron and Willacy. Court for the Brownsville Division shall be held at Brownsville. (5) The Victoria Division comprises the counties of Calhoun, DeWitt, Goliad, Jackson, Lavaca, Refugio, and Victoria. Court for the Victoria Division shall be held at Victoria. (6) The Corpus Christi Division comprises the counties of Aransas, Bee, Brooks, Duval, Jim Wells, Kenedy, Kleberg, Live Oak, Nueces, and San Patricio. Court for the Corpus Christi Division shall be held at Corpus Christi. (7) The McAllen Division comprises the counties of Hidalgo and Starr. Court for the McAllen Division shall be held at McAllen. EASTERN DISTRICT (c) The Eastern District comprises seven divisions. (1) The Tyler Division comprises the counties of Anderson, Cherokee, Gregg, Henderson, Panola, Rains, Rusk, Smith, Van Zandt, and Wood. Court for Tyler Division will be held at Tyler. (2) The Beaumont Division comprises the counties of Hardin, Jasper, Jefferson, Liberty, Newton, and Orange. Court for the Beaumont Division is to be held at Beaumont. (3) The Sherman Division comprises the counties of Collin, Cook, Denton, and Grayson. Court for the Sherman Division shall be held at Sherman. (4) The Paris Division comprises the counties of Delta, Fannin, Hopkins, Lamar, and Red River. Court for the Paris Division shall be held at Paris. (5) The Marshall Division comprises the counties of Camp, Cass, Harrison, Marion, Morris, and Upshur. Court for the Marshall Division shall be held at Marshall. (6) The Texarkana Division comprises the counties of Bowie, Franklin, and Titus. Court for the Texarkana Division shall be held at Texarkana. (7) The Lufkin Division comprises the counties of Angelina, Houston, Nacogdoches, Polk, Sabine, San Augustine, Shelby, Trinity, and Tyler. Court for the Lufkin Division shall be held at Lufkin. WESTERN DISTRICT (d) The Western District comprises seven divisions. (1) The Austin Division comprises the counties of Bastrop, Blanco, Burleson, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, McCulloch, San Saba, Travis, Washington, and Williamson. Court for the Austin Division shall be held at Austin. (2) The Waco Division comprises the counties of Bell, Bosque, Coryell, Falls, Freestone, Hamilton, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell. Court for the Waco Division shall be held at Waco. (3) The El Paso Division comprises the county of El Paso. Court for the El Paso Division shall be held at El Paso. (4) The San Antonio Division comprises the counties of Atascosa, Bandera, Bexar, Comal, Dimmit, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, Real, and Wilson. Court for the San Antonio Division shall be held at San Antonio. (5) The Del Rio Division comprises the counties of Edwards, Kinney, Maverick, Terrell, Uvalde, Val Verde, and Zavalla. Court for the Del Rio Division shall be held at Del Rio. (6) The Pecos Division comprises the counties of Brewster, Culberson, Jeff Davis, Hudspeth, Loving, Pecos, Presidio, Reeves, Ward and Winkler. Court for the Pecos Division shall be held at Pecos. (7) The Midland-Odessa, Division comprises the counties of Andrews, Crane, Ector, Martin, Midland, and Upton. Court for the Midland-Odessa Division shall be held at Midland. Court may be held, in the discretion of the court, in Odessa, when courtroom facilities are made available at no expense to the Government. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 891; Feb. 10, 1954, ch. 6, Sec. 2(b)(9)(a), (b), 68 Stat. 11; Sept. 4, 1957, Pub. L. 85-298, Sec. 1, 2, 71 Stat. 618; Oct. 4, 1961, Pub. L. 87-352, 75 Stat. 772; Mar. 11, 1964, Pub. L. 88-282, 78 Stat. 163; Aug. 30, 1964, Pub. L. 88-512, 78 Stat. 695; Dec. 18, 1967, Pub. L. 90-216, 81 Stat. 661; Oct. 15, 1980, Pub. L. 96-462, Sec. 6, 94 Stat. 2054; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 407(a), 98 Stat. 3362.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 189 (Mar. 3, 1911, ch. 231, Sec. 108, 36 Stat. 1125; May 29, 1912, ch. 144, 37 Stat. 120; Feb. 5, 1913, ch. 28, Sec. 1, 2, 37 Stat. 663; Feb. 26, 1917, ch. 122, 39 Stat. 939; Mar. 1, 1919, ch. 87, 40 Stat. 1270; Mar. 2, 1923, ch. 172, Sec. 1, 2, 42 Stat. 1373; Apr. 3, 1924, ch. 82, 43 Stat. 64; May 29, 1924, ch. 211, Sec. 1, 2, 43 Stat. 244; May 26, 1928, ch. 752, Sec. 1, 45 Stat. 747; June 6, 1930, ch. 408, 46 Stat. 521; June 24, 1930, ch. 596, 46 Stat. 807; Feb. 20, 1932, ch. 51, 47 Stat. 52; July 25, 1939, ch. 356, Sec. 1, 53 Stat. 1082; June 6, 1940, ch. 252, 54 Stat. 241.) Words 'and all prosecutions against persons for offenses committed in the county of Reagan shall be tried in the court at San Angelo: Provided, That no civil or criminal cause begun and pending prior to May 29, 1924, shall be in any way affected,' words 'and all prosecutions against persons for offenses committed in the county of Pecos shall be tried in the district court at El Paso, or Pecos City: Provided, That no civil or criminal cause begun and pending prior to March 2, 1923, shall be in any way affected,' and words 'Provided, That no civil or criminal cause commenced prior to June 24, 1930, shall be in any way affected,' were all deleted as superseded by Federal Rules of Criminal Procedure, Rules 18-22, and as obsolete, in view of the lapse of time after the dates included in such provisions. Provisions for furnishing rooms and accommodations at Pecos and Wichita Falls were omitted as obsolete, on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available at such places. Provisions relating to the maintenance of offices at various cities by the clerks were omitted as covered by sections 452 and 751 of this title. Provisions that process against residents of Pecos County shall issue from and be returnable to the court at Pecos City and against residents of Reagan County at San Angelo, were omitted since such matter can be regulated more appropriately by court rule or order. (See Rule 4 of Federal Rules of Civil Procedure.) The provisions requiring notice to be given for time of holding court in Pecos division and at Corpus Christi, were omitted as covered by section 141 of this title. Five counties included in this section were created since the enactment of section 189 of title 28. These were Kleberg County and Kenedy County of the Corpus Christi division of the southern district, Culberson County and Hudspeth County of the El Paso division of the western district, and Real County of the San Antonio division of the western district. Pecos County is included in the Pecos division and omitted from the El Paso division of the western district to conform to the practice of the court. Changes in arrangement and phraseology were made. AMENDMENTS 1984 - Subsec. (b). Pub. L. 98-620, Sec. 407(a)(1), substituted 'seven' for 'six' in provisions preceding par. (1). Subsec. (b)(4). Pub. L. 98-620, Sec. 407(a)(2), struck out references to Hidalgo and Starr counties from the counties comprising the Brownsville Division of the Southern District. Subsec. (b)(7). Pub. L. 98-620, Sec. 407(a)(3), added par. (7). 1980 - Subsec. (b)(2). Pub. L. 96-462, Sec. 6(a), struck out references to Polk and Trinity counties in list of counties comprising Houston Division of Southern District. Subsec. (c). Pub. L. 96-462, Sec. 6(b), in provisions preceding par. (1) substituted 'seven' for 'six'; in par. (1) struck out references to Angelina, Houston, Nacogdoches, and Shelby counties in list of counties comprising Tyler Division of Eastern District; in par. (2) struck out references to Sabine, San Augustine, and Tyler counties in list of counties comprising Beaumont Division of Eastern District; and added par. (7). 1967 - Subsec. (d). Pub. L. 90-216, Sec. 1(4), enlarged from six to seven the number of divisions comprising Western District. Subsec. (d)(3). Pub. L. 90-216, Sec. 1(1), transferred counties of Brewster, Culberson, Hudspeth, and Presidio from El Paso Division to Pecos Division. Subsec. (d)(6). Pub. L. 90-216, Sec. 1(2), added counties of Brewster, Culberson, Hudspeth, and Presidio to Pecos Division from El Paso Division, and transferred counties of Andrews, Crane, Ector, Martin, Midland, and Upton from Pecos Division to Midland-Odessa Division. Subsec. (d)(7). Pub. L. 90-216, Sec. 1(3), added par. (7), which created Midland-Odessa Division, comprised of counties of Andrews, Crane, Ector, Martin, Midland, and Upton, transferred from Pecos Division. 1964 - Subsec. (b)(1). Pub. L. 88-282, Sec. 1(a), struck out Austin, Fort Bend, and Wharton counties from list comprising Galveston Division. Subsec. (b)(2). Pub. L. 88-282, Sec. 1(b), added Austin, Fort Bend, and Wharton counties to list comprising Houston Division. Subsec. (c)(4). Pub. L. 88-512, Sec. 1(a), added county of Hopkins to Paris Division. Subsec. (c)(5). Pub. L. 88-512, Sec. 1(b), struck out county of Hopkins from Marshall Division. 1961 - Subsec. (c)(5). Pub. L. 87-352 changed the name of Division from Jefferson to Marshall, and provided for holding court at Marshall. 1957 - Subsec. (c)(1). Pub. L. 85-298, Sec. 2, inserted Shelby County in list of counties comprising Tyler Division. Subsec. (c)(2). Pub. L. 85-298, Sec. 1, struck out Shelby County from list of counties comprising Beaumont Division. 1954 - Subsec. (d)(4). Act Feb. 10, 1954, Sec. 2(b)(9)(a), struck out Edwards County from list of counties comprising San Antonio Division of Western District. Subsec. (d)(5). Act Feb. 10, 1954, Sec. 2(b)(9)(b), inserted Edwards County in list of counties comprising Del Rio Division of Western District. EFFECTIVE DATE OF 1984 AMENDMENT Section 407(b) of Pub. L. 98-620 provided that: 'The amendments made by subsection (a) of this section (amending this section) shall apply to any action commenced in the United States District Court for the Southern District of Texas on or after the effective date of this subtitle (Jan. 1, 1985), and shall not affect any action pending in such court on such effective date.' Amendment by Pub. L. 98-620 effective Jan. 1, 1985, and not to affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on that date, see section 411 of Pub. L. 98-620, set out as a note under section 85 of this title. EFFECTIVE DATE OF 1980 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 96-462 effective Oct. 1, 1981, but not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on Oct. 1, 1981, see section 7 of Pub. L. 96-462, set out as a note under section 84 of this title. ------DocID 36226 Document 88 of 1452------ -CITE- 28 USC Sec. 125 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 125. Utah -STATUTE- Utah constitutes one judicial district comprising two divisions. (1) The Northern Division comprises the counties of Box Elder, Cache, Davis, Morgan, Rich, and Weber. Court for the Northern Division shall be held at Ogden. (2) The Central Division comprises the counties of Beaver, Carbon, Daggett, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Piute, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, and Wayne. Court for the Central Division shall be held at Salt Lake City. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 893.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 190 (Mar. 3, 1911, ch. 231, Sec. 109, 36 Stat. 1127). A provision relating to the maintenance of offices by the clerk was omitted as covered by section 751 of this title. Changes in arrangement and phraseology were made. ------DocID 36227 Document 89 of 1452------ -CITE- 28 USC Sec. 126 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 126. Vermont -STATUTE- Vermont constitutes one judicial district. Court shall be held at Bennington, Brattleboro, Burlington, Montpelier, Rutland, Saint Johnsbury, and Windsor. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 893; May 28, 1964, Pub. L. 88-312, 78 Stat. 201; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 410, 98 Stat. 3362.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 191 (Mar. 3, 1911, ch. 231, Sec. 110, 36 Stat. 1127; Feb. 1, 1912, ch. 26, 37 Stat. 58; Feb. 28, 1929, ch. 360, 45 Stat. 1345). Provision that 'any stated term may, when adjourned, be adjourned to meet at any of the other places at Montpelier or Newport,' was omitted as unnecessary and inconsistent with sections 140 and 141 of this title. Changes in arrangement and phraseology were made. AMENDMENTS 1984 - Pub. L. 98-620 provided for holding court at Bennington. 1964 - Pub. L. 88-312 provided for holding court at Montpelier and Saint Johnsbury. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 effective Jan. 1, 1985, and not to affect the composition, or preclude the service, of any grand or petit jury summoned, impaneled, or actually serving on that date, see section 411 of Pub. L. 98-620, set out as a note under section 85 of this title. ------DocID 36228 Document 90 of 1452------ -CITE- 28 USC Sec. 127 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 127. Virginia -STATUTE- Virginia is divided into two judicial districts, to be known as the Eastern and Western districts of Virginia. EASTERN DISTRICT (a) The Eastern District comprises the counties of Accomac, Amelia, Arlington, Brunswick, Caroline, Charles City, Chesterfield, Culpeper, Dinwiddie, Elizabeth City, Essex, Fairfax, Fauquier, Gloucester, Goochland, Greensville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenburg, Mathews, Mecklenburg, Middlesex, Nansemond, New Kent, Norfolk, Northampton, Northumberland, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Princess Anne, Richmond, Southampton, Spotsylvania, Stafford, Surry, Sussex Warwick, Westmoreland, and York. Court for the Eastern District shall be held at Alexandria, Newport News, Norfolk, and Richmond. WESTERN DISTRICT (b) The Western District comprises the counties of Albemarle, Alleghany, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, Buchanan, Buckingham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumberland, Dickenson, Floyd, Fluvanna, Franklin, Frederick, Giles, Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Page, Patrick, Pittsylvania, Pulaski, Rappahannock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington, Wise, and Wythe. Court for the Western District shall be held at Abingdon, Big Stone Gap, Charlottesville, Danville, Harrisonburg, Lynchburg, and Roanoke. (c) Cities and incorporated towns are included in that district in which are included the counties within the exterior boundaries of which such cities and incorporated towns are geographically located or out of the territory of which they have been incorporated. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 893; July 5, 1968, Pub. L. 90-383, 82 Stat. 292.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 192 and 192a, and section 403c-2 of title 16, U.S.C., 1940 ed., Conservation (Mar. 3, 1911, ch. 231, Sec. 111, 36 Stat. 1127; June 13, 1918, ch. 100, 40 Stat. 605; Apr. 30, 1924, ch. 144, 43 Stat. 114; Feb. 21, 1925, ch. 290, 43 Stat. 962; Jan. 20, 1930, ch. 20, Sec. 1, 46 Stat. 56; Aug. 19, 1937, ch. 703, Sec. 2, 50 Stat. 701; June 13, 1938, ch. 350, 52 Stat. 674; Oct. 31, 1945, ch. 443, Sec. 202, 59 Stat. 554). A provision of section 192 of title 28 relating to the maintenance of offices by the clerk of the western district was omitted as covered by sections 452 and 751 of this title. Changes in arrangement and phraseology were made. SENATE REVISION AMENDMENT By Senate amendment, 'Newport News' was inserted after 'Alexandria' in second paragraph of subsection (a) of this section. See 80th Congress Senate Report No. 1559. AMENDMENTS 1968 - Subsec. (c). Pub. L. 90-383 added subsec. (c). ------DocID 36229 Document 91 of 1452------ -CITE- 28 USC Sec. 128 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 128. Washington -STATUTE- Washington is divided into two judicial districts to be known as the Eastern and Western Districts of Washington. EASTERN DISTRICT (a) The Eastern District comprises the counties of Adams, Asotin, Benton, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Walla Walla, Whitman, and Yakima. Court for the Eastern District shall be held at Spokane, Yakima, Walla Walla, and Richland. WESTERN DISTRICT (b) The Western District comprises the counties of Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific, Pierce, San Juan, Skagit, Skamania, Snohomish, Thurston, Wahkiakum, and Whatcom. Court for the Western District shall be held at Bellingham, Seattle, and Tacoma. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 894; Sept. 25, 1962, Pub. L. 87-699, 76 Stat. 598; June 2, 1970, Pub. L. 91-272, Sec. 4, 84 Stat. 297.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 193 (Mar. 3, 1911, ch. 231, Sec. 112, 36 Stat. 1128; June 15, 1937, ch. 351, 50 Stat. 260; Dec. 28, 1945, ch. 596, 59 Stat. 661). Words 'with the waters thereof,' after the list of counties in each division, were omitted as unnecessary, and in view of the absence of such words in most similar sections relating to other States. A provision relating to the maintenance of offices by the clerks were omitted as covered by section 751 of this title. Provisions that the counties in both divisions of the eastern district included all Indian reservations in such counties and that the counties in both divisions of the western district included all Indian reservations in such counties were omitted as surplusage. (See Reviser's Note under section 114 of this title.) Pend Oreille County of the northern division of the eastern district and Grays Harbor of the southern division of the western district were created since the enactment of the Judicial Code. Changes in arrangement and phraseology were made. AMENDMENTS 1970 - Subsec. (a). Pub. L. 91-272, Sec. 4(a), struck out provisions which had divided Eastern District into a Northern Division and a Southern Division. Subsec. (b). Pub. L. 91-272, Sec. 4(b), struck out provisions which had divided Western District into a Northern Division and a Southern Division. 1962 - Subsec. (a)(2). Pub. L. 87-699 provided for holding court at Richland. ------DocID 36230 Document 92 of 1452------ -CITE- 28 USC Sec. 129 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 129. West Virginia -STATUTE- West Virginia is divided into two judicial districts to be known as the Northern and Southern Districts of West Virginia. NORTHERN DISTRICT (a) The Northern District comprises the counties of Barbour, Berkeley, Braxton, Brooke, Calhoun, Doddridge, Gilmer, Grant, Hampshire, Hancock, Hardy, Harrison, Jefferson, Lewis, Marion, Marshall, Mineral, Monongalia, Morgan, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Randolph, Ritchie, Taylor, Tucker, Tyler, Upshur, Webster, and Wetzel. Court for the Northern District shall be held at Clarksburg, Elkins, Fairmont, Martinsburg, and Wheeling. SOUTHERN DISTRICT (b) The Southern District comprises the counties of Boone, Cabell, Clay, Fayette, Greenbrier, Jackson, Kanawha, Lincoln, Logan, McDowell, Mason, Mercer, Mingo, Monroe, Nicholas, Putnam, Raleigh, Roane, Summers, Wayne, Wirt, Wood, and Wyoming. Court for the Southern District shall be held at Beckley, Bluefield, Charleston, Huntington, Lewisburg, and Parkersburg. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 894; Jan. 14, 1983, Pub. L. 97-471, Sec. 1, 96 Stat. 2601.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 194 (Mar. 3, 1911, ch. 231, Sec. 113, 36 Stat. 1129; Mar. 23, 1912, ch. 63, 37 Stat. 76; Aug. 22, 1914, ch. 265, 38 Stat. 702; Feb. 27, 1922, ch. 83, 42 Stat. 398; June 22, 1936, ch. 695, 49 Stat. 1805; Aug. 23, 1937, ch. 737, 50 Stat. 744; June 29, 1938, ch. 817, 52 Stat. 1245). Words 'with the waters thereof,' after the list of counties in each district, were omitted as unnecessary, and in view of the absence of such words in similar sections relating to other States. Provisions relating to special terms of court were omitted as covered by section 141 of this title. A provision that the term at Fairmont be held 'when suitable rooms and accommodations for holding terms of the court shall be furnished at Fairmont free of cost to the United States or until, subject to the recommendation of the Attorney General of the United States with respect to providing such rooms and accommodations for holding court at Fairmont, a Federal building containing such suitable rooms and accommodations for holding court shall be erected at such place,' was omitted as obsolete on advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available. Provisions respecting court accommodations at Beckley and Lewisburg were omitted as covered by section 142 of this title. Changes were made in arrangement and phraseology. AMENDMENTS 1983 - Subsec. (a). Pub. L. 97-471, Sec. 1(1), struck out references to Parkersburg, Wirt, and Wood counties and inserted references to Braxton, Pocahontas, and Webster counties. Subsec. (b). Pub. L. 97-471, Sec. 1(2), struck out references to Braxton, Pocahontas, and Webster counties and inserted references to Parkersburg, Wirt, and Wood counties. ------DocID 36231 Document 93 of 1452------ -CITE- 28 USC Sec. 130 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 130. Wisconsin -STATUTE- Wisconsin is divided into two judicial districts to be known as the Eastern and Western districts of Wisconsin. EASTERN DISTRICT (a) The Eastern District comprises the counties of Brown, Calumet, Dodge, Door, Florence, Fond du Lac, Forest, Green Lake, Kenosha, Kewaunee, Langlade, Manitowoc, Marinette, Marquette, Menominee, Milwaukee, Oconto, Outagamie, Ozaukee, Racine, Shawano, Sheboygan, Walworth, Washington, Waukesha, Waupaca, Waushara, and Winnebago. Court for the Eastern District shall be held at Green Bay, Milwaukee, and Oshkosh. WESTERN DISTRICT (b) The Western District comprises the counties of Adams, Ashland, Barron, Bayfield, Buffalo, Burnett, Chippewa, Clark, Columbia, Crawford, Dane, Douglas, Dunn, Eau Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Monroe, Oneida, Pepin, Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Trempealeau, Vernon, Vilas, Washburn, and Wood. Court for the Western District shall be held at Eau Claire, La Crosse, Madison, Superior, and Wausau. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 894; Aug. 6, 1962, Pub. L. 87-573, 76 Stat. 307.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 195 (Mar. 3, 1911, ch. 231, Sec. 114, 36 Stat. 1129; July 24, 1935, ch. 413, 49 Stat. 495). Provisions for keeping the courts and their offices open at all times were omitted as covered by section 452 of this title. Provisions for maintenance of offices by the clerk and marshal, and for the appointment and residence of a deputy marshal for Superior, were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. Words 'All causes and proceedings instituted in the court at Superior shall be tried therein, unless by consent of the parties, or upon the order of the court, they are transferred to another place for trial,' were omitted as unnecessary. Such provision, as to civil cases, is covered by section 1404 of this title, and, as to criminal cases, is rendered unnecessary because of inherent power of the court and Rules 18-20 of the Federal Rules of Criminal Procedure. Provisions for the return of process, including criminal warrants, at Superior and other places in the western district and for the keeping of records in the clerk's office at Superior, were omitted, since such matters can be regulated more appropriately by court rule or order. (See Federal Rules of Civil Procedure, Rule 4, and Federal Rules of Criminal Procedure, Rule 4(g).) Changes in arrangement and phraseology were made. AMENDMENTS 1962 - Subsec. (a). Pub. L. 87-573 inserted reference to Menominee county. ------DocID 36232 Document 94 of 1452------ -CITE- 28 USC Sec. 131 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 131. Wyoming -STATUTE- Wyoming and those portions of Yellowstone National Park situated in Montana and Idaho constitute one judicial district. Court shall be held at Casper, Cheyenne, Evanston, Lander, Jackson, and Sheridan. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 895; July 10, 1984, Pub. L. 98-353, title II, Sec. 203(a), 98 Stat. 350.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 27 of title 16, U.S.C., 1940 ed., Conservation, and title 28, U.S.C., 1940 ed., Sec. 196 (May 7, 1894, ch. 72, Sec. 5, 28 Stat. 74; Mar. 3, 1911, ch. 231, Sec. 115, 291, 36 Stat. 1130, 1167; June 5, 1924, ch. 260, 43 Stat. 388; June 28, 1938, ch. 778, Sec. 1, 52 Stat. 1213). Section consolidates section 196 of title 28, U.S.C., 1940 ed., with a portion of section 27 of title 16, U.S.C., 1940 ed., with necessary changes in arrangement and phraseology. Reference to parts of Yellowstone National Park in Montana and Idaho is derived from said section 27. Other provisions of said section are incorporated in sections 631 and 632 of this title. A provision of section 196 of title 28, U.S.C., 1940 ed., for furnishing rooms and accommodations at Casper was omitted as obsolete, upon advice of the Director of the Administrative Office of the United States Courts that Federal accommodations are now available there. Provisions of section 196 of title 28, U.S.C., 1940 ed., for appointment of deputies and maintenance of offices by the clerk and marshal were omitted as covered by sections 541 (see 561), 542 (see 561), and 751 of this title. AMENDMENTS 1984 - Pub. L. 98-353 provided for holding court at Jackson. ------DocID 36233 Document 95 of 1452------ -CITE- 28 USC Sec. 132 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 132. Creation and composition of district courts -STATUTE- (a) There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district. (b) Each district court shall consist of the district judge or judges for the district in regular active service. Justices or judges designated or assigned shall be competent to sit as judges of the court. (c) Except as otherwise provided by law, or rule or order of court, the judicial power of a district court with respect to any action, suit or proceeding may be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 895; Nov. 13, 1963, Pub. L. 88-176, Sec. 2, 77 Stat. 331.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 1, and section 641 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1087; July 30, 1914, ch. 216, 38 Stat. 580; July 19, 1921, ch. 42, Sec. 313, 42 Stat. 119; Feb. 12, 1925, ch. 220, 43 Stat. 890; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 19). Section consolidates section 1 of title 28, U.S.C., 1940 ed., and section 641 of title 48, U.S.C., 1940 ed., with changes in phraseology necessary to effect the consolidation. Subsection (c) is derived from section 641 of title 48, U.S.C., 1940 ed., which applied only to the Territory of Hawaii. The revised section, by extending it to all districts, merely recognizes established practice. Other portions of section 1 of title 28, U.S.C., 1940 ed., are incorporated in sections 133 and 134 of this title. The remainder of section 641 of title 48, U.S.C., 1940 ed., is incorporated in sections 91 and 133 of this title. AMENDMENTS 1963 - Subsec. (b). Pub. L. 88-176 inserted 'regular' before 'active service'. CONTINUATION OF ORGANIZATION OF COURT Section 2(b) of act June 25, 1948, provided in part that the provisions of this title as set out in section 1 of act June 25, 1948, with respect to the organization of the court, shall be construed as a continuation of existing law, and the tenure of the judges, officers, and employees thereof and of the United States attorneys and marshals and their deputies and assistants, in office on Sept. 1, 1948, shall not be affected by its enactment, but each of them shall continue to serve in the same capacity under the appropriate provisions of this title pursuant to his prior appointment. -CROSS- CROSS REFERENCES Guam and Virgin Islands district courts, see sections 1424, 1424b and 1611 et seq. of Title 48, Territories and Insular Possessions. Assignment of district judges to other districts or courts, see section 292 et seq. of this title. Authority to create courts inferior to Supreme Court, see Const., Art. 3, Sec. 1. Jurisdiction and venue of district courts, see sections 1331 et seq. and 1391 et seq. of this title. Three-judge courts, composition and procedure, see section 2284 of this title. ------DocID 36234 Document 96 of 1452------ -CITE- 28 USC Sec. 133 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 133. Appointment and number of district judges -STATUTE- (a) The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts, as follows: --------------------------------------------------------------------- Districts Judges --------------------------------------------------------------------- Alabama: Northern 7 Middle 3 Southern 3 Alaska 3 Arizona 8 Arkansas: Eastern 5 Western 3 California: Northern 14 Eastern 6 Central 27 Southern 8 Colorado 7 Connecticut 8 Delaware 4 District of Columbia 15 Florida: Northern 4 Middle 11 Southern 16 Georgia: Northern 11 Middle 4 Southern 3 Hawaii 3 Idaho 2 Illinois: Northern 22 Central 3 Southern 3 Indiana: Northern 5 Southern 5 Iowa: Northern 2 Southern 3 Kansas 5 Kentucky: Eastern 4 Western 4 Eastern and Western 1 Louisiana: Eastern 13 Middle 2 Western 7 Maine 3 Maryland 10 Massachusetts 13 Michigan: Eastern 15 Western 4 Minnesota 7 Mississippi: Northern 3 Southern 6 Missouri: Eastern 6 Western 5 Eastern and Western 2 Montana 3 Nebraska 3 Nevada 4 New Hampshire 3 New Jersey 17 New Mexico 5 New York: Northern 4 Southern 28 Eastern 15 Western 4 North Carolina: Eastern 4 Middle 4 Western 3 North Dakota 2 Ohio: Northern 11 Southern 8 Oklahoma: Northern 3 Eastern 1 Western 6 Northern, Eastern, and Western 1 Oregon 6 Pennsylvania: Eastern 22 Middle 6 Western 10 Puerto Rico 7 Rhode Island 3 South Carolina 9 South Dakota 3 Tennessee: Eastern 5 Middle 4 Western 5 Texas: Northern 12 Southern 18 Eastern 7 Western 10 Utah 5 Vermont 2 Virginia: Eastern 9 Western 4 Washington: Eastern 4 Western 7 West Virginia: Northern 3 Southern 5 Wisconsin: Eastern 4 Western 2 Wyoming 3. ------------------------------- (b)(1) In any case in which a judge of the United States (other than a senior judge) assumes the duties of a full-time office of Federal judicial administration, the President shall appoint, by and with the advice and consent of the Senate, an additional judge for the court on which such judge serves. If the judge who assumes the duties of such full-time office leaves that office and resumes the duties as an active judge of the court, then the President shall not appoint a judge to fill the first vacancy which occurs thereafter in that court. (2) For purposes of paragraph (1), the term 'office of Federal judicial administration' means a position as Director of the Federal Judicial Center, Director of the Administrative Office of the United States Courts, or administrative assistant to the Chief Justice. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 895; Aug. 3, 1949, ch. 387, Sec. 2(a), 63 Stat. 493; Aug. 14, 1950, ch. 708, 64 Stat. 443; Aug. 29, 1950, ch. 819, Sec. 1, 64 Stat. 562; Sept. 5, 1950, ch. 848, Sec. 1, 64 Stat. 578; Feb. 10, 1954, ch. 6, Sec. 2(a)(3), 68 Stat. 9; Sept. 7, 1957, Pub. L. 85-310, 71 Stat. 631; July 7, 1958, Pub. L. 85-508, Sec. 12(c), 72 Stat. 348; Mar. 18, 1959, Pub. L. 86-3, Sec. 9(b), 73 Stat. 8; May 19, 1961, Pub. L. 87-36, Sec. 2(d), 75 Stat. 81; July 30, 1962, Pub. L. 87-562, Sec. 3, 76 Stat. 248; Oct. 7, 1965, Pub. L. 89-242, Sec. 1(c), 79 Stat. 951; Mar. 18, 1966, Pub. L. 89-372, Sec. 4, 80 Stat. 77; June 2, 1970, Pub. L. 91-272, Sec. 1(d), 84 Stat. 295; Dec. 18, 1971, Pub. L. 92-208, Sec. 3(d), 85 Stat. 742; Oct. 2, 1978, Pub. L. 95-408, Sec. 4(b)(2), 92 Stat. 885; Oct. 20, 1978, Pub. L. 95-486, Sec. 1(c), 92 Stat. 1630; Jan. 14, 1983, Pub. L. 97-471, Sec. 3, 96 Stat. 2601; July 10, 1984, Pub. L. 98-353, title II, Sec. 202(e), 98 Stat. 348; Dec. 1, 1990, Pub. L. 101-650, title II, Sec. 203(d), title III, Sec. 303, 104 Stat. 5101, 5105.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 1 and notes; sections 641, 643, 863, and 864 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions; District of Columbia Code, 1940 ed., Sec. 11-301 (Apr. 12, 1900, ch. 191, Sec. 34, 35, 31 Stat. 84, 85; Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1901, ch. 854, Sec. 60, 31 Stat. 1199; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1087; Jan. 7, 1913, ch. 6, 37 Stat. 648; July 30, 1914, ch. 216, 38 Stat. 580; Mar. 3, 1915, ch. 100, Sec. 1, 38 Stat. 961; Apr. 11, 1916, ch. 64, Sec. 1, 39 Stat. 48; Feb. 26, 1917, ch. 120, 39 Stat. 938; Mar. 2, 1917, ch. 145, Sec. 41, 42, 39 Stat. 965, 966; Feb. 26, 1919, ch. 50, Sec. 1, 40 Stat. 1183; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; Sept. 14, 1922, ch. 306, Sec. 1, 42 Stat. 837; Jan. 16, 1925, ch. 83, Sec. 3, 43 Stat. 752; Feb. 12, 1925, ch. 220, 43 Stat. 890; Feb. 13, 1925, ch. 229, Sec. 1, 13, 43 Stat. 936, 942; Feb. 16, 1925, ch. 233, Sec. 2, 3, 43 Stat. 946; Mar. 2, 1925, ch. 397, Sec. 1-3, 43 Stat. 1098; Mar. 3, 1927, ch. 297, Sec. 1, 44 Stat. 1346; Mar. 3, 1927, ch. 298, 44 Stat. 1347; Mar. 3, 1927, ch. 300, Sec. 1, 44 Stat. 1348; Mar. 3, 1927, ch. 332, 44 Stat. 1370; Mar. 3, 1927, ch. 336, Sec. 1, 2, 44 Stat. 1372; Mar. 3, 1927, ch. 338, 44 Stat. 1374; Mar. 3, 1927, ch. 344, 44 Stat. 1380; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Apr. 21, 1928, ch. 393, Sec. 5, 45 Stat. 439; May 29, 1928, ch. 882, 45 Stat. 974; Dec. 20, 1928, ch. 41, 45 Stat. 1056; Jan. 17, 1929, ch. 72, Sec. 1, 45 Stat. 1081; Feb. 26, 1929, ch. 334, 45 Stat. 1317; Feb. 26, 1929, ch. 337, 45 Stat. 1319; Feb. 28, 1929, ch. 358, Sec. 1, 45 Stat. 1344; Feb. 28, 1929, ch. 380, 45 Stat. 1409; May 28, 1930, ch. 346, Sec. 1, 46 Stat. 431; June 19, 1930, ch. 537, 46 Stat. 785; June 27, 1930, ch. 633, 46 Stat. 819; June 27, 1930, ch. 635, Sec. 1, 46 Stat. 820; July 3, 1930, ch. 852, 46 Stat. 1006; Feb. 20, 1931, ch. 244, 46 Stat. 1196; Feb. 20, 1931, ch. 245, 46 Stat. 1197; Feb. 25, 1931, ch. 296, 46 Stat. 1417; May 17, 1932, ch. 190, 47 Stat. 158; May 20, 1932, ch. 196, 47 Stat. 161; Aug. 2, 1935, ch. 425, 49 Stat. 508; Aug. 19, 1935, ch. 558, Sec. 1, 2, 49 Stat. 659; Aug. 28, 1935, ch. 793, 49 Stat. 945; June 5, 1936, ch. 515, 49 Stat. 1476; June 15, 1936, ch. 544, 49 Stat. 1491; June 16, 1936, ch. 585, Sec. 1, 49 Stat. 1523; June 22, 1936, ch. 693, 49 Stat. 1804; June 22, 1936, ch. 694, 49 Stat. 1804; June 22, 1936, ch. 696, 49 Stat. 1806; Aug. 25, 1937, ch. 771, Sec. 1, 50 Stat. 805; Mar. 18, 1938, ch. 47, 52 Stat. 110; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118; May 31, 1938, ch. 290, Sec. 4, 5, 6, 52 Stat. 584, 585; June 20, 1938, ch. 528, 52 Stat. 780; Jan. 20, 1940, ch. 11, 54 Stat. 16; May 24, 1940, ch. 209, Sec. 2(c), 54 Stat. 220; June 8, 1940, ch. 282, 54 Stat. 253; Nov. 27, 1940, ch. 92, Sec. 1, 54 Stat. 1216; Nov. 21, 1941, ch. 479, 55 Stat. 773; July 7, 1942, ch. 489, 56 Stat. 648; Dec. 24, 1942, ch. 817, 56 Stat. 1083; Dec. 24, 1942, ch. 827, 56 Stat. 1092; Dec. 7, 1944, ch. 521, 58 Stat. 796; Dec. 22, 1944, ch. 663, 58 Stat. 887; Oct. 16, 1945, ch. 419, Sec. 1, 2, 59 Stat. 545, 546; June 15, 1946, ch. 413, 60 Stat. 260; July 24, 1946, chs. 600, 602, 60 Stat. 654). Section consolidates provisions of section 1 of title 28, U.S.C., 1940 ed., and sections 641, 643, 863, and 864 of title 48, U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation. Provisions of section 1 of title 28, U.S.C., 1940 ed., relating to residence of judges, are covered by section 134 of this title. The act of Dec. 7, 1944, amended section 2 of the act of May 24, 1940, 54 Stat. 219, section 1, note, of title 28, U.S.C., 1940 ed., to read as follows: '(a) Provided, That the first vacancy in the office of district judge in each of said districts except in the eastern district of Pennsylvania, shall not be filled.' The act of Dec. 22, 1944, amended the same section to read as follows: '(a) Provided, That the first vacancy occurring in the office of district judge in each of said districts except the district of New Jersey shall not be filled.' The act of July 24, 1946, ch. 600, Sec. 1, 60 Stat. 654, amended the proviso in the 1940 act to read as follows: 'Provided, That the first vacancy occurring in the office of district judge in each of said districts, except the district of New Jersey and the eastern district of Pennsylvania, shall not be filled.' The following additional but temporary judgeships, authorized by Congress, are not included in the revised section: --------------------------------------------------------------------- Districts Judges --------------------------------------------------------------------- Delaware 1 Florida, Northern and Southern 1 Georgia, Northern 1 Kansas 1 Missouri, Eastern and Western 1 Ohio, Northern 1 Oklahoma, Western 1 Pennsylvania, Eastern, Middle and Western West Virginia, Northern and Southern ------------------------------- Other provisions of said section 11-301 of the District of Columbia Code, 1940 ed., are incorporated in section 136 of this title. A part of section 641 of title 48, U.S.C., 1940 ed., is incorporated in sections 91 and 132 of this title. Parts of sections 863 and 864 of title 48, U.S.C., 1940 ed., are retained in title 48. For other parts of those sections, see Distribution Table. Other provisions of section 643 of title 48, U.S.C., 1940 ed., are incorporated in sections 501 (now 541), 504 (now 541 to 544), and 541 (see 561) of this title. SENATE REVISION AMENDMENT Provisions for one district judge in the Southern District of Indiana were inserted in this section by Senate amendment. See 80th Congress Senate Report No. 1559. -COD- CODIFICATION Paragraph (2) of subsection (b) of section 4 of Pub. L. 95-408, cited as a credit to this section, was amended generally by Pub. L. 96-4, Sec. 1, Mar. 30, 1979, 93 Stat. 6, and enacted provisions which are set out as a note under section 93 of this title. -MISC3- AMENDMENTS 1990 - Pub. L. 101-650, Sec. 303(1), designated existing provisions as subsec. (a) and added subsec. (b). Pub. L. 101-650, Sec. 203(d), altered number of permanent district judgeships in named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Northern 7 7 Middle 3 3 Southern 3 3 Alaska 3 3 Arizona 8 8 Arkansas: Eastern 3 5 Western 1 3 Eastern and Western 2 0 California: Northern 12 14 Eastern 6 6 Central 22 27 Southern 7 8 Colorado 7 7 Connecticut 6 8 Delaware 4 4 District of Columbia 15 15 Florida: Northern 3 4 Middle 9 11 Southern 15 16 Georgia: Northern 11 11 Middle 3 4 Southern 3 3 Hawaii 3 3 Idaho 2 2 Illinois: Northern 20 22 Central 3 3 Southern 3 3 Indiana: Northern 4 5 Southern 5 5 Iowa: Northern 1 2 Southern 2 3 Northern and Southern 1 0 Kansas 5 5 Kentucky: Eastern 4 4 Western 4 4 Eastern and Western 1 1 Louisiana: Eastern 13 13 Middle 2 2 Western 6 7 Maine 2 3 Maryland 10 10 Massachusetts 11 13 Michigan: Eastern 15 15 Western 4 4 Minnesota 7 7 Mississippi: Northern 3 3 Southern 5 6 Missouri: Eastern 5 6 Western 5 5 Eastern and Western 2 2 Montana 3 3 Nebraska 3 3 Nevada 4 4 New Hampshire 2 3 New Jersey 14 17 New Mexico 4 5 New York: Northern 4 4 Southern 27 28 Eastern 12 15 Western 3 4 North Carolina: Eastern 3 4 Middle 3 4 Western 3 3 North Dakota 2 2 Ohio: Northern 10 11 Southern 7 8 Oklahoma: Northern 2 3 Eastern 1 1 Western 4 6 Northern, Eastern, 2 1 and Western Oregon 5 6 Pennsylvania: Eastern 19 22 Middle 5 6 Western 10 10 Puerto Rico 7 7 Rhode Island 3 3 South Carolina 8 9 South Dakota 3 3 Tennessee: Eastern 4 5 Middle 3 4 Western 4 5 Texas: Northern 10 12 Southern 13 18 Eastern 6 7 Western 7 10 Utah 4 5 Vermont 2 2 Virginia: Eastern 9 9 Western 4 4 Washington: Eastern 3 4 Western 6 7 West Virginia: Northern 2 3 Southern 4 5 Wisconsin: Eastern 4 4 Western 2 2 Wyoming 2 3 ------------------------------- 1984 - Pub. L. 98-353 altered number of permanent district judgeships in named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Northern 7 7 Middle 3 3 Southern 2 3 Alaska 2 3 Arizona 8 8 Arkansas: Eastern 3 3 Western 1 1 Eastern and Western 2 2 California: Northern 12 12 Eastern 6 6 Central 17 22 Southern 7 7 Colorado 6 7 Connecticut 5 6 Delaware 3 4 District of Columbia 15 15 Florida: Northern 3 3 Middle 9 9 Southern 12 15 Georgia: Northern 11 11 Middle 2 3 Southern 3 3 Hawaii 2 3 Idaho 2 2 Illinois: Northern 16 20 Central 3 3 Southern 2 3 Indiana: Northern 4 4 Southern 5 5 Iowa: Northern 1 1 Southern 2 2 Northern and Southern 1 1 Kansas 5 5 Kentucky: Eastern 4 4 Western 3 4 Eastern and Western 1 1 Louisiana: Eastern 13 13 Middle 2 2 Western 5 6 Maine 2 2 Maryland 9 10 Massachusetts 10 11 Michigan: Eastern 13 15 Western 4 4 Minnesota 5 7 Mississippi: Northern 2 3 Southern 3 5 Missouri: Eastern 4 5 Western 5 5 Eastern and Western 2 2 Montana 2 3 Nebraska 3 3 Nevada 3 4 New Hampshire 2 2 New Jersey 11 14 New Mexico 4 4 New York: Northern 3 4 Southern 27 27 Eastern 10 12 Western 3 3 North Carolina: Eastern 3 3 Middle 3 3 Western 3 3 North Dakota 2 2 Ohio: Northern 9 10 Southern 6 7 Oklahoma: Northern 2 2 Eastern 1 1 Western 3 4 Northern, Eastern, 2 2 and Western Oregon 5 5 Pennsylvania: Eastern 19 19 Middle 5 5 Western 10 10 Puerto Rico 7 7 Rhode Island 2 3 South Carolina 8 8 South Dakota 3 3 Tennessee: Eastern 3 4 Middle 3 3 Western 3 4 Texas: Northern 9 10 Eastern 4 6 Southern 13 13 Western 6 7 Utah 3 4 Vermont 2 2 Virginia: Eastern 8 9 Western 4 4 Washington: Eastern 2 3 Western 5 6 West Virginia: Northern 2 2 Southern 4 4 Wisconsin: Eastern 4 4 Western 2 2 Wyoming 1 2 ------------------------------- 1983 - Pub. L. 97-471 in item relating to West Virginia increased the number of judges for the Northern District from 1 to 2, increased the number of judges for the Southern District from 3 to 4, and struck out an item which had authorized a Northern and Southern District with 1 judge. 1978 - Pub. L. 95-486 altered the number of permanent district judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Northern 4 7 Middle 2 3 Southern 2 2 Alaska 2 2 Arizona 5 8 Arkansas: Eastern 1 3 Western 1 1 Eastern and Western 2 2 California: Northern 11 12 Eastern 3 6 Central 16 17 Southern 5 7 Colorado 4 6 Connecticut 4 5 Delaware 3 3 District of Columbia 15 15 Florida: Northern 2 3 Middle 6 9 Southern 7 12 Georgia: Northern 6 11 Middle 2 2 Southern 2 3 Hawaii 2 2 Idaho 2 2 Illinois: Northern 13 16 Central 2 3 Southern 2 2 Indiana: Northern 3 4 Southern 4 5 Iowa: Northern 1 1 Southern 1 2 Northern and Southern 1 1 Kansas 4 5 Kentucky: Eastern 2 4 Western 3 3 Eastern and Western 1 1 Louisiana: Eastern 9 13 Middle 1 2 Western 4 5 Maine 1 2 Maryland 7 9 Massachusetts 6 10 Michigan: Eastern 10 13 Western 2 4 Minnesota 4 5 Mississippi: Northern 2 2 Southern 3 3 Missouri: Eastern 3 4 Western 3 5 Eastern and Western 2 2 Montana 2 2 Nebraska 3 3 Nevada 2 3 New Hampshire 1 2 New Jersey 9 11 New Mexico 3 4 New York: Northern 2 3 Southern 27 27 Eastern 9 10 Western 3 3 North Carolina: Eastern 2 3 Western 2 3 Middle 2 3 North Dakota 2 2 Ohio: Northern 8 9 Southern 5 6 Oklahoma: Northern 1 2 Eastern 1 1 Western 2 3 Northern, Eastern, 2 2 and Western Oregon 3 5 Pennsylvania: Eastern 19 19 Middle 3 5 Western 10 10 Puerto Rico 3 7 Rhode Island 2 2 South Carolina 5 8 South Dakota 2 3 Tennessee: Eastern 3 3 Middle 2 3 Western 3 3 Texas: Northern 6 9 Southern 8 13 Eastern 3 4 Western 5 6 Utah 2 3 Vermont 2 2 Virginia: Eastern 6 8 Western 2 4 Washington: Eastern 1 2 Western 3 5 West Virginia: Northern 1 1 Southern 2 3 Northern and Southern 1 1 Wisconsin: Eastern 3 4 Western 1 2 Wyoming 1 1 ------------------------------- Pub. L. 95-408 substituted 'Central' for 'Southern' and 'Southern' for 'Eastern' in item relating to Illinois. 1971 - Pub. L. 92-208 created a Middle District in the Louisiana listing with one judge and reduced from 10 to 9 the number of judges for the Eastern District of Louisiana. 1970 - Pub. L. 91-272 altered the number of permanent district judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Northern 3 4 Middle 1 2 Southern 1 2 Middle and Southern 1 0 Arizona 4 5 California: Northern 9 11 Central 13 16 Southern 2 5 Colorado 3 4 Florida: Middle 5 6 Southern 5 7 Georgia: Northern 3 6 Southern 1 2 Illinois: Northern 11 13 Kansas 3 4 Kentucky: Eastern 1 2 Western 2 3 Louisiana: Eastern 8 10 Western 3 4 Maryland 5 7 Michigan: Eastern 8 10 Missouri: Eastern 2 3 Nebraska 2 3 New Jersey 8 9 New Mexico 2 3 New York: Southern 24 27 Eastern 8 9 Ohio: Northern 7 8 Southern 4 5 Pennsylvania: Eastern 11 19 Western 8 10 Puerto Rico 2 3 South Carolina 4 5 Tennessee: Western 2 3 Texas: Northern 5 6 Southern 7 8 Eastern 2 3 Western 4 5 Virginia: Eastern 5 6 West Virginia: 1 2 Southern Wisconsin: Eastern 2 3 ------------------------------- 1966 - Pub. L. 89-372 altered the number of permanent district judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Middle and 0 1 Southern Arizona 3 4 California: Northern 9 9 Eastern 0 3 Central 0 13 Southern 13 2 Florida: Northern 1 2 Middle 3 5 Southern 3 5 Northern, Middle, 1 0 and Southern Illinois: Northern 10 11 Indiana: Southern 3 4 Louisiana: Eastern 4 8 Maryland 4 5 Mississippi: Northern 1 2 Southern 2 3 New York: Western 2 3 Ohio: Northern 6 7 Southern 3 4 Rhode Island 1 2 Texas: Southern 5 7 Western 3 4 Vermont 1 2 Virginia: Eastern 3 5 ------------------------------- 1965 - Pub. L. 89-242 changed the South Carolina listing by removing references to an Eastern and Western District, with 1 judge listed for the Eastern, 1 judge for the Western, and 2 judges for the Eastern and Western combined, and substituted therefor a single reference to a South Carolina District with 4 judges. 1962 - Pub. L. 87-562 amended the Florida listing by adding the Middle District with its designation of 3 judges, substituted 'Northern, Middle, and Southern' for 'Northern and Southern', and reduced the number of judges in the Southern District from 6 to 3. 1961 - Pub. L. 87-36 increased the number of permanent district judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- Alabama: Northern 2 3 Alaska 1 2 Arizona 2 3 Arkansas: Eastern and Western 1 2 California: Northern 7 9 Southern 11 13 Colorado 2 3 Connecticut 2 4 Florida: Southern 4 6 Georgia: Northern 2 3 Middle 1 2 Illinois: Northern 8 10 Indiana: Northern 2 3 Southern 2 3 Iowa: Northern and Southern 0 1 Kansas 2 3 Louisiana: Eastern 2 4 Western 2 3 Maryland 2 4 Massachusetts 5 6 Michigan: Eastern 6 8 Mississippi: Southern 1 2 Missouri: Western 2 3 Nevada 1 2 New Jersey 7 8 New Mexico 1 2 New York: Southern 18 24 Eastern 6 8 North Carolina: Eastern 1 2 Western 1 2 Middle 1 2 Ohio: Northern 5 6 Oklahoma: Northern, Eastern, 1 2 and Western Pennsylvania: Eastern 8 11 Middle 2 3 Western 5 8 Puerto Rico 1 2 South Carolina: Eastern and Western 1 2 Tennessee: Eastern 2 3 Middle 1 2 Western 1 2 Texas: Northern 3 5 Southern 4 5 Western 2 3 Utah 1 2 Washington: Western 2 3 ------------------------------- 1959 - Pub. L. 86-3 struck out provisions that restricted eligibility for appointment as district judges for the district of Hawaii to citizens of the Territory of Hawaii who have resided therein for at least three years. 1958 - Pub. L. 85-508 inserted 'Alaska - - - - 1'. 1957 - Pub. L. 85-310 increased the number of permanent judgeships in the district of South Dakota from 1 to 2. 1954 - Act Feb. 10, 1954, increased the number of permanent judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- California: Southern 10 11 Delaware 2 3 Florida: Southern 3 4 Idaho 1 2 Indiana: Northern 1 2 Southern 1 2 Kentucky: Western 1 2 Massachusetts 4 5 Michigan: Eastern 5 6 Western 1 2 Missouri: Eastern and Western 1 2 New Jersey 6 7 New York: Southern 16 18 North Dakota 1 2 Ohio: Northern 4 5 Pennsylvania: Eastern 7 8 Western 4 5 Texas: Southern 3 4 Eastern 1 2 Virginia: Eastern 2 3 West Virginia: Northern and Southern 0 1 Wisconsin: Eastern 1 2 ------------------------------- 1950 - Act Sept. 5, 1950, increased the number of permanent judgeships in the district of Delaware from 1 to 2. Act Aug. 29, 1950, increased the number of permanent judgeships in the western district of Pennsylvania from 3 to 4. Act Aug. 14, 1950, increased the number of permanent judgeships in the northern district of Illinois from 6 to 8. 1949 - Act Aug. 3, 1949, increased the numbers of permanent judgeships in the named districts as follows: --------------------------------------------------------------------- State Former New --------------------------------------------------------------------- California: Northern 5 7 Southern 8 10 District of Columbia 12 15 Florida: Northern and Southern 0 1 Georgia: Northern 1 2 Kansas 1 2 New Jersey 5 6 New York: Southern 12 16 Ohio: Northern 3 4 Oklahoma: Western 1 2 Oregon 2 3 Pennsylvania: Eastern 5 7 Texas: Southern 2 3 ------------------------------- EFFECTIVE DATE OF 1978 AMENDMENT; WAIVER OF STANDARDS AND GUIDELINES; FAILURE TO COMPLY Section 7 of Pub. L. 95-486 provided that: '(a) The first section and section 2 of this Act (amending this section and enacting provisions set out as notes under this section) shall take effect immediately upon the President's promulgation and publication of standards and guidelines for the selection, on the basis of merit, of nominees for United States district court judgeships authorized by this Act (amending this section, sections 44, 46, 1337, and 1445 of this title, and section 5108 of Title 5, Government Organization and Employees, enacting provisions set out as notes under this section and sections 41 and 44 of this title, and amending provisions set out as a note under section 45 of this title). '(b) The President may waive such standards and guidelines with respect to any nomination by notifying the Senate of the reasons for such waiver. '(c) Following the promulgation and publication of such standards and guidelines, no nomination or appointment to a United States district court judgeship may be invalidated on the basis of the President's failure to comply with this section or with any standards or guidelines promulgated under this section. '(d) This Act, other than the first section and section 2 (amending this section and enacting provisions set out as notes under this section) shall take effect on the date of enactment of this Act (Oct. 20, 1978).' Section 11 of Pub. L. 95-486 provided that: 'Notwithstanding any other provision of this Act the first section and section 2 (amending this section and enacting provisions set out as notes under this section) shall not take effect before November 1, 1978.' EFFECTIVE DATE OF 1978 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 95-408 effective 180 days after Oct. 2, 1978, with such amendment not to affect the composition or preclude the service of any grand or petit juror summoned, empaneled, or actually serving in any judicial district on the effective date of this Act, see section 5 of Pub. L. 95-408, set out as a note under section 89 of this title. EFFECTIVE DATE OF 1971 AMENDMENT Amendment by Pub. L. 92-208 effective 120 days after Dec. 18, 1971, see section 3(f) of Pub. L. 92-208, set out as a note under section 98 of this title. EFFECTIVE DATE OF 1965 AMENDMENT Amendment by Pub. L. 89-242 effective on first day of month following Oct. 7, 1965, see section 6 of Pub. L. 89-242, set out as a note under section 121 of this title. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-562 effective 90 days after July 30, 1962, see section 5 of Pub. L. 87-562, set out as a note under section 89 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Section 9 of Pub. L. 86-3 provided in part that the amendment of this section and section 134 of this title is effective on admission of the State of Hawaii into the Union. Admission of Hawaii into the Union was accomplished Aug. 21, 1959, upon issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. 74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding section 491 of Title 48, Territories and Insular Possessions. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. 16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. ADDITIONAL JUDGESHIPS Section 203(a)-(c) of title II of Pub. L. 101-650 provided that: '(a) In General. - The President shall appoint, by and with the advice and consent of the Senate - '(1) 1 additional district judge for the western district of Arkansas; '(2) 2 additional district judges for the northern district of California; '(3) 5 additional district judges for the central district of California; '(4) 1 additional district judge for the southern district of California; '(5) 2 additional district judges for the district of Connecticut; '(6) 2 additional district judges for the middle district of Florida; '(7) 1 additional district judge for the northern district of Florida; '(8) 1 additional district judge for the southern district of Florida; '(9) 1 additional district judge for the middle district of Georgia; '(10) 1 additional district judge for the northern district of Illinois; '(11) 1 additional district judge for the southern district of Iowa; '(12) 1 additional district judge for the western district of Louisiana; '(13) 1 additional district judge for the district of Maine; '(14) 1 additional district judge for the district of Massachusetts; '(15) 1 additional district judge for the southern district of Mississippi; '(16) 1 additional district judge for the eastern district of Missouri; '(17) 1 additional district judge for the district of New Hampshire; '(18) 3 additional district judges for the district of New Jersey; '(19) 1 additional district judge for the district of New Mexico; '(20) 1 additional district judge for the southern district of New York; '(21) 3 additional district judges for the eastern district of New York; '(22) 1 additional district judge for the middle district of North Carolina; '(23) 1 additional district judge for the southern district of Ohio; '(24) 1 additional district judge for the northern district of Oklahoma; '(25) 1 additional district judge for the western district of Oklahoma; '(26) 1 additional district judge for the district of Oregon; '(27) 3 additional district judges for the eastern district of Pennsylvania; '(28) 1 additional district judge for the middle district of Pennsylvania; '(29) 1 additional district judge for the district of South Carolina; '(30) 1 additional district judge for the eastern district of Tennessee; '(31) 1 additional district judge for the western district of Tennessee; '(32) 1 additional district judge for the middle district of Tennessee; '(33) 2 additional district judges for the northern district of Texas; '(34) 1 additional district judge for the eastern district of Texas; '(35) 5 additional district judges for the southern district of Texas; '(36) 3 additional district judges for the western district of Texas; '(37) 1 additional district judge for the district of Utah; '(38) 1 additional district judge for the eastern district of Washington; '(39) 1 additional district judge for the northern district of West Virginia; '(40) 1 additional district judge for the southern district of West Virginia; and '(41) 1 additional district judge for the district of Wyoming. '(b) Existing Judgeships. - (1) The existing district judgeships for the western district of Arkansas, the northern district of Illinois, the northern district of Indiana, the district of Massachusetts, the western district of New York, the eastern district of North Carolina, the northern district of Ohio, and the western district of Washington authorized by section 202(b) of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (Public Law 98-353, 98 Stat. 347-348) (set out below) shall, as of the effective date of this title (Dec. 1, 1990), be authorized under section 133 of title 28, United States Code, and the incumbents in those offices shall hold the office under section 133 of title 28, United States Code, as amended by this title. '(2)(A) The existing 2 district judgeships for the eastern and western districts of Arkansas (provided by section 133 of title 28, United States Code, as in effect on the day before the effective date of this title) shall be district judgeships for the eastern district of Arkansas only, and the incumbents of such judgeships shall hold the offices under section 133 of title 28, United States Code, as amended by this title. '(B) The existing district judgeship for the northern and southern districts of Iowa (provided by section 133 of title 28, United States Code, as in effect on the day before the effective date of this title) shall be a district judgeship for the northern district of Iowa only, and the incumbent of such judgeship shall hold the office under section 133 of title 28, United States Code, as amended by this title. '(C) The existing district judgeship for the northern, eastern, and western districts of Oklahoma (provided by section 133 of title 28, United States Code, as in effect on the day before the effective date of this title) and the occupant of which has his or her official duty station at Oklahoma City on the date of the enactment of this title (Dec. 1, 1990), shall be a district judgeship for the western district of Oklahoma only, and the incumbent of such judgeship shall hold the office under section 133 of title 28, United States Code, as amended by this title. '(c) Temporary Judgeships. - The President shall appoint, by and with the advice and consent of the Senate - '(1) 1 additional district judge for the northern district of Alabama; '(2) 1 additional district judge for the eastern district of California; '(3) 1 additional district judge for the district of Hawaii; '(4) 1 additional district judge for the central district of Illinois; '(5) 1 additional district judge for the southern district of Illinois; '(6) 1 additional district judge for the district of Kansas; '(7) 1 additional district judge for the western district of Michigan; '(8) 1 additional district judge for the eastern district of Missouri; '(9) 1 additional district judge for the district of Nebraska; '(10) 1 additional district judge for the northern district of New York; '(11) 1 additional district judge for the northern district of Ohio; '(12) 1 additional district judge for the eastern district of Pennsylvania; and '(13) 1 additional district judge for the eastern district of Virginia. The first vacancy in the office of district judge in each of the judicial districts named in this subsection, occurring 5 years or more after the effective date of this title (Dec. 1, 1990), shall not be filled.' Section 202(a)-(d) of Pub. L. 98-353 provided that: '(a) Subject to the provisions of subsection (c), the President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the southern district of Alabama, one additional district judge for the district of Alaska, five additional district judges for the central district of California, one additional district judge for the district of Colorado, one additional district judge for the district of Connecticut, one additional district judge for the district of Delaware, three additional district judges for the southern district of Florida, one additional district judge for the middle district of Georgia, one additional district judge for the district of Hawaii, four additional district judges for the northern district of Illinois, one additional district judge for the southern district of Illinois, one additional district judge for the western district of Kentucky, one additional district judge for the western district of Louisiana, one additional district judge for the district of Maryland, one additional district judge for the district of Massachusetts, two additional district judges for the eastern district of Michigan, one additional district judge for the district of Minnesota, one additional district judge for the northern district of Mississippi, two additional district judges for the southern district of Mississippi, one additional district judge for the eastern district of Missouri, one additional district judge for the district of Montana, one additional district judge for the district of Nevada, three additional district judges for the district of New Jersey, one additional district judge for the northern district of New York, two additional district judges for the eastern district of New York, one additional district judge for the southern district of Ohio, one additional district judge for the western district of Oklahoma, one additional district judge for the district of Rhode Island, one additional district judge for the eastern district of Tennessee, one additional district judge for the western district of Tennessee, one additional district judge for the northern district of Texas, two additional district judges for the eastern district of Texas, one additional district judge for the western district of Texas, one additional district judge for the district of Utah, one additional district judge for the eastern district of Virginia, one additional district judge for the eastern district of Washington, one additional district judge for the western district of Washington, and one additional district judge for the district of Wyoming. '(b) Subject to the provisions of subsection (c) the President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the western district of Arkansas, one additional district judge for the northern district of Illinois, one additional district judge for the northern district of Indiana, one additional district judge for the district of Massachusetts, one additional district judge for the western district of New York, one additional district judge for the eastern district of North Carolina, one additional district judge for the northern district of Ohio, and one additional district judge for the western district of Washington. The first vacancy in each of the offices of district judge authorized by this subsection, occurring five years or more after the effective date of this Act (probably means July 10, 1984), shall not be filled. '(c) For the judgeships created in subsections (a) and (b), the President shall appoint, by and with the advice and consent of the Senate, no more than twenty-nine of such judges prior to January 21, 1985. '(d) The existing district judgeship for the district of Minnesota and the existing district judgeship for the northern district of Ohio, heretofore authorized by section 2 of the Act of October 20, 1978 (Public Law 95-486, 92 Stat. 1631) (set out below), shall, as of the effective date of this Act (probably means July 10, 1984), be authorized under section 133 of title 28, United States Code, and the incumbents of those offices shall henceforth hold their offices under section 133, as amended by this Act.' Section 1(a) of Pub. L. 95-486 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, three additional district judges for the northern district of Alabama, one additional district judge for the middle district of Alabama, three additional district judges for the district of Arizona, two additional district judges for the eastern district of Arkansas, one additional district judge for the northern district of California, three additional district judges for the eastern district of California, one additional district judge for the central district of California, two additional district judges for the southern district of California, two additional district judges for the district of Colorado, one additional district judge for the district of Connecticut, one additional district judge for the northern district of Florida, three additional district judges for the middle district of Florida, five additional district judges for the southern district of Florida, five additional district judges for the northern district of Georgia, one additional district judge for the southern district of Georgia, three additional district judges for the northern district of Illinois, one additional district judge for the central district of Illinois, one additional district judge for the northern district of Indiana, one additional district judge for the southern district of Indiana, one additional district judge for the southern district of Iowa, one additional district judge for the district of Kansas, two additional district judges for the eastern district of Kentucky, four additional district judges for the eastern district of Louisiana, one additional district judge for the middle district of Louisiana, one additional district judge for the western district of Louisiana, one additional district judge for the district of Maine, two additional district judges for the district of Maryland, four additional district judges for the district of Massachusetts, three additional district judges for the eastern district of Michigan, two additional district judges for the western district of Michigan, one additional district judge for the district of Minnesota, one additional district judge for the eastern district of Missouri, two additional district judges for the western district of Missouri, one additional district judge for the district of Nevada, one additional district judge for the district of New Hampshire, two additional district judges for the district of New Jersey, one additional district judge for the district of New Mexico, one additional district judge for the northern district of New York, one additional district judge for the eastern district of New York, one additional district judge for the eastern district of North Carolina, one additional district judge for the middle district of North Carolina, one additional district judge for the western district of North Carolina, one additional district judge for the northern district of Ohio, one additional district judge for the southern district of Ohio, one additional district judge for the western district of Oklahoma, one additional district judge for the northern district of Oklahoma, two additional district judges for the district of Oregon, two additional district judges for the middle district of Pennsylvania, four additional district judges for the district of Puerto Rico, three additional district judges for the district of South Carolina, one additional district judge for the district of South Dakota, one additional district judge for the middle district of Tennessee, three additional district judges for the northern district of Texas, one additional district judge for the eastern district of Texas, five additional district judges for the southern district of Texas, one additional district judge for the western district of Texas, one additional district judge for the district of Utah, two additional district judges for the eastern district of Virginia, two additional district judges for the western district of Virginia, one additional district judge for the eastern district of Washington, one additional district judge for the western district of Washington, one additional district judge for the southern district of West Virginia, one additional district judge for the eastern district of Wisconsin, and one additional district judge for the western district of Wisconsin.' Section 2 of Pub. L. 95-486 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the eastern district of Kentucky, one additional district judge for the district of Minnesota, one additional district judge for the northern district of Ohio, and one additional district judge for the southern district of West Virginia. The first vacancy in the office of district judge in the judicial districts named in this section occurring five years or more after the effective date of this Act (Oct. 20, 1978) shall not be filled.' Section 1(a) of Pub. L. 91-272 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the northern district of Alabama, one additional district judge for the middle district of Alabama, one additional district judge for the district of Arizona, two additional district judges for the northern district of California, three additional district judges for the central district of California, three additional district judges for the southern district of California, one additional district judge for the district of Colorado, one additional district judge for the middle district of Florida, two additional district judges for the southern district of Florida, three additional district judges for the northern district of Georgia, one additional district judge for the southern district of Georgia, two additional district judges for the northern district of Illinois, one additional district judge for the eastern district of Kentucky, one additional district judge for the western district of Kentucky, two additional district judges for the eastern district of Louisiana, one additional district judge for the western district of Louisiana, two additional district judges for the district of Maryland, two additional district judges for the eastern district of Michigan, one additional district judge for the eastern district of Missouri, one additional district judge for the district of Nebraska, one additional district judge for the district of New Jersey, one additional district judge for the district of New Mexico, one additional district judge for the eastern district of New York, three additional district judges for the southern district of New York, one additional district judge for the northern district of Ohio, one additional district judge for the southern district of Ohio, six additional district judges for the eastern district of Pennsylvania, two additional district judges for the western district of Pennsylvania, one additional district judge for the district of Puerto Rico, one additional district judge for the district of South Carolina, one additional district judge for the western district of Tennessee, one additional district judge for the northern district of Texas, one additional district judge for the eastern district of Texas, one additional district judge for the southern district of Texas, one additional district judge for the western district of Texas, one additional district judge for the eastern district of Virginia, and one additional district judge for the southern district of West Virginia.' Section 2(a) of Pub. L. 89-372 provided that: The President shall appoint, by and with the advice and consent of the Senate, one district judge for the middle and southern districts of Alabama, one additional district judge for the district of Arizona, one additional district judge for the northern district of Florida, one additional district judge for the middle district of Florida, two additional district judges for the southern district of Florida, one additional district judge for the northern district of Illinois, one additional district judge for the southern district of Indiana, four additional district judges for the eastern district of Louisiana, one additional district judge for the district of Maryland, one additional district judge for the northern district of Mississippi, one additional district judge for the southern district of Mississippi, one additional district judge for the western district of New York, one additional district judge for the northern district of Ohio, one additional district judge for the southern district of Ohio, one additional district judge for the district of Rhode Island, two additional district judges for the southern district of Texas, one additional district judge for the western district of Texas, two additional district judges for the eastern district of Virginia, and one additional district judge for the district of Vermont.' Section 2(a) of Pub. L. 87-36 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the northern district of Alabama, one additional district judge for the district of Alaska, one additional district judge for the district of Arizona, one additional district judge for the eastern and western districts of Arkansas, two additional district judges for the northern district of California, two additional district judges for the southern district of California, one additional district judge for the district of Colorado, two additional district judges for the district of Connecticut, two additional district judges for the southern district of Florida, one additional district judge for the northern district of Georgia, two additional district judges for the northern district of Illinois, one additional district judge for the northern district of Indiana, one additional district judge for the southern district of Indiana, one additional district judge for the northern and southern districts of Iowa, one additional district judge for the district of Kansas, two additional district judges for the eastern district of Louisiana, one additional district judge for the western district of Louisiana, two additional district judges for the district of Maryland, one additional district judge for the district of Massachusetts, two additional district judges for the eastern district of Michigan, one additional district judge for the southern district of Mississippi, one additional district judge for the western district of Missouri, one additional district judge for the district of Nevada, one additional district judge for the district of New Jersey, two additional district judges for the eastern district of New York, six additional district judges for the southern district of New York, one additional district judge for the eastern district of North Carolina, one additional district judge for the middle district of North Carolina, one additional district judge for the western district of North Carolina, one additional district judge for the northern district of Ohio, one additional district judge for the northern, eastern, and western districts of Oklahoma, three additional district judges for the eastern district of Pennsylvania, one additional district judge for the middle district of Pennsylvania, two additional district judges for the western district of Pennsylvania, one additional district judge for the district of Puerto Rico, one additional district judge for the eastern and western districts of South Carolina, one additional district judge for the eastern district of Tennessee, one additional district judge for the middle district of Tennessee, one additional district judge for the western district of Tennessee, two additional district judges for the northern district of Texas, one additional district judge for the southern district of Texas, one additional district judge for the western district of Texas and one additional district judge for the eastern and western districts of Washington.' Subsec. (a)(1) of section 2 of act Feb. 10, 1954, subsec. (a)(3) of which section amended the table in this section, provided for the appointment by the President, by and with the advice and consent of the Senate, of the additional judges for the districts for which additional permanent judgeships were provided in the amendment. Alabama. - Section 1(b) of Pub. L. 91-272 provided that: 'The existing district judgeship for the middle and southern districts of Alabama, heretofore provided for by section 133 of title 28 of the United States Code, shall hereafter be a district judgeship for the southern district of Alabama only, and the present incumbent of such judgeship shall henceforth hold his office under such section 133, as amended by subsection (d) of this section.' California. - Section 3(h) of Pub. L. 89-372 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, three additional district judges for the central district of California, and two additional district judges for the northern district of California.' Delaware. - Act July 24, 1946, ch. 602, 60 Stat. 654, which authorized the appointment of an additional judge for the district of Delaware was repealed by section 2 of act Sept. 5, 1950, which by section 1 of act Sept. 5, 1950, made the additional judgeship permanent. However, section 2 of act Sept. 5, 1950 also provided that the repeal in no way affected the tenure of the present incumbent. Florida. - Section 2(b) of Pub. L. 89-372 provided that: 'The existing district judgeship for the northern, middle and southern districts of Florida heretofore provided for by section 133 of title 28, United States Code, shall hereafter be a district judgeship for the middle district of Florida only, and the present incumbent of such judgeship shall henceforth hold his office under section 133, as amended by this Act.' Georgia. - Act Mar. 29, 1949, ch. 37, 63 Stat. 16, which authorized the appointment of an additional judge for the middle district, was repealed by section 2(b) of Pub. L. 87-36, which made the judgeship permanent and also provided that the incumbent of the judgeship created by act Mar. 29, 1949, should henceforth hold his office under this section, as amended by Pub. L. 87-36, Sec. 2(d). Kansas. - Section 5(a) of Pub. L. 89-372, Mar. 18, 1966, 80 Stat. 78, which authorized the appointment of an additional district judge for the eastern district of Kansas and which provided that the first vacancy which occurred in the office of district judge in such district not be filled was repealed by section 1(c) of Pub. L. 91-272, June 2, 1970, 84 Stat. 294, which provided, in part, that such judgeship be a permanent judgeship and that the present incumbent henceforth hold his office under this section, as amended by section 1(d) of Pub. L. 91-272. Missouri. - The additional judgeship for the eastern and western districts, which was authorized by act Dec. 24, 1942, ch. 827, 56 Stat. 1083, was made permanent by section 2(a)(2) of act Feb. 10, 1954, which by section 2(b)(10) of act Feb. 10, 1954 provided that the incumbent of the judgeship created by act Dec. 24, 1942, should henceforth hold his office under this section, as amended by act Feb. 10, 1954, Sec. 2(a)(3). Nevada. - Section 2(b)(2) of act Feb. 10, 1954, provided: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the district of Nevada. The first vacancy occurring in the office of district judge in said district shall not be filled.' New Jersey. - Section 2(a) of Pub. L. 91-272 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the district of New Jersey. The first vacancy occurring in the office of district judge in that district shall not be filled.' New Mexico. - Act Feb. 10, 1954, ch. 6, Sec. 2(b)(1), 68 Stat. 10, which authorized the appointment of an additional judge for the district, was repealed by section 2(b) of Pub. L. 87-36, which made the judgeship permanent and also provided that the incumbent of the judgeship created by act Feb. 10, 1954, should henceforth hold his office under this section, as amended by Pub. L. 87-36, Sec. 2(d). North Carolina. - Section 2(c) of Pub. L. 91-272 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the eastern district of North Carolina. The first vacancy occurring in the office of district judge in that district shall not be filled.' Ohio. - Act May 1, 1941, ch. 83, 55 Stat. 148, which provided for the appointment of an additional judge for the northern district was repealed by section 2(e) of act Aug. 3, 1949, which also provided that the incumbent of the judgeship created by act May 1, 1941, should henceforth hold his office under this section, as amended by act Aug. 3, 1949, Sec. 2(a). Section 2(e)(1), (2) of Pub. L. 87-36 provided that: '(1) The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the southern district of Ohio. The first vacancy occurring in the office of district judge in said district shall not be filled. '(2) The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the northern district of Ohio. The first vacancy occurring in the office of district judge in said district shall not be filled.' Oklahoma. - Act May 24, 1940, ch. 209, Sec. 2(a), 54 Stat. 219, providing for additional judgeships was amended by section 2(b) of act Aug. 3, 1949, to strike out 'western district of Oklahoma', and to make the incumbent of the judgeship created by act May 24, 1940, henceforth hold his office under this section, as amended by act Aug. 3, 1949, Sec. 2(a). Pennsylvania. - Section 2(b) of Pub. L. 91-272 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the middle district of Pennsylvania. The first vacancy occurring in the office of district judge in that district shall not be filled.' Section 5(b) of Pub. L. 89-372, Mar. 18, 1966, 80 Stat. 78, as amended by Pub. L. 90-90, Sept. 23, 1967, 81 Stat. 228, which authorized the appointment of three additional district judges for the eastern district of Pennsylvania and which provided that the second, third, and fourth vacancies occurring after Mar. 18, 1966, in the office of district judge in such district not be filled was repealed by section 1(c) of Pub. L. 91-272, June 2, 1970, 84 Stat. 294, which provided, in part, that such judgeships be permanent judgeships and that the present incumbents henceforth hold their offices under this section, as amended by section 1(d) of Pub. L. 81-272. Act Feb. 10, 1954, ch. 6, Sec. 2(b)(5), 68 Stat. 10, which authorized the appointment of an additional judge for the western district, was repealed by section 2(b) of Pub. L. 87-36, which made the judgeship permanent and also provided that the incumbent of the judgeship created by act Feb. 10, 1954, should henceforth hold his office under this section, as amended by Pub. L. 87-36, Sec. 2(d). Section 2 of act July 24, 1946, ch. 600, 60 Stat. 654, as amended by section 6 of act Feb. 10, 1954, ch. 6, 68 Stat. 14, provided: 'The President is authorized to appoint, by and with the advice and consent of the Senate, one additional United States district judge, who shall be an additional district judge for the eastern, middle, and western districts of Pennsylvania. The judge so appointed shall at the time of his appointment be a resident and a citizen of the State of Pennsylvania: Provided, That when a vacancy occurs in said office it shall not be filled: Provided further, That unless the President shall submit a nomination to the Senate to fill the office hereby created within ninety days after the effective date of this Act (July 24, 1946), then in that event this Act shall be of no force and effect. If a vacancy arises in the office of district judge for the middle district of Pennsylvania while the judge appointed pursuant to this section is holding the office created by this section, such judge shall thereafter be a district judge for the middle district of Pennsylvania.' Section 2(c) of act Aug. 3, 1949, which provided for an additional temporary judgeship for the western district of Pennsylvania was repealed by section 2 of act Aug. 29, 1950, which by section 1 of act Aug. 29, 1950, made the additional judgeship permanent. However, section 2 of act Aug. 29, 1950 also provided that the repeal in no way affected the tenure of the present incumbent. South Carolina. - Section 1(b) of Pub. L. 89-242 provided that: 'The existing district judgeships for the Eastern District of South Carolina, the Western District of South Carolina, and the Eastern and Western Districts of South Carolina heretofore provided for by section 133 of title 28 of the United States Code (this section) shall hereafter be district judgeships for the District of South Carolina and the present incumbents of such judgeships shall henceforth hold their offices under section 133, as amended by this Act.' South Dakota. - Pub. L. 85-310 provided: 'The President is authorized to appoint, by and with the advice and consent of the Senate an additional district judge for the district of South Dakota as authorized by paragraph (3) of section 2(b) of the act of February 10, 1954 (set out as a note below).' Section 2(b)(3) of act February 10, 1954, as amended by Pub. L. 85-310, provided: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the district of South Dakota.' Tennessee. - Section 2(b)(4) of act Feb. 10, 1954, provided: 'The President shall appoint, by and with the advice and consent of the Senate, one additional district judge for the middle district of Tennessee. The first vacancy occurring in the office of district judge in said district shall not be filled.' Texas. - Act Aug. 3, 1949, ch. 387, Sec. 2(d), 63 Stat. 495, which authorized the appointment of an additional judge for the Southern district, was repealed by section 2(b)(11) of act Feb. 10, 1954, which by section 2(a)(2) of act Feb. 10, 1954, made the additional judgeship permanent. Section 2(b)(11) of act Feb. 10, 1954 also provided that the incumbent of the judgeship created by section 2(d) of act Aug. 3, 1949, should henceforth hold his office under this section, as amended by act Feb. 10, 1954, Sec. 2(a)(3). Utah. - Act Feb. 10, 1954, ch. 6, Sec. 2(b)(6), 68 Stat. 11, which authorized the appointment of an additional judge for the district, was repealed by section 2(b) of Pub. L. 87-36, which made the judgeship permanent and also provided that the incumbent of the judgeship created by act Feb. 10, 1954, should hence forth hold his office under this section, as amended by Pub. L. 87-36, Sec. 2(d). Virgin Islands. - Section 3(a) of Pub. L. 91-272 provided that: 'The President shall appoint, by and with the advice and consent of the Senate, one additional judge for the District Court of the Virgin Islands, who shall hold office for the term of eight years and until his successor is chosen and qualified, unless sooner removed by the President for cause.' Washington. - Section 1(b) of Pub. L. 95-486 provided that: 'The existing district judgeship for the eastern and western districts of Washington, heretofore provided for by section 133 of title 28 of the United States Code, shall hereafter be a district judgeship for the western district of Washington only, and the present incumbent of such judgeship shall henceforth hold his office under section 133, as amended by this Act.' Section 2(c) of Pub. L. 87-36 provided that: 'The existing district judgeship for the eastern and western districts of Washington, heretofore provided for by section 133 of title 28 of the United States Code, shall hereafter be a district judgeship for the western district of Washington only, and the present incumbent of such judgeship shall henceforth hold his office under section 133, as amended by this Act (Pub. L. 87-36).' West Virginia. - Section 2 of Pub. L. 97-471 provided that: '(a) The existing district judgeship for the Southern District of West Virginia, authorized by section 2 of the Act entitled 'An Act to provide for the appointment of additional district and circuit judges and for other purposes', approved October 20, 1978 (Pub. L. 95-486) (92 Stat. 1632; 28 U.S.C. 133 note), shall, as of the date of enactment of this Act (Jan. 14, 1983), be authorized under section 133 of title 28 of the United States Code as a district judgeship for the Northern District of West Virginia, and the incumbent of that office shall henceforth hold office under section 133, as amended by this Act. '(b) The existing district judgeship for the Northern and Southern Districts of West Virginia shall be authorized as the district judgeship for the Southern District.' The additional judgeship for the northern and southern districts, which was authorized by act June 22, 1936, ch. 695, 49 Stat. 1805, was made permanent by section 2(a)(2) of act Feb. 10, 1954, which by section 2(b)(12) of act Feb. 10, 1954, provided that the incumbent of the judgeship created by act June 22, 1936, should henceforth hold his office under this section, as amended by act Feb. 10, 1954, Sec. 2(a)(3). Wisconsin. - Section 5(c) of Pub. L. 89-372, Mar. 18, 1966, 80 Stat. 78, which authorized the appointment of an additional district judge for the district of Wisconsin and which provided that the first vacancy occurring in the office of district judge in such district not be filled was repealed by section 1(c) of Pub. L. 91-272, June 2, 1970, 84 Stat. 294, which provided, in part, that such judgeship be a permanent judgeship and that the present incumbent henceforth hold his office under this section, as amended by section 1(d) of Pub. L. 91-272. NOMINATION OF WOMEN AND BLACKS TO FEDERAL JUDGESHIPS Section 8 of Pub. L. 95-486 provided that: 'The Congress - '(1) takes notice of the fact that only 1 percent of Federal judges are women and only 4 percent are blacks; and '(2) suggests that the President, in selecting individuals for nomination to the Federal judgeships created by this Act (for classification see Effective Date of 1978 Amendment note above), give due consideration to qualified individuals regardless of race, color, sex, religion, or national origin.' RESIDENCE OF ADDITIONAL JUDGE FOR KANSAS Section 2(b)(2) act Aug. 3, 1949, provided that: 'The judge first appointed for the district of Kansas under the authority contained in subsection (a) (amending this section) shall reside at Wichita.' -EXEC- EXECUTIVE ORDER NO. 12084 Ex. Ord. No. 12084, Sept. 27, 1978, 43 F.R. 44815, as amended by Ex. Ord. No. 12097, Nov. 8, 1978, 43 F.R. 52455, which established the Judicial Nominating Commission for the District of Puerto Rico and provided for its membership, functions, etc., was revoked by Ex. Ord. No. 12305, May 5, 1981, 46 F.R. 25421, set out as a note under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees. EXECUTIVE ORDER NO. 12097 Ex. Ord. No. 12097, Nov. 8, 1978, 43 F.R. 52455, which provided standards and guidelines for the selection of nominees for United States district court judgeships, was revoked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R. 7237. -CROSS- CROSS REFERENCES Assignment of district judges to other districts or courts, see section 292 et seq. of this title. Guam and Virgin Islands, appointment and number of district judges, see sections 1424b and 1614 of Title 48, Territories and Insular Possessions. Judges to hold office during good behavior, see Const., Art. 3, Sec. 1 and section 134 of this title. Oath of judge, see section 453 of this title. ------DocID 36235 Document 97 of 1452------ -CITE- 28 USC Sec. 134 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 134. Tenure and residence of district judges -STATUTE- (a) The district judges shall hold office during good behavior. (b) Each district judge, except in the District of Columbia, shall reside in the district or one of the districts for which he is appointed. (c) If the public interest and the nature of the business of a district court require that a district judge should maintain his abode at or near a particular place for holding court in the district or within a particular part of the district the judicial council of the circuit may so declare and may make an appropriate order. If the district judges of such a district are unable to agree as to which of them shall maintain his abode at or near the place or within the area specified in such an order the judicial council of the circuit may decide which of them shall do so. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 896; Aug. 3, 1949, ch. 387, Sec. 2(b)(1), 63 Stat. 495; Feb. 10, 1954, ch. 6, Sec. 2(b)(13)(a), 68 Stat. 12; Mar. 18, 1959, Pub. L. 86-3, Sec. 9(c), 73 Stat. 8; May 19, 1961, Pub. L. 87-36, Sec. 2(e)(3), 75 Stat. 83; Sept. 12, 1966, Pub. L. 89-571, Sec. 1, 80 Stat. 764; Dec. 18, 1971, Pub. L. 92-208, Sec. 3(e), 85 Stat. 742.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 1 and section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 12, 1900, ch. 191, Sec. 34, 31 Stat. 84; Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1087; Jan. 7, 1913; ch. 6, 37 Stat. 648; July 30, 1914, ch. 216, 38 Stat. 580; Mar. 2, 1917, ch. 145, Sec. 41, 39 Stat. 965; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; Sept. 14, 1922, ch. 306, Sec. 1, 42 Stat. 837; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118). Section consolidates the last paragraph of section 1 of title 28, U.S.C., 1940 ed., with portions of section 863 of title 48, U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation. Provisions of section 1 of title 28, U.S.C., 1940 ed., relating to the number of judges in the various districts are incorporated in section 133 of this title. A portion of section 863 of title 48, U.S.C., 1940 ed., is retained in said title 48. For remainder of section 863, see Distribution Table. The exception in subsection (b) 'except in the District of Columbia' conforms with the recent decision in U.S. ex. rel. Laughlin v. Eicher, 1944, 56 F.Supp. 972, holding that residence requirement of section 1 of title 28, U.S.C., 1940 ed., did not apply to district judges in the District of Columbia. (See reviser's note under section 44 of this title.) The clause in said last paragraph of section 1 of title 28 providing that any district judge, who violates the residence requirement, shall be deemed guilty of a high misdemeanor, was omitted. This penalty provision was attached to the residence requirement at the time of compilation of the Revised Statutes of 1878, although it is apparent that Congress only intended that the penalty should be invoked upon the unauthorized practice of law. See U.S. ex. rel. Laughlin v. Eicher, supra, in which an outline of the history of said section 1 of title 28 is given. AMENDMENTS 1971 - Subsec. (c). Pub. L. 92-208 struck out provision requiring that one of the district judges for the Eastern District of Louisiana reside in East Baton Rouge Parish, Louisiana. 1966 - Subsec. (a). Pub. L. 89-571 struck out provisions which excepted district judges in Puerto Rico from tenure during good behavior and which instead set eight-year terms for them to be served until their successors were appointed and qualified. 1961 - Subsec. (c). Pub. L. 87-36 required the residence of one of the district judges for the Eastern District of Louisiana to be in East Baton Rouge Parish, Louisiana. 1959 - Subsec. (a). Pub. L. 86-3 struck out provisions which limited district judges in Hawaii to a term of six years. 1954 - Subsecs. (a) and (b) reenacted without change by act Feb. 10, 1954. Subsec. (c). Act Feb. 10, 1954, substituted entirely new provisions giving the judicial council of the circuit the authority to determine residence of district judges when it is in the public interest and the nature of the business of the district court necessitates the presence of a judge at or near a particular place for holding court in the district or within a particular part of the district, for former provisions relating to residence of one of the district judges for the District of Kansas. Subsecs. (d), (e). Act Feb. 10, 1954, struck out subsecs. (d) and (e) which related to residence of one of the district judges for the Southern District of California and one of the district judges for the Southern District of Texas. 1949 - Subsecs. (c) to (e). Act Aug. 3, 1949, added subsecs. (c) to (e). EFFECTIVE DATE OF 1971 AMENDMENT Amendment by Pub. L. 92-208 effective 120 days after Dec. 18, 1971, see section 3(f) of Pub. L. 92-208, set out as a note under section 98 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-3 effective on admission of Hawaii into the Union, see Effective Date of 1959 Amendment note set out under section 133 of this title. Admission of Hawaii into the Union was accomplished Aug. 21, 1959, upon issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding section 491 of Title 48, Territories and Insular Possessions. TENURE AND SALARY RIGHTS OF JUDGES IN PUERTO RICO IN OFFICE ON SEPTEMBER 12, 1966 Section 4 of Pub. L. 89-571 provided that: 'The amendments made by this section to sections 134 and 373 of title 28, United States Code, shall not affect the tenure of office or right to continue to receive salary after resignation, retirement, or failure of reappointment of any district judge for the district of Puerto Rico who is in office on the date of enactment of this Act (Sept. 12, 1966).' APPLICABILITY OF ORDERS UNDER 1954 AMENDMENT Section 2(b)(13)(b) of act Feb. 10, 1954, provided: 'Orders made by the judicial councils of the circuits under the second sentence of subsection (c) of section 134 of Title 28, as amended by this section, determining that a specified district judge shall maintain his abode at or near a place or within an area which the council has theretofore designated for the abode of a district judge under the first sentence of such subsection, shall be applicable only to district judges appointed after the enactment of this act (Feb. 10, 1954).' -CROSS- CROSS REFERENCES Guam district judges, tenure and residence, see section 1424b of Title 48, Territories and Insular Possessions. Judges to hold office during good behavior, see Const., Art. 3, Sec. 1. Official station of district judges, see section 456 of this title. Virgin Islands district judge, tenure, see section 1614 of Title 48, Territories and Insular Possessions. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 992 of this title. ------DocID 36236 Document 98 of 1452------ -CITE- 28 USC Sec. 135 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 135. Salaries of district judges -STATUTE- Each judge of a district court of the United States shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Mar. 2, 1955, ch. 9, Sec. 1(c), 69 Stat. 10; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(c), 78 Stat. 434; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(3), 89 Stat. 422.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 5, and District of Columbia Code, 1940 ed., Sec. 11-302 (Mar. 3, 1911, ch. 231, Sec. 2, 36 Stat. 1087; Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156; Dec. 13, 1926, ch. 6, 44 Stat. 919; May 17, 1932, ch. 190, 47 Stat. 158; July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716). Section consolidates section 5 of title 28, U.S.C., 1940 ed., and section 11-302 of the District of Columbia Code, 1940 ed. 'Chief judge,' in the District of Columbia, was substituted for 'Chief Justice' which appeared in section 11-302 of the District of Columbia Code. (See reviser's note under section 136 of this title.) Words 'to be paid in monthly installments' were omitted, since the time of payment is a matter of administrative convenience. See 20 Comp. Gen. 834. The provision of section 5 of title 28, U.S.C., 1940 ed., for salaries of judges of the district court of Alaska was omitted as covered by section 101 of Title 48, U.S.C., 1940 ed., Territories and Insular Possessions, as amended by a separate section in the bill to enact this revised title. The provision of said section for salary of the Virgin Islands district judge was omitted as covered by section 5a of title 28, U.S.C., 1940 ed., as amended by a separate section in the bill to enact this revised title. Such section 5a is recommended for transfer to title 48, U.S.C., 1940 ed., because of the dual nature of the Virgin Islands district court. For salary of the district judge of Canal Zone district court, see section 1348 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 225 of the Federal Salary Act of 1967, referred to in text, is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81 Stat. 642, as amended, which is classified to chapter 11 (Sec. 351 et seq.) of Title 2, The Congress. -MISC2- AMENDMENTS 1975 - Pub. L. 94-82 substituted provision that each judge of a district court shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provision that each such judge receive a salary of $30,000. 1964 - Pub. L. 88-426 increased the salary of the district court judges from $22,500 to $30,000, and that of the chief judge of the District Court for the District of Columbia from $23,000 to $30,500. 1955 - Act Mar. 2, 1955, increased the salaries of the district court judges from $15,000 to $22,500 a year and increased the salary of the chief judge of the District Court for the District of Columbia from $15,500 to $23,000 a year. EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on the first day of the first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88-426. EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress. SALARY INCREASES 1991 - Salaries of district judges increased to $125,100 per annum, effective on first day of first pay period beginning on or after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1990 - Salaries of district judges continued at $89,500 per annum, and increased to $96,600, effective on first day of first pay period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under section 5332 of Title 5. 1989 - Salaries of district judges increased in the amount of 25 percent of their rates (as last in effect before the increase), effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5. Salaries of district judges continued at $89,500 per annum by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a note under section 5332 of Title 5. 1988 - Salaries of district judges continued at $89,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5. 1987 - Salaries of district judges increased to $89,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of district judges increased to $81,100 effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of district judges increased to $78,700 effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of district judges increased to $76,000 effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of district judges increased to $73,100 effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 140 of Pub. L. 97-92 funds are not available to pay a salary at a rate which exceeds the rate in effect on Dec. 15, 1981, which was $70,300. Maximum rate payable after Dec. 17, 1982, increased from $70,300 to $73,100, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1914, set out as a note under section 5318 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5. 1981 - Salaries of district judges increased to $70,300 effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Salaries of district judges increased to $67,100 effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $57,497.50. Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Salaries of district judges increased to $61,500 effective on first day of first pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $57,497.50 for district judges. Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Salaries of district judges increased to $57,500 effective on first day of first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087, further provided that pursuant to the Legislative Branch Appropriation Act, 1979 (Pub. L. 95-391, title III, Sec. 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 5), funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $54,500. 1977 - Salaries of district judges increased to $54,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1976 - Salaries of district judges increased to $44,000 effective on first day of first pay period beginning on or after Oct. 1, 1976, by Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941, further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $42,000. 1975 - Salaries of district judges increased to $42,000 effective on first day of first pay period beginning on or after Oct. 1, 1975, by Ex. Ord. No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly set out as a note under section 5332 of Title 5. 1969 - Salary of judge increased from $30,000 to $40,000 per annum, commencing Feb. 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1946 - Salary of chief judge of District Court for the District of Columbia increased from $10,500 to $15,500 a year, and the salaries of all other district court judges increased from $10,000 to $15,000 a year by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716. 1926 - Salary of the chief judge of the District Court of the District of Columbia increased from $7,500 to $10,500 a year, and the salaries of all other district court judges increased from $7,500 to $10,000 a year by act Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919. 1919 - Salaries of district court judges increased from $6,000 to $7,500 a year by act Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156. Salaries of the chief justice and associate justices of the Supreme Court of the District of Columbia, the forerunner of the District Court for the District of Columbia, were set at $5,000 by act Mar. 3, 1901, ch. 854, Sec. 1, 30 Stat. 1199, and increased to $7,500 a year by act Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156. 1911 - Salaries of district court judges had been set at $6,000 a year by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1087. -CROSS- CROSS REFERENCES Compensation not to be diminished during continuance in office, see Const. Art. 3, Sec. 1. Guam district judge, salary, see section 1424b of Title 48, Territories and Insular Possessions. Retirement of judges, see section 371 et seq. of this title. Virgin Islands district judge, salary, see section 1614 of Title 48, Territories and Insular Possessions. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 153, 634 of this title; title 26 section 7443. ------DocID 36237 Document 99 of 1452------ -CITE- 28 USC Sec. 136 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 136. Chief judges; precedence of district judges -STATUTE- (a)(1) In any district having more than one district judge, the chief judge of the district shall be the district judge in regular active service who is senior in commission of those judges who - (A) are sixty-four years of age or under; (B) have served for one year or more as a district judge; and (C) have not served previously as chief judge. (2)(A) In any case in which no district judge meets the qualifications of paragraph (1), the youngest district judge in regular active service who is sixty-five years of age or over and who has served as district judge for one year or more shall act as the chief judge. (B) In any case under subparagraph (A) in which there is no district judge in regular active service who has served as a district judge for one year or more, the district judge in regular active service who is senior in commission and who has not served previously as chief judge shall act as the chief judge. (3)(A) Except as provided in subparagraph (C), the chief judge of the district appointed under paragraph (1) shall serve for a term of seven years and shall serve after expiration of such term until another judge is eligible under paragraph (1) to serve as chief judge of the district. (B) Except as provided in subparagraph (C), a district judge acting as chief judge under subparagraph (A) or (B) of paragraph (2) shall serve until a judge has been appointed who meets the qualifications under paragraph (1). (C) No district judge may serve or act as chief judge of the district after attaining the age of seventy years unless no other district judge is qualified to serve as chief judge of the district under paragraph (1) or is qualified to act as chief judge under paragraph (2). (b) The chief judge shall have precedence and preside at any session which he attends. Other district judges shall have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. (c) A judge whose commission extends over more than one district shall be junior to all district judges except in the district in which he resided at the time he entered upon the duties of his office. (d) If the chief judge desires to be relieved of his duties as chief judge while retaining his active status as district judge, he may so certify to the Chief Justice of the United States, and thereafter, the chief judge of the district shall be such other district judge who is qualified to serve or act as chief judge under subsection (a). (e) If a chief judge is temporarily unable to perform his duties as such, they shall be performed by the district judge in active service, present in the district and able and qualified to act, who is next in precedence. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 31, 1951, ch. 655, Sec. 37, 65 Stat. 723; Aug. 6, 1958, Pub. L. 85-593, Sec. 2, 72 Stat. 497; Apr. 2, 1982, Pub. L. 97-164, title II, Sec. 202, 96 Stat. 52.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 375 and District of Columbia Code, 1940 ed., Sec. 11-301 (Mar. 3, 1901, ch. 854, Sec. 60, 61, 31 Stat. 1199; Mar. 3, 1911, ch. 231, Sec. 260, 36 Stat. 1161; Mar. 3, 1911, ch. 231, Sec. 289, 32 Stat. 1167; Feb. 25, 1919, ch. 29, Sec. 6, 40 Stat. 1157; Dec. 20, 1928, ch. 41, 45 Stat. 1056; Mar. 1, 1929, ch. 419, 45 Stat. 1422; June 19, 1930, ch. 537, 46 Stat. 785; May 31, 1938, ch. 290, Sec. 5, 52 Stat. 584). Section consolidates portions of section 375 of title 28, U.S.C., 1940 ed., and section 11-301 of the District of Columbia Code, 1940 ed. The provisions of said section 375 relating to resignation and retirement of judges, and appointment of court officers, are incorporated in sections 294, 371, and 756 of this title. Other provisions of said section 11-301 of the District of Columbia Code are incorporated in section 133 of this title. Subsection (a), providing for a 'chief judge' is new. Such term replaces the terms 'senior district judge,' and 'Chief Justice' of the District Court in the District of Columbia. It is employed in view of the great increase of administrative duties of such judge. The use of the term 'chief judge' with respect to the District of Columbia will result in uniform nomenclature for all district courts. The district judges of that court have expressed approval of such designation. The provision in said section 11-301 of the District of Columbia Code, 1940 ed., that the 'Chief Justice' shall be appointed by the President, by and with the advice and consent of the Senate, was omitted for the purpose of establishing a uniform method of creating the position of chief judge in all districts. The District of Columbia is expressly made a judicial district by section 88 of this title. Subsection (b) is new and conforms with similar provisions respecting associate justices of the Supreme Court and circuit judges in sections 4 and 45 of this title. Subsection (c) is from the proviso in the second paragraph of section 375 of title 28, U.S.C., 1940 ed., which applied only in cases of appointment of court officers. Here it is made applicable to all district judges. Subsections (d) and (e) are new, and conform with section 44 of this title relating to precedence of circuit judges. The official status of the Chief Justice of the District Court for the District of Columbia holding office at the effective date of this act is preserved by section 2 of the bill to enact revised title 28. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 202(a), designated existing first sentence of subsec. (a) as par. (1), substituted 'In any district having more than one district judge, the chief judge of the district shall be the district judge in regular active service who is senior in commission of those judges who - (A) are sixty-four years of age or under; (B) have served for one year or more as a district judge; and (C) have not served previously as chief judge' for 'In each district having more than one judge the district judge in regular active service who is senior in commission and under seventy years of age shall be the chief judge of the district court' in par. (1) as so designated, designated existing second sentence of subsec. (a) as par. (2)(A), substituted 'In any case in which no district judge meets the qualifications of paragraph (1), the youngest district judge in regular active service who is sixty-five years of age or over and who has served as district judge for one year or more shall act as the chief judge' for 'If all the district judges in regular active service are seventy years of age or older the youngest shall act as chief judge until a judge has been appointed and qualified who is under seventy years of age, but a judge may not act as chief judge until he has served as a district judge for one year' in par. (2)(A) as so designated, and added pars. (2)(B) and (3). Subsec. (d). Pub. L. 97-164, Sec. 202(b), substituted 'and thereafter, the chief judge of the district shall be such other district judge who is qualified to serve or act as chief judge under subsection (a)' for 'and thereafter the district judge in active service next in precedence and willing to serve shall be designated by the Chief Justice as the chief judge of the district court'. 1958 - Subsec. (a). Pub. L. 85-593 provided that chief judges of district courts cease to serve as such upon reaching the age of seventy, that the youngest district judge act as chief judge where all district judges in regular active service are seventy years or older until a judge under seventy has been appointed and qualified, and that district judge must have served one year before acting as chief judge. 1951 - Subsec. (a). Act Oct. 31, 1951, inserted 'in active service who is'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-593 effective at expiration of one year from Aug. 6, 1958, see section 3 of Pub. L. 85-593, as amended, set out as a note under section 45 of this title. SAVINGS PROVISION Amendment by Pub. L. 97-164 not to apply or affect any person serving as chief judge on the effective date of Pub. L. 97-164 (Oct. 1, 1982), and the provisions of subsec. (a) of this section as in effect on the day before the effective date of part A of title II of Pub. L. 97-164 (Oct. 1, 1982) applicable to the chief judge of a district court serving on such effective date, see section 203 of Pub. L. 97-164, set out as a note under section 45 of this title. ------DocID 36238 Document 100 of 1452------ -CITE- 28 USC Sec. 137 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 137. Division of business among district judges -STATUTE- The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 27 (Mar. 3, 1911, ch. 231, Sec. 23, 36 Stat. 1090). Section was rewritten and the practice simplified. It provided for division of business and assignment of cases by agreement of judges and, in case of inability to agree, that the senior circuit judge of the circuit should make necessary orders. The revised section is consistent with section 332 of this title, that the last paragraph of which requires the judicial council to make all necessary orders for the effective and expeditious administration of the business of the courts within the circuit. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 48 section 1614. ------DocID 36239 Document 101 of 1452------ -CITE- 28 USC Sec. 138 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 138. Terms abolished -STATUTE- The district court shall not hold formal terms. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 16, 1963, Pub. L. 88-139, Sec. 1, 77 Stat. 248.) -MISC1- HISTORICAL AND REVISION NOTES This section was substituted for a number of special provisions fixing stated times for holding terms of court in the several districts, in order to vest in the courts wider discretion and promote greater efficiency in the administration of the business of such courts. AMENDMENTS 1963 - Pub. L. 88-139 substituted 'The district court shall not hold formal terms' for 'The times for holding regular terms of court at the places fixed by this chapter shall be determined by rule of the district court' in text, and 'Terms abolished' for 'Times for holding regular terms' in section catchline. ------DocID 36240 Document 102 of 1452------ -CITE- 28 USC Sec. 139 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 139. Times for holding regular sessions -STATUTE- The times for commencing regular sessions of the district court for transacting judicial business at the places fixed by this chapter shall be determined by the rules or orders of the court. Such rules or orders may provide that at one or more of such places the court shall be in continuous session for such purposes on all business days throughout the year. At other places a session of the court shall continue for such purposes until terminated by order of final adjournment or by commencement of the next regular session at the same place. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 16, 1963, Pub. L. 88-139, Sec. 1, 77 Stat. 248.) -MISC1- HISTORICAL AND REVISION NOTES The purpose of this section is to remove all doubt as to whether the mere beginning of a new term at one place ends a prior term begun at another place. As revised, it conforms to a uniform course of judicial decisions. See U.S. v. Perlstein, 39 F.Supp. 965, 968 (D.C.N.J. 1941), and cases cited. AMENDMENTS 1963 - Pub. L. 88-139 substituted provisions requiring the times for commencing regular sessions of the district court to be determined by the rules or orders of the court, authorizing such rules or orders to provide that at one or more of the places fixed by this chapter, the court shall be in continuous session on all business days throughout the year, and that at other places, a session continues until terminated by order of final adjournment or by commencement of the next regular session at the same place, for provisions that a term continues until terminated by order of final adjournment or by commencement of the next term at the same place, in the text, and 'Times for holding regular sessions' for 'Term continued until terminated' in section catchline. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE District courts always open, see rule 77, Appendix to this title. CROSS REFERENCES Virgin Islands district courts, times for holding sessions, see section 1615 of Title 48, Territories and Insular Possessions. Courts always open, see section 452 of this title. ------DocID 36241 Document 103 of 1452------ -CITE- 28 USC Sec. 140 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 140. Adjournment -STATUTE- (a) Any district court may, by order made anywhere within its district, adjourn or, with the consent of the judicial council of the circuit, pretermit any regular session of court for insufficient business or other good cause. (b) If the judge of a district court is unable to attend and unable to make an order of adjournment, the clerk may adjourn the court to the next regular session or to any earlier day which he may determine. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 16, 1963, Pub. L. 88-139, Sec. 1, 77 Stat. 248.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 16, 146, 182 (Mar. 3, 1911, ch. 231, Sec. 12, 73, 101, 36 Stat. 1088, 1108, 1122; June 12, 1916, ch. 143, 39 Stat. 225; Feb. 20, 1917, ch. 102, 39 Stat. 927; June 13, 1918, ch. 98, 40 Stat. 604; Feb. 26, 1919, ch. 54, 40 Stat. 1184; May 29, 1924, ch. 209, 43 Stat. 243; June 5, 1924, ch. 259, 43 Stat. 387; Jan. 10, 1925, chs. 68, 69, 43 Stat. 730, 731; Feb. 16, 1925, ch. 233, Sec. 1, 43 Stat. 945; May 7, 1926, ch. 255, 44 Stat. 408; Apr. 21, 1928, ch. 395, 45 Stat. 440; Mar. 2, 1929, ch. 539, 45 Stat. 1518; June 28, 1930, ch. 714, 46 Stat. 829; May 13, 1936, ch. 386, 49 Stat. 1271; Aug. 12, 1937, ch. 595, 50 Stat. 625). Section consolidates section 16 with the third sentence of section 146, and the final proviso in the third paragraph of section 182, all of title 28, U.S.C., 1940 ed. Said section 16 of title 28 provided for adjournment by the marshal, or clerk, on written order of the judge, in case of inability of the district judge to attend at the commencement of any regular, adjourned or special term, or any time during such term. Said sections 146 and 182 thereof, related to the district courts of Colorado and Oklahoma, only, and contained special provisions for adjournment. Subsection (b) omits the requirement of written order where the judge is unable to make such order. The revised section broadens these provisions, and vests discretionary power in the court, by order made anywhere within the district, to adjourn any term of court 'for insufficient business or other good cause.' To establish uniformity, the special provisions relating to Colorado and Oklahoma were omitted. Other provisions of said sections 146 and 182 of title 28, U.S.C., 1940 ed., are incorporated in sections 85 and 116 of this title. The provision of subsection (a) authorizing the district court, with the consent of the judicial council of the circuit, to pretermit any term of court for insufficient business or other good cause, is inserted to obviate the expense and inconvenience of convening and adjourning a term for which no need exists. AMENDMENTS 1963 - Subsecs. (a), (b). Pub. L. 88-139 substituted 'session' for 'term'. ------DocID 36242 Document 104 of 1452------ -CITE- 28 USC Sec. 141 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 141. Special sessions; places; notice -STATUTE- Special sessions of the district court may be held at such places in the district as the nature of the business may require, and upon such notice as the court orders. Any business may be transacted at a special session which might be transacted at a regular session. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 897; Oct. 16, 1963, Pub. L. 88-139, Sec. 1, 77 Stat. 248.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 15 (Mar. 3, 1911, ch. 231, Sec. 11, 36 Stat. 1089). Section was rewritten to include provision that notice of special terms should conform to rules approved by the judicial council of the circuit, thus insuring a uniform practice among the courts for convening special terms. Changes of phraseology were made. AMENDMENTS 1963 - Pub. L. 88-139 substituted 'sessions' for 'terms' and 'session' for 'term' wherever appearing in text and section catchline, and struck out 'pursuant to rules approved by the judicial council of the circuit' after 'court orders' in text. -CROSS- CROSS REFERENCES Virgin Islands district courts, times for holding sessions, see section 1615 of Title 48, Territories and Insular Possessions. ------DocID 36243 Document 105 of 1452------ -CITE- 28 USC Sec. 142 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- (Sec. 142. Repealed. Pub. L. 97-164, title I, Sec. 115(c)(3), Apr. 2, 1982, 96 Stat. 32) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 898; Oct. 9, 1962, Pub. L. 87-764, 76 Stat. 762; Nov. 19, 1977, Pub. L. 95-196, 91 Stat. 1420, related to the providing of accommodations at places for holding court. See section 462 of this title. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. WAIVER OF LIMITATIONS AND RESTRICTIONS The limitations and restrictions contained in this section prior to its repeal were waived with respect to the holding of court at certain places by the following Acts: Pub. L. 87-833, Oct. 15, 1962, 76 Stat. 959, related to Akron, Ohio. Pub. L. 87-699, Sept. 25, 1962, 76 Stat. 598, related to Richland, Washington. Pub. L. 87-562, Sec. 4, July 30, 1962, 76 Stat. 248, related to Fort Myers, Saint Petersburg, Fort Pierce, and West Palm Beach, Florida. Pub. L. 87-560, July 27, 1962, 76 Stat. 247, related to Marshall, Texas. Pub. L. 87-559, July 27, 1962, 76 Stat. 246, related to Decatur, Alabama. Pub. L. 87-553, July 27, 1962, 76 Stat. 222, related to Winchester, Tennessee. Pub. L. 87-551, July 27, 1962, 76 Stat. 221, related to Bridgeport, Connecticut. Pub. L. 87-337, Oct. 3, 1961, 75 Stat. 750, related to Lafayette, Louisiana. Pub. L. 87-36, Sec. 3(g), May 19, 1961, 75 Stat. 83, related to Kalamazoo, Michigan; Fayetteville, North Carolina; and Dyersburg, Tennessee. Pub. L. 86-366, Sept. 22, 1959, 73 Stat. 647, related to Durant, Oklahoma. Act July 20, 1956, ch. 657, 70 Stat. 594, related to Bryson City, North Carolina. Act Sept. 23, 1950, ch. 1006, 64 Stat. 982, related to Klamath Falls, Oregon. Act Aug. 21, 1950, ch. 767, 64 Stat. 469, related to Newnan, Georgia. Act Aug. 10, 1950, ch. 675, Sec. 2, 64 Stat. 438, related to Rock Island, Illinois. Act Oct. 26, 1949, ch. 744, 63 Stat. 923, related to Thomasville, Georgia. Act Oct. 26, 1949, ch. 740, 63 Stat. 921, related to Brunswick, Georgia. ------DocID 36244 Document 106 of 1452------ -CITE- 28 USC Sec. 143 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 143. Vacant judgeship as affecting proceedings -STATUTE- When the office of a district judge becomes vacant, all pending process, pleadings and proceedings shall, when necessary, be continued by the clerk until a judge is appointed or designated to hold such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 898.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 26 (Mar. 3, 1911, ch. 231, Sec. 22, 36 Stat. 1090). The last clause of section 26 of title 28, U.S.C., 1940, ed., prescribing the powers of a designated judge was omitted as covered by section 296 of this title. Minor changes were made in phraseology. ------DocID 36245 Document 107 of 1452------ -CITE- 28 USC Sec. 144 -EXPCITE- TITLE 28 PART I CHAPTER 5 -HEAD- Sec. 144. Bias or prejudice of judge -STATUTE- Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, Sec. 65, 63 Stat. 99.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 25 (Mar. 3, 1911, ch. 231, Sec. 21, 36 Stat. 1090). The provision that the same procedure shall be had when the presiding judge disqualifies himself was omitted as unnecessary. (See section 291 et seq. and section 455 of this title.) Words, 'at which the proceeding is to be heard,' were added to clarify the meaning of words, 'before the beginning of the term.' (See U.S. v. Costea, D.C.Mich. 1943, 52 F.Supp. 3.) Changes were made in phraseology and arrangement. 1949 ACT This amendment clarifies the intent in section 144 of title 28, U.S.C., to conform to the law as it existed at the time of the enactment of the revision limiting the filing of affidavits of prejudice to one such affidavit in any case. AMENDMENTS 1949 - Act May. 24, 1949, substituted 'in any case' for 'as to any judge' in second sentence of second par. ABOLITION OF TERMS For abolition of formal terms of the court and replacement by sessions, see sections 138 and 139 of this title. ------DocID 36246 Document 108 of 1452------ -CITE- 28 USC CHAPTER 6 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- CHAPTER 6 - BANKRUPTCY JUDGES -MISC1- Sec. 151. Designation of bankruptcy courts. 152. Appointment of bankruptcy judges. 153. Salaries; character of service. 154. Division of business; chief judge. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 155. Temporary transfer of bankruptcy judges. 156. Staff; expenses. 157. Procedures. 158. Appeals. PRIOR PROVISIONS A prior chapter 6, consisting of sections 151 to 160, which was added by Pub. L. 95-598, title II, Sec. 201(a), Nov. 6, 1978, 92 Stat. 2657, as amended by Pub. L. 97-164, title I, Sec. 110(d), Apr. 2, 1982, 96 Stat. 29, and which related to bankruptcy courts, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. COURTS DURING TRANSITION Pub. L. 95-598, title IV, Sec. 404, Nov. 6, 1978, 92 Stat. 2683, as amended by Pub. L. 98-249, Sec. 1(b), Mar. 31, 1984, 98 Stat. 116; Pub. L. 98-271, Sec. 1(b), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98-299, Sec. 1(b), May 25, 1984, 98 Stat. 214; Pub. L. 98-325, Sec. 1(b), June 20, 1984, 98 Stat. 268; Pub. L. 98-353, title I, Sec. 121(b), July 10, 1984, 98 Stat. 345, which provided that, for purposes of Pub. L. 95-598, which enacted Title 11, Bankruptcy, and the amendments made by Pub. L. 95-598, the courts of bankruptcy as defined under section 1(10) of former Title 11, created under section 11(a) of former Title 11, and existing on Sept. 30, 1979, continue to be courts of bankruptcy during the transition period beginning Oct. 1, 1979, and ending July 9, 1984, made provision for extension of the term of office of referees in bankruptcy serving on Nov. 6, 1978, and for such a referee to have the title of United States bankruptcy judge, established for each State a merit screening committee to pass on qualifications of such a referee and determine if the term of such a referee should be extended, and set forth the rules and provisions applicable to United States bankruptcy judges during the transition period, was repealed by Pub. L. 98-353, title I, Sec. 114, 122(a), July 10, 1984, 98 Stat. 343, 346, eff. July 10, 1984. TRANSITION STUDY Pub. L. 95-598, title IV, Sec. 406, Nov. 6, 1978, 92 Stat. 2686, as amended by Pub. L. 98-249, Sec. 1(c), Mar. 31, 1984, 98 Stat. 116; Pub. L. 98-271, Sec. 1(c), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98-299, Sec. 1(c), May 25, 1984, 98 Stat. 214; Pub. L. 98-325, Sec. 1(c), June 20, 1984, 98 Stat. 268; Pub. L. 98-353, title I, Sec. 121(c), July 10, 1984, 98 Stat. 346, which provided that during the transition period, Oct. 1, 1979, to July 9, 1984, the Director of the Administrative Office of the United States Courts make continuing studies and surveys in the judicial districts to determine the number of bankruptcy judges needed after July 9, 1984, to provide for the expeditious and effective administration of justice, their regular places of offices, and the places where the court was to be held, and that the Director report to the judicial councils of the circuits and the Judicial Conference of the United States his recommendations, the judicial councils advise the Conference of their recommendations, and the Conference recommend to the Congress and the President, before Jan. 3, 1983, the number of bankruptcy judges needed after July 9, 1984, and the locations at which they were to serve, was repealed by Pub. L. 98-353, title I, Sec. 114, 122(a), July 10, 1984, 98 Stat. 343, 346, eff. July 10, 1984. JUDICIAL ADMINISTRATION DURING TRANSITION Pub. L. 95-598, title IV, Sec. 407, Nov. 6, 1978, 92 Stat. 2686, which provided that the Director of the Administrative Office of the United States Courts appoint a committee of not fewer than seven United States bankruptcy judges to advise the Director with respect to matters arising during the transition period or that are relevant to the purposes of the transition period, and directed that during the transition period, the chief judge of each circuit summon at least one bankruptcy judge from each judicial district within the circuit to the judicial conference of such circuit called and held under section 332 of this title, was repealed by Pub. L. 98-353, title I, Sec. 114, 122(a), July 10, 1984, 98 Stat. 343, 346, eff. July 10, 1984. EXTENSION AND TERMINATION OF TERM OF OFFICE OF BANKRUPTCY JUDGE SERVING ON JUNE 27, 1984 Section 121(e) of Pub. L. 98-353 provided that: 'The term of office of any bankruptcy judge who was serving on June 27, 1984, is extended to and shall expire at the end of the day of enactment of this Act (July 10, 1984).' (Section 121(e) of Pub. L. 98-353 effective June 27, 1984, see section 122(c) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title.) For prior extensions of the term of office of bankruptcy judges see: Pub. L. 98-325, Sec. 2, June 20, 1984, 98 Stat. 268. Pub. L. 98-299, Sec. 2, May 25, 1984, 98 Stat. 214. Pub. L. 98-271, Sec. 2, Apr. 30, 1984, 98 Stat. 163. Pub. L. 98-249, Sec. 2, Mar. 31, 1984, 98 Stat. 116. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 375 of this title; title 11 section 105; title 18 section 6001. ------DocID 36247 Document 109 of 1452------ -CITE- 28 USC Sec. 151 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 151. Designation of bankruptcy courts -STATUTE- In each judicial district, the bankruptcy judges in regular active service shall constitute a unit of the district court to be known as the bankruptcy court for that district. Each bankruptcy judge, as a judicial officer of the district court, may exercise the authority conferred under this chapter with respect to any action, suit, or proceeding and may preside alone and hold a regular or special session of the court, except as otherwise provided by law or by rule or order of the district court. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 336.) -MISC1- EFFECTIVE DATE Section 122 of title I of Pub. L. 98-353 provided that: '(a) Except as otherwise provided in this section, this title and the amendments made by this title (enacting this chapter and sections 1408 to 1412 and 1452 of this title, amending sections 372, 634, 957, 1334, 1360, and 1930 of this title, sections 8331, 8334, 8336, 8339, 8341, and 8344 of Title 5, Government Organization and Employees, and section 105 of Title 11, Bankruptcy, enacting provisions set out as notes preceding section 151 of this title and under sections 151 to 153, 634, and 1334 of this title and section 8331 of Title 5, amending provisions set out as notes preceding sections 151 and 1471 of this title and section 101 of Title 11, and repealing provisions set out as notes preceding sections 151 and 1471 of this title) shall take effect on the date of the enactment of this Act (July 10, 1984). '(b) Section 1334(c)(2) of title 28, United States Code, and section 1411(a) of title 28, United States Code, as added by this Act, shall not apply with respect to cases under title 11 of the United States Code that are pending on the date of enactment of this Act (July 10, 1984), or to proceedings arising in or related to such cases. '(c) Sections 108(b) (enacting provisions set out as a note under section 634 of this title), 113 (amending provisions set out as a note preceding section 101 of Title 11, Bankruptcy), and 121(e) (enacting provisions set out as a note preceding section 151 of this title) shall take effect on June 27, 1984.' SHORT TITLE OF 1984 AMENDMENT Section 1 of Pub. L. 98-353 provided: 'That this Act (enacting this chapter and sections 1408 to 1412 and 1452 of this title and sections 557 to 559 and 1113 of Title 11, Bankruptcy, amending sections 44, 98, 131, 133, 371, 372, 634, 957, 1334, 1360, and 1930 of this title, sections 8331, 8334, 8336, 8339, 8341, 8344, 8701, 8706, 8714a, and 8714b of Title 5, Government Organization and Employees, and sections 101 to 103, 105, 108, 109, 303, 321, 322, 326 to 330, 342, 343, 345, 346, 349, 350, 361 to 363, 365, 366, 501 to 503, 505 to 507, 509, 510, 521 to 525, 541 to 550, 552 to 555, 702 to 704, 707, 723 to 728, 741, 745, 752, 761, 763 to 766, 901 to 903, 921, 922, 927, 943, 945, 1102, 1103, 1105 to 1108, 1112, 1121, 1123 to 1127, 1129, 1141, 1142, 1144 to 1146, 1166, 1168 to 1171, 1173, 1301, 1302, 1304, 1307, 1322, 1324 to 1326, 1328, 1329, 15103, and 151302 of Title 11, enacting provisions set out as notes preceding section 151 of this title and under sections 44, 133, 151 to 153, 371, 634, 1334, and 2075 of this title, sections 8331 and 8706 of Title 5, and preceding section 101 of Title 11 and under sections 101, 365, and 1113 of Title 11, amending provisions set out as notes preceding sections 151, 581, and 1471 of this title and section 101 of Title 11, repealing provisions set out as notes preceding sections 151 and 1471 of this title, amending Rules 2002 and 3001 of the Bankruptcy Rules, set out in the Appendix to this title, and amending Official Bankruptcy Form No. 1 in the Appendix of Forms) may be cited as the 'Bankruptcy Amendments and Federal Judgeship Act of 1984'.' SEPARABILITY Section 119 of Pub. L. 98-353 provided that: 'If any provision of this Act (see Short Title of 1984 Amendment note above) or the application thereof to any person or circumstance is held invalid, the remainder of this Act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, is not affected thereby.' ------DocID 36248 Document 110 of 1452------ -CITE- 28 USC Sec. 152 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 152. Appointment of bankruptcy judges -STATUTE- (a)(1) The United States court of appeals for the circuit shall appoint bankruptcy judges for the judicial districts established in paragraph (2) in such numbers as are established in such paragraph. Such appointments shall be made after considering the recommendations of the Judicial Conference submitted pursuant to subsection (b). Each bankruptcy judge shall be appointed for a term of fourteen years, subject to the provisions of subsection (e). However, upon the expiration of the term, a bankruptcy judge may, with the approval of the judicial council of the circuit, continue to perform the duties of the office until the earlier of the date which is 180 days after the expiration of the term or the date of the appointment of a successor. Bankruptcy judges shall serve as judicial officers of the United States district court established under Article III of the Constitution. (2) The bankruptcy judges appointed pursuant to this section shall be appointed for the several judicial districts as follows: --------------------------------------------------------------------- Districts Judges --------------------------------------------------------------------- Alabama: Northern 5 Middle 2 Southern 2 Alaska 2 Arizona 5 Arkansas: Eastern and Western 3 California: Northern 9 Eastern 6 Central 19 Southern 4 Colorado 5 Connecticut 2 Delaware 1 District of Columbia 1 Florida: Northern 1 Middle 4 Southern 3 Georgia: Northern 6 Middle 2 Southern 2 Hawaii 1 Idaho 2 Illinois: Northern 10 Central 3 Southern 1 Indiana: Northern 3 Southern 4 Iowa: Northern 2 Southern 2 Kansas 4 Kentucky: Eastern 2 Western 3 Louisiana: Eastern 2 Middle 1 Western 3 Maine 2 Maryland 3 Massachusetts 4 Michigan: Eastern 4 Western 3 Minnesota 4 Mississippi: Northern 1 Southern 2 Missouri: Eastern 3 Western 3 Montana 1 Nebraska 2 Nevada 3 New Hampshire 1 New Jersey 7 New Mexico 2 New York: Northern 2 Southern 7 Eastern 6 Western 3 North Carolina: Eastern 2 Middle 2 Western 2 North Dakota 1 Ohio: Northern 8 Southern 7 Oklahoma: Northern 2 Eastern 1 Western 3 Oregon 5 Pennsylvania: Eastern 3 Middle 2 Western 4 Puerto Rico 2 Rhode Island 1 South Carolina 2 South Dakota 2 Tennessee: Eastern 3 Middle 2 Western 3 Texas: Northern 5 Eastern 2 Southern 6 Western 4 Utah 3 Vermont 1 Virginia: Eastern 4 Western 3 Washington: Eastern 2 Western 5 West Virginia: Northern 1 Southern 1 Wisconsin: Eastern 4 Western 2 Wyoming 1. ------------------------------- (3) Whenever a majority of the judges of any court of appeals cannot agree upon the appointment of a bankruptcy judge, the chief judge of such court shall make such appointment. (4) The judges of the district courts for the territories shall serve as the bankruptcy judges for such courts. The United States court of appeals for the circuit within which such a territorial district court is located may appoint bankruptcy judges under this chapter for such district if authorized to do so by the Congress of the United States under this section. (b)(1) The Judicial Conference of the United States shall, from time to time, and after considering the recommendations submitted by the Director of the Administrative Office of the United States Courts after such Director has consulted with the judicial council of the circuit involved, determine the official duty stations of bankruptcy judges and places of holding court. (2) The Judicial Conference shall, from time to time, submit recommendations to the Congress regarding the number of bankruptcy judges needed and the districts in which such judges are needed. (c) Each bankruptcy judge may hold court at such places within the judicial district, in addition to the official duty station of such judge, as the business of the court may require. (d) With the approval of the Judicial Conference and of each of the judicial councils involved, a bankruptcy judge may be designated to serve in any district adjacent to or near the district for which such bankruptcy judge was appointed. (e) A bankruptcy judge may be removed during the term for which such bankruptcy judge is appointed, only for incompetence, misconduct, neglect of duty, or physical or mental disability and only by the judicial council of the circuit in which the judge's official duty station is located. Removal may not occur unless a majority of all of the judges of such council concur in the order of removal. Before any order of removal may be entered, a full specification of charges shall be furnished to such bankruptcy judge who shall be accorded an opportunity to be heard on such charges. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 336, and amended Pub. L. 99-554, title I, Sec. 101, Oct. 27, 1986, 100 Stat. 3088; Pub. L. 100-587, Nov. 3, 1988, 102 Stat. 2982; Pub. L. 101-650, title III, Sec. 304, Dec. 1, 1990, 104 Stat. 5105.) -MISC1- AMENDMENTS 1990 - Subsec. (a)(1). Pub. L. 101-650 inserted after third sentence 'However, upon the expiration of the term, a bankruptcy judge may, with the approval of the judicial council of the circuit, continue to perform the duties of the office until the earlier of the date which is 180 days after the expiration of the term or the date of the appointment of a successor.' 1988 - Subsec. (a)(2). Pub. L. 100-587 in item relating to district of Alaska substituted '2' for '1', in item relating to district of Colorado substituted '5' for '4', in item relating to district of Kansas substituted '4' for '3', in item relating to eastern district of Kentucky substituted '2' for '1', in item relating to eastern district of Texas substituted '2' for '1', in item relating to western district of Texas substituted '4' for '3', and in item relating to district of Arizona substituted '5' for '4'. 1986 - Subsec. (a)(2). Pub. L. 99-554 in item relating to eastern district and western district of Arkansas substituted '3' for '2', in item relating to northern district of California substituted '9' for '7', in item relating to eastern district of California substituted '6' for '4', in item relating to central district of California substituted '19' for '12', in item relating to southern district of California substituted '4' for '3', in item relating to middle district of Florida substituted '4' for '2', in item relating to northern district of Georgia substituted '6' for '4', in item relating to southern district of Georgia substituted '2' for '1', in item relating to district of Idaho substituted '2' for '1', in item relating to northern district of Illinois substituted '10' for '8', in item relating to central district of Illinois substituted '3' for '2', in item relating to northern district of Indiana substituted '3' for '2', in item relating to northern district of Iowa substituted '2' for '1', in item relating to southern district of Iowa substituted '2' for '1', in item relating to western district of Kentucky substituted '3' for '2', in item relating to western district of Louisiana substituted '3' for '2', in item relating to district of Maryland substituted '3' for '2', in item relating to western district of Michigan substituted '3' for '2', in item relating to district of Nebraska substituted '2' for '1', in item relating to district of Nevada substituted '3' for '2', in item relating to district of New Jersey substituted '7' for '5', in item relating to western district of North Carolina substituted '2' for '1', in item relating to northern district of Oklahoma substituted '2' for '1', in item relating to western district of Oklahoma substituted '3' for '2', in item relating to district of Oregon substituted '5' for '4', in item relating to western district of Pennsylvania substituted '4' for '3', in item relating to district of South Carolina substituted '2' for '1', in item relating to district of South Dakota substituted '2' for '1', in item relating to eastern district of Tennessee substituted '3' for '2', in item relating to western district of Tennessee substituted '3' for '2', in item relating to northern district of Texas substituted '5' for '4', in item relating to southern district of Texas substituted '6' for '3', in item relating to western district of Texas substituted '3' for '2', in item relating to district of Utah substituted '3' for '2', in item relating to eastern district of Virginia substituted '4' for '3', in item relating to eastern district of Washington substituted '2' for '1', in item relating to western district of Washington substituted '5' for '4', and in item relating to eastern district of Wisconsin substituted '4' for '3'. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective Oct. 27, 1986, see section 302(b) of Pub. L. 99-554, set out as a note under section 581 of this title. EXTENSION AND TERMINATION OF TERM OF OFFICE OF PART-TIME BANKRUPTCY JUDGE SERVING ON JULY 2, 1986, IN DISTRICT OF OREGON, WESTERN DISTRICT OF MICHIGAN, AND EASTERN DISTRICT OF OKLAHOMA Pub. L. 99-349, title I, July 2, 1986, 100 Stat. 718, provided that: 'Notwithstanding the provisions of section 106(b)(1) of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (section 106(b)(1) of Pub. L. 98-353, set out below), a bankruptcy judge serving on a part-time basis on the date of enactment of this Act (July 2, 1986) may continue to serve as a part-time judge for such district until December 31, 1986, or until such time as a full-time bankruptcy judge for such district is appointed, whichever is earlier: Provided, That these provisions shall apply only to part-time bankruptcy judges serving in the district of Oregon, the western district of Michigan, and the eastern district of Oklahoma.' EXTENSION AND TERMINATION OF TERM OF OFFICE OF BANKRUPTCY JUDGE AND PART-TIME BANKRUPTCY JUDGE SERVING ON JULY 10, 1984; PRACTICE OF LAW BY PART-TIME BANKRUPTCY JUDGE Section 106 of Pub. L. 98-353 provided that: '(a) Notwithstanding section 152 of title 28, United States Code, as added by this Act, the term of office of a bankruptcy judge who is serving on the date of enactment of this Act (July 10, 1984) is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later. '(b)(1) Notwithstanding section 153(a) of title 28, United States Code, as added by this Act, and notwithstanding subsection (a) of this section, a bankruptcy judge serving on a part-time basis on the date of enactment of this Act (July 10, 1984) may continue to serve on such basis for a period not to exceed two years from the date of enactment of this Act (July 10, 1984). '(2) Notwithstanding the provisions of section 153(b) of title 28, United States Code, a bankruptcy judge serving on a part-time basis may engage in the practice of law but may not engage in any other practice, business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of such bankruptcy judge's duties as a judicial officer. The Judicial Conference of the United States may promulgate appropriate rules and regulations to implement this paragraph.' APPOINTMENT TO FILL VACANCIES; NOMINATIONS; QUALIFICATIONS Section 120 of Pub. L. 98-353, as amended by Pub. L. 99-554, title I, Sec. 102, Oct. 27, 1986, 100 Stat. 3089, provided that: '(a)(1) Whenever a court of appeals is authorized to fill a vacancy that occurs on a bankruptcy court of the United States, such court of appeals shall appoint to fill that vacancy a person whose character, experience, ability, and impartiality qualify such person to serve in the Federal judiciary. '(2) It is the sense of the Congress that the courts of appeals should consider for appointment under section 152 of title 28, United States Code, to the first vacancy which arises after the date of the enactment of this Act (July 10, 1984) in the office of each bankruptcy judge, the bankruptcy judge who holds such office immediately before such vacancy arises, if such bankruptcy judge requests to be considered for such appointment. '(b) The judicial council of the circuit involved shall assist the court of appeals by evaluating potential nominees and by recommending to such court for consideration for appointment to each vacancy on the bankruptcy court persons who are qualified to be bankruptcy judges under regulations prescribed by the Judicial Conference of the United States. In the case of the first vacancy which arises after the date of the enactment of this Act (July 10, 1984) in the office of each bankruptcy judge, such potential nominees shall include the bankruptcy judge who holds such office immediately before such vacancy arises, if such bankruptcy judge requests to be considered for such appointment and the judicial council determines that such judge is qualified under subsection (c) of this section to continue to serve. Such potential nominees shall receive consideration equal to that given all other potential nominees for such position. '(c) Before transmitting to the court of appeals the names of the persons the judicial council for the circuit deems best qualified to fill any existing vacancy, the judicial council shall have determined that - '(1) public notice of such vacancy has been given and an effort has been made, in the case of each such vacancy, to identify qualified candidates, without regard to race, color, sex, religion, or national origin, '(2) such persons are members in good standing of at least one State bar, the District of Columbia bar, or the bar of the Commonwealth of Puerto Rico, and members in good standing of every other bar of which they are members, '(3) such persons possess, and have a reputation for, integrity and good character, '(4) such persons are of sound physical and mental health, '(5) such persons possess and have demonstrated commitment to equal justice under law, '(6) such persons possess and have demonstrated outstanding legal ability and competence, as evidenced by substantial legal experience, ability to deal with complex legal problems, aptitude for legal scholarship and writing, and familiarity with courts and court processes, and '(7) such persons demeanor, character, and personality indicate that they would exhibit judicial temperament if appointed to the position of United States bankruptcy judge.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 158, 372, 377 of this title; title 5 section 8331. ------DocID 36249 Document 111 of 1452------ -CITE- 28 USC Sec. 153 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 153. Salaries; character of service -STATUTE- (a) Each bankruptcy judge shall serve on a full-time basis and shall receive as full compensation for his services, a salary at an annual rate that is equal to 92 percent of the salary of a judge of the district court of the United States as determined pursuant to section 135, to be paid at such times as the Judicial Conference of the United States determines. (b) A bankruptcy judge may not engage in the practice of law and may not engage in any other practice, business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of such bankruptcy judge's duties as a judicial officer. The Conference may promulgate appropriate rules and regulations to implement this subsection. (c) Each individual appointed under this chapter shall take the oath or affirmation prescribed by section 453 of this title before performing the duties of the office of bankruptcy judge. (d) A bankruptcy judge appointed under this chapter shall be exempt from the provisions of subchapter I of chapter 63 of title 5. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 338, and amended Pub. L. 100-202, Sec. 101(a), (title IV, Sec. 408(a)), Dec. 22, 1987, 101 Stat. 1329, 1329-26; Pub. L. 100-702, title X, Sec. 1003(a)(1), Nov. 19, 1988, 102 Stat. 4665.) -MISC1- AMENDMENTS 1988 - Subsec. (d). Pub. L. 100-702 added subsec. (d). 1987 - Subsec. (a). Pub. L. 100-202 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: 'Each bankruptcy judge shall serve on a full-time basis and shall receive as full compensation for his services a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361) as adjusted by section 461 of this title, to be paid at such times as the Judicial Conference of the United States determines.' EFFECTIVE DATE OF 1987 AMENDMENT Section 101(a) (title IV, Sec. 408(d)) of Pub. L. 100-202 provided that: 'This section (amending this section, section 634 of this title, and section 356 of Title 2, The Congress) shall become effective October 1, 1988, and any salary affected by the provisions of this section shall be adjusted at the beginning of the first applicable pay period commencing on or after such date of enactment (probably should read 'such date', meaning Oct. 1, 1988).' TRANSITION PROVISIONS Section 1003(b) of Pub. L. 100-702 provided that: '(1) If an individual who is exempted from the Leave Act by operation of amendments under this section (amending this section and sections 156, 631, 634, 712, 752, and 794 of this title) and who was previously subject to the provisions of subchapter I of chapter 63 of title 5, United States Code, without a break in service, again becomes subject to this subchapter on completion of his service as an exempted officer, the unused annual leave and sick leave standing to his credit when he was exempted from this subchapter is deemed to have remained to his credit. '(2) In computing an annuity under section 8339 of title 5, United States Code, the total service of a person specified in paragraph (1) of this subsection who retired on an immediate annuity or dies leaving a survivor or survivors entitled to an annuity includes, without regard to the limitations imposed by subsection (f) of section 8339 of title 5, United States Code, the days of unused sick leave standing to his credit when he was exempted from subchapter I of chapter 63 of title 5, United States Code, except that these days will not be counted in determining average pay or annuity eligibility.' CONTINUATION OF SALARIES OF BANKRUPTCY JUDGES IN EFFECT ON JUNE 27, 1984 Section 105(a) of Pub. L. 98-353 provided that: 'The salary of a bankruptcy judge in effect on June 27, 1984, shall remain in effect until changed as a result of a determination or adjustment made pursuant to section 153(a) of title 28, United States Code, as added by this Act.' PART-TIME BANKRUPTCY JUDGES For provision that notwithstanding subsecs. (a) and (b) of this section, a bankruptcy judge serving on a part-time basis on July 10, 1984, may continue to serve on such basis for two years from such date, and may engage in the practice of law, see section 106 of Pub. L. 98-353, set out as a note under section 152 of this title. SALARY INCREASES 1988 - Salaries of bankruptcy judges continued at $72,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1987 - Salaries of bankruptcy judges increased to $72,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of bankruptcy judges increased to $70,500 effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of bankruptcy judges increased to $68,400 effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of bankruptcy judges (full-time) and bankruptcy judges (part-time) (maximum rate) increased to $66,100 and $33,100, respectively, effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of bankruptcy judges and referees in bankruptcy (full-time), or referees in bankruptcy (part-time) (maximum rate) increased to $63,600 and $31,800, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 101(e) of Pub. L. 97-276 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1982, which was $58,500 for bankruptcy judges and referees in bankruptcy (full-time), and $30,600 for referees in bankruptcy (part-time) (maximum rate). Maximum rate payable to bankruptcy judges after Dec. 17, 1982, increased from $58,500 to $63,600, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1914, set out as a note under section 5318 of Title 5. 1981 - Salaries of bankruptcy judges and referees in bankruptcy (full-time), or referees in bankruptcy (part-time) (maximum rate) increased to $61,200 and $30,600, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12330 further provided that pursuant to section 101(c) of Pub. L. 97-51 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1981, which was $51,167.50 for bankruptcy judges and referees in bankruptcy (full-time), and $25,583.75 for referees in bankruptcy (part-time) (maximum rate). 1980 - Salaries of bankruptcy judges and referees in bankruptcy (full-time), or referees in bankruptcy (part-time) (maximum rate) increased to $58,400 and $29,200, respectively, effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to section 101(c) of Pub. L. 96-369 funds are not available to pay a salary which exceeds the rate in effect on Sept. 30, 1980, which was $51,167.50 for bankruptcy judges and referees in bankruptcy (full-time), and $25,583.75 for referees in bankruptcy (part-time) (maximum rate). For limitations on use of funds for period Oct. 1, 1980 through June 5, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-369 and section 101(c) of Pub. L. 96-536, set out as notes under section 5318 of Title 5. 1979 - Salaries of bankruptcy judges increased to $53,500 effective on first day of first pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $51,167.50 for bankruptcy judges. ------DocID 36250 Document 112 of 1452------ -CITE- 28 USC Sec. 154 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 154. Division of businesses; chief judge -STATUTE- (a) Each bankruptcy court for a district having more than one bankruptcy judge shall by majority vote promulgate rules for the division of business among the bankruptcy judges to the extent that the division of business is not otherwise provided for by the rules of the district court. (b) In each district court having more than one bankruptcy judge the district court shall designate one judge to serve as chief judge of such bankruptcy court. Whenever a majority of the judges of such district court cannot agree upon the designation as chief judge, the chief judge of such district court shall make such designation. The chief judge of the bankruptcy court shall ensure that the rules of the bankruptcy court and of the district court are observed and that the business of the bankruptcy court is handled effectively and expeditiously. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 339.) ------DocID 36251 Document 113 of 1452------ -CITE- 28 USC Sec. 155 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 155. Temporary transfer of bankruptcy judges -STATUTE- (a) A bankruptcy judge may be transferred to serve temporarily as a bankruptcy judge in any judicial district other than the judicial district for which such bankruptcy judge was appointed upon the approval of the judicial council of each of the circuits involved. (b) A bankruptcy judge who has retired may, upon consent, be recalled to serve as a bankruptcy judge in any judicial district by the judicial council of the circuit within which such district is located. Upon recall, a bankruptcy judge may receive a salary for such service in accordance with regulations promulgated by the Judicial Conference of the United States, subject to the restrictions on the payment of an annuity in section 377 of this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such judge. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 339, and amended Pub. L. 99-651, title II, Sec. 202(a), Nov. 14, 1986, 100 Stat. 3648; Pub. L. 100-659, Sec. 4(a), Nov. 15, 1988, 102 Stat. 3918.) -MISC1- AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-659 inserted 'section 377 of this title or in' after 'annuity in' and 'which are applicable to such judge' after 'title 5'. 1986 - Subsec. (b). Pub. L. 99-651 inserted reference to chapter 84 of title 5. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Section 203 of title II of Pub. L. 99-651 provided that: 'This title and the amendments made by this title (enacting section 375 of this title and amending this section and sections 374, 631, 633, 636, and 797 of this title) take effect on January 1, 1987.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 375, 377 of this title. ------DocID 36252 Document 114 of 1452------ -CITE- 28 USC Sec. 156 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 156. Staff; expenses -STATUTE- (a) Each bankruptcy judge may appoint a secretary, a law clerk, and such additional assistants as the Director of the Administrative Office of the United States Courts determines to be necessary. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. (b) Upon certification to the judicial council of the circuit involved and to the Director of the Administrative Office of the United States Courts that the number of cases and proceedings pending within the jurisdiction under section 1334 of this title within a judicial district so warrants, the bankruptcy judges for such district may appoint an individual to serve as clerk of such bankruptcy court. The clerk may appoint, with the approval of such bankruptcy judges, and in such number as may be approved by the Director, necessary deputies, and may remove such deputies with the approval of such bankruptcy judges. (c) Any court may utilize facilities or services, either on or off the court's premises, which pertain to the provision of notices, dockets, calendars, and other administrative information to parties in cases filed under the provisions of title 11, United States Code, where the costs of such facilities or services are paid for out of the assets of the estate and are not charged to the United States. The utilization of such facilities or services shall be subject to such conditions and limitations as the pertinent circuit council may prescribe. (d) No office of the bankruptcy clerk of court may be consolidated with the district clerk of court office without the prior approval of the Judicial Conference and the Congress. (e) In a judicial district where a bankruptcy clerk has been appointed pursuant to subsection (b), the bankruptcy clerk shall be the official custodian of the records and dockets of the bankruptcy court. (f) For purposes of financial accountability in a district where a bankruptcy clerk has been certified, such clerk shall be accountable for and pay into the Treasury all fees, costs, and other monies collected by such clerk except uncollected fees not required by an Act of Congress to be prepaid. Such clerk shall make returns thereof to the Director of the Administrative Office of the United States Courts and the Director of the Executive Office For United States Trustees, under regulations prescribed by such Directors. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 339, and amended Pub. L. 99-554, title I, Sec. 103, 142, 144(a), Oct. 27, 1986, 100 Stat. 3090, 3096; Pub. L. 100-702, title X, Sec. 1003(a)(3), Nov. 19, 1988, 102 Stat. 4665.) -MISC1- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702 inserted at end 'A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court.' 1986 - Subsec. (d). Pub. L. 99-554, Sec. 103, added subsec. (d). Subsecs. (e), (f). Pub. L. 99-554, Sec. 142, 144(a), added subsecs. (e) and (f). EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 103 of Pub. L. 99-554 effective Oct. 27, 1986, and amendment by sections 142 and 144 of Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a), (b) of Pub. L. 99-554, set out as a note under section 581 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1930 of this title. ------DocID 36253 Document 115 of 1452------ -CITE- 28 USC Sec. 157 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 157. Procedures -STATUTE- (a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district. (b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. (2) Core proceedings include, but are not limited to - (A) matters concerning the administration of the estate; (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11; (C) counterclaims by the estate against persons filing claims against the estate; (D) orders in respect to obtaining credit; (E) orders to turn over property of the estate; (F) proceedings to determine, avoid, or recover preferences; (G) motions to terminate, annul, or modify the automatic stay; (H) proceedings to determine, avoid, or recover fraudulent conveyances; (I) determinations as to the dischargeability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge's own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law. (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). (5) The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments, subject to review under section 158 of this title. (d) The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 340, and amended Pub. L. 99-554, title I, Sec. 143, 144(b), Oct. 27, 1986, 100 Stat. 3096.) -MISC1- AMENDMENTS 1986 - Subsec. (b)(2). Pub. L. 99-554, in subpar. (B) substituted 'interests' for 'interest' and inserted reference to chapter 12, and in subpar. (G) inserted a comma after 'annul'. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 158 of this title. ------DocID 36254 Document 116 of 1452------ -CITE- 28 USC Sec. 158 -EXPCITE- TITLE 28 PART I CHAPTER 6 -HEAD- Sec. 158. Appeals -STATUTE- (a) The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving. (b)(1) The judicial council of a circuit may establish a bankruptcy appellate panel, comprised of bankruptcy judges from districts within the circuit, to hear and determine, upon the consent of all the parties, appeals under subsection (a) of this section. (2) If authorized by the Judicial Conference of the United States, the judicial councils of 2 or more circuits may establish a joint bankruptcy appellate panel comprised of bankruptcy judges from the districts within the circuits for which such panel is established, to hear and determine, upon the consent of all the parties, appeals under subsection (a) of this section. (3) No appeal may be referred to a panel under this subsection unless the district judges for the district, by majority vote, authorize such referral of appeals originating within the district. (4) A panel established under this section shall consist of three bankruptcy judges, provided a bankruptcy judge may not hear an appeal originating within a district for which the judge is appointed or designated under section 152 of this title. (c) An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules. (d) The courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 104(a), July 10, 1984, 98 Stat. 341, and amended Pub. L. 101-650, title III, Sec. 305, Dec. 1, 1990, 104 Stat. 5105.) -REFTEXT- REFERENCES IN TEXT The Bankruptcy Rules, referred to in subsec. (c), are set out in the Appendix to Title 11, Bankruptcy. -MISC2- AMENDMENTS 1990 - Subsec. (b)(2) to (4). Pub. L. 101-650 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 157, 1334, 1452 of this title; title 11 section 305. ------DocID 36255 Document 117 of 1452------ -CITE- 28 USC CHAPTER 7 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- CHAPTER 7 - UNITED STATES CLAIMS COURT -MISC1- Sec. 171. Appointment and number of judges; character of court; designation of chief judge. 172. Tenure and salaries of judges. 173. Times and places of holding court. 174. Assignment of judges; decisions. 175. Official duty station; residence. 176. Removal from office. 177. Disbarment of removed judges. 178. Retirement of judges of the Claims Court. AMENDMENTS 1990 - Pub. L. 101-650, title III, Sec. 306(a)(2), Dec. 1, 1990, 104 Stat. 5109, added item 178. 1982 - Pub. L. 97-164, title I, Sec. 105(a), Apr. 2, 1982, 96 Stat. 26, substituted 'United States Claims Court' for 'Court of Claims' as chapter heading, inserted '; designation of chief judge' in item 171, substituted 'Tenure and salaries of judges' for 'Precedence of judges' in item 172, substituted 'Times and places of holding court' for 'Tenure and salaries of judges' in item 173, substituted 'Assignment of judges; decisions' for 'Terms' in item 174, substituted 'Official duty station; residence' for 'Assignment of judges; divisions; hearings; quorum; decisions' in item 175, and added items 176 and 177. 1966 - Pub. L. 89-425, Sec. 3, May 11, 1966, 80 Stat. 140, substituted 'Assignment of judges; divisions; hearings; quorum; decisions' for 'Quorum' in item 175. 1954 - Act Sept. 3, 1954, ch. 1263, Sec. 38, 68 Stat. 1240, inserted '; character of court' in item 171. -CROSS- RULES OF THE UNITED STATES CLAIMS COURT See Appendix to this title. CROSS REFERENCES Jurisdiction of Claims Court, see section 1491 et seq. of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 375 of this title; title 5 section 8331. ------DocID 36256 Document 118 of 1452------ -CITE- 28 USC Sec. 171 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 171. Appointment and number of judges; character of court; designation of chief judge -STATUTE- (a) The President shall appoint, by and with the advice and consent of the Senate, sixteen judges who shall constitute a court of record known as the United States Claims Court. The court is declared to be a court established under article I of the Constitution of the United States. (b) The President shall designate one of the judges of the Claims Court who is less than seventy years of age to serve as chief judge. The chief judge may continue to serve as such until he reaches the age of seventy years or until another judge is designated as chief judge by the President. After the designation of another judge to serve as chief judge, the former chief judge may continue to serve as a judge of the court for the balance of the term to which appointed. -SOURCE- (June 25, 1948, ch. 646, 62 Stat 898; July 28, 1953, ch. 253, Sec. 1, 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 39(a), 68 Stat. 1240; May 11, 1966, Pub. L. 89-425, Sec. 1(b), 80 Stat. 140; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 105(a), 96 Stat. 27.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed. Sec. 241 (Mar. 3, 1911, ch. 231, Sec. 136, 36 Stat. 1135; Feb. 25, 1919, ch. 29, Sec. 4, 40 Stat. 1157; Dec. 13, 1926, ch. 6, Sec. 1 44 Stat. 919). This section contains a part of section 241 of title 28, U.S.C., 1940 ed. The remainder of such section, relating to tenure, salaries and oath, is incorporated in sections 173 and 453 of this title. The term 'chief judge' was substituted for 'Chief Justice.' (See reviser's note under section 136 of this title.) Words 'a court of record known as' were added. For similar provision covering other Federal courts, see sections 132, 211, and 251 of this title. The official status of the Chief Justice of the Court of Claims holding office on the effective date of this act is preserved by section 2 of the bill to enact revised title 28. Minor changes were made in arrangement and phraseology. AMENDMENTS 1982 - Pub. L. 97-164 designated existing provisions as subsec. (a), substituted 'sixteen judges who shall constitute a court of record known as the United States Claims Court' for 'a chief judge and six associate judges who shall constitute a court of record known as the United States Court of Claims' and 'The court is declared to be a court established under article I of the Constitution of the United States' for 'Such court is hereby declared to be a court established under article III of the Constitution of the United States' in subsec. (a) as so designated, and added subsec. (b). 1966 - Pub. L. 89-425 increased the number of associate judges from four to six. 1954 - Act Sept. 3, 1954, inserted '; character or court' in section catchline. 1953 - Act July 28, 1953, inserted second sentence. EFFECTIVE DATE OF 1982 AMENDMENT Section 402 of Pub. L. 97-164 provided that: 'Unless otherwise specified, the provisions of this Act (see Short Title of 1982 Amendment note set out under section 1 of this title) shall take effect on October 1, 1982.' CONTINUED SERVICE OF COMMISSIONERS OF COURT OF CLAIMS AS JUDGES OF UNITED STATES CLAIMS COURT Section 167 of Pub. L. 97-164 provided that: '(a) Notwithstanding the provisions of section 171(a) of title 28, United States Code, as amended by this Act, a commissioner of the United States Court of Claims serving immediately prior to the effective date of this Act (Oct. 1, 1982) shall become a judge of the United States Claims Court on the effective date of this Act. '(b) Notwithstanding the provisions of section 172(a) of title 28, United States Code, as amended by this Act, the initial term of office of a person who becomes a judge of the United States Claims Court under subsection (a) of this section shall expire fifteen years after the date of his or her employment with the United States Court of Claims, or on October 1, 1986, whichever occurs earlier. Any such judge shall continue in office until a successor is sworn or until reappointed. No such individual shall serve as a judge after reaching the age of seventy years. '(c) Notwithstanding the provisions of section 172(b) of title 28, United States Code, as amended by this Act, until such time as a change in the salary rate of a judge of the United States Claims Court occurs in accordance with such section 172(b), the salary of such judge shall be equal to the salary of a Commissioner of the Court of Claims.' TENNESSEE VALLEY AUTHORITY LEGAL REPRESENTATION Section 169 of Pub. L. 97-164 provided that: 'Nothing in this Act (see Short Title of 1982 Amendment note set out under section 1 of this title) affects the authority of the Tennessee Valley Authority under the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831 et seq.) to represent itself by attorneys of its choosing.' TRANSITION PROVISIONS: TRANSFER OF PENDING CASES Section 403 of Pub. L. 97-164 provided that: '(a) Any case pending before the Court of Claims on the effective date of this Act (Oct. 1, 1982) in which a report on the merits has been filed by a commissioner, or in which there is pending a request for review, and upon which the court has not acted, shall be transferred to the United States Court of Appeals for the Federal Circuit. '(b) Any matter pending before the United States Court of Customs and Patent Appeals on the effective date of this Act (Oct. 1, 1982) shall be transferred to the United States Court of Appeals for the Federal Circuit. '(c) Any petition for rehearing, reconsideration, alteration, modification, or other change in any decision of the United States Court of Claims or the United States Court of Customs and Patent Appeals rendered prior to the effective date of this Act (Oct. 1, 1982) that has not been determined by either of those courts on that date, or that is filed after that date, shall be determined by the United States Court of Appeals for the Federal Circuit. '(d) Any matter pending before a commissioner of the United States Court of Claims on the effective date of this Act (Oct. 1, 1982), or any pending dispositive motion that the United States Court of Claims has not determined on that date, shall be determined by the United States Claims Court. '(e) Any case in which a notice of appeal has been filed in a district court of the United States prior to the effective date of this Act (Oct. 1, 1982) shall be decided by the court of appeals to which the appeal was taken.' APPOINTMENT OF UNITED STATES CLAIMS COURT JUDGES For Congressional suggestion that the President select nominees for judgeships on the Claims Court and the Court of Appeals for the Federal Circuit from a broad range of qualified individuals, see section 168 of Pub. L. 97-164, set out as a note under section 44 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 178, 797 of this title. ------DocID 36257 Document 119 of 1452------ -CITE- 28 USC Sec. 172 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 172. Tenure and salaries of judges -STATUTE- (a) Each judge of the United States Claims Court shall be appointed for a term of fifteen years. (b) Each judge shall receive a salary at the rate of pay, and in the same manner, as judges of the district courts of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 898; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 105(a), 96 Stat. 27; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1023, 102 Stat. 4673.) -MISC1- HISTORICAL AND REVISION NOTES This section applies to the judges of the Court of Claims the same rule of precedence applicable to judges of other courts. (See sections 45, 136, 212, and 253 of this title.) AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-702 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: 'Each judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title.' 1982 - Pub. L. 97-164 amended section generally, substituting provisions relating to tenure and salaries of judges (formerly contained in section 173) for provisions relating to precedence of judges. See section 171 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. INITIAL TERM OF CLAIMS COURT JUDGES; SALARIES For provisions directing that the initial terms of office of former Court of Claims commissioners who become judges of the United States Claims Court expire 15 years after the date of his or her employment with the United States Court of Claims or Oct. 1, 1986, whichever occurs earlier, and setting the salary of such judges, see section 167 of Pub. L. 97-164, set out as a note under section 171 of this title. SALARY INCREASES 1991 - Salaries of judges increased to $125,100 per annum, effective on first day of first pay period beginning on or after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1990 - Salaries of judges continued at $89,500 per annum, and increased to $96,600, effective on first day of first pay period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under section 5332 of Title 5. 1989 - Salaries of judges increased in the amount of 25 percent of their rates (as last in effect before the increase), effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5. Salaries of judges increased to Sec. 89,500 per annum by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a note under section 5332 of Title 5. 1988 - Salaries of judges continued at $82,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5. 1987 - Salaries of judges increased to $82,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of judges increased to $72,300 effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of judges increased to $70,200 effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of judges set at $67,800 effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of judges set at $65,200 effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 101(e) of Pub. L. 97-276 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1982, which was $57,500. Maximum rate payable after Dec. 17, 1982, increased from $57,500 to $65,200, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1914, set out as a note under section 5318 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5. 1981 - Salaries of judges increased to $74,300 effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Salaries of judges increased to $70,900 effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $60,662.50. Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Salaries of judges increased to $65,000 effective on first day of first pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $60,662.50. Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Salaries of judges increased to $60,700 effective on first day of first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087 further provided that pursuant to the Legislative Branch Appropriation Act, 1979 (Pub. L. 95-391, title III, Sec. 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 5), funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $57,500. 1977 - Salaries of judges increased to $57,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1976 - Salaries of judges increased to $46,800 effective on first day of first pay period beginning on or after Oct. 1, 1976, see Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941, further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $44,600. 1969 - Salaries of judges increased from $33,000 to $42,500 per annum, commencing Feb. 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1946 - The salaries of the chief judge and associate judges were increased from $12,500 to $17,500 a year by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716. 1926 - The salary of the Chief Justice, now the chief judge, was increased from $8,000 to $12,500 a year, and the salaries of the associate justices, now judges, were increased from $7,500 to $12,500 a year by act Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919. 1919 - The salary of the Chief Justice was increased from $6,500 to $8,000 a year, and the salaries of the associate justices were increased from $6,000 to $7,500 a year by act Feb. 25, 1919, ch. 29, Sec. 1, 40 Stat. 1156. 1911 - The salary of the chief justice was set at $6,500, and the salaries of the associate justices were set at $6,000 by the Judicial Code of 1911, act Mar. 3, 1911, ch. 231, Sec. 1, 36 Stat. 1135. ------DocID 36258 Document 120 of 1452------ -CITE- 28 USC Sec. 173 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 173. Times and places of holding court -STATUTE- The principal office of the United States Claims Court shall be in the District of Columbia, but the Claims Court may hold court at such times and in such places as it may fix by rule of court. The times and places of the sessions of the Claims Court shall be prescribed with a view to securing reasonable opportunity to citizens to appear before the Claims Court with as little inconvenience and expense to citizens as is practicable. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 898; Mar. 2, 1955, ch. 9, Sec. 1(d), 69 Stat. 10; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(d), 78 Stat. 434; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(4), 89 Stat. 422; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 105(a), 96 Stat. 27.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 241 (Mar. 3, 1911, ch. 231, Sec. 136, 36 Stat. 1135; Feb. 25, 1919, ch. 29, Sec. 4, 40 Stat. 1157; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716). This section is based on part of section 241 of title 28, U.S.C., 1940 ed. That portion relating to number, appointment of judges and their oaths, is incorporated in sections 171 and 453 of this title. A provision for monthly salary payments was omitted since time of payment is a matter for administrative determination. (See 20 Comp. Gen. 834.) The term 'chief judge' was substituted for 'Chief Justice.' (See reviser's note under section 136 of this title.) Minor changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 amended section generally, substituting provisions relating to times and places of holding court (formerly contained in section 174) for provisions relating to the tenure and salaries of judges of the Court of Claims. See section 172 of this title. 1975 - Pub. L. 94-82 substituted provision that the chief judge and associate judges receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provision granting each such judge a salary of $33,000 a year. 1964 - Pub. L. 88-426 increased salaries of judges from $25,500 to $33,000 a year. 1955 - Act Mar. 2, 1955, increased salaries of judges from $17,500 to $25,500 a year. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on first day of first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88-426. EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress. -CROSS- RULES OF THE UNITED STATES CLAIMS COURT Court always open; term, see rule 77, Appendix to this title. CROSS REFERENCES Courts always open, see section 452 of this title. ------DocID 36259 Document 121 of 1452------ -CITE- 28 USC Sec. 174 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 174. Assignment of judges; decisions -STATUTE- (a) The judicial power of the United States Claims Court with respect to any action, suit, or proceeding, except congressional reference cases, shall be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges. (b) All decisions of the Claims Court shall be preserved and open to inspection. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 898; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 105(a), 96 Stat. 27.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 243 (Mar. 3, 1911, ch. 231, Sec. 138, 36 Stat. 1136). This section is based on the first sentence of section 243 of title 28, U.S.C., 1940 ed. The remainder of said section is incorporated in section 175 of this title. Words 'the seat of government' were substituted for 'the city of Washington' to conform to similar language respecting the Supreme Court. (See section 2 of this title.) Words 'to be fixed by rule of court' were added to provide greater flexibility in administering the business of the court. For similar provisions covering the district courts, see section 138 of this title. Word 'term' was substituted for 'session' for uniformity. Minor changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 amended section generally, substituting provisions relating to assignment of judges (formerly contained in section 175) for provisions relating to terms of court. See section 173 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36260 Document 122 of 1452------ -CITE- 28 USC Sec. 175 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 175. Official duty station; residence -STATUTE- (a) The official duty station of each judge of the United States Claims Court is the District of Columbia. (b) After appointment and while in active service, each judge shall reside within fifty miles of the District of Columbia. -SOURCE- (Added Pub. L. 89-425, Sec. 2, May 11, 1966, 80 Stat. 140, and amended Pub. L. 97-164, title I, Sec. 105(a), Apr. 2, 1982, 96 Stat. 27.) -MISC1- PRIOR PROVISIONS A prior section 175, act June 25, 1948, ch. 646, 62 Stat. 898, which required three judges of the Court of Claims to constitute a quorum and the concurrence of three judges for any decision, was struck out by section 2 of Pub. L. 89-425. AMENDMENTS 1982 - Pub. L. 97-164 amended section generally, substituting provisions relating to the official duty station and residence of Claims Court judges for provisions relating to assignment of judges, divisions, hearings, quorums and decisions. See section 174 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Official duty stations, see section 456 of this title. ------DocID 36261 Document 123 of 1452------ -CITE- 28 USC Sec. 176 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 176. Removal from office -STATUTE- (a) Removal of a judge of the United States Claims Court during the term for which he is appointed shall be only for incompetency, misconduct, neglect of duty, engaging in the practice of law, or physical or mental disability. Removal shall be by the United States Court of Appeals for the Federal Circuit, but removal may not occur unless a majority of all the judges of such court of appeals concur in the order of removal. (b) Before any order of removal may be entered, a full specification of the charges shall be furnished to the judge involved, and such judge shall be accorded an opportunity to be heard on the charges. (c) Any cause for removal of any judge of the United States Claims Court coming to the knowledge of the Director of the Administrative Office of the United States Courts shall be reported by him to the chief judge of the United States Court of Appeals for the Federal Circuit, and a copy of the report shall at the same time be transmitted to the judge. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 105(a), Apr. 2, 1982, 96 Stat. 28.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 177 of this title. ------DocID 36262 Document 124 of 1452------ -CITE- 28 USC Sec. 177 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 177. Disbarment of removed judges -STATUTE- A judge of the United States Claims Court removed from office in accordance with section 176 of this title shall not be permitted at any time to practice before the Claims Court. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 105(a), Apr. 2, 1982, 96 Stat. 28.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36263 Document 125 of 1452------ -CITE- 28 USC Sec. 178 -EXPCITE- TITLE 28 PART I CHAPTER 7 -HEAD- Sec. 178. Retirement of judges of the Claims Court -STATUTE- (a) A judge of the United States Claims Court who retires from office after attaining the age and meeting the service requirements, whether continuously or otherwise, of this subsection shall, subject to subsection (f), be entitled to receive, during the remainder of the judge's lifetime, an annuity equal to the salary payable to Claims Court judges in regular active service. The age and service requirements for retirement under this subsection are as follows: Years of Attained Age: Service: 65 15 66 14 67 13 68 12 69 11 70 10. (b) A judge of the Claims Court who is not reappointed following the expiration of the term of office of such judge, and who retires upon the completion of such term shall, subject to subsection (f), be entitled to receive, during the remainder of such judge's lifetime, an annuity equal to the salary payable to Claims Court judges in regular active service, if - (1) such judge has served at least 1 full term as judge of the Claims Court, and (2) not earlier than 9 months before the date on which the term of office of such judge expired, and not later than 6 months before such date, such judge advised the President in writing that such judge was willing to accept reappointment as a judge of the Claims Court. (c) A judge of the Claims Court who has served at least 5 years, whether continuously or otherwise, as such a judge, and who retires or is removed from office upon the sole ground of mental or physical disability shall, subject to subsection (f), be entitled to receive, during the remainder of the judge's lifetime - (1) an annuity equal to 50 percent of the salary payable to Claims Court judges in regular active service, if before retirement such judge served less than 10 years, or (2) an annuity equal to the salary payable to Claims Court judges in regular active service, if before retirement such judge served at least 10 years. (d) A judge who retires under subsection (a) or (b) may, at or after such retirement, be called upon by the chief judge of the Claims Court to perform such judicial duties with the Claims Court as may be requested of the retired judge for any period or periods specified by the chief judge, except that in the case of any such judge - (1) the aggregate of such periods in any one calendar year shall not (without his or her consent) exceed 90 calendar days; and (2) he or she shall be relieved of performing such duties during any period in which illness or disability precludes the performance of such duties. Any act, or failure to act, by an individual performing judicial duties pursuant to this subsection shall have the same force and effect as if it were the act (or failure to act) of a Claims Court judge in regular active service. Any individual performing judicial duties pursuant to this subsection shall receive the allowances for official travel and other expenses of a judge in regular active service. (e)(1) Any judge who retires under the provisions of subsection (a) or (b) of this section shall be designated 'senior judge'. (2) Any judge who retires under this section shall not be counted as a judge of the Claims Court for purposes of the number of judgeships authorized by section 171 of this title. (f)(1) A judge shall be entitled to an annuity under this section if the judge elects an annuity under this section by notifying the Director of the Administrative Office of the United States Courts in writing. Such an election - (A) may be made only while an individual is a judge of the Claims Court (except that in the case of an individual who fails to be reappointed as judge at the expiration of a term of office, such election may be made at any time before the day after the day on which his or her successor takes office); and (B) once made, shall, subject to subsection (k), be irrevocable. (2) A judge who elects to receive an annuity under this section shall not be entitled to receive - (A) any annuity to which such judge would otherwise have been entitled under subchapter III of chapter 83, or under chapter 84, of title 5, for service performed as a judge or otherwise; (B) an annuity or salary in senior status or retirement under section 371 or 372 of this title; (C) retired pay under section 7447 of the Internal Revenue Code of 1986; or (D) retired pay under section 4096 of title 38. (g) For purposes of calculating the years of service of an individual under subsections (a) and (c), only those years of service as a judge of the Claims Court or a commissioner of the United States Court of Claims shall be credited, and that portion of the aggregate number of years of such service that is a fractional part of 1 year shall not be credited if it is less than 6 months, and shall be credited if it is 6 months or more. (h) An annuity under this section shall be payable at the times and in the same manner as the salary of a Claims Court judge in regular active service. Such annuity shall begin to accrue on the day following the day on which the annuitant's salary as a judge in regular active service ceases to accrue. (i)(1) Payments under this section which would otherwise be made to a judge of the Claims Court based upon his or her service shall be paid (in whole or in part) by the Director of the Administrative Office of the United States Courts to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Any payment under this paragraph to a person bars recovery by any other person. (2) Paragraph (1) shall apply only to payments made by the Director of the Administrative Office of the United States Courts after the date of receipt by the Director of written notice of such decree, order, or agreement, and such additional information as the Director may prescribe. (3) As used in this subsection, the term 'court' means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands, and any Indian tribal court or court of Indian offense. (j)(1) Subject to paragraph (2), any judge of the Claims Court who retires under this section and who thereafter in the practice of law represents (or supervises or directs the representation of) a client in making any civil claim against the United States or any agency thereof shall forfeit all rights to an annuity under this section for all periods beginning on or after the first day on which he so practices law. (2) If a judge of the Claims Court who retires under this section fails during any calendar year to perform judicial duties required of such judge by subsection (d), such judge shall forfeit all rights to an annuity under this section for the 1-year period which begins on the first day on which he or she so fails to perform such duties. (3) If a judge of the Claims Court who retires under this section accepts compensation for civil office or employment under the Government of the United States (other than the performance of judicial duties under subsection (d)), such judge shall forfeit all rights to an annuity under this section for the period for which such compensation is received. (4)(A) If a judge makes an election under this paragraph - (i) paragraphs (1) and (2) (and subsection (d)) shall not apply to such judge beginning on the date such election takes effect, and (ii) the annuity payable under this section to such judge, for periods beginning on or after the date such election takes effect, shall be equal to the annuity to which such judge is entitled on the day before such effective date. (B) An election under subparagraph (A) - (i) may be made by a judge only if such judge meets the age and service requirements for retirement under subsection (a), (ii) may be made only during the period during which such judge may make an election to receive an annuity under this section or while the judge is receiving an annuity under this section, and (iii) shall be filed with the Director of the Administrative Office of the United States Courts. Such an election, once it takes effect, shall be irrevocable. (C) Any election under this paragraph shall take effect on the first day of the first month following the month in which the election is made. (k)(1) Notwithstanding subsection (f)(1)(B), an individual who has filed an election under subsection (f) to receive an annuity may revoke such election at any time before the first day on which such annuity would (but for such revocation) begin to accrue with respect to such individual. (2) Any revocation under this subsection shall be made by filing a notice thereof in writing with the Director of (FOOTNOTE 1) Administrative Office of the United States Courts. (FOOTNOTE 1) So in original. Probably should be 'of the'. (3) In the case of any revocation under this subsection - (A) for purposes of this section, the individual shall be treated as not having filed an election under subsection (f) to receive an annuity, (B) for purposes of section 376 of this title - (i) the individual shall be treated as not having filed an election under section 376(a)(1), and (ii) section 376(g) shall not apply, and the amount credited to such individual's account (together with interest at 3 percent per annum, compounded on December 31 of each year to the date on which the revocation is filed) shall be returned to such individual, (C) no credit shall be allowed for any service as a judge of the Claims Court or as a commissioner of the United States Court of Claims unless with respect to such service either there has been deducted and withheld the amount required by chapter 83 or 84 (as the case may be) of title 5 or there has been deposited in the Civil Service Retirement and Disability Fund an amount equal to the amount so required, with interest, (D) the Claims Court shall deposit in the Civil Service Retirement and Disability Fund an amount equal to the additional amount it would have contributed to such Fund but for the election under subsection (f), and (E) if subparagraph (D) is complied with, service on the Claims Court or as a commissioner of the United States Court of Claims shall be treated as service with respect to which deductions and contributions had been made during the period of service. (l)(1) There is established in the Treasury a fund which shall be known as the 'Claims Court Judges Retirement Fund'. The Fund is appropriated for the payment of annuities and other payments under this section. (2) The Secretary of the Treasury shall invest, in interest bearing securities of the United States, such currently available portions of the Claims Court Judges Retirement Fund as are not immediately required for payments from the Fund. The income derived from these investments constitutes a part of the Fund. (3)(A) There are authorized to be appropriated to the Claims Court Judges Retirement Fund amounts required to reduce to zero the unfunded liability of the Fund. (B) For purposes of subparagraph (A), the term 'unfunded liability' means the estimated excess, determined on an annual basis in accordance with the provisions of section 9503 of title 31, of the present value of all benefits payable from the Claims Court Judges Retirement Fund, over the balance in the Fund as of the date the unfunded liability is determined. In making any determination under this subparagraph, the Comptroller General shall use the applicable information contained in the reports filed pursuant to section 9503 of title 31, with respect to the retirement annuities provided for in this section. (C) There are authorized to be appropriated such sums as may be necessary to carry out this paragraph. -SOURCE- (Added Pub. L. 101-650, title III, Sec. 306(a)(1), Dec. 1, 1990, 104 Stat. 5105.) -REFTEXT- REFERENCES IN TEXT Section 7447 of the Internal Revenue Code of 1986, referred to in subsec. (f)(2)(C), is classified to section 7447 of Title 26, Internal Revenue Code. -MISC2- EFFECTIVE DATE Section applicable to judges of, and senior judges in active service with, the United States Claims Court on or after Dec. 1, 1990, see section 306(f) of Pub. L. 101-650, set out as an Effective Date of 1990 Amendment note under section 8331 of Title 5, Government Organization and Employees. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 376, 604 of this title; title 5 sections 8334, 8402, 8440b. ------DocID 36264 Document 126 of 1452------ -CITE- 28 USC (CHAPTER 9 -EXPCITE- TITLE 28 PART I (CHAPTER 9 -HEAD- (CHAPTER 9 - REPEALED) ------DocID 36265 Document 127 of 1452------ -CITE- 28 USC Sec. 211 to 216 -EXPCITE- TITLE 28 PART I (CHAPTER 9 -HEAD- (Sec. 211 to 216. Repealed. Pub. L. 97-164, title I, Sec. 106, Apr. 2, 1982, 96 Stat. 28) -MISC1- Section 211, acts June 25, 1948, ch. 646, 62 Stat. 899; Aug. 25, 1958, Pub. L. 85-755, Sec. 1, 72 Stat. 848, provided for creation of United States Court of Customs and Patent Appeals under article III of the United States Constitution and for appointment of a chief judge and four associate judges for that court. Section 212, act June 25, 1948, ch. 646, 62 Stat. 899, provided for order of precedence of chief judge and associate judges of court. Section 213, acts June 25, 1948, ch. 646, 62 Stat. 899; Mar. 2, 1955, ch. 9, Sec. 1(e), 69 Stat. 10; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(e), 78 Stat. 434; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(5), 89 Stat. 422, provided for tenure and salaries of judges. Section 214, act June 25, 1948, ch. 646, 62 Stat. 899, authorized court to hold court at such times and places as it might fix by rule. Section 215, act June 25, 1948, ch. 646, 62 Stat. 899, provided that three judges of court constituted a quorum and that concurrence of three judges was necessary to any decision. Section 216, act June 25, 1948, ch. 646, 62 Stat. 899, provided for filing of written opinions by Court of Customs and Patent Appeals on appeals from decisions of Patent Office and recording of those opinions in Patent Office. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. TRANSFER OF MATTERS AND PETITIONS PENDING IN UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS ON OCTOBER 1, 1982 For provisions that any matter pending before the United States Court of Customs and Patent Appeals on Oct. 1, 1982, and that any petition for rehearing, reconsideration, alteration, modification, or other change in any decision of the United States Court of Customs and Patent Appeals rendered prior to Oct. 1, 1982, that has not been determined on that date or that is filed after that date, be determined by the United States Court of Appeals for the Federal Circuit, see section 403(b), (c) of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36266 Document 128 of 1452------ -CITE- 28 USC CHAPTER 11 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- CHAPTER 11 - COURT OF INTERNATIONAL TRADE -MISC1- Sec. 251. Appointment and number of judges; offices. 252. Tenure and salaries of judges. 253. Duties of chief judge; precedence of judges. 254. Single-judge trial. 255. Three-judge trials. 256. Trials at ports other than New York. 257. Publication of decisions. HISTORICAL AND REVISION NOTES The 'Board of General Appraisers' was designated 'United States Customs Court' by act May 28, 1926, ch. 411, Sec. 1, 44 Stat. 669. General provisions concerning such court were incorporated in section 1518 of title 19, U.S.C., 1940 ed., Customs Duties, until amended by act October 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101, adding a new section to the Judicial Code of 1911, when they were transferred to section 296 of title 28, U.S.C., 1940 ed. They are retained in title 28 by this revision. In this connection former Congressman Walter Chandler said, 'Among the major subjects needing study and revision are special courts, such as the Customs Court, which should be fitted into the judicial system.' (See U.S. Law Weekly, Nov. 7, 1939.) HISTORY OF COURT The United States Customs Court (now Court of International Trade) as 'constituted on June 17, 1930', consisted of nine members as provided by act Sept. 21, 1922, ch. 356, title IV, Sec. 518, 42 Stat. 972, which established the Board of General Appraisers, designated the 'United States Customs Court' by act May 28, 1926, ch. 411, Sec. 1, 44 Stat. 669. Provisions similar to these were contained in act Sept. 21, 1922, ch. 356, title IV, Sec. 518, 42 Stat. 972. That section was superseded by section 518 of the Tariff Act of 1930, and was repealed by section 651 (a)(1) of said 1930 act. The sentence in the former first paragraph as to sitting in a case previously participated in, is from act Aug. 5, 1909, ch. 6, Sec. 28, 36 Stat. 98, which combined and amended Customs Administrative Act June 10, 1890, ch. 407, Sec. 12, 26 Stat. 136, and section 31, as added by act May 27, 1908, ch. 205, 35 Stat. 406. Section 12 of the act of 1890 was expressly saved from repeal by act Sept. 21, 1922, ch. 356, title IV, Sec. 643, 42 Stat. 989, and prior acts, but its provisions, other than the sentence above mentioned, were omitted from the Code. Provisions for the review of decisions of Boards of General Appraisers by the Circuit Courts, made by section 15 of the Customs Administrative Act of June 10, 1890, ch. 407, were superseded by provisions for such review by the Court of Customs Appeals created by section 29 added to that act by the Payne-Aldrich Tariff Act of Aug. 5, 1909, ch. 6. The provisions of said new section 29 were incorporated in and superseded by chapter 8 of the Judicial Code of March 3, 1911, incorporated into the Code as former chapter 8 of Title 28, Judicial Code and Judiciary. R.S. Sec. 2608 provided for the appointment of four appraisers of merchandise, to be employed in visiting ports of entry under the direction of the Secretary of the Treasury, and to assist in the appraisement of merchandise as might be deemed necessary by the Secretary to protect and insure uniformity in the collection of the revenue from customs. It was repealed by act June 10, 1890, ch. 407, Sec. 29, 26 Stat. 141. R.S. Sec. 2609 provided for the appointment of merchant appraisers. R.S. Sec. 2610 made every merchant refusing to serve as such appraiser liable to a penalty. Both sections were superseded by the provisions relating to appraisers and appraisements of the Customs Administrative Act of June 10, 1890, ch. 407, 26 Stat. 131, and subsequent acts, and were repealed by act Sept. 21, 1922, ch. 356, title IV, Sec. 642, 42 Stat. 989. R.S. Sec. 2945, which contained a provision similar to that of R.S. Sec. 2610, was repealed, without mention of section 2610, by said Customs Administrative Act of June 10, 1890, ch. 407, Sec. 29, 26 Stat. 141, and was again repealed by section 642 of act Sept. 21, 1922. R.S. Sec. 2725, which prescribed the compensation of merchant appraisers, and section 2726, which prescribed the salary of the general appraiser at New York, were superseded by the provisions relating to general appraisers and appraisers made by the Customs Administrative Act of June 10, 1890, ch. 407, Sec. 12, 13, 26 Stat. 136, as amended by the Payne-Aldrich Act of Aug. 5, 1909, ch. 6, Sec. 28. R.S. Sec. 2727 fixed the salary of the four general appraisers at the sum of $2,500 a year each, and their actual traveling expenses. It was repealed by act Feb. 27, 1877, ch. 69, 19 Stat. 246. AMENDMENTS 1980 - Pub. L. 96-417, title V, Sec. 501(2), Oct. 10, 1980, 94 Stat. 1742, substituted 'COURT OF INTERNATIONAL TRADE' for 'CUSTOMS COURT' in chapter heading. 1970 - Pub. L. 91-271, title I, Sec. 123(a), June 2, 1970, 84 Stat. 282, substituted 'Single-judge trial' for 'Divisions; powers and assignments' in item 254, and 'Three-judge trials' for 'Publication of decisions' in item 255, and added items 256 and 257. -CROSS- RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE See Appendix to this title. CROSS REFERENCES Jurisdiction of Court of International Trade, see section 1581 et seq. of this title. ------DocID 36267 Document 129 of 1452------ -CITE- 28 USC Sec. 251 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 251. Appointment and number of judges; offices -STATUTE- (a) The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States. (b) The President shall designate one of the judges of the Court of International Trade who is less than seventy years of age to serve as chief judge. The chief judge shall continue to serve as chief judge until he reaches the age of seventy years and another judge is designated as chief judge by the President. After the designation of another judge to serve as chief judge, the former chief judge may continue to serve as a judge of the court. (c) The offices of the Court of International Trade shall be located in New York, New York. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 899; July 14, 1956, ch. 589, Sec. 1, 70 Stat. 532; Oct. 10, 1980, Pub. L. 96-417, title I, Sec. 101, 94 Stat. 1727.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 296 (Mar. 3, 1911, ch. 231, Sec. 187(a), as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101). This section contains only a part of section 296 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in sections 252, 253, 254, 455, 1581, 2071, 2639, and 2640 of this title. The provision that vacancies should be filled by appointment of the President and confirmed by the Senate was omitted as unnecessary in view of the language of the revised section. Words 'a court of record known as' were added. (See Reviser's Note under section 171 of this title.) The term 'chief judge' was substituted for 'presiding judge.' (See reviser's note under section 136 of this title.) The provisions of such section 296 of title 28, U.S.C., 1940 ed., relating to assignment and powers of retired judges were omitted as covered by sections 294 and 296 of this title. Changes in phraseology were made. AMENDMENTS 1980 - Subsec. (a). Pub. L. 96-417 incorporated first par. in provisions designated subsec. (a), redesignated the United States Customs Court as the United States Court of International Trade, and deleted 'appointed' before 'shall be'. Subsec. (b). Pub. L. 96-417 added subsec. (b) and struck out a second paragraph requiring the President to designate from time to time one of the judges to act as chief judge. Subsec. (c). Pub. L. 96-417 designated third par. as subsec. (c) and substituted 'Court of International Trade' for 'court' and 'located in New York, New York' for 'located at the port of New York'. 1956 - Act July 14, 1956, declared the Customs Court to be a court established under article III of the Constitution of the United States. EFFECTIVE DATE OF 1980 AMENDMENT Section 701 of Pub. L. 96-417, as amended by Pub. L. 96-542, Sec. 1, Dec. 17, 1980, 94 Stat. 3209, provided that: '(a) Except as otherwise provided in this section, the provisions of and amendments made by this Act (see section 1 of Pub. L. 96-417, set out as a Short Title of 1980 Amendment note under section 1 of this title) shall take effect on November 1, 1980 and shall apply with respect to civil actions pending on or commenced on or after such date. '(b)(1) The following sections of title 28, United States Code, shall apply with respect to civil actions commenced on or after the effective date of this Act (Nov. 1, 1980): '(A) Sections 1581(d), 1581(g), 1581(h), 1581(i), and 1583, as amended by section 201 of this Act. '(B) Sections 2631(d), 2631(g), 2631(h), 2631(i), 2631(j), 2632(a), 2635, 2636, 2637(c), 2639(b), 2640(a)(5), 2640(c), 2640(d), 2643(a), 2643(c)(2), 2643(c)(4), and 2644, as amended by section 301 of this Act. '(C) Section 1876, as added by section 302(a) of this Act. '(D) Sections 2601 and 2602, as amended by section 403 of this Act. '(E) Section 1919, as amended by section 510 of this Act. '(F) Section 1963A, as added by section 511(a) of this Act. '(2) Sections 337(c) and 641(b) of the Tariff Act of 1930 (19 U.S.C. 1337(c) and 1641(b)), as amended by sections 604 and 611 of this Act, shall apply with respect to civil actions commenced on or after the effective date of this Act. '(3) Section 284 of the Trade Act of 1974 (19 U.S.C. 2395), as added by section 613 of this Act, shall apply with respect to civil actions commenced on or after the effective date of this Act. '(c)(1) The following sections of title 28, United States Code, shall apply with respect to civil actions commenced on or after the 90th day after the effective date of this Act (Nov. 1, 1980): '(A) Sections 1582, 2639(a)(2), and 2640(a)(6), as amended by sections 201 and 301 of this Act. '(B) Sections 1352, 1355, and 1356, as amended by sections 506, 507, and 508 of this Act. '(2) Section 592(e) of the Tariff Act of 1930 (19 U.S.C. 1592(e)), as amended by section 609 of this Act, shall apply with respect to civil actions commenced on or after 90th day after the effective date of this Act.' (Amendment of section 701 of Pub. L. 96-417, set out above, by Pub. L. 96-542 effective as of Nov. 1, 1980, see section 3 of Pub. L. 96-542, set out as a note under section 1516a of Title 19, Customs Duties.) REFERENCES TO CERTAIN COURTS DEEMED REFERENCES TO THE UNITED STATES COURT OF INTERNATIONAL TRADE Section 702 of Pub. L. 96-417 provided that: 'Any reference in any statute or regulation of the United States to the United States Customs Court, the U.S. Customs Court, or the Customs Court shall be deemed to be a reference to the United States Court of International Trade.' EFFECT ON CUSTOMS COURT JUDGES Section 703 of Pub. L. 96-417 provided that: '(a) Except as provided in subsection (b) of this section, the amendments made by title I of this Act (amending this section and section 293 of this title) shall not affect the status of any individual serving as judge or chief judge of the Customs Court on the date of enactment of this Act (Oct. 10, 1980). '(b) The requirement that a person may not continue to serve as chief judge of the Court of International Trade after having reached the age of seventy years, as set forth in the amendment made by section 101 of this Act (amending this section), shall apply to any individual serving as chief judge on or after the date of enactment of this Act (Oct. 10, 1980).' EFFECT ON PENDING CASES Section 704 of Pub. L. 96-417 provided that: 'Nothing in this Act (see section 1 of Pub. L. 96-417, set out as a Short Title of 1980 Amendment note under section 1 of this title) shall cause the dismissal of any action commenced prior to the date of enactment of this Act (Oct. 10, 1980) under jurisdictional statutes relating to the Customs Court or the Court of Customs and Patent Appeals as in effect immediately prior to such date of enactment (Oct. 10, 1980).' TENNESSEE VALLEY AUTHORITY LEGAL REPRESENTATION Section 705 of Pub. L. 96-417 provided that: 'Nothing in this Act (see section 1 of Pub. L. 96-417, set out as a Short Title of 1980 Amendment note under section 1 of this title) affects the authority of the Tennessee Valley Authority under the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831 et seq.) to represent itself by attorneys of its choosing.' LIMITATION OR ALTERATION OF JURISDICTION Section 4 of act July 14, 1956, provided that: 'Nothing contained in this Act (amending this section and sections 292, 293, and 295 of this title) shall be construed in any way to limit or alter the jurisdiction heretofore conferred upon the United States Customs Court (now Court of International Trade) by any provision of law.' CONTINUATION OF ORGANIZATION OF COURT Section 2(b) of act June 25, 1948, provided in part that the provisions of this title as set out in section 1 of act June 25, 1948, with respect to the organization of the court, shall be construed as continuations of existing law, and the tenure of the judges, officers, and employees, in office on Sept. 1, 1948, shall not be affected by its enactment, but each of them shall continue to serve in the same capacity under the appropriate provisions of this title, pursuant to his prior appointment. -CROSS- CROSS REFERENCES Oath of judge, see sections 453 of this title. Official station of Court of International Trade judges, see section 456 of this title. ------DocID 36268 Document 130 of 1452------ -CITE- 28 USC Sec. 252 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 252. Tenure and salaries of judges -STATUTE- Judges of the Court of International Trade shall hold office during good behavior. Each shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 899; Mar. 2, 1955, ch. 9, Sec. 1(f), 69 Stat. 10; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(f), 78 Stat. 434; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(6), 89 Stat. 423; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 502, 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 296 (Mar. 3, 1911, ch. 231, Sec. 187(a), as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101; July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716). This section contains a part of section 296 of title 28, U.S.C., 1940 ed., Other provisions of such section are incorporated in sections 251, 253, 254, 456, 1581, 2071, 2639, and 2640 of this title. A provision exempting judge's salaries from section 1790 of the Revised Statutes was omitted, as such section was repealed by act Aug. 26, 1935, ch. 689, Sec. 1, 49 Stat. 864. A provision for monthly salary payments was omitted since time of payment is a matter for administrative determination. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 225 of the Federal Salary Act of 1967, referred to in text, is section 225 of Pub. L. 90-206, Dec. 16, 1967, 81 Stat. 642, as amended, which is classified to chapter 11 (Sec. 351 et seq.) of Title 2, The Congress. -MISC2- AMENDMENTS 1980 - Pub. L. 96-417 substituted 'Judges of the Court of International Trade' for 'Judge of the Customs Court'. 1975 - Pub. L. 94-82 substituted provision that each judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967, as adjusted by section 461 of this title, for provision that each judge shall receive a salary of $30,000 a year. 1964 - Pub. L. 88-426 increased salaries of judges from $22,500 to $30,000 a year. 1955 - Act Mar. 2, 1955, increased salaries of judges from $15,000 to $22,500 a year. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on first day of first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(c) of Pub. L. 88-426, see section 501 of Pub. L. 88-426. EFFECTIVE DATE OF 1955 AMENDMENT Amendment by act Mar. 2, 1955, effective Mar. 1, 1955, see section 5 of act Mar. 2, 1955, set out as a note under section 31 of Title 2, The Congress. SALARY INCREASES 1991 - Salaries of judges increased to $125,100 per annum, effective on first day of first pay period beginning on or after Jan. 1, 1991, by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1990 - Salaries of judges continued at $89,500 per annum, and increased to $96,600, effective on first day of first pay period beginning on or after Jan. 31, 1990, by Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out as a note under section 5332 of Title 5. 1989 - Salaries of judges increased in the amount of 25 percent of their rates (as last in effect before the increase), effective Jan. 1, 1991, see Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5. Salaries of judges continued at $89,500 per annum by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out as a note under section 5332 of Title 5. 1988 - Salaries of judges continued at $89,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5. 1987 - Salaries of judges increased to $89,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. Salaries of judges increased to $81,100 effective on first day of first pay period beginning on or after Jan. 1, 1987, by Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. 1985 - Salaries of judges increased to $78,700 effective on first day of first pay period beginning on or after Jan. 1, 1985, by Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex. Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, formerly set out as a note under section 5332 of Title 5. 1984 - Salaries of judges increased to $76,000 effective on first day of first pay period beginning on or after Jan. 1, 1984, by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex. Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487, Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under section 5332 of Title 5. 1982 - Salaries of judges increased to $73,100 effective on first day of first pay period beginning on or after Oct. 1, 1982, by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12387 further provided that pursuant to section 140 of Pub. L. 97-92 funds are not available to pay a salary at a rate which exceeds the rate in effect on Dec. 15, 1981, which was $70,300. Maximum rate payable after Dec. 17, 1982, increased from $70,300 to $73,100, see Pub. L. 97-377, title I, Sec. 129(b)-(d), Dec. 21, 1982, 96 Stat. 1914, set out as a note under section 5318 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5. 1981 - Salaries of judges increased to $70,300 effective on first day of first pay period beginning on or after Oct. 1, 1981, by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set out as a note under section 5332 of Title 5. Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Salaries of judges increased to $67,100 effective on first day of first pay period beginning on or after Oct. 1, 1980, by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12248 further provided that pursuant to Pub. L. 96-369 funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1980, which was $57,497.50. Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Salaries of judges increased to $61,500 effective on first day of first pay period beginning on or after Oct. 1, 1979, by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by Ex. Ord. No. 12200, Mar. 12, 1980, 45 F.R. 16443, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12165 further provided that pursuant to Pub. L. 96-86 funds appropriated for fiscal year 1980 may not be used to pay a salary at a rate which exceeds an increase of 5.5 percent over the applicable rate payable for such position or office in effect on Sept. 30, 1978, which was $57,497.50. Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above Level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Salaries of judges increased to $57,500 effective on first day of first pay period beginning on or after Oct. 1, 1978, by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set out as a note under section 5332 of Title 5. Ex. Ord. No. 12087, further provided that pursuant to the Legislative Branch Appropriation Act, 1979 (Pub. L. 95-391, title III, Sec. 304, Sept. 30, 1978, 92 Stat. 788, set out as a note under section 5318 of Title 5), funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1978, which was $54,500. 1977 - Salaries of judges increased to $54,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1976 - Salaries of judges increased to $44,000 effective on first day of first pay period beginning on or after Oct. 1, 1976, see Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. Ex. Ord. No. 11941, further provided that pursuant to the Legislative Branch Appropriation Act, 1977, funds are not available to pay a salary at a rate which exceeds the rate in effect on Sept. 30, 1976, which was $42,000. 1969 - Salaries of judges increased from $30,000 to $40,000 per annum, commencing Feb. 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1946 - The salaries of the presiding judge and associate judges were increased from $10,000 to $15,000 a year by act July 31, 1946, ch. 704, Sec. 1, 60 Stat. 716. 1930 - The salaries of the presiding judge and associate judges were increased from $9,000 to $10,000 a year by the Tariff Act of 1930, act June 17, 1930, ch. 497, title IV, Sec. 518, 46 Stat. 737. -CROSS- CROSS REFERENCES Retirement of judges, see section 371 et seq. of this title. ------DocID 36269 Document 131 of 1452------ -CITE- 28 USC Sec. 253 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 253. Duties of chief judge; precedence of judges -STATUTE- (a) The chief judge of the Court of International Trade, with the approval of the court, shall supervise the fiscal affairs and clerical force of the court; (FOOTNOTE 1) (FOOTNOTE 1) So in original. The semicolon probably should be a period. (b) The chief judge shall promulgate dockets. (c) The chief judge, under rules of the court, may designate any judge or judges of the court to try any case and, when the circumstances so warrant, reassign the case to another judge or judges. (d) Whenever the chief judge is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the judge next in precedence who is able to act, until such disability is removed or another chief judge is appointed and duly qualified. (e) The chief judge shall have precedence and shall preside at any session which he attends. Other judges shall have precedence and shall preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 900; Sept. 9, 1959, Pub. L. 86-243, Sec. 3, 73 Stat. 474; June 2, 1970, Pub. L. 91-271, title I, Sec. 105, 84 Stat. 276; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(3), 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 296 (Mar. 3, 1911, ch. 231, Sec. 187(a), as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101). This section contains a part of section 296 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in sections 251, 252, 254, 456, 1581, 2071, 2639, and 2640 of this title. Provision respecting recommendations for appointment, promotions, or otherwise affecting such clerical force, was omitted as unnecessary in view of section 871 of this title. The second paragraph is partly new and conforms with similar provisions of section 136(e) of this title, relating to the chief judges of district courts. The term 'chief judge' was substituted for 'presiding judge.' (See Reviser's Note under section 136 of this title.) Changes were made in phraseology and arrangement. AMENDMENTS 1980 - Subsec. (a). Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1970 - Pub. L. 91-271 reorganized existing provisions into lettered subsecs. (a) to (e) and made minor changes in phraseology. 1959 - Pub. L. 86-243 required the chief judge to supervise the fiscal affairs and clerical force of the court, with the approval of the court. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-271 effective Oct. 1, 1970, see section 122 of Pub. L. 91-271, set out as a note under section 256 of this title. SAVINGS PROVISION Amendment by Pub. L. 86-243 not to deprive Customs Court (now Court of International Trade) officers or employees of any rights, privileges, or civil service status, see section 4 of Pub. L. 86-243, set out as a note under section 871 of this title. ------DocID 36270 Document 132 of 1452------ -CITE- 28 USC Sec. 254 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 254. Single-judge trials -STATUTE- Except as otherwise provided in section 255 of this title, the judicial power of the Court of International Trade with respect to any action, suit or proceeding shall be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 900; May 24, 1949, ch. 139, Sec. 66, 63 Stat. 99; June 2, 1970, Pub. L. 91-271, title I, Sec. 106, 84 Stat. 277; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(4), 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 296 (Mar. 3, 1911, ch. 231, 187(a), as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101). This section contains a part of section 296 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in sections 251, 252, 253, 456, 1581, 2071, 2639, and 2640 of this title. Words 'when in the opinion of such division or judge the ends of justice so require,' which followed the phrase 'grant a rehearing or retrial,' were omitted as surplusage. The term 'chief judge' was substituted for 'presiding judge.' (See reviser's note under section 136 of this title.) The phrase 'petitions for remission of additional duties' was added to the first paragraph at the suggestion of the court to conform to existing practice. Reappraisement appeals are heard by a single judge and reviewed by a division. (See sections 2631 and 2636 of this title.) The provision of section 296 of title 28, U.S.C., 1940 ed., that the presiding judge shall designate one of the three judges of a division to preside over such division was omitted as in conflict with section 253 of this title (also taken from section 296 of title 28 U.S.C., 1940 ed.), which provides that judges shall preside according to the seniority of their commissions. The latter provision is in acccord with present practice. Changes were made in arrangement and phraseology. 1949 ACT This amendment clarifies section 254 of title 28, U.S.C., by restoring language of the original law. PRIOR PROVISIONS Provisions similar to those relating to the assignment of judges to hear and determine cases, and provisions similar to those authorizing the chief judge to designate judges to hear and determine cases within the jurisdiction of the United States, formerly contained in this section, are covered by sections 255 and 256 of this title, respectively. AMENDMENTS 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1970 - Pub. L. 91-271 substituted in section catchline 'Single-judge trials' for 'Divisions; powers and assignments' and substituted provisions in text requiring the judicial power of the Customs Court with respect to any action, suit, or proceeding to be exercised by a single judge, for provisions setting forth the powers of the chief judge of the Customs Court with respect to the organization of such Court into divisions, and the assignment of judges to hear and determine pending cases. 1949 - Act May 24, 1949, inserted 'to hear or' before 'to hear and determine' in third par. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-271 effective Oct. 1, 1970, see section 122 of Pub. L. 91-271, set out as a note under section 256 of this title. ------DocID 36271 Document 133 of 1452------ -CITE- 28 USC Sec. 255 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 255. Three-judge trials -STATUTE- (a) Upon application of any party to a civil action, or upon his own initiative, the chief judge of the Court of International Trade shall designate any three judges of the court to hear and determine any civil action which the chief judge finds: (1) raises an issue of the constitutionality of an Act of Congress, a proclamation of the President or an Executive order; or (2) has broad or significant implications in the administration or interpretation of the customs laws. (b) A majority of the three judges designated may hear and determine the civil action and all questions pending therein. -SOURCE- (Added Pub. L. 91-271, title I, Sec. 108, June 2, 1970, 84 Stat. 277; Pub. L. 96-417, title V, Sec. 501(5), Oct. 10, 1980, 94 Stat. 1742.) -MISC1- PRIOR PROVISIONS A prior section 255 was renumbered section 257 of this title. AMENDMENTS 1980 - Subsec. (a). Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE Section effective Oct. 1, 1970, see section 122 of Pub. L. 91-271, set out as a note under section 256 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 254 of this title. ------DocID 36272 Document 134 of 1452------ -CITE- 28 USC Sec. 256 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 256. Trials at ports other than New York -STATUTE- (a) The chief judge may designate any judge or judges of the court to proceed, together with necessary assistants, to any port or to any place within the jurisdiction of the United States to preside at a trial or hearing at the port or place. (b) Upon application of a party or upon his own initiative, and upon a showing that the interests of economy, efficiency, and justice will be served, the chief judge may issue an order authorizing a judge of the court to preside in an evidentiary hearing in a foreign country whose laws do not prohibit such a hearing: Provided, however, That an interlocutory appeal may be taken from such an order pursuant to the provisions of section 1292(d)(1) of this title, and the United States Court of Appeals for the Federal Circuit may, in its discretion, consider the appeal. -SOURCE- (Added Pub. L. 91-271, title I, Sec. 109, June 2, 1970, 84 Stat. 277, and amended Pub. L. 97-164, title I, Sec. 107, Apr. 2, 1982, 96 Stat. 28.) -MISC1- AMENDMENTS 1982 - Subsec. (b). Pub. L. 97-164 substituted 'section 1292(d)(1) of this title, and the United States Court of Appeals for the Federal Circuit may, in its discretion, consider the appeal' for 'section 1541(b) of this title, subject to the discretion of the Court of Customs and Patent Appeals as set forth in that section'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE Section 122 of title I of Pub. L. 91-271 provided that: '(a) This title (see Short Title of 1970 Amendment note set out under section 1 of this title) shall become effective on October 1, 1970, and shall thereafter apply to all actions and proceedings in the Customs Court and the Court of Customs and Patent Appeals except those involving merchandise entered before the effective date for which trial has commenced by such effective date. '(b) An appeal for reappraisement timely filed with the Bureau of Customs before the effective date, but as to which trial has not commenced by such date, shall be deemed to have had a summons timely and properly filed under this title. When the judgment or order of the United States Customs Court has become final in this appeal, the papers shall be returned to the appropriate customs officer to decide any remaining matters relating to the entry in accordance with section 500 of the Tariff Act of 1930, as amended (section 1500 of Title 19, Customs Duties). A protest or summons filed after final decision on an appeal for reappraisement shall not include issues which were raised or could have been raised on the appeal for reappraisement. '(c) A protest timely filed with the Bureau of Customs before the effective date of enactment of this Act (June 2, 1970), which is disallowed before that date, and as to which trial has not commenced by such date, shall be deemed to have had a summons timely and properly filed under this title. '(d) All other provisions of this Act (see Short Title notes set out under section 1 of this title and section 1500 of Title 19) shall apply to appeals and disallowed protests deemed to have had summonses timely and properly filed under this section.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1292 of this title. ------DocID 36273 Document 135 of 1452------ -CITE- 28 USC Sec. 257 -EXPCITE- TITLE 28 PART I CHAPTER 11 -HEAD- Sec. 257. Publication of decisions -STATUTE- All decisions of the Court of International Trade shall be preserved and open to inspection. The court shall forward copies of each decision to the Secretary of the Treasury or his designee and to the appropriate customs officer for the district in which the case arose. The Secretary shall publish weekly such decisions as he or the court may designate and abstracts of all other decisions. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 900, Sec. 255; renumbered Sec. 257, and amended June 2, 1970, Pub. L. 91-271, title I, Sec. 107, 84 Stat. 277; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(6), 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 1519 of title 19, U.S.C., 1940 ed., Customs Duties (June 17, 1930, ch. 497, title IV, Sec. 519, 46 Stat. 739). Changes in phraseology were made. AMENDMENTS 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1970 - Pub. L. 91-271 inserted 'or his designee' after 'Secretary of the Treasury,' and substituted 'to the appropriate customs officer' for 'the collector'. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-271 effective Oct. 1, 1970, see section 122 of Pub. L. 91-271, set out as an Effective Date note under section 256 of this title. -CROSS- RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE Opinions and judgments, see rules 54 and 58, Appendix to this title. ------DocID 36274 Document 136 of 1452------ -CITE- 28 USC CHAPTER 13 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- CHAPTER 13 - ASSIGNMENT OF JUDGES TO OTHER COURTS -MISC1- Sec. 291. Circuit judges. 292. District judges. 293. Judges of the Court of International Trade. 294. Assignment of retired justices or judges to active duty. (FOOTNOTE 1) (FOOTNOTE 1) Section catchline amended by Pub. L. 85-755 without corresponding amendment of analysis. 295. Conditions upon designation and assignment. 296. Powers upon designation and assignment. 297. Assignment of judges to courts of the freely associated compact states. AMENDMENTS 1988 - Pub. L. 100-702, title X, Sec. 1022(2), Nov. 19, 1988, 102 Stat. 4673, added item 297. 1982 - Pub. L. 97-164, title I, Sec. 110(c), Apr. 2, 1982, 96 Stat. 29, substituted 'the Court of International Trade' for 'other courts' in item 293. 1958 - Pub. L. 85-755, Sec. 8, Aug. 25, 1958, 72 Stat. 850, substituted 'Judges of other courts' for 'Circuit or district judges to Court of Customs and Patent Appeals' in item 293. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 175, 456, 1407 of this title. ------DocID 36275 Document 137 of 1452------ -CITE- 28 USC Sec. 291 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 291. Circuit judges -STATUTE- (a) The Chief Justice of the United States may designate and assign temporarily any circuit judge to act as circuit judge in another circuit upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit where the need arises. (b) The chief judge of a circuit or the circuit justice may, in the public interest, designate and assign temporarily any circuit judge within the circuit, including a judge designated and assigned to temporary duty therein, to hold a district court in any district within the circuit. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 900; July 28, 1953, ch. 253, Sec. 2, 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 39(b), 68 Stat. 1240; July 9, 1956, ch. 517, Sec. 1(a), 70 Stat. 497; Aug. 25, 1958, Pub. L. 85-755, Sec. 2, 72 Stat. 848; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 202, 92 Stat. 2660; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 108, 96 Stat. 28.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 17, 22 (Mar. 3, 1911, ch. 231, Sec. 13, 18, 36 Stat. 1089; Oct. 3, 1913, ch. 18, 38 Stat. 203; Sept. 14, 1922, ch. 306, Sec. 3, 5, 42 Stat. 839; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1936, ch. 804, 49 Stat. 1921; Aug. 24, 1937, ch. 754, Sec. 4, 50 Stat. 753; Dec. 29, 1942, ch. 835, Sec. 1, 56 Stat. 1094). Section consolidates all provisions of sections 17 and 22 of title 28, U.S.C., 1940 ed., relating to designation and assignment of circuit judges. The revised section omits a reference to the Chief Justice contained in said section 22, since in exercising the powers under subsection (b), he acts as a circuit justice. Paragraph (d) of said section 17, making the section applicable to the United States Court of Appeals for the District of Columbia, is omitted since such court is included in this revision because the District of Columbia is made a separate circuit. (See section 41 of this title.) Provisions of said sections 17 and 22 authorizing the senior Associate Justice to act in the absence of the Chief Justice of the United States were omitted as surplusage in view of specific authority to so act in section 3 of this title. The words in said section 17 'for such time as the business of such district court may require,' were omitted as inconsistent with the language of said section 22 of title 28, U.S.C., 1940 ed., which employed the words 'the public interest requires' and 'from time to time and until he shall otherwise direct.' The revised section and sections 294 and 296 of this title make clear the power to make designation and assignment without any limitation of time, to revoke such designation and assignment and to make, from time to time, new designations and assignments. The term 'chief judge' of the circuit was substituted for 'senior circuit judge.' (See reviser's note under section 136 of this title.) References in said sections 17 and 22 to retired judges were omitted as covered by section 294 of this title. Other provisions of said section 17 of title 28, U.S.C., 1940 ed., are incorporated in sections 292, 295 and 296 of this title. Other provisions of said section 22 of title 28, U.S.C., 1940 ed., are incorporated in section 296 of this title. Changes were made in phraseology and arrangement. AMENDMENTS 1982 - Subsecs. (b), (c). Pub. L. 97-164 redesignated subsec. (c) as (b). Former subsec. (b), which authorized the Chief Justice of the United States to designate and temporarily assign any circuit judge to serve as a judge of the Court of Claims or the Court of Customs and Patent Appeals upon presentation to him of a certificate of necessity by the chief judge of the court in which the need arose, was struck out. 1978 - Subsec. (c). Pub. L. 95-598 directed the amendment of subsec. (c) by inserting 'or bankruptcy' after 'to hold a district', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Subsec. (a). Pub. L. 85-755 struck out provision for assignment of any judge of the Court of Claims to serve as circuit judge in any circuit. See section 293(a) of this title. Subsec. (b). Pub. L. 85-755 redesignated subsec. (c) as (b) and incorporated in it provision for assignment of circuit judges to Court of Customs and Patent Appeals formerly contained in section 293 of this title. Former subsec. (b), which provided for assignment of judges of the Court of Customs and Patent Appeals to serve as judges of the Court of Appeals or the District Court for the District of Columbia, was struck out. See section 293(a) of this title. Subsecs. (c), (d). Pub. L. 85-755 redesignated subsec. (d) as (c). Former subsec. (c) redesignated (b). 1956 - Subsec. (a). Act July 9, 1956, inserted 'or any judge of the Court of Claims to serve as a circuit judge in any circuit'. 1954 - Subsec. (c). Act Sept. 3, 1954, struck out 'United States' from name of Court of Claims. 1953 - Subsecs. (c), (d). Act July 28, 1953, added subsec. (c) and redesignated former subsec. (c) as (d). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. JURISDICTION OF UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Section 7 of Pub. L. 85-755 provided that: 'Nothing contained in this Act (amending sections 211 and 291 to 295 of this title) shall be construed in any way to limit or alter the jurisdiction heretofore conferred upon the United States Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit) by any provision of law.' -CROSS- CROSS REFERENCES Assignment of circuit judge to serve as judge in District Court of Guam by Chief Justice of the United States, see section 1424b of Title 48, Territories and Insular Possessions. Assignment of judge to serve temporarily as a judge of the District Court of the Virgin Islands, see section 1614 of Title 48. ------DocID 36276 Document 138 of 1452------ -CITE- 28 USC Sec. 292 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 292. District judges -STATUTE- (a) The chief judge of a circuit may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires. Such designations or assignments shall be in conformity with the rules or orders of the court of appeals of the circuit. (b) The chief judge of a circuit may, in the public interest, designate and assign temporarily any district judge of the circuit to hold a district court in any district within the circuit. (c) The chief judge of the United States Court of Appeals for the District of Columbia Circuit may, upon presentation of a certificate of necessity by the chief judge of the Superior Court of the District of Columbia pursuant to section 11-908(c) of the District of Columbia Code, designate and assign temporarily any district judge of the circuit to serve as a judge of such Superior Court, if such assignment (1) is approved by the Attorney General of the United States following a determination by him to the effect that such assignment is necessary to meet the ends of justice, and (2) is approved by the chief judge of the United States District Court for the District of Columbia. (d) The Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises. (e) The Chief Justice of the United States may designate and assign temporarily any district judge to serve as a judge of the Court of International Trade upon presentation to him of a certificate of necessity by the chief judge of the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 901; July 28, 1953, ch. 253, Sec. 3, 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 39(c), 68 Stat. 1240; July 9, 1956, ch. 517, Sec. 1(b), 70 Stat. 497; July 14, 1956, ch. 589, Sec. 2, 70 Stat. 532; Aug. 25, 1958, Pub. L. 85-755, Sec. 3, 72 Stat. 848; July 29, 1970, Pub. L. 91-358, title I, Sec. 172(e), 84 Stat. 591; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 203, 204, 92 Stat. 2660; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(7), 94 Stat. 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 109, 96 Stat. 28.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 17, 21 and 216 (Mar. 3, 1911, ch. 231, Sec. 13, 17, 120, 36 Stat. 1089, 1132; Sept. 14, 1922, ch. 306, Sec. 3, 42 Stat. 839; Aug. 24, 1937, ch. 754, Sec. 4, 50 Stat. 753; Dec. 29, 1942, ch. 835, Sec. 1, 56 Stat. 1094). Section consolidates and simplifies all provisions of sections 17, 21 and 216 of title 28, U.S.C., 1940 ed., relating to designation and assignment of district judges. Term 'chief judge' was substituted for 'senior circuit judge.' (See Reviser's Note under section 136 of this title.) Sections 17 and 21 of title 28, U.S.C., 1940 ed., were inconsistent insofar as the words 'or in his absence, the circuit judges thereof,' appearing in said section 17 were not in section 21, and the words 'senior circuit judge then present in the circuit,' appearing in section 21 were not in section 17. The revised section omits all such words and leaves designation of assignment to the chief judge of the circuit. If the chief judge is unable to perform his duties they devolve, under section 45 of this title, upon the circuit judge next in seniority of commission. The provision of said section 17, that designation of a district judge to another circuit should be from an adjacent circuit if practicable, was omitted as an unnecessary restriction on the discretion of the Chief Justice. Section 19 of title 28, U.S.C., 1940 ed., is omitted as unnecessary. It authorized the Chief Justice of the United States to designate and assign any district judge to a district upon receiving a certificate from the clerk of the district that all circuit judges and the circuit justice were absent from the circuit, or were unable to appoint a substitute judge for the district,or where the district judge actually designated was disabled or neglected to hold court. For omission of reference in said section 17 to senior Associate Justice, see reviser's note under section 291 of this title. Reference in said section 17 to retired judges were omitted as covered by section 294 of this title. Other provisions of said section 17 of title 28, U.S.C., 1940 ed., are incorporated in sections 291, 295, and 296 of this title. Other provisions of said section 216 of such title are incorporated in sections 45 and 47 of this title. Words 'either in a district court or court of appeals' were inserted in subsection (c) as suggested by Hon. Learned Hand, Senior Circuit Judge of the Second Circuit. The revised section permits a district judge to be assigned directly to the circuit court of appeals of another circuit. Under existing law it has been assumed that he must be assigned to serve as a district judge on the other circuit and then designated to serve on the circuit court of appeals by that court in which his services are required. Many changes were made in phraseology. AMENDMENTS 1982 - Subsec. (e). Pub. L. 97-164 struck out 'the Court of Claims, the Court of Customs and Patent Appeals or' after 'to serve as a judge of' and 'in which the need arises' after 'chief judge of the court'. 1980 - Subsec. (e). Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1978 - Subsecs. (b), (d). Pub. L. 95-598 directed the amendment of subsec. (b) by substituting 'to hold a district court or a bankruptcy court' for 'to hold a district court' and the amendment of subsec. (d) by substituting 'in a bankruptcy court, district court, or court of appeals' for 'either in a district court or court of appeals', which amendments did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1970 - Subsecs. (c) to (e). Pub. L. 91-358 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. 1958 - Subsecs. (a) to (c). Pub. L. 85-755 reenacted subsecs. (a) to (c) without change. Subsec. (d). Pub. L. 85-755 incorporated provisions for assignment of district judges to the Court of Customs and Patent Appeals and the Customs Court, formerly contained in section 293 of this title and subsec. (f) of this section. Subsec. (e). Pub. L. 85-755 struck out subsec. (e) which provided for assignment of judges of the Court of Claims to district courts. See section 293(a) of this title. Subsec. (f). Pub. L. 85-755 struck out subsec. (f) which provided for assignment of district judges to the Customs Court. See subsec. (d) of this section. 1956 - Subsec. (e). Act July 9, 1956, added subsec. (e). Subsec. (f). Act July 14, 1956, added subsec. (f). 1954 - Subsec. (d). Act Sept. 3, 1954, struck out 'United States' from name of Court of Claims. 1953 - Subsec. (d). Act July 28, 1953, added subsec. (d). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-358 effective on first day of seventh calendar month which begins after July 29, 1970, see section 199(a) of Pub. L. 91-358, set out as a note under section 1257 of this title. JURISDICTION OF UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Amendment by Pub. L. 85-755 not limiting or altering the jurisdiction of the United States Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), see section 7 of Pub. L. 85-755, set out as a note under section 291 of this title. LIMITATION OR ALTERATION OF JURISDICTION Amendment by act July 14, 1956, not to be construed as limiting or altering the jurisdiction heretofore conferred upon the Customs Court (now United States Court of International Trade), see section 4 of act July 14, 1956, set out as a note under section 251 of this title. -CROSS- CROSS REFERENCES Assignment of district judge to serve as judge in District Court of Guam by Chief Justice of the United States, see section 1424b of Title 48, Territories and Insular Possessions. Assignment of judge to serve temporarily as a judge of the District Court of the Virgin Islands, see section 1614 of Title 48. ------DocID 36277 Document 139 of 1452------ -CITE- 28 USC Sec. 293 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 293. Judges of the Court of International Trade -STATUTE- (a) (FOOTNOTE 1) The Chief Justice of the United States may designate and assign temporarily any judge of the Court of International Trade to perform judicial duties in any circuit, either in a court of appeals or district court, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit in which the need arises. (FOOTNOTE 1) There is no subsec. (b). -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 901; July 14, 1956, ch. 589, Sec. 3(a), 70 Stat. 532; Aug. 25, 1958, Pub. L. 85-755, Sec. 4, 72 Stat. 848; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 205, 92 Stat. 2660; Oct. 10, 1980, Pub. L. 96-417, title I, Sec. 102, title V, Sec. 501(8), 94 Stat. 1727, 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 110(a), (b), 96 Stat. 29.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 301 (Mar. 3, 1911, ch. 231, Sec. 188, 36 Stat. 1143; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475). Section simplifies last sentence of section 301 of title 28, U.S.C., 1940 ed., and is in conformity with other designation and assignment provisions of this chapter. Other provisions of said section 301 of title 28, U.S.C., 1940 ed., are incorporated in sections 211-213, 215, and 296 of this title. This section transfers from the President to the Chief Justice of the United States the authority to designate and assign which is in conformity with sections 201 and 292 of this title. The words 'he is willing to undertake' were added to make clear that such service is voluntary. The term 'chief judge' was substituted for 'presiding judge.' (See reviser's note under section 136 of this title.) Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164, Sec. 110(b), substituted 'the Court of International Trade' for 'other courts' in section catchline. Subsec. (a). Pub. L. 97-164, Sec. 110(a)(1), (2), redesignated subsec. (b) as (a). Former subsec. (a), which authorized the Chief Justice to designate and assign judges of the Court of Claims or the Court of Customs and Patent Appeals to serve temporarily on the other of these two courts or in a court of appeals or district court of any circuit in times of necessity, was struck out. Subsec. (b). Pub. L. 97-164, Sec. 110(a)(2), (3), redesignated subsec. (e), as that subsec. was to have become effective pursuant to Pub. L. 95-598, as subsec. (b). Former subsec. (b) redesignated (a). See 1978 Amendment note below. Subsecs. (c), (d). Pub. L. 97-164, Sec. 110(a)(1), struck out subsecs. (c) and (d) which related, respectively, to the authority of the chief judge of the Court of Customs and Patent Appeals to designate and assign temporarily any judge of the Court of Customs and Patent Appeals to serve as a judge of the Court of International Trade and to the authority of the chief judge of the Court of International Trade to designate and assign temporarily any judge of the Court of International Trade to serve as a judge of the Court of Customs and Patent Appeals or the Court of Claims. Subsec. (e). Pub. L. 97-164, Sec. 110(a)(3), redesignated subsec. (e), as that subsec. was to have become effective pursuant to Pub. L. 95-598, as subsec. (b). See 1978 Amendment note below. 1980 - Subsec. (b). Pub. L. 96-417, Sec. 102(a), redesignated the Customs Court as the Court of International Trade and authorized performance of judicial functions in a court of appeals. Subsec. (c). Pub. L. 96-417, Sec. 501(8), redesignated the Customs Court as the Court of International Trade. Subsec. (d). Pub. L. 96-417, Sec. 102(b), redesignated the Customs Court as the Court of International Trade and authorized temporary assignments to the Court of Claims of judges of the Court of International Trade upon presentation of a certificate of necessity by the chief judge of the Court of Claims. 1978 - Subsec. (e). Pub. L. 95-598 directed the amendment of this section by adding subsec. (e) relating to temporary assignments of bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Pub. L. 85-755 substituted 'Judges of other courts' for 'Circuit or district judges to court of customs and patent appeals' in section catchline. Subsec. (a). Pub. L. 85-755 added subsec. (a). It incorporates provisions of former sections 291(a), (b) and 292(e) of this title respecting assignment of any judge of the Court of Claims to serve as circuit judge in any circuit, assignment of judges of the Court of Customs and Patent Appeals to serve as judges of the Court of Appeals or the District Court of Appeals or the District Court for the District of Columbia, and assignment of judges of the Court of Claims to district courts, respectively. Subsec. (b). Pub. L. 85-755 designated existing second par. as subsec. (b). Subsecs. (c), (d). Pub. L. 85-755 added subsecs. (c) and (d). 1956 - Act July 14, 1956, authorized the Chief Justice of the United States to designate and assign temporarily a judge of the Customs Court to perform judicial duties in a district court in any circuit. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. JURISDICTION OF UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Amendment by Pub. L. 85-755 not limiting or altering the jurisdiction of the United States Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), see section 7 of Pub. L. 85-755, set out as a note under section 291 of this title. LIMITATION OR ALTERATION OF JURISDICTION Amendment by act July 14, 1956, not to be construed as limiting or altering the jurisdiction heretofore conferred upon the Customs Court (now United States Court of International Trade), see section 4 of act July 14, 1956, set out as a note under section 251 of this title. ------DocID 36278 Document 140 of 1452------ -CITE- 28 USC Sec. 294 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 294. Assignment of retired Justices or judges to active duty -STATUTE- (a) Any retired Chief Justice of the United States or Associate Justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit, including those of a circuit justice, as he is willing to undertake. (b) Any judge of the United States who has retired from regular active service under section 371(b) or 372(a) of this title shall be known and designated as a senior judge and may continue to perform such judicial duties as he is willing and able to undertake, when designated and assigned as provided in subsections (c) and (d). (c) Any retired circuit or district judge may be designated and assigned by the chief judge or judicial council of his circuit to perform such judicial duties within the circuit as he is willing and able to undertake. Any other retired judge of the United States may be designated and assigned by the chief judge of his court to perform such judicial duties in such court as he is willing and able to undertake. (d) The Chief Justice of the United States shall maintain a roster of retired judges of the United States who are willing and able to undertake special judicial duties from time to time outside their own circuit, in the case of a retired circuit or district judge, or in a court other than their own, in the case of other retired judges, which roster shall be known as the roster or senior judges. Any such retired judge of the United States may be designated and assigned by the Chief Justice to perform such judicial duties as he is willing and able to undertake in a court outside his own circuit, in the case of a retired circuit or district judge, or in a court other than his own, in the case of any other retired judge of the United States. Such designation and assignment to a court of appeals or district court shall be made upon the presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises and to any other court of the United States upon the presentation of a certificate of necessity by the chief judge of such court. No such designation or assignment shall be made to the Supreme Court. (e) No retired justice or judge shall perform judicial duties except when designated and assigned. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 901; July 9, 1956, ch. 517, Sec. 1(c), 70 Stat. 497; Aug. 29, 1957, Pub. L. 85-219, 71 Stat. 495; Aug. 25, 1958, Pub. L. 85-755, Sec. 5, 72 Stat. 849; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 206, 92 Stat. 2660.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 375, 375a, and 375f (Mar. 3, 1911, ch. 231, Sec. 260, 36 Stat. 1161; Feb. 25, 1919, ch. 29, Sec. 6, 40 Stat. 1157; Mar. 1, 1929, ch. 419, 45 Stat. 1422; Mar. 1, 1937, ch. 21, 50 Stat. 24; Feb. 11, 1938, ch. 25, 52 Stat. 28; Aug. 5, 1939, ch. 433, Sec. 5, as added May 11, 1944, ch. 192, Sec. 1-3, 58 Stat. 218, 219). Section consolidates those parts of sections 375, 375a, and 375f of title 28, U.S.C., 1940 ed., relating to designation and assignment of retired justices and judges. Other provisions of said sections 375 and 375a, appear in sections 136, 371, and 756 of this title. The term 'chief judge' was substituted for 'presiding judge or senior judge.' (See Reviser's Note under section 136 of this title.) Changes were made in phraseology. AMENDMENTS 1978 - Subsecs. (c), (d). Pub. L. 95-598 directed the amendment of subsec. (c) by substituting 'district or bankruptcy judge' for 'or district' and the amendment of subsec. (d) by substituting ', district judge or bankruptcy judge' for 'or district judge', which amendments did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Subsec. (a). Pub. L. 85-755 reenacted subsec. (a) without change. Subsecs. (b) to (d). Pub. L. 85-755 revised and rearranged subject matter to apply 'senior judge' to all judges who retire from regular active service under sections 371(b) and 372(a) of this title, while retaining their commissions, rather than merely to those who ask to be placed on the Chief Justice's roster, to lodge solely in the chief judge and judicial council of the circuit concerned the intracircuit assignment power, and in the Chief Justice the power to assign retired judges beyond their circuits or special courts. Subsec. (e). Pub. L. 85-755 reenacted subsec. (e) without change. 1957 - Subsec. (d). Pub. L. 85-219 added subsec. (d). 1956 - Subsec. (b). Act July 9, 1956, inserted provisions relating to assignment of retired judges of the Court of Claims. JURISDICTION OF UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Amendment by Pub. L. 85-755 not limiting or altering the jurisdiction of the United States Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), see section 7 of Pub. L. 85-755, set out as a note under section 291 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 46 of this title; title 26 section 3121; title 42 section 409. ------DocID 36279 Document 141 of 1452------ -CITE- 28 USC Sec. 295 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 295. Conditions upon designation and assignment -STATUTE- No designation and assignment of a circuit or district judge in active service shall be made without the consent of the chief judge or judicial council of the circuit from which the judge is to be designated and assigned. No designation and assignment of a judge of any other court of the United States in active service shall be made without the consent of the chief judge of such court. All designations and assignments of justices and judges shall be filed with the clerks and entered on the minutes of the courts from and to which made. The Chief Justice of the United States, a circuit justice or a chief judge of a circuit may make new designation and assignments in accordance with the provisions of this chapter and may revoke those previously made by him. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 901; Sept. 3, 1954, ch. 1263, Sec. 39(d), 68 Stat. 1240; July 14, 1956, ch. 589, Sec. 3(b), 70 Stat. 532; Aug. 25, 1958, Pub. L. 85-755, Sec. 6, 72 Stat. 850; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 207, 92 Stat. 2660.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 17, 20 (Mar. 3, 1911, ch. 231, Sec. 13, 16, 36 Stat. 1089; Sept. 14, 1922, ch. 306, Sec. 3, 42 Stat. 839; Aug. 24, 1937, ch. 754, Sec. 4, 50 Stat. 753; Dec. 29, 1942, ch. 835, Sec. 1, 4, 56 Stat. 1094, 1095). This section consolidates and simplifies provisions of sections 17 and 20 of title 28, U.S.C., 1940 ed., relating to conditions upon designation and assignment as well as those applicable to filing, revoking and making new designations. Other provisions of section 17 of title 28, U.S.C., 1940 ed., are incorporated in section 291, 292, and 296 of this title. The reference in said section 20 to senior Associate Judge was omitted. (See Reviser's Note under section 291 of this title.) The terms 'chief judge' and 'chief judge of a circuit' were substituted for 'senior circuit judge'. (See Reviser's Note under section 136 of this title.) The alternative provision for approval by the judicial council of the circuit was inserted to conform with section 332 of this title. Changes were made in phraseology. AMENDMENTS 1978 - Pub. L. 95-598 directed the amendment of section by substituting 'district, or bankruptcy' for 'or district', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Pub. L. 85-755 substituted 'of any other court of the United States' for 'of the Customs Court' in first par. 1956 - Act July 14, 1956, provided that no designation and assignment of a judge of the Customs Court in active service shall be made without the consent of the chief judge of the court. 1954 - Act Sept. 3, 1954, made it clear that the section applies only to the assignment of circuit and district judges in active service. JURISDICTION OF UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Amendment by Pub. L. 85-755 not limiting or altering the jurisdiction of the United States Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), see section 7 of Pub. L. 85-755, set out as a note under section 291 of this title. LIMITATION OR ALTERATION OF JURISDICTION Amendment by act July 14, 1956, not to be construed as limiting or altering the jurisdiction heretofore conferred upon the Customs Court (now United States Court of International Trade), see section 4 of act July 14, 1956, set out as a note under section 251 of this title. ------DocID 36280 Document 142 of 1452------ -CITE- 28 USC Sec. 296 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 296. Powers upon designation and assignment -STATUTE- A justice or judge shall discharge, during the period of his designation and assignment, all judicial duties for which he is designated and assigned. He may be required to perform any duty which might be required of a judge of the court or district or circuit to which he is designated and assigned. Such justice or judge shall have all the powers of a judge of the court, circuit or district to which he is designated and assigned, except the power to appoint any person to a statutory position or to designate permanently a depository of funds or a newspaper for publication of legal notices. A justice or judge who has sat by designation and assignment in another district or circuit may, notwithstanding his absence from such district or circuit or the expiration of the period of his designation and assignment, decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition of applications for rehearing or further proceedings in such matters. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 901.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 17, 18, 22, 23, 301 (Mar. 3, 1911, ch. 231, Sec. 13, 14, 18, 19, 188, 36 Stat. 1089, 1143; Oct. 3, 1913, ch. 18, 38 Stat. 203; Feb. 25, 1919, ch. 29, Sec. 2, 5, 40 Stat. 1156, 1157; Sept. 14, 1922, ch. 306, Sec. 3, 4, 5, 42 Stat. 839; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1936, ch. 804, 49 Stat. 1921; Aug. 24, 1937, ch. 754, Sec. 4, 50 Stat. 753; Dec. 29, 1942, ch. 835, Sec. 1, 2, 5, 6, 56 Stat. 1094, 1095). Section simplifies provisions of sections 17, 18, paragraphs (b) and (c) of section 22, and sections 23 and 301 of title 28, U.S.C., 1940 ed., relating to powers and duties of designated judges. Other provisions of said sections 17 and 22 of title 28, U.S.C., 1940 ed., are incorporated in sections 291, 292, and 295 of this title. Other provisions of said section 301 of title 28, U.S.C., 1940 ed., are incorporated in sections 211-213, 215, and 293 of this title. Section is made applicable to retired justices of the Supreme Court by inclusion of reference to 'justice,' on the theory that a justice should have the same powers and duties and be subject to the same limitations as designated and assigned circuit and district judges. The second sentence of the revised section was substituted for the provision of section 18 of title 28, U.S.C., 1940 ed., which subjected circuit judges to the same assignments of duty as the circuit judges of the circuit to which they are designated and assigned. The revised section extends this requirement and makes it applicable to all designated and assigned judges. The provision in the last paragraph of said section 22 that the action of the assigned judge in writing filed with the clerk of court where the trial or hearing was held shall be valid as if such action had been taken by him within the district and within the period of his designation, was omitted as surplusage. See section 295 of this title. ------DocID 36281 Document 143 of 1452------ -CITE- 28 USC Sec. 297 -EXPCITE- TITLE 28 PART I CHAPTER 13 -HEAD- Sec. 297. Assignment of judges to courts of the freely associated compact states -STATUTE- (a) The Chief Justice or the chief judge of the United States Court of Appeals for the Ninth Circuit may assign any circuit or district judge of the Ninth Circuit, with the consent of the judge so assigned, to serve temporarily as a judge of any duly constituted court of the freely associated compact states whenever an official duly authorized by the laws of the respective compact state requests such assignment and such assignment is necessary for the proper dispatch of the business of the respective court. (b) The Congress consents to the acceptance and retention by any judge so authorized of reimbursement from the countries referred to in subsection (a) of all necessary travel expenses, including transportation, and of subsistence, or of a reasonable per diem allowance in lieu of subsistence. The judge shall report to the Administrative Office of the United States Courts any amount received pursuant to this subsection. -SOURCE- (Added Pub. L. 100-702, title X, Sec. 1022(1), Nov. 19, 1988, 102 Stat. 4672.) ------DocID 36282 Document 144 of 1452------ -CITE- 28 USC CHAPTER 15 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- CHAPTER 15 - CONFERENCES AND COUNCILS OF JUDGES -MISC1- Sec. 331. Judicial Conference of the United States. 332. Judicial councils of circuits. 333. Judicial conferences of circuits. 334. Institutes and joint councils on sentencing. 335. Judicial Conference of the Court of International Trade. AMENDMENTS 1986 - Pub. L. 99-466, Sec. 2(b), Oct. 14, 1986, 100 Stat. 1190, added item 335. 1980 - Pub. L. 96-458, Sec. 2(d)(2), Oct. 15, 1980, 94 Stat. 2036, inserted 'of circuits' in item 332. 1958 - Pub. L. 85-752, Sec. 2, Aug. 25, 1958, 72 Stat. 845, added item 334. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 2109 of this title. ------DocID 36283 Document 145 of 1452------ -CITE- 28 USC Sec. 331 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- Sec. 331. Judicial Conference of the United States -STATUTE- The Chief Justice of the United States shall summon annually the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each judicial circuit to a conference at such time and place in the United States as he may designate. He shall preside at such conference which shall be known as the Judicial Conference of the United States. Special sessions of the Conference may be called by the Chief Justice at such times and places as he may designate. The district judge to be summoned from each judicial circuit shall be chosen by the circuit and district judges of the circuit at the annual judicial conference of the circuit held pursuant to section 333 of this title and shall serve as a member of the conference for three successive years, except that in the year following the enactment of this amended section the judges in the first, fourth, seventh, and tenth circuits shall choose a district judge to serve for one year, the judges in the second, fifth, and eighth circuits shall choose a district judge to serve for two years and the judges in the third, sixth, ninth, and District of Columbia circuits shall choose a district judge to serve for three years. If the chief judge of any circuit, the chief judge of the Court of International Trade, or the district judge chosen by the judges of the circuit is unable to attend, the Chief Justice may summon any other circuit or district judge from such circuit or any other judge of the Court of International Trade, as the case may be. Every judge summoned shall attend and, unless excused by the Chief Justice, shall remain throughout the sessions of the conference and advise as to the needs of his circuit or court and as to any matters in respect of which the administration of justice in the courts of the United States may be improved. The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary. It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business. The Conference is authorized to exercise the authority provided in section 372(c) of this title as the Conference, or through a standing committee. If the Conference elects to establish a standing committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the standing committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or by the clerk of any court of appeals, at the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or any agency thereof. The Conference may also prescribe and modify rules for the exercise of the authority provided in section 372(c) of this title. All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference or the standing committee established pursuant to this section. The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law. The Judicial Conference shall review rules prescribed under section 2071 of this title by the courts, other than the Supreme Court and the district courts, for consistency with Federal law. The Judicial Conference may modify or abrogate any such rule so reviewed found inconsistent in the course of such a review. The Attorney General shall, upon request of the Chief Justice, report to such Conference on matters relating to the business of the several courts of the United States, with particular reference to cases to which the United States is a party. The Chief Justice shall submit to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 902; July 9, 1956, ch. 517, Sec. 1(d), 70 Stat. 497; Aug. 28, 1957, Pub. L. 85-202, 71 Stat. 476; July 11, 1958, Pub. L. 85-513, 72 Stat. 356; Sept. 19, 1961, Pub. L. 87-253, Sec. 1, 2, 75 Stat. 521; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 208, 92 Stat. 2660; Oct. 15, 1980, Pub. L. 96-458, Sec. 4, 94 Stat. 2040; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 111, 96 Stat. 29; Oct. 14, 1986, Pub. L. 99-466, Sec. 1, 100 Stat. 1190; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 402(b), 102 Stat. 4650.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 218 (Sept. 14, 1922, ch. 306, Sec. 2, 42 Stat. 838; July 5, 1937, ch. 427, 50 Stat. 473). Provisions as to associate justice acting when Chief Justice is disabled are omitted as unnecessary in view of section 3 of this title giving senior associate justice power to act upon the disability of the Chief Justice. The provision of section 218 of title 28, U.S.C., 1940 ed., as to traveling expenses is incorporated in section 456 of this title. Provision as to time and place for holding conference was omitted as unnecessary since the Chief Justice is vested with discretionary power to designate the time and place under the language retained. The references to 'chief judge' are in harmony with other sections of this title. (See Reviser's Note under section 136 of this title.) Provision for stated annual reports by the chief judge of the district was omitted as obsolete and unnecessary in view of sections 332 and 333 of this title. The last paragraph is new and is inserted to authorize the communication to Congress of information which now reaches that body only because incorporated in the annual report of the Attorney General. Numerous changes were made in phraseology and arrangement. -REFTEXT- REFERENCES IN TEXT Rule 45(c) of the Federal Rules of Civil Procedure, referred to in fourth paragraph, is set out in the Appendix to this title. -MISC2- AMENDMENTS 1988 - Pub. L. 100-702 inserted paragraph requiring Judicial Conference review of section 2071 rules prescribed by courts other than Supreme court or district courts for consistency with Federal law. 1986 - Pub. L. 99-466, Sec. 1(a), inserted ', the chief judge of the Court of International Trade,' and substituted 'Conference may' for 'conference may' in first par. Pub. L. 99-466, Sec. 1(b), inserted ', the chief judge of the Court of International Trade,' and 'or any other judge of the Court of International Trade, as the case may be' in first sentence of third par. Pub. L. 99-466, Sec. 1(c), substituted 'Conference' for 'conference' in sixth par. 1982 - Pub. L. 97-164, in first par., struck out references to the chief judge of the Court of Claims and to the chief judge of the Court of Customs and Patent Appeals in the enumeration of judges which the Chief Justice must summon each year for a conference and, in third par., struck out provision that authorized the Chief Justice to summon an associate judge of the Court of Claims or the Court of Customs and Patent Appeals if the chief judge of either of those courts could not attend. 1980 - Pub. L. 96-458, in fourth par., substituted 'It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.' for 'and shall submit suggestions to the various courts, in the interest of uniformity and expedition of business.', and inserted provisions relating to exercise of authority under section 372(c) as the Conference or through standing committee, the holding of hearings, taking of testimony, and the issuance of subpoenas pursuant to rule 45(c) of the Federal Rules of Civil Procedure. 1978 - Pub. L. 95-598 directed the amendment of section by inserting references to bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1961 - Pub. L. 87-253 provided for the summoning to the judicial conference of the chief judge of the Court of Customs and Patent Appeals, and if he is unable to attend, for the summoning of an associate judge of such court. 1958 - Pub. L. 85-513 inserted paragraph requiring a continuous study of the operation and effect of the general rules of practice and procedure. 1957 - Pub. L. 85-202 provided generally in first three paragraphs for the representation of district judges on the Judicial Conference. 1956 - Act July 9, 1956, inserted provisions relating to participation of Court of Claims judges. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Section 4 of Pub. L. 99-466 provided that: 'This Act and the amendments made by this Act (enacting section 335 of this title, amending this section and section 569 of this title, renumbering section 873 of this title as 872, and repealing former section 872 of this title) shall take effect 60 days after the date of the enactment of this Act (Oct. 14, 1986).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Section 7 of Pub. L. 96-458 provided that: 'This Act (amending this section and sections 332, 372, and 604 of this title and enacting provisions set out as notes under this section and section 1 of this title) shall become effective on October 1, 1981.' POLICIES, PROCEDURES, AND METHODOLOGIES USED IN RECOMMENDATION FOR CREATION OF ADDITIONAL FEDERAL JUDGESHIPS; STUDY BY GENERAL ACCOUNTING OFFICE AND REPORT TO CONGRESS Pub. L. 101-650, title II, Sec. 205, Dec. 1, 1990, 104 Stat. 5103, provided that: '(a) In General. - The Comptroller General of the United States shall review the policies, procedures, and methodologies used by the Judicial Conference of the United States in recommending to the Congress the creation of additional Federal judgeships. In conducting such review the Comptroller General shall, at a minimum, determine the extent to which such policies, procedures, and methodologies - '(1) provide an accurate measure of the workload of existing judges; '(2) are applied consistently to the various circuit courts of appeals and district courts; and '(3) provide an accurate indicator of the need for additional judgeships. '(b) Report to Congress. - The Comptroller General shall, not later than 18 months after the date of the enactment of this Act (Dec. 1, 1990), report the results of the review conducted under subsection (a) to the Committees on the Judiciary of the House of Representatives and the Senate. The report shall include such recommendations as the Comptroller General considers appropriate for revisions of the policies, procedures, and methodologies used by the Judicial Conference that were reviewed in the report.' FEDERAL COURTS STUDY COMMITTEE Title I of Pub. L. 100-702 provided that: TITLE I - FEDERAL COURTS STUDY COMMITTEE 'SEC. 101. SHORT TITLE. 'This title may be cited as the 'Federal Courts Study Act'. 'SEC. 102. ESTABLISHMENT AND PURPOSES. '(a) Establishment. - There is hereby established within the Judicial Conference of the United States, a Federal Courts Study Committee on the future of the Federal Judiciary (hereafter referred to as the 'Committee'). '(b) Purposes. - The purposes of the Committee are to - '(1) examine problems and issues currently facing the courts of the United States; '(2) develop a long-range plan for the future of the Federal Judiciary, including assessments involving - '(A) alternative methods of dispute resolution; '(B) the structure and administration of the Federal court system; '(C) methods of resolving intracircuit and intercircuit conflicts in the courts of appeals; and '(D) the types of disputes resolved by the Federal courts; and '(3) report to the Judicial Conference of the United States, the President, the Congress, the Conference of Chief Justices, and the State Justice Institute on the revisions, if any, in the laws of the United States which the Committee, based on its study and evaluation, deems advisable. 'SEC. 103. MEMBERSHIP OF THE COMMITTEE. '(a) Appointments. - The Committee shall be composed of fifteen members to be appointed by the Chief Justice of the United States, within ten days after the effective date of this title. '(b) Selection. - The membership of the Committee shall be selected in such a manner as to be representative of the various interests, needs and concerns which may be affected by the jurisdiction of the Federal courts. The Chief Justice shall designate one of the members of the Committee to serve as Chairman. '(c) Term of Office. - The Committee members shall serve at the pleasure of the Chief Justice. '(d) Rules of Procedure. - Rules of procedure shall be promulgated by vote of a majority of the Committee. 'SEC. 104. POWERS OF THE COMMITTEE. '(a) Hearings. - The Committee or, on the authorization of the Committee, any subcommittee thereof may, for the purpose of carrying out its functions and duties, hold such hearings and sit and act at such times and places, as the Committee or any such subcommittee may deem advisable. '(b) Information and Assistance. - The Administrative Office of the United States Courts, the Federal Judicial Center, and each department, agency, and instrumentality of the executive branch of the Government, including the National Institute of Justice and independent agencies, shall furnish to the Committee, upon request made by the Chairman, such information and assistance as the Committee may reasonably deem necessary to carry out its functions under this title, consistent with other applicable provisions of law governing the release of such information. '(c) Personnel. - (1) Subject to such rules and regulations as may be adopted by the Committee, the Director of the Administrative Office shall furnish to the Committee necessary staff and technical assistance in response to needs specified. '(2) (Amended section 5108(c)(1) of Title 5, Government Organization and Employees.) '(d) Advisory Panels. - The Committee is authorized, for the purpose of carrying out its functions and duties pursuant to the provisions of this title, to establish advisory panels consisting of Committee members or members of the public. Such panels shall be established to provide expertise and assistance in specific areas, as the Committee deems necessary. 'SEC. 105. FUNCTIONS AND DUTIES. 'The Committee shall - '(1) make a complete study of the courts of the United States and of the several States and transmit a report to the President, the Chief Justice of the United States, the Congress, the Judicial Conference of the United States, the Conference of Chief Justices, and the State Justice Institute on such study, within fifteen months after the effective date of this title; '(2) recommend revisions to be made to laws of the United States as the Committee, on the basis of such study, deems advisable; '(3) develop a long-range plan for the judicial system; and '(4) make such other recommendations and conclusions it deems advisable. 'SEC. 106. COMPENSATION OF MEMBERS. '(a) Employees of the Government. - A member of the Committee who is an officer or full-time employee of the United States shall receive no additional compensation for his or her services, but shall be reimbursed for travel, subsistence, and other necessary expenses incurred in the performance of duties vested in the Committee, not to exceed the maximum amounts authorized under section 456 of title 28. '(b) Private Sector. - A member of the Committee who is from the private sector shall receive $200 per diem for each day (including travel time) during which he or she is engaged in the actual performance of duties vested in the Committee, plus reimbursement for travel, subsistence, and other necessary expenses incurred in the performance of such duties, not to exceed the maximum amounts authorized under section 456 of title 28. 'SEC. 107. EXPIRATION OF THE COMMITTEE. 'The Committee shall cease to exist on the date 60 days after it transmits the report pursuant to section 105. 'SEC. 108. AUTHORIZATION OF APPROPRIATIONS. 'To carry out the purposes of this title there are authorized to be appropriated $300,000 for each of the fiscal years 1989 and 1990. 'SEC. 109. EFFECTIVE DATE. 'This title shall become effective on January 1, 1989.' AUTHORIZATION OF APPROPRIATIONS Section 6 of Pub. L. 96-458 provided that: 'There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act (amending sections 331, 332, 372, and 604 of this title, and enacting provisions set out as notes under sections 1 and 331 of this title).' -CROSS- CROSS REFERENCES Annuities to widows and surviving dependent children of judges, review by Judicial Conference of the United States of questions of dependency and disability, see section 376 of this title. Pretermission of regular term or session of court of appeals with consent of Judicial Conference of the United States, see section 48 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 372 of this title. ------DocID 36284 Document 146 of 1452------ -CITE- 28 USC Sec. 332 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- Sec. 332. Judicial councils of circuits -STATUTE- (a)(1) The chief judge of each judicial circuit shall call, at least twice in each year and at such places as he or she may designate, a meeting of the judicial council of the circuit, consisting of the chief judge of the circuit, who shall preside, and an equal number of circuit judges and district judges of the circuit, as such member (FOOTNOTE 1) is determined by majority vote of all such judges of the circuit in regular active services. (FOOTNOTE 2) (FOOTNOTE 1) So in original. Probably should be 'number'. (FOOTNOTE 2) So in original. Probably should be 'service.' (2) Members of the council shall serve for terms established by a majority vote of all judges of the circuit in regular active service. (3) Only circuit and district judges in regular active service shall serve as members of the council. (4) No more than one district judge from any one district shall serve simultaneously on the council, unless at least one district judge from each district within the circuit is already serving as a member of the council. (5) In the event of the death, resignation, retirement, or disability of a member of the council, a replacement member shall be designated to serve the remainder of the unexpired term by the chief judge of the circuit. (6) Each member of the council shall attend each council meeting unless excused by the chief judge of the circuit. (b) The council shall be known as the Judicial Council of the circuit. (c) The chief judge shall submit to the council the semiannual reports of the Director of the Administrative Office of the United States Courts. The council shall take such action thereon as may be necessary. (d)(1) Each judicial council shall make all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit. Any general order relating to practice and procedure shall be made or amended only after giving appropriate public notice and an opportunity for comment. Any such order so relating shall take effect upon the date specified by such judicial council. Copies of such orders so relating shall be furnished to the Judicial Conference and the Administrative Office of the United States Courts and be made available to the public. Each council is authorized to hold hearings, to take sworn testimony, and to issue subpoenas and subpoenas duces tecum. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the court of appeals, at the direction of the chief judge of the circuit or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or agency thereof. (2) All judicial officers and employees of the circuit shall promptly carry into effect all orders of the judicial council. In the case of failure to comply with an order made under this subsection or a subpoena issued under section 372(c) of this title, a judicial council or a special committee appointed under section 372(c)(4) of this title may institute a contempt proceeding in any district court in which the judicial officer or employee of the circuit who fails to comply with the order made under this subsection shall be ordered to show cause before the court why he or she should not be held in contempt of court. (3) Unless an impediment to the administration of justice is involved, regular business of the courts need not be referred to the council. (4) Each judicial council shall periodically review the rules which are prescribed under section 2071 of this title by district courts within its circuit for consistency with rules prescribed under section 2072 of this title. Each council may modify or abrogate any such rule found inconsistent in the course of such a review. (e) The judicial council of each circuit may appoint a circuit executive. In appointing a circuit executive, the judicial council shall take into account experience in administrative and executive positions, familiarity with court procedures, and special training. The circuit executive shall exercise such administrative powers and perform such duties as may be delegated to him by the circuit council. The duties delegated to the circuit executive of each circuit may include but need not be limited to: (1) Exercising administrative control of all nonjudicial activities of the court of appeals of the circuit in which he is appointed. (2) Administering the personnel system of the court of appeals of the circuit. (3) Administering the budget of the court of appeals of the circuit. (4) Maintaining a modern accounting system. (5) Establishing and maintaining property control records and undertaking a space management program. (6) Conducting studies relating to the business and administration of the courts within the circuit and preparing appropriate recommendations and reports to the chief judge, the circuit council, and the Judicial Conference. (7) Collecting, compiling, and analyzing statistical data with a view to the preparation and presentation of reports based on such data as may be directed by the chief judge, the circuit council, and the Administrative Office of the United States Courts. (8) Representing the circuit as its liaison to the courts of the various States in which the circuit is located, the marshal's office, State and local bar associations, civic groups, news media, and other private and public groups having a reasonable interest in the administration of the circuit. (9) Arranging and attending meetings of the judges of the circuit and of the circuit council, including preparing the agenda and serving as secretary in all such meetings. (10) Preparing an annual report to the circuit and to the Administrative Office of the United States Courts for the preceding calendar year, including recommendations for more expeditious disposition of the business of the circuit. All duties delegated to the circuit executive shall be subject to the general supervision of the chief judge of the circuit. (f)(1) Each circuit executive shall be paid at a salary to be established by the Judicial Conference of the United States not to exceed the annual rate of level IV of the Executive Schedule pay rates under section 5315 of title 5. (2) The circuit executive shall serve at the pleasure of the judicial council of the circuit. (3) The circuit executive may appoint, with the approval of the council, necessary employees in such number as may be approved by the Director of the Administrative Office of the United States Courts. (4) The circuit executive and his staff shall be deemed to be officers and employees of the judicial branch of the United States Government within the meaning of subchapter III of chapter 83 (relating to civil service retirement), chapter 87 (relating to Federal employees' life insurance program), and chapter 89 (relating to Federal employees' health benefits program) of title 5, United States Code. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 902; Nov. 13, 1963, Pub. L. 88-176, Sec. 3, 77 Stat. 331; Jan. 5, 1971, Pub. L. 91-647, 84 Stat. 1907; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 209, 92 Stat. 2661; Oct. 15, 1980, Pub. L. 96-458, Sec. 2(a)-(d)(1), 94 Stat. 2035, 2036; Oct. 1, 1988, Pub. L. 100-459, title IV, Sec. 407, 102 Stat. 2213; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 403(a)(2), (b), title X, Sec. 1018, 1020(a)(1), 102 Stat. 4651, 4670, 4671; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 323, 325(b)(1), title IV, Sec. 403, 104 Stat. 5120, 5121, 5124.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 448 (Mar. 3, 1911, ch. 231, Sec. 306, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). The final sentence of section 448 of title 28, U.S.C., 1940 ed., excepting from the operation of said section the provisions of existing law as to assignment of district judges outside their districts, was omitted as surplusage, since there is nothing in this section in conflict with section 292 of this title providing for such assignments. The requirement for attendance of circuit judges, unless excused by the chief judge, was included in conformity with a similar provision of section 331 of this title. Changes in phraseology were made. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (d)(1), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1990 - Subsec. (a)(1). Pub. L. 101-650, Sec. 323(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: 'The chief judge of each judicial circuit shall call, at least twice in each year and at such places as he may designate, a meeting of the judicial council of the circuit, consisting of - '(A) the chief judge of the circuit, who shall preside; '(B) that number of circuit judges fixed by majority vote of all such judges in regular active service; and '(C) that number of district judges of the circuit fixed by majority vote of all circuit judges in regular active service, except that - '(i) if the number of circuit judges fixed in accordance with subparagraph (B) of this paragraph is less than six, the number of district judges fixed in accordance with this subparagraph shall be no less than two; and '(ii) if the number of circuit judges fixed in accordance with subparagraph (B) of this paragraph is six or more, the number of district judges fixed in accordance with this subparagraph shall be no less than three.' Subsec. (a)(3) to (7). Pub. L. 101-650, Sec. 323(b), redesignated pars. (4) to (7) as (3) to (6), respectively, and struck out former par. (3) which read as follows: 'The number of circuit and district judges fixed in accordance with paragraphs (1)(B) and (1)(C) of this subsection shall be set by order of the court of appeals for the circuit no less than six months prior to a scheduled meeting of the council so constituted.' Subsec. (d)(2). Pub. L. 101-650, Sec. 403, inserted at end 'In the case of failure to comply with an order made under this subsection or a subpoena issued under section 372(c) of this title, a judicial council or a special committee appointed under section 372(c)(4) of this title may institute a contempt proceeding in any district court in which the judicial officer or employee of the circuit who fails to comply with the order made under this subsection shall be ordered to show cause before the court why he or she should not be held in contempt of court.' Subsec. (f)(1). Pub. L. 101-650, Sec. 325(b)(1), substituted 'under section 5315 of title 5' for '(5 U.S.C. 5316)'. 1988 - Subsec. (c). Pub. L. 100-702, Sec. 1020(a)(1), substituted 'semiannual' for 'semi-annually'. Subsec. (d)(1). Pub. L. 100-702, Sec. 403(b), inserted after first sentence 'Any general order relating to practice and procedure shall be made or amended only after giving appropriate public notice and an opportunity for comment. Any such order so relating shall take effect upon the date specified by such judicial council. Copies of such orders so relating shall be furnished to the Judicial Conference and the Administrative Office of the United States Courts and be made available to the public.' Subsec. (d)(4). Pub. L. 100-702, Sec. 403(a)(2), added par. (4). Subsec. (e). Pub. L. 100-702, Sec. 1018(1), substituted 'executive. In appointing a circuit executive, the judicial council shall take into account experience in administrative and executive positions, familiarity with court procedures, and special training.' for 'executive from among persons who shall be certified by the Board of Certification.' in first sentence. Subsec. (f). Pub. L. 100-702, Sec. 1018(2), designated last four undesignated pars. as pars. (1) to (4), respectively, and struck out former first undesignated par. which related to establishment, functions, and staffing of Board of Certification and setting standards for certification as qualified to be circuit executive. Pub. L. 100-459 substituted 'level IV' for 'level V'. 1980 - Pub. L. 96-458, Sec. 2(d)(1), substituted 'Judicial councils of circuits' for 'Judicial councils' in section catchline. Subsec. (a). Pub. L. 96-458, Sec. 2(a), in par. (1) designated existing provisions as introductory provision and in such introductory provision substituted 'each judicial circuit' for 'each circuit', substituted 'a meeting of the judicial council of the circuit, consisting of - ' for 'a council of the circuit judges for the circuit, in regular active service, at which he shall preside. Each circuit judge, unless excused by the chief judge, shall attend all sessions of the council.', and added subpars. (A) to (C) and pars. (2) to (7). Subsec. (c). Pub. L. 96-458, Sec. 2(b), substituted 'semiannually' for 'quarterly'. Subsec. (d). Pub. L. 96-458, Sec. 2(c), amended subsec. (d) generally, designating existing provisions as par. (1), inserting 'and appropriate' after 'all necessary', substituting 'justice within its circuit' for 'the business of the courts within its circuit', striking out 'The district judges shall promptly carry into effect all orders of the judicial council.' after 'within its circuit.', inserting provisions relating to the holding of hearings, taking of testimony, the issuance of subpoenas and service thereof under the Federal Rules of Civil Procedure, and adding pars. (2) and (3). 1978 - Subsec. (d). Pub. L. 95-598 directed the amendment of subsec. (d) by inserting 'and bankruptcy judges' after 'The district judges', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1971 - Pub. L. 91-647 designated existing four paragraphs as subsecs. (a), (b), (c), and (d), respectively, and added subsecs. (e) and (f). 1963 - Pub. L. 88-176 inserted 'regular' before 'active service' in first sentence. EFFECTIVE DATE OF 1990 AMENDMENT Section 407 of Pub. L. 101-650 provided that: 'The amendments made by this subtitle (subtitle I (Sec. 402-407) of title IV of Pub. L. 101-650, amending this section, sections 372, 453, and 2077 of this title, and provisions set out in the Appendix to Title 5, Government Organization and Employees) shall take effect 90 days after the date of the enactment of this Act (Dec. 1, 1990).' EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 403(a)(2), (b) of Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-458 effective Oct. 1, 1981, see section 7 of Pub. L. 96-458, set out as a note under section 331 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 372 of this title. ------DocID 36285 Document 147 of 1452------ -CITE- 28 USC Sec. 333 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- Sec. 333. Judicial conferences of circuits -STATUTE- The chief judge of each circuit shall summon biennially, and may summon annually, the circuit, district, and bankruptcy judges of the circuit, in active service, to a conference at a time and place that he designates, for the purpose of considering the business of the courts and advising means of improving the administration of justice within such circuit. He shall preside at such conference, which shall be known as the Judicial Conference of the circuit. The judges of the District Court of Guam, the District Court of the Virgin Islands, and the District Court of the Northern Mariana Islands shall also be summoned biennially, and may be summoned annually, to the conferences of their respective circuits. Every judge summoned shall attend, and unless excused by the chief judge, shall remain throughout the conference. The court of appeals for each circuit shall provide by its rules for representation and active participation at such conference by members of the bar of such circuit. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 903; Dec. 29, 1950, ch. 1185, 64 Stat. 1128; Oct. 31, 1951, ch. 655, Sec. 38, 65 Stat. 723; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 210, 92 Stat. 2661; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 320, 104 Stat. 5117.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 449, 450 (Mar. 3, 1911, ch. 231, Sec. 307, 308, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). Section consolidates parts of sections 449 and 450 of title 28, U.S.C., 1940 ed. Said section 450 contained definitions of 'courts' and 'continental United States,' and directions that sections 444-450 of title 28, U.S.C., 1940 ed., relating to the administration of United States courts, should apply to the courts of appeals, the United States Court of Appeals for the District of Columbia and to the several enumerated district courts of the United States, including those in the Territories and Possessions as well as the Court of Claims, Court of Customs and Patent Appeals, and Customs Court. It also provided that the Chief Justice and associate justices of the Court of Appeals for the District of Columbia should have the powers of the senior judge and circuit judges, respectively, of a circuit court of appeals. The revised section omits, as surplusage, the definition of 'continental United States.' Other provisions of section 450 of title 28, U.S.C., 1940 ed., referred to were omitted as unnecessary in view of section 604 of this title which provides for the powers and duties of the Director of the Administrative Office of the United States Courts. Remaining provisions of said section 450 are incorporated in said section 604 and section 610 of this title. The provision as to travel and subsistence which was contained in said section 449 of title 28, U.S.C., 1940 ed., is incorporated in section 456 of this title. AMENDMENTS 1990 - Pub. L. 101-650 substituted 'biennially, and may summon annually,' for 'annually', struck out 'the United States District Court for the District of the Canal Zone,' after 'The judges of', and substituted 'the District Court of the Virgin Islands, and the District Court of the Northern Mariana Islands shall also be summoned biennially, and may be summoned annually,' for 'and the District Court of the Virgin Islands shall also be summoned annually'. 1978 - Pub. L. 95-598 inserted reference to bankruptcy judges. 1958 - Pub. L. 85-508 struck out provisions which required judge of District Court for Territory of Alaska to be summoned annually to the conference of his circuit. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1951 - Act Oct. 31, 1951, inserted reference to judge of District Court of Guam in first par. 1950 - Act Dec., 29, 1950, provided for the presence of judges of District Courts of Alaska, Canal Zone, and the Virgin Islands at annual conferences within their respective circuits. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 331 of this title. ------DocID 36286 Document 148 of 1452------ -CITE- 28 USC Sec. 334 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- Sec. 334. Institutes and joint councils on sentencing -STATUTE- (a) In the interest of uniformity in sentencing procedures, there is hereby authorized to be established under the auspices of the Judicial Conference of the United States, institutes and joint councils on sentencing. The Attorney General and/or the chief judge of each circuit may at any time request, through the Director of the Administrative Office of the United States Courts, the Judicial Conference to convene such institutes and joint councils for the purpose of studying, discussing, and formulating the objectives, policies, standards, and criteria for sentencing those convicted of crimes and offenses in the courts of the United States. The agenda of the institutes and joint councils may include but shall not be limited to: (1) The development of standards for the content and utilization of presentence reports; (2) the establishment of factors to be used in selecting cases for special study and observation in prescribed diagnostic clinics; (3) the determination of the importance of psychiatric, emotional, sociological and physiological factors involved in crime and their bearing upon sentences; (4) the discussion of special sentencing problems in unusual cases such as treason, violation of public trust, subversion, or involving abnormal sex behavior, addiction to drugs or alcohol, and mental or physical handicaps; (5) the formulation of sentencing principles and criteria which will assist in promoting the equitable administration of the criminal laws of the United States. (b) After the Judicial Conference has approved the time, place, participants, agenda, and other arrangements for such institutes and joint councils, the chief judge of each circuit is authorized to invite the attendance of district judges under conditions which he thinks proper and which will not unduly delay the work of the courts. (c) The Attorney General is authorized to select and direct the attendance at such institutes and meetings of United States attorneys and other officials of the Department of Justice and may invite the participation of other interested Federal officers. He may also invite specialists in sentencing methods, criminologists, psychiatrists, penologists, and others to participate in the proceedings. (d) The expenses of attendance of judges shall be paid from applicable appropriations for the judiciary of the United States. The expenses connected with the preparation of the plans and agenda for the conference and for the travel and other expenses incident to the attendance of officials and other participants invited by the Attorney General shall be paid from applicable appropriations of the Department of Justice. -SOURCE- (Added Pub. L. 85-752, Sec. 1, Aug. 25, 1958, 72 Stat. 845.) -MISC1- SENTENCING PROCEDURES Section 7 of Pub. L. 85-752 provided that: 'This Act (enacting this section, sections 4208 and 4209 of Title 18, Crimes and Criminal Procedure, and provisions set out as a note under section 4208 of Title 18) does not apply to any offense for which there is provided a mandatory penalty.' ------DocID 36287 Document 149 of 1452------ -CITE- 28 USC Sec. 335 -EXPCITE- TITLE 28 PART I CHAPTER 15 -HEAD- Sec. 335. Judicial Conference of the Court of International Trade -STATUTE- (a) The chief judge of the Court of International Trade is authorized to summon annually the judges of such court to a judicial conference, at a time and place that such chief judge designates, for the purpose of considering the business of such court and improvements in the administration of justice in such court. (b) The Court of International Trade shall provide by its rules for representation and active participation at such conference by members of the bar. -SOURCE- (Added Pub. L. 99-466, Sec. 2(a), Oct. 14, 1986, 100 Stat. 1190.) -MISC1- EFFECTIVE DATE Section effective 60 days after Oct. 14, 1986, see section 4 of Pub. L. 99-466, set out as an Effective Date of 1986 Amendment note under section 331 of this title. ------DocID 36288 Document 150 of 1452------ -CITE- 28 USC CHAPTER 17 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- CHAPTER 17 - RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES -MISC1- Sec. 371. Retirement on salary; retirement in senior status. 372. Retirement for disability; substitute judge on failure to retire; judicial discipline. 373. Judges in Territories and Possessions. (FOOTNOTE 1) (FOOTNOTE 1) Section catchline amended by Pub. L. 99-396 without corresponding amendment of analysis. 374. Residence of retired judges; official station. 375. Recall of certain judges and magistrates. 376. Annuities for survivors of certain judicial officials of the United States. 377. Retirement of bankruptcy judges and magistrates. AMENDMENTS 1988 - Pub. L. 100-702, title X, Sec. 1020(a)(9), Nov. 19, 1988, 102 Stat. 4672, substituted 'Annuities for survivors of certain judicial officials of the United States' for 'Annuities to widows and surviving dependent children of justices and judges of the United States' in item 376. Pub. L. 100-659, Sec. 2(b), Nov. 15, 1988, 102 Stat. 3916, added item 377. 1986 - Pub. L. 99-651, title II, Sec. 201(b)(2), Nov. 14, 1986, 100 Stat. 3648, amended item 375 generally. 1984 - Pub. L. 98-353, title II, Sec. 204(b), July 10, 1984, 98 Stat. 350, substituted 'Retirement on salary; retirement in senior status' for 'Resignation or retirement for age' in item 371. 1980 - Pub. L. 96-458, Sec. 3(c), Oct. 15, 1980, 94 Stat. 2040, inserted reference to 'judicial discipline' in item 372. 1972 - Pub. L. 92-397, Sec. 3(a), (b), Aug. 22, 1972, 86 Stat. 579, substituted 'JUSTICES AND JUDGES' for 'JUDGES' in chapter heading, and substituted 'justices and judges of the United States' for 'judges' in item 376. 1959 - Pub. L. 86-312, Sec. 2, Sept. 21, 1959, 73 Stat. 587, inserted '; official station' in item 374. 1956 - Act Aug. 3, 1956, ch. 944, Sec. 1(a), 70 Stat. 1021, substituted 'Annuities to widows of justices' for 'Annuities to widows on the Chief Justice and Associate Justices of the Supreme Court of the United States' in item 375 and added item 376. 1954 - Act Aug. 28, 1954, ch. 1053, Sec. 2, 68 Stat. 918, added item 375. Act Feb. 10, 1954, ch. 6, Sec. 4(b), 68 Stat. 13, transferred '; substitute judge on failure to retire' from item 371 to item 372. -CROSS- CROSS REFERENCES Tax Court Judges, retirement, see section 7447 of Title 26, Internal Revenue Code. ------DocID 36289 Document 151 of 1452------ -CITE- 28 USC Sec. 371 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 371. Retirement on salary; retirement in senior status -STATUTE- (a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired. (b)(1) Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (f). (2) In a case in which a justice or judge who retires under paragraph (1) does not meet the requirements of subsection (f), the justice or judge shall continue to receive the salary that he or she was receiving when he or she was last in active service or, if a certification under subsection (f) was made for such justice or judge, when such a certification was last in effect. The salary of such justice or judge shall be adjusted under section 461 of this title. (c) The age and service requirements for retirement under this section are as follows: Attained age: Years of service: 65 15 66 14 67 13 68 12 69 11 70 10 (d) The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires under this section. (e) Notwithstanding subsection (c) of section 5532 of title 5, if a regular or reserve member or former member of a uniformed service who is receiving retired or retainer pay becomes employed as a justice or judge of the United States, as defined by section 451, or becomes eligible therefor while so employed, such retired or retainer pay shall not be paid during regular active service as a justice or judge, but shall be resumed or commenced without reduction upon retirement from the judicial office or from regular active service (into senior status) as such justice or judge. (f)(1) In order to continue receiving the salary of the office under subsection (b), a justice must be certified in each calendar year by the Chief Justice, and a judge must be certified by the chief judge of the circuit in which the judge sits, as having met the requirements set forth in at least one of the following subparagraphs: (A) The justice or judge must have carried in the preceding calendar year a caseload involving courtroom participation which is equal to or greater than the amount of work involving courtroom participation which an average judge in active service would perform in three months. In the instance of a justice or judge who has sat on both district courts and courts of appeals, the caseload of appellate work and trial work shall be determined separately and the results of those determinations added together for purposes of this paragraph. (B) The justice or judge performed in the preceding calendar year substantial judicial duties not involving courtroom participation under subparagraph (A), including settlement efforts, motion decisions, writing opinions in cases that have not been orally argued, and administrative duties for the court to which the justice or judge is assigned. Any certification under this subparagraph shall include a statement describing in detail the nature and amount of work and certifying that the work done is equal to or greater than the work described in this subparagraph which an average judge in active service would perform in three months. (C) The justice or judge has, in the preceding calendar year, performed work described in subparagraphs (A) and (B) in an amount which, when calculated in accordance with such subparagraphs, in the aggregate equals at least 3 months work. (D) The justice or judge has, in the preceding calendar year, performed substantial administrative duties directly related to the operation of the courts, or has performed substantial duties for a Federal or State governmental entity. A certification under this subparagraph shall specify that the work done is equal to the full-time work of an employee of the judicial branch. (E) The justice or judge was unable in the preceding calendar year to perform judicial or administrative work to the extent required by any of subparagraphs (A) through (D) because of a temporary or permanent disability. A certification under this subparagraph shall be made to a justice who certifies in writing his or her disability to the Chief Justice, and to a judge who certifies in writing his or her disability to the chief judge of the circuit in which the judge sits. A justice or judge who is certified under this subparagraph as having a permanent disability shall be deemed to have met the requirements of this subsection for each calendar year thereafter. (2) Determinations of work performed under subparagraphs (A), (B), (C), and (D) of paragraph (1) shall be made pursuant to rules promulgated by the Judicial Conference of the United States. In promulgating such criteria, the Judicial Conference shall take into account existing standards promulgated by the Conference for allocation of space and staff for senior judges. (3) If in any year a justice or judge who retires under subsection (b) does not receive a certification under this subsection (except as provided in paragraph (1)(E)), he or she is thereafter ineligible to receive such a certification. (4) In the case of any justice or judge who retires under subsection (b) during a calendar year, there shall be included in the determination under this subsection of work performed during that calendar year all work performed by that justice or judge (as described in subparagraphs (A), (B), (C), and (D) of paragraph (1)) during that calendar year before such retirement. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 903; Oct. 31, 1951, ch. 655, Sec. 39, 65 Stat. 724; Feb. 10, 1954, ch. 6, Sec. 4(a), 68 Stat. 12; July 10, 1984, Pub. L. 98-353, title II, Sec. 204(a), 98 Stat. 350; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1005(a), 102 Stat. 4666; Nov. 30, 1989, Pub. L. 101-194, title VII, Sec. 705(a), 103 Stat. 1770.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 375 and 375a (Mar. 3, 1911, ch. 231, Sec. 260, 36 Stat. 1161; Feb. 25, 1919, ch. 29, Sec. 6, 40 Stat. 1157; Mar. 1, 1929, ch. 419, 45 Stat. 1422; Mar. 1, 1937, ch. 21, Sec. 1, 2, 50 Stat. 24; Feb. 11, 1938, ch. 25, Sec. 1, 52 Stat. 28; May 11, 1944, ch. 192, Sec. 1, 58 Stat. 218). This section consolidates provisions of sections 375 and 375a of title 28, U.S.C., 1940 ed., relating to resignation and retirement. Remaining provisions of said section 375 now appear in sections 136, 294, and 756 of this title, and remaining provisions of said section 375a now appear in section 294 of this title. Words 'may resign, or may retain his office but retire from regular active service' were used to clarify the difference between resignation and retirement. Resignation results in loss of the judge's office, while retirement does not. (Booth v. U.S., 1933, 54 S. Ct. 379, 291 U.S. 339, 78 L. Ed. 836; U.S. v. Moore, 1939, 101 F. 2d 56, certiorari denied 59 S. Ct. 788, 306 U.S. 664, 83 L. Ed. 1060.) Terms 'judge of the United States' and 'justice of the United States' are defined in section 451 of this title. The revised section continues the provision respecting the salary of a resigned judge but changes such provision for retired judges and makes them eligible to receive any increases provided by Congress for the office from which they retired. This change is in harmony with the clear line of distinction drawn by Congress between retirement and resignation. AMENDMENTS 1989 - Subsec. (b). Pub. L. 101-194, Sec. 705(a)(1), designated existing provisions as par. (1), inserted 'or her' after 'his', substituted 'of the office if he or she meets the requirements of subsection (f)' for 'of the office', and added par. (2). Subsec. (f). Pub. L. 101-194, Sec. 705(a)(2), added subsec. (f). 1988 - Subsec. (e). Pub. L. 100-702 added subsec. (e). 1984 - Pub. L. 98-353 substituted 'Retirement on salary; retirement in senior status' for 'Resignation or retirement for age' in section catchline. Subsec. (a). Pub. L. 98-353 amended subsec. (a) generally, substituting 'may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired' for 'who resigns after attaining the age of seventy years and after serving at least ten years continuously or otherwise shall, during the remainder of his lifetime, continue to receive the salary which he was receiving when he resigned'. Subsec. (b). Pub. L. 98-353 amended subsec. (b) generally, substituting 'may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his lifetime, continue to receive the salary of the office' for 'may retain his office but retire from regular active service after attaining the age of seventy years and after serving at least ten years continuously or otherwise, or after attaining the age of sixty-five years and after serving at least fifteen years continuously or otherwise. He shall, during the remainder of his lifetime, continue to receive the salary of the office. The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires'. Subsecs. (c), (d). Pub. L. 98-353 added subsecs. (c) and (d). 1954 - Act Feb. 10, 1954, struck out '; substitute judge on failure to retire' in section catchline. Subsec. (a). Act Feb. 10, 1954, reenacted subsec. (a) without change. Subsec. (b). Act Feb. 10, 1954, in first sentence, inserted provision for retirement after attaining the age of 65 years and after serving 15 years continuously or otherwise. Subsec. (c). Act Feb. 10, 1954, in general amendment of section, omitted subsec. (c) which related to appointment of substitute judges for disabled judges eligible to resign or retire where the latter fail to resign or retire, and to precedence of such disabled judges who remain on the active list after the appointment of substitutes. 1951 - Act Oct. 31, 1951, subdivided section into subsections, and limited second par. of subsec. (c) (as so designated) to judges who remain on the active list but whose disabilities cause the appointment of additional judges as authorized by first par. of such subsec. EFFECTIVE DATE OF 1989 AMENDMENT Section 705(b) of Pub. L. 101-194 provided that: '(1) In general. - The amendments made by subsection (a) (amending this section) shall first apply with respect to work performed on or after January 1, 1990, by a justice or judge of the United States who has retired under section 371(b) of title 28, United States Code. '(2) Calendar year 1990. - In the case of certifications required by section 371(f) of title 28, United States Code, for calendar year 1990 - '(A) such certifications shall be based on the 10-month period beginning on January 1, 1990, and ending on October 31, 1990, and shall be completed not later than December 15, 1990; '(B) determinations of work performed under section 371(f) of title 28, United States Code, shall be made pro rata on the basis of such 10-month period; and '(C) such certifications shall be deemed to be certifications made in calendar year 1991.' EFFECTIVE DATE OF 1988 AMENDMENT Section 1005(b) of Pub. L. 100-702 provided that: 'The amendment made by this section (amending this section) shall apply to a justice or judge who retires, or has retired, from the judicial office or from regular active service (into senior status) as such justice or judge of the United States on or after the effective date of section 5532(c) of title 5 (effective 90 days after Oct. 13, 1978, see Effective Date of 1978 Amendment note under section 5532 of Title 5, Government Organization and Employees), and to whom section 5532(c) would otherwise be applicable.' EFFECTIVE DATE OF 1984 AMENDMENT Section 204(c) of Pub. L. 98-353 provided that: 'The amendments made by this section (amending this section) shall apply with respect to any justice or judge of the United States appointed to hold office during good behavior who retires on or after the date of enactment of this Act (July 10, 1984).' COMPUTATION OF JUDICIAL SERVICE, DISTRICT OF ALASKA Pub. L. 89-70, July 8, 1965, 79 Stat. 213, provided: 'That, notwithstanding any other provision of law, any service as a judge of the District Court for the Territory of Alaska shall be included in computing under sections 371 and 372 of Title 28, United States Code, the aggregate years of judicial service of a United States district judge for the district of Alaska.' JUDICIAL SERVICE IN HAWAII INCLUDED WITHIN COMPUTATION OF AGGREGATE YEARS OF JUDICIAL SERVICE Pub. L. 86-3, Sec. 14(d), Mar. 18, 1959, 73 Stat. 10, provided in part: 'That service as a judge of the District Court for the Territory of Hawaii or as a judge of the United States District Court for the District of Hawaii or as a justice of the Supreme Court of the Territory of Hawaii or as a judge of the circuit courts of the Territory of Hawaii shall be included in computing under section 371, 372, or 373 of title 28, United States Code, the aggregate years of judicial service of any person who is in office as a district judge for the District of Hawaii on the date of enactment of this Act (Mar. 18, 1959).' -CROSS- CROSS REFERENCES Assignment of retired justices or judges to active duty, see section 294 of this title. Justices and judges appointed to hold office during good behavior - Court of International Trade, see section 252 of this title. Courts of Appeals, see Const., Art. 3, Sec. 1. District Courts, see Const., Art. 3, Sec. 1. Supreme Court, see Const., Art. 3, Sec. 1. Tax court judges, retirement, see section 7447 of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 178, 294, 372, 375, 376, 377 of this title; title 5 sections 8440a, 8701, 8714a, 8714b; title 26 section 3121; title 42 section 409. ------DocID 36290 Document 152 of 1452------ -CITE- 28 USC Sec. 372 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 372. Retirement for disability; substitute judge on failure to retire; judicial discipline -STATUTE- (a) Any justice or judge of the United States appointed to hold office during good behavior who becomes permanently disabled from performing his duties may retire from regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor. Any justice or judge of the United States desiring to retire under this section shall certify to the President his disability in writing. Whenever an associate justice of the Supreme Court, a chief judge of a circuit or the chief judge of the Court of International Trade, desires to retire under this section, he shall furnish to the President a certificate of disability signed by the Chief Justice of the United States. A circuit or district judge, desiring to retire under this section, shall furnish to the President a certificate of disability signed by the chief judge of his circuit. A judge of the Court of International Trade desiring to retire under this section, shall furnish to the President a certificate of disability signed by the chief judge of his court. Each justice or judge retiring under this section after serving ten years continuously or otherwise shall, during the remainder of his lifetime, receive the salary of the office. A justice or judge retiring under this section who has served less than ten years in all shall, during the remainder of his lifetime, receive one-half the salary of the office. (b) Whenever any judge of the United States appointed to hold office during good behavior who is eligible to retire under this section does not do so and a certificate of his disability signed by a majority of the members of the Judicial Council of his circuit in the case of a circuit or district judge, or by the Chief Justice of the United States in the case of the Chief Judge of the Court of International Trade, or by the chief judge of his court in the case of a judge of the Court of International Trade, is presented to the President and the President finds that such judge is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability and that the appointment of an additional judge is necessary for the efficient dispatch of business, the President may make such appointment by and with the advice and consent of the Senate. Whenever any such additional judge is appointed, the vacancy subsequently caused by the death, resignation, or retirement of the disabled judge shall not be filled. Any judge whose disability causes the appointment of an additional judge shall, for purpose of precedence, service as chief judge, or temporary performance of the duties of that office, be treated as junior in commission to the other judges of the circuit, district, or court. (c)(1) Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. In the interests of the effective and expeditious administration of the business of the courts and on the basis of information available to the chief judge of the circuit, the chief judge may, by written order stating reasons therefor, identify a complaint for purposes of this subsection and thereby dispense with filing of a written complaint. (2) Upon receipt of a complaint filed under paragraph (1) of this subsection, the clerk shall promptly transmit such complaint to the chief judge of the circuit, or, if the conduct complained of is that of the chief judge, to that circuit judge in regular active service next senior in date of commission (hereafter, for purposes of this subsection only, included in the term 'chief judge'). The clerk shall simultaneously transmit a copy of the complaint to the judge or magistrate whose conduct is the subject of the complaint. (3) After expeditiously reviewing a complaint, the chief judge, by written order stating his reasons, may - (A) dismiss the complaint, if he finds it to be (i) not in conformity with paragraph (1) of this subsection, (ii) directly related to the merits of a decision or procedural ruling, or (iii) frivolous; or (B) conclude the proceeding if he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events. The chief judge shall transmit copies of his written order to the complainant and to the judge or magistrate whose conduct is the subject of the complaint. (4) If the chief judge does not enter an order under paragraph (3) of this subsection, such judge shall promptly - (A) appoint himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate the facts and allegations contained in the complaint; (B) certify the complaint and any other documents pertaining thereto to each member of such committee; and (C) provide written notice to the complainant and the judge or magistrate whose conduct is the subject of the complaint of the action taken under this paragraph. A judge appointed to a special committee under this paragraph may continue to serve on that committee after becoming a senior judge or, in the case of the chief judge of the circuit, after his or her term as chief judge terminates under subsection (a)(3) or (c) of section 45 of this title. If a judge appointed to a committee under this paragraph dies, or retires from office under section 371(a) of this title, while serving on the committee, the chief judge of the circuit may appoint another circuit or district judge, as the case may be, to the committee. (5) Each committee appointed under paragraph (4) of this subsection shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the judicial council of the circuit. Such report shall present both the findings of the investigation and the committee's recommendations for necessary and appropriate action by the judicial council of the circuit. (6) Upon receipt of a report filed under paragraph (5) of this subsection, the judicial council - (A) may conduct any additional investigation which it considers to be necessary; (B) shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit, including, but not limited to, any of the following actions: (i) directing the chief judge of the district of the magistrate whose conduct is the subject of the complaint to take such action as the judicial council considers appropriate; (ii) certifying disability of a judge appointed to hold office during good behavior whose conduct is the subject of the complaint, pursuant to the procedures and standards provided under subsection (b) of this section; (iii) requesting that any such judge appointed to hold office during good behavior voluntarily retire, with the provision that the length of service requirements under section 371 of this title shall not apply; (iv) ordering that, on a temporary basis for a time certain, no further cases be assigned to any judge or magistrate whose conduct is the subject of a complaint; (v) censuring or reprimanding such judge or magistrate by means of private communication; (vi) censuring or reprimanding such judge or magistrate by means of public announcement; or (vii) ordering such other action as it considers appropriate under the circumstances, except that (I) in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior, and (II) any removal of a magistrate shall be in accordance with section 631 of this title and any removal of a bankruptcy judge shall be in accordance with section 152 of this title; (C) may dismiss the complaint; and (D) shall immediately provide written notice to the complainant and to such judge or magistrate of the action taken under this paragraph. (7)(A) In addition to the authority granted under paragraph (6) of this subsection, the judicial council may, in its discretion, refer any complaint under this subsection, together with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States. (B) In any case in which the judicial council determines, on the basis of a complaint and an investigation under this subsection, or on the basis of information otherwise available to the council, that a judge appointed to hold office during good behavior may have engaged in conduct - (i) which might constitute one or more grounds for impeachment under article II of the Constitution; or (ii) which, in the interest of justice, is not amenable to resolution by the judicial council, the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States. (C) A judicial council acting under authority of this paragraph shall, unless contrary to the interests of justice, immediately submit written notice to the complainant and to the judge or magistrate whose conduct is the subject of the action taken under this paragraph. (8)(A) Upon referral or certification of any matter under paragraph (7) of this subsection, the Judicial Conference, after consideration of the prior proceedings and such additional investigation as it considers appropriate, shall by majority vote take such action, as described in paragraph (6)(B) of this subsection, as it considers appropriate. If the Judicial Conference concurs in the determination of the council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary. Upon receipt of the determination and record of proceedings in the House of Representatives, the Clerk of the House of Representatives shall make available to the public the determination and any reasons for the determination. (B) If a judge or magistrate has been convicted of a felony and has exhausted all means of obtaining direct review of the conviction, or the time for seeking further direct review of the conviction has passed and no such review has been sought, the Judicial Conference may, by majority vote and without referral or certification under paragraph (7), transmit to the House of Representatives a determination that consideration of impeachment may be warranted, together with appropriate court records, for whatever action the House of Representatives considers to be necessary. (9)(A) In conducting any investigation under this subsection, the judicial council, or a special committee appointed under paragraph (4) of this subsection, shall have full subpoena powers as provided in section 332(d) of this title. (B) In conducting any investigation under this subsection, the Judicial Conference, or a standing committee appointed by the Chief Justice under section 331 of this title, shall have full subpoena powers as provided in that section. (10) A complainant, judge, or magistrate aggrieved by a final order of the chief judge under paragraph (3) of this subsection may petition the judicial council for review thereof. A complainant, judge, or magistrate aggrieved by an action of the judicial council under paragraph (6) of this subsection may petition the Judicial Conference of the United States for review thereof. The Judicial Conference, or the standing committee established under section 331 of this title, may grant a petition filed by a complainant, judge, or magistrate under this paragraph. Except as expressly provided in this paragraph, all orders and determinations, including denials of petitions for review, shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise. (11) Each judicial council and the Judicial Conference may prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for review, as each considers to be appropriate. Such rules shall contain provisions requiring that - (A) adequate prior notice of any investigation be given in writing to the judge or magistrate whose conduct is the subject of the complaint; (B) the judge or magistrate whose conduct is the subject of the complaint be afforded an opportunity to appear (in person or by counsel) at proceedings conducted by the investigating panel, to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to present argument orally or in writing; and (C) the complainant be afforded an opportunity to appear at proceedings conducted by the investigating panel, if the panel concludes that the complainant could offer substantial information. Any such rule shall be made or amended only after giving appropriate public notice and an opportunity for comment. Any rule promulgated under this subsection shall be a matter of public record, and any such rule promulgated by a judicial council may be modified by the Judicial Conference. No rule promulgated under this subsection may limit the period of time within which a person may file a complaint under this subsection. (12) No judge or magistrate whose conduct is the subject of an investigation under this subsection shall serve upon a special committee appointed under paragraph (4) of this subsection, upon a judicial council, upon the Judicial Conference, or upon the standing committee established under section 331 of this title, until all related proceedings under this subsection have been finally terminated. (13) No person shall be granted the right to intervene or to appear as amicus curiae in any proceeding before a judicial council or the Judicial Conference under this subsection. (14) Except as provided in paragraph (8), all papers, documents, and records of proceedings related to investigations conducted under this subsection shall be confidential and shall not be disclosed by any person in any proceeding except to the extent that - (A) the judicial council of the circuit in its discretion releases a copy of a report of a special investigative committee under paragraph (5) to the complainant whose complaint initiated the investigation by that special committee and to the judge or magistrate whose conduct is the subject of the complaint; (B) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or (C) such disclosure is authorized in writing by the judge or magistrate who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331 of this title. (15) Each written order to implement any action under paragraph (6)(B) of this subsection, which is issued by a judicial council, the Judicial Conference, or the standing committee established under section 331 of this title, shall be made available to the public through the appropriate clerk's office of the court of appeals for the circuit. Unless contrary to the interests of justice, each such order issued under this paragraph shall be accompanied by written reasons therefor. (16) Upon the request of a judge or magistrate whose conduct is the subject of a complaint under this subsection, the judicial council may, if the complaint has been finally dismissed under paragraph (6)(C), recommend that the Director of the Administrative Office of the United States Courts award reimbursement, from funds appropriated to the Federal judiciary, for those reasonable expenses, including attorneys' fees, incurred by that judge or magistrate during the investigation which would not have been incurred but for the requirements of this subsection. (17) Except as expressly provided in this subsection, nothing in this subsection shall be construed to affect any other provision of this title, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, or the Federal Rules of Evidence. (18) The United States Claims Court, the Court of International Trade, and the Court of Appeals for the Federal Circuit shall each prescribe rules, consistent with the foregoing provisions of this subsection, establishing procedures for the filing of complaints with respect to the conduct of any judge of such court and for the investigation and resolution of such complaints. In investigating and taking action with respect to any such complaint, each such court shall have the powers granted to a judicial council under this subsection. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 903; May 24, 1949, ch. 139, Sec. 67, 63 Stat. 99; Feb. 10, 1954, ch. 6, Sec. 4(a), 68 Stat. 12; Sept. 2, 1957, Pub. L. 85-261, 71 Stat. 586; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(9), 94 Stat. 1742; Oct. 15, 1980, Pub. L. 96-458, Sec. 3(a), (b), 94 Stat. 2036, 2040; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 112, 96 Stat. 29; July 10, 1984, Pub. L. 98-353, title I, Sec. 107, 98 Stat. 342; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 403(c), 102 Stat. 4651; Dec. 1, 1990, Pub. L. 101-650, title IV, Sec. 402, 104 Stat. 5122.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 375b, 375c, and 375d (Aug. 5, 1939, ch. 433, Sec. 1-3, 53 Stat. 1204, 1205). This section consolidates sections 375b, 375c, and 375d of title 28, U.S.C., 1940 ed. Section 375e of title 28, U.S.C., 1940 ed. providing that term 'senior circuit judge' includes the Chief Justice of the United States Court of Appeals for the District of Columbia, and the term 'judicial circuit' includes the District of Columbia, was omitted from this revision as unnecessary. Such district is included as a judicial circuit by section 41 of this title. Words 'justice or judge of the United States' were used to describe members of all courts who hold office during good behavior. (See reviser's note under section 371 of this title.) Term 'chief judge' was substituted for 'Chief Justice' of the Court of Claims, 'presiding judge' of the Court of Customs and Patent Appeals and 'senior circuit judge.' (See Reviser's Note under section 136 of this title.) For clarity and convenience the requirement that certificates of disability be submitted 'to the President,' was made explicit. The revised section requires a judge of the Customs Court to furnish a certificate of disability signed by the chief judge of his court, instead of by the chief judge of the Court of Customs and Patent Appeals as in said section 375c of title 28, U.S.C., 1940 ed. This change insures signing of the certificate of disability by the chief judge possessing knowledge of the facts. Changes were made in phraseology and arrangement. 1949 ACT Subsection (a) of this section amends section 372 of title 28, U.S.C., to express the requirement that appointment of successors to justices or judges must be made with confirmation by the Senate. Subsection (b) of this section clarifies the intent of section 372 of title 28, U.S.C., and conforms with the language of section 371 of such title. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, the Federal Rules of Appellate Procedure, and the Federal Rules of Evidence, referred to in subsec. (c)(17), are set out in the Appendix to this title. The Federal Rules of Criminal Procedure, referred to in subsec. (c)(17), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. -MISC2- AMENDMENTS 1990 - Subsec. (c)(1). Pub. L. 101-650, Sec. 402(a), inserted at end 'In the interests of the effective and expeditious administration of the business of the courts and on the basis of information available to the chief judge of the circuit, the chief judge may, by written order stating reasons therefor, identify a complaint for purposes of this subsection and thereby dispense with filing of a written complaint.' Subsec. (c)(3)(B). Pub. L. 101-650, Sec. 402(f), inserted before period at end 'or that action on the complaint is no longer necessary because of intervening events'. Subsec. (c)(4). Pub. L. 101-650, Sec. 402(b), inserted at end 'A judge appointed to a special committee under this paragraph may continue to serve on that committee after becoming a senior judge or, in the case of the chief judge of the circuit, after his or her term as chief judge terminates under subsection (a)(3) or (c) of section 45 of this title. If a judge appointed to a committee under this paragraph dies, or retires from office under section 371(a) of this title, while serving on the committee, the chief judge of the circuit may appoint another circuit or district judge, as the case may be, to the committee.' Subsec. (c)(6). Pub. L. 101-650, Sec. 402(g), added subpar. (C) and redesignated former subpar. (C) as (D). Subsec. (c)(7)(B). Pub. L. 101-650, Sec. 402(i)(1), substituted 'may have engaged in conduct' for 'has engaged in conduct' in introductory provisions and 'article II' for 'article I' in cl. (i). Subsec. (c)(8). Pub. L. 101-650, Sec. 402(d), designated existing provisions as subpar. (A) and added subpar. (B). Pub. L. 101-650, Sec. 402(c)(1), inserted at end 'Upon receipt of the determination and record of proceedings in the House of Representatives, the Clerk of the House of Representatives shall make available to the public the determination and any reasons for the determination.' Subsec. (c)(11). Pub. L. 101-650, Sec. 402(e), inserted at end 'No rule promulgated under this subsection may limit the period of time within which a person may file a complaint under this subsection.' Subsec. (c)(14). Pub. L. 101-650, Sec. 402(c)(2)(A), (B), substituted 'Except as provided in paragraph (8), all' for 'All' and 'except to the extent that' for 'unless' in introductory provisions. Subsec. (c)(14)(A). Pub. L. 101-650, Sec. 402(c)(2)(E), added subpar. (A). Former subpar. (A) redesignated (B). Subsec. (c)(14)(B). Pub. L. 101-650, Sec. 402(c)(2)(D), redesignated subpar. (A) as (B). Former subpar. (B) redesignated (C). Pub. L. 101-650, Sec. 402(c)(2)(C), inserted 'such disclosure is' before 'authorized'. Subsec. (c)(14)(C). Pub. L. 101-650, Sec. 402(c)(2)(D), (i)(2), redesignated subpar. (B) as (C) and substituted 'subject of the complaint' for 'subject to the complaint'. Subsec. (c)(16) to (18). Pub. L. 101-650, Sec. 402(h), added par. (16) and redesignated former pars. (16) and (17) as (17) and (18), respectively. 1988 - Subsec. (c)(11). Pub. L. 100-702 inserted before last sentence 'Any such rule shall be made or amended only after giving appropriate public notice and an opportunity for comment.' 1984 - Subsec. (c)(6)(B)(vii). Pub. L. 98-353 substituted 'section 152' for 'section 153'. 1982 - Subsec. (a). Pub. L. 97-164, Sec. 112(a), struck out 'Court of Claims, Court of Customs and Patent Appeals, or' before 'Court of International Trade' in third and fifth pars. Subsec. (b). Pub. L. 97-164, Sec. 112(b), struck out 'Court of Claims, Court of Customs and Patent Appeals, or' before 'Court of International Trade' wherever appearing. Subsec. (c)(17). Pub. L. 97-164, Sec. 112(c), substituted 'United States Claims Court, the Court of International Trade, and the Court of Appeals for the Federal Circuit' for 'Court of Claims, the Court of Customs and Patent Appeals, and the Customs Court'. 1980 - Pub. L. 96-458, Sec. 3(b), inserted 'judicial discipline' in section catchline. Subsecs. (a), (b). Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. Subsec. (c). Pub. L. 96-458, Sec. 3(a), added subsec. (c). 1957 - Subsec. (b). Pub. L. 85-261 added subsec. (b). 1954 - Act Feb. 10, 1954, inserted '; substitute judge on failure to retire' in section catchline (but without adding any provisions on such subject to the text of the section, see 1957 amendment), and inserted 'under this section' after 'retire' in third, fourth, and fifth pars. 1949 - Act May 24, 1949, amended section to include provision that appointment of successors to justices or judges must be made with consent of Senate, and inserted 'continuously or otherwise' after 'Each justice or judge' in last par. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-650 effective 90 days after Dec. 1, 1990, see section 407 of Pub. L. 101-650, set out as a note under section 332 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-353 effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENTS Amendment by Pub. L. 96-458 effective Oct. 1, 1981, see section 7 of Pub. L. 96-458, set out as a note under section 331 of this title. Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. NATIONAL COMMISSION ON JUDICIAL IMPEACHMENT Subtitle II of title IV of Pub. L. 101-650 provided that: 'SEC. 408. SHORT TITLE. 'This subtitle may be cited as the 'National Commission on Judicial Discipline and Removal Act'. 'SEC. 409. ESTABLISHMENT. 'There is hereby established a commission to be known as the 'National Commission on Judicial Discipline and Removal' (hereafter in this subtitle referred to as the 'Commission'). 'SEC. 410. DUTIES OF COMMISSION. 'The duties of the Commission are - '(1) to investigate and study the problems and issues involved in the tenure (including discipline and removal) of an article III judge; '(2) to evaluate the advisability of proposing alternatives to current arrangements with respect to such problems and issues, including alternatives for discipline or removal of judges that would require amendment to the Constitution; and '(3) to prepare and submit to the Congress, the Chief Justice of the United States, and the President a report in accordance with section 415. 'SEC. 411. MEMBERSHIP. '(a) Number and Appointment. - The Commission shall be composed of 13 members as follows: '(1) Three appointed by the President pro tempore of the Senate. '(2) Three appointed by the Speaker of the House of Representatives. '(3) Three appointed by the Chief Justice of the United States. '(4) Three appointed by the President. '(5) One appointed by the Conference of Chief Justices of the States of the United States. '(b) Term. - Members of the Commission shall be appointed for the life of the Commission. '(c) Quorum. - Six members of the Commission shall constitute a quorum, but a lesser number may conduct meetings. '(d) Chairman. - The members of the Commission shall select one of the members to be the Chairman. '(e) Appointment Deadline. - The first appointments made under subsection (a) shall be made within 60 days after the date of the enactment of this Act (Dec. 1, 1990). '(f) First Meeting. - The first meeting of the Commission shall be called by the Chairman and shall be held within 90 days after the date of the enactment of this Act. '(g) Vacancy. - A vacancy on the Commission resulting from the death or resignation of a member shall not affect its powers and shall be filled in the same manner in which the original appointment was made. '(h) Continuation of Membership. - If any member of the Commission who was appointed to the Commission as a Member of Congress or as an officer or employee of a government leaves that office, or if any member of the Commission who was appointed from persons who are not officers or employees of a government becomes an officer or employee of a government, the member may continue as a member of the Commission for not longer than the 90-day period beginning on the date the member leaves that office or becomes such an officer or employee, as the case may be. 'SEC. 412. COMPENSATION OF THE COMMISSION. '(a) Pay. - (1) Except as provided in paragraph (2), each member of the Commission who is not otherwise employed by the United States Government shall be entitled to receive the daily equivalent of the annual rate of basic pay payable for GS-18 of the General Schedule under section 5332 of title 5, United States Code, for each day (including travel time) during which he or she is engaged in the actual performance of duties as a member of the Commission. '(2) A member of the Commission who is an officer or employee of the United States Government shall serve without additional compensation. '(b) Travel. - All members of the Commission shall be reimbursed for travel, subsistence, and other necessary expenses incurred by them in the performance of their duties. 'SEC. 413. DIRECTOR AND STAFF OF COMMISSION; EXPERTS AND CONSULTANTS. '(a) Director. - The Commission shall, without regard to section 5311(b) of title 5, United States Code, have a Director who shall be appointed by the Chairman and who shall be paid at a rate not to exceed the rate of basic pay payable for level V of the Executive Schedule under section 5316 of such title. '(b) Staff. - The Chairman of the Commission may appoint and fix the pay of such additional personnel as the Chairman finds necessary to enable the Commission to carry out its duties. Such personnel may be appointed without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that the annual rate of pay for any individual so appointed may not exceed a rate equal to the annual rate of basic pay payable for GS-18 of the General Schedule under section 5332 of such title. '(c) Experts and Consultants. - The Commission may procure temporary and intermittent services of experts and consultants under section 3109(b) of title 5, United States Code. 'SEC. 414. POWERS OF COMMISSION. '(a) Hearings and Sessions. - The Commission or, on authorization of the Commission, a member of the Commission may, for the purpose of carrying out this subtitle, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Commission considers appropriate. The Commission may administer oaths or affirmations to witnesses appearing before it. '(b) Obtaining Official Data. - The Commission may secure directly from any department, agency, or entity within the executive or judicial branch of the Federal Government information necessary to enable it to carry out this subtitle. Upon request of the Chairman of the Commission, the head of such department or agency shall furnish such information to the Commission. '(c) Facilities and Support Services. - The Administrator of General Services shall provide to the Commission on a reimbursable basis such facilities and support services as the Commission may request. Upon request of the Commission, the head of any Federal agency is authorized to make any of the facilities and services of such agency available to the Commission to assist the Commission in carrying out its duties under this subtitle. '(d) Expenditures and Contracts. - The Commission or, on authorization of the Commission, a member of the Commission may make expenditures and enter into contracts for the procurement of such supplies, services, and property as the Commission or member considers appropriate for the purposes of carrying out the duties of the Commission. Such expenditures and contracts may be made only to such extent or in such amounts as are provided in appropriation Acts. '(e) Mails. - The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States. '(f) Gifts. - The Commission may accept, use, and dispose of gifts or donations of services or property. 'SEC. 415. REPORT. 'The Commission shall submit to each House of Congress, the Chief Justice of the United States, and the President a report not later than one year after the date of its first meeting. The report shall contain a detailed statement of the findings and conclusions of the Commission, together with its recommendations for such legislative or administrative action as it considers appropriate. 'SEC. 416. TERMINATION. 'The Commission shall cease to exist on the date 30 days after the date it submits its report to the President and the Congress under section 415. 'SEC. 417. AUTHORIZATION OF APPROPRIATIONS. 'There is authorized to be appropriated the sum of $750,000 to carry out the provisions of this subtitle. 'SEC. 418. EFFECTIVE DATE. 'This subtitle shall take effect on the date of the enactment of this Act (Dec. 1, 1990).' (References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5.) COMPUTATION OF JUDICIAL SERVICE, DISTRICT OF ALASKA Inclusion of service as judge of the District Court for the Territory of Alaska in the computation of years of judicial service for judges of the United States District Court for the District of Alaska, see Pub. L. 89-70, set out as a note under section 371 of this title. JUDICIAL SERVICE IN HAWAII Certain judicial service in Hawaii included within computation of aggregate years of judicial service, see section 14(d) of Pub. L. 86-3, set out as a note under section 371 of this title. -CROSS- CROSS REFERENCES Assignment of retired justices or judges to active duty, see section 294 of this title. Justices and judges appointed to hold office during good behavior - Court of International Trade, see section 252 of this title. Courts of Appeals, see Const., Art. 3, Sec. 1. District Courts, see Const., Art. 3, Sec. 1. Supreme Court, see Const., Art. 3, Sec. 1. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 178, 294, 331, 332, 375, 376, 377, 604 of this title; title 5 sections 8440a, 8701. ------DocID 36291 Document 153 of 1452------ -CITE- 28 USC Sec. 373 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 373. Judges in territories and possessions -STATUTE- (a) Any judge of the District Court of Guam, the District Court of the Northern Mariana Islands, or the District Court of the Virgin Islands who retires from office after attaining the age and meeting the service requirements whether continuous or otherwise, of subsection (b) shall, during the remainder of his lifetime, receive an annuity equal to the salary he is receiving at the time he retires. (b) The age and service requirements for retirement under subsection (a) of this section are as follows: Attained age: Years of service: 65 15 66 14 67 13 68 12 69 11 70 10 (c)(1) Any judge or former judge who is receiving an annuity pursuant to this section may elect to become a senior judge of the court upon which he served before retiring. (2) The chief judge of a judicial circuit may recall any such senior judge, with the judge's consent, to perform, for the court from which he retired, such judicial duties for such periods of time as the chief judge may specify. (3) Any act or failure to act by a senior judge performing judicial duties pursuant to recall under paragraph (2) of this subsection shall have the same force and effect as if it were an act or failure to act of a judge on active duty; but such senior judge shall not be counted as a judge of the court on which he is serving as a recalled annuitant for purposes of the number of judgeships authorized for that court. (4) Any senior judge performing judicial duties pursuant to recall under paragraph (2) of this subsection shall be paid, while performing such duties, the same compensation (in lieu of the annuity payable under subsection (a) of this section) and the same allowances for travel and other expenses as a judge on active duty with the court being served. (5) Any senior judge performing judicial duties pursuant to recall under paragraph (2) of this subsection shall at all times be governed by the code of judicial conduct for United States judges approved by the Judicial Conference of the United States. (d) Any judge who elects to become a senior judge under subsection (c) of this section and who thereafter - (1) accepts civil office or employment under the Government of the United States (other than the performance of judicial duties pursuant to recall under subsection (c) of this section); (2) engages in the practice of law; or (3) materially violates the code of judicial conduct for United States judges, shall cease to be a senior judge and to be eligible for recall pursuant to subsection (c) of this section. (e) Any judge of the District Court of Guam, the District Court of the Northern Mariana Islands, or the District Court of the Virgin Islands who is removed by the President of the United States upon the sole ground of mental or physical disability, or who is not reappointed (as judge of such court), shall be entitled, upon attaining the age of sixty-five years or upon relinquishing office if he is then beyond the age of sixty-five years, (1) if his judicial service, continuous or otherwise, aggregates fifteen years or more, to receive during the remainder of his life an annuity equal to the salary he received when he left office, or (2) if his judicial service, continuous or otherwise, aggregated less than fifteen years but not less than ten years, to receive during the remainder of his life an annuity equal to that proportion of such salary which the aggregate number of his years of his judicial service bears to fifteen. (f) Service at any time as a judge of the courts referred to in subsection (a) or of any other court of the United States, as defined by section 451 of this title, shall be included in the computation of aggregate years of judicial service for purposes of this section. (g) Any retired judge who is entitled to receive an annuity under subsection (a) shall be entitled to a cost of living adjustment in the amount payable to him computed as specified in section 8340(b) of title 5, except that in no case may the annuity payable to such retired judge, as increased under this subsection, exceed 95 per centum of the salary of a United States district judge in regular active service. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 904; Oct. 31, 1951, ch. 655, Sec. 40, 65 Stat. 724; Feb. 10, 1954, ch. 6, Sec. 5, 68 Stat. 13; July 7, 1958, Pub. L. 85-508, Sec. 12(d), 72 Stat. 348; Mar. 18, 1959, Pub. L. 86-3, Sec. 14(d), 73 Stat. 10; Sept. 12, 1966, Pub. L. 89-571, Sec. 2, 80 Stat. 764; Oct. 11, 1976, Pub. L. 94-470, 90 Stat. 2052; Aug. 27, 1986, Pub. L. 99-396, Sec. 21(a), 100 Stat. 844.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 634b and 634c of title 48, U.S.C., 1940 ed., Territories and Insular Possessions. (title 28, U.S.C., 1940 ed., Sec. 375g, 375g note, 375h) (May 31, 1938, ch. 301, Sec. 1, 2, 52 Stat. 591; Apr. 16, 1946, ch. 139, Sec. 1, 2, 3, 60 Stat. 90, 91). Section consolidates sections 634b and 634c of title 48, U.S.C., 1940 ed., as amended and transferred to title 28, U.S.C., 1940 ed., as sections 375g and 375h thereof, with changes of phraseology necessary to effect consolidation. AMENDMENTS 1986 - Pub. L. 99-396 amended section generally. Prior to amendment, section read as follows: 'Any judge of the United States District Court for the District of the Canal Zone, the District Court of Guam, or the District Court of the Virgin Islands, who resigns after attaining the age of seventy years and after serving at least ten years, continuously or otherwise, or after attaining the age of sixty-five years and after serving at least fifteen years, continuously or otherwise, shall continue during the remainder of his life to receive the salary he received when he relinquished office. 'Any judge of any such courts who is removed by the President of the United States upon the sole ground of mental or physical disability, or who fails of reappointment, shall be entitled, upon attaining the age of sixty-five years or upon relinquishing office if he is then beyond the age of sixty-five years, (a) if his judicial service aggregated sixteen years or more, to receive during the remainder of his life the salary he received when he relinquished office, or (b) if his judicial service aggregated less than sixteen years but not less than ten years, to receive during the remainder of his life that proportion of such salary which the aggregate number of years of his judicial service bears to sixteen. 'Service at any time in any of the courts referred to in the first paragraph, or in any other court under appointment by the President, shall be included in the computation of aggregate years of judicial service for the purposes of this section. 'Any judge who has retired by resigning under the provisions of this section, or who is otherwise entitled to payments under this section, shall be entitled after the effective date of this Act to a cost-of-living adjustment in the amount payable to him computed as specified in section 8340(b) of title 5, United States Code: Provided, however, That in no case shall the salary or amount payable to such judge as increased under this paragraph exceed 95 per centum of the salary of a United States district court judge in regular active service.' 1976 - Pub. L. 94-470 inserted cost-of-living adjustment provision, including limitation of payment to amount no greater than 95 per centum of salary of a United States district court judge in regular active service. 1966 - Pub. L. 89-571 removed the United States District Court for District of Puerto Rico from list of courts to which the provisions of section are applicable. 1959 - Pub. L. 86-3 struck out references to judges of United States District Court for District of Hawaii and to justices of Supreme Court of Territory of Hawaii. See section 91 of this title and notes thereunder. 1958 - Pub. L. 85-508 struck out provisions which related to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1954 - Act Feb. 10, 1954, among other changes, inserted provisions for retirement after attaining the age of 65 years and after serving at least fifteen years continuously or otherwise, changed period of service in connection with retirement at age 70, and reduced from 70 to 65 years the age requirement in connection with payment of salary after removal for mental or physical disability or failure of reappointment. 1951 - Act Oct. 31, 1951, inserted reference to judge of District Court of Guam in first par. EFFECTIVE DATE OF 1986 AMENDMENT Section 21(c) of Pub. L. 99-396 provided that: 'The amendments made by this section (amending this section and section 376 of this title) shall not affect the amount payable to a judge who retired in accordance with the provisions of section 373 of title 28, United States Code, in effect on the day before the date of enactment of this Act (Aug. 27, 1986).' EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-3 effective on admission of State of Hawaii into the Union, see note set out under section 91 of this title. Admission of Hawaii into the Union was accomplished Aug. 21, 1959, upon issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding section 491 of Title 48, Territories and Insular Possessions. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, upon admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. ELECTION, RECALL, STATUS, COMPENSATION, CONDUCT, AND TERMINATION OF SENIOR JUDGES Pub. L. 98-454, title X, Sec. 1002, Oct. 5, 1984, 98 Stat. 1745, provided that: '(a) Any judge or former judge who is receiving, or will upon attaining the age of sixty-five years be entitled to receive, payments pursuant to section 373 of title 28, United States Code(,) may elect to become a senior judge of the court on which he served while on active duty. '(b) The chief judge of a judicial circuit may recall any such senior judge of his circuit, with the judge's consent, to perform in the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands such judicial duties and for such periods of time as the chief judge may specify. '(c) Any act or failure to act by a senior judge performing judicial duties pursuant to this section shall have the same force and effect as if it were the act or failure to act of a judge on active duty; but such senior judge shall not be counted as a judge of the court on which he is serving for purposes of the number of judgeships authorized for that court. '(d) Any senior judge shall be paid, while performing duties pursuant to this section, the same compensation (in lieu of payments pursuant to section 373 of title 28, United States Code) and the same allowances for travel and other expenses as a judge in active service. '(e) Senior judges under subsection (a) of this section shall at all times be governed by the code of judicial conduct for the United States judges, approved by the Judicial Conference of the United States. '(f) Any person who has elected to be a senior judge under subsection (a) of this section and who thereafter - '(1) accepts civil office or employment under the Government of the United States (other than the performance of judicial duties pursuant to subsection (b) of this section); '(2) engages in the practice of law; or '(3) materially violated the code of judicial conduct for the United States judges, shall cease to be a senior judge and to be eligible for recall pursuant to subsection (b) of this section.' TENURE AND SALARY RIGHTS OF JUDGES IN PUERTO RICO IN OFFICE ON SEPTEMBER 12, 1966 Amendment by Pub. L. 89-571 not to affect tenure of office or right to continue to receive salary after resignation, retirement, or failure of reappointment of any district judge for the District of Puerto Rico in office on Sept. 12, 1966, see section 4 of Pub. L. 89-571, set out as a note under section 134 of this title. PRESERVATION OF RIGHTS OF RETIRED JUDGES OF THE DISTRICT COURT FOR THE DISTRICT OF HAWAII AND JUSTICES OF THE SUPREME COURT OF THE TERRITORY OF HAWAII Section 14(d) of Pub. L. 86-3 provided in part: 'That the amendments made by this subsection shall not affect the rights of any judge or justice who may have retired before the effective date of this subsection'. See Effective Date of 1959 Amendment note above. PRESERVATION OF RIGHTS OF RETIRED JUDGES OF THE DISTRICT COURT FOR THE TERRITORY OF ALASKA Section 12(d) of Pub. L. 85-508 provided in part: 'That the amendment made by this subsection shall not affect the rights of any judge who may have retired before it takes effect'. See Effective Date of 1958 Amendment note above. JUDICIAL SERVICE IN HAWAII Certain judicial service in Hawaii included within computation of aggregate years of judicial service, see section 14(d) of Pub. L. 86-3, set out as a note under section 371 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 376 of this title. ------DocID 36292 Document 154 of 1452------ -CITE- 28 USC Sec. 374 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 374. Residence of retired judges; official station -STATUTE- Retired judges of the United States are not subject to restrictions as to residence. The place where a retired judge maintains the actual abode in which he customarily lives shall be deemed to be his official station for the purposes of section 456 of this title. The place where a judge or magistrate recalled under section 155, 375, 636, or 797 of this title maintains the actual abode in which the judge or magistrate customarily lives shall be deemed to be the official station of such judge or magistrate for purposes of section 604(a)(7) of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 904; Sept. 21, 1959, Pub. L. 86-312, Sec. 1, 73 Stat. 587; Nov. 14, 1986, Pub. L. 99-651, title II, Sec. 202(b), 100 Stat. 3648.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 402 (Feb. 11, 1938, ch. 23, 52 Stat. 28). Sections 44 and 133 of this title require that active circuit and district judges shall reside in the circuit or district to which appointed. Changes were made in phraseology. AMENDMENTS 1986 - Pub. L. 99-651 inserted last sentence. 1959 - Pub. L. 86-312 inserted sentence to provide that place where retired judge maintains actual abode shall be deemed to be his official station and inserted '; official station' in section catchline. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as a note under section 155 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 456 of this title. ------DocID 36293 Document 155 of 1452------ -CITE- 28 USC Sec. 375 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 375. Recall of certain judges and magistrates -STATUTE- (a)(1) A bankruptcy judge, a judge of the Claims Court, or a United States magistrate appointed under chapter 43 of this title, who has retired under the provisions of section 377 of this title or under the applicable provisions of title 5 upon attaining the age and years of service requirements established in section 371(c) of this title, may agree to be recalled to serve under this section for a period of five years as a bankruptcy judge, judge of the Claims Court, or magistrate, as the case may be, upon certification that substantial service is expected to be performed by such retired judge or magistrate during such 5-year period. With the agreement of the judge or magistrate involved, a certification under this subsection may be renewed for successive 5-year periods. (2) For purposes of paragraph (1) of this subsection, a certification may be made - (A) in the case of a bankruptcy judge or a United States magistrate, by the judicial council of the circuit in which the official duty station of the judge or magistrate at the time of retirement was located; and (B) in the case of a judge of the Claims Court, by the chief judge of the United States Claims Court. (3) For purposes of this section - (A) the term 'bankruptcy judge' means a bankruptcy judge appointed under chapter 6 of this title or serving as a bankruptcy judge on March 31, 1984; and (B) the term 'judge of the Claims Court' means a judge of the United States Claims Court who is appointed under chapter 7 of this title or who has served under section 167 of the Federal Courts Improvement Act of 1982. (b) A judge or magistrate recalled under this section may exercise all of the powers and duties of the office of judge or magistrate held at the time of retirement, including the ability to serve in any other judicial district to the extent applicable, but may not engage in the practice of law or engage in any other business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of duties as a judicial officer. (c) During the 5-year period in which a certification under subsection (a) is in effect, the judge or magistrate involved shall receive, in addition to the annuity provided under the provisions of section 377 of this title or under the applicable provisions of title 5, an amount equal to the difference between that annuity and the current salary of the office to which the judge or magistrate is recalled. The annuity of a bankruptcy judge or magistrate who completes that 5-year period of service, whose certification is not renewed, and who retired under section 377 of this title shall be equal to the salary in effect, at the end of that 5-year period, for the office from which he or she retired. (d) A certification under subsection (a) may be terminated in accordance with section 372(c) of this title, and such a certification shall be terminated upon the death of the recalled judge or magistrate involved. (e) Except as provided in subsection (b), nothing in this section shall affect the right of judges or magistrates who retire under the provisions of chapter 83 or chapter 84 of title 5 to serve as reemployed annuitants in accordance with the provisions of title 5. A judge or magistrate to whom this section applies may be recalled under section 155, 636(h), or 797 of this title, as the case may be, other than during a 5-year period in which a certification under subsection (a) is in effect with respect to that judge or magistrate. (f) For purposes of determining the years of service requirements in order to be eligible for recall under this section, any service as a bankruptcy judge, a judge of the Claims Court, or a United States magistrate, and any prior service as a referee in bankruptcy, a commissioner of the Court of Claims, or a United States commissioner, may be credited. (g) Except as provided in subsection (c), a judge or magistrate recalled under this section who retired under the applicable provisions of title 5 shall be considered to be a reemployed annuitant under chapter 83 or chapter 84, as the case may be, of title 5. (h) The Judicial Conference of the United States may promulgate regulations to implement this section. -SOURCE- (Added Pub. L. 99-651, title II, Sec. 201(b)(1), Nov. 14, 1986, 100 Stat. 3647, and amended Pub. L. 100-659, Sec. 4(b), Nov. 15, 1988, 102 Stat. 3918; Pub. L. 101-650, title III, Sec. 325(b)(2), Dec. 1, 1990, 104 Stat. 5121.) -REFTEXT- REFERENCES IN TEXT Section 167 of the Federal Courts Improvement Act of 1982, referred to in subsec. (a)(3)(B), is section 167 of Pub. L. 97-164, which is set out as a note under section 171 of this title. -MISC2- PRIOR PROVISIONS A prior section 375, added Aug. 28, 1954, ch. 1053, Sec. 1, 68 Stat. 918, and amended Aug. 3, 1956, ch. 944, Sec. 1(b), 70 Stat. 1021; Aug. 22, 1972, Pub. L. 92-397, Sec. 1, 86 Stat. 579, which provided for annuities to widows of justices, was repealed by Pub. L. 96-504, Sec. 5, Dec. 5, 1980, 94 Stat. 2742. AMENDMENTS 1990 - Subsec. (a)(1). Pub. L. 101-650 substituted 'section 377 of this title' for 'section 377 of title'. 1988 - Subsec. (a)(1). Pub. L. 100-659, Sec. 4(b)(1), inserted 'under the provisions of section 377 of title or' after 'has retired'. Subsec. (c). Pub. L. 100-659, Sec. 4(b)(2), inserted 'under the provisions of section 377 of this title or' after 'annuity provided' and inserted at end 'The annuity of a bankruptcy judge or magistrate who completes that 5-year period of service, whose certification is not renewed, and who retired under section 377 of this title shall be equal to the salary in effect, at the end of that 5-year period, for the office from which he or she retired.' Subsec. (g). Pub. L. 100-659, Sec. 4(b)(3), inserted 'who retired under the applicable provisions of title 5' after 'section'. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE Section effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as an Effective Date of 1986 Amendment note under section 155 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 377, 631, 636 of this title. ------DocID 36294 Document 156 of 1452------ -CITE- 28 USC Sec. 376 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 376. Annuities for survivors of certain judicial officials of the United States -STATUTE- (a) For the purposes of this section - (1) 'judicial official' means: (A) a Justice or judge of the United States, as defined by section 451 of this title; (B) a judge of the District Court of Guam, the District Court of the Northern Mariana Islands, or the District Court of the Virgin Islands; (C) a Director of the Administrative Office of the United States Courts, after he or she has filed a waiver under subsection (a) of section 611 of this title; (D) a Director of the Federal Judicial Center, after he or she has filed a waiver under subsection (b) of section 627 of this title; (E) an administrative assistant to the Chief Justice of the United States, after he or she has filed a waiver in accordance with both subsection (a) of section 677 and subsection (a) of section 611 of this title; (F) a full-time bankruptcy judge or a full-time United States magistrate; or (G) a judge of the United States Claims Court; who notifies the Director of the Administrative Office of the United States Courts in writing of his or her intention to come within the purview of this section within six months after (i) the date upon which he or she takes office, (ii) the date upon which he or she marries, (iii) January 1, 1977, (iv) October 1, 1986, (v) the date of the enactment of the Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988, in the case of a full-time bankruptcy judge or United States magistrate in active service on that date, or (vi) the date of the enactment of the Federal Courts Study Committee Implementation Act of 1990, in the case of a full-time judge of the Claims Court in active service on that date; (2) 'retirement salary' means: (A) in the case of a Justice or judge of the United States, as defined by section 451 of this title, salary paid (i) after retirement from regular active service under subsection (b) of section 371 or subsection (a) of section 372 of this title, or (ii) after retirement from office by resignation on salary under subsection (a) of section 371 of this title; (B) in the case of a judge of the District Court of Guam, the District Court of the Northern Mariana Islands, or the District Court of the Virgin Islands, (i) an annuity paid under subsection (a) of section 373 of this title or (ii) compensation paid under paragraph (4) of subsection (c) of section 373 of this title; (C) in the case of a Director of the Administrative Office of the United States Courts, an annuity paid under subsection (b) or (c) of section 611 of this title; (D) in the case of a Director of the Federal Judicial Center, an annuity paid under subsection (c) or (d) of section 627 of this title; (E) in the case of an administrative assistant to the Chief Justice of the United States, an annuity paid in accordance with both subsection (a) of section 677 and subsection (a) of section 611 of this title; (F) in the case of a bankruptcy judge or United States magistrate, an annuity paid under section 377 of this title; and (G) in the case of a judge of the United States Claims Court, an annuity paid under section 178 of this title; (3) 'widow' means the surviving wife of a 'judicial official', who: (A) has been married to him for at least one year on the day of his death; or (B) is the mother of issue by that marriage; (4) 'widower' means the surviving husband of a 'judicial official', who: (A) has been married to her for at least one year on the day of her death; or (B) is the father of issue by that marriage; (5) 'child' means: (A) an unmarried child under eighteen years of age, including (i) an adopted child and (ii) a stepchild or recognized natural child who lived with the judicial official in a regular parent-child relationship; (B) such unmarried child between eighteen and twenty-two years of age who is a student regularly pursuing a full-time course of study or training in residence in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable educational institution. A child whose twenty-second birthday occurs before July 1, or after August 31, of a calendar year, and while he or she is regularly pursuing such a course of study or training, is deemed to have become twenty-two years of age on the first day of July immediately following that birthday. A child who is a student is deemed not to have ceased being a student during an interim period between school years, if that interim period lasts no longer than five consecutive months and if that child shows, to the satisfaction of the Director of the Administrative Office of the United States Courts, that he or she has a bona fide intention of continuing to pursue a course of study or training in the same or a different school during the school semester, or other period into which the school year is divided, immediately following that interim period; or (C) such unmarried child, regardless of age, who is incapable of self-support because of a mental or physical disability incurred either (i) before age eighteen, or (ii) in the case of a child who is receiving an annuity as a full-time student under paragraph (5)(B) of this subsection, before the termination of that annuity; (6) 'former spouse' means a former spouse of a judicial official if the former spouse was married to such judicial official for at least 9 months; and (7) 'assassinated' and 'assassination' mean the killing of a judicial official described in paragraph (1)(A), (B), (F), or (G) of this subsection that is motivated by the performance by that judicial official of his or her official duties. (b) Every judicial official who files a written notification of his or her intention to come within the purview of this section, in accordance with paragraph (1) of subsection (a) of this section, shall be deemed thereby to consent and agree to having deducted and withheld from his or her salary, including any 'retirement salary', a sum equal to 5 percent of that salary. The amounts so deducted and withheld from the salary of each such judicial official shall, in accordance with such procedures as may be prescribed by the Comptroller General of the United States, be covered into the Treasury of the United States and credited to the 'Judicial Survivors' Annuities Fund' established by section 3 of the Judicial Survivors' Annuities Reform Act. Such fund shall be used for the payment of annuities, refunds, and allowances as provided by this section. Payment of such salary less such deductions (and any deductions made under section 178 or 377 of this title or under subchapter III of chapter 83, or chapter 84, of title 5) shall be a full and complete discharge and acquittance of all claims and demands whatsoever for all services rendered by such judicial official during the period covered by such payment, except the rights to those benefits to which such judicial official, or his or her survivors, shall be entitled under the provisions of this section (and under section 178 or 377 of this title or under subchapter III of chapter 83, or chapter 84, of title 5). (c)(1) There shall also be deposited to the credit of the Judicial Survivors' Annuities Fund, in accordance with such procedures as the Comptroller General of the United States may prescribe, amounts required to reduce to zero the unfunded liability of the Judicial Survivors' Annuities Fund: Provided, That such amounts shall not exceed the equivalent of 9 percent of salary or retirement salary. Such deposits shall, subject to appropriations Acts, be taken from the fund used to pay the compensation of the judicial official, and shall immediately become an integrated part of the Judicial Survivors' Annuities Fund for any use required under this section. (2) For purposes of paragraph (1), the term 'unfunded liability' means the estimated excess, determined on an annual basis in accordance with the provisions of section 9503 of title 31, United States Code, of the present value of all benefits payable from the Judicial Survivors' Annuities Fund, over the sum of - (A) the present value of deductions to be withheld from the future basic pay of judicial officials; plus (B) the balance in the Fund as of the date the unfunded liability is determined. In making any determination under this paragraph, the Comptroller General shall use the applicable information contained in the reports filed pursuant to section 9503 of title 31, United States Code, with respect to the judicial survivors' annuities plan established by this section. (3) There are authorized to be appropriated such sums as may be necessary to carry out this subsection. (d) Each judicial official shall deposit, with interest at 4 percent per annum to December 31, 1947, and at 3 percent per annum thereafter, compounded on December 31 of each year, to the credit of the 'Judicial Survivors' Annuities Fund': (1) a sum equal to 5 percent of that salary, including 'retirement salary', which he or she has received for serving in any of the offices designated in paragraph (1) of subsection (a) of this section prior to the date upon which he or she filed notice of an intention to come within the purview of this section with the Director of the Administrative Office of the United States Courts; and (2) a sum equal to 5 percent of the basic salary, pay, or compensation which he or she has received for serving as a Senator, Representative, Delegate, or Resident Commissioner in Congress, or for serving as an 'employee', as that term is defined in subsection (1) of section 8331 of title 5, prior to assuming the responsibilities of any of the offices designated in paragraph (1) of subsection (a) of this section. The interest otherwise required by this subsection shall not be required for any period during which a judicial official was separated from all such service and was not receiving any retirement salary. Each such judicial official may elect to make such deposits in installments, during the continuance of his or her service in those offices designated in paragraph (1) of subsection (a) of this section, in such amounts and under such conditions as may be determined in each instance by the Director of the Administrative Office of the United States Courts: Provided, That, in each instance in which a judicial official does elect to make such deposits in installments, the Director shall require (i) that the first installment payment made shall be in an amount no smaller than that amount necessary to cover at least the last eighteen months of prior creditable civilian service, and (ii) that at least one additional installment payment shall be made every eighteen months thereafter until the total of all such deposits have been made. Notwithstanding the failure of any such judicial official to make all such deposits or installment payments, credit shall be allowed for the service rendered, but the annuity of that judicial official's widow or widower shall be reduced by an amount equal to 10 percent of the amount of such deposits, computed as of the date of the death of such judicial official, unless such widow or widower shall elect to eliminate such service entirely from credit under subsection (k) of this section: Provided, That no deposit shall be required from any such judicial official for any honorable active duty service in the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States, or for any other creditable service rendered prior to August 1, 1920. (e) The amounts deducted and withheld in accordance with subsection (b) of this section, and the amounts deposited in accordance with subsection (d) of this section, shall be credited to individual accounts in the name of each judicial official from whom such amounts are received, for credit to the 'Judicial Survivors' Annuities Fund'. (f) The Secretary of the Treasury shall invest, from time to time, in interest bearing securities of the United States or Federal farm loan bonds, those portions of the 'Judicial Survivors' Annuities Fund' which in his judgment may not be immediately required for the payment of annuities, refunds, and allowances as provided in this section. The income derived from such investments shall constitute a part of such fund for the purposes of paying annuities and carrying out the provisions of subsections (g), (h), (m), (o), (p), and (q) of this section. (g) If any judicial official resigns from office without receiving any 'retirement salary,' all amounts credited to his or her individual account, together with interest at 4 percent per annum to December 31, 1947; and at 3 percent per annum thereafter, compounded on December 31 of each year, to the date of his or her relinquishment of office, shall be returned to that judicial official in a lump-sum payment within a reasonable period of time following the date of his or her relinquishment of office. For the purposes of this subsection a 'reasonable period of time' shall be presumed to be no longer than one year following the date upon which such judicial official relinquished his or her office. (h) Annuities payable under this section shall be paid only in accordance with the following provisions: (1) In any case in which a judicial official dies while in office, or while receiving 'retirement salary,' (A) after having completed at least eighteen months of creditable civilian service, as computed in accordance with subsection (k) of this section, for the last eighteen months of which the salary deductions provided by subsection (b) of this section or, in lieu thereof, the deposits required by subsection (d) of this section have actually been made, or (B) if the death of such judicial official was by assassination, before having satisfied the requirements of clause (A) if, for the period of such service, the deductions provided by subsection (b) or, in lieu thereof, the deposits required by subsection (d) have actually been made - (i) if such judicial official is survived by a widow or widower, but not by a child, there shall be paid to such widow or widower an annuity, beginning on the day on which such judicial official died, in an amount computed as provided in subsection (l) of this section; or (ii) if such judicial official is survived by a widow or widower and a child or children, there shall be paid to such widow or widower an annuity, beginning on the day on which such judicial official died, in an amount computed as provided in subsection (l) of this section, and there shall also be paid to or on behalf of each such child an immediate annuity equal to: (I) 10 percent of the average annual salary determined under subsection (l)(1) of this section; or (II) 20 percent of such average annual salary, divided by the number of children; whichever is smallest; or (iii) if such judicial official leaves no surviving widow or widower, but does leave a surviving child or children, there shall be paid to or on behalf of each such child an immediate annuity equal to: (I) the amount of the annuity to which the judicial official's widow or widower would have been entitled under clause (i) of this paragraph, had such widow or widower survived the judicial official, divided by the number of children; or (II) 20 percent of the average annual salary determined under subsection (l)(1) of this section; or (III) 40 percent of such average annual salary amount, divided by the number of children; whichever is smallest. (2) An annuity payable to a widow or widower under clause (i) or (ii) of paragraph (1) of this subsection shall be terminated upon his or her death or remarriage before attaining age 55. (3) An annuity payable to a child under this subsection shall terminate: (A) if such child is receiving an annuity based upon his or her status under paragraph (5)(A) of subsection (a) of this section, on the last day of the month during which he or she becomes eighteen years of age; (B) if such child is receiving an annuity based upon his or her status under paragraph (5)(B) of subsection (a) of this section, either (i) on the first day of July immediately following his or her twenty-second birthday or (ii) on the last day of the month during which he or she ceases to be a full-time student in accordance with paragraph (5)(B) of subsection (a) of this section, whichever occurs first: Provided, That if such child is rendered incapable of self-support because of a mental or physical disability incurred while receiving that annuity, that annuity shall not terminate, but shall continue without interruption and shall be deemed to have become, as of the date of disability, an annuity based upon his or her status under clause (ii) of paragraph (5)(C) of subsection (a) of this section; (C) if such child is receiving an annuity based upon his or her status under paragraph (5)(C) of subsection (a) of this section, on the last day of the month during which he or she ceases to be incapable of self-support because of mental or physical disability; or (D) on the last day of the month during which such child dies or marries. (4) An annuity payable to a child or children under paragraph (1)(ii) of this subsection shall be recomputed and paid as provided in paragraph (1)(iii) of this subsection upon the death, but not upon the remarriage, of the widow or widower who is receiving an annuity under paragraph (1)(ii) of this subsection. (5) In any case in which the annuity of a child is terminated, the annuity of each remaining child which is based upon the service of the same judicial official shall be recomputed and paid as though the child whose annuity has been terminated had not survived that judicial official. (6) In the case of the survivor or survivors of a judicial official to whom paragraph (1)(B) applies, there shall be deducted from the annuities otherwise payable under this section an amount equal to the amount of salary deductions that would have been made if such deductions had been made for 18 months prior to the judicial official's death. (i)(1) All questions of dependency and disability arising under this section shall be determined by the Director of the Administrative Office of the United States Courts, subject to review only by the Judicial Conference of the United States, and the decision of the Judicial Conference of the United States shall be final and conclusive. The Director may order or direct at any time such medical or other examinations as he deems necessary to determine the facts relative to the nature and degree of disability of any child who is an annuitant, or an applicant for an annuity, under this section, and may suspend or deny any such annuity for failure to submit to any such examination. (2) The Director of the Administrative Office of the United States Courts shall determine whether the killing of a judicial official was an assassination, subject to review only by the Judicial Conference of the United States. The head of any Federal agency that investigates the killing of a judicial official shall provide information to the Director that would assist the Director in making such determination. (j) In any case in which a payment under this section is to be made to a minor, or to a person mentally incompetent or under other legal disability, as determined by a court of competent jurisdiction, such payment may be made to the person who is constituted guardian or other fiduciary of such claimant by the laws of the State of residence of such claimant, or to any other person who is otherwise legally vested with the care of the claimant or of the claimant's estate, and need not be made directly to such claimant. The Director of the Administrative Office of the United States Courts may, at his or her discretion, determine whether such payment is made directly to such claimant or to such guardian, fiduciary, or other person legally vested with the care of such claimant or the claimant's estate. Where no guardian or other fiduciary of such minor or such person under legal disability has been appointed under the laws of the State of residence of such claimant, the Director of the Administrative Office of the United States Courts shall determine the person who is otherwise legally vested with the care of the claimant or of the claimant's estate. (k) The years of service rendered by a judicial official which may be creditable in calculating the amount of an annuity for such judicial official's widow or widower under subsection (l) of this section shall include - (1) those years during which such judicial official served in any of the offices designated in paragraph (1) of subsection (a) of this section, including in the case of a Justice or judge of the United States those years during which he or she continued to hold office following retirement from regular active service under section 371 or subsection (a) of section 372 of this title; (2) those years during which such judicial official served as a Senator, Representative, Delegate, or Resident Commissioner in Congress, prior to assuming the responsibilities of any of the offices designated in paragraph (1) of subsection (a) of this section; (3) those years during which such judicial official honorably served on active duty in the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States, prior to assuming the responsibilities of any of the offices designated in paragraph (1) of subsection (a) of this section: Provided, That those years of such military service for which credit has been allowed for the purposes of retirement or retired pay under any other provision of law shall not be included as allowable years of such service under this section; and (4) those years during which such judicial official served as an 'employee', as that term is defined in subsection (1) of section 8331 of title 5, prior to assuming the responsibilities of any of the offices designated in paragraph (1) of subsection (a) of this section. For the purposes of this subsection the term 'years' shall mean full years and twelfth parts thereof, excluding from the aggregate any fractional part of a month which numbers less than fifteen full days and including, as one full month, any fractional part of a month which numbers fifteen full days or more. Nothing in this subsection shall be interpreted as waiving or canceling that reduction in the annuity of a widow or widower which is required by subsection (d) of this section due to the failure of a judicial official to make those deposits required by subsection (d) of this section. (l) The annuity of a widow or widower of a judicial official shall be an amount equal to the sum of - (1) 1.5 percent of the average annual salary, including retirement salary, which such judicial official received for serving in any of the offices designated in paragraph (1) of subsection (a) of this section (i) during those three years of such service in which his or her annual salary was greatest, or (ii) if such judicial official has so served less than three years, then during the total period of such service prior to his or her death, multiplied by the total of: (A) the number of years of creditable service tabulated in accordance with paragraph (1) of subsection (k) of this section; plus (B) the number of years of creditable service tabulated in accordance with paragraph (2) of subsection (k) of this section; plus (C) the number of years of creditable service tabulated in accordance with paragraph (3) of subsection (k) of this section; plus (D) the number of years up to, but not exceeding, fifteen of creditable service tabulated in accordance with paragraph (4) of subsection (k) of this section, plus: (2) three-fourths of 1 percent of such average annual salary, multiplied by the number of years of any prior creditable service, as tabulated in accordance with subsection (k) of this section, not applied under paragraph (1) of this subsection; except that such annuity shall not exceed an amount equal to 50 percent of such average annual salary, nor be less than an amount equal to 25 percent of such average annual salary. Any annuity determined in accordance with the provisions of this subsection shall be reduced to the extent required by subsection (d) of this section, and by the amount of any annuity payable to a former spouse under subsection (t). (m) Each time that an increase is made under section 8340(b) of title 5 in annuities paid under subchapter III of chapter 83 of such title, each annuity payable from the Judicial Survivors' Annuities Fund shall be increased at the same time by the same percentage by which annuities are increased under that section. (n) Each annuity authorized under this section shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month or other period for which the annuity shall have accrued. No annuity authorized under this section shall be assignable, either in law or in equity, except as provided in subsections (s) and (t), or subject to execution, levy, attachment, garnishment, or other legal process. (o)(1) In any case in which a judicial official dies while in office, or while receiving 'retirement salary', and; (A) subject to paragraph (2) of this subsection, before having completed eighteen months of civilian service, computed in accordance with subsection (k) of this section, during which the salary deductions provided by subsection (b) of this section or the deposit required by subsection (d) of this section have actually been made; or (B) after having completed eighteen months of civilian service, computed in accordance with subsection (k) of this section, during which all such deductions or deposits have been made, but without a survivor or survivors who are entitled to receive the annuity benefits provided by subsection (h) or (t) of this section; or (C) the rights of all persons entitled to receive the annuity benefits provided by subsection (h) or (t) of this section terminate before a valid claim therefor has been established; the total amount credited to the individual account of that judicial official, established under subsection (e) of this section, with interest at 4 percent per annum to December 31, 1947, and at 3 percent per annum thereafter, compounded on December 31, of each year, to the date of that judicial official's death, shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date title to the payment arises, in the following order of precedence: First, to the beneficiary or beneficiaries whom that judicial official may have designated in a writing received by the Administrative Office of the United States Courts prior to his or her death; Second, if there be no such beneficiary, to the widow or widower of such judicial official; Third, if none of the above, to the child or children of such judicial official and the descendants of any deceased children by representation; Fourth, if none of the above, to the parents of such judicial official or the survivor of them; Fifth, if none of the above, to the duly appointed executor, executrix, administrator, or administratrix of the estate of such judicial official; Sixth, if none of the above, to such other next of kin of such judicial official, as may be determined by the Director of the Administrative Office of the United States Courts to be entitled to such payment, under the laws of the domicile of such judicial official, at the time of his or her death. Such payment shall be a bar to recovery by any other person. For the purposes of this subsection only, a determination that an individual is a widow, widower, or child of a judicial official may be made by the Director of the Administrative Office of the United States Courts without regard to the definitions of those terms contained in paragraphs (3), (4), and (5) of subsection (a) of this section. (2) In cases in which a judicial official dies as a result of assassination and leaves a survivor or survivors who are entitled to receive the annuity benefits provided by subsection (h) or (t) of this section, paragraph (1)(A) of this subsection shall not apply. (p) In any case in which all the annuities which are authorized by this section and based upon the service of a given official terminate before the aggregate amount of annuity payments received by the annuitant or annuitants equals the total amount credited to the individual account of such judicial official, established under subsection (e) of this section with interest at 4 percent per annum to December 31, 1947, and at 3 percent per annum thereafter, compounded on December 31, of each year, to the date of that judicial official's death, the difference between such total amount, with such interest, and such aggregate amount shall be paid, upon establishment of a valid claim therefor, in the order of precedence prescribed in subsection (o) of this section. (q) Any accrued annuity benefits remaining unpaid upon the termination of an annuity, other than by the death of an annuitant, shall be paid to that annuitant. Any accrued annuity benefits remaining unpaid upon the death of an annuitant shall be paid, upon the establishment of a valid claim therefor, in the following order of precedence: First, to the duly appointed executor, executrix, administrator, or administratrix of the estate of such annuitant; Second, if there is no such executor, executrix, administrator, or administratrix, payments shall be made, after the expiration of sixty days from the date of death of such annuitant, to such individual or individuals as may appear, in the judgment of the Director of the Administrative Office of the United States Courts, to be legally entitled thereto, and such payment shall be a bar to recovery by any other individual. (r) Nothing contained in this section shall be interpreted to prevent a widow or widower eligible for an annuity under this section from simultaneously receiving such an annuity while also receiving any other annuity to which such widow or widower may also be entitled under any other law without regard to this section: Provided, That service used in the computation of the annuity conferred by this section shall not also be credited in computing any such other annuity. (s) A judicial official who has a former spouse may elect, under procedures prescribed by the Director of the Administrative Office of the United States Courts, to provide a survivor annuity for such former spouse under subsection (t). An election under this subsection shall be made at the time of retirement, or, if later, within 2 years after the date on which the marriage of the former spouse to the judicial official is dissolved. An election under this subsection - (1) shall not be effective to the extent that it - (A) conflicts with - (i) any court order or decree referred to in subsection (t)(1), which was issued before the date of such election, or (ii) any agreement referred to in such subsection which was entered into before such date; or (B) would cause the total of survivor annuities payable under subsections (h) and (t) based on the service of the judicial official to exceed 55 percent of the average annual salary (as such term is used in subsection (l)) of such official; and (2) shall not be effective, in the case of a judicial official who is then married, unless it is made with the spouse's written consent. The Director of the Administrative Office of the United States Courts shall provide by regulation that paragraph (2) of this subsection may be waived if the judicial official establishes to the satisfaction of the Director that the spouse's whereabouts cannot be determined, or that, due to exceptional circumstances, requiring the judicial official to seek the spouse's consent would otherwise be inappropriate. (t)(1) Subject to paragraphs (2) through (4) of this subsection, a former spouse of a deceased judicial official is entitled to a survivor annuity under this section if and to the extent expressly provided for in an election under subsection (s), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree. (2) The annuity payable to a former spouse under this subsection may not exceed the difference between - (A) the maximum amount that would be payable as an annuity to a widow or widower under subsection (l), determined without taking into account any reduction of such annuity caused by payment of an annuity to a former spouse; and (B) the amount of any annuity payable under this subsection to any other former spouse of the judicial official, based on an election previously made under subsection (s), or a court order previously issued. (3) The commencement and termination of an annuity payable under this subsection shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity - (A) shall not commence before - (i) the day after the judicial official dies, or (ii) the first day of the second month beginning after the date on which the Director of the Administrative Office of the United States Courts receives written notice of the order, decree, agreement, or election, as the case may be, together with such additional information or documentation as the Director may prescribe, whichever is later, and (B) shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies. (4) For purposes of this section, a modification in a decree, order, agreement, or election referred to in paragraph (1) of this subsection shall not be effective - (A) if such modification is made after the retirement of the judicial official concerned, and (B) to the extent that such modification involves an annuity under this subsection. (u) In the case of a judicial official who is assassinated, an annuity shall be paid under this section notwithstanding a survivor's eligibility for or receipt of benefits under chapter 81 of title 5, except that the annuity for which a surviving spouse is eligible under this section shall be reduced to the extent that the total benefits paid under this section and chapter 81 of title 5 for any year would exceed the current salary for that year of the office of the judicial official. -SOURCE- (Added Aug. 3, 1956, ch. 944, Sec. 2, 70 Stat. 1021, and amended July 7, 1958, Pub. L. 85-508, Sec. 12(n), 72 Stat. 348; Dec. 20, 1967, Pub. L. 90-219, title II, Sec. 202, 81 Stat. 668; Aug. 8, 1968, Pub. L. 90-466, Sec. 1(a), 82 Stat. 662; Aug. 22, 1972, Pub. L. 92-397, Sec. 2, 3(c), 86 Stat. 579, 580; Oct. 19, 1976, Pub. L. 94-554, Sec. 2, 90 Stat. 2603; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 211, 92 Stat. 2661; June 19, 1986, Pub. L. 99-336, Sec. 2(a), (d)(1)-(3), (e), 100 Stat. 633, 635-637; Aug. 27, 1986, Pub. L. 99-396, Sec. 21(b), 100 Stat. 846; Nov. 15, 1988, Pub. L. 100-659, Sec. 3(a), 102 Stat. 3917; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1017(a), 102 Stat. 4670; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 306(b), 322(a)-(f), (g)((h)), 104 Stat. 5109, 5117-5120.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of the Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988, referred to in subsec. (a)(1)(v), is the date of the enactment of Pub. L. 100-659, which was approved Nov. 15, 1988. The date of the enactment of the Federal Courts Study Committee Implementation Act of 1990, referred to in subsec. (a)(1)(vi), is the date of enactment of Pub. L. 101-650, which was approved Dec. 1, 1990. Section 3 of the Judicial Survivors' Annuities Reform Act, referred to in subsec. (b), is section 3 of Pub. L. 94-554, which is set out as a note below. -MISC2- AMENDMENTS 1990 - Subsec. (a)(1). Pub. L. 101-650, Sec. 306(b)(1), added subpar. (G) and cl. (vi) before semicolon at end. Subsec. (a)(2)(G). Pub. L. 101-650, Sec. 306(b)(2), added subpar. (G). Subsec. (a)(5)(C). Pub. L. 101-650, Sec. 322(g)(2), substituted 'paragraph' for 'subparagraph'. Subsec. (a)(7). Pub. L. 101-650, Sec. 322(b), added par. (7). Subsec. (b). Pub. L. 101-650, Sec. 306(b)(3), substituted 'section 178 or 377' for 'section 377' in two places. Subsec. (h)(1). Pub. L. 101-650, Sec. 322(a)(1)-(4), inserted '(A)' before 'after having completed', inserted ', or (B) if the death of such judicial official was by assassination, before having satisfied the requirements of clause (A) if, for the period of such service, the deductions provided by subsection (b) or, in lieu thereof, the deposits required by subsection (d) have actually been made' after 'have actually been made', redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, in cl. (ii) redesignated former cls. (i) and (ii) as subcls. (I) and (II), respectively, in cl. (iii) redesignated former cls. (i) to (iii) as subcls. (I) to (III), respectively, and in subcl. (I) substituted 'clause (i) of this paragraph' for 'subparagraph (1)(A) of this subsection'. Subsec. (h)(2). Pub. L. 101-650, Sec. 322(g)(1)(A), substituted 'clause (i) or (ii) of paragraph (1)' for 'subparagraphs (1)(A) or (1)(B)'. Subsec. (h)(3). Pub. L. 101-650, Sec. 322(g)(1)(B), substituted 'paragraph' for 'subparagraph' wherever appearing. Subsec. (h)(4). Pub. L. 101-650, Sec. 322(g)(1)(C), substituted 'paragraph (1)(ii)' for 'subparagraph (1)(B)' in two places and 'paragraph (1)(iii)' for 'subparagraph (1)(C)'. Subsec. (h)(6). Pub. L. 101-650, Sec. 322(a)(5), added par. (6). Subsec. (i). Pub. L. 101-650, Sec. 322(c), designated existing provisions as par. (1) and added par. (2). Subsec. (l)(1)(ii). Pub. L. 101-650, Sec. 322(d), struck out 'but more than eighteen months,' after 'less than three years,'. Subsec. (o). Pub. L. 101-650, Sec. 322(e), inserted '(1)' after '(o)', redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, inserted 'subject to paragraph (2) of this subsection,' before 'before having completed' in subpar. (A), and added par. (2). Subsec. (u). Pub. L. 101-650, Sec. 322(f), added subsec. (u). 1988 - Subsec. (a)(1). Pub. L. 100-659, Sec. 3(a)(1), added subpar. (F) and substituted ', (iv) October 1, 1986, or (v) the date of the enactment of the Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988, in the case of a full-time bankruptcy judge or United States magistrate in active service on that date;' for '; or (iv) October 1, 1986;' in concluding provisions. Subsec. (a)(2)(F). Pub. L. 100-659, Sec. 3(a)(2), added subpar. (F). Subsec. (b). Pub. L. 100-659, Sec. 3(a)(3), inserted '(and any deductions made under section 377 of this title or under subchapter III of chapter 83, or chapter 84, of title 5)' after 'deductions' and '(and under section 377 of this title or under subchapter III of chapter 83, or chapter 84, of title 5)' before period at end of last sentence. Subsec. (m). Pub. L. 100-702 amended subsec. (m) generally. Prior to amendment, subsec. (m) read as follows: 'Whenever the salary paid for service in one of the offices designated in paragraph (1) of subsection (a) of this section is increased, each annuity payable from the 'Judicial Survivors' Annuities Fund', which is based, in whole or in part, upon a deceased judicial official having rendered some portion of his or her final eighteen months of service in that same office, shall also be increased. The actual amount of the increase in such an annuity shall be determined by multiplying the amount of the annuity, on the date on which the increase in salary becomes effective, by 3 percent for each 5 percent by which such salary has been increased. In the event that such salary is increased by less than 5 percent, there shall be no increase in such annuity.' 1986 - Subsec. (a)(1). Pub. L. 99-336, Sec. 2(a)(1), substituted 'she marries, (iii) January 1, 1977; or (iv) October 1, 1986' for 'she marries, or (iii) the date upon which the Judicial Survivors' Annuities Reform Act becomes effective' in concluding provision. Subsec. (a)(1)(B). Pub. L. 99-396, Sec. 21(b)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: 'a judge of the United States District Court for the District of the Canal Zone, the District Court of Guam, or the District Court of the Virgin Islands;'. Subsec. (a)(2)(B). Pub. L. 99-396, Sec. 21(b)(2), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: 'in the case of a judge of the United States District Court for the District of the Canal Zone, the District Court of Guam, or the District Court of the Virgin Islands, salary paid after retirement from office (i) by resignation on salary under section 373 of this title or (ii) by removal or failure of reappointment after not less than ten years' judicial service;'. Subsec. (a)(6). Pub. L. 99-336, Sec. 2(d)(1), added par. (6). Subsec. (b). Pub. L. 99-336, Sec. 2(a)(2), substituted '5 percent' for '4.5 percent'. Subsec. (c). Pub. L. 99-336, Sec. 2(a)(3), in amending subsec. (c) generally, designated existing provisions as par. (1), substituted provisions which related to amounts deposited to credit of Judicial Survivors' Annuities Fund to reduce unfunded liability of Fund to zero, for provisions which related to deposit of amounts matching those deducted and withheld in accordance with subsec. (b), and added pars. (2) and (3). Subsec. (d). Pub. L. 99-336, Sec. 2(a)(2), substituted '5 percent' for '4.5 percent' in pars. (1) and (2). Subsec. (h)(1)(B). Pub. L. 99-336, Sec. 2(a)(4)(A), substituted '10 percent of the average annual salary determined under subsection (l)(1) of this section' for '$1,548' in cl. (i) and '20 percent of such average annual salary' for '$4,644' in cl. (ii). Subsec. (h)(1)(C). Pub. L. 99-336, Sec. 2(a)(4)(B), substituted '20 percent of the average annual salary determined under subsection (l)(1) of this section' for '$1,860' in cl. (ii) and '40 percent of such average annual salary amount' for '$5,580' in cl. (iii). Subsec. (h)(2). Pub. L. 99-336, Sec. 2(a)(4)(C), inserted 'before attaining age 55' after 'or remarriage'. Subsec. (k)(1). Pub. L. 99-336, Sec. 2(e), struck out 'under subsection (b) of' before 'section 371'. Subsec. (l). Pub. L. 99-336, Sec. 2(a)(5)(C), (d)(3)(A), substituted provisions which set annuity limit not to exceed 50 percent of, nor be less than 25 percent of, average annual salary, for provisions which set annuity limit not to exceed 40 percent of average annual salary, and inserted provision that annuity determined in accordance with provisions of subsec. (l) be reduced by the amount of any annuity payable to a former spouse under subsection (t). Subsec. (l)(1). Pub. L. 99-336, Sec. 2(a)(5)(A), substituted '1.5 percent' for '1 1/4 percent'. Subsec. (l)(2). Pub. L. 99-336, Sec. 2(a)(5)(B), substituted 'of this subsection;' for 'of this subsection:'. Subsec. (n). Pub. L. 99-336, Sec. 2(d)(3)(B), inserted 'except as provided in subsections (s) and (t),' after 'in equity,' in last sentence. Subsec. (o)(2), (3). Pub. L. 99-336, Sec. 2(d)(3)(C), inserted 'or (t)' after 'subsection (h)'. Subsecs. (s), (t). Pub. L. 99-336, Sec. 2(d)(2), added subsecs. (s) and (t). 1978 - Subsec. (a)(2)(A). Pub. L. 95-598 directed the amendment of subpar. (A) by adding cl. (iii) relating to bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1976 - Pub. L. 94-554 amended section generally so as to reform and update the existing judicial survivors' annuity program providing benefits for surviving spouses and children of all Federal Justices and judges who elect to join the program by placing the program in an actuarially sound fiscal condition, providing more liberal eligibility standards and reasonable increases in existing annuity amounts made necessary by increases in the cost of living since existing annuities were commenced, and by establishing a method for providing future periodic increases in annuity amounts by keying them into increases in judicial salaries. 1972 - Subsecs. (a) to (c), (e) to (g), (i) to (k), (n), (o). Pub. L. 92-397 substituted 'of justices and judges of the United States' for 'of judges' in section catchline and substituted 'justice or judge' for 'judge' and 'justice's or judge's' for 'judge's' wherever appearing. 1968 - Subsec. (a). Pub. L. 90-466 struck out '(or within six months after the enactment of this section)' after 'takes office' and authorized Federal judges to elect within six months of marriage to participate in the judicial survivors annuity system. 1967 - Subsecs. (r), (s). Pub. L. 90-219 added subsecs. (r) and (s). 1958 - Subsec. (q). Pub. L. 85-508 struck out provisions which related to the judge of the District Court for the Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1990 AMENDMENT; TRANSITION PROVISIONS Amendment by section 306(b) of Pub. L. 101-650 applicable to judges of, and senior judges in active service with, the United States Claims Court on or after Dec. 1, 1990, see section 306(f) of Pub. L. 101-650, set out as a note under section 8331 of Title 5, Government Organization and Employees. Section 322(g) of Pub. L. 101-650 provided that: '(1) Effective date. - Subject to paragraph (2), the amendments made by this Act (probably should be 'section', which amended this section) shall apply to all judicial officials assassinated on or after May 28, 1979. '(2) Rules for retroactive application. - (A) In the case of a judicial official who was assassinated on or after May 28, 1979, and before the date of the enactment of this Act (Dec. 1, 1990), if the salary deductions provided by subsection (b) of section 376 of title 28, United States Code, or the deposits required by subsection (d) of such section, have been withdrawn pursuant to subsection (o) of such section, there shall be deducted from the annuities otherwise payable to the survivor or survivors of such judicial official, and the payment authorized by subparagraph (C) of this paragraph, an amount equal to the amount so withdrawn, with interest on the amount withdrawn at 3 percent per annum compounded on December 31 of each year. '(B) In the case of the survivor or survivors of a judicial official to whom this paragraph applies who had less than 18 months of service before being assassinated, there shall be deducted from the annuities otherwise payable to the survivor or survivors of such judicial official, and the payment authorized by subparagraph (C) of this paragraph, an amount equal to the amount of salary deductions that would have been made if such deductions (had) been made for 18 months before the judicial official's death, plus interest as described in subparagraph (A). '(C) Subject to subparagraphs (A) and (B), the survivor or survivors of a judicial official to whom this paragraph applies shall be entitled to the payment of annuities they would have received under section 376 of title 28, United States Code, for the period beginning on the date such judicial official was assassinated and ending the date of the enactment of this Act. The Secretary of the Treasury shall pay into the Judicial Survivors' Annuities fund, out of any money in the Treasury not otherwise appropriated, the amount of the annuities to which the survivor or survivors are entitled under this subparagraph. '(3) Definition. - For purposes of this subsection, the term - '(A) 'assassinated' has the meaning given that term in section 376(a)(7) of title 28, United States Code, as added by this section; and '(B) 'judicial official' has the meaning given that term in section 376(a)(1)(A) and (B) of title 28, United States Code.' EFFECTIVE DATE OF 1988 AMENDMENTS Section 1017(c) of title X of Pub. L. 100-702 provided that: 'The amendment made by subsection (a) (amending this section) shall apply with respect to increases in annuities which are made under section 8340(b) of title 5, United States Code, on or after the date of enactment of this title (Nov. 19, 1988).' Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE OF 1986 AMENDMENTS Amendment by Pub. L. 99-396 not to affect the amount payable to a judge who retired in accordance with the provisions of section 373 of this title in effect on the day before Aug. 27, 1986, see section 21(c) of Pub. L. 99-396, set out as a note under section 373 of this title. Section 2(f) of Pub. L. 99-336 provided that: 'This section (amending this section and enacting provisions set out below) shall take effect on October 1, 1986.' EFFECTIVE DATE OF 1976 AMENDMENT Section 8 of Pub. L. 94-554 provided: 'That this Act (amending this section and enacting provisions set out below) shall become effective on the first day of the third month following the month in which it is enacted (Jan. 1, 1977), or on October 1, 1976, whichever occurs last.' EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 5, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. RETROACTIVE EFFECT OF 1967 AMENDMENT The provisions of section 611(a) of this title, the first paragraph of section 611(b) of this title, and subsec. (s) of this section, as added by Pub. L. 90-219, applicable to a Director or former Director of the Administrative Office of the United States Courts who was first appointed prior to Dec. 20, 1967 if at the time such Director or former Director left or leaves such office he had, or shall have, attained the age of sixty-five years and completed fifteen years of service as Director of the Administrative Office of the United States Courts and if, on or before the expiration of six months following Dec. 20, 1967, he makes the election referred to in section 611(a) of this title or subsec. (s) of this section, or both, as the case may be, see section 205(b) of Pub. L. 90-219, set out as a Retroactive Effect note under section 611 of this title. SAVINGS PROVISION Section 6 of Pub. L. 94-554 provided: 'That the benefits conferred by this Act shall, on the date upon which this Act becomes effective (Jan. 1, 1977), immediately become available to any individual then receiving an annuity under section 2 of the Act of August 3, 1956 (70 Stat. 1021) (enacting this section), as amended: Provided, That although the rights of any judicial official electing to come within the purview of section 376 of title 28, United States Code, on or after the date upon which this Act becomes effective, shall be determined exclusively under the provisions of that section as amended by this Act, nothing in this Act shall be interpreted to cancel, abrogate, or diminish any rights to which an individual or his or her survivors may be entitled by virtue of that individuals having contributed to the judicial survivors annuity fund established by section 2 of the Act of August 3, 1956 (70 Stat. 1021) as amended, before the date upon which this Act becomes effective.' INCREASE FOR EXISTING ANNUITANTS Section 1017(b) of title X of Pub. L. 100-702 provided that: 'Each annuity payable from the Judicial Survivors' Annuities Fund under section 376 of title 28, United States Code, on the date of the enactment of this title (Nov. 19, 1988) shall be increased by 10 percent, effective on such date of enactment.' SURVIVORS' ANNUITIES FOR INCUMBENTS Section 3(b) of Pub. L. 100-659 provided that: 'In the case of a bankruptcy judge or magistrate (now United States magistrate judge) who elects an annuity under section 2(c) (28 U.S.C. 377 note), only service for which an annuity under subsection (b) or (c) and subsection (g) of section 377 of title 28, United States Code, as added by section 2 of this Act, is calculated under section 2(c) may be used in the computation of an annuity under section 376 of title 28, United States Code, as amended by subsection (a) of this section.' COVERED BENEFICIARIES UNDER PUB. L. 99-336 Section 2(b) of Pub. L. 99-336 provided that: 'The benefits conferred by section 376 of title 28, United States Code, by reason of the amendments made by this section shall apply only to individuals who become eligible for annuities under such section on or after the effective date of this section (Oct. 1, 1986), except that - '(1) such annuities shall be computed in accordance with the provisions of section 376 of title 28, United States Code, as amended by this section, notwithstanding contributions or deposits made in accordance with applicable law at lower rates; and '(2) no additional liability shall be created with respect to deposits made in accordance with applicable law before the effective date of this section, or after such effective date pursuant to an agreement entered into before such effective date.' REVOCATION OF ELECTION; ELIGIBILITY SUBSEQUENT TO REVOCATION Section 2(c) of Pub. L. 99-336 provided that: '(1) Within 180 days after the effective date of this section (Oct. 1, 1986), any judicial official who, before such effective date, made an election under section 376 of title 28, United States Code, to come within the purview of that section, shall be entitled to revoke that election. Such revocation shall constitute a complete withdrawal from the judicial survivors' annuities program provided for in such section 376. No such revocation shall be effective unless it is submitted in writing to the Director of the Administrative Office of the United States Courts, and until such writing is received by the Director. Upon receipt by the Director of such writing, any rights to survivorship benefits for the survivors of such judicial official shall terminate, and all amounts credited to the individual account of such judicial official under section 376(e), together with interest at 3 percent per annum, compounded on December 31 of each year to such date of revocation, shall be returned to that judicial official in a lump-sum payment. '(2) Any judicial official who makes a revocation under paragraph (1) of this subsection and who thereafter becomes eligible to make an election under section 376(b) of title 28, United States Code, may make such election only if such judicial official redeposits, to the credit of the Judicial Survivors' Annuities Fund, the full amount of the lump-sum payment made to such judicial official under paragraph (1) of this subsection, together with interest at 3 percent per annum, compounded on December 31 of each year from the date of such revocation until the date upon which that amount is so redeposited. '(3) Any judicial official who fails to revoke an election in accordance with paragraph (1) of this subsection shall be deemed to have irrevocably waived the right to make that revocation.' PAYMENT OF RETIREMENT SALARY PURSUANT TO COURT DECREE OF DIVORCE, ETC. Section 2(d)(4) of Pub. L. 99-336 provided that: 'Payments of retirement salary as defined in section 376(a)(2) of title 28, United States Code, which would otherwise be made to the judicial official upon whose service the retirement salary is based, shall be paid (in whole or in part) to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Any payment under this paragraph to a person bars recovery by any other person. This paragraph shall apply only to payments made after the date of receipt by the Director of the Administrative Office of (the) United States Courts of written notice of such decree, order, or agreement, and such additional information and documentation as the Director may prescribe. As used in this paragraph, 'court' means any court of any State or the District of Columbia.' ANNUITY PAYMENT TO SURVIVING SPOUSES OF JUDGES WHO DIED BEFORE OCTOBER 19, 1976 Pub. L. 96-504, Sec. 3, Dec. 5, 1980, 94 Stat. 2741, provided that: '(a) As of the first pay period beginning after the effective date of this Act (Dec. 5, 1980), a surviving spouse, other than a surviving spouse who has remarried, of any Justice of the United States (as defined by section 451 of title 28, United States Code), who died before October 19, 1976, shall be paid an annuity in accordance with the provisions of section 376 of title 28, United States Code, at a rate of $20,000 per year as if such Justice had elected to come within the provisions of, and having made the full deposit required by, section 376(d) of title 28, United States Code. '(b) Notwithstanding the provisions of section 376(h) of title 28, United States Code, such annuity shall be payable as provided in section 376(m) of title 28, United States Code, until the date of the death of any such spouse.' JUDICIAL SURVIVORS' ANNUITY FUND; AUTHORIZATION OF APPROPRIATIONS Pub. L. 96-504, Sec. 4, Dec. 5, 1980, 94 Stat. 2742, required the Secretary of the Treasury in consultation with the Director of the Administrative Office of the United States Courts to determine as of Dec. 5, 1980, and deposit as soon as possible thereafter, the amount necessary to offset any actuarial deficiency in the Judicial Survivors Annuities Fund. JUDICIAL SURVIVORS' ANNUITIES FUND Section 3 of Pub. L. 94-554 provided: 'That on the date upon which this Act becomes effective (Jan. 1, 1977) there shall be established on the books of the Treasury a fund which shall be known as 'The Judicial Survivors' Annuities Fund, and all money credited to the judicial survivors annuity fund established by section 2 of the Act of August 3, 1956 (70 Stat. 1021) (enacting this section), as amended, shall be transferred to the credit of the Judicial Survivors' Annuities Fund established by this section.' COMPENSATION FOR ACTUARIAL DEFICIENCY IN THE ANNUITIES FUND Section 4 of Pub. L. 94-554 provided: 'That on the date upon which this Act becomes effective (Jan. 1, 1977) the Secretary of the Treasury shall ascertain from the Director of the Administrative Office of the United States Courts the amount of the actuarial deficiency in the fund transferred by section 3 of this Act (see Judicial Survivors' Annuities Fund note above) on the date of that fund's transfer and, at the earliest time thereafter at which appropriated funds in that amount shall become available, the Secretary shall deposit such funds, in a single payment, into the Judicial Survivors' Annuities Fund established by section 3 of this Act. Such funds as are necessary to carry out this section are hereby authorized to be appropriated.' INCREASES IN WIDOWS' ANNUITIES PAID UNDER SECTION 2 OF ACT AUGUST 3, 1956 Section 5 of Pub. L. 94-554 provided: 'That on the date upon which this Act becomes effective (Jan. 1, 1977) each annuity then being paid to a widow from the judicial survivors annuity fund established by section 2 of the Act of August 3, 1956 (70 Stat. 1021) (enacting this section), as amended, shall be increased by an amount equal to one-fifth of 1 percent of the amount of such annuity multiplied by the number of months which have passed since the commencement of that annuity. For the purposes of this section, any fractional part of a month which numbers less than fifteen full days shall be excluded from the Computation of the number of months and any fractional part of a month which numbers fifteen full days or more shall be included in the computation as one full month. Such funds as are necessary to carry out this section are authorized to be appropriated and, upon appropriation, shall be deposited by the Secretary of the Treasury, in a single payment, to credit of the Judicial Survivors' Annuities Fund established by section 3 of this Act (see Judicial Survivors' Annuities Fund note above).' REVOCATION OF ELECTION TO PARTICIPATE IN ANNUITIES PROGRAM Section 7 of Pub. L. 94-554 provided: 'That, at any time within one hundred and eighty days after the date upon which this Act becomes effective (Jan. 1, 1977), any judicial official who has, prior to that date, already participated in the judicial survivors annuity program created by the Act of August 3, 1956 (70 Stat. 1021) (enacting this section) as amended, shall be entitled to revoke his or her earlier election to participate in that program and thereby completely withdraw from participation in the judicial survivors' annuities program created by this Act: Provided, That (a) any such revocation may be effected only by means of a writing filed with the Director of the Administrative Office of the United States Courts, (b) any such writing shall be deemed to have become effective no sooner than the date upon which that writing is received by the Director, (c) upon receipt of such a writing by the Director, any and all rights to survivorship benefits for such judicial official's survivors shall terminate, and all amounts credited to such judicial official's individual account, together with interest at 3 percent per annum, compounded on December 31 of each year to that date of revocation, shall thereafter be returned to that judicial official in a lump-sum refund payment, and (d) any judicial official who effects such a revocation and who subsequently again becomes eligible and elects to join the judicial survivors annuities program created by this Act under the provisions of section 376 of title 28, United States Code as amended by this Act, shall be permitted to do so only upon the redeposit of the full amount of the refund obtained under this section plus interest at 3 percent per annum, compounded on December 31 of each year from the date of the revocation until the date upon which that amount is redeposited. Any judicial official who fails to effect a revocation in accordance with the right conferred by this section within one hundred and eighty days after the date upon which this Act becomes effective shall be deemed to have irrevocably waived the right to that revocation.' JUDGE TAKING OFFICE ON AUGUST 8, 1968 Section 1(b) of Pub. L. 90-466 provided that: 'For the purpose of the amendment made by subsection (a) (amending subsec. (a) of this section), a judge who is in office on the date of enactment of this Act (Aug. 8, 1968) shall be deemed to have taken office on that date.' PRESERVATION OF RIGHTS OF JUDGES OF THE DISTRICT COURT FOR THE TERRITORY OF ALASKA Section 12(n) of Pub. L. 85-508 provided in part that the amendment of subsec. (q) of this section by Pub. L. 85-508 shall not affect the rights under this section of any present or former judge of the District Court for the Territory of Alaska or his survivors. APPROPRIATIONS Section 5 of act Aug. 3, 1956, provided that: 'Funds necessary to carry out the provisions of this Act (enacting this section and provisions set out as notes below, and amending sections 375, 604(a)(7), and 605 of this title) may be appropriated out of any money in the Treasury not otherwise appropriated.' RESIGNED, REMOVED, AND RETIRED JUDGES Section 6 of act Aug. 3, 1956, provided that: 'A judge who resigned prior to the date of enactment of this Act (Aug. 3, 1956) and who on that date is receiving salary under section 371(a) of title 28, United States Code, or who resigned, was removed or failed of reappointment prior to the date of enactment of this Act and who on that date is receiving salary under section 373 of title 28, United States Code, shall be considered a judge within the meaning of section 376 of title 28, United States Code, as added by section 2 of this Act, and as such shall be entitled within six months after the date of enactment of this Act to make the election authorized by and to receive the benefits of that section. A judge who retired from regular active service under section 260 of the Judicial Code of 1911 or the Act of August 5, 1939, chapter 433, and who is living on the date of enactment of this Act shall be deemed for the purposes of this Act to have retired from regular active service under section 371(b) or 372(a), as the case may be, of title 28, United States Code.' PRIOR DEATH OF JUDGE Section 7 of act Aug. 3, 1956, provided that: 'In the case of a living widow of a judge of the United States as defined in section 451 of title 28, United States Code, who died prior to the date of enactment of this Act (Aug. 3, 1956), an annuity shall be paid as provided in section 376 of title 28, United States Code, as added by section 2 of this Act, as if such judge had died on such date and had elected to bring himself within the purview of such section 376, but had not made the deposit provided for by subsection (c) of the said section: Provided, (a) That such widow has not remarried; and (b) that the amount of such annuity and the reduction therein because of such deposit not having been made shall be computed on the basis of the actual length of judicial and other allowable service of such judge: And provided further, That notwithstanding the provisions of subsection (g) of such section 376 such annuity shall be payable even though such judge had not rendered five years of civilian service prior to his death. In the case of a judge of the United States as defined in section 451 of title 28, United States Code, who dies within 6 months after the date of enactment of this Act after having rendered at least 5 years of civilian service computed as prescribed in subsection (o) of section 376 of title 28, United States Code, as added by section 2 of this Act, but without having made an election as provided in such section 376 to bring himself within the purview of that section, an annuity shall be paid to his widow and surviving dependent children as provided in such section 376 as if such judge had elected on the day of his death to bring himself within the purview of such section 376 but had not made the deposit provided for by subsection (c) of the said section. An annuity shall be payable under this section computed on the basis of the actual length of judicial and other allowable service of the judge and subject to the reduction required by subsection (c) of such section 376 even though no deposit has been made, as required by subsection (g) of such section 376, with respect to any of such service.' -CROSS- CROSS REFERENCES Enforcement of legal obligations to provide child support and make alimony payments, see section 659 of Title 42, The Public Health and Welfare. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 178, 375, 377 of this title; title 5 section 8334; title 38 section 4097. ------DocID 36295 Document 157 of 1452------ -CITE- 28 USC Sec. 377 -EXPCITE- TITLE 28 PART I CHAPTER 17 -HEAD- Sec. 377. Retirement of bankruptcy judges and magistrates -STATUTE- (a) Retirement Based on Years of Service. - A bankruptcy judge or magistrate to whom this section applies and who retires from office after attaining the age of 65 years and serving at least 14 years, whether continuously or otherwise, as such bankruptcy judge or magistrate shall, subject to subsection (f), be entitled to receive, during the remainder of the judge's or magistrate's lifetime, an annuity equal to the salary being received at the time the judge or magistrate leaves office. (b) Retirement Upon Failure of Reappointment. - A bankruptcy judge or magistrate to whom this section applies, who is not reappointed following the expiration of the term of office of such judge or magistrate, and who retires upon the completion of the term shall, subject to subsection (f), be entitled to receive, upon attaining the age of 65 years and during the remainder of such bankruptcy judge's or magistrate's lifetime, an annuity equal to that portion of the salary being received at the time the judge or magistrate leaves office which the aggregate number of years of service, not to exceed 14, bears to 14, if - (1) such judge or magistrate has served at least 1 full term as a bankruptcy judge or magistrate, and (2) not earlier than 9 months before the date on which the term of office of such judge or magistrate expires, and not later than 6 months before such date, such judge or magistrate notified the appointing authority in writing that such judge or magistrate was willing to accept reappointment to the position in which such judge or magistrate was serving. For purposes of this subsection, in the case of a bankruptcy judge, the written notice required by paragraph (2) shall be given to the chief judge of the circuit in which such bankruptcy judge is serving and, in the case of a magistrate, such notice shall be given to the chief judge of the district court in which the magistrate is serving. (c) Service of at Least 8 Years. - A bankruptcy judge or magistrate to whom this section applies and who retires after serving at least 8 years, whether continuously or otherwise, as such a bankruptcy judge or magistrate shall, subject to subsection (f), be entitled to receive, upon attaining the age of 65 years and during the remainder of the judge's or magistrate's lifetime, an annuity equal to that portion of the salary being received at the time the judge or magistrate leaves office which the aggregate number of years of service, not to exceed 14, bears to 14. Such annuity shall be reduced by 1/6 of 1 percent for each full month such bankruptcy judge or magistrate was under the age of 65 at the time the judge or magistrate left office, except that such reduction shall not exceed 20 percent. (d) Retirement for Disability. - A bankruptcy judge or magistrate to whom this section applies, who has served at least 5 years, whether continuously or otherwise, as such a bankruptcy judge or magistrate, and who retires or is removed from office upon the sole ground of mental or physical disability shall, subject to subsection (f), be entitled to receive, during the remainder of the judge's or magistrate's lifetime, an annuity equal to 40 percent of the salary being received at the time of retirement or removal or, in the case of a judge or magistrate who has served for at least 10 years, an amount equal to that proportion of the salary being received at the time of retirement or removal which the aggregate number of years of service, not to exceed 14, bears to 14. (e) Cost-of-Living Adjustments. - A bankruptcy judge or magistrate who is entitled to an annuity under this section is also entitled to a cost-of-living adjustment in such annuity, calculated and payable in the same manner as adjustments under section 8340(b) of title 5, except that any such annuity, as increased under this subsection, may not exceed the salary then payable for the position from which the judge or magistrate retired or was removed. (f) Election; Annuity in Lieu of Other Annuities. - A bankruptcy judge or magistrate shall be entitled to an annuity under this section if the judge or magistrate elects an annuity under this section by notifying the Director of the Administrative Office of the United States Courts. A bankruptcy judge or magistrate who elects to receive an annuity under this section shall not be entitled to receive (FOOTNOTE 1) (FOOTNOTE 1) So in original. Probably should be 'receive - '. (1) any annuity to which such judge or magistrate would otherwise have been entitled under subchapter III of chapter 83, or under chapter 84 (except for subchapters III and VII), of title 5, for service performed as such a judge or magistrate or otherwise; (2) an annuity or salary in senior status or retirement under section 371 or 372 of this title; (3) retired pay under section 7447 of the Internal Revenue Code of 1986; or (4) retired pay under section 4096 of title 38. (g) Calculation of Service. - (1) For purposes of calculating an annuity under this section - (A) full-time service as a bankruptcy judge or magistrate to whom this section applies may be credited; and (B) each month of service shall be credited as one-twelfth of a year, and the fractional part of any month shall not be credited. (2)(A) In the case of an individual who is a bankruptcy judge to whom this section applies and who retires under this section or who is removed from office under subsection (d) upon the sole ground of mental or physical disability, any service of that individual as a United States magistrate to whom this section applies, and any service of that individual as a full-time judicial officer who performed the duties of a magistrate and a bankruptcy judge at the same time, shall be included for purposes of calculating years of service under subsection (a), (b), (c), or (d), as the case may be. (B) In the case of an individual who is a magistrate to whom this section applies and who retires under this section or who is removed from office under subsection (d) upon the sole ground of mental or physical disability, any service of that individual as a bankruptcy judge to whom this section applies, and any service of that individual as a full-time judicial officer who performed the duties of magistrate and a bankruptcy judge at the same time, shall be included for purposes of calculating years of service under subsection (a), (b), (c), or (d), as the case may be. (h) Covered Positions and Service. - This section applies to - (1) any bankruptcy judge appointed under - (A) section 152 of this title; (B) section 34 of the Bankruptcy Act before the repeal of that Act by section 401 of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2682); or (C) section 404 of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2549); and (2) any United States magistrate appointed under section 631 of this title, only with respect to service on or after October 1, 1979, as such a bankruptcy judge or magistrate. (i) Payments Pursuant to Court Order. - (1) Payments under this section which would otherwise be made to a bankruptcy judge or magistrate based upon his or her service shall be paid (in whole or in part) by the Director of the Administrative Office of the United States Courts to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Any payment under this paragraph to a person bars recovery by any other person. (2) Paragraph (1) shall apply only to payments made by the Director of the Administrative Office of the United States Courts after the date of receipt by the Director of written notice of such decree, order, or agreement, and such additional information as the Director may prescribe. (3) As used in this subsection, the term 'court' means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian tribal court or courts of Indian offense. (j) Deductions, Contributions, and Deposits. - (1) Deductions. - Beginning with the next pay period after the Director of the Administrative Office of the United States Courts receives a notice under subsection (f) that a bankruptcy judge or magistrate has elected an annuity under this section, the Director shall deduct and withhold 1 percent of the salary of such bankruptcy judge or magistrate. Amounts shall be so deducted and withheld in a manner determined by the Director. Amounts deducted and withheld under this subsection shall be deposited in the Treasury of the United States to the credit of the Judicial Officers' Retirement Fund. Deductions under this subsection from the salary of a bankruptcy judge or magistrate shall terminate upon the retirement of the bankruptcy judge or magistrate or upon completing 14 years of service for which contributions under this section have been made, whether continuously or otherwise, as calculated under subsection (g), whichever occurs first. (2) Consent to Deductions; Discharge of Claims. - Each bankruptcy judge or magistrate who makes an election under subsection (f) shall be deemed to consent and agree to the deductions from salary which are made under paragraph (1). Payment of such salary less such deductions (and any deductions made under section 376 of this title) is a full and complete discharge and acquittance of all claims and demands for all services rendered by such bankruptcy judge or magistrate during the period covered by such payment, except the right to those benefits to which the bankruptcy judge or magistrate is entitled under this section (and section 376). (k) Deposits for Prior Service. - Each bankruptcy judge or magistrate who makes an election under subsection (f) may deposit, for service performed before such election for which contributions may be made under this section, an amount equal to 1 percent of the salary received for that service. Credit for any period covered by that service may not be allowed for purposes of an annuity under this section until a deposit under this subsection has been made for that period. (l) Individual Retirement Records. - The amounts deducted and withheld under subsection (j), and the amounts deposited under subsection (k), shall be credited to individual accounts in the name of each bankruptcy judge or magistrate from whom such amounts are received, for credit to the Judicial Officers' Retirement Fund. (m) Annuities Affected in Certain Cases. - (1) Practicing law after retirement. - (A) Forfeiture of annuity. - Subject to subparagraph (B), any bankruptcy judge or magistrate who retires under this section and who thereafter practices law shall forfeit all rights to an annuity under this section for all periods beginning on or after the first day on which he or she so practices law. (B) Forfeiture not to apply where individual elects to freeze amount of annuity. - (i) If a bankruptcy judge or magistrate makes an election to practice law after retirement under this section - (I) subparagraph (A) shall not apply to such bankruptcy judge or magistrate beginning on the date such election takes effect, and (II) the annuity payable under this section to such bankruptcy judge or magistrate, for periods beginning on or after the date such election takes effect, shall be equal to the annuity to which such bankruptcy judge or magistrate is entitled on the day before such effective date. (ii) An election under clause (i) - (I) may be made by a bankruptcy judge or magistrate eligible for retirement under this section, and (II) shall be filed with the Director of the Administrative Office of the United States Courts. Such an election, once it takes effect, shall be irrevocable. (iii) Any election under this subparagraph shall take effect on the first day of the first month following the month in which the election is made. (2) Recall not permitted. - Any bankruptcy judge or magistrate who retires under this section and who thereafter practices law shall not be eligible for recall under section 155(b), 375, or 636(h) of this title. (3) Accepting other employment. - Any bankruptcy judge or magistrate who retires under this section and thereafter accepts compensation for civil office or employment under the United States Government (other than for the performance of functions as a bankruptcy judge or magistrate under section 155(b), 375, or 636(h) of this title) shall forfeit all rights to an annuity under this section for the period for which such compensation is received. For purposes of this paragraph, the term 'compensation' includes retired pay or salary received in retired status. (n) Lump-Sum Payments. - (1) Eligibility. - (A) Subject to paragraph (2), an individual who serves as a bankruptcy judge or magistrate and - (i) who leaves office and is not reappointed as a bankruptcy judge or magistrate for at least 31 consecutive days; (ii) who files an application with the Administrative Office of the United States Courts for payment of the lump-sum credit; (iii) is not serving as a bankruptcy judge or magistrate at the time of filing of the application; and (iv) will not become eligible to receive an annuity under this section within 31 days after filing the application; is entitled to be paid the lump-sum credit. Payment of the lump-sum credit voids all rights to an annuity under this section based on the service on which the lump-sum credit is based, until that individual resumes office as a bankruptcy judge or magistrate. (B) Lump-sum benefits authorized by subparagraphs (C), (D), and (E) of this paragraph shall be paid to the person or persons surviving the bankruptcy judge or magistrate and alive on the date title to the payment arises, in the order of precedence set forth in subsection (o) of section 376 of this title, and in accordance with the last two sentences of that subsection. For purposes of the preceding sentence, the term 'judicial official' as used in subsection (o) of section 376 shall be deemed to mean 'bankruptcy judge or magistrate'. (C) If a bankruptcy judge or magistrate dies before receiving an annuity under this section, the lump-sum credit shall be paid. (D) If all annuity rights under this section based on the service of a deceased bankruptcy judge or magistrate terminate before the total annuity paid equals the lump-sum credit, the difference shall be paid. (E) If a bankruptcy judge or magistrate who is receiving an annuity under this section dies, annuity accrued and unpaid shall be paid. (F) Annuity accrued and unpaid on the termination, except by death, of the annuity of a bankruptcy judge or magistrate shall be paid to that individual. (G) Subject to paragraph (2), a bankruptcy judge or magistrate who forfeits rights to an annuity under subsection (m)(3) before the total annuity paid equals the lump-sum credit, shall be entitled to be paid the difference if the bankruptcy judge or magistrate files an application with the Administrative Office of the United States Courts for payment of that difference. A payment under this subparagraph voids all rights to an annuity on which the payment is based. (2) Spouses and former spouses. - (A) Payment of the lump-sum credit under paragraph (1)(A) or a payment under paragraph (1)(G) - (i) may be made only if any current spouse and any former spouse of the bankruptcy judge or magistrate are notified of the bankruptcy judge's or magistrate's application; and (ii) shall be subject to the terms of a court decree of divorce, annulment, or legal separation or any court or court approved property settlement agreement incident to such decree, if - (I) the decree, order, or agreement expressly relates to any portion of the lump-sum credit or other payment involved; and (II) payment of the lump-sum credit or other payment would extinguish entitlement of the bankruptcy judge's or magistrate's spouse or former spouse to any portion of an annuity under subsection (i). (B) Notification of a spouse or former spouse under this paragraph shall be made in accordance with such requirements as the Director of the Administrative Office of the United States Courts shall by regulation prescribe. The Director may provide under such regulations that subparagraph (A)(i) may be waived with respect to a spouse or former spouse if the bankruptcy judge or magistrate establishes to the satisfaction of the Director that the whereabouts of such spouse or former spouse cannot be determined. (C) The Director shall prescribe regulations under which this paragraph shall be applied in any case in which the Director receives two or more orders or decrees described in subparagraph (A). (3) Definition. - For purposes of this subsection, the term 'lump-sum credit' means the unrefunded amount consisting of - (A) retirement deductions made under this section from the salary of a bankruptcy judge or magistrate; (B) amounts deposited under subsection (k) by a bankruptcy judge or magistrate covering earlier service; and (C) interest on the deductions and deposits which, for any calendar year, shall be equal to the overall average yield to the Judicial Officers' Retirement Fund during the preceding fiscal year from all obligations purchased by the Secretary of the Treasury during such fiscal year under subsection (o); but does not include interest - (i) if the service covered thereby aggregates 1 year or less; or (ii) for the fractional part of a month in the total service. (o) Judicial Officers' Retirement Fund. - (1) Establishment. - There is established in the Treasury a fund which shall be known as the 'Judicial Officers' Retirement Fund'. The Fund is appropriated for the payment of annuities, refunds, and other payments under this section. (2) Investment of fund. - The Secretary of the Treasury shall invest, in interest bearing securities of the United States, such currently available portions of the Judicial Officers' Retirement Fund as are not immediately required for payments from the Fund. The income derived from these investments constitutes a part of the Fund. (3) Unfunded liability. - (A) There are authorized to be appropriated to the Judicial Officers' Retirement Fund amounts required to reduce to zero the unfunded liability of the Fund. (B) For purposes of subparagraph (A), the term 'unfunded liability' means the estimated excess, determined on an annual basis in accordance with the provisions of section 9503 of title 31, of the present value of all benefits payable from the Judicial Officers' Retirement Fund over the sum of - (i) the present value of deductions to be withheld under this section from the future basic pay of bankruptcy judges and magistrates; plus (ii) the balance in the Fund as of the date the unfunded liability is determined. In making any determination under this subparagraph, the Comptroller General shall use the applicable information contained in the reports filed pursuant to section 9503 of title 31, with respect to the retirement annuities provided for in this section. (C) There are authorized to be appropriated such sums as may be necessary to carry out this paragraph. -SOURCE- (Added Pub. L. 100-659, Sec. 2(a), Nov. 15, 1988, 102 Stat. 3910, and amended Pub. L. 101-650, title III, Sec. 325(b)(3), Dec. 1, 1990, 104 Stat. 5121.) -REFTEXT- REFERENCES IN TEXT Section 7447 of the Internal Revenue Code, referred to in subsec. (f)(3), is classified to section 7447 of Title 26, Internal Revenue Code. Section 34 of the Bankruptcy Act, referred to in subsec. (h)(1)(B), was classified to section 62 of former Title 11, Bankruptcy. The Bankruptcy Act was repealed effective Oct. 1, 1979, by Pub. L. 95-598, Sec. 401(a), 402(a), Nov. 6, 1978, 92 Stat. 2682, section 101 of which enacted revised Title 11. Section 404 of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2549), referred to in subsec. (h)(1)(C), was set out as a note preceding section 151 of this title prior to repeal by Pub. L. 98-353, title I, Sec. 114, July 10, 1984, 98 Stat. 343. -MISC2- AMENDMENTS 1990 - Subsec. (f). Pub. L. 101-650, Sec. 325(b)(3)(A), substituted pars. (1) to (4) for 'any annuity to which such judge or magistrate would otherwise have been entitled under subchapter III of chapter 83, or under chapter 84 (except for subchapters III and VII), of title 5.' Subsec. (h). Pub. L. 101-650, Sec. 325(b)(3)(B), substituted 'on or after' for 'in or after' in concluding provisions. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE Section 9 of Pub. L. 100-659 provided that: '(a) In General. - Subject to subsection (b), this Act (enacting this section and section 8440a of Title 5, Government Organization and Employees, amending sections 155, 375, 376, 604, 631, and 636 of this title and sections 8334 and 8402 of Title 5, and enacting provisions set out as notes under this section and sections 1 and 376 of this title) and the amendments made by this Act shall take effect on the date of the enactment of this Act (Nov. 15, 1988) and shall apply to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after the date of the enactment of this Act. '(b) Exception for Judges and Magistrates Retiring on or after July 31, 1987. - A bankruptcy judge or magistrate who left office on or after July 31, 1987, and before the date of the enactment of this Act (Nov. 15, 1988) may elect to receive an annuity, or to participate in the Judicial Survivors' Annuity System, under the amendments made by this Act if such bankruptcy judge or magistrate, within 60 days after so leaving office, accepted office or employment with the United States Government or a State government or was eligible at the time he or she left office for an immediate annuity under title 5, United States Code. Any election under this subsection shall not be valid unless it is made within 6 months after the date of the enactment of this Act and under the same conditions as other persons who may make elections under the amendments made by this Act, except that any such person who makes an election under this subsection shall not receive a lump-sum credit under section 8342 or 8424 of title 5, United States Code, for prior service and shall not be required to make contributions for prior years of creditable service.' RETIREMENT ANNUITIES FOR INCUMBENT BANKRUPTCY JUDGES AND MAGISTRATES Section 2(c) of Pub. L. 100-659 provided that: '(1) Retirement annuity under title 5 and section 377 of title 28. - A bankruptcy judge or United States magistrate (now United States magistrate judge) in active service on the effective date of this Act (see Effective Date note above) shall, subject to paragraph (2), be entitled, in lieu of the annuity otherwise provided under the amendments made by this section (enacting this section) to - '(A) an annuity under subchapter III of chapter 83, or under chapter 84, of title 5, United States Code, as the case may be, for creditable service before the date on which service would begin to be credited for purposes of subparagraph (B), and '(B) an annuity calculated under subsection (b) or (c) and subsection (g) of section 377 of title 28, United States Code, as added by this section, for any service as a full-time bankruptcy judge or magistrate on or after October 1, 1979 (as specified in the election pursuant to paragraph (2)) for which deductions and deposits are made under subsections (j) and (k) of such section 377, as applicable, without regard to the minimum number of years of service as such a bankruptcy judge or magistrate, except that - '(i) in the case of a judge or magistrate who retires with less than 8 years of service, the annuity under subsection (c) of section 377 of title 28, United States Code, shall be equal to that proportion of the salary being received at the time the judge or magistrate leaves office which the years of service bears to 14, subject to a reduction in accordance with subsection (c) of such section 377 if the bankruptcy judge or magistrate is under age 65 at the time he or she leaves office, and '(ii) the aggregate amount of the annuity initially payable on retirement under this subsection may not exceed the rate of pay for the bankruptcy judge or magistrate which is in effect on the day before the retirement becomes effective. '(2) Filing of notice of election. - A bankruptcy judge or magistrate shall be entitled to an annuity under this subsection only if the judge or magistrate files a notice of that election with the Director of the Administrative Office of the United States Courts specifying the date on which service would begin to be credited under section 377 of title 28, United States Code, in lieu of chapter 83 or chapter 84 of title 5, United States Code. '(3) Lump-sum credit under title 5. - A bankruptcy judge or magistrate who makes an election under paragraph (2) shall be entitled to a lump-sum credit under section 8342 or 8424 of title 5, United States Code, as the case may be, for any service which is covered under section 377 of title 28, United States Code, as added by this section, pursuant to that election, and with respect to which any contributions were made by the judge or magistrate under the applicable provisions of title 5, United States Code. '(4) Recall. - With respect to any bankruptcy judge or magistrate receiving an annuity under this subsection who is recalled to serve under section 375 of title 28, United States Code - '(A) the amount of compensation which such recalled judge or magistrate receives under subsection (c) of such section shall be calculated on the basis of the annuity received under this subsection; and '(B) such recalled judge or magistrate may serve as a reemployed annuitant to the extent permitted by subsection (e) of section 375 of such title. Section 377(m)(3) of title 28, United States Code, as added by subsection (a) of this section, shall not apply with respect to service as a reemployed annuitant described in subparagraph (B).' REPORT TO CONGRESS ON FINANCIAL OPERATION OF RETIREMENT ANNUITY PROGRAM Section 8 of Pub. L. 100-659 provided that: 'The Director of the Administrative Office of the United States Courts shall, not later than 5 years after the date of the enactment of this Act (Nov. 15, 1988), submit a report to the Congress on the financial operation of the retirement annuity program established under this Act and the amendments made by this Act (see Effective Date note above). The report shall, in particular, include a discussion of the deductions from salary and deposits made for contributions to the annuity program and the need for continuing the deductions at the level established under the amendments made by this Act.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 155, 375, 376, 604, 636 of this title; title 5 sections 8334, 8402, 8440b. ------DocID 36296 Document 158 of 1452------ -CITE- 28 USC CHAPTER 19 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- CHAPTER 19 - DISTRIBUTION OF REPORTS AND DIGESTS -MISC1- Sec. 411. Supreme Court reports; printing, binding, and distribution. 412. Sale of Supreme Court reports. 413. Publications; distribution to courts. 414. Transmittal of books to successors. (415. Repealed.) AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 113, Apr. 2, 1982, 96 Stat. 29, struck out item 415 'Court of Claims decisions'. 1952 - Act July 10, 1952, ch. 632, Sec. 3, 66 Stat. 540, amended analysis to conform it to amendments of sections 411 to 413 of this title. ------DocID 36297 Document 159 of 1452------ -CITE- 28 USC Sec. 411 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- Sec. 411. Supreme Court reports; printing, binding, and distribution -STATUTE- (a) The decisions of the Supreme Court of the United States shall be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition, to be charged to the proper appropriation for the judiciary. The number and distribution of the copies shall be under the control of the Joint Committee on Printing. (b) Reports printed prior to June 12, 1926, shall not be furnished the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force. (c) The Public Printer, or other printer designated by the Supreme Court of the United States, upon request, shall furnish to the Superintendent of Documents the reports required to be distributed under the provisions of this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 904; May 24, 1949, ch. 139, Sec. 68, 63 Stat. 99; Oct. 31, 1951, ch. 655, Sec. 41, 65 Stat. 725; July 10, 1952, ch. 632, Sec. 4, 66 Stat. 540.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 334 (Mar. 3, 1911, ch. 231, Sec. 227, 36 Stat. 1154; Mar. 4, 1911, ch. 285, Sec. 1, 36 Stat. 1419; July 1, 1922, ch. 267, Sec. 3, 42 Stat. 816; June 12, 1926, ch. 568, 44 Stat. 736; Jan. 29, 1929, ch. 113, 45 Stat. 1143; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; July 3, 1930, ch. 863, Sec. 1, 46 Stat. 1016; Feb. 23, 1931, ch. 276, Sec. 30, 46 Stat. 1214; May 17, 1932, ch. 190, 47 Stat. 158; June 30, 1932, ch. 314, Sec. 501, 47 Stat. 415; May 10, 1934, ch. 277, Sec. 512, 48 Stat. 758; Ex. Ord. No. 6166, Sec. 12, 14, June 10, 1933; June 7, 1934, ch. 426, 48 Stat. 926; May 27, 1936, ch. 463, Sec. 1, 49 Stat. 1380; June 20, 1936, ch. 630, Sec. 5, 49 Stat. 1549; June 25, 1936, ch. 804, 49 Stat. 1921). Requirements for printing, binding, and issuing Supreme Court decisions 'within eight months after said decisions have been rendered by the Supreme Court' and provision for distribution 'within said period' were omitted. The phrase 'as soon as practicable after rendition' was made the time for publishing such decisions as more flexible and practicable. The words 'the United States Court for China' were omitted inasmuch as that court is no longer functioning. The Secretary of State by an arrangement with China has relinquished the extraterritorial jurisdiction previously exercised by the United States in China. The 1944 Legislative and Judiciary Appropriation Act approved June 28, 1943, made no appropriation for the United States Court for China. Appropriations for other courts were made in title II of chapter 173 (57 Stat. 241). The last appropriation for the United States Court for China was in the act of July 2, 1942 (ch. 472, title IV, 56 Stat. 502). The words 'to the Secretary of War for the use of the proper courts and officers of the Philippine Islands, seven copies' were omitted in view of the independence of the Philippines, effective July 4, 1946. The phrase 'justice or judge of the United States' obviated repetition of names of courts. (See definitive section 451 of this title.) Last sentence, fourth paragraph, of section 334 of title 28, U.S.C., 1940 ed., requiring that books should remain the property of the United States and should be preserved and turned over to successors in office, was omitted as covered by section 414 of this title. A reference to the United States attorney for the District of Columbia was omitted as covered by 'each United States attorney.' Provision authorizing distribution of volumes under this section to each place where a court of appeals is held was added for purposes of uniformity. See similar provision in section 413 of this title. The revised section substitutes the Director of the Administrative Office of the United States Courts in lieu of the Attorney General insofar as distribution of volumes to the judiciary is concerned. This change is consistent with the duties of the former under section 601 et seq. of this title. Provision of section 334 of title 28, U.S.C., 1940 ed., as to the custody, use and delivery to successors was omitted as obsolete on advice of the Administrative Office of the United States Courts. The limitation of 10 copies to the library of the Supreme Court and 6 copies to the marshal of the Supreme Court for use of the justices, was omitted and the provision for distribution in such number 'specified by the Chief Justice of the United States' was substituted therefor. Authority for making an appropriation to carry into effect the provisions of this section is contained in section 336 of title 28, U.S.C., 1940 ed., Acts July 1, 1922, ch. 267, Sec. 5, 42 Stat. 818; May 29, 1926, ch. 425, Sec. 3, 44 Stat. 678 which is omitted, but not repealed, as unnecessary in this revision. Changes were made in phraseology and arrangement. 1949 ACT Subsection (a) of this section substitutes, in section 411(a) of title 28, U.S.C., 'Secretary of the Army' and 'Department of the Army' for 'Secretary of War' and 'War Department,' in view of such redesignation by act of July 26, 1947 (ch. 343, title II, Sec. 205(a), 61 Stat. 501). It substitutes, in section 411(a), 'Commissioner of Customs; Commandant of the Coast Guard' for 'Chief of the Bureau of Marine Inspection and Navigation,' in view of the abolishment of the Bureau of Marine Inspection and Navigation, and the transfer of its functions to, and the division thereof between, the Commissioner of Customs and the Commandant of the Coast Guard, by 1946 Reorganization Plan No. 3, Sec. 101-104, effective July 16, 1946 (11 F.R. 7875, 60 Stat. 1097). It substitutes, in such section 411(a), 'Director of the Bureau of Land Management' for 'Commissioner of the General Land Office,' in view of section 403 of such plan which abolished the General Land Office and created the Bureau of Land Management, headed by a Director. It inserts as new, in such section 411(a), references to the Secretary of Defense, Secretary of the Air Force, and Judge Advocate General of the Air Force, in view of the creation of the National Military Establishment, headed by the Secretary of Defense, and the establishment of the Department of the Air Force in 1947. Subsection (b) of this section redesignates, in section 411(b) of title 28, U.S.C., the Secretary of War as 'Secretary of the Army,' for the reasons stated above, and corrects a typographical error in the word 'court-martial'. AMENDMENTS 1952 - Act July 10, 1952, amended section generally to provide for flexibility in the printing and distribution of the reports under congressional control. 1951 - Subsec. (c). Act Oct. 31, 1951, in second par., substituted 'Secretary of the Army' for 'Secretary of War'. 1949 - Subsec. (a). Act May 24, 1949, Sec. 68(a), inserted 'Secretary of Defense', 'Secretary of the Air Force', and 'Judge Advocate General of the Air Force' where appearing, and substituted 'Secretary of the Army' for 'Secretary of War', 'Department of the Army' for 'War Department', 'Director of the Bureau of Land Management' for 'Commissioner of the General Land Office', 'Commissioner of Customs, Commandant of the Coast Guard' for 'Chief of the Bureau of Marine Inspection', and 'Chief of Forest Service, Department of Agriculture' for 'Chief Forester, National Park Service, Department of the Interior'. Subsec. (b). Act May 24, 1949, Sec. 68(b), substituted 'Secretary of the Army' for 'Secretary of War' and 'Court-martial' for 'courtmartial'. -CROSS- CROSS REFERENCES Printing and binding for Supreme Court, see section 676 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 676 of this title. ------DocID 36298 Document 160 of 1452------ -CITE- 28 USC Sec. 412 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- Sec. 412. Sale of Supreme Court reports -STATUTE- The Public Printer, or other printer designated by the Supreme Court of the United States shall print such additional bound volumes and preliminary prints of such reports as may be required for sale to the public. Such additional copies shall be sold by the Superintendent of Documents, as provided by law. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 906; July 10, 1952, ch. 632, Sec. 5, 66 Stat. 541.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 335 (Mar. 3, 1911, ch. 231, Sec. 228, 36 Stat. 1155; July 1, 1922, ch. 267, Sec. 4, 42 Stat. 818; May 29, 1926, ch. 425, Sec. 2, 44 Stat. 677). Authority for making an appropriation to carry into effect the provisions of this section is contained in section 336 of title 28, U.S.C., 1940 ed., acts July 1, 1922, ch. 267, Sec. 5, 42 Stat. 818; May 29, 1926, ch. 425, Sec. 3, 44 Stat. 678, which is omitted, but not repealed, as unnecessary in this revision. Reference to digests was omitted to conform to administrative practice. (See section 604(a)(9) of this title.) Changes were made in phraseology. AMENDMENTS 1952 - Act July 10, 1952, permitted Superintendent of Documents to sell reports under same terms as other Government publications. -CROSS- CROSS REFERENCES Prices for bound volumes of its decisions, printed by a private printer, to be fixed by Supreme Court or Chief Justice, see section 676 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 676 of this title. ------DocID 36299 Document 161 of 1452------ -CITE- 28 USC Sec. 413 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- Sec. 413. Publications; distribution to courts -STATUTE- Distribution of publications to Federal courts in accordance with the provisions of this chapter shall not be made to any place where such court is held in a building not owned or controlled by the United States unless such publications are committed to the custody of an officer of the United States at such building. The Attorney General and the Director in the procurement of law books, books of reference or periodicals may exchange or sell similar items and apply the allowance or proceeds to payment in whole or in part of the cost of the items procured. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 906; May 24, 1949, ch. 139, Sec. 69, 63 Stat. 100; July 10, 1952, ch. 632, Sec. 6, 66 Stat. 541.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on section 1131 of title 26, U.S.C., 1940 ed., Internal Revenue Code, title 28, U.S.C., 1940 ed., Sec. 337, 530 (Mar. 3, 1911, ch. 231, Sec. 229, 36 Stat. 1155; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; May 10, 1934, ch. 277, Sec. 512, 48 Stat. 758; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1936, ch. 804, 49 Stat. 1921; Feb. 10, 1939, ch. 2, Sec. 1131, 53 Stat. 163; May 14, 1940, ch. 189, title IV, 54 Stat. 210; July 2, 1942, ch. 472, title IV, 56 Stat. 504; June 28, 1943, ch. 173, title II, Sec. 201, 57 Stat. 243; June 26, 1944, ch. 277, Sec. 203, 58 Stat. 358; May 21, 1945, ch. 129, title IV, 59 Stat. 200; July 5, 1946, ch. 541, title IV, 60 Stat. 480.) Section consolidates provisions of section 1131 of title 26, U.S.C., 1940 ed., relating to expenditures for 'lawbooks' for the Tax Court of the United States, with sections 337 and 530 of title 28, U.S.C., 1940 ed., relating to purchase and distribution of reporter and digest volumes. Other provisions of section 1131 of title 26, U.S.C., 1940 ed., are incorporated in section 604 of this title. Provisions of section 530 of title 28, U.S.C., 1940 ed., limiting the price to be paid for volumes of the Federal Reporter and other similar reports were omitted after consultation with the Administrative Office of United States Courts as more properly covered by current appropriation acts. Similar provisions relating to the Federal Digest and the United States Code Annotated were omitted as covered in current appropriation acts. (See Act June 29, 1944, ch. 286, title II, Sec. 212, 58 Stat. 361, 387.) Provisions of said section 337 of title 28, U.S.C., 1940 ed., that books are to remain United States property, so marked, and transmitted to successors in office of persons receiving them, were omitted as covered by section 414 of this title. Similar provisions in said section 530 of title 28, U.S.C., 1940 ed., are incorporated in section 414 of this title. Provision in section 337 of title 28, U.S.C., 1940 ed., for distribution to the Court of Appeals and District Court for the District of Columbia was omitted as covered by the phrase 'Each place where a circuit court of appeals or district court is regularly held.' The revised section is extended to include the Customs Court as well as the Court of Claims and Court of Customs and Patent Appeals. All judges receive the Supreme Court reports and digests under section 411 of this title. Presumably the Congress did not intend to deny distribution of the Federal Reporter and digests to the Customs Court while providing for all other courts under said section 337. The revised section provides for distribution of volumes to the judiciary by the Director of the Administrative Office of the United States Courts. (See reviser's note under section 411 of this title.) Similar publications are purchased by the Marshal of Supreme Court for the use of the Court. (See section 672(5) of this title.) The provisions of section 337 of title 28, U.S.C., 1940 ed., requiring annual estimates and disbursement of moneys for the volumes under this section were omitted. Such provisions are covered by appropriate sections of title 31, U.S.C., 1940 ed., Money and Finance. Provision of section 337 of title 28, U.S.C., 1940 ed., as to custody, use, and delivery to successors was omitted as obsolete on advice of the Administrative Office of the United States Courts. Numerous changes were made in phraseology and superfluous language was omitted. SENATE REVISION AMENDMENT As finally enacted, part of act July 9, 1947, ch. 211, title IV, 61 Stat. 306, which was classified to Title 28, U.S.C., 1946 ed., Sec. 530, became one of the sources of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559. Although section 1131 of Title 26, U.S.C. (Internal Revenue Code) is one of the sources of this section, it was struck out of the schedule of repeals by Senate amendment and accordingly remains in Title 26. See 80th Congress Senate Report No. 1559. 1949 ACT Subsection (a) of this section eliminates from section 413 of title 28, U.S.C., the provision for furnishing books to the Tax Court, which procures books under section 1131 of the Internal Revenue Code (26 U.S.C., 1946 ed., Sec. 1131). Subsection (b) of this section incorporates in section 413 of title 28, U.S.C., with changes in phraseology, the provisions of act of June 3, 1948 (ch. 400, title II, Sec. 204, 62 Stat. 321), which was not incorporated in title 18 when the revision was enacted. As amended, section 413 is expanded to give like authority with respect to procurement of books to the Director of the Administrative Office of the United States Courts, as well as to the Attorney General, to prevent an obvious inconsistency. AMENDMENTS 1952 - Act July 10, 1952, amended section generally, and permitted delivery of publication to buildings controlled by the Government as well as to buildings owned by it. 1949 - Act May 24, 1949, struck out reference to the Tax Court in former provisions enumerating judges and courts to receive certain publications, and inserted provisions set out as second par. ------DocID 36300 Document 162 of 1452------ -CITE- 28 USC Sec. 414 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- Sec. 414. Transmittal of books to successors -STATUTE- All government publications and law books furnished to justices, judges, clerks of courts, and United States attorneys of the United States and its territories and possessions, and other officers of the United States or an agency thereof shall be transmitted to their successors in office. All permanent or bound books and publications furnished under this chapter except those books furnished to the Library of Congress for international exchange shall remain the property of the United States and shall be marked plainly, 'The Property of the United States'. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 906; Oct. 18, 1962, Pub. L. 87-845, Sec. 7, 76A Stat. 699.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 90 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees, section 530 of title 28, U.S.C., 1940 ed., and section 92 of title 44, U.S.C., 1940 ed., Public Printing and Documents (Aug. 7, 1882, ch. 433, Sec. 1, 22 Stat. 336; Jan. 12, 1895, ch. 23, Sec. 74, 28 Stat. 620; June 20, 1936, ch. 630, Sec. 11, 12, 49 Stat. 1552, 1553; May 14, 1940, ch. 189, title IV, 54 Stat. 210; June 28, 1941, ch. 258, title IV, 55 Stat. 301; July 2, 1942, ch. 472, title IV, 56 Stat. 504; June 28, 1943, ch. 173, title II, Sec. 201, 57 Stat. 243; June 26, 1944, ch. 277, Sec. 203, 58 Stat. 358; May 21, 1945, ch. 129, title IV, 59 Stat. 200; July 5, 1946, ch. 541, title IV, 60 Stat. 480). Section consolidates section 90 of title 5, U.S.C., 1940 ed., providing that 'statutes' shall be delivered to successors of United States attorneys and clerks and provisions of section 530 of title 28, U.S.C., 1940 ed., requiring that all lawbooks for judges and others shall be marked as property of the United States and shall be transmitted to their successors, with section 92 of title 44, U.S.C., 1940 ed., relating to transmittal of 'Government publications.' Words 'All Government publications and lawbooks' and 'furnished under this chapter' were used to cover 'all statutes' and 'The Federal Reporter and continuations thereto.' Words 'justices and judges of the United States' were substituted for 'United States judges' in conformity with uniform use of the phrase to describe all members of the Federal judiciary. Similar provisions in sections 334 and 377 of title 28, U.S.C., 1940 ed., were therefore omitted as covered by this revised section. Other provisions of said section 530 of title 28, U.S.C., 1940 ed., were omitted. (See reviser's note under section 413 of this title.) The words 'permanent or bound' were inserted in the last sentence of the revised section to obviate the wasteful practice under existing law of marking temporary pamphlets. Changes were made in phraseology. SENATE REVISION AMENDMENT As finally enacted, part of act July 9, 1947, ch. 211, title IV, 61 Stat. 306, which was classified to Title 28, U.S.C., 1946 ed., Sec. 530, became one of the sources of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1962 - Pub. L. 87-845 substituted 'furnished to justices, judges, clerks of courts, and United States attorneys of the United States and its territories and possessions, and other officers of the United States or an agency thereof' for 'furnished to justices and judges of the United States and of the Territorial Courts, United States attorneys, clerks of courts, and other officers of the United States'. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-845 effective Jan. 2, 1963, see section 25 of Pub. L. 87-845, set out as a note set out under section 14 of Title 18, Crimes and Criminal Procedure. ------DocID 36301 Document 163 of 1452------ -CITE- 28 USC Sec. 415 -EXPCITE- TITLE 28 PART I CHAPTER 19 -HEAD- (Sec. 415. Repealed. Pub. L. 97-164, title I, Sec. 113, Apr. 2, 1982, 96 Stat. 29) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 906; May 24, 1949, ch. 139, Sec. 70, 63 Stat. 100, provided for distribution of copies of decisions of Court of Claims. See section 174(b) of this title. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36302 Document 164 of 1452------ -CITE- 28 USC CHAPTER 21 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- CHAPTER 21 - GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES -MISC1- Sec. 451. Definitions. 452. Courts always open; power unrestricted by expiration of sessions. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 453. Oath of justices and judges. (FOOTNOTE 1) 454. Practice of law by justices and judges. 455. Disqualification of justice, judge, or magistrate. 456. Traveling expenses of justices and judges; official duty stations. 457. Records; obsolete papers. 458. Relative of justice or judge ineligible to appointment. 459. Administration of oaths and acknowledgments. 460. Application to other courts. 461. Adjustments in certain salaries. 462. Court accommodations. 463. Expenses of litigation. AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 115(a)(2), (b)(2), (c)(2), 116(b), Apr. 2, 1982, 96 Stat. 31, 32, inserted '; official duty stations' in item 456, substituted 'other courts' for 'Canal Zone, Guam and Virgin Islands' in item 460, and added items 462 and 463. 1978 - Pub. L. 95-598, title II, Sec. 214(c), 217(b), Nov. 6, 1978, 92 Stat. 2661, struck out 'Alaska,' after 'Application to' in item 460 and struck out reference to referees in bankruptcy in item 455. 1975 - Pub. L. 94-82, title II, Sec. 205(a)(2), Aug. 9, 1975, 89 Stat. 422, added item 461. 1974 - Pub. L. 93-512, Sec. 2, Dec. 5, 1974, 88 Stat. 1610, substituted 'Disqualification of justice, judge, magistrate, or referee in bankruptcy' for 'Interest of justice or judge' in item 455. 1963 - Pub. L. 88-139, Sec. 3(b), Oct. 16, 1963, 77 Stat. 248, substituted 'power unrestricted by expiration of sessions' for 'powers unrestricted by terms' in item 452. 1951 - Act Oct. 31, 1951, ch. 655, Sec. 42, 65 Stat. 725, inserted ', Guam' in item 460. ------DocID 36303 Document 165 of 1452------ -CITE- 28 USC Sec. 451 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 451. Definitions -STATUTE- As used in this title: The term 'court of the United States' includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the Court of International Trade and any court created by Act of Congress the judges of which are entitled to hold office during good behavior. The terms 'district court' and 'district court of the United States' mean the courts constituted by chapter 5 of this title. The term 'judge of the United States' includes judges of the courts of appeals, district courts, Court of International Trade and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior. The term 'justice of the United States' includes the Chief Justice of the United States and the associate justices of the Supreme Court. The terms 'district' and 'judicial district' means the districts enumerated in Chapter 5 of this title. The term 'department' means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. The term 'agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 907; Mar. 18, 1959, Pub. L. 86-3, Sec. 10, 73 Stat. 9; Sept. 12, 1966, Pub. L. 89-571, Sec. 3, 80 Stat. 764; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 213, 92 Stat. 2661; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(10), 94 Stat. 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 114, 96 Stat. 29.) -MISC1- HISTORICAL AND REVISIONS NOTES This section was inserted to make possible a greater simplification in consolidation of the provisions incorporated in this title. The definitions of agency and department conform with such definitions in section 6 of revised title 18, U.S.C. (H.R. 3190, 80th Cong.). SENATE REVISION AMENDMENT Those provisions of this section which related to the Tax Court were eliminated by Senate amendment. See 80th Congress Senate Report No. 1559. -REFTEXT- REFERENCES IN TEXT Section 1 of Title 5, referred to in text, is section 1 of former Title 5, Executive Departments and Government Officers and Employees, the provisions of which are covered by section 101 of Title 5, Government Organization and Employees. -MISC2- AMENDMENTS 1982 - Pub. L. 97-164 struck out references to the Court of Claims and to the Court of Customs and Patent Appeals in the definitions of 'court of the United States' and 'judge of the United States'. 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1978 - Pub. L. 95-598 directed the amendment of section by inserting references to bankruptcy courts and bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1966 - Pub. L. 89-571 removed the United States District Court for the District of Puerto Rico from the definition of 'court of the United States'. 1959 - Pub. L. 86-3 substituted 'including the United States District for the District of Puerto Rico' for 'including the district courts of the United States for the districts of Hawaii and Puerto Rico' in provisions defining 'court of the United States'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Section 10 of Pub. L. 86-3 provided that the amendment made by section 10 of Pub. L. 86-3 shall be effective on admission of the State of Hawaii into the Union. Admission of Hawaii into the Union was accomplished Aug. 21, 1959, on issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding 491 of Title 48, Territories and Insular Possessions. 'CIRCUIT COURT OF APPEALS;' 'SENIOR CIRCUIT JUDGE,' ETC. DEFINED Section 32 of act June 25, 1948, as amended May 24, 1949, ch. 139, Sec. 127, 63 Stat. 107, provided that: '(a) All laws of the United States in force on September 1, 1948, in which reference is made to a 'circuit court of appeals'; 'senior circuit judge'; 'senior district judge'; 'presiding judge'; 'chief justice', except when reference to the Chief Justice of the United States is intended; or 'justice', except when used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice, are hereby amended by substituting 'court of appeals' for 'circuit court of appeals'; 'chief judge of the circuit' for 'senior circuit judge'; 'chief judge of the district court' for 'senior district judge'; 'chief judge' for 'presiding judge'; 'chief judge' for 'chief justice', except when reference to the Chief Justice of the United States is intended; and 'judge' for 'justice', except when the latter term is used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice. '(b) All laws of the United States in force on September 1, 1948, in which reference is made to the Supreme Court of the District of Columbia or to the District Court of the United States for the District of Columbia are amended by substituting 'United States District Court for the District of Columbia' for such designations. '(c) All laws of the United States in force on September 1, 1948, in which reference is made to the 'Conference of Senior Circuit Judges,' or to the 'Judicial Conference of Senior Circuit Judges' are amended by substituting 'Judicial Conference of the United States' for such designations. '(d) This section shall not be construed to amend historical references to courts or judicial offices which have no present or future application to such courts or offices.' JUDGES OF THE UNITED STATES Section 2(a) of act June 25, 1948, as amended Sept. 3, 1954, ch. 1263, Sec. 51(a), 68 Stat. 1245, provided that: 'The Chief Justices of the United States Court of Appeals for the District of Columbia, the District Court of the United States for the District of Columbia, and the Court of Claims (now United States Claims Court), and the presiding judge of the Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), in office on the effective date of this Act shall be the chief judges of their respective courts. The Chief Justice of the United States Court of Appeals for the District of Columbia and the Associate Justices thereof, the Chief Justice of the District Court of the United States for the District of Columbia (formerly named the Supreme Court of the District of Columbia) and the Associate Justices thereof, the Chief Justice of the Court of Claims (now United States Claims Court), and the presiding judge of the Court of Customs and Patent Appeals (now United States Court of Appeals for the Federal Circuit), in office on the effective date of this Act, shall be judges of the United States within the meaning of Section 451 of Title 28, Judiciary and Judicial Procedure, of the United States Code, set out in Section 1 of this Act. The Chief Justice of the United States Court of Appeals for the District of Columbia and the Associate Justices thereof, in office on the effective date of this Act, shall be circuit judges of the District of Columbia Circuit and vested with all the rights, powers, and duties thereof, and the said Chief Justice of the United States Court of Appeals for the District of Columbia shall be Chief Judge of said Circuit. The Chief Justice of the District Court of the United States for the District of Columbia (formerly named the Supreme Court of the District of Columbia) and the Associate Justices thereof, in office on the effective date of this Act, shall be district judges for the District of Columbia and vested with all the rights, powers, and duties thereof.' Section 51(b) of act Sept. 3, 1954, provided that this amendment should take effect as of Sept. 1, 1948. -CROSS- CROSS REFERENCES District Court of Guam as having jurisdiction, in all courses arising under the laws of the United States, of a district court of United States as defined in this section, see section 1424 of Title 48, Territories and Insular Possessions. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 371, 373, 376, 581, 1821 of this title; title 2 section 130b; title 5 sections 5537, 8331, 8344, 8440a, 8468; title 10 section 1408; title 18 sections 351, 4107, 4108; title 46 section 31301. ------DocID 36304 Document 166 of 1452------ -CITE- 28 USC Sec. 452 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 452. Courts always open; powers unrestricted by expiration of sessions -STATUTE- All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders. The continued existence or expiration of a session of a court in no way affects the power of the court to do any act or take any proceeding. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 907; Oct. 16, 1963, Pub. L. 88-139, Sec. 2, 77 Stat. 248.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 13 and 302 (Mar. 3, 1911, ch. 231, Sec. 9, 189, 36 Stat. 1088, 1143; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475). Sections 13 and 302 of title 28, U.S.C., 1940 ed., related only to district courts and the Court of Customs and Patent Appeals, and this section has been written to cover all other courts of the United States. Other provisions of said section 302 of title 28, U.S.C., 1940 ed., are incorporated in sections 214, 456, and 604 of this title. The phrase 'always open' means 'never closed' and signifies the time when a court can exercise its functions. With respect to matters enumerated by statute or rule as to which the court is 'always open,' there is no time when the court is without power to act. (Ex parte Branch, 63 Ala. 383, 387.) Section 13 of title 28, U.S.C., 1940 ed., provided that 'The district courts, as courts of admiralty and as courts of equity, shall be deemed always open * * *' for enumerated purposes, and that the judge 'at chambers or in the clerk's office, and in vacation as well as in term,' may make orders and issue process. The revised section omits all reference to the nature of the action or proceeding and enumeration of the acts which may be performed by the court. This is in accord with Rules 45(c) and 56 of the new Federal Rules of Criminal Procedure which contain similar provisions with respect to criminal procedure both in the courts of appeals and in the district courts. Rules 6(c) and 77(a) of the Federal Rules of Civil Procedure contain provisions similar to the second and first paragraphs, respectively, of this section with respect to civil actions in district courts. AMENDMENTS 1963 - Pub. L. 88-139 substituted 'expiration of sessions' for 'terms' in section catchline, and 'session' for 'term' in text. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE District courts always open, see rule 77, Appendix to this title. One form of action, see rule 2. Time unaffected by expiration of term, see rule 6. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36305 Document 167 of 1452------ -CITE- 28 USC Sec. 453 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 453. Oaths of justices and judges -STATUTE- Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of this office: 'I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.' -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 907; Dec. 1, 1990, Pub. L. 101-650, title IV, Sec. 404, 104 Stat. 5124.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 241, 372, and District of Columbia Code, 1940 ed., Sec. 11-203, 11-303 (R.S.D.C., Sec. 752, 18 Stat. pt. II, 90; Feb. 9, 1893, ch. 74, Sec. 3, 27 Stat. 435; Mar. 3, 1901, ch. 854, Sec. 223, 31 Stat. 1224; Mar. 3, 1911, ch. 231, Sec. 136, 137, 257, 36 Stat. 1135, 1161; Feb. 25, 1919, ch. 29, Sec. 4, 40 Stat. 1157). This section consolidates sections 11-203 and 11-303 of District of Columbia Code, 1940 ed., and section 372 of title 28, U.S.C., 1940 ed., with that portion of section 241 of said title 28 providing that judges of the Court of Claims shall take an oath of office. The remainder of said section 241 comprises sections 171 and 173 of this title. The phrase 'justice or judge of the United States' was substituted for 'justices of the Supreme Court, the circuit judges, and the district judges' appearing in said section 372, in order to extend the provisions of this section to judges of the Court of Claims, Customs Court, and Court of Customs and Patent Appeals and to all judges of any court which may be created by enactment of Congress. See definition in section 451 of this title. The Attorney General has ruled that the expression 'any judge of any court of the United States' applied to the Chief Justice and all judges of the Court of Claims. (21 Op. Atty. Gen. 449.) AMENDMENTS 1990 - Pub. L. 101-650 substituted 'under the Constitution' for 'according to the best of my abilities and understanding, agreeably to the Constitution'. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-650 effective 90 days after Dec. 1, 1990, see section 407 of Pub. L. 101-650, set out as a note under section 332 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 153, 460, 631, 656 of this title. ------DocID 36306 Document 168 of 1452------ -CITE- 28 USC Sec. 454 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 454. Practice of law by justices and judges -STATUTE- Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 373 (Mar. 3, 1911, ch. 231, Sec. 258, 36 Stat. 1161). Changes in phraseology were made. -CROSS- RULES OF THE SUPREME COURT Clerks to justices not to practice, see rule 7, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36307 Document 169 of 1452------ -CITE- 28 USC Sec. 455 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 455. Disqualification of justice, judge, or magistrate -STATUTE- (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge's knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) 'proceeding' includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) 'fiduciary' includes such relationships as executor, administrator, trustee, and guardian; (4) 'financial interest' means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a 'financial interest' in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a 'financial interest' in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a 'financial interest' in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a 'financial interest' in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. (e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. (f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908; Dec. 5, 1974, Pub. L. 93-512, Sec. 1, 88 Stat. 1609; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 214(a), (b), 92 Stat. 2661; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1007, 102 Stat. 4667.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 24 (Mar. 3, 1911, ch. 231, Sec. 20, 36 Stat. 1090). Section 24 of title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicable to all justices and judges of the United States. The phrase 'in which he has a substantial interest' was substituted for 'concerned in interest in any suit.' The provision of section 24 of title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the 'senior circuit judge,' and words 'and thereupon such proceedings shall be had as are provided in sections 17 and 18 of this title,' were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation and assignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for other cause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify the chief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of this title to apply a remedy. Relationship to a party's attorney is included in the revised section as a basis of disqualification in conformity with the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less inclusive rule. Changes were made in phraseology. AMENDMENTS 1988 - Subsec. (f). Pub. L. 100-702 added subsec. (f). 1978 - Pub. L. 95-598 struck out references to referees in bankruptcy in section catchline and in subsecs. (a) and (e). 1974 - Pub. L. 93-512 substituted 'Disqualification of justice, judge, magistrate, or referee in bankruptcy' for 'Interest of justice or judge' in section catchline, reorganized structure of provisions, and expanded applicability to include magistrates and referees in bankruptcy and grounds for which disqualification may be based, and inserted provisions relating to waiver of disqualification. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. For procedures relating to Bankruptcy matters during transition period see note preceding section 151 of this title. EFFECTIVE DATE OF 1974 AMENDMENT Section 3 of Pub. L. 93-512 provided that: 'This Act (amending this section) shall not apply to the trial of any proceeding commenced prior to the date of this Act (Dec. 5, 1974), nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to the date of this Act.' -CROSS- CROSS REFERENCES Disqualification of trial judge to hear appeal, see section 47 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 460, 656 of this title. ------DocID 36308 Document 170 of 1452------ -CITE- 28 USC Sec. 456 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 456. Traveling expenses of justices and judges; official duty stations -STATUTE- (a) The Director of the Administrative Office of the United States Courts shall pay each justice or judge of the United States, and each retired justice or judge recalled or designated and assigned to active duty, while attending court or transacting official business at a place other than his official duty station for any continuous period of less than thirty calendar days (1) all necessary transportation expenses certified by the justice or judge; and (2) payments for subsistence expenses at rates or in amounts which the Director establishes, in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States and after considering the rates or amounts set by the Administrator of General Services and the President pursuant to section 5702 of title 5. The Director of the Administrative Office of the United States Courts shall also pay each justice or judge of the United States, and each retired justice or judge recalled or designated and assigned to active duty, while attending court or transacting official business under an assignment authorized under chapter 13 of this title which exceeds in duration a continuous period of thirty calendar days, all necessary transportation expenses and actual and necessary expenses of subsistence actually incurred, notwithstanding the provisions of section 5702 of title 5, in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States. (b) The official duty station of the Chief Justice of the United States, the Justices of the Supreme Court of the United States, and the judges of the United States Court of Appeals for the District of Columbia Circuit, the United States Court of Appeals for the Federal Circuit, and the United States District Court for the District of Columbia shall be the District of Columbia. (c) The official duty station of the judges of the United States Court of International Trade shall be New York City. (d) The official duty station of each district judge shall be that place where a district court holds regular sessions at or near which the judge performs a substantial portion of his judicial work, which is nearest the place where he maintains his actual abode in which he customarily lives. (e) The official duty station of a circuit judge shall be that place where a circuit or district court holds regular sessions at or near which the judge performs a substantial portion of his judicial work, or that place where the Director provides chambers to the judge where he performs a substantial portion of his judicial work, which is nearest the place where he maintains his actual abode in which he customarily lives. (f) The official duty station of a retired judge shall be established in accordance with section 374 of this title. (g) Each circuit or district judge whose official duty station is not fixed expressly by this section shall notify the Director of the Administrative Office of the United States Courts in writing of his actual abode and official duty station upon his appointment and from time to time thereafter as his official duty station may change. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908; Aug. 8, 1953, ch. 376, 67 Stat. 488; Aug. 7, 1959, Pub. L. 86-138, 73 Stat. 285; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 215, 92 Stat. 2661; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(11), 94 Stat. 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 115(a)(1), 96 Stat. 30; Jan. 2, 1986, Pub. L. 99-234, title I, Sec. 107(d), 99 Stat. 1759.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 1102(d) of title 26, U.S.C., 1940 ed., Internal Revenue Code, and title 28, U.S.C., 1940 ed., Sec. 218, 270, 296, 296a, 302, 374, 449 (Mar. 3, 1911, ch. 231, Sec. 189, 259, 36 Stat. 1143, 1161, and Sec. 187(a) as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101; and section 307 as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1224; Sept. 14, 1922, ch. 306, Sec. 2, 42 Stat. 838; Feb. 24, 1925, ch. 301, Sec. 2, 43 Stat. 965; May 29, 1928, ch. 852, Sec. 711, 45 Stat. 882; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; June 23, 1930, ch. 573, Sec. 1, 46 Stat. 799; Feb. 10, 1939, ch. 2, Sec. 1102(d), 53 Stat. 159; Apr. 22, 1940, ch. 126, 54 Stat. 149; May 3, 1945, ch. 106, title I, Sec. 1, 59 Stat. 127; May 21, 1945, ch. 129, title IV, 59 Stat. 197; July 5, 1946, ch. 541, title IV, 60 Stat. 477). Section 270 of title 28, U.S.C., 1940 ed., related to the Chief Justice and each judge of the Court of Claims and provided for payment of expenses on order of court. Sections 296, 296a of title 28, U.S.C., 1940 ed., provided for payment of such expenses of the Customs Court judges. Section 302 of title 28, U.S.C., 1940 ed., provided for the payment of expenses of a judge of the Court of Customs and Patent Appeals upon his certificate. It contained no $10 limitation upon his daily subsistence expense and in addition authorized the necessary expenses for travel and attendance of one stenographic clerk who accompanied him. This latter provision is the basis for section 834 of this title. Other provisions of said section 302 of title 28, U.S.C., 1940 ed., are incorporated in sections 214 and 452 of this title. Section 374 of title 28, U.S.C., 1940 ed., related to circuit justices, circuit judges and district judges, including district judges in Alaska, Hawaii, and Puerto Rico. References to these territories is omitted as unnecessary. Provision for Alaska judges is covered by section 460 of this title, and section 114 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, as amended by a separate section in the bill to enact this revision. Hawaii and Puerto Rico are included as districts by sections 91 and 119 of this title, and judges thereof are 'judges of the United States' as defined in section 451 of this title. The inconsistent provision of said section 270 of title 28, U.S.C., 1940 ed., with reference to payment on order of court was omitted to permit payment to every judge on his certificate. The $10 per day subsistence limitation applicable to all other judges was extended to the judges of the Court of Customs and Patent Appeals. The provision of said section 270 of title 28, U.S.C., 1940 ed., relating to traveling expenses of commissioners and stenographers is incorporated in sections 792 and 794 of this title. The provisions of said section 296 of title 28, U.S.C., 940 ed., relating to organization of the Customs Court are the basis of sections 251, 252, 253, and 254 of this title. Other provisions of said section 296 are incorporated in sections 1581, 2071, 2639, and 2640 of this title, and the retirement provisions of that section are covered by sections 371 and 372 of this title. The provision of section 296 of title 28, U.S.C., 1940 ed., expenses of retired judges was made applicable to all judges. The provision of section 218 of title 28, U.S.C., 1940 ed., for payment of travel expenses of judges attending the Judicial Conference of the United States was omitted as covered by the first paragraph of the revised section. The provision in section 218 of title 28, U.S.C., 1940 ed., requiring the marshal of the Supreme Court to pay the expenses of attending the Judicial Conference of the United States is omitted as covered in part by section 550 (see 571) of this title under which United States marshals pay the travel allowances of circuit, district, and certain other judges. The expenses of the Chief Justice of the United States in attending such Conference were required also under said section 218 to be paid by the Supreme Court marshal. Such requirement is also omitted upon advice of the Director of the Administrative Office of the United States Courts that the matter of payment is one of administrative convenience. As to manner of payment of salaries to active and retired Justices of the Supreme Court, see reviser's note under section 550 (see 571) of this title. Words 'justice or judge of the United States' were used to describe members of all courts. See definitive section 451 of this title. The remaining provisions of sections 218 of title 28, U.S.C., 1940 ed., relating to the Judicial Conference of the United States and 449 of title 28, U.S.C., 1940 ed., relating to judicial conferences of circuits, are incorporated in sections 331 and 333, respectively. Said section 1102(d) of title 26, U.S.C., 1940 ed., related to traveling and subsistence expenses of judges of The Tax Court of the United States, successor to the Board of Tax Appeals. Numerous changes were made in phraseology. SENATE REVISION AMENDMENTS Those provisions of this section which related to the Tax Court were eliminated by Senate amendment, therefore section 1102(d) of title 26, U.S.C., was not one of the sources of this section as finally enacted. As finally enacted, part of act July 9, 1947, ch. 211, title IV, 61 Stat. 303, which was classified to title 28, U.S.C., 1946 ed., Sec. 296a, became one of the sources of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-234 substituted 'payments for subsistence expenses at rates or in amounts which the Director establishes, in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States and after considering the rates or amounts set by the Administrator of General Services and the President pursuant to section 5702 of title 5' for 'a per diem allowance for travel at the rate which the Director establishes not to exceed the maximum per diem allowance fixed by section 5702(a) of title 5, or in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States, reimbursement for his actual and necessary expenses of subsistence not in excess of the maximum amount fixed by section 5702 of title 5'. 1982 - Pub. L. 97-164 inserted '; official duty stations' in section catchline. Subsec. (a). Pub. L. 97-164 designated existing undesignated first par. as subsec. (a), substituted 'The Director of the Administrative Office of the United States Courts shall pay each justice or judge of the United States, and each retired justice or judge recalled or designated and assigned to active duty, while attending court or transacting official business at a place other than his official duty station for any continuous period of less than thirty calendar days (1) all necessary transportation expenses certified by the justice or judge; and (2) a per diem allowance for travel at the rate which the Director establishes not to exceed the maximum per diem allowance fixed by section 5702(a) of title 5, or in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States, reimbursement for his actual and necessary expenses of subsistence not in excess of the maximum amount fixed by section 5702 of title 5' for 'Each Justice or judge of the United States and each retired Justice or judge recalled or designated and assigned to active duty, while attending court or transacting official business at a place other than his official station, shall, upon his certificate, be paid by the Director of the Administrative Office of the United States Courts all necessary traveling expenses, and also a per diem allowance in lieu of actual expenses of subsistence (as defined in the Travel Expense Act of 1949, as amended, 63 Stat. 166; 5 U.S.C. 835) at the per diem rate provided for by the Travel Expense Act of 1949, as amended, or, in accordance with regulations prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, reimbursement for his actual expenses of subsistence not in excess of the maximum amount fixed by the Travel Expense Act of 1949, as amended', and inserted 'The Director of the Administrative Office of the United States Courts shall also pay each justice or judge of the United States, and each retired justice or judge recalled or designated and assigned to active duty, while attending court or transacting official business under an assignment authorized under chapter 13 of this title which exceeds in duration a continuous period of thirty calendar days, all necessary transportation expenses and actual and necessary expenses of subsistence actually incurred, notwithstanding the provisions of section 5702 of title 5, in accordance with regulations which the Director shall prescribe with the approval of the Judicial Conference of the United States.' Subsec. (b). Pub. L. 97-164 designated existing undesignated second par. as subsec. (b), and in subsec. (b) as so designated, substituted 'official duty station' for 'official station', struck out references to the judges of the Court of Claims and the Court of Customs and Patent Appeals, and inserted reference to the judges of the United States Court of Appeals for the Federal Circuit. Subsec. (c). Pub. L. 97-164 designated existing undesignated third par. as subsec. (c) and substituted 'official duty station' for 'official station'. Subsec. (d). Pub. L. 97-164 designated existing undesignated fourth par. as subsec. (d) and substituted 'The official duty station of each district judge shall be that place where a district court holds regular sessions at or near which the judge performs a substantial portion of his judicial work, which is nearest the place where he maintains his actual abode in which he customarily lives' for 'The official station of each circuit and district judge, including each district judge in the Territories and possessions, shall be that place where a district court is regularly held and at or near which the judge performs a substantial portion of his judicial work, which is nearest the place where he maintains an actual abode in which he customarily lives'. Subsecs. (e), (f). Pub. L. 97-164 added subsecs. (e) and (f). Subsec. (g). Pub. L. 97-164 designated existing undesignated fifth par. as subsec. (g) and substituted 'Each circuit or district judge whose official duty station is not fixed expressly by this section shall notify the Director of the Administrative Office of the United States Courts in writing of his actual abode and official duty station upon his appointment and from time to time thereafter as his official duty station may change' for 'Each circuit judge and each district judge whose official station is not fixed expressly in the second paragraph of this section shall upon his appointment and from time to time thereafter as his official station may change, notify the Director of the Administrative Office of the United States Courts in writing of his actual abode and his official station'. 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1978 - Pub. L. 95-598 directed the amendment of section by inserting references to the United States Bankruptcy Court for the District of Columbia and bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1959 - Pub. L. 86-138 authorized payment to justices and judges of a per diem allowance or a maximum amount for actual expenses of subsistence in place of reasonable maintenance expenses actually incurred, not exceeding $15 per day. 1953 - Act Aug. 8, 1953, increased limit of reimbursable maintenance from $10 to $15 per day. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-234 effective (1) on effective date of regulations to be promulgated not later than 150 days after Jan. 2, 1986, or (2) 180 days after Jan. 2, 1986, whichever occurs first, see section 301(a) of Pub. L. 99-234, set out as a note under section 5701 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. REPORT ON TRANSPORTATION NEEDS Pub. L. 99-550, Sec. 3, Oct. 27, 1986, 100 Stat. 3070, provided that: 'Within one year after the date of enactment of this Act (Oct. 27, 1986), the Director of the Administrative Office of the United States Courts shall prepare, in consultation with the Marshal of the Supreme Court of the United States, the Clerk of the United States Court of Military Appeals and the Court Administrator of the United States Tax Court, and transmit to the Congress, appropriate recommendations concerning the transportation needs of the judicial branch and of courts established pursuant to Article I of the Constitution.' PROMULGATION OF REGULATIONS BY DIRECTOR Director to promulgate regulations effectuating increases in reimbursement for expenses, see section 6 of Pub. L. 87-139, Aug. 14, 1961, 75 Stat. 340, set out as a note under section 604 of this title. -CROSS- CROSS REFERENCES Payment of expenses by Director of Administrative Office of United States Courts, see section 604 of this title. Retired judges not subject to residence restrictions, see section 374 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 460, 604 of this title; title 5 section 5702; title 20 section 4502. ------DocID 36309 Document 171 of 1452------ -CITE- 28 USC Sec. 457 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 457. Records; obsolete papers -STATUTE- The records of district courts and of courts of appeals shall be kept at one or more of the places where court is held. Such places shall be designated by the respective courts except when otherwise directed by the judicial council of the circuit. Papers of any court established by Act of Congress which have become obsolete and are no longer necessary or useful, may be disposed of with the approval of the court concerned in the manner provided by sections 366-380 of Title 44 and in accordance with the rules of the Judicial Conference of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 216, 92 Stat. 2661.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 10, 523a, 523b, (Mar. 3, 1911, ch. 231, Sec. 6, 36 Stat. 1088; June 3, 1930, ch. 396, Sec. 1, 2, 46 Stat. 496). Section consolidates and simplifies sections 10, 523a and 523b of title 28, U.S.C., 1940 ed., relating to filing district court records and destroying obsolete papers and bankruptcy proofs of claims. The revised section enlarges scope of section 10 of title 28, U.S.C., 1940 ed., to include places of keeping records of courts of appeals which was not covered by existing law. The provisions in section 10 of title 28, U.S.C., 1940 ed., that where court is held 'at more than one place' and the place of keeping the records 'is not specially provided by law, they shall be kept at either of the places' designated by the court, was changed to permit the judicial councils of the circuits to make the determination without requiring special enactment of Congress. See section 332 of this title as to purpose and duties of the judicial councils. The provision of section 523a of title 28, U.S.C., 1940 ed., authorizing destruction of records by the Attorney General was rewritten in the second paragraph to give such authority, respecting court records, to the Director of the Administrative Office of the United States Courts. Such Director, under section 604 of this title, now exercises administrative authority over clerks and commissioners. A similar provision with respect to records of United States attorneys and marshals was omitted as superseded by sections 366 and 380 of title 44, U.S.C., 1940 ed., Public Printing and Documents, which prescribe the exclusive method for disposition of such papers. Substantial changes were made in phraseology and arrangement. -REFTEXT- REFERENCES IN TEXT Sections 366-380 of Title 44, referred to in text, were repealed and the provisions thereof reenacted as chapter 33 (Sec. 3301 et seq.) of Title 44, Public Printing and Documents, by Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1238. -MISC2- AMENDMENTS 1978 - Pub. L. 95-598 directed the amendment of section by inserting 'of bankruptcy courts,' after 'The record', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36310 Document 172 of 1452------ -CITE- 28 USC Sec. 458 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 458. Relative of justice or judge ineligible to appointment -STATUTE- No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge of such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 126 (Mar. 3, 1887, ch. 373, Sec. 7, 24 Stat. 555; Aug. 13, 1888, ch. 866, Sec. 7, 25 Stat. 437; Mar. 3, 1911, ch. 231, Sec. 67, 36 Stat. 1105; Dec. 21, 1911, ch. 4, 37 Stat. 46). A provision referring to circuit court employees as of December 21, 1911, was omitted as obsolete. Changes in phraseology were made. -CROSS- CROSS REFERENCES Nepotism in appointment of receiver or trustee, see section 1910 of Title 18, Crimes and Criminal Procedure. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36311 Document 173 of 1452------ -CITE- 28 USC Sec. 459 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 459. Administration of oaths and acknowledgments -STATUTE- Each justice or judge of the United States may administer oaths and affirmations and take acknowledgments. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 264, 385, section 1509 of title 19, U.S.C., 1940 ed., Customs Duties, and section 1114(a) of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1911, ch. 231, Sec. 158, 268, 36 Stat. 1139, 1163; June 17, 1930, ch. 497, title IV, Sec. 509, 46 Stat. 733; Feb. 10, 1939, ch. 2, Sec. 1114(a), 53 Stat. 160; Oct. 21, 1942, ch. 619, title V, Sec. 504(a), (c), 56 Stat. 957; Feb. 25, 1944, ch. 63, title V, Sec. 503, 58 Stat. 72). Section consolidates provisions of sections 264 and 385 of title 28, U.S.C., 1940 ed., section 1509 of title 19, U.S.C., 1940 ed., and section 1114(a) of title 26, U.S.C., 1940 ed., relating to administration of oaths and acknowledgments by judges and courts. The provision of section 385 of title 28, U.S.C., 1940 ed., giving to 'all courts of the United States' power to impose and administer all necessary oaths is the only part of such section in this title. The remainder is incorporated in section 401 of revised title 18, U.S.C. (H.R. 1600, 80th Cong.), Crimes and Criminal Procedure. Section 264 of title 28, U.S.C., 1940 ed., related only to the Court of Claims and provision of such section relating to clerks and deputies is incorporated in section 953 of this title. Section 1509 of title 19, U.S.C., 1940 ed., related only to the Customs Court. Section 1114(a) of title 26, U.S.C., 1940 ed., related only to The Tax Court. That portion of such section authorizing certain employees of The Tax Court to administer oaths and acknowledgments is incorporated in section 953 of this title. For distribution of other provisions thereof, see Distribution Table. The revised section clarifies what was apparently a statutory omission in that no provision was made with reference to the Court of Customs and Patent Appeals, the judges of which now will have the same power respecting administering oaths as judges of other courts. SENATE REVISION AMENDMENT By Senate amendment, all provisions relating to the Tax Court were eliminated, therefore, as finally enacted, section 1114(a) of Title 26, U.S.C., Internal Revenue Code, did not constitute part of the source of this section. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36312 Document 174 of 1452------ -CITE- 28 USC Sec. 460 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 460. Application to other courts -STATUTE- (a) Sections 452 through 459 and section 462 of this chapter shall also apply to the United States Claims Court, to each court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, and to the judges thereof. (b) The official duty station of each judge referred to in subsection (a) which is not otherwise established by law shall be that place where the court holds regular sessions at or near which the judge performs a substantial portion of his judicial work, which is nearest the place where he maintains his actual abode in which he customarily lives. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 908; Oct. 31, 1951, ch. 655, Sec. 43(a), 65 Stat. 725; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 217(a), 92 Stat. 2661; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 115(b)(1), 96 Stat. 31.) -MISC1- HISTORICAL AND REVISION NOTES This section was included to make clear that the provisions of this chapter are equally applicable in Alaska, the Canal Zone and the Virgin Islands in view of definitive section 451 of this title. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Application to other courts' for 'Application to Canal Zone, Guam and Virgin Islands' in section catchline, designated existing provisions as subsec. (a), substituted 'Sections 452 through 459 and section 462 of this chapter shall also apply to the United States Claims Court, to each court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, and to the judges thereof' for 'Sections 452-459 of this chapter shall also apply to the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and the judges thereof', and added subsec. (b). 1978 - Pub. L. 95-598 struck out 'Alaska,' after 'Application to' in section catchline. 1958 - Pub. L. 85-508 struck out provisions which made sections 452 to 459 applicable to the District Court for the Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1951 - Act Oct. 31, 1951, inserted ', Guam' in section catchline, and inserted reference to the District Court of Guam in text. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Nov. 6, 1978, see section 402(d) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, upon admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -CROSS- CROSS REFERENCES Convention on the Settlement of Investment Disputes, exclusive jurisdiction of district courts of the United States, including the courts enumerated in this section, over actions and proceedings for enforcement of arbitration awards under the Convention, regardless of amount in controversy, see section 1650a of Title 22, Foreign Relations and Intercourse. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 9 section 203; title 16 sections 1540, 3375, title 20 section 290i-7; title 22 sections 283gg, 285f, 290g-6, 290k-9, 290k-11, 1650a; title 33 section 1479. ------DocID 36313 Document 175 of 1452------ -CITE- 28 USC Sec. 461 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 461. Adjustments in certain salaries -STATUTE- (a) Effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 of title 5 in the rates of pay under the General Schedule (except as provided in subsection (b)), each salary rate which is subject to adjustment under this section shall be adjusted by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100) equal to the percentage of such salary rate which corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect. (b) Subsection (a) shall not apply to the extent it would reduce the salary of any individual whose compensation may not, under section 1 of article III of the Constitution of the United States, be diminished during such individual's continuance in office. -SOURCE- (Added Pub. L. 94-82, title II, Sec. 205(a)(1), Aug. 9, 1975, 89 Stat. 422, and amended Pub. L. 101-194, title VII, Sec. 704(a)(2)(A), Nov. 30, 1989, 103 Stat. 1769; Pub. L. 101-509, title V, Sec. 529 (title I, Sec. 101(b)(4)(J)), Nov. 5, 1990, 104 Stat. 1427, 1440.) -REFTEXT- REFERENCES IN TEXT The General Schedule, referred to in subsec. (a), is set out under section 5332 of Title 5, Government Organization and Employees. Section 704(a)(1) of the Ethics Reform Act of 1989, referred to in subsec. (a), is section 704(a)(1) of Pub. L. 101-194, which is set out as a note under section 5318 of Title 5. -MISC2- AMENDMENTS 1990 - Subsec. (a). Pub. L. 101-509 substituted '5303' for '5305'. 1989 - Subsec. (a). Pub. L. 101-194 substituted 'corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect' for 'corresponds to the overall average percentage (as set forth in the report transmitted to the Congress under such section 5305) of the adjustments in the rates of pay under such Schedule.' EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 (title III, Sec. 305) of Pub. L. 101-509, set out as a note under section 5301 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101-194 effective Jan. 1, 1991, see section 704(b) of Pub. L. 101-194, set out as a note under section 5318 of Title 5, Government Organization and Employees. SALARY ADJUSTMENTS Pub. L. 101-520, title III, Sec. 321, Nov. 5, 1990, 104 Stat. 2285, provided that: 'Pursuant to section 140 of Public Law 97-92 (set out below), Justices and judges of the United States are authorized during calendar year 1991 to receive a salary adjustment in accordance with 28 U.S.C. section 461.' Pub. L. 101-194, title VII, Sec. 703(a)(3), Nov. 30, 1989, 103 Stat. 1768, set out as a note under section 5318 of Title 5, Government Organization and Employees, provided that effective the first day of the first applicable pay period that begins on or after January 1, 1991, the rate of basic pay for the Chief Justice of the United States, an associate justice of the Supreme Court of the United States, a judge of a United States circuit court, a judge of a district court of the United States, and a judge of the United States Court of International Trade shall be increased in the amount of 25 percent of their respective rates (as last in effect before the increase), rounded to the nearest multiple of $100 (or, if midway between multiples of $100, to the next higher multiple of $100). For purposes of section 140 of Pub. L. 97-92 (set out below), appropriate salary increases were authorized for Federal judges and Justices of the Supreme Court pursuant to section 702(a) of Pub. L. 101-194 which provided that effective for pay periods beginning on or after Nov. 30, 1989, the rate of basic pay for any office or position in the judicial branch of the Government shall be determined as if section 620(b) of Pub. L. 100-440 (5 U.S.C. 5303 note) and section 619(b) of Pub. L. 101-136 (5 U.S.C. 5303 note) had never been enacted, see section 702 of Pub. L. 101-194, set out as a note under section 5303 of Title 5. Pub. L. 100-202, Sec. 101(a) (title IV, Sec. 406), Dec. 22, 1987, 101 Stat. 1329, 1329-26, provided that: 'Pursuant to section 140 of Public Law 97-92 (set out below), during fiscal year 1988, justices and judges of the United States shall receive the same percentage increase in salary accorded to employees paid under the General Schedule (pursuant to 5 U.S.C. 5305).' Pub. L. 99-500, Sec. 101(b) (title IV, Sec. 406), Oct. 18, 1986, 100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, Sec. 101(b) (title IV, Sec. 406), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64, provided that: 'Pursuant to section 140 of Public Law 97-92 (set out below), during fiscal year 1987, justices and judges of the United States shall receive the same percentage increase in salary accorded to employees paid under the General Schedule (pursuant to 5 U.S.C. 5305).' Pub. L. 99-88, title I, Sec. 100, Aug. 15, 1985, 99 Stat. 310, provided in part that: 'Effective on the first day of the first applicable pay period commencing on or after January 1, 1985, each rate of pay subject to adjustment by section 461 of title 28, United States Code, shall be increased by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100), equal to the overall percentage of the adjustment taking effect under section 5305 of title 5, United States Code, in the rates of pay under the General Schedule during fiscal year 1985.' Pub. L. 98-369, div. B, title II, Sec. 2207, July 18, 1984, 98 Stat. 1060, provided that: 'Effective on the first day of the first applicable pay period commencing on or after January 1, 1984, each rate of pay subject to adjustment by section 461 of title 28, United States Code, shall be increased by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100), equal to the overall percentage of the adjustment taking effect under section 5305 of title 5, United States Code, in the rates of pay under the General Schedule during fiscal year 1984.' SPECIFIC CONGRESSIONAL AUTHORIZATION REQUIRED FOR SALARY INCREASES FOR FEDERAL JUDGES AND JUSTICES OF THE SUPREME COURT Pub. L. 97-92, Sec. 140, Dec. 15, 1981, 95 Stat. 1200, provided that: 'Notwithstanding any other provision of law or of this joint resolution (Pub. L. 97-92), none of the funds appropriated by this joint resolution or by any other Act shall be obligated or expended to increase, after the date of enactment of this joint resolution (Dec. 15, 1981), any salary of any Federal judge or Justice of the Supreme Court, except as may be specifically authorized by Act of Congress hereafter enacted: Provided, That nothing in this limitation shall be construed to reduce any salary which may be in effect at the time of enactment of this joint resolution nor shall this limitation be construed in any manner to reduce the salary of any Federal judge or of any Justice of the Supreme Court.' SALARY RATE LIMITATIONS ON USE OF FUNDS 1982 - Limitations on use of funds for fiscal year ending Sept. 30, 1983, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(e) of Pub. L. 97-276, as amended, set out as a note under section 5318 of Title 5, Government Organization and Employees. 1981 - Limitations on use of funds for fiscal year ending Sept. 30, 1982, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see sections 101(g) and 141 of Pub. L. 97-92, set out as a note under section 5318 of Title 5. 1980 - Limitations on use of funds for fiscal year ending Sept. 30, 1981, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101(c) of Pub. L. 96-536, as amended, set out as a note under section 5318 of Title 5. 1979 - Applicability to funds appropriated by any Act for fiscal year ending Sept. 30, 1980, of limitation of section 304 of Pub. L. 95-391 on use of funds to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal to or above level V of the Executive Schedule, see section 101 of Pub. L. 96-86, set out as a note under section 5318 of Title 5. 1978 - Limitations on use of funds for fiscal year ending Sept. 30, 1979, appropriated by any Act to pay the salary or pay of any individual in legislative, executive, or judicial branch in position equal or above level V of the Executive Schedule, see section 304 of Pub. L. 95-391 and section 613 of Pub. L. 95-429, set out as a note under section 5318 of Title 5. 1977 COMPARABILITY ADJUSTMENT NOT EFFECTIVE FOR JUSTICES, JUDGES, COMMISSIONERS, AND REFEREES Pub. L. 95-66, Sec. 1(3), July 11, 1977, 91 Stat. 270, set out as a note under section 5318 of Title 5, Government Organization and Employees, provided that the first adjustment which, but for the enactment of Pub. L. 95-66, would have been made in the salary and rate of pay of justices, judges, commissioners, and referees under this section after July 11, 1977, would not take effect. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 5, 44, 135, 213, 252, 371, 792 of this title. ------DocID 36314 Document 176 of 1452------ -CITE- 28 USC Sec. 462 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 462. Court accommodations -STATUTE- (a) Sessions of courts of the United States (except the Supreme Court) shall be held only at places where the Director of the Administrative Office of the United States Courts provides accommodations, or where suitable accommodations are furnished without cost to the judicial branch. (b) The Director of the Administrative Office of the United States Courts shall provide accommodations, including chambers and courtrooms, only at places where regular sessions of court are authorized by law to be held, but only if the judicial council of the appropriate circuit has approved the accommodations as necessary. (c) The limitations and restrictions contained in subsection (b) of this section shall not prevent the Director from furnishing chambers to circuit judges at places within the circuit other than where regular sessions of court are authorized by law to be held, when the judicial council of the circuit approves. (d) The Director of the Administrative Office of the United States Courts shall provide permanent accommodations for the United States Court of Appeals for the Federal Circuit and for the United States Claims Court only at the District of Columbia. However, each such court may hold regular and special sessions at other places utilizing the accommodations which the Director provides to other courts. (e) The Director of the Administrative Office of the United States Courts shall provide accommodations for probation officers, pretrial service officers, and Federal Public Defender Organizations at such places as may be approved by the judicial council of the appropriate circuit. (f) Upon the request of the Director, the Administrator of General Services is authorized and directed to provide the accommodations the Director requests, and to close accommodations which the Director recommends for closure with the approval of the Judicial Conference of the United States. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 115(c)(1), Apr. 2, 1982, 96 Stat. 31, and amended Pub. L. 100-702, title X, Sec. 1015, Nov. 19, 1988, 102 Stat. 4669.) -MISC1- AMENDMENTS 1988 - Subsec. (c). Pub. L. 100-702 substituted 'within the circuit other than where regular sessions of court are authorized by law to be held,' for 'where Federal facilities are available'. EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 460 of this title. ------DocID 36315 Document 177 of 1452------ -CITE- 28 USC Sec. 463 -EXPCITE- TITLE 28 PART I CHAPTER 21 -HEAD- Sec. 463. Expenses of litigation -STATUTE- Whenever a Chief Justice, justice, judge, officer, or employee of any United States court is sued in his official capacity, or is otherwise required to defend acts taken or omissions made in his official capacity, and the services of an attorney for the Government are not reasonably available pursuant to chapter 31 of this title, the Director of the Administrative Office of the United States Courts may pay the costs of his defense. The Director shall prescribe regulations for such payments subject to the approval of the Judicial Conference of the United States. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 116(a), Apr. 2, 1982, 96 Stat. 32.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36316 Document 178 of 1452------ -CITE- 28 USC CHAPTER 23 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- CHAPTER 23 - CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS -MISC1- Sec. 471. Requirement for a district court civil justice expense and delay reduction plan. 472. Development and implementation of a civil justice expense and delay reduction plan. 473. Content of civil justice expense and delay reduction plans. 474. Review of district court action. 475. Periodic district court assessment. 476. Enhancement of judicial information dissemination. 477. Model civil justice expense and delay reduction plan. 478. Advisory groups. 479. Information on litigation management and cost and delay reduction. 480. Training programs. 481. Automated case information. 482. Definitions. ------DocID 36317 Document 179 of 1452------ -CITE- 28 USC Sec. 471 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 471. Requirement for a district court civil justice expense and delay reduction plan -STATUTE- There shall be implemented by each United States district court, in accordance with this title, a civil justice expense and delay reduction plan. The plan may be a plan developed by such district court or a model plan developed by the Judicial Conference of the United States. The purposes of each plan are to facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5090.) -MISC1- CONGRESSIONAL STATEMENT OF FINDINGS Section 102 of Pub. L. 101-650 provided that: 'The Congress makes the following findings: '(1) The problems of cost and delay in civil litigation in any United States district court must be addressed in the context of the full range of demands made on the district court's resources by both civil and criminal matters. '(2) The courts, the litigants, the litigants' attorneys, and the Congress and the executive branch, share responsibility for cost and delay in civil litigation and its impact on access to the courts, adjudication of cases on the merits, and the ability of the civil justice system to provide proper and timely judicial relief for aggrieved parties. '(3) The solutions to problems of cost and delay must include significant contributions by the courts, the litigants, the litigants' attorneys, and by the Congress and the executive branch. '(4) In identifying, developing, and implementing solutions to problems of cost and delay in civil litigation, it is necessary to achieve a method of consultation so that individual judicial officers, litigants, and litigants' attorneys who have developed techniques for litigation management and cost and delay reduction can effectively and promptly communicate those techniques to all participants in the civil justice system. '(5) Evidence suggests that an effective litigation management and cost and delay reduction program should incorporate several interrelated principles, including - '(A) the differential treatment of cases that provides for individualized and specific management according to their needs, complexity, duration, and probable litigation careers; '(B) early involvement of a judicial officer in planning the progress of a case, controlling the discovery process, and scheduling hearings, trials, and other litigation events; '(C) regular communication between a judicial officer and attorneys during the pretrial process; and '(D) utilization of alternative dispute resolution programs in appropriate cases. '(6) Because the increasing volume and complexity of civil and criminal cases imposes increasingly heavy workload burdens on judicial officers, clerks of court, and other court personnel, it is necessary to create an effective administrative structure to ensure ongoing consultation and communication regarding effective litigation management and cost and delay reduction principles and techniques.' IMPLEMENTATION OF PLANS Section 103(b), (c) of Pub. L. 101-650 provided that: '(b) Implementation. - (1) Except as provided in section 105 of this Act (set out below), each United States district court shall, within three years after the date of the enactment of this title (Dec. 1, 1990), implement a civil justice expense and delay reduction plan under section 471 of title 28, United States Code, as added by subsection (a). '(2) The requirements set forth in sections 471 through 478 of title 28, United States Code, as added by subsection (a), shall remain in effect for seven years after the date of the enactment of this title. '(c) Early Implementation District Courts. - '(1) Any United States district court that, no earlier than June 30, 1991, and no later than December 31, 1991, develops and implements a civil justice expense and delay reduction plan under chapter 23 of title 28, United States Code, as added by subsection (a), shall be designated by the Judicial Conference of the United States as an Early Implementation District Court. '(2) The chief judge of a district so designated may apply to the Judicial Conference for additional resources, including technological and personnel support and information systems, necessary to implement its civil justice expense and delay reduction plan. The Judicial Conference may provide such resources out of funds appropriated pursuant to section 106(a) (Pub. L. 101-650, title I, Dec. 1, 1990, 104 Stat. 5098). '(3) Within 18 months after the date of the enactment of this title (Dec. 1, 1990), the Judicial Conference shall prepare a report on the plans developed and implemented by the Early Implementation District Courts. '(4) The Director of the Administrative Office of the United States Courts shall transmit to the United States district courts and to the Committees on the Judiciary of the Senate and House of Representatives - '(A) copies of the plans developed and implemented by the Early Implementation District Courts; '(B) the reports submitted by such district courts pursuant to section 472(d) of title 28, United States Code, as added by subsection (a); and '(C) the report prepared in accordance with paragraph (3) of this subsection.' DEMONSTRATION PROGRAM Section 104 of Pub. L. 101-650 provided that: '(a) In General. - (1) During the 4-year period beginning on January 1, 1991, the Judicial Conference of the United States shall conduct a demonstration program in accordance with subsection (b). '(2) A district court participating in the demonstration program may also be an Early Implementation District Court under section 103(c) (set out above). '(b) Program Requirement. - (1) The United States District Court for the Western District of Michigan and the United States District Court for the Northern District of Ohio shall experiment with systems of differentiated case management that provide specifically for the assignment of cases to appropriate processing tracks that operate under distinct and explicit rules, procedures, and timeframes for the completion of discovery and for trial. '(2) The United States District Court for the Northern District of California, the United States District Court for the Northern District of West Virginia, and the United States District Court for the Western District of Missouri shall experiment with various methods of reducing cost and delay in civil litigation, including alternative dispute resolution, that such district courts and the Judicial Conference of the United States shall select. '(c) Study of Results. - The Judicial Conference of the United States, in consultation with the Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts, shall study the experience of the district courts under the demonstration program. '(d) Report. - Not later than December 31, 1995, the Judicial Conference of the United States shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report of the results of the demonstration program.' PILOT PROGRAM Section 105 of Pub. L. 101-650 provided that: '(a) In General. - (1) During the 4-year period beginning on January 1, 1991, the Judicial Conference of the United States shall conduct a pilot program in accordance with subsection (b). '(2) A district court participating in the pilot program shall be designated as an Early Implementation District Court under section 103(c) (set out above). '(b) Program Requirements. - (1) Ten district courts (in this section referred to as 'Pilot Districts') designated by the Judicial Conference of the United States shall implement expense and delay reduction plans under chapter 23 of title 28, United States Code (as added by section 103(a)), not later than December 31, 1991. In addition to complying with all other applicable provisions of chapter 23 of title 28, United States Code (as added by section 103(a)), the expense and delay reduction plans implemented by the Pilot Districts shall include the 6 principles and guidelines of litigation management and cost and delay reduction identified in section 473(a) of title 28, United States Code. '(2) At least 5 of the Pilot Districts designated by the Judicial Conference shall be judicial districts encompassing metropolitan areas. '(3) The expense and delay reduction plans implemented by the Pilot Districts shall remain in effect for a period of 3 years. At the end of that 3-year period, the Pilot Districts shall no longer be required to include, in their expense and delay reduction plans, the 6 principles and guidelines of litigation management and cost and delay reduction described in paragraph (1). '(c) Program Study Report. - (1) Not later than December 31, 1995, the Judicial Conference shall submit to the Committees on the Judiciary of the Senate and House of Representatives a report on the results of the pilot program under this section that includes an assessment of the extent to which costs and delays were reduced as a result of the program. The report shall compare those results to the impact on costs and delays in ten comparable judicial districts for which the application of section 473(a) of title 28, United States Code, had been discretionary. That comparison shall be based on a study conducted by an independent organization with expertise in the area of Federal court management. '(2)(A) The Judicial Conference shall include in its report a recommendation as to whether some or all district courts should be required to include, in their expense and delay reduction plans, the 6 principles and guidelines of litigation management and cost and delay reduction identified in section 473(a) of title 28, United States Code. '(B) If the Judicial Conference recommends in its report that some or all district courts be required to include such principles and guidelines in their expense and delay reduction plans, the Judicial Conference shall initiate proceedings for the prescription of rules implementing its recommendation, pursuant to chapter 131 of title 28, United States Code. '(C) If in its report the Judicial Conference does not recommend an expansion of the pilot program under subparagraph (A), the Judicial Conference shall identify alternative, more effective cost and delay reduction programs that should be implemented in light of the findings of the Judicial Conference in its report, and the Judicial Conference may initiate proceedings for the prescription of rules implementing its recommendation, pursuant to chapter 131 of title 28, United States Code.' ------DocID 36318 Document 180 of 1452------ -CITE- 28 USC Sec. 472 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 472. Development and implementation of a civil justice expense and delay reduction plan -STATUTE- (a) The civil justice expense and delay reduction plan implemented by a district court shall be developed or selected, as the case may be, after consideration of the recommendations of an advisory group appointed in accordance with section 478 of this title. (b) The advisory group of a United States district court shall submit to the court a report, which shall be made available to the public and which shall include - (1) an assessment of the matters referred to in subsection (c)(1); (2) the basis for its recommendation that the district court develop a plan or select a model plan; (3) recommended measures, rules and programs; and (4) an explanation of the manner in which the recommended plan complies with section 473 of this title. (c)(1) In developing its recommendations, the advisory group of a district court shall promptly complete a thorough assessment of the state of the court's civil and criminal dockets. In performing the assessment for a district court, the advisory group shall - (A) determine the condition of the civil and criminal dockets; (B) identify trends in case filings and in the demands being placed on the court's resources; (C) identify the principal causes of cost and delay in civil litigation, giving consideration to such potential causes as court procedures and the ways in which litigants and their attorneys approach and conduct litigation; and (D) examine the extent to which costs and delays could be reduced by a better assessment of the impact of new legislation on the courts. (2) In developing its recommendations, the advisory group of a district court shall take into account the particular needs and circumstances of the district court, litigants in such court, and the litigants' attorneys. (3) The advisory group of a district court shall ensure that its recommended actions include significant contributions to be made by the court, the litigants, and the litigants' attorneys toward reducing cost and delay and thereby facilitating access to the courts. (d) The chief judge of the district court shall transmit a copy of the plan implemented in accordance with subsection (a) and the report prepared in accordance with subsection (b) of this section to - (1) the Director of the Administrative Office of the United States Courts; (2) the judicial council of the circuit in which the district court is located; and (3) the chief judge of each of the other United States district courts located in such circuit. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5090.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 473, 474, 478, 479 of this title. ------DocID 36319 Document 181 of 1452------ -CITE- 28 USC Sec. 473 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 473. Content of civil justice expense and delay reduction plans -STATUTE- (a) In formulating the provisions of its civil justice expense and delay reduction plan, each United States district court, in consultation with an advisory group appointed under section 478 of this title, shall consider and may include the following principles and guidelines of litigation management and cost and delay reduction: (1) systematic, differential treatment of civil cases that tailors the level of individualized and case specific management to such criteria as case complexity, the amount of time reasonably needed to prepare the case for trial, and the judicial and other resources required and available for the preparation and disposition of the case; (2) early and ongoing control of the pretrial process through involvement of a judicial officer in - (A) assessing and planning the progress of a case; (B) setting early, firm trial dates, such that the trial is scheduled to occur within eighteen months after the filing of the complaint, unless a judicial officer certifies that - (i) the demands of the case and its complexity make such a trial date incompatible with serving the ends of justice; or (ii) the trial cannot reasonably be held within such time because of the complexity of the case or the number or complexity of pending criminal cases; (C) controlling the extent of discovery and the time for completion of discovery, and ensuring compliance with appropriate requested discovery in a timely fashion; and (D) setting, at the earliest practicable time, deadlines for filing motions and a time framework for their disposition; (3) for all cases that the court or an individual judicial officer determines are complex and any other appropriate cases, careful and deliberate monitoring through a discovery-case management conference or a series of such conferences at which the presiding judicial officer - (A) explores the parties' receptivity to, and the propriety of, settlement or proceeding with the litigation; (B) identifies or formulates the principal issues in contention and, in appropriate cases, provides for the staged resolution or bifurcation of issues for trial consistent with Rule 42(b) of the Federal Rules of Civil Procedure; (C) prepares a discovery schedule and plan consistent with any presumptive time limits that a district court may set for the completion of discovery and with any procedures a district court may develop to - (i) identify and limit the volume of discovery available to avoid unnecessary or unduly burdensome or expensive discovery; and (ii) phase discovery into two or more stages; and (D) sets, at the earliest practicable time, deadlines for filing motions and a time framework for their disposition; (4) encouragement of cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices; (5) conservation of judicial resources by prohibiting the consideration of discovery motions unless accompanied by a certification that the moving party has made a reasonable and good faith effort to reach agreement with opposing counsel on the matters set forth in the motion; and (6) authorization to refer appropriate cases to alternative dispute resolution programs that - (A) have been designated for use in a district court; or (B) the court may make available, including mediation, minitrial, and summary jury trial. (b) In formulating the provisions of its civil justice expense and delay reduction plan, each United States district court, in consultation with an advisory group appointed under section 478 of this title, shall consider and may include the following litigation management and cost and delay reduction techniques: (1) a requirement that counsel for each party to a case jointly present a discovery-case management plan for the case at the initial pretrial conference, or explain the reasons for their failure to do so; (2) a requirement that each party be represented at each pretrial conference by an attorney who has the authority to bind that party regarding all matters previously identified by the court for discussion at the conference and all reasonably related matters; (3) a requirement that all requests for extensions of deadlines for completion of discovery or for postponement of the trial be signed by the attorney and the party making the request; (4) a neutral evaluation program for the presentation of the legal and factual basis of a case to a neutral court representative selected by the court at a nonbinding conference conducted early in the litigation; (5) a requirement that, upon notice by the court, representatives of the parties with authority to bind them in settlement discussions be present or available by telephone during any settlement conference; and (6) such other features as the district court considers appropriate after considering the recommendations of the advisory group referred to in section 472(a) of this title. (c) Nothing in a civil justice expense and delay reduction plan relating to the settlement authority provisions of this section shall alter or conflict with the authority of the Attorney General to conduct litigation on behalf of the United States, or any delegation of the Attorney General. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5091.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a)(3)(B), are set out in the Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 472, 477 of this title. ------DocID 36320 Document 182 of 1452------ -CITE- 28 USC Sec. 474 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 474. Review of district court action -STATUTE- (a)(1) The chief judges of each district court in a circuit and the chief judge of the court of appeals for such circuit shall, as a committee - (A) review each plan and report submitted pursuant to section 472(d) of this title; and (B) make such suggestions for additional actions or modified actions of that district court as the committee considers appropriate for reducing cost and delay in civil litigation in the district court. (2) The chief judge of a court of appeals and the chief judge of a district court may designate another judge of such court to perform the chief judge's responsibilities under paragraph (1) of this subsection. (b) The Judicial Conference of the United States - (1) shall review each plan and report submitted by a district court pursuant to section 472(d) of this title; and (2) may request the district court to take additional action if the Judicial Conference determines that such court has not adequately responded to the conditions relevant to the civil and criminal dockets of the court or to the recommendations of the district court's advisory group. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5093.) ------DocID 36321 Document 183 of 1452------ -CITE- 28 USC Sec. 475 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 475. Periodic district court assessment -STATUTE- After developing or selecting a civil justice expense and delay reduction plan, each United States district court shall assess annually the condition of the court's civil and criminal dockets with a view to determining appropriate additional actions that may be taken by the court to reduce cost and delay in civil litigation and to improve the litigation management practices of the court. In performing such assessment, the court shall consult with an advisory group appointed in accordance with section 478 of this title. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5093.) ------DocID 36322 Document 184 of 1452------ -CITE- 28 USC Sec. 476 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 476. Enhancement of judicial information dissemination -STATUTE- (a) The Director of the Administrative Office of the United States Courts shall prepare a semiannual report, available to the public, that discloses for each judicial officer - (1) the number of motions that have been pending for more than six months and the name of each case in which such motion has been pending; (2) the number of bench trials that have been submitted for more than six months and the name of each case in which such trials are under submission; and (3) the number and names of cases that have not been terminated within three years after filing. (b) To ensure uniformity of reporting, the standards for categorization or characterization of judicial actions to be prescribed in accordance with section 481 of this title shall apply to the semiannual report prepared under subsection (a). -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5093.) ------DocID 36323 Document 185 of 1452------ -CITE- 28 USC Sec. 477 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 477. Model civil justice expense and delay reduction plan -STATUTE- (a)(1) Based on the plans developed and implemented by the United States district courts designated as Early Implementation District Courts pursuant to section 103(c) of the Civil Justice Reform Act of 1990, the Judicial Conference of the United States may develop one or more model civil justice expense and delay reduction plans. Any such model plan shall be accompanied by a report explaining the manner in which the plan complies with section 473 of this title. (2) The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations to the Judicial Conference regarding the development of any model civil justice expense and delay reduction plan. (b) The Director of the Administrative Office of the United States Courts shall transmit to the United States district courts and to the Committees on the Judiciary of the Senate and the House of Representatives copies of any model plan and accompanying report. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5094.) -REFTEXT- REFERENCES IN TEXT Section 103(c) of the Civil Justice Reform Act of 1990 (Pub. L. 101-650), referred to in subsec. (a)(1), is set out as a note under section 471 of this title. ------DocID 36324 Document 186 of 1452------ -CITE- 28 USC Sec. 478 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 478. Advisory groups -STATUTE- (a) Within ninety days after the date of the enactment of this chapter, the advisory group required in each United States district court in accordance with section 472 of this title shall be appointed by the chief judge of each district court, after consultation with the other judges of such court. (b) The advisory group of a district court shall be balanced and include attorneys and other persons who are representative of major categories of litigants in such court, as determined by the chief judge of such court. (c) Subject to subsection (d), in no event shall any member of the advisory group serve longer than four years. (d) Notwithstanding subsection (c), the United States Attorney for a judicial district, or his or her designee, shall be a permanent member of the advisory group for that district court. (e) The chief judge of a United States district court may designate a reporter for each advisory group, who may be compensated in accordance with guidelines established by the Judicial Conference of the United States. (f) The members of an advisory group of a United States district court and any person designated as a reporter for such group shall be considered as independent contractors of such court when in the performance of official duties of the advisory group and may not, solely by reason of service on or for the advisory group, be prohibited from practicing law before such court. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5094.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of this chapter, referred to in subsec. (a), is the date of enactment of Pub. L. 101-650, which was approved Dec. 1, 1990. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 472, 473, 475 of this title. ------DocID 36325 Document 187 of 1452------ -CITE- 28 USC Sec. 479 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 479. Information on litigation management and cost and delay reduction -STATUTE- (a) Within four years after the date of the enactment of this chapter, the Judicial Conference of the United States shall prepare a comprehensive report on all plans received pursuant to section 472(d) of this title. The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations regarding such report to the Judicial Conference during the preparation of the report. The Judicial Conference shall transmit copies of the report to the United States district courts and to the Committees on the Judiciary of the Senate and the House of Representatives. (b) The Judicial Conference of the United States shall, on a continuing basis - (1) study ways to improve litigation management and dispute resolution services in the district courts; and (2) make recommendations to the district courts on ways to improve such services. (c)(1) The Judicial Conference of the United States shall prepare, periodically revise, and transmit to the United States district courts a Manual for Litigation Management and Cost and Delay Reduction. The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations regarding the preparation of and any subsequent revisions to the Manual. (2) The Manual shall be developed after careful evaluation of the plans implemented under section 472 of this title, the demonstration program conducted under section 104 of the Civil Justice Reform Act of 1990, and the pilot program conducted under section 105 of the Civil Justice Reform Act of 1990. (3) The Manual shall contain a description and analysis of the litigation management, cost and delay reduction principles and techniques, and alternative dispute resolution programs considered most effective by the Judicial Conference, the Director of the Federal Judicial Center, and the Director of the Administrative Office of the United States Courts. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5095.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of this chapter, referred to in subsec. (a), is the date of enactment of Pub. L. 101-650, which was approved Dec. 1, 1990. Sections 104 and 105 of the Civil Justice Reform Act of 1990 (Pub. L. 101-650), referred to in subsec. (c)(2), are set out as notes under section 471 of this title. ------DocID 36326 Document 188 of 1452------ -CITE- 28 USC Sec. 480 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 480. Training programs -STATUTE- The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts shall develop and conduct comprehensive education and training programs to ensure that all judicial officers, clerks of court, courtroom deputies, and other appropriate court personnel are thoroughly familiar with the most recent available information and analyses about litigation management and other techniques for reducing cost and expediting the resolution of civil litigation. The curriculum of such training programs shall be periodically revised to reflect such information and analyses. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5095.) ------DocID 36327 Document 189 of 1452------ -CITE- 28 USC Sec. 481 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 481. Automated case information -STATUTE- (a) The Director of the Administrative Office of the United States Courts shall ensure that each United States district court has the automated capability readily to retrieve information about the status of each case in such court. (b)(1) In carrying out subsection (a), the Director shall prescribe - (A) the information to be recorded in district court automated systems; and (B) standards for uniform categorization or characterization of judicial actions for the purpose of recording information on judicial actions in the district court automated systems. (2) The uniform standards prescribed under paragraph (1)(B) of this subsection shall include a definition of what constitutes a dismissal of a case and standards for measuring the period for which a motion has been pending. (c) Each United States district court shall record information as prescribed pursuant to subsection (b) of this section. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5095.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 476 of this title. ------DocID 36328 Document 190 of 1452------ -CITE- 28 USC Sec. 482 -EXPCITE- TITLE 28 PART I CHAPTER 23 -HEAD- Sec. 482. Definitions -STATUTE- As used in this chapter, the term 'judicial officer' means a United States district court judge or a United States magistrate. -SOURCE- (Added Pub. L. 101-650, title I, Sec. 103(a), Dec. 1, 1990, 104 Stat. 5096.) -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 36329 Document 191 of 1452------ -CITE- 28 USC PART II -EXPCITE- TITLE 28 PART II -HEAD- PART II - DEPARTMENT OF JUSTICE -MISC1- Chap. Sec. 31. The Attorney General 501 33. Federal Bureau of Investigation 531 35. United States Attorneys 541 37. United States Marshals 561 39. United States Trustees 581 40. Independent Counsel 591 AMENDMENTS 1986 - Pub. L. 99-554, title I, Sec. 144(g)(2), Oct. 27, 1986, 100 Stat. 3097, substituted '40' for '39' in item relating to Independent Counsel. 1983 - Pub. L. 97-409, Sec. 2(a)(2), Jan. 3, 1983, 96 Stat. 2039, substituted 'Independent Counsel' for 'Special Prosecutor' in item for second chapter 39. 1978 - Pub. L. 95-598, title II, Sec. 224(b), Nov. 6, 1978, 92 Stat. 2664, added item for chapter 39, 'United States Trustees', effective Oct. 1, 1979. Pub. L. 95-521, title VI, Sec. 601(b), Oct. 26, 1978, 92 Stat. 1873, added item for chapter 39 'Special Prosecutor'. 1966 - Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 611, added items for chapters 31 and 33 and redesignated items for former chapters 31 and 33 as 35 and 37, respectively. ------DocID 36330 Document 192 of 1452------ -CITE- 28 USC CHAPTER 31 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- CHAPTER 31 - THE ATTORNEY GENERAL -MISC1- Sec. 501. Executive department. 502. Seal. 503. Attorney General. 504. Deputy Attorney General. 504a. Associate Attorney General. 505. Solicitor General. 506. Assistant Attorneys General. 507. Assistant Attorney General for Administration. 508. Vacancies. 509. Functions of the Attorney General. 510. Delegation of authority. 511. Attorney General to advise the President. 512. Attorney General to advise heads of executive departments. 513. Attorney General to advise Secretaries of military departments. 514. Legal services on pending claims in departments and agencies. 515. Authority for legal proceedings; commission, oath, and salary for special attorneys. 516. Conduct of litigation reserved to Department of Justice. 517. Interests of United States in pending suits. 518. Conduct and argument of cases. 519. Supervision of litigation. 520. Transmission of petitions in United States Claims Court or in United States Court of Appeals for the Federal Circuit; statement furnished by departments. 521. Publication and distribution of opinions. 522. Report of business and statistics. 523. Requisitions. 524. Availability of appropriations. 525. Procurement of law books, reference books, and periodicals; sale and exchange. 526. Authority of the Attorney General to investigate United States attorneys, marshals, and trustees, clerks of court, and others. 527. Establishment of working capital fund. 528. Disqualification of officers and employees of the Department of Justice. 529. Annual report of Attorney General. 530. Payment of travel and transportation expenses of newly appointed special agents. 530A. Authorization of appropriations for travel and related expenses and for health care of personnel serving abroad. AMENDMENTS 1988 - Pub. L. 100-690, title VI, Sec. 6281(b), Nov. 18, 1988, 102 Stat. 4369, added item 530A. 1983 - Pub. L. 98-86, Sec. 2, Aug. 26, 1983, 97 Stat. 492, added item 530. 1982 - Pub. L. 97-258, Sec. 2(g)(1)(A), Sept. 13, 1982, 96 Stat. 1060, substituted 'Availability of appropriations' for 'Appropriations for administrative expenses; notarial fees; meals and lodging of bailiffs' in item 524. Pub. L. 97-164, title I, Sec. 118(b), Apr. 2, 1982, 96 Stat. 33, substituted 'United States Claims Court or in United States Court of Appeals for the Federal Circuit' for 'Court of Claims' in item 520. 1978 - Pub. L. 95-598, title II, Sec. 219(c), Nov. 6, 1978, 92 Stat. 2662, inserted reference to trustees in item 526. Pub. L. 95-521, title VI, Sec. 603(b), Oct. 26, 1978, 92 Stat. 1875, added items 528 and 529. 1977 - Pub. L. 95-139, Sec. 1(b), Oct. 19, 1977, 91 Stat. 1171, added item 504a. 1975 - Pub. L. 93-613, Sec. 1(2), Jan. 2, 1975, 88 Stat. 1975, added item 527. 1966 - Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 611, substituted 'THE ATTORNEY GENERAL' for 'UNITED STATES ATTORNEYS' in chapter heading, 'Executive Department' for 'Appointment of United States attorneys' in item 501, 'Seal' for 'Appointment of assistant United States attorneys' in item 502, 'Attorney General' for 'Appointment of attorneys' in item 503, 'Deputy Attorney General' for 'Tenure and oath of office; removal' in item 504, 'Solicitor General' for 'Residence' in item 505, 'Assistant Attorney General' for 'Vacancies' in item 506, 'Assistant Attorney General for Administration' for 'Duties; supervision by Attorney General' in item 507, 'Vacancies' for 'Salaries' in item 508, 'Functions of the Attorney General' for 'Expenses' in item 509, 'Delegation of authority' for 'Clerical assistants and messengers' in item 510, and added items 511 to 526. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 463 of this title; title 42 section 7192. ------DocID 36331 Document 193 of 1452------ -CITE- 28 USC Sec. 501 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 501. Executive department -STATUTE- The Department of Justice is an executive department of the United States at the seat of Government. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 611.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 291 (less R.S. Sec. 346 (less last 10 words). last 10 words). ------------------------------- The words 'There shall be', referring to the establishment of the Department, are omitted as executed. PRIOR PROVISIONS A prior section 501, acts June 25, 1948, ch. 646, 62 Stat. 909; Mar. 18, 1959, Pub. L. 86-3, Sec. 11(a), 73 Stat. 9, which related to appointment of United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 541 of this title by section 4(c) of Pub. L. 89-554. SPECIFIC AUTHORIZATION OF APPROPRIATIONS REQUIRED FOR DEPARTMENT OF JUSTICE Pub. L. 94-503, title II, Sec. 204, Oct. 15, 1976, 90 Stat. 2427, provided that: 'No sums shall be deemed to be authorized to be appropriated for any fiscal year beginning on or after October 1, 1978, for the Department of Justice (including any bureau, agency, or other similar subdivision thereof) except as specifically authorized by Act of Congress with respect to such fiscal year. Neither the creation of a subdivision in the Department of Justice, nor the authorization of an activity of the Department, any subdivision, or officer thereof, shall be deemed in itself to be an authorization of appropriations for the Department of Justice, such subdivision, or activity, with respect to any fiscal year beginning on or after October 1, 1978.' ------DocID 36332 Document 194 of 1452------ -CITE- 28 USC Sec. 502 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 502. Seal -STATUTE- The Attorney General shall have a seal for the Department of Justice. The design of the seal is subject to the approval of the President. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 611.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 292. R.S. Sec. 353. ------------------------------- The section is rewritten to conform to other statutes authorizing departmental seals. The words 'The seal heretofore provided for the office of the Attorney General shall be' are omitted as obsolete. PRIOR PROVISIONS A prior section 502, act June 25, 1948, ch. 646, 62 Stat. 909, which related to appointment of assistant United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 542 of this title by section 4(c) of Pub. L. 89-554. ------DocID 36333 Document 195 of 1452------ -CITE- 28 USC Sec. 503 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 503. Attorney General -STATUTE- The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. The Attorney General is the head of the Department of Justice. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 291 (last R.S. Sec. 346 (last 10 words). 10 words). ------------------------------- The words 'The President shall appoint, by and with the advice and consent of the Senate have been added to conform the section with the Constitution. See article II, section 2, clause 2. PRIOR PROVISIONS A prior section 503, act June 25, 1948, ch. 646, 62 Stat. 909, which related to appointment of attorneys to assist United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 633, and reenacted in section 543 of this title by section 4(c) of Pub. L. 89-554. ACTIONS CHALLENGING APPOINTMENT OF ATTORNEY GENERAL ON GROUNDS OF VIOLATION OF CONSTITUTIONAL PROVISIONS GOVERNING COMPENSATION AND OTHER EMOLUMENTS Pub. L. 93-178, Sec. 2, Dec. 10, 1973, 87 Stat. 697, provided that: '(a) Any person aggrieved by an action of the Attorney General may bring a civil action in the appropriate district court to contest the constitutionality of the appointment and continuance in office of the Attorney General on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States district courts shall have exclusive jurisdiction, without regard to the sum or value of the matter in controversy, to determine the validity of such appointment and continuance in office. '(b) Any action brought under this section shall be heard and determined by a panel of three judges in accordance with the provisions of section 2284 of title 28, United States Code. Any appeal from the action of a court convened pursuant to such section shall lie to the Supreme Court. '(c) Any judge designated to hear any action brought under this section shall cause such action to be in every way expedited.' -CROSS- CROSS REFERENCES Compensation of Attorney General, see section 5312 of Title 5, Government Organization and Employees. Office of Justice Programs, see section 3711 of Title 42, The Public Health and Welfare. ------DocID 36334 Document 196 of 1452------ -CITE- 28 USC Sec. 504 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 504. Deputy Attorney General -STATUTE- The President may appoint, by and with the advice and consent of the Senate, a Deputy Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 294. Mar. 3, 1903, ch. 1006, Sec. 1 (so much of 2d par. under 'Department of Justice' as provides for appointment, pay, and duties of an assistant to the Attorney General), 32 Stat. 1062. (Uncodified). 1950 Reorg. Plan No. 2, Sec. 3, eff. May 24, 1950, 64 Stat. 1261. ------------------------------- The words 'may appoint' are substituted for 'is authorized to appoint'. So much of the Act of Mar. 3, 1903, as relates to pay is omitted as superseded by Sec. 303(c) of the Act of Aug. 14, 1964, Pub. L. 88-426, 78 Stat. 416, which is codified in section 5314 of title 5, United States Code. PRIOR PROVISIONS A prior section 504, acts June 25, 1948, ch. 646, 62 Stat. 909; Mar. 18, 1959, Pub. L. 86-3, Sec. 11(b), 73 Stat. 9, which related to tenure and oath of office of United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in sections 541 and 544 of this title by section 4(c) of Pub. L. 89-554. -CROSS- CROSS REFERENCES Compensation of Deputy Attorney General, see section 5313 of Title 5, Government Organization and Employees. ------DocID 36335 Document 197 of 1452------ -CITE- 28 USC Sec. 504a -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 504a. Associate Attorney General -STATUTE- The President may appoint, by and with the advice and consent of the Senate, an Associate Attorney General. -SOURCE- (Added Pub. L. 95-139, Sec. 1(a), Oct. 19, 1977, 91 Stat. 1171.) -CROSS- CROSS REFERENCES Compensation of Associate Attorney General, see section 5314 of Title 5, Government Organization and Employees. ------DocID 36336 Document 198 of 1452------ -CITE- 28 USC Sec. 505 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 505. Solicitor General -STATUTE- The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General, learned in the law, to assist the Attorney General in the performance of his duties. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 293. R.S. Sec. 347 (less last sentence). ------------------------------- So much of R.S. Sec. 347 as relates to the pay of the Solicitor General is omitted as superseded by Sec. 303(c) of the Act of Aug. 14, 1964, Pub. L. 88-426, 78 Stat. 416, which is codified in section 5314 of title 5, United States Code. PRIOR PROVISIONS A prior section 505, act June 25, 1948, ch. 646, 62 Stat. 909, which related to residence of United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 545 of this title by section 4(c) of Pub. L. 89-554. -CROSS- CROSS REFERENCES Compensation of Solicitor General, see section 5314 of Title 5, Government Organization and Employees. ------DocID 36337 Document 199 of 1452------ -CITE- 28 USC Sec. 506 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 506. Assistant Attorneys General -STATUTE- The President shall appoint, by and with the advice and consent of the Senate, ten Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612, and amended Pub. L. 95-598, title II, Sec. 218, Nov. 6, 1978, 92 Stat. 2662.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 295. R.S. Sec. 348. July 11, 1890, ch. 667, Sec. 1 (words between 3d and 4th semicolons under 'Department of Justice'), 26 Stat. 265. Mar. 3, 1903, ch. 1006, Sec. 1 (so much of 2d par. under 'Department of Justice' as provides for appointment, pay, and duties of an additional Assistant Attorney General), 32 Stat. 1062. July 16, 1914, ch. 141, Sec. 1 (words between 3d and 4th semicolons under 'Department of Justice'), 38 Stat. 497. Mar. 4, 1915, ch. 141, Sec. 1 (words between 3d and 4th semicolons under 'Department of Justice'), 38 Stat. 1038. June 16, 1933, ch. 101, Sec. 16(b), 48 Stat. 308. Mar. 2, 1943, ch. 7, 57 Stat. 4. (Uncodified). 1950 Reorg. Plan No. 2, Sec. 4, eff. May 24, 1950, 64 Stat. 1261. (Uncodified). 1953 Reorg. Plan No. 4, Sec. 2, eff. June 20, 1953. 67 Stat. 636. 5 U.S.C. 295-1. Sept. 9, 1957, Pub. L. 85-315, Sec. 111, 71 Stat. 637. ------------------------------- The words 'There shall be in the Department of Justice' are omitted as unnecessary as the title of the positions establishes their location in the Department of Justice. The position of sixth Assistant Attorney General, referred to in the Acts of July 16, 1914, and Mar. 4, 1915, was made a permanent position by the Act of Mar. 4, 1915, ch. 141, Sec. 6, 38 Stat. 1049. The number of Assistant Attorneys General referred to in the Act of Mar. 2, 1943, is changed from 'six' to 'nine' to reflect the three additional Assistant Attorneys General authorized by 1950 Reorg. Plan No. 2, 1953 Reorg. Plan No. 4, and the Act of Sept. 9, 1957. The words 'learned in the law' are omitted as unnecessary. Such a requirement is not made of the Attorney General, United States attorneys, or United States judges. (See reviser's note under 28 U.S.C. 501, 1964 ed.) The reference in former section 295 of title 5 to the Assistant Attorneys General assisting the Solicitor General are omitted on authority of the transfer of functions made by 1950 Reorg. Plan No. 2 and 1953 Reorg. Plan No. 4. Provisions of 1950 Reorg. Plan No. 2, Sec. 4, and 1953 Reorg. Plan No. 4, Sec. 2, abolishing positions and transferring incumbents are omitted as executed. Provisions relating to pay of Assistant Attorneys General are omitted as superseded by Sec. 303(d) of the Act of August 14, 1964, Pub. L. 88-426, 78 Stat. 418, which is codified in section 5315 of title 5, United States Code. PRIOR PROVISIONS A prior section 506, act June 25, 1948, ch. 646, 62 Stat. 909, which related to vacancies in the office of United States attorney, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 546 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1978 - Pub. L. 95-598 substituted 'ten' for 'nine'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Nov. 6, 1978, see section 402(d) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -CROSS- CROSS REFERENCES Compensation of Assistant Attorneys General, see section 5315 of Title 5, Government Organization and Employees. ------DocID 36338 Document 200 of 1452------ -CITE- 28 USC Sec. 507 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 507. Assistant Attorney General for Administration -STATUTE- (a) The Attorney General shall appoint, with the approval of the President, an Assistant Attorney General for Administration, who shall perform such duties as the Attorney General may prescribe. (b) The position of Assistant Attorney General for Administration is in the competitive service. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (Uncodified). 1950 Reorg. Plan No. 2, Sec. 5 eff. May 24, 1950, 64 Stat. 1261. ------------------------------- The title of the position was changed to 'Assistant Attorney General for Administration' by Sec. 307 of the Act of Aug. 14, 1964, Pub. L. 88-426, 78 Stat. 432. The words 'competitive service' are substituted for 'classified civil service' because the term 'classified civil service' formerly used to designate the merit system established by the Civil Service Act of 1883 has become ambiguous due to the creation of the 'classified' pay system. The term 'competitive service' is now customarily used, and appears throughout title 5, United States Code, in place of 'classified civil service'. The words 'There shall be in the Department of Justice' are omitted as unnecessary as the title of the position and the fact of appointment by the Attorney General establish the location of the position in the Department of Justice. The last 12 words of section 5 of the Reorganization Plan are omitted on authority of the Act of June 5, 1952, ch. 369, Sec. 1101 (3d proviso), 66 Stat. 121. The salary of the position is now fixed by Sec. 303(e) of the Act of Aug. 14, 1964, Pub. L. 88-426, 78 Stat. 420, which is codified in section 5316 of title 5, United States Code. PRIOR PROVISIONS A prior section 507, acts June 25, 1948, ch. 646, 62 Stat. 910; May 24, 1949, ch. 139, Sec. 71, 63 Stat. 100, which related to duties of United States attorneys, and to supervision by the Attorney General, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in sections 509 and 547 of this title by section 4(c) of Pub. L. 89-554. -CROSS- CROSS REFERENCES Compensation of Assistant Attorney General for Administration, see section 5316 of Title 5, Government Organization and Employees. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 20 section 1132d-1; title 26 section 7422; title 42 section 3211. ------DocID 36339 Document 201 of 1452------ -CITE- 28 USC Sec. 508 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 508. Vacancies -STATUTE- (a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General. (b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612, and amended Pub. L. 95-139, Sec. 2, Oct. 19, 1977, 91 Stat. 1171.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (Uncodified). R.S. Sec. 347 (last sentence). 1953 Reorg. Plan No. 4, Sec. 1, eff. June 20, 1953, 67 Stat. 636. ------------------------------- The last sentence of R.S. Sec. 347 is cited as authority inasmuch as the function contained therein was the function transferred to the Deputy Attorney General by 1953 Reorg. Plan No. 4. The word 'may' is substituted for 'have the power'. The words 'During any period of time' are omitted as unnecessary. PRIOR PROVISIONS A prior section 508, acts June 25, 1948, ch. 646, 62 Stat. 910; Mar. 2, 1955, ch. 9, Sec. 2(a), 69 Stat. 10; Oct. 11, 1962, Pub. L. 87-793, Sec. 1003(a), 76 Stat. 865; Aug. 14, 1964, Pub. L. 88-426, title III, Sec. 306(a)(1), 78 Stat. 428; Oct. 6, 1964, Pub. L. 88-631, Sec. 3(b), 78 Stat. 1008, which related to salaries of United States attorneys, assistant United States attorneys, and special attorneys was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 548 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1977 - Subsec. (b). Pub. L. 95-139 substituted 'the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General' for 'the Assistant Attorneys General and the Solicitor General, in such order of succession as the Attorney General may from time to time prescribe, shall act as Attorney General'. ------DocID 36340 Document 202 of 1452------ -CITE- 28 USC Sec. 509 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 509. Functions of the Attorney General -STATUTE- All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions - (1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice; (2) of the Federal Prison Industries, Inc.; and (3) of the Board of Directors and officers of the Federal Prison Industries, Inc.. (FOOTNOTE 1) (FOOTNOTE 1) So in original. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612, and amended Pub. L. 95-251, Sec. 2(a)(6), Mar. 27, 1978, 92 Stat. 183; Pub. L. 98-473, title II, Sec. 228(a), Oct. 12, 1984, 98 Stat. 2030.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (Uncodified). 1950 Reorg. Plan No. 2, Sec. 1, eff. May 24, 1950, 64 Stat. 1261. ------------------------------- The section is restated to allow incorporation into this chapter. (The Historical and Revision Notes for former section 507, from which this section is partially derived, is set out under section 547 of this title.) PRIOR PROVISIONS A prior section 509, act June 25, 1948, ch. 646, 62 Stat. 910, which related to expenses of United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 549 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1984 - Pub. L. 98-473 inserted 'and' at end of cl. (2), substituted a period for '; and' at end of cl. (3), and struck out cl. (4) which related to functions of Board of Parole. 1978 - Cl. (1). Pub. L. 95-251 substituted 'administrative law judges' for 'hearing examiners'. EFFECTIVE DATE OF 1984 AMENDMENT Section 235(a)(1)(B)(ii)(IV) of Pub. L. 98-473 provided that the amendment made by Pub. L. 98-473 is effective Oct. 12, 1984. -TRANS- EMERGENCY PREPAREDNESS FUNCTIONS For assignment of certain emergency preparedness functions to the Attorney General, see Parts 1, 2, and 11 of Ex. Ord. No. 12656, Nov. 18, 1988, 53 F.R. 47491, set out as a note under section 2251 of Title 50, Appendix, War and National Defense. -MISC5- STRUCTURAL REFORMS TO IMPROVE FEDERAL RESPONSE TO CRIMES AFFECTING FINANCIAL INSTITUTIONS Pub. L. 101-647, title XXV, Sec. 2536-2539, Nov. 29, 1990, 104 Stat. 4883, 4884, provided that: 'SEC. 2536. ESTABLISHMENT OF FINANCIAL INSTITUTIONS CRIME UNIT AND OFFICE OF SPECIAL COUNSEL FOR FINANCIAL INSTITUTIONS CRIME UNIT. '(a) Establishment. - There is established within the Office of the Deputy Attorney General in the Department of Justice a Financial Institutions Fraud Unit to be headed by a special counsel (hereafter in this title (probably means this subtitle which is subtitle D (Sec. 2536-2540) of title XXV of Pub. L. 101-647, which amended section 1441a of Title 12, Banks and Banking, and enacted this note) referred to as the 'Special Counsel'). '(b) Responsibility. - The Financial Institutions Fraud Unit and the Special Counsel shall be responsible to and shall report directly to the Deputy Attorney General. '(c) Sunset. - The provisions of this section shall cease to apply at the end of the 5-year period beginning on the date of the enactment of this Act (Nov. 29, 1990). 'SEC. 2537. APPOINTMENT RESPONSIBILITIES AND COMPENSATION OF THE SPECIAL COUNSEL. '(a) Appointment. - The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate. '(b) Responsibilities. - The Special Counsel shall - '(1) supervise and coordinate investigations and prosecutions within the Department of Justice of fraud and other criminal activity in and against the financial services industry, including, to the extent consistent with the independent counsel provision of chapter 40 of title 28, United States Code, any such activity by any current or former elected official or high-level executive branch official or any member of the immediate family of any such official; '(2) ensure that Federal law relating to civil enforcement, asset seizure and forfeiture, money laundering, and racketeering are used to the fullest extent authorized to recover the proceeds of unlawful activities from persons who have committed crimes in and against the financial services industry; and '(3) ensure that adequate resources are made available for the investigation and prosecution of fraud and other criminal activity in and against the financial services industry. '(c) Compensation. - The Special Counsel shall be paid at the basic pay payable for level V of the Executive Schedule. 'SEC. 2538. ASSIGNMENT OF PERSONNEL. 'There shall be assigned to the Financial Institutions Fraud Unit such personnel as the Attorney General deems necessary to provide an appropriate level of enforcement activity in the area of fraud and other criminal activity in and against the financial services industry. 'SEC. 2539. FINANCIAL INSTITUTIONS FRAUD TASK FORCES. '(a) Establishment. - The Attorney General shall establish such financial institutions fraud task forces as the Attorney General deems appropriate to ensure that adequate resources are made available to investigate and prosecute crimes in or against financial institutions and to recover the proceeds of unlawful activities from persons who have committed fraud or have engaged in other criminal activity in or against the financial services industry. '(b) Supervision. - The Attorney General shall determine how each task force shall be supervised and may provide for the supervision of any task force by the Special Counsel. '(c) Senior Interagency Group. - '(1) Establishment. - The Attorney General shall establish a senior interagency group to assist in identifying the most significant financial institution fraud cases and in allocating investigative and prosecutorial resources where they are most needed. '(2) Membership. - The senior interagency group shall be chaired by the Special Counsel and shall include senior officials from - '(A) the Department of Justice, including representatives of the Federal Bureau of Investigation, the Advisory Committee of United States Attorneys, and other relevant entities; '(B) the Department of the Treasury; '(C) the Office of Thrift Supervision; '(D) the Resolution Trust Corporation; '(E) the Federal Deposit Insurance Corporation; '(F) the Office of the Comptroller of the Currency; '(G) the Board of Governors of the Federal Reserve System; and '(H) the National Credit Union Administration. '(3) Duties. - This senior interagency group shall enhance interagency coordination and assist in accelerating the investigations and prosecution of financial institutions fraud.' AUTHORIZATION OF APPROPRIATIONS FOR HUMANITARIAN EXPENSES INCURRED BY FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT ADMINISTRATION Pub. L. 101-647, title XXXII, Sec. 3201, Nov. 29, 1990, 104 Stat. 4916, provided that: '(a) Federal Bureau of Investigation. - For each fiscal year beginning after September 30, 1990, there is authorized to be appropriated for the Federal Bureau of Investigation $25,000, to be expended in the discretion of the Director of the Federal Bureau of Investigation to pay humanitarian expenses incurred - '(1) by an employee of the Bureau as a result of serious illness, serious injury, or death occurring while on official business; or '(2) by any member of the immediate family of such employee, incident to the serious illness, serious injury, or death of such employee occurring while on official business. '(b) Drug Enforcement Administration. - For each fiscal year beginning after September 30, 1990, there is authorized to be appropriated for the Drug Enforcement Administration $25,000, to be expended at the discretion of the Administrator of the Drug Enforcement Administration to pay humanitarian expenses incurred - '(1) by an employee of the Administration as a result of serious illness, serious injury, or death occurring while on official business; or '(2) by any member of the immediate family of such employee, incident to the serious illness, serious injury, or death of such employee occurring while on official business.' INVESTIGATION OF FINANCIAL INSTITUTIONS; ASSISTANCE OF GOVERNMENT PERSONNEL Pub. L. 101-509, title V, Sec. 528, Nov. 5, 1990, 104 Stat. 1427, provided that: '(a) Notwithstanding any other law and in any fiscal year - '(1) The Attorney General shall accept, and Federal departments and agencies, including the United States Secret Service, the Internal Revenue Service, the Resolution Trust Corporation, and the appropriate Federal banking agency, may provide, without reimbursement, the services of attorneys, law enforcement personnel, and other employees of any other departments or agencies of the Federal Government to assist the Department of Justice, subject to the supervision of the Attorney General, in the investigation and prosecution of fraud or other criminal or unlawful activity in or against any federally insured financial institution or the Resolution Trust Corporation; '(2) any attorney of a department or agency whose services are accepted pursuant to paragraph (1) may, subject to the supervision of the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, and perform any other investigative or prosecutorial function, which United States attorneys are authorized by law to conduct or perform whether or not the attorney is a resident of the district in which the proceeding is brought; and '(3) law enforcement personnel of the United States Secret Service are authorized, subject to the supervision of the Attorney General, to conduct or perform any kind of investigation, civil or criminal, related to fraud or other criminal or unlawful activity in or against any federally insured financial institution or the Resolution Trust Corporation, which the Department of Justice law enforcement personnel are authorized by law to conduct or perform: Provided, That the Secret Service shall not initiate investigations pursuant to this section independent of the supervision of the Attorney General. '(b) This section - '(1) shall not, except as expressly provided herein, alter the authority of any Federal law enforcement agency; and '(2) shall expire with the authority of the Resolution Trust Corporation or its successor. '(c) This section applies notwithstanding any other provision of law enacted by the 101st Congress after October 15, 1990, that by its terms would grant authority to, or otherwise affect the authority of, the Secret Service or other departments or agencies of the Federal Government to conduct or to assist the Department of Justice in conducting investigations or prosecutions of fraud or other criminal or unlawful activity in or against any federally insured financial institution or the Resolution Trust Corporation, and any other such provision shall not be effective in granting or otherwise affecting any such authority.' PROCESSING OF NAME CHECKS AND BACKGROUND RECORDS FOR NONCRIMINAL EMPLOYMENT, LICENSING, AND HUMANITARIAN PURPOSES Pub. L. 101-162, title II, Nov. 21, 1989, 103 Stat. 995, provided: 'That for fiscal year 1990 and hereafter the Chief, United States National Central Bureau, INTERPOL, may establish and collect fees to process name checks and background records for noncriminal employment, licensing, and humanitarian purposes and, notwithstanding the provisions of 31 U.S.C. 3302, credit such fees to this appropriation to be used for salaries and other expenses incurred in providing these services'. EXPENSES OF LEGAL DEFENSE FOR FEDERAL GOVERNMENT EMPLOYEES PERFORMING OFFICIAL DUTIES; FEES AND EXPENSES OF WITNESSES Pub. L. 101-162, title II, Nov. 21, 1989, 103 Stat. 997, provided that: 'That for fiscal year 1990 and hereafter the Attorney General may enter into reimbursable agreements with other Federal Government agencies or components within the Department of Justice to pay expenses of private counsel to defend Federal Government employees sued for actions while performing their official duties: Provided further, That for fiscal year 1990 and hereafter the Attorney General, upon notification to the Committees on Appropriations of the House of Representatives and the Senate in compliance with provisions set forth in section 606 of this Act (Pub. L. 101-162, title VI, Nov. 21, 1989, 103 Stat. 1031), may authorize litigating components to reimburse this account for expert witness expenses when it appears current allocations will be exhausted for cases scheduled for trial in the current fiscal year.' UNIFORMS AND ALLOWANCES Pub. L. 101-162, title II, Sec. 203, Nov. 21, 1989, 103 Stat. 1002, provided that: 'For fiscal year 1990 and hereafter, appropriations for 'Salaries and expenses, General Administration', 'Salaries and expenses, United States Marshals Service', 'Salaries and expenses, Federal Bureau of Investigation', 'Salaries and expenses, Drug Enforcement Administration', 'Salaries and expenses, Immigration and Naturalization Service', and 'Salaries and expenses, Federal Prison System', shall be available for uniforms and allowances therefor as authorized by law (5 U.S.C. 5901-5902).' JUSTICE DEPARTMENT ORGANIZED CRIME AND DRUG ENFORCEMENT ENHANCEMENT Pub. L. 100-690, title I, subtitle B, Nov. 18, 1988, 102 Stat. 4189, provided that: 'SEC. 1051. SHORT TITLE. 'This subtitle may be cited as the 'Justice Department Organized Crime and Drug Enforcement Enhancement Act of 1988'. 'SEC. 1052. FINDINGS. 'The Congress finds that - '(1) organized criminal activity contributes significantly to the importation, distribution, and sale of illegal and dangerous drugs; '(2) trends in drug trafficking patterns necessitate a response that gives appropriate weight to - '(A) the prosecution of drug-related crimes; and '(B) the forfeiture and seizure of assets and other civil remedies used to strike at the inherent strength of the drug networks and organized crime groups; '(3) law enforcement components of the Department of Justice should give high priority to the enforcement of civil sanctions against drug networks and organized crime groups; and '(4) the structure of the Department of Justice Criminal Division needs to be reviewed in order to determine the most effective structure to address such drug-related problems. 'SEC. 1053. CIVIL ENFORCEMENT REPORT. '(a) Report. - Not later than 1 year after the date of the enactment of this title (Nov. 18, 1988), the Director of National Drug Control Policy (the Director) in consultation with the Attorney General, shall report to the Congress on the necessity to establish a new division or make other organizational changes within the Department of Justice in order to promote better civil and criminal law enforcement. In preparing such report, the Director shall consider restructuring and consolidating one or more of the following divisions and programs - '(1) the Organized Crime and Racketeering Section of the Criminal Division and all subordinate strike forces therein; '(2) the Narcotic and Dangerous Drug Section of the Criminal Division; '(3) the Asset Forfeiture Office of the Criminal Division; and '(4) the Organized Crime Drug Enforcement Task Force Program;(.) '(b) Legislative Recommendations. - The report submitted under subsection (a) shall include appropriate legislative recommendations for the Congress. 'SEC. 1054. CIVIL ENFORCEMENT ENHANCEMENT. '(a) Duty of Attorney General. - The Attorney General shall insure that each component of the Department of Justice having criminal law enforcement responsibilities with respect to the prosecution of organized crime and controlled substances violations, including each United States Attorney's Office, attaches a high priority to the enforcement of civil statutes creating ancillary sanctions and remedies for such violations, such as civil penalties and actions, forfeitures, injunctions and restraining orders, and collection of fines. '(b) Duty of Associate Attorney General. - The Associate Attorney General shall be responsible for implementing the policy set forth in this subsection. '(c) Authorization of Appropriations. - (1) There are authorized to be appropriated $3,000,000 for salaries and expenses to the Department of Justice General Legal Activities Account and $3,000,000 for salaries and expenses for United States Attorneys for fiscal year 1989. '(2) Any appropriation of funds authorized under paragraph (1) shall be - '(A) in addition to any appropriations requested by the President in the 1989 fiscal year budget submitted by the President to the Congress on February 18, 1988, or provided in regular appropriations Acts or continuing resolutions for the fiscal year ending September 30, 1989; and '(B) used to increase the number of field attorneys and related support staff over such personnel levels employed at the Department of Justice on September 30, 1988. '(3) Any increase in full-time equivalent positions described under paragraph (2)(B) shall be exclusively used for asset forfeiture and civil enforcement and be assigned to appropriate field offices of the Organized Crime and Racketeering Section and the Organized Crime Drug Enforcement Task Forces. '(d) Reporting Requirement. - The Attorney General, at the end of each such fiscal year, shall file a report with the Congress setting forth the extent of such enforcement efforts, as well as the need for any enhancements in resources necessary to carry out this policy. 'SEC. 1055. EXPENSES OF TASK FORCES. '(a) Appropriations and Reimbursements Procedure. - Beginning in fiscal year 1990, the Attorney General in his budget shall submit a separate appropriations request for expenses relating to all Federal agencies participating in the Organized Crime Drug Enforcement Task Forces. Such appropriations shall be made to the Department of Justice's Interagency Law Enforcement Appropriation Account for the Attorney General to make reimbursements to the involved agencies as necessary. '(b) Enhancement of Field Activities. - The appropriations and reimbursements procedure described under subsection (a) shall - '(1) provide for the flexibility of the Task Forces which is vital to success; '(2) permit Federal law enforcement resources to be shifted in response to changing patterns of organized criminal drug activities; '(3) permit the Attorney General to reallocate resources among the organizational components of the Task Forces and between regions without undue delay; and '(4) ensure that the Task Forces function as a unit, without the competition for resources among the participating agencies that would undermine the overall effort.' IMPACT ANALYSIS OF ADDITIONAL RESOURCES TO CERTAIN COMPONENTS OF FEDERAL CRIMINAL JUSTICE SYSTEM; STUDY BY COMPTROLLER GENERAL AND REPORT TO CONGRESS Pub. L. 100-690, title IX, Sec. 9201, Nov. 18, 1988, 102 Stat. 4535, provided that: '(a) Study. - The Comptroller General of the United States shall conduct a study - '(1) to determine the impact of additional resources to certain components of the Federal criminal justice system on other components of the system and of enhanced or new Federal criminal penalties or laws on the agencies and offices of the Department of Justice, the Federal courts, and other components of the Federal criminal justice system; and '(2) use the data derived from the impact analysis to develop a model that can be applied by Congress and Federal agencies and departments to help determine appropriate staff and budget responses in order to maintain balance in the Federal criminal justice system and effectively implement changes in resources, laws, or penalties. '(b) Report to Congress. - The Comptroller General shall report the results and recommendations derived from the study required by subsection (a) no later than 1 year after the date of enactment of this Act (Nov. 18, 1988).' FEDERAL ENVIRONMENTAL OR NATURAL RESOURCE LAWS; INVESTIGATIONS RESPECTING, ETC. Pub. L. 96-132, Sec. 12, Nov. 30, 1979, 93 Stat. 1048, provided that: 'The Attorney General may, with the concurrence of any agency or Department with primary enforcement responsibility for an environmental or natural resource law, investigate any violation, of an environmental or natural resource law of the United States, and bring such actions as are necessary to enforce such laws. This section does not affect the criminal law enforcement authority of the Attorney General.' POSITIONS IN DRUG ENFORCEMENT ADMINISTRATION; GRADES EXCEPTED FROM COMPETITIVE SERVICE; VACANCIES; REMOVAL, SUSPENSION, OR REDUCTION IN RANK OR PAY; RATE OF PAY Pub. L. 94-503, title II, Sec. 201, Oct. 15, 1976, 90 Stat. 2425, provided that: '(a) Effective beginning one year after date of the enactment of this Act (Oct. 15, 1976), the following positions in the Drug Enforcement Administration (and individuals holding such positions) are hereby excepted from the competitive service: '(1) positions at GS-16, 17, and 18 of the General Schedule under section 5332(a) of title 5, United States Code, and '(2) positions at GS-15 of the General Schedule which are designated as - '(A) regional directors, '(B) office heads, or '(C) executive assistants (or equivalent positions) under the immediate supervision of the Administrator (or the Deputy Administrator) of the Drug Enforcement Administration. '(b) Effective during the one year period beginning on the date of the enactment of this Act (Oct. 15, 1976), vacancies in positions in the Drug Enforcement Administration (other than positions described in subsection (a)) at a grade not lower than GS-14 shall be filled - '(1) first, from applicants who have continuously held positions described in subsection (a) since the date of the enactment of this Act and who have applied for, and are qualified to fill, such vacancies, and '(2) then, from other applicants in the order which would have occurred in the absence of this subsection. Any individual placed in a position under paragraph (1) shall be paid in accordance with subsection (d). '(c)(1) Effective beginning one year after the date of the enactment of this Act (Oct. 15, 1976), an individual in a position described in subsection (a) may be removed, suspended for more than 30 days, furloughed without pay, or reduced in rank or pay by the Administrator of the Drug Enforcement Administration if - '(A) such individual has been employed in the Drug Enforcement Administration for less than the one-year period immediately preceding the date of such action, and '(B) the Administrator determines, in his discretion, that such action would promote the efficiency of the service. '(2) Effective beginning one year after the date of the enactment of this Act (Oct. 15, 1976), an individual in a position described in subsection (a) may be reduced in rank or pay by the Administrator within the Drug Enforcement Administration if - '(A) such individual has been continuously employed in such position since the date of the enactment of this Act, and '(B) the Administrator determines, in his discretion, that such action would promote the efficiency of the service. Any individual reduced in rank or pay under this paragraph shall be paid in accordance with subsection (d). '(3) The provisions of sections 7512 and 7701 of title 5, United States Code, and otherwise applicable Executive orders, shall not apply with respect to actions taken by the Administrator under paragraph (1) or any reduction in rank or pay (under paragraph (2) or otherwise) of any individual in a position described in subsection (a). '(d) Any individual whose pay is to be determined in accordance with this subsection shall be paid basic pay at the rate of basic pay he was receiving immediately before he was placed in a position under subsection (b)(1) or reduced in rank or pay under subsection (c)(2), as the case may be, until such time as the rate of basic pay he would receive in the absence of this subsection exceeds such rate of basic pay. The provisions of section 5337 of title 5, United States Code, shall not apply in any case in which this subsection applies.' (References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5.) REORGANIZATION PLAN NO. 1 OF 1968 Eff. Apr. 8, 1968, 33 F.R. 5611, 82 Stat. 1367, as amended Reorg. Plan No. 2 of 1973, Sec. 3, eff. July 1, 1973, 38 F.R. 15932, 87 Stat. 1091 Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, February 7, 1968, pursuant to the provisions of chapter 9 of title 5 of the United States Code. NARCOTICS; DRUG ABUSE CONTROL SECTION 1. TRANSFER OF FUNCTIONS FROM TREASURY DEPARTMENT There are hereby transferred to the Attorney General: (a) Those functions of the Secretary of the Treasury which are administered through or with respect to the Bureau of Narcotics. (b) All functions of the Bureau of Narcotics, of the Commissioner of Narcotics, and of all other officers, employees and agencies of the Bureau of Narcotics. (c) So much of other functions or parts of functions of the Secretary of the Treasury and the Department of the Treasury as is incidental to or necessary for the performance of the functions transferred by paragraphs (a) and (b) of this section. SEC. 2. TRANSFER OF FUNCTIONS FROM THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE There are hereby transferred to the Attorney General: (a) The functions of the Secretary of Health, Education, and Welfare under the Drug Abuse Control Amendments of 1965 (Public Law 89-74; 79 Stat. 226) (see Short Title note under 21 U.S.C. 301), except the function of regulating the counterfeiting of those drugs which are not controlled 'depressant or stimulant' drugs. (b) So much of other functions or parts of functions of the Secretary of Health, Education, and Welfare, and of the Department of Health, Education, and Welfare, as is incidental to or necessary for the performance of the functions transferred by paragraph (a) of this section. SEC. 3. BUREAU OF NARCOTICS AND DANGEROUS DRUGS (a) (Repealed. Reorg. Plan No. 2 of 1973, Sec. 3, 38 F.R. 15932, 87 Stat. 1091, eff. July 1, 1973. Subsection established the Bureau of Narcotics and Dangerous Drugs in the Department of Justice and provided that it be headed by a Director appointed by the Attorney General.) (b) There are hereby established in the Department of Justice, in addition to the positions transferred to that Department by this Plan, four new positions, appointment to which shall be made by the Attorney General in the competitive service. Two of those positions shall have compensation at the rate now or hereafter provided for GS-18 positions of the General Schedule and the other two shall have compensation at the rate now or hereafter provided for GS-16 positions of the General Schedule (5 U.S.C. 5332). Each such position shall have such title and duties as the Attorney General shall prescribe. (References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5.) SEC. 4. ABOLITION The Bureau of Narcotics in the Department of the Treasury, including the office of Commissioner of Narcotics (21 U.S.C. 161), is hereby abolished. The Secretary of the Treasury shall make such provision as he may deem necessary with respect to terminating those affairs of the Bureau of Narcotics not otherwise provided for in this reorganization plan. SEC. 5. PERFORMANCE OF TRANSFERRED FUNCTIONS The Attorney General may from time to time make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this reorganization plan by any officer, employee, or organizational entity of the Department of Justice. SEC. 6. INCIDENTAL TRANSFERS (a) There are hereby transferred to the Department of Justice all of the positions, personnel, property, records, and unexpended balances of appropriations, allocations, and other funds, available or to be made available, (1) of the Bureau of Narcotics, and (2) of the Bureau of Drug Abuse Control of the Department of Health, Education, and Welfare. (b) There shall be transferred to the Department of Justice, at such time or times as the Director of the Bureau of the Budget shall direct, so much as the Director shall determine of other positions, personnel, property, records and unexpended balances of appropriations, allocations, and other funds of the Department of the Treasury and of the Department of Health, Education, and Welfare employed, used, held, available or to be made available in connection with functions transferred by the provisions of this reorganization plan. (c) Such further measures and dispositions as the Director of the Bureau of the Budget shall deem to be necessary in order to effectuate the transfers provided in this section shall be carried out in such manner as he may direct and by such agencies as he shall designate. MESSAGE OF THE PRESIDENT To the Congress of the United States: In my first Reorganization Plan of 1968, I call for the creation of a new and powerful Bureau of Narcotics and Dangerous Drugs. With this action, America will serve notice to the pusher and the peddler that their criminal acts must stop. No matter how well organized they are, we will be better organized. No matter how well they have concealed their activities, we will root them out. Today, Federal investigation and enforcement of our narcotics laws are fragmented. One major element - the Bureau of Narcotics - is in the Treasury Department and responsible for the control of marihuana and narcotics such as heroin. Another - the Bureau of Drug Abuse Control - is in the Department of Health, Education, and Welfare, and is responsible for the control of dangerous drugs including depressants, stimulants, and hallucinogens such as LSD. Neither is located in the agency which is primarily concerned with Federal law enforcement - the Department of Justice. This separation of responsibilities - despite the relentless and dedicated efforts of the agents of each Bureau - has complicated and hindered our response to a national menace. For example, more than nine out of ten seizures of LSD made by the Bureau of Drug Abuse Control have also turned up marihuana - but that Bureau has no jurisdiction over marihuana. In many instances, we are confronted by well organized disciplined and resourceful criminals who reap huge profits at the expense of their unfortunate victims. The response of the Federal Government must be unified. And it must be total. Today, in my Message on Crime, I recommended strong new laws to control dangerous drugs. I also recommended an increase of more than thirty percent in the number of Federal agents enforcing the narcotic and dangerous drug laws. I now propose that a single Bureau of Narcotics and Dangerous Drugs be established in the Department of Justice to administer those laws and to bring to the American people the most efficient and effective Federal enforcement machinery we can devise. Under this Reorganization Plan the Attorney General will have full authority and responsibility for enforcing the Federal laws relating to narcotics and dangerous drugs. The new Bureau of Narcotics and Dangerous Drugs, to be headed by a Director appointed by the Attorney General, will: - consolidate the authority and preserve the experience and manpower of the Bureau of Narcotics and the Bureau of Drug Abuse Control. - work with states and local governments in their crackdown on illegal trade in drugs and narcotics, and help to train local agents and investigators. - maintain worldwide operations, working closely with other nations, to suppress the trade in illicit narcotics and marihuana. - conduct an extensive campaign of research and a nationwide public education program on drug abuse and its tragic effects. The Plan I forward today moves in the direction recommended by two distinguished groups: - 1949 Hoover Commission. - the 1963 Presidential Advisory Commission on Narcotic and Drug Abuse. This Administration and this Congress have the will and the determination to stop the illicit traffic in drugs. But we need more than the will and the determination. We need a modern and efficient instrument of Government to transform our plans into action. That is what this Reorganization Plan calls for. The Plan has been prepared in accordance with chapter 9 of title 5 of the United States Code. I have found, after investigation, that each reorganization included in the plan is necessary to accomplish one or more of the purposes set forth in section 901(a) of title 5 of the United States Code. I have also found that, by reason of these reorganizations, it is necessary to include in the accompanying plan provisions for the appointment and compensation of the five new positions as specified in section 3 of the plan. The rates of compensation fixed for these new positions are those which I have found to prevail in respect of comparable positions in the Executive Branch of the Government. Should the reorganization I propose take effect, they will make possible more effective and efficient administration of Federal law enforcement functions. It is not practicable at this time, however, to itemize the reduction in expenditures which may result. I recommend that the Congress allow this urgently needed and important Reorganization Plan to become effective. Lyndon B. Johnson. The White House, February 7, 1968 REORGANIZATION PLAN NO. 2 OF 1973 Effective July 1, 1973, 38 F.R. 15932, 87 Stat. 1091, as amended Pub. L. 93-253, Sec. 1, Mar. 16, 1974, 88 Stat. 50 Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, March 28, 1973, pursuant to the provisions of Chapter 9 of Title 5 of the United States Code. LAW ENFORCEMENT IN ILLICIT DRUG ACTIVITIES SECTION 1. TRANSFERS TO THE ATTORNEY GENERAL There are hereby transferred from the Secretary of the Treasury, the Department of the Treasury, and any other officer or any agency of the Department of the Treasury, to the Attorney General all intelligence, investigative, and law enforcement functions, vested by law in the Secretary, the Department, officers, or agencies which relate to the suppression of illicit traffic in narcotics, dangerous drugs, or marihuana, except that the Secretary shall retain, and continue to perform, those functions, to the extent that they relate to searches and seizures of illicit narcotics, dangerous drugs, or marihuana or to the apprehension or detention of persons in connection therewith, at regular inspection locations at ports of entry or anywhere along the land or water borders of the United States: Provided, that any illicit narcotics, dangerous drugs, marihuana, or related evidence seized, and any person apprehended or detained by the Secretary or any officer of the Department of the Treasury, pursuant to the authority retained in them by virtue of this section, shall be turned over forthwith to the jurisdiction of the Attorney General: Provided further, that nothing in this section shall be construed as limiting in any way any authority vested by law in the Secretary of the Treasury, the Department of the Treasury, or any other officer or any agency of that Department on the effective date of this Plan with respect to contraband other than illicit narcotics, dangerous drugs, and marihuana: and Provided further, that nothing in this section shall be construed as limiting in any way any authority the Attorney General, the Department of Justice, or any other officer or any agency of that Department may otherwise have to make investigations or engage in law enforcement activities, including activities relating to the suppression of illicit traffic in narcotics, dangerous drugs, and marihuana, at ports of entry or along the land and water borders of the United States. SEC. 2. TRANSFERS TO THE SECRETARY OF THE TREASURY (Repealed. Pub. L. 93-253, Sec. 1(a)(1), (b), Mar. 16, 1974, 88 Stat. 50, eff. July 1, 1973. Section had provided for transfer to Secretary of Treasury of functions vested in Attorney General, Department of Justice, or any other officer of such Department respecting inspection at ports of entry of persons, and documents of persons, entering or leaving the United States.) SEC. 3. ABOLITION The Bureau of Narcotics and Dangerous Drugs, including the Office of Director thereof, is hereby abolished, and section 3(a) of Reorganization Plan No. 1 of 1968 is hereby repealed. The Attorney General shall make such provision as he may deem necessary with respect to terminating those affairs of the Bureau of Narcotics and Dangerous Drugs not otherwise provided for in this Reorganization Plan. SEC. 4. DRUG ENFORCEMENT ADMINISTRATION There is established in the Department of Justice an agency which shall be known as the Drug Enforcement Administration, hereinafter referred to as 'the Administration.' SEC. 5. OFFICERS OF THE ADMINISTRATION (a) There shall be at the head of the Administration the Administrator of Drug Enforcement, hereinafter referred to as 'the Administrator.' The Administrator shall be appointed by the President by and with the advice and consent of the Senate, and shall receive compensation at the rate now or hereafter prescribed by law for positions of level III of the Executive Schedule Pay Rates (5 U.S.C. 5314). He shall perform such functions as the Attorney General shall from time to time direct. (b) There shall be in the Administration a Deputy Administrator of the Drug Enforcement Administration, hereinafter referred to as 'the Deputy Administrator,' who shall be appointed by the President by and with the advice and consent of the Senate, shall perform such functions as the Attorney General may from time to time direct, and shall receive compensation at the rate now or hereafter prescribed by law for positions of level V of the Executive Schedule Pay Rates (5 U.S.C. 5316). (c) The Deputy Administrator or such other official of the Department of Justice as the Attorney General shall from time to time designate shall act as Administrator during the absence or disability of the Administrator or in the event of a vacancy in the office of Administrator. SEC. 6. PERFORMANCE OF TRANSFERRED FUNCTIONS The Attorney General may from time to time make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this Reorganization Plan by any officer, employee, or agency of the Department of Justice. (Section, former subsec. (a) designation, and subsec. (b) providing for performance of functions transferred to Secretary of Treasury by any officer, employee, or agency of Treasury Department, repealed by Pub. L. 93-253, Sec. 1(a)(2), (b), Mar. 16, 1974, 88 Stat. 50, eff. July 1, 1973.) SEC. 7. COORDINATION The Attorney General, acting through the Administrator and such other officials of the Department of Justice as he may designate, shall provide for the coordination of all drug law enforcement functions vested in the Attorney General so as to assure maximum cooperation between and among the Administration, the Federal Bureau of Investigation, and other units of the Department involved in the performance of these and related functions. SEC. 8. INCIDENTAL TRANSFERS (a) So much of the personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available or to be made available in connection with the functions transferred to the Attorney General and to the Secretary of the Treasury by this Reorganization Plan as the Director of the Office of Management and Budget shall determine shall be transferred to the Department of Justice and to the Department of the Treasury, respectively, at such time or times as the Director shall direct. (b) Such further measures and dispositions as the Director of the Office of Management and Budget shall deem to be necessary in order to effectuate transfers referred to in subsection (a) of this section shall be carried out in such manner as he shall direct and by such Federal agencies as he shall designate. SEC. 9. INTERIM OFFICERS (a) The President may authorize any person who, immediately prior to the effective date of this Reorganization Plan, held a position in the Executive Branch of the Government to act as Administrator until the office of Administrator is for the first time filled pursuant to the provisions of this Reorganization Plan or by recess appointment as the case may be. (b) The President may similarly authorize any such person to act as Deputy Administrator. (c) The President may authorize any person who serves in an acting capacity under the foregoing provisions of this section to receive the compensation attached to the office in respect to which he so serves. Such compensation, if authorized, shall be in lieu of, but not in addition to, other compensation from the United States to which such person may be entitled. SEC. 10. EFFECTIVE DATE The provisions of this Reorganization Plan shall take effect as provided by section 906(a) of title 5 of the United States Code or on July 1, 1973, whichever is later. MESSAGE OF THE PRESIDENT To the Congress of the United States: Drug abuse is one of the most vicious and corrosive forces attacking the foundations of American society today. It is a major cause of crime and a merciless destroyer of human lives. We must fight it with all of the resources at our command. This Administration has declared all-out, global war on the drug menace. As I reported to the Congress earlier this month in my State of the Union message, there is evidence of significant progress on a number of fronts in that war. Both the rate of new addiction to heroin and the number of narcotic-related deaths showed an encouraging downturn last year. More drug addicts and abusers are in treatment and rehabilitation programs than ever before. Progress in pinching off the supply of illicit drugs was evident in last year's stepped-up volume of drug seizures worldwide - which more than doubled in 1972 over the 1971 level. Arrests of traffickers have risen by more than one-third since 1971. Prompt Congressional action on my proposal for mandatory minimum sentences for pushers of hard drugs will help ensure that convictions stemming from such arrests lead to actual imprisonment of the guilty. Notwithstanding these gains, much more must be done. The resilience of the international drug trade remains grimly impressive - current estimates suggest that we still intercept only a small fraction of all the heroin and cocaine entering this country. Local police still find that more than one of every three suspects arrested for street crimes is a narcotic abuser or addict. And the total number of Americans addicted to narcotics, suffering terribly themselves and inflicting their suffering in countless others, still stands in the hundreds of thousands. A UNIFIED COMMAND FOR DRUG ENFORCEMENT Seeking ways to intensify our counter-offensive against this menace, I am asking the Congress today to join with this Administration in strengthening and streamlining the Federal drug law enforcement effort. Funding for this effort has increased sevenfold during the past five years, from $36 million in fiscal year 1969 to $257 million in fiscal year 1974 - more money is not the most pressing enforcement need at present. Nor is there a primary need for more manpower working on the problem, over 2100 new agents having already been added to the Federal drug enforcement agencies under this Administration, an increase of more than 250 percent over the 1969 level. The enforcement work could benefit significantly, however, from consolidation of our anti-drug forces under a single unified command. Right now the Federal Government is fighting the war on drug abuse under a distinct handicap, for its efforts are those of a loosely confederated alliance facing a resourceful, elusive, worldwide enemy. Admiral Mahan, the master naval strategist, described this handicap precisely when he wrote that 'Granting the same aggregate of force, it is never as great in two hands as in one, because it is not perfectly concentrated.' More specifically, the drug law enforcement activities of the United States now are not merely in two hands but in half a dozen. Within the Department of Justice, with no overall direction below the level of the Attorney General, these fragmented forces include the Bureau of Narcotics and Dangerous Drugs, the Office for Drug Abuse Law Enforcement, the Office of National Narcotics Intelligence, and certain activities of the Law Enforcement Assistance Administration. The Treasury Department is also heavily engaged in enforcement work through the Bureau of Customs. This aggregation of Federal activities has grown up rapidly over the past few years in response to the urgent need for stronger anti-drug measures. It has enabled us to make a very encouraging beginning in the accelerated drug enforcement drive of this Administration. But it also has serious operational and organizational shortcomings. Certainly the cold-blooded underworld networks that funnel narcotics from suppliers all over the world into the veins of American drug victims are no respecters of the bureaucratic dividing lines that now complicate our anti-drug efforts. On the contrary, these modern-day slave traders can derive only advantage from the limitations of the existing organizational patchwork. Experience has now given us a good basis for correcting those limitations, and it is time to do so. I therefore propose creation of a single, comprehensive Federal agency within the Department of Justice to lead the war against illicit drug traffic. Reorganization Plan No. 2 of 1973, which I am transmitting to the Congress with this message, would establish such an agency, to be called the Drug Enforcement Administration. It would be headed by an Administrator reporting directly to the Attorney General. The Drug Enforcement Administration would carry out the following anti-drug functions, and would absorb the associated manpower and budgets: - All functions of the Bureau of Narcotics and Dangerous Drugs (which would be abolished as a separate entity by the reorganization plan); - Those functions of the Bureau of Customs pertaining to drug investigations and intelligence (to be transferred from the Treasury Department to the Attorney General by the reorganization plan). - All functions of the Office of Drug Abuse Law Enforcement; and - All functions of the Office of National Narcotics Intelligence. Merger of the latter two organizations into the new agency would be effected by an executive order dissolving them and transferring their functions, to take effect upon approval of Reorganization Plan No. 2 by the Congress. Drug law enforcement research currently funded by the Law Enforcement Assistance Administration and other agencies would also be transferred to the new agency by executive action. The major responsibility of the Drug Enforcement Administration would thus include: - development of overall Federal drug law enforcement strategy, programs, planning, and evaluation; - full investigation and preparation for prosecution of suspects for violations under all Federal drug trafficking laws; - full investigation and preparation for prosecution of suspects connected with illicit drugs seized at U.S. ports-of-entry and international borders; - conduct of all relations with drug law enforcement officials of foreign governments, under the policy guidance of the Cabinet Committee on International Narcotics Control; - full coordination and cooperation with State and local law enforcement officials on joint drug enforcement efforts; and - regulation of the legal manufacture of drugs and other controlled substances under Federal regulations. The Attorney General, working closely with the Administrator of this new agency, would have authority to make needed program adjustments. He would take steps within the Department of Justice to ensure that high priority emphasis is placed on the prosecution and sentencing of drug traffickers following their apprehension by the enforcement organization. He would also have the authority and responsibility for securing the fullest possible cooperation-particularly with respect to collection of drug intelligence - from all Federal departments and agencies which can contribute to the anti-drug work, including the Internal Revenue Service and the Federal Bureau of Investigation. My proposals would make possible a more effective antidrug role for the FBI, especially in dealing with the relationship between drug trafficking and organized crime. I intend to see that the resources of the FBI are fully committed to assist in supporting the new Drug Enforcement Administration. The consolidation effected under Reorganization Plan No. 2 would reinforce the basic law enforcement and criminal justice mission of the Department of Justice. With worldwide drug law enforcement responsibilities no longer divided among several organizations in two different Cabinet departments, more complete and cumulative drug law enforcement intelligence could be compiled. Patterns of international and domestic illicit drug production, distribution, and sale could be more directly compared and interpreted. Case-by-case drug law enforcement activities could be more comprehensively linked, cross-referenced, and coordinated into a single, organic enforcement operation. In short, drug law enforcement officers would be able to spend more time going after the traffickers and less time coordinating with one another. Such progress could be especially helpful on the international front. Narcotics control action plans, developed under the leadership of the Cabinet Committee on International Narcotics Control, are now being carried out by U.S. officials in cooperation with host governments in 59 countries around the world. This wide-ranging effort to cut off drug supplies before they ever reach U.S. borders or streets is just now beginning to bear fruit. We can enhance its effectiveness, with little disruption of ongoing enforcement activities, by merging both the highly effective narcotics force of overseas Customs agents and the rapidly developing international activities of the Bureau of Narcotics and Dangerous Drugs into the Drug Enforcement Administration. The new agency would work closely with the Cabinet Committee under the active leadership of the U.S. Ambassador in each country where anti-drug programs are underway. Two years ago, when I established the Special Action Office for Drug Abuse Prevention within the Executive Office of the President, we gained an organization with the necessary resources, breadth, and leadership capacity to begin dealing decisively with the 'demand' side of the drug abuse problem - treatment and rehabilitation for those who have been drug victims, and preventive programs for potential drug abusers. This year, by permitting my reorganization proposals to take effect, the Congress can help provide a similar capability on the 'supply' side. The proposed Drug Enforcement Administration, working as a team with the Special Action Office, would arm Americans with a potent one-two punch to help us fight back against the deadly menace of drug abuse. I ask full Congressional cooperation in its establishment. IMPROVING PORT-OF-ENTRY INSPECTIONS No heroin or cocaine is produced within the United States; domestic availability of these substances results solely from their illegal importation. The careful and complete inspection of all persons and goods coming into the United States is therefore an integral part of effective Federal drug law enforcement. At the present time, however, Federal responsibility for conducting port-of-entry inspections is awkwardly divided among several Cabinet departments. The principal agencies involved are the Treasury Department's Bureau of Customs, which inspects goods, and the Justice Department's Immigration and Naturalization Service, which inspects persons and their papers. The two utilize separate inspection procedures, hold differing views of inspection priorities, and employ dissimilar personnel management practices. To reduce the possibility that illicit drugs will escape detection at ports-of-entry because of divided responsibility, and to enhance the effectiveness of the Drug Enforcement Administration, the reorganization plan which I am proposing today would transfer to the Secretary of the Treasury all functions currently vested in Justice Department officials to inspect persons, or the documents of persons. When the plan takes effect, it is my intention to direct the Secretary of the Treasury to use the resources so transferred - including some 1,000 employees of the Immigration and Naturalization Service - to augment the staff and budget of the Bureau of Customs. The Bureau's primary responsibilities would then include: - inspection of all persons and goods entering the United States; - valuation of goods being imported, and assessment of appropriate tariff duties; - interception of contraband being smuggled into the United States; - enforcement of U.S. laws governing the international movement of goods, except the investigation of contraband drugs and narcotics; and - turning over the investigation responsibility for all drug law enforcement cases to the Department of Justice. The reorganization would thus group most port-of-entry inspection functions in a single Cabinet department. It would reduce the need for much day-to-day interdepartmental coordination, allow more efficient staffing at some field locations, and remove the basis for damaging interagency rivalries. It would also give the Secretary of the Treasury the authority and flexibility to meet changing requirements in inspecting the international flow of people and goods. An important by-product of the change would be more convenient service for travellers entering and leaving the country. For these reasons, I am convinced that inspection activities at U.S. ports-of-entry can more effectively support our drug law enforcement efforts if concentrated in a single agency. The processing of persons at ports-of-entry is too closely interrelated with the inspection of goods to remain organizationally separated from it any longer. Both types of inspections have numerous objectives besides drug law enforcement, so it is logical to vest them in the Treasury Department, which has long had the principal responsibility for port-of-entry inspection of goods, including goods being transported in connection with persons. As long as the inspections are conducted with full awareness of related drug concerns it is neither necessary nor desirable that they be made a responsibility of the primary drug enforcement organization. DECLARATIONS After investigation, I have found that each action included in Reorganization Plan No. 2 of 1973 is necessary to accomplish one or more of the purposes set forth in Section 901(a) of Title 5 of the United States Code. In particular, the plan is responsive of the intention of the Congress as expressed in Section 901(a)(1): 'to promote better execution of the laws, more effective management of the executive branch and of its agencies and functions, and expeditious administration of the public business;' Section 901(a)(3): 'to increase the efficiency of the operations of the Government to the fullest extent practicable;' Section 901(a)(5) 'to reduce the number of agencies by consolidating those having similar functions under a single head, and to abolish such agencies or functions as may not be necessary for the efficient conduct of the Government;' and Section 901(a)(6): 'to eliminate overlapping and duplication of effort.' As required by law, the plan has one logically consistent subject matter: consolidation of Federal drug law enforcement activities in a manner designed to increase their effectiveness. The plan would establish in the Department of Justice a new Administration designated as the Drug Enforcement Administration. The reorganizations provided for in the plan make necessary the appointment and compensation of new officers as specified in Section 5 of the plan. The rates of compensation fixed for these officers would be comparable to those fixed for officers in the executive branch who have similar responsibilities. While it is not practicable to specify all of the expenditure reductions and other economies which may result from the actions proposed, some savings may be anticipated in administrative costs now associated with the functions being transferred and consolidated. The proposed reorganization is a necessary step in upgrading the effectiveness of our Nation's drug law enforcement effort. Both of the proposed changes would build on the strengths of established agencies, yielding maximum gains in the battle against drug abuse with minimum loss of time and momentum in the transition. I am confident that this reorganization plan would significantly increase the overall efficiency and effectiveness of the Federal Government. I urge the Congress to allow it to become effective. Richard Nixon. The White House, March 28, 1973 -EXEC- EX. ORD. NO. 12146. MANAGEMENT OF FEDERAL LEGAL RESOURCES Ex. Ord. No. 12146, July 18, 1979, 44 F.R. 42657, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided: By the authority vested in me as President by the Constitution and statutes of the United States of America, it is hereby ordered as follows: 1-1. ESTABLISHMENT OF THE FEDERAL LEGAL COUNCIL 1-101. There is hereby established the Federal Legal Council, which shall be composed of the Attorney General and the representatives of not more than 15 other agencies. The agency representative shall be designated by the head of the agency. 1-102. The initial membership of the Council, in addition to the Attorney General, shall consist of representatives designated by the heads of the following agencies: (a) The Department of Commerce. (b) The Department of Defense. (c) The Department of Energy. (d) The Environmental Protection Agency. (e) The Equal Employment Opportunity Commission. (f) The Federal Trade Commission. (g) The Department of Health and Human Services. (h) The Interstate Commerce Commission. (i) The Department of Labor. (j) The National Labor Relations Board. (k) The Securities and Exchange Commission. (l) The Department of State. (m) The Department of the Treasury. (n) The United States Postal Service and (o) the Veterans Administration. 1-103. The initial members of the Council shall serve for a term of two years. Thereafter, the agencies which compose the membership shall be designated annually by the Council and at least five positions on the Council, other than that held by the Attorney General, shall rotate annually. 1-104. In addition to the above members, the Directors of the Office of Management and Budget and the Office of Personnel Management, or their designees, shall be advisory members of the Council. 1-105. The Attorney General shall chair the Council and provide staff for its operation. Representatives of agencies that are not members of the Council may serve on or chair subcommittees of the Council. 1-2. FUNCTIONS OF THE COUNCIL 1-201. The Council shall promote: (a) coordination and communication among Federal legal offices; (b) improved management of Federal lawyers, associated support personnel, and information systems; (c) improvements in the training provided to Federal lawyers; (d) the facilitation of the personal donation of pro bono legal services by Federal attorneys; (e) the use of joint or shared legal facilities in field offices; and (f) the delegation of legal work to field offices. 1-202. The Council shall study and seek to resolve problems in the efficient and effective management of Federal legal resources that are beyond the capacity or authority of individual agencies to resolve. 1-203. The Council shall develop recommendations for legislation and other actions: (a) to increase the efficient and effective operation and management of Federal legal resources, including those matters specified in Section 1-201, and (b) to avoid inconsistent or unnecessary litigation by agencies. 1-3. LITIGATION NOTICE SYSTEM 1-301. The Attorney General shall establish and maintain a litigation notice system that provides timely information about all civil litigation pending in the courts in which the Federal Government is a party or has a significant interest. 1-302. The Attorney General shall issue rules to govern operation of the notice system. The rules shall include the following requirement: (a) All agencies with authority to litigate cases in court shall promptly notify the Attorney General about those cases that fall in classes or categories designated from time to time by the Attorney General. (b) The Attorney General shall provide all agencies reasonable access to the information collected in the litigation notice system. 1-4. RESOLUTION OF INTERAGENCY LEGAL DISPUTES 1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General. 1-402. Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere. 1-5. ACCESS TO LEGAL OPINIONS 1-501. In addition to the disclosure now required by law, all agencies are encouraged to make available for public inspection and copying other opinions of their legal officers that are statements of policy or interpretation that have been adopted by the agency, unless the agency determines that disclosure would result in demonstrable harm. 1-502. All agencies are encouraged to make available on request other legal opinions, when the agency determines that disclosure would not be harmful. 1-6. AUTOMATED LEGAL RESEARCH AND INFORMATION SYSTEMS 1-601. The Attorney General, in coordination with the Secretary of Defense and other agency heads, shall provide for a computerized legal research system that will be available to all Federal law offices on a reimbursable basis. The system may include in its data base such Federal regulations, case briefs, and legal opinions, as the Attorney General deems appropriate. 1-602. The Federal Legal Council shall provide leadership for all Federal legal offices in establishing appropriate word processing and management information systems. 1-7. RESPONSIBILITIES OF THE AGENCIES 1-701. Each agency shall (a) review the management and operation of its legal activities and report in one year to the Federal Legal Council all steps being taken to improve those operations, and (b) cooperate with the Federal Legal Council and the Attorney General in the performance of the functions provided by this Order. 1-702. To the extent permitted by law, each agency shall furnish the Federal Legal Council and the Attorney General with reports, information and assistance as requested to carry out the provisions of this Order. -CROSS- CROSS REFERENCES Bureau of Justice Assistance within Department of Justice, see section 3741 et seq. of Title 42, The Public Health and Welfare. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 20 section 1082. ------DocID 36341 Document 203 of 1452------ -CITE- 28 USC Sec. 510 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 510. Delegation of authority -STATUTE- The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (Uncodified). 1950 Reorg. Plan No. 2, Sec. 2, eff. May 24, 1950, 64 Stat. 1261. ------------------------------- The words 'including any function transferred to the Attorney General by the provisions of this reorganization plan' are omitted as executed and unnecessary as the words 'any function of the Attorney General' include the functions transferred to the Attorney General by 1950 Reorg. Plan. No. 2. PRIOR PROVISIONS A prior section 510, act June 25, 1948, ch. 646, 62 Stat. 910, which related to clerical assistants and messengers for United States attorneys, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 550 of this title by section 4(c) of Pub. L. 89-554. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 6103; title 31 section 3733. ------DocID 36342 Document 204 of 1452------ -CITE- 28 USC Sec. 511 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 511. Attorney General to advise the President -STATUTE- The Attorney General shall give his advice and opinion on questions of law when required by the President. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 612.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 303. R.S. Sec. 354. Feb. 27, 1877, ch. 69, Sec. 1 (8th full par. on p. 241), 19 Stat. 241. ------------------------------- ------DocID 36343 Document 205 of 1452------ -CITE- 28 USC Sec. 512 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 512. Attorney General to advise heads of executive departments -STATUTE- The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 304. R.S. Sec. 356. ------------------------------- ------DocID 36344 Document 206 of 1452------ -CITE- 28 USC Sec. 513 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 513. Attorney General to advise Secretaries of military departments -STATUTE- When a question of law arises in the administration of the Department of the Army, the Department of the Navy, or the Department of the Air Force, the cognizance of which is not given by statute to some other officer from whom the Secretary of the military department concerned may require advice, the Secretary of the military department shall send it to the Attorney General for disposition. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 307. R.S. Sec. 357. ------------------------------- The Department of War was designated the Department of the Army by the Act of July 26, 1947, ch. 343, Sec. 205, 61 Stat. 501. 'Department of the Air Force' is added on authority of the Act of July 26, 1947, ch. 343, Sec. 207(a), (f), 61 Stat. 502. The word 'Secretary' is substituted for 'head.' The words 'military department' are substituted for 'department' to conform to section 102 of title 5, United States Code, and section 101 of title 10, United States Code. The words 'for disposition' are substituted for 'to be by him referred to the proper officer in his department, or otherwise disposed of as he may deem proper.' ------DocID 36345 Document 207 of 1452------ -CITE- 28 USC Sec. 514 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 514. Legal services on pending claims in departments and agencies -STATUTE- When the head of an executive department or agency is of the opinion that the interests of the United States require the service of counsel on the examination of any witness concerning any claim, or on the legal investigation of any claim, pending in the department or agency, he shall notify the Attorney General, giving all facts necessary to enable him to furnish proper professional service in attending the examination or making the investigation, and the Attorney General shall provide for the service. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 48. R.S. Sec. 187. 5 U.S.C. 313. R.S. Sec. 364. ------------------------------- Sections 187 and 364 of the Revised Statutes are combined into one section since they both deal with the same subject matter and are derived from the Act of Feb. 14, 1871, ch. 51, Sec. 3, 16 Stat. 412. The words 'executive department' are substituted for 'Department' because 'Department', as used in R.S. Sec. 187 and 364, meant 'executive department'. (See R.S. Sec. 159.) The word 'agency' is substituted for 'bureau' as it has a more common current acceptance. The word 'concerning' is substituted for 'touching'. Reference to application for a subpena is omitted as R.S. Sec. 364 gives the department head the same authority to request aid from the Attorney General whether or not application has been made for a subpena. Section 187 of the Revised Statutes was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, Sec. 201(d), as added Aug. 10, 1949, ch. 412, Sec. 4, 63 Stat. 579 (former 5 U.S.C. 171-1), which provides 'Except to the extent inconsistent with the provisions of this Act (National Security Act of 1947), the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense' is omitted from this title but is not repealed. Minor changes are made in phraseology to allow for the combining of the two sections. ------DocID 36346 Document 208 of 1452------ -CITE- 28 USC Sec. 515 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 515. Authority for legal proceedings; commission, oath, and salary for special attorneys -STATUTE- (a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. (b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney at not more than $12,000. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (a) 5 U.S.C. 310. June 30, 1906, ch. 3935, 34 Stat. 816. (b) 5 U.S.C. 315. R.S. Sec. 366. Apr. 17, 1930, ch. 174, 46 Stat. 170. June 25, 1948, ch. 646, Sec. 3, 62 Stat. 985. (Uncodified). Aug. 5, 1953, ch. 328, Sec. 202 (1st and 2d provisos, as applicable to special assistants and special attorneys), 67 Stat. 375. (Uncodified). July 2, 1954, ch. 456, Sec. 202 (as applicable to special assistants and special attorneys), 68 Stat. 421. ------------------------------- In subsection (a), the words 'or counselor' are omitted as redundant. The words 'United States attorneys' are substituted for 'district attorneys' on authority of the Act of June 25, 1948, ch. 646, Sec. 1, 62 Stat. 909. The words 'any provision of' are omitted as unnecessary. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 36347 Document 209 of 1452------ -CITE- 28 USC Sec. 516 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 516. Conduct of litigation reserved to Department of Justice -STATUTE- Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 306. R.S. Sec. 361. Sept. 3, 1954, ch. 1263, Sec. 11, 68 Stat. 1229. ------------------------------- The section is revised to express the effect of the law. As agency heads have long employed, with the approval of Congress, attorneys to advise them in the conduct of their official duties, the first 56 words of R.S. Sec. 361 and of former section 306 of title 5 are omitted as obsolete. The section concentrates the authority for the conduct of litigation in the Department of Justice. The words 'Except as otherwise authorized by law,' are added to provide for existing and future exceptions (e.g., section 1037 of title 10). The words 'an agency' are added for clarity and to align this section with section 519 which is of similar import. The words 'as such officer' are omitted as unnecessary since it is implied that the officer is a party in his official capacity as an officer. So much as prohibits the employment of counsel, other than in the Department of Justice, to conduct litigation is omitted as covered by R.S. Sec. 365, which is codified in section 3106 of title 5, United States Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 section 4243; title 19 section 2350; title 31 section 3718; title 38 sections 1850, 3116; title 42 section 1785. ------DocID 36348 Document 210 of 1452------ -CITE- 28 USC Sec. 517 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 517. Interests of United States in pending suits -STATUTE- The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 316. R.S. Sec. 367. ------------------------------- -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 section 943; title 19 section 1920; title 20 sections 1082, 1132d-1; title 42 sections 294h, 3211. ------DocID 36349 Document 211 of 1452------ -CITE- 28 USC Sec. 518 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 518. Conduct and argument of cases -STATUTE- (a) Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court and suits in the United States Claims Court or in the United States Court of Appeals for the Federal Circuit and in the Court of International Trade in which the United States is interested. (b) When the Attorney General considers it in the interests of the United States, he may personally conduct and argue any case in a court of the United States in which the United States is interested, or he may direct the Solicitor General or any officer of the Department of Justice to do so. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 613, and amended Pub. L. 96-417, title V, Sec. 503, Oct. 10, 1980, 94 Stat. 1743; Pub. L. 97-164, title I, Sec. 117, Apr. 2, 1982, 96 Stat. 32.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 309. R.S. Sec. 359. ------------------------------- The words 'and writs of error' are omitted on authority of the Act of Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54. The word 'considers' is substituted for 'deems'. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164 substituted 'United States Claims Court or in the United States Court of Appeals for the Federal Circuit' for 'Court of Claims'. 1980 - Subsec. (a). Pub. L. 96-417 required the Attorney General and the Solicitor General to conduct and argue suits in the Court of International Trade. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 sections 1204, 7105, 8477; title 12 sections 2244, 4243; title 29 sections 663, 792, 1132, 1852; title 30 section 822; title 31 section 3718; title 42 sections 300aa-12, 7171. ------DocID 36350 Document 212 of 1452------ -CITE- 28 USC Sec. 519 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 519. Supervision of litigation -STATUTE- Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 614.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 507(b). (None). ------------------------------- The words 'Except as otherwise authorized by law,' are added to provide for existing and future exceptions (e.g., section 1037 of title 10). The words 'or officer' are added for clarity and to align this section with section 516 which is of similar import. The words 'special attorneys appointed under section 543' are substituted for 'attorneys appointed under section 543' to reflect the revision of this title. CASE MANAGEMENT INFORMATION AND TRACKING SYSTEMS FOR FEDERAL JUDICIAL DISTRICTS AND DIVISIONS OF DEPARTMENT; PREPARATION, SUBMISSION, ETC., OF PLAN Pub. L. 96-132, Sec. 11, Nov. 30, 1979, 93 Stat. 1047, required the Attorney General, not later than Apr. 15, 1980, after consultation with the Director of the Executive Office of United States Attorneys and such Assistant Attorneys as appropriate, to prepare and submit to the Committees on the Judiciary of the Senate and the House of Representatives a plan for the activation and coordination, within the Department of Justice, of compatible, comprehensive case management information and tracking systems for each of the judicial districts of the United States and for each of the divisions of the Department. REPORT TO CONGRESS REGARDING PROVISIONS OF LAW CONSIDERED UNCONSTITUTIONAL BY THE DEPARTMENT OF JUSTICE; DECLARATION OF SUCH POSITION Pub. L. 96-132, Sec. 21, Nov. 30, 1979, 93 Stat. 1049, required the Attorney General, during the fiscal year ending Sept. 30, 1980, to transmit a report to each House of Congress in any case in which the Attorney General considered the provisions of law enacted by the Congress and at issue to be unconstitutional and in such cases required a representative of the Department of Justice participating in such case to make a declaration that such opinion of the Attorney General regarding the constitutionality of those provisions of law involved constitutes the opinion of the executive branch of the government with respect to such matter. Similar provisions were contained in Pub. L. 95-624, Sec. 13, Nov. 9, 1978, 92 Stat. 3464. STUDY AND REPORT TO CONGRESS ON EXTENT TO WHICH VIOLATIONS OF FEDERAL CRIMINAL LAWS ARE NOT PROSECUTED Pub. L. 95-624, Sec. 17, Nov. 9, 1978, 92 Stat. 3465, provided that the Attorney General undertake a study and make recommendations concerning violations of Federal criminal laws which have not been prosecuted and present such study and recommendations to the Committee on the Judiciary of the Senate and the House of Representatives not later than Oct. 1, 1979. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 section 943; title 12 section 4243; title 19 section 1920; title 31 section 3718; title 38 sections 1830, 3116; title 42 section 8412. ------DocID 36351 Document 213 of 1452------ -CITE- 28 USC Sec. 520 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 520. Transmission of petitions in United States Claims Court or in United States Court of Appeals for the Federal Circuit; statement furnished by departments -STATUTE- (a) In suits against the United States in the United States Claims Court or in the United States Court of Appeals for the Federal Circuit founded on a contract, agreement, or transaction with an executive department or military department, or a bureau, officer, or agent thereof, or when the matter or thing on which the claim is based has been passed on and decided by an executive department, military department, bureau, or officer authorized to adjust it, the Attorney General shall send to the department, bureau, or officer a printed copy of the petition filed by the claimant, with a request that the department, bureau, or officer furnish to the Attorney General all facts, circumstances, and evidence concerning the claim in the possession or knowledge of the department, bureau, or officer. (b) Within a reasonable time after receipt of the request from the Attorney General, the executive department, military department, bureau, or officer shall furnish the Attorney General with a written statement of all facts, information, and proofs. The statement shall contain a reference to or description of all official documents and papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defense of the United States against the claim, mentioning the department, office, or place where the same is kept or may be secured. If the claim has been passed on and decided by the department, bureau, or officer, the statement shall briefly state the reasons and principles on which the decision was based. When the decision was founded on an Act of Congress it shall be cited specifically, and if any previous interpretation or construction has been given to the Act, section, or clause by the department, bureau, or officer, it shall be set forth briefly in the statement and a copy of the opinion filed, if any, attached to it. When a decision in the case has been based on a regulation of a department or when a regulation has, in the opinion of the department, bureau, or officer sending the statement, any bearing on the claim, it shall be distinctly quoted at length in the statement. When more than one case or class of cases is pending, the defense of which rests on the same facts, circumstances, and proofs, the department, bureau, or officer may certify and send one statement and it shall be held to apply to all cases as if made out, certified, and sent in each case respectively. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 614, and amended Pub. L. 97-164, title I, Sec. 118(a), Apr. 2, 1982, 96 Stat. 32.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 91. R.S. Sec. 188. ------------------------------- The section is reorganized and restated for clarity. In subsection (a), the word 'concerning' is substituted for 'touching'. In subsection (b), the words 'without delay' are omitted as unnecessary in view of the requirement that the statement be furnished 'Within a reasonable time'. The word 'briefly' is substituted for 'succinctly'. The words 'in suit' are omitted as unnecessary. The words 'executive department' are substituted for 'department' because 'department' as used in R.S. Sec. 188 meant 'executive department'. (See R.S. Sec. 159.) The words 'military department' are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301 of title 5, United States Code. AMENDMENTS 1982 - Pub. L. 97-164, Sec. 118(a)(2), substituted 'United States Claims Court or in United States Court of Appeals for the Federal Circuit' for 'Court of Claims' in section catchline. Subsec. (a). Pub. L. 97-164, Sec. 118(a)(1), substituted 'United States Claims Court or in the United States Court of Appeals for the Federal Circuit' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36352 Document 214 of 1452------ -CITE- 28 USC Sec. 521 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 521. Publication and distribution of opinions -STATUTE- The Attorney General, from time to time - (1) shall cause to be edited, and printed in the Government Printing Office, such of his opinions as he considers valuable for preservation in volumes; and (2) may prescribe the manner for the distribution of the volumes. Each volume shall contain headnotes, an index, and such footnotes as the Attorney General may approve. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 614.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 305 (1st R.S. Sec. 383 (1st sentence, as sentence, as applicable to the applicable to the Attorney General; Attorney General; 2d and 3d 2d and 3d sentences). sentences). ------------------------------- Section 188 of the Revised Statutes was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, Sec. 201(d), as added Aug. 10, 1949, ch. 412, Sec. 4, 63 Stat. 579 (former 5 U.S.C. 171-1), which provides 'Except to the extent inconsistent with the provisions of this Act (National Security Act of 1947), the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense' is omitted from this title but is not repealed. The words 'his opinions' are substituted for 'the opinions of the law officers herein authorized to be given' as the opinions of the Attorney General are his and only his and the reference to other 'law officers' is misleading. All functions of all other officers of the Department of Justice were transferred to the Attorney General by 1950 Reorg. Plan No. 2, Sec. 1, eff. May 14, 1950, 64 Stat. 1261. The word 'considers' is substituted for 'may deem'. In the last sentence, the words 'proper' and 'complete and full' are omitted as unnecessary. ------DocID 36353 Document 215 of 1452------ -CITE- 28 USC Sec. 522 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 522. Report of business and statistics -STATUTE- The Attorney General, by April 1 of each year, shall report to Congress on the business of the Department of Justice for the last preceding fiscal year, and on any other matters pertaining to the Department that he considers proper, including - (1) a statement of the several appropriations which are placed under the control of the Department and the amount appropriated; (2) the statistics of crime under the laws of the United States; and (3) a statement of the number of causes involving the United States, civil and criminal, pending during the preceding year in each of the several courts of the United States. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 615, and amended Pub. L. 94-273, Sec. 19, Apr. 21, 1976, 90 Stat. 379.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 333. R.S. Sec. 384. ------------------------------- The words 'The Attorney General . . . shall report' are substituted for 'It shall be the duty of the Attorney General to make . . . a report'. The word 'beginning' is substituted for 'commencement'. The words 'pertaining to the Department that he considers proper' are substituted for 'appertaining thereto that he may deem proper'. The words 'and a detailed statement of the amounts used for defraying the expenses of the United States courts in each judicial district' are omitted as obsolete in view of the creation of the Administrative Office of the United States Courts by the Act of Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223 (Chapter 41 of this title). In paragraph (3), the words 'involving the United States' are inserted for clarity. The function of reporting on all cases pending in the United States courts is now vested in the Administrative Office of the United States Courts, see 28 U.S.C. 604. AMENDMENTS 1976 - Pub. L. 94-273 substituted 'by April 1 of each year' for 'at the beginning of each regular session of Congress'. REPORT TO CONGRESS ON BANKING LAW OFFENSES Pub. L. 101-647, title XXV, Sec. 2546, Nov. 29, 1990, 104 Stat. 4885, provided that: '(a) In General. - '(1) Data collection. - The Attorney General shall compile and collect data concerning - '(A) the nature and number of civil and criminal investigations, prosecutions, and related proceedings, and civil enforcement and recovery proceedings, in progress with respect to banking law offenses under sections 981, 1008, 1032, and 3322(d) of title 18, United States Code, and section 951 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 1833a) and conspiracies to commit any such offense, including inactive investigations of such offenses; '(B) the number of - '(i) investigations, prosecutions, and related proceedings described in subparagraph (A) which are inactive as of the close of the reporting period but have not been closed or declined; and '(ii) unaddressed referrals which allege criminal misconduct involving offenses described in subparagraph (A), and the reasons such matters are inactive and the referrals unaddressed; '(C) the nature and number of such matters closed, settled, or litigated to conclusion; and '(D) the results achieved, including convictions and pretrial diversions, fines and penalties levied, restitution assessed and collected, and damages recovered, in such matters. '(2) Analysis and report. - The Attorney General shall analyze and report to the Congress on the data described in paragraph (1) and its coordination and other related activities named in section 2539(c)(2) (probably means section 2539(c)(3) of Pub. L. 101-647, set out as a note under section 509 of this title) and shall provide such report on the data monthly through December 31, 1991, and quarterly after such date. '(b) Specifics of Report. - The report required by subsection (a) shall - '(1) categorize data as to various types of financial institutions and appropriate dollar loss categories; '(2) disclose data for each Federal judicial district; '(3) describe the activities of the Financial Institution Fraud Unit; and '(4) list - '(A) the number of institutions, categorized by failed and open institutions, in which evidence of significant fraud, unlawful activity, insider abuse or serious misconduct has been alleged or detected; '(B) civil, criminal, and administrative enforcement actions, including those of the Federal financial institutions regulatory agencies, brought against offenders; '(C) any settlements or judgments obtained against offenders; '(D) indictments, guilty pleas, or verdicts obtained against offenders; and '(E) the resources allocated in pursuit of investigations, prosecutions, and sentencings (including indictments, guilty pleas, or verdicts obtained against offenders) and related proceedings.' CONGRESSIONAL OVERSIGHT Pub. L. 100-700, Sec. 6, Nov. 19, 1988, 102 Stat. 4634, provided that: 'Commencing with the first year after the date of enactment of this section (Nov. 19, 1988), the Attorney General shall annually report to the Congress with respect to - '(1) the number of referrals of fraud cases by the Department of Defense of defense contractors (with specific statistics with respect to the one hundred largest contractors), the number of open investigation of such contractors, and a breakdown of to which United States Attorney's Office or other component of the Department of Justice each such case was referred; '(2) the number of referrals of fraud cases from other agencies or sources; '(3) the number of attorneys and support staff assigned pursuant to this Act (see Tables for classification); '(4) the number of investigative agents assigned to each investigation and the period of time each investigation has been opened; '(5) the number of convictions and acquittals achieved by individuals assigned to positions established by the Act; and '(6) the sentences, recoveries, and penalties achieved by individuals assigned to positions established by this Act.' REPORT TO CONGRESS ON ROBBERIES AND BURGLARIES INVOLVING CONTROLLED SUBSTANCES Pub. L. 98-305, Sec. 4, May 31, 1984, 98 Stat. 222, provided that: 'For each of the first three years after the date of enactment of this Act (May 31, 1984), the Attorney General of the United States shall submit an annual report to the Congress with respect to the enforcement activities of the Attorney General relating to the offenses created by the amendment made by section 2 of this Act (enacting section 2118 of Title 18, Crimes and Criminal Procedure).' REPORT TO CONGRESS ON SEXUAL EXPLOITATION OF CHILDREN Pub. L. 98-292, Sec. 9, May 21, 1984, 98 Stat. 206, provided that: 'Beginning one hundred and twenty days after the date of enactment of this Act (May 21, 1984), and every year thereafter, the Attorney General shall report to the Congress on prosecutions, convictions, and forfeitures under chapter 110 of title 18 of the United States Code.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 42 section 1997f. ------DocID 36354 Document 216 of 1452------ -CITE- 28 USC Sec. 523 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 523. Requisitions -STATUTE- The Attorney General shall sign all requisitions for the advance or payment of moneys appropriated for the Department of Justice, out of the Treasury, subject to the same control as is exercised on like estimates or accounts by the General Accounting Office. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 615.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 319. R.S. Sec. 369. ------------------------------- The words 'General Accounting Office' are substituted for 'First Auditor or First Comptroller of the Treasury' on authority of the Act of June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24. ------DocID 36355 Document 217 of 1452------ -CITE- 28 USC Sec. 524 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 524. Availability of appropriations -STATUTE- (a) Appropriations for the Department of Justice are available for payment of - (1) notarial fees, including such additional stenographic services as are required in connection therewith in the taking of depositions, and compensation and expenses of witnesses and informants, all at the rates authorized or approved by the Attorney General or the Assistant Attorney General for Administration; and (2) when ordered by the court, actual expenses of meals and lodging for marshals, deputy marshals, or criers when acting as bailiffs in attendance on juries. (b) Except as provided in subsection (a) of this section, a claim of not more than $500 for expenses related to litigation that is beyond the control of the Department may be paid out of appropriations currently available to the Department for expenses related to litigation when the Comptroller General settles the payment. (c)(1) There is established in the United States Treasury a special fund to be known as the Department of Justice Assets Forfeiture Fund (hereafter in this subsection referred to as the 'Fund') which shall be available to the Attorney General without fiscal year limitation for the following purposes of the Department of Justice - (A) the payment, at the discretion of the Attorney General, of any expenses necessary to seize, detain, inventory, safeguard, maintain, advertise, or sell property under seizure, detention, or forfeited pursuant to any law enforced or administered by the Department of Justice, or of any other necessary expenses incident to the seizure, detention, or forfeiture of such property; such payments may include - (i) payments for contract services, the employment of outside contractors to operate and manage properties or provide other specialized services as necessary to dispose of such properties in an effort to maximize the return from such properties, and payments to reimburse any Federal, State, or local agency for any expenditures made to perform the foregoing functions; and (ii) payments made pursuant to regulations promulgated by the Attorney General, that are necessary and direct program-related expenses for the purchase or lease of automatic data processing equipment (not less than a majority of which use will be program related), training, printing, contracting for services directly related to the identification of forfeitable assets (FOOTNOTE 1) processing of and accounting for forfeitures, and the storage, protection, and destruction of controlled substances; (FOOTNOTE 1) So in original. Probably should be followed by a comma. (B) the payment of awards for information or assistance directly relating to violations of the criminal drug laws of the United States; (C) at the discretion of the Attorney General, the payment of awards for information or assistance leading to - (i) a civil or criminal forfeiture under the Controlled Substances Act or the Controlled Substances Import and Export Act; (ii) a criminal forfeiture under chapter 96 of title 18; (iii) a civil forfeiture under section 981 of title 18; or (iv) a criminal forfeiture under section 982 of title 18. (D) the compromise and payment of valid liens and mortgages against property that has been forfeited pursuant to any law enforced or administered by the Department of Justice, subject to the discretion of the Attorney General to determine the validity of any such lien or mortgage and the amount of payment to be made, and the employment of attorneys and other personnel skilled in State real estate law as necessary; (E) disbursements authorized in connection with remission or mitigation procedures relating to property forfeited under any law enforced or administered by the Department of Justice; (F) for equipping for drug law enforcement functions any government-owned or leased vessels, vehicles, and aircraft available for official use by the Drug Enforcement Administration, the Federal Bureau of Investigation, the Immigration and Naturalization Service, or the United States Marshals Service; (G) for purchase of evidence of any violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, chapter 96 of title 18, or sections 1956 and 1957 of title 18; and (H) after all reimbursements and program-related expenses have been met at the end of fiscal year 1989, the Attorney General may transfer deposits from the Fund to the building and facilities account of the Federal prison system for the construction of correctional institutions. Amounts for paying the expenses authorized by subparagraphs (A)(ii), (B), (C), (F), and (G) shall be specified in appropriations acts. Amounts for other authorized expenditures and payments from the Fund, including equitable sharing payments, are not required to be specified in appropriations acts. The Attorney General may exempt the procurement of contract services under subparagraph (A) under the fund from section 3709 of the Revised Statutes of the United States (41 U.S.C. 5), title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 and following), and other provisions of law as may be necessary to maintain the security and confidentiality of related criminal investigations. (2) Any award paid from the Fund for information, as provided in paragraph (1)(B) or (C), shall be paid at the discretion of the Attorney General or his delegate, under existing departmental delegation policies for the payment of awards, except that the authority to pay an award of $250,000 or more shall not be delegated to any person other than the Deputy Attorney General, the Associate Attorney General, the Director of the Federal Bureau of Investigation, or the Administrator of the Drug Enforcement Administration. Any award for information pursuant to paragraph (1)(B) shall not exceed $250,000. Any award for information pursuant to paragraph (1)(C) shall not exceed the lesser of $250,000 or one-fourth of the amount realized by the United States from the property forfeited. (3) Any amount under subparagraph (F) of paragraph (1) shall be paid at the discretion of the Attorney General or his delegate, except that the authority to pay $100,000 or more may be delegated only to the respective head of the agency involved. (4) There shall be deposited in the Fund all amounts from the forfeiture of property under any law enforced or administered by the Department of Justice, except all proceeds of forfeitures available for use by the Secretary of the Treasury or the Secretary of the Interior pursuant to section 11(d) of the Endangered Species Act (16 U.S.C. 1540(d)) or section 6(d) of the Lacey Act Amendments of 1981 (16 U.S.C. 3375(d)) or the Postmaster General of the United States pursuant to section 2003(b)(7) of title 39. (5) Amounts in the Fund which are not currently needed for the purpose of this section shall be kept on deposit or invested in obligations of, or guaranteed by, the United States and all earnings on such investments shall be deposited in the Fund. (6) The Attorney General shall transmit to the Congress, not later than 4 months after the end of each fiscal year, detailed reports as follows: (A) a report on - (i) the estimated total value of property forfeited under any law enforced or administered by the Department of Justice with respect to which funds were not deposited in the Fund; and (ii) the estimated total value of all such property transferred to any State or local law enforcement agency; (B) a report on - (i) the Fund's beginning balance; (ii) sources of receipts (seized cash, conveyances, and others); (iii) liens and mortgages paid and amount of money shared with State and local law enforcement agencies; (iv) the net amount realized from the year's operations, amount of seized cash being held as evidence, and the amount of money legally allowed to be carried over to next year; (v) any defendant's equity in property valued at $1,000,000 or more; and (vi) year-end Fund balance; and (C) a report for such fiscal year, containing audited financial statements, in the form prescribed by the Attorney General, in consultation with the Comptroller General, including profit and loss information with respect to forfeited property (by category), and financial information on forfeited property transactions (by type of disposition). (7) The Fund shall be subject to annual audit by the Comptroller General. (8) The provisions of this subsection relating to deposits in the Fund shall apply to all property in the custody of the Department of Justice on or after the effective date of the Comprehensive Forfeiture Act of 1983. (9)(A) There are authorized to be appropriated such sums as necessary for the purposes described in subparagraphs (A)(ii), (B), (C), (F), and (G) of paragraph (1). (B) Subject to subparagraph (C), in each of fiscal years 1990, 1991, 1992, and 1993, the Attorney General may transfer from the Fund not more than $150,000,000 to the Special Forfeiture Fund established by section 6073 of the Anti-Drug Abuse Act of 1988. Such transfers shall be made at the end of each quarter of the fiscal year involved and on a quarterly pro rata basis. (C) Transfers under subparagraph (B) may be made only from excess unobligated amounts and only to the extent that, as determined by the Attorney General, such transfers will not impair the future availability of amounts for the purposes under paragraph (1). (D) At the end of each of fiscal years 1990, 1991, 1992, and 1993, the Attorney General may retain in the Fund not more than $15,000,000, or, if determined by the Attorney General to be necessary for asset-specific expenses, a greater amount equal to not more than one-tenth of the total of obligations from the Fund in preceding fiscal year. (10) Following the completion of procedures for the forfeiture of property pursuant to any law enforced or administered by the Department, the Attorney General is authorized, at his discretion, to warrant clear title to any subsequent purchaser or transferee of such forfeited property. (11) For the purposes of this subsection, property is forfeited pursuant to a law enforced or administered by the Department of Justice if it is forfeited pursuant to - (A) any criminal forfeiture proceeding; (B) any civil judicial forfeiture proceeding; or (C) any civil administrative forfeiture proceeding conducted by the Department of Justice, except to the extent that the seizure was effected by a Customs officer or that custody was maintained by the United States Customs Service in which case the provisions of section 613A of the Tariff Act of 1930 (19 U.S.C. 1613a) (FOOTNOTE 2) shall apply. (FOOTNOTE 2) See References in Text note below. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 615, and amended Pub. L. 97-258, Sec. 2(g)(1)(B)-(D), Sept. 13, 1982, 96 Stat. 1060; Pub. L. 98-473, title II, Sec. 310, 2303, Oct. 12, 1984, 98 Stat. 2052, 2193; Pub. L. 99-570, title I, Sec. 1152(a), Oct. 27, 1986, 100 Stat. 3207-12; Pub. L. 99-646, Sec. 27, Nov. 10, 1986, 100 Stat. 3597; Pub. L. 100-202, Sec. 101(a) (title II, Sec. 210(a)), Dec. 22, 1987, 101 Stat. 1329, 1329-18; Pub. L. 100-690, title VI, Sec. 6072, Nov. 18, 1988, 102 Stat. 4320; Pub. L. 101-509, title III, Sec. 1, Nov. 5, 1990, 104 Stat. 1403; Pub. L. 101-647, title XVI, Sec. 1601, title XX, Sec. 2001(a), 2002, 2005, 2006, Nov. 29, 1990, 104 Stat. 4842, 4854, 4855.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 341. July 28, 1950, ch. 503, Sec. 1, 64 Stat. 380. ------------------------------- The words 'now or hereafter' are omitted as unnecessary. The words 'Assistant Attorney General for Administration' are substituted for 'his administrative assistant' to make the statute more specific and to reflect the current title of the position, see Sec. 307 of the Act of Aug. 14, 1964, Pub. L. 88-426, 78 Stat. 432. 1982 Act --------------------------------------------------------------------- Revised Section Source (U.S. Code) Source (Statutes at Large) --------------------------------------------------------------------- 28:524(b) 31:693a. Oct. 10, 1949, ch. 662, Sec. 101 (par. under heading 'General Provision - Department of Justice'), 63 Stat. 746. ------------------------------- The words 'After October 10, 1949' are omitted as executed. The words 'Except as provided in subsection (a) of this section' are added for clarity. The words 'fees, storage, or other items of' are omitted as surplus. The words 'to the Department' are added for clarity. -REFTEXT- REFERENCES IN TEXT The Federal Property and Administrative Services Act of 1949, referred to in subsec. (c)(1), is act June 30, 1949, ch. 288, 63 Stat. 393, as amended. Title III of the Federal Property and Administrative Services Act of 1949 is classified generally to subchapter IV (Sec. 251 et seq.) of chapter 4 of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 471 of Title 40, Public Buildings, Property, and Works, and Tables. The Controlled Substances Act, referred to in subsec. (c)(1)(C)(i), (G), is title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as amended, which is classified principally to subchapter I (Sec. 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables. The Controlled Substances Import and Export Act, referred to in subsec. (c)(1)(C)(i), (G), is title III of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1285, as amended, which is classified principally to subchapter II (Sec. 951 et seq.) of chapter 13 of Title 21. For complete classification of this Act to the Code, see Short Title note set out under section 951 of Title 21 and Tables. The effective date of the Comprehensive Forfeiture Act of 1983, referred to in subsec. (c)(8), probably means the date of enactment of the Comprehensive Forfeiture Act of 1984, chapter III (Sec. 301 to 323) of title II of Pub. L. 98-473, which was approved Oct. 12, 1984. Section 6073 of the Anti-Drug Abuse Act of 1988, referred to in subsec. (c)(9)(B), is classified to section 1509 of Title 21. Section 613A of the Tariff Act of 1930 (19 U.S.C. 1613a), referred to in subsec. (c)(11), is section 613A of act June 17, 1930, ch. 497, title IV, as added Oct. 30, 1984, Pub. L. 98-573, title II, Sec. 213(a)(11), 98 Stat. 2986, which is classified to section 1613b of Title 19, Customs Duties. -MISC2- AMENDMENTS 1990 - Subsec. (c)(1)(C). Pub. L. 101-647, Sec. 2005, amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: 'the payment of awards for information or assistance leading to a civil or criminal forfeiture under any law enforced or administered by the Department of Justice., at the discretion of the Attorney General;'. Pub. L. 101-647, Sec. 1601, which directed substitution of 'the payment of awards for information or assistance leading to a civil or criminal forfeiture under any law enforced or administered by the Department of Justice.' for 'the payment of awards for information or assistance leading to civil or criminal forfeiture under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 800 et seq.) or a criminal forfeiture under the Racketeer Influenced and Corrupt Organizations statute (18 U.S.C. 1961 et seq.)', was executed by making the substitution for 'the payment of awards for information or assistance leading to a civil or criminal forfeiture under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 800 et seq.) or a criminal forfeiture under the Racketeer Influenced and Corrupt Organizations statute (18 U.S.C. 1961 et seq.)' to reflect the probable intent of Congress. Subsec. (c)(6). Pub. L. 101-647, Sec. 2006, struck out 'two' after 'fiscal year,' in introductory provisions and added subpar. (C). Subsec. (c)(9). Pub. L. 101-647, Sec. 2001(a), inserted '(A)' before 'There' and substituted subpars. (B) to (D) for 'For each of fiscal years 1991, 1992, and 1993, the Attorney General shall transfer not to exceed $150,000,000 in unobligated amounts available in the Fund to the Special Forfeiture Fund: Provided, That such amounts will be transferred on a quarterly basis: Provided further, That, upon each transfer, not to exceed $15,000,000, or, if determined by the Attorney General to be necessary to meet forfeiture program expenses, an amount not to exceed one-tenth of the previous year's obligations shall be retained in the Fund and remain available for payment of authorized expenses: Provided further, That, any unobligated amounts in excess of $150,000,000 shall remain on deposit in the Fund.' Pub. L. 101-509 amended second sentence generally, substituting sentence providing for transfers to Special Forfeiture Fund in fiscal years 1991, 1992, and 1993 for sentence that read as follows: 'At the end of each of fiscal years 1990, 1991, and 1992, unobligated amounts not to exceed $150,000,000 remaining in the Fund shall be deposited in the Special Forfeiture Fund, except that an amount not to exceed $15,000,000 or, if determined necessary by the Attorney General to meet asset specific expenses, an amount equal to one-twelfth of the previous year's expenditures may be carried forward and remain available for appropriation in the next fiscal year.' Subsec. (c)(10), (11). Pub. L. 101-647, Sec. 2002, added par. (10) and redesignated former par. (10) as (11). 1988 - Subsec. (c). Pub. L. 100-690 amended subsec. (c) generally, revising and restating as pars. (1) to (10) provisions of former pars. (1) to (8). 1987 - Subsec. (c)(1)(H). Pub. L. 100-202 added subpar. (H). 1986 - Subsec. (c)(1)(A). Pub. L. 99-570, Sec. 1152(a)(1)(2), inserted provisions allowing payments that are necessary and direct program-related expenses for the purchase or lease of automatic data processing equipment, training, printing, contracting for services directly related to the processing of and accounting for forfeitures, and the storage, protection, and destruction of controlled substances. Subsec. (c)(1)(B) to (E). Pub. L. 99-570, Sec. 1152(a)(1)(3), added subpar. (B) and redesignated former subpars. (B) to (E) as (C) to (F), respectively. Subsec. (c)(1)(F). Pub. L. 99-646, Sec. 27(a), which directed the amendment of subpar. (E) by inserting 'the Federal Bureau of Investigation, the United States Marshals Service,' after 'for official use by' and a comma before 'or' was not executed in view of prior redesignation of subpar. (E) as (F) and substantively similar amendment by section 1152(a) of Pub. L. 99-570. Pub. L. 99-570, Sec. 1152(a)(1)(3), (4), redesignated former subpar. (E) as (F) and amended it generally. Prior to amendment, subpar. (E) read as follows: 'for equipping for law enforcement functions of forfeited vessels, vehicles, and aircraft retained as provided by law for official use by the Drug Enforcement Administration or the Immigration and Naturalization Service; and'. Former subpar. (F) redesignated (G). Subsec. (c)(1)(G). Pub. L. 99-570, Sec. 1152(a)(1)(3), redesignated former subpar. (F) as (G). Subsec. (c)(4). Pub. L. 99-570, Sec. 1152(a)(1)(5), and Pub. L. 99-646, Sec. 27(b), made substantially identical amendments substituting ', except all proceeds of forfeitures available for use by the Secretary of the Treasury or the Secretary of the Interior pursuant to section 11(d) of the Endangered Species Act (16 U.S.C. 1540(d)) or section 6(d) of the Lacey Act Amendments of 1981 (16 U.S.C. 3375(d))' for 'remaining after the payment of expenses for forfeiture and sale authorized by law'. Subsec. (c)(8), (9). Pub. L. 99-570, Sec. 1152(a)(1)(6), redesignated par. (9) as (8), and struck out former par. (8) which provided for an authorization of appropriations for fiscal years 1984 to 1987 and deposit of excess amounts in the general fund of the Treasury of the United States. 1984 - Subsec. (c). Pub. L. 98-473, Sec. 310, added subsec. (c). Subsec. (c)(1)(E), (F). Pub. L. 98-473, Sec. 2303(a), added subpars. (E) and (F). Subsec. (c)(3) to (9). Pub. L. 98-473, Sec. 2303(b), added par. (3) and redesignated existing pars. (3) to (8) as (4) to (9), respectively. 1982 - Pub. L. 97-258, Sec. 2(g)(1)(B), substituted 'Availability of appropriations' for 'Appropriations for administrative expenses; notarial fees; meals and lodging of bailiffs' in section catchline. Subsecs. (a), (b). Pub. L. 97-258, Sec. 2(g)(1)(C), (D), designated existing provisions as subsec. (a) and added subsec. (b). NOTICE AND APPROVAL OF TRANSFER OF SUBSECTION (C)(1)(H) DEPOSITS Section 101(a) (title II, Sec. 210(b)) of Pub. L. 100-202 provided that: 'Amounts proposed for transfer pursuant to subsection (a) (amending this section) shall be transferred only upon notification by the Attorney General to the Committees on Appropriations of the House of Representatives and the Senate and approval under said Committees' policies concerning the reprogramming of funds.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 sections 793, 794, 2254; title 21 sections 881, 1509. ------DocID 36356 Document 218 of 1452------ -CITE- 28 USC Sec. 525 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 525. Procurement of law books, reference books, and periodicals; sale and exchange -STATUTE- In the procurement of law books, reference books, and periodicals, the Attorney General may exchange or sell similar items and apply the exchange allowances or proceeds of such sales in whole or in part payment therefor. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 615.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 341e. July 28, 1950, ch. 503, Sec. 3, 64 Stat. 380. ------------------------------- The words 'Attorney General' are substituted for 'Department of Justice'. ------DocID 36357 Document 219 of 1452------ -CITE- 28 USC Sec. 526 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 526. Authority of Attorney General to investigate United States attorneys, marshals, and trustees, clerks of court, and others -STATUTE- (a) The Attorney General may investigate the official acts, records, and accounts of - (1) the United States attorneys, marshals,, (FOOTNOTE 1) trustees, including trustees in cases under title 11; and (FOOTNOTE 1) So in original. (2) at the request and on behalf of the Director of the Administrative Office of the United States Courts, the clerks of the United States courts and of the district court of the Virgin Islands, probation officers, United States magistrates, and court reporters; for which purpose all the official papers, records, dockets, and accounts of these officers, without exception, may be examined by agents of the Attorney General at any time. (b) Appropriations for the examination of judicial officers are available for carrying out this section. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 615, and amended Pub. L. 95-598, title II, Sec. 219(a), (b), 220, Nov. 6, 1978, 92 Stat. 2662; Pub. L. 99-554, title I, Sec. 144(c), Oct. 27, 1986, 100 Stat. 3096.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 341b. July 28, 1950, ch. 503, Sec. 4, 64 Stat. 380. July 7, 1958, Pub. L. 85-508, Sec. 12(q), 72 Stat. 349. ------------------------------- In subsection (b), the words 'now or hereafter' and 'the provisions of' are omitted as unnecessary. -COD- CODIFICATION Pub. L. 95-598, title IV, Sec. 408(c), Nov. 6, 1978, 92 Stat. 2687, as amended by Pub. L. 98-166, title II, Sec. 200, Nov. 28, 1983, 97 Stat. 1081; Pub. L. 98-353, title III, Sec. 323, July 10, 1984, 98 Stat. 358; Pub. L. 99-429, Sept. 30, 1986, 100 Stat. 985; Pub. L. 99-500, Sec. 101(b) (title II, Sec. 200), Oct. 18, 1986, 100 Stat. 1783-39, 1783-45, and Pub. L. 99-591, Sec. 101(b) (title II, Sec. 200), Oct. 30, 1986, 100 Stat. 3341-39, 3341-45; Pub. L. 99-554, title III, Sec. 307(a), Oct. 27, 1986, 100 Stat. 3125, which provided for the deletion of any references to United States Trustees in this title at a prospective date, was repealed by Pub. L. 99-554, title III, Sec. 307(b), Oct. 27, 1986, 100 Stat. 3125. -MISC3- AMENDMENTS 1986 - Pub. L. 99-554, Sec. 144(c)(1), substituted 'trustees' for 'trustee' in section catchline. Subsec. (a)(1). Pub. L. 99-554, Sec. 144(c)(2)(A), inserted reference to trustees in cases under title 11. Subsec. (a)(2). Pub. L. 99-554, Sec. 144(c)(2)(B), struck out references to courts of the Canal Zone and trustees in cases under title 11. 1978 - Pub. L. 95-598, Sec. 219(b), substituted 'marshals, and trustee' for 'and marshals' in section catchline. Subsec. (a)(1). Pub. L. 95-518, Sec. 219(a), substituted 'marshals, and trustees' for 'and marshals'. Subsec. (a)(2). Pub. L. 95-598, Sec. 220, substituted 'officers, trustees in cases under title 11' for 'officers, referees, trustees and receivers in bankruptcy' and 'magistrates' for 'commissioners'. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. ------DocID 36358 Document 220 of 1452------ -CITE- 28 USC Sec. 527 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 527. Establishment of working capital fund -STATUTE- There is hereby authorized to be established a working capital fund for the Department of Justice, which shall be available, without fiscal year limitation, for expenses and equipment necessary for maintenance and operations of such administrative services as the Attorney General, with the approval of the Office of Management and Budget, determines may be performed more advantageously as central services. The capital of the fund shall consist of the amount of the fair and reasonable value of such inventories, equipment, and other assets and inventories on order pertaining to the services to be carried on by the fund as the Attorney General may transfer to the fund less related liabilities and unpaid obligations together with any appropriations made for the purpose of providing capital. The fund shall be reimbursed or credited with advance payments from applicable appropriations and funds of the Department of Justice, other Federal agencies, and other sources authorized by law for supplies, materials, and services at rates which will recover the expenses of operations including accrual of annual leave and depreciation of plant and equipment of the fund. The fund shall also be credited with other receipts from sale or exchange of property or in payment for loss or damage to property held by the fund. There shall be transferred into the Treasury as miscellaneous receipts, as of the close of each fiscal year, any net income after making provisions for prior year losses, if any. -SOURCE- (Added Pub. L. 93-613, Sec. 1(1), Jan. 2, 1975, 88 Stat. 1975.) ------DocID 36359 Document 221 of 1452------ -CITE- 28 USC Sec. 528 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 528. Disqualification of officers and employees of the Department of Justice -STATUTE- The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney's staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof. Such rules and regulations may provide that a willful violation of any provision thereof shall result in removal from office. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 603(a), Oct. 26, 1978, 92 Stat. 1874.) -MISC1- EFFECTIVE DATE Section effective Oct. 26, 1978, see section 604 of Pub. L. 95-521, set out as a note under section 591 of this title. ------DocID 36360 Document 222 of 1452------ -CITE- 28 USC Sec. 529 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 529. Annual report of Attorney General -STATUTE- Beginning on June 1, 1979, and at the beginning of each regular session of Congress thereafter, the Attorney General shall report to Congress on the activities and operations of the Public Integrity Section or any other unit of the Department of Justice designated to supervise the investigation and prosecution of - (1) any violation of Federal criminal law by any individual who holds or who at the time of such violation held a position, whether or not elective, as a Federal Government officer, employee, or special employee, if such violation relates directly or indirectly to such individual's Federal Government position, employment, or compensation; (2) any violation of any Federal criminal law relating to lobbying, conflict of interest, campaigns, and election to public office committed by any person, except insofar as such violation relates to a matter involving discrimination or intimidation on grounds of race, color, religion, or national origin; (3) any violation of Federal criminal law by any individual who holds or who at the time of such violation held a position, whether or not elective, as a State or local government officer or employee, if such violation relates directly or indirectly to such individual's State or local government position, employment, or compensation; and (4) such other matters as the Attorney General may deem appropriate. Such report shall include the number, type, and disposition of all investigations and prosecutions supervised by such Section or such unit, except that such report shall not disclose information which would interfere with any pending investigation or prosecution or which would improperly infringe upon the privacy rights of any individuals. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 603(a), Oct. 26, 1978, 92 Stat. 1874.) -MISC1- EFFECTIVE DATE Section effective Oct. 26, 1978, see section 604 of Pub. L. 95-521, set out as a note under section 591 of this title. ------DocID 36361 Document 223 of 1452------ -CITE- 28 USC Sec. 530 -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 530. Payment of travel and transportation expenses of newly appointed special agents -STATUTE- The Attorney General or the Attorney General's designee is authorized to pay the travel expenses of newly appointed special agents and the transportation expenses of their families and household goods and personal effects from place of residence at time of selection to the first duty station, to the extent such payments are authorized by section 5723 of title 5 for new appointees who may receive payments under that section. -SOURCE- (Added Pub. L. 98-86, Sec. 1, Aug. 26, 1983, 97 Stat. 492.) ------DocID 36362 Document 224 of 1452------ -CITE- 28 USC Sec. 530A -EXPCITE- TITLE 28 PART II CHAPTER 31 -HEAD- Sec. 530A. Authorization of appropriations for travel and related expenses and for health care of personnel serving abroad -STATUTE- There are authorized to be appropriated, for any fiscal year, for the Department of Justice, such sums as may be necessary - (1) for travel and related expenses of employees of the Department of Justice serving abroad and their families, to be payable in the same manner as applicable with respect to the Foreign Service under paragraphs (3), (5), (6), (8), (9), (11), and (15) of section 901 of the Foreign Service Act of 1980, and under the regulations issued by the Secretary of State; and (2) for health care for such employees and families, to be provided under section 904 of that Act. -SOURCE- (Added Pub. L. 100-690, title VI, Sec. 6281(a), Nov. 18, 1988, 102 Stat. 4368.) -REFTEXT- REFERENCES IN TEXT Sections 901 and 904 of the Foreign Service Act of 1980, referred to in pars. (1) and (2), are classified to sections 4081 and 4084, respectively, of Title 22, Foreign Relations and Intercourse. ------DocID 36363 Document 225 of 1452------ -CITE- 28 USC CHAPTER 33 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- CHAPTER 33 - FEDERAL BUREAU OF INVESTIGATION -MISC1- Sec. 531. Federal Bureau of Investigation. 532. Director of Federal Bureau of Investigation. 533. Investigative and other officials; appointment. 534. Acquisition, preservation, and exchange of identification records and information; appointment of officials. 535. Investigation of crimes involving Government officers and employees; limitations. 536. Positions in excepted service. 537. Expenses of unforeseen emergencies of a confidential nature. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 539. (FOOTNOTE 2) Counterintelligence official reception and representation expenses. (FOOTNOTE 2) So in original. There is no item 538. 540. Investigation of felonious killings of State or local law enforcement officers. AMENDMENTS 1988 - Pub. L. 100-690, title VII, Sec. 7331(b), Nov. 18, 1988, 102 Stat. 4468, added item 540. 1986 - Pub. L. 99-569, title IV, Sec. 401(b), Oct. 27, 1986, 100 Stat. 3195, added item 539. 1982 - Pub. L. 97-292, Sec. 3(b), Oct. 12, 1982, 96 Stat. 1260, inserted 'and information' after 'identification records' in item 534. 1966 - Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616, substituted 'FEDERAL BUREAU OF INVESTIGATION' for 'UNITED STATES MARSHALS' in chapter heading, added items 531 to 537, and struck out items 541 to 556. -CROSS- CROSS REFERENCES Powers of Federal Bureau of Investigation, see section 3052 of Title 18, Crimes and Criminal Procedure. ------DocID 36364 Document 226 of 1452------ -CITE- 28 USC Sec. 531 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 531. Federal Bureau of Investigation -STATUTE- The Federal Bureau of Investigation is in the Department of Justice. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616.) -MISC1- HISTORICAL AND REVISION NOTES The section is supplied for convenience and clarification. The Bureau of Investigation in the Department of Justice, the earliest predecessor agency of the Federal Bureau of Investigation, was created administratively in 1908. It appears that funds used for the Bureau of Investigation were first obtained through the Department of Justice Appropriation Act of May 22, 1908, ch. 186, Sec. 1 (par. beginning 'From the appropriations for the prosecution of crimes'), 35 Stat. 236, although that statutory provision makes no express mention of the Bureau or of the investigative function. Section 3 of Executive Order No. 6166 of June 10, 1933, specifically recognized the Bureau of Investigation in the Department of Justice and provided that all that Bureau's functions together with the investigative functions of the Bureau of Prohibition were 'transferred to and consolidated in a Division of Investigation in the Department of Justice, at the head of which shall be a Director of Investigation.' The Division of Investigation was first designated as the 'Federal Bureau of Investigation' by the Act of Mar. 22, 1935, ch. 39, title II, 49 Stat. 77, and has been so designated in statutes since that date. ------DocID 36365 Document 227 of 1452------ -CITE- 28 USC Sec. 532 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 532. Director of the Federal Bureau of Investigation -STATUTE- The Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director of the Federal Bureau of Investigation is the head of the Federal Bureau of Investigation. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616.) -MISC1- HISTORICAL AND REVISION NOTES The section is supplied for convenience and clarification and is based on section 3 of Executive Order No. 6166 of June 10, 1933, which provided for the transfer of the functions of the Bureau of Investigation together with the investigative functions of the Bureau of Prohibition to a 'Division of Investigation in the Department of Justice, at the head of which shall be a Director of Investigation'. The Division of Investigation was first designated as the 'Federal Bureau of Investigation' by the Act of Mar. 22, 1935, ch. 39, title II, 49 Stat. 77, and has been so designated in statutes since that date. The title of 'Director of the Federal Bureau of Investigation' was recognized by statute in the Act of June 5, 1936, ch. 529, 49 Stat. 1484, and has been used in statutes since that date. CONFIRMATION AND COMPENSATION OF DIRECTOR; TERM OF SERVICE Pub. L. 90-351, title VI, Sec. 1101, June 19, 1968, 82 Stat. 236, as amended by Pub. L. 94-503, title II, Sec. 203, Oct. 15, 1976, 90 Stat. 2427, provided that: '(a) Effective as of the day following the date on which the present incumbent in the office of Director ceases to serve as such, the Director of the Federal Bureau of Investigation shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive compensation at the rate prescribed for level II of the Federal Executive Salary Schedule (section 5313 of Title 5, Government Organization and Employees). '(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1, 1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section.' ------DocID 36366 Document 228 of 1452------ -CITE- 28 USC Sec. 533 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 533. Investigative and other officials; appointment -STATUTE- The Attorney General may appoint officials - (1) to detect and prosecute crimes against the United States; (2) to assist in the protection of the person of the President; and (3) to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General. This section does not limit the authority of departments and agencies to investigate crimes against the United States when investigative jurisdiction has been assigned by law to such departments and agencies. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 299, 300 Aug. 31, 1964, Pub. (less applicability L. 88-527, Sec. 201 to acquisition etc. (1st 105 words of of identification 1st par. under and other records). 'Federal Bureau of Investigation', less applicability to acquisition etc. of identification and other records), 78 Stat. 717. ------------------------------- The section is from the Department of Justice Appropriation Act, 1965. Similar provisions were contained in each appropriation Act for the Department running back to 1921, which Acts are identified in a note under sections 299 and 300 of title 5, U.S.C. 1964 ed. The section is reorganized for clarity. The authority to appoint officials for the cited purposes is implied. The word 'may' is substituted for 'is authorized to'. The words 'who shall be vested with the authority necessary for the execution of such duties' are omitted as unnecessary as the appointment of the officials for the purposes indicated carries with it the authority necessary to perform their duties. In paragraph (2), the words 'to assist in' are added for clarity and in recognition of the provisions of 18 U.S.C. 3056 which vest in the United States Secret Service the responsibility for the protection of the person of the President. As so revised, this paragraph will assure that the Secret Service will continue to have primary responsibility for the protection of the President but at the same time will permit the Federal Bureau of Investigation to render assistance in such protection. The last sentence is added because in various areas the authority to investigate certain criminal offenses has been specifically assigned by statute to departments and agencies other than the Federal Bureau of Investigation. For example, the enforcement of the internal revenue laws is specifically a function of the Secretary of the Treasury and he is authorized to employ such number of persons as he deems proper for the enforcement of such laws (26 U.S.C. 7801, 7803). The Secretary of the Treasury is specifically authorized to direct the collection of duties on imports and to appoint such employees for that purpose as he deems necessary (19 U.S.C. 3, 6). The U.S. Coast Guard is specifically authorized to enforce or assist in enforcing the Federal laws upon the high seas and waters subject to the jurisdiction of the United States (14 U.S.C. 2). Subject to the direction of the Secretary of the Treasury, the Secret Service is specifically authorized to detect and arrest persons committing offenses against the laws of the United States relating to coins and obligations and securities of the United States and foreign governments (18 U.S.C. 3056). FBI INVESTIGATIONS OF ESPIONAGE BY PERSONS EMPLOYED BY OR ASSIGNED TO UNITED STATES DIPLOMATIC MISSIONS ABROAD Pub. L. 101-193, title VI, Sec. 603, Nov. 30, 1989, 103 Stat. 1710, provided that: 'Subject to the authority of the Attorney General, the FBI shall supervise the conduct of all investigations of violations of the espionage laws of the United States by persons employed by or assigned to United States diplomatic missions abroad. All departments and agencies shall report immediately to the FBI any information concerning such a violation. All departments and agencies shall provide appropriate assistance to the FBI in the conduct of such investigations. Nothing in this provision shall be construed as establishing a defense to any criminal, civil, or administrative action.' UNDERCOVER INVESTIGATIVE OPERATIONS CONDUCTED BY FEDERAL BUREAU OF INVESTIGATION OR DRUG ENFORCEMENT ADMINISTRATION; ANNUAL REPORT TO CONGRESS; FINANCIAL AUDIT Pub. L. 101-515, title II, Sec. 202(b)(4), (5), Nov. 5, 1990, 104 Stat. 2118, provided that: '(4)(A) The Federal Bureau of Investigation or the Drug Enforcement Administration, as the case may be, shall conduct a detailed financial audit of each undercover investigative operation which is closed in fiscal year 1991 - '(i) submit the results of such audit in writing to the Attorney General, and '(ii) not later than 180 days after such undercover operation is closed, submit a report to the Congress concerning such audit. '(B) The Federal Bureau of Investigation and the Drug Enforcement Administration shall each also submit a report annually to the Congress specifying as to their respective undercover investigative operations - '(i) the number, by programs, of undercover investigative operations pending as of the end of the one-year period for which such report is submitted, '(ii) the number, by programs, of undercover investigative operations commenced in the one-year period preceding the period for which such report is submitted, and '(iii) the number, by programs, of undercover investigative operations closed in the one-year period preceding the period for which such report is submitted and, with respect to each such closed undercover operation, the results obtained. With respect to each such closed undercover operation which involves any of the sensitive circumstances specified in the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations, such report shall contain a detailed description of the operation and related matters, including information pertaining to - '(I) the results, '(II) any civil claims, and '(III) identification of such sensitive circumstances involved, that arose at any time during the course of such undercover operation. '(5) For purposes of paragraph (4) - '(A) the term 'closed' refers to the earliest point in time at which - '(i) all criminal proceedings (other than appeals) are concluded, or '(ii) covert activities are concluded, whichever occurs later. '(B) the term 'employees' means employees, as defined in section 2105 of title 5 of the United States Code of the Federal Bureau of Investigation, and '(C) the terms 'undercover investigative operations' and 'undercover operation' mean any undercover investigative operation of the Federal Bureau of Investigation or the Drug Enforcement Administration (other than a foreign counterintelligence undercover investigative operation) - '(i) in which - '(I) the gross receipts (excluding interest earned) exceed $50,000, or '(II) expenditures (other than expenditures for salaries of employees) exceed $150,000, and '(ii) which is exempt from section 3302 or 9102 of title 31 of the United States Code, except that clauses (i) and (ii) shall not apply with respect to the report required under subparagraph (B) of such paragraph.' Similar provisions were contained in the following prior appropriation acts: Pub. L. 101-162, title II, Sec. 204(b)(4), (5), Nov. 21, 1989, 103 Stat. 1004. Pub. L. 100-459, title II, Sec. 204(b)(4), (5), Oct. 1, 1988, 102 Stat. 2200, 2201, as amended by Pub. L. 101-650, title III, Sec. 325(c)(2), Dec. 1, 1990, 104 Stat. 5121. Pub. L. 100-202, Sec. 101(a) (title II, Sec. 204(b)(4), (5)), Dec. 22, 1987, 101 Stat. 1329, 1329-16. Pub. L. 99-500, Sec. 101(b) (title II, Sec. 204(b)(4), (5)), Oct. 18, 1986, 100 Stat. 1783-39, 1783-52, 1783-53, and Pub. L. 99-591, Sec. 101(b) (title II, Sec. 204(b)(4), (5)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-52, 3341-53. Pub. L. 99-180, title II, Sec. 204(b)(4), (5), Dec. 13, 1985, 99 Stat. 1148. Pub. L. 98-411, title II, Sec. 203(b)(4), (5), Aug. 30, 1984, 98 Stat. 1560. Pub. L. 98-166, title II, Sec. 205(b)(4), (5), Nov. 28, 1983, 97 Stat. 1087. Pub. L. 96-132, Sec. 7(d), Nov. 30, 1979, 93 Stat. 1046, provided that: '(1) The Federal Bureau of Investigation shall conduct detailed financial audits of undercover operations closed on or after October 1, 1979, and - '(A) report the results of each audit in writing to the Department of Justice, and '(B) report annually to the Congress concerning these audits. '(2) For the purposes of paragraph (1), 'undercover operation' means any undercover operation of the Federal Bureau of Investigation, other than a foreign counterintelligence undercover operation - '(A) in which the gross receipts exceed $50,000, and '(B) which is exempted from section 3617 of the Revised Statutes (31 U.S.C. 484) (31 U.S.C. 3302(b)) or section 304(a) of the Government Corporation Control Act (31 U.S.C. 869(a)) (31 U.S.C. 9102).' ------DocID 36367 Document 229 of 1452------ -CITE- 28 USC Sec. 534 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 534. Acquisition, preservation, and exchange of identification records and information; appointment of officials -STATUTE- (a) The Attorney General shall - (1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records; (2) acquire, collect, classify, and preserve any information which would assist in the identification of any deceased individual who has not been identified after the discovery of such deceased individual; (3) acquire, collect, classify, and preserve any information which would assist in the location of any missing person (including an unemancipated person as defined by the laws of the place of residence of such person) and provide confirmation as to any entry for such a person to the parent, legal guardian, or next of kin of that person (and the Attorney General may acquire, collect, classify, and preserve such information from such parent, guardian, or next of kin); (FOOTNOTE 1) (FOOTNOTE 1) So in original. Probably should be followed by 'and'. (4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions. (b) The exchange of records and information authorized by subsection (a)(4) of this section is subject to cancellation if dissemination is made outside the receiving departments or related agencies. (c) The Attorney General may appoint officials to perform the functions authorized by this section. (d) For purposes of this section, the term 'other institutions' includes - (1) railroad police departments which perform the administration of criminal justice and have arrest powers pursuant to a State statute, which allocate a substantial part of their annual budget to the administration of criminal justice, and which meet training requirements established by law or ordinance for law enforcement officers; and (2) police departments of private colleges or universities which perform the administration of criminal justice and have arrest powers pursuant to a State statute, which allocate a substantial part of their annual budget to the administration of criminal justice, and which meet training requirements established by law or ordinance for law enforcement officers. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616, and amended Pub. L. 97-292, Sec. 2, 3(a), Oct. 12, 1982, 96 Stat. 1259; Pub. L. 100-690, title VII, Sec. 7333, Nov. 18, 1988, 102 Stat. 4469.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 300 (as Aug. 31, 1964, Pub. applicable to L. 88-527, Sec. 201 acquisition etc. of (1st 105 words of identification and 1st par. under other records). 'Federal Bureau of Investigation', as applicable to acquisition etc. of identification and other records), 78 Stat. 717. 5 U.S.C. 340. June 11, 1930, ch. 455, 46 Stat. 554. ------------------------------- The sections are combined and reorganized for clarity. Former section 300 of title 5 was from the Department of Justice Appropriation Act, 1965. Similar provisions were contained in each appropriation Act for the Department of Justice running back to 1921, which Acts are identified in a note under former section 300 of title 5, U.S.C. 1964 ed. In subsection (a), the word 'shall' is substituted for 'has the duty' as a more direct expression. The function of acquiring, collecting, classifying, etc., referred to in former section 340 of title 5 was transferred to the Attorney General by 1950 Reorg., Plan No. 2, Sec. 1, eff. May 24, 1950, 64 Stat. 1261, which is codified in section 509 of this title. Accordingly, the first 29 words and last 30 words of former section 340 are omitted as unnecessary. In subsection (c), the authority to appoint officials for the cited purposes is implied. AMENDMENTS 1988 - Subsec. (d). Pub. L. 100-690 added subsec. (d). 1982 - Pub. L. 97-292, Sec. 3(a), inserted 'and information' after 'identification records' in section catchline. Subsec. (a). Pub. L. 97-292, Sec. 2(a), added pars. (2) and (3), redesignated former par. (2) as (4), and substituted 'exchange such records and information' for 'exchange these records' in par. (4). Subsec. (b). Pub. L. 97-292, Sec. 2(b), substituted 'exchange of records and information authorized by subsection (a)(4)' for 'exchange of records authorized by subsection (a)(2)'. NATIONAL CRIME INFORMATION CENTER PROJECT 2000 Pub. L. 101-647, title VI, subtitle B, Nov. 29, 1990, 104 Stat. 4823, provided that: 'SEC. 611. SHORT TITLE. 'This section (subtitle) may be cited as the 'National Law Enforcement Cooperation Act of 1990'. 'SEC. 612. FINDINGS. 'The Congress finds that - '(1) cooperation among Federal, State and local law enforcement agencies is critical to an effective national response to the problems of violent crime and drug trafficking in the United States; '(2) the National Crime Information Center, which links more than 16,000 Federal, State and local law enforcement agencies, is the single most important avenue of cooperation among law enforcement agencies; '(3) major improvements to the National Crime Information Center are needed because the current system is more than twenty years old; carries much greater volumes of enforcement information; and at this time is unable to incorporate technological advances that would significantly improve its performance; and '(4) the Federal Bureau of Investigation, working with State and local law enforcement agencies and private organizations, has developed a promising plan, 'NCIC 2000', to make the necessary upgrades to the National Crime Information Center that should meet the needs of United States law enforcement agencies into the next century. 'SEC. 613. AUTHORIZATION OF APPROPRIATIONS. 'There are authorized to be appropriated the following sums to implement the 'NCIC 2000' project: '(1) $17,000,000 for fiscal year 1991; '(2) $25,000,000 for fiscal year 1992; '(3) $22,000,000 for fiscal year 1993; '(4) $9,000,000 for fiscal year 1994; and '(5) such sums as may be necessary for fiscal year 1995. 'SEC. 614. REPORT. 'By February 1 of each fiscal year for which funds for NCIC 2000 are requested, the Director of the Federal Bureau of Investigation shall submit a report to the Committees on the Judiciary of the Senate and House of Representatives that details the progress that has been made in implementing NCIC 2000 and a complete justification for the funds requested in the following fiscal year for NCIC 2000.' FBI FEES TO PROCESS FINGERPRINT IDENTIFICATION RECORDS AND NAME CHECKS Pub. L. 101-515, title II, Nov. 5, 1990, 104 Stat. 2112, provided in part that: 'for fiscal year 1991 and hereafter the Director of the Federal Bureau of Investigation may establish and collect fees to process fingerprint identification records and name checks for non-criminal justice, non-law enforcement employment and licensing purposes and for certain employees of private sector contractors with classified Government contracts, and notwithstanding the provisions of 31 U.S.C. 3302, credit such fees to this appropriation to be used for salaries and other expenses incurred in providing these services, and that the Director of the Federal Bureau of Investigation may establish such fees at a level to include an additional amount to establish a fund to remain available until expended to defray expenses for the automation of fingerprint identification services and associated costs'. HATE CRIME STATISTICS Pub. L. 101-275, Apr. 23, 1990, 104 Stat. 140, provided: 'That (a) this Act may be cited as the 'Hate Crime Statistics Act'. '(b)(1) Under the authority of section 534 of title 28, United States Code, the Attorney General shall acquire data, for the calendar year 1990 and each of the succeeding 4 calendar years, about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property. '(2) The Attorney General shall establish guidelines for the collection of such data including the necessary evidence and criteria that must be present for a finding of manifest prejudice and procedures for carrying out the purposes of this section. '(3) Nothing in this section creates a cause of action or a right to bring an action, including an action based on discrimination due to sexual orientation. As used in this section, the term 'sexual orientation' means consensual homosexuality or heterosexuality. This subsection does not limit any existing cause of action or right to bring an action, including any action under the Administrative Procedure Act (5 U.S.C. 551 et seq., 701 et seq.) or the All Writs Act (see 28 U.S.C. 1651). '(4) Data acquired under this section shall be used only for research or statistical purposes and may not contain any information that may reveal the identity of an individual victim of a crime. '(5) The Attorney General shall publish an annual summary of the data acquired under this section. '(c) There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this section through fiscal year 1994. 'Sec. 2. (a) Congress finds that - '(1) the American family life is the foundation of American Society, '(2) Federal policy should encourage the well-being, financial security, and health of the American family, '(3) schools should not de-emphasize the critical value of American family life. '(b) Nothing in this Act shall be construed, nor shall any funds appropriated to carry out the purpose of the Act be used, to promote or encourage homosexuality.' UNIFORM FEDERAL CRIME REPORTING ACT OF 1988 Section 7332 of Pub. L. 100-690 provided that: '(a) Short Title. - This section may be cited as the 'Uniform Federal Crime Reporting Act of 1988'. '(b) Definitions. - For purposes of this section, the term 'Uniform Crime Reports' means the reports authorized under section 534 of title 28, United States Code, and administered by the Federal Bureau of Investigation which compiles nationwide criminal statistics for use in law enforcement administration, operation, and management and to assess the nature and type of crime in the United States. '(c) Establishment of System. - '(1) In general. - The Attorney General shall acquire, collect, classify, and preserve national data on Federal criminal offenses as part of the Uniform Crime Reports. '(2) Reporting by federal agencies. - All departments and agencies within the Federal government (including the Department of Defense) which routinely investigate complaints of criminal activity, shall report details about crime within their respective jurisdiction to the Attorney General in a uniform manner and on a form prescribed by the Attorney General. The reporting required by this subsection shall be limited to the reporting of those crimes comprising the Uniform Crime Reports. '(3) Distribution of data. - The Attorney General shall distribute data received pursuant to paragraph (2), in the form of annual Uniform Crime Reports for the United States, to the President, Members of the Congress, State governments, and officials of localities and penal and other institutions participating in the Uniform Crime Reports program. '(d) Role of Federal Bureau of Investigation. - The Attorney General may designate the Federal Bureau of Investigation as the lead agency for purposes of performing the functions authorized by this section and may appoint or establish such advisory and oversight boards as may be necessary to assist the Bureau in ensuring uniformity, quality, and maximum use of the data collected. '(e) Inclusion of Offenses Involving Illegal Drugs. - The Director of the Federal Bureau of Investigation is authorized to classify offenses involving illegal drugs and drug trafficking as a part I crime in the Uniform Crime Reports. '(f) Authorization of Appropriations. - There are authorized to be appropriated $350,000 for fiscal year 1989 and such sums as may be necessary to carry out the provisions of this section after fiscal year 1989. '(g) Effective Date. - The provisions of this section shall be effective on January 1, 1989.' FAMILY AND DOMESTIC VIOLENCE; DATA COLLECTION AND REPORTING Section 7609 of Pub. L. 100-690 provided that: '(a) Family Violence Reporting. - Under the authority of section 534 of title 28, United States Code, the Attorney General shall require, and include in uniform crime reports, data that indicate - '(1) the age of the victim; and '(2) the relationship of the victim to the offender, for crimes of murder, aggravated assault, simple assault, rape, sexual offenses, and offenses against children. '(b) National Crime Survey. - The Director of the Bureau of Justice Statistics, through the annual National Crime Survey, shall collect and publish data that more accurately measures the extent of domestic violence in America, especially the physical and sexual abuse of children and the elderly. '(c) Authorization of Appropriations. - There are authorized to be appropriated in fiscal years 1989, 1990, 1991, and 1992, such sums as are necessary to carry out the purposes of this section.' PARIMUTUEL LICENSING SIMPLIFICATION Pub. L. 100-413, Aug. 22, 1988, 102 Stat. 1101, provided that: 'SECTION 1. SHORT TITLE. 'This Act may be cited as the 'Parimutuel Licensing Simplification Act of 1988'. 'SEC. 2. SUBMISSION BY ASSOCIATION OF STATE REGULATORY OFFICIALS. '(a) In General. - An association of State officials regulating parimutuel wagering, designated for the purpose of this section by the Attorney General, may submit fingerprints to the Attorney General on behalf of any applicant for State license to participate in parimutuel wagering. In response to such a submission, the Attorney General may, to the extent provided by law, exchange, for licensing and employment purposes, identification and criminal history records with the State governmental bodies to which such applicant has applied. '(b) Definition. - As used in this section, the term 'State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States. 'SEC. 3. EFFECTIVE DATE. 'This Act shall take effect on July 1, 1989.' FUNDS FOR EXCHANGE OF IDENTIFICATION RECORDS Pub. L. 92-544, title II, Sec. 201, Oct. 25, 1972, 86 Stat. 1115, provided that: 'The funds provided for Salaries and Expenses, Federal Bureau of Investigation, may be used hereafter, in addition to those uses authorized thereunder, for the exchange of identification records with officials or federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned appropriation.' ------DocID 36368 Document 230 of 1452------ -CITE- 28 USC Sec. 535 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 535. Investigation of crimes involving Government officers and employees; limitations -STATUTE- (a) The Attorney General and the Federal Bureau of Investigation may investigate any violation of title 18 involving Government officers and employees - (1) notwithstanding any other provision of law; and (2) without limiting the authority to investigate any matter which is conferred on them or on a department or agency of the Government. (b) Any information, allegation, or complaint received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, unless - (1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or (2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, or complaint. (c) This section does not limit - (1) the authority of the military departments to investigate persons or offenses over which the armed forces have jurisdiction under the Uniform Code of Military Justice (chapter 47 of title 10); or (2) the primary authority of the Postmaster General to investigate postal offenses. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 616.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 311a. Aug. 31, 1954, ch. 1143, Sec. 1, 68 Stat. 998. ------------------------------- The section is reorganized for clarity and continuity. In subsection (a), the word 'may' is substituted for 'shall have authority'. The word 'is' is substituted for 'may have been or may hereafter be'. In subsection (c), the words 'This section does not limit' are substituted for 'that the provisions of this section shall not limit, in any way'. The words '(chapter 47 of title 10)' are added after 'Uniform Code of Military Justice' to reflect the codification of that Code in title 10, United States Code. -TRANS- TRANSFER OF FUNCTIONS Office of Postmaster General of Post Office Department abolished and all functions, powers, and duties of Postmaster General transferred to United States Postal Service by Pub. L. 91-375, Sec. 4(a), Aug. 12, 1970, 84 Stat. 773, set out as a note under section 201 of Title 39, Postal Service. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 50 section 403q. ------DocID 36369 Document 231 of 1452------ -CITE- 28 USC Sec. 536 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 536. Positions in excepted service -STATUTE- All positions in the Federal Bureau of Investigation are excepted from the competitive service, and the incumbents of such positions occupy positions in the excepted service. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 617.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 300d. Aug. 31, 1964, Pub. L. 88-527, Sec. 201 (2nd par. under 'Federal Bureau of Investigation'), 78 Stat. 718. 5 U.S.C. 341c (last July 28, 1950, ch. sentence). 503, Sec. 5 (last sentence), 4 Stat. 380. ------------------------------- The section is revised and restated to eliminate ambiguity and give true effect to the prohibition against the use of appropriations to the Federal Bureau of Investigation. The language used to define the excepted status of the positions, officers, and employees is based on revised sections 2102 and 2103 of title 5, United States Code. The provisions of this section were made permanent by the Act of July 28, 1950, 64 Stat. 380. Identical provisions appearing in former section 300d of title 5 are derived from the Department of Justice Appropriation Act, 1965, and earlier appropriation Acts for the Department of Justice running back to 1942, which Acts are identified in a note under former section 300d of title 5, U.S.C. 1964 ed. ------DocID 36370 Document 232 of 1452------ -CITE- 28 USC Sec. 537 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 537. Expenses of unforeseen emergencies of a confidential character -STATUTE- Appropriations for the Federal Bureau of Investigation are available for expenses of unforeseen emergencies of a confidential character, when so specified in the appropriation concerned, to be spent under the direction of the Attorney General. The Attorney General shall certify the amount spent that he considers advisable not to specify, and his certification is a sufficient voucher for the amount therein expressed to have been spent. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 617.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 341c (less July 28, 1950, ch. last sentence). 503, Sec. 5 (less last sentence), 64 Stat. 380. ------------------------------- The section is revised and reorganized for clarity. The words 'now or hereafter provided' are omitted as unnecessary. The words 'for expenses of membership in the International Commission of Criminal Police and' are omitted as obsolete. The Act of Aug. 27, 1958, Pub. L. 85-768, 72 Stat. 921 (22 U.S.C. 263a) authorizes the Attorney General to accept and maintain, on behalf of the United States, membership in the International Criminal Police Organization, and to designate any departments and agencies which may participate in the United States representation with that organization; and authorizes each participating department and agency to pay its pro rata share, as determined by the Attorney General, of the expenses of such membership. The word 'spent' is substituted for 'expended'. The words 'certify the amount spent that he considers' are substituted for 'make a certificate of the amount of any such expenditure as he may think it'. The words 'his certification is a sufficient voucher' are substituted for 'and every such certificate shall be deemed a sufficient voucher'. ------DocID 36371 Document 233 of 1452------ -CITE- 28 USC Sec. 539 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 539. (FOOTNOTE 1) Counterintelligence official reception and representation expenses -STATUTE- (FOOTNOTE 1) So in original. There is no section 538. The Director of the Federal Bureau of Investigation may use funds available to the Federal Bureau of Investigation for counterintelligence programs to pay the expenses of hosting foreign officials in the United States under the auspices of the Federal Bureau of Investigation for consultation on counterintelligence matters. -SOURCE- (Added Pub. L. 99-569, title IV, Sec. 401(a), Oct. 27, 1986, 100 Stat. 3195.) ------DocID 36372 Document 234 of 1452------ -CITE- 28 USC Sec. 540 -EXPCITE- TITLE 28 PART II CHAPTER 33 -HEAD- Sec. 540. Investigation of felonious killings of State or local law enforcement officers -STATUTE- The Attorney General and the Federal Bureau of Investigation may investigate felonious killings of officials and employees of a State or political subdivision thereof while engaged in or on account of the performance of official duties relating to the prevention, detection, investigation, or prosecution of an offense against the criminal laws of a State or political subdivision, when such investigation is requested by the head of the agency employing the official or employee killed, and under such guidelines as the Attorney General or his designee may establish. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7331(a), Nov. 18, 1988, 102 Stat. 4468.) ------DocID 36373 Document 235 of 1452------ -CITE- 28 USC CHAPTER 35 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- CHAPTER 35 - UNITED STATES ATTORNEYS -MISC1- Sec. 541. United States attorneys. 542. Assistant United States attorneys. 543. Special attorneys. 544. Oath of office. 545. Residence. 546. Vacancies. 547. Duties. 548. Salaries. 549. Expenses. 550. Clerical assistants, messengers, and private process servers. AMENDMENTS 1990 - Pub. L. 101-647, title XXXVI, Sec. 3626(b), Nov. 29, 1990, 104 Stat. 4965, substituted 'Clerical assistants, messengers, and private process servers' for 'Clerical assistants and messengers' in item 550. 1966 - Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 617, added chapter 35 and items 541 to 550. -CROSS- CROSS REFERENCES United States attorney for Guam, Virgin Islands, and Northern Mariana Islands, this chapter as applicable, see sections 1424b, 1617, and 1694 of Title 48, Territories and Insular Possessions. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 48 sections 1424b, 1617, 1694. ------DocID 36374 Document 236 of 1452------ -CITE- 28 USC Sec. 541 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 541. United States attorneys -STATUTE- (a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district. (b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies. (c) Each United States attorney is subject to removal by the President. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 617.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (a) 28 U.S.C. 501. (None). (b) 28 U.S.C. 504(a). (None). (c) 28 U.S.C. 504(b) (None). (less 2d sentence). ------------------------------- In subsection (c), the word 'is' is substituted for 'shall be'. 1948 ACT Prior section 501. - Based on title 28, U.S.C., 1940 ed., Sec. 481, sections 643 and 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and section 11-1001, District of Columbia Code, 1940 ed. (R.S., Sec. 767; June 26, 1876, ch. 147, Sec. 1, 4, 19 Stat. 61, 62; Feb. 24, 1879, ch. 97, Sec. 8, 20 Stat. 320; Mar. 3, 1881, ch. 144, Sec. 7, 21 Stat. 507; Apr. 25, 1882, ch. 87, Sec. 1, 3, 22 Stat. 47; July 20, 1882, ch. 312, Sec. 3, 22 Stat. 172; Aug. 5, 1886, ch. 928, Sec. 7, 24 Stat. 309; Feb. 22, 1889, ch. 180, Sec. 21, 25 Stat. 682; July 3, 1890, ch. 656, Sec. 16, 26 Stat. 217; July 10, 1890, ch. 664, Sec. 16, 26 Stat. 225; Mar. 3, 1893, ch. 220, 27 Stat. 745; July 16, 1894, ch. 138, Sec. 14, 16, 28 Stat. 110, 111; June 24, 1898, ch. 495, Sec. 1, 30 Stat. 487; Apr. 12, 1900, ch. 191, Sec. 34, 31 Stat. 85; Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; May 12, 1900, ch. 391, Sec. 9, 31 Stat. 176; Jan. 22, 1901, ch. 105, Sec. 4, 7, 31 Stat. 736, 737; Feb. 12, 1901, ch. 355, Sec. 5, 7, 31 Stat. 782; Mar. 2, 1901, ch. 801, Sec. 3, 5, 31 Stat. 881; Mar. 3, 1901, ch. 854, Sec. 183, 31 Stat. 1220; Mar. 11, 1902, ch. 183, Sec. 5, 6, 32 Stat. 66; June 30, 1902, ch. 1329, 32 Stat. 527; Mar. 2, 1905, ch. 1305, Sec. 4, 6, 33 Stat. 824; Mar. 3, 1905, ch. 1427, Sec. 13, 15, 19, 33 Stat. 995, 996; June 16, 1906, ch. 3335, Sec. 13, 34 Stat. 275; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 3, 1915, ch. 100, Sec. 3, 4, 38 Stat. 961; Mar. 2, 1917, ch. 145, Sec. 41, 39 Stat. 965; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; May 28, 1926, ch. 414, Sec. 2(b), 44 Stat. 672; Apr. 21, 1928, ch. 393, 45 Stat. 437; Mar. 26, 1928, ch. 51, Sec. 2, 52 Stat. 118). Section consolidates section 481 of title 28, U.S.C., 1940 ed., and section 11-1001 of the District of Columbia Code, 1940 ed., with parts of sections 643 and 863 of title 48, U.S.C., 1940 ed., relating to appointment of United States attorneys. The term 'United States attorney' was adopted in this section for 'attorney for the United States.' Since the decision of the Supreme Court of the United States in In re Neagle, 1890 (10 S. Ct. 658, 135 U.S. 1, 34, L. Ed. 55) where the terms 'attorneys of the United States' and 'district attorneys' were used interchangeably, Congress has also designated such officers as either 'United States attorneys' or as 'district attorneys.' See Acts of Feb. 22, 1886, ch. 928, Sec. 7, 24 Stat. 309; July 3, 1890, ch. 656, Sec. 16, 26 Stat. 217; July 10, 1890, ch. 664, Sec. 16, 26 Stat. 225, and Acts of July 20, 1882, ch. 312, Sec. 3, 22 Stat. 172; Mar. 3, 1915, ch. 100, Sec. 3, 38 Stat. 961; May 28, 1926, ch. 414, Sec. 2(b), 44 Stat. 672. At present, such officers are invariably designated as 'United States attorneys' by Federal courts and the Department of Justice. Words 'The President may appoint, by and with the advice and consent of the Senate,' were inserted to conform section with the Constitution. See article II, section 2, clause 2. Words 'including the District of Columbia' were omitted, because the District is made a judicial district by section 88 of this title. District of Columbia Code, 1940 ed., Sec. 11-1001, provided for appointment of an 'attorney of the United States for the District' by the President, subject to Senate confirmation. Words 'learned in the law' were omitted as unnecessary. Such requirement is not made of United States judges and no reason appears to make a distinction respecting United States attorneys. Parts of section 863 of title 48, U.S.C., 1940 ed., remain in said title 48. For remainder thereof, see Distribution Table. Other provisions of section 643 of such title are incorporated in sections 133, 504 (now 541 and 544), and 541 (see 561) of this title. Changes were made in phraseology. (The Historical and Revision Notes for former section 504, from which this section is partially derived, is set out under section 544 of this title.) PRIOR PROVISIONS A prior section 541, acts June 25, 1948, ch. 646, 62 Stat 910; Mar. 18, 1959, Pub. L. 86-3, Sec. 11(c), (d), 73 Stat. 9, which related to appointment, residence and tenure of marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 561 of this title by section 4(c) of Pub. L. 89-554. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 546 of this title. ------DocID 36375 Document 237 of 1452------ -CITE- 28 USC Sec. 542 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 542. Assistant United States attorneys -STATUTE- (a) The Attorney General may appoint one or more assistant United States attorneys in any district when the public interest so requires. (b) Each assistant United States attorney is subject to removal by the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (a) 28 U.S.C. 502. (None). (b) 28 U.S.C. 504(b) (2d (None). sentence, as applicable to assistant United States attorneys). ------------------------------- In subsection (b), the word 'is' is substituted for 'shall be'. 1948 ACT Prior section 502. - Based on title 28, U.S.C., 1940 ed., Sec. 483, 594 (May 28, 1896, ch. 252, Sec. 8, 29 Stat. 181; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 209; Mar. 4, 1923, ch. 295, 42 Stat. 1560; June 25, 1936, ch. 804, 49 Stat. 1921). Section consolidates sections 483 and 594 of title 28, U.S.C., 1940 ed., relating to appointment of assistant United States attorneys. Words 'United States attorneys' were substituted for 'district attorneys.' (See reviser's note under section 501 (now 541) of this title.) The exception of Alaska from the operation of such section 483 was omitted as covered by section 109 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, authorizing appointment of assistant United States attorneys in Alaska. Reference in such section 483 to 'District of Columbia' was omitted. (See reviser's note under section 501 (now 541) of this title.) The provisions of sections 483 and 594 of title 28, U.S.C., 1940 ed., requiring the judges and United States attorneys to certify or evidence in writing the necessity for assistant United States attorneys in their respective districts, and specifying that such opinion of the judge shall state to the Attorney General the facts as distinguished from conclusions, showing the necessity therefor, were omitted. The Attorney General, as chief law enforcement officer, is in a better position to determine such necessity. The salary provisions of such section 594 were omitted as covered by section 508 (now 548) of this title. Changes were made in phraseology. PRIOR PROVISIONS A prior section 542, act June 25, 1948, ch. 646, 62 Stat. 911, which related to appointment and tenure of deputies and assistants for United States marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 562 of this title by section 4(c) of Pub. L. 89-554. ------DocID 36376 Document 238 of 1452------ -CITE- 28 USC Sec. 543 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 543. Special attorneys -STATUTE- (a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires. (b) Each attorney appointed under this section is subject to removal by the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- (a) 28 U.S.C. 503. (None). 5 U.S.C. 298. July 28, 1916, ch. 261, Sec. 1 (6th par. on p. 413), 39 Stat. 413. (b) 28 U.S.C. 504(b) (2d (None). sentence, less applicability to assistant United States attorneys). ------------------------------- The text of former section 298 of title 5 is omitted as unnecessary. The position so authorized has not been filled in recent years, and the authority is preserved by this section and revised section 3101 of title 5, United States Code. In subsection (b), the word 'is' is substituted for 'shall be'. 1948 ACT Prior section 503. - Based on section 312 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees (R.S. Sec. 363). Other provisions of section 312 of title 5, U.S.C., 1940 ed., are incorporated in sections 507 (now 509 and 547) and 508 (now 548) of this title. Changes were made in phraseology. PRIOR PROVISIONS A prior section 543, act June 25, 1948, ch. 646, 62 Stat. 911, which related to oath of office for United States Marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 563 of this title by section 4(c) of Pub. L. 89-554. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 519, 544, 548 of this title. ------DocID 36377 Document 239 of 1452------ -CITE- 28 USC Sec. 544 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 544. Oath of office -STATUTE- Each United States attorney, assistant United States attorney, and attorney appointed under section 543 of this title, before taking office, shall take an oath to execute faithfully his duties. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 504(c). (None). ------------------------------- 1948 ACT Prior section 504. - Based on section 315 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees, title 28, U.S.C., 1940 ed., Sec. 482, and sections 643 and 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (R.S. Sec. 366, 769; June 24, 1898, ch. 495, Sec. 1, 30 Stat. 487; Apr. 12, 1900, ch. 191, Sec. 34, 31 Stat. 85; Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 2, 1917, ch. 145, Sec. 41, 39 Stat. 965; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; Feb. 12, 1925, ch. 220, 43 Stat. 890; Apr. 17, 1930, ch. 174, 46 Stat. 170; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118). Section consolidates parts of sections 315 of title 5, U.S.C., 1940 ed., and 643 and 863 of title 48, both U.S.C., 1940 ed., with section 482 of title 28, U.S.C., 1940 ed. It is recommended that said section 315 be amended so as to omit those provisions relating to special attorneys to assist 'district attorneys' which were used as part of the basis for this section, as other parts of said section 315, relating to special assistants to the Attorney General, and to foreign counsel, are to remain in title 5. Words 'United States attorney' were substituted for district attorney, and reference to District of Columbia was omitted. (See reviser's note under section 501 (now 541) of this title.) Reference to the territories in said section 482, was also omitted as covered by provisions of title 48, U.S.C., 1940 ed., Territories and Insular Possessions. See sections 109 and 112 of such title applicable to United States attorney in Alaska, and 1353 applicable in the Canal Zone, and 1405y applicable in the Virgin Islands. The provision as to the tenure of the assistant United States attorneys and special attorneys is new. Existing law contains no provision as to tenure or removal of such officials. While the Supreme Court has held that the power of removal of executive officials is incident to the power of appointment, this section expressly provides for removal. See Meyers v. United States, 1926 (47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160). Said section 315 contained a provision that special attorneys appointed to assist United States attorneys should take the same oath required of the latter. This section was extended to assistant United States attorneys, respecting whom no provision existed as to oaths. A portion of section 863 of title 48, U.S.C., 1940 ed., is retained in said title 48. For remainder of said section 863, see Distribution Table. Other provisions of section 643 of such title are incorporated in sections 133, 501 (now 541), and 541 (see 561) of this title. Other changes were made in phraseology. PRIOR PROVISIONS A prior section 544, acts June 25, 1948, ch. 646, 62 Stat. 911; Sept. 2, 1958, Pub. L. 85-856, 72 Stat. 1104, which related to bonds of United States marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 564 of this title by section 4(c) of Pub. L. 89-554. ------DocID 36378 Document 240 of 1452------ -CITE- 28 USC Sec. 545 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 545. Residence -STATUTE- (a) Each United States attorney and assistant United States attorney shall reside in the district for which he is appointed, except that these officers of the District of Columbia, the Southern District of New York, and the Eastern District of New York may reside within 20 miles thereof. The provisions of this subsection shall not apply to any United States attorney or assistant United States attorney appointed for the Northern Mariana Islands who at the same time is serving in the same capacity in another district. (b) The Attorney General may determine the official stations of United States attorneys and assistant United States attorneys within the districts for which they are appointed. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618, and amended Pub. L. 95-530, Sec. 1, Oct. 27, 1978, 92 Stat. 2028; Pub. L. 96-91, Oct. 25, 1979, 93 Stat. 700.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 505. (None). ------------------------------- In subsection (a), the word 'shall' is substituted for 'must'. The word 'thereof' is substituted for 'of the District'. 1948 ACT Prior section 505. - Based on title 28, U.S.C., 1940 ed., Sec. 524 (June 20, 1874, ch. 328, Sec. 2, 18 Stat. 109; May 28, 1896, ch. 252, Sec. 8, 12, 29 Stat. 181, 183; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; June 14, 1941, ch. 203, Sec. 1, 2, 55 Stat. 251). The provisions of section 524 of title 28, U.S.C., 1940 ed., that the United States attorney shall give his personal attention to the duties of his office and declaring the office of United States attorney vacant upon his removal from his district or neglect of duty, were omitted as unnecessary and inconsistent with section 507(b) (now 519) of this title, charging the Attorney General with the duty of supervising the United States attorneys in the performance of their duties. The provision permitting the United States attorney and his assistants to reside within twenty miles of the District of Columbia was added because of the relatively small and congested area of the District, as a result of which few Federal officers are appointed from the District or reside therein. Also the residence requirement of this section has no relation to domicile or voting residence nor does it affect the citizenship or residence status of District of Columbia officeholders in the several States from which appointed. Only citizens of Hawaii resident therein at least 3 years preceding appointment may be appointed as United States Attorneys for the district of Hawaii. See section 501 (now 541) of this title. Other provisions of section 524 of title 28, U.S.C., 1940 ed., were incorporated in sections 541 (see 561) and 751 of this title. Changes were made in phraseology. PRIOR PROVISIONS A prior section 545, act June 25, 1948, ch. 646, 62 Stat. 911, which related to vacancies in the office of the United States Marshal, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 565 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1979 - Subsec. (a). Pub. L. 96-91 inserted provisions authorizing the United States attorney and the assistant United States attorneys for the Eastern District of New York to reside outside the district but within 20 miles thereof. 1978 - Subsec. (a). Pub. L. 95-530 inserted provision that this subsection not apply to any United States attorney or assistant United States attorney appointed for the Northern Mariana Islands who at the same time is serving in the same capacity in another district. ------DocID 36379 Document 241 of 1452------ -CITE- 28 USC Sec. 546 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 546. Vacancies -STATUTE- (a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant. (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent. (c) A person appointed as United States attorney under this section may serve until the earlier of - (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or (2) the expiration of 120 days after appointment by the Attorney General under this section. (d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618, and amended Pub. L. 99-646, Sec. 69, Nov. 10, 1986, 100 Stat. 3616.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 506. (None). ------------------------------- 1948 ACT Prior section 506. - Based on title 28, U.S.C., 1940 ed., Sec. 511 (R.S. Sec. 793; June 24, 1898, ch. 495, Sec. 2, 30 Stat. 487; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Words 'United States attorney' were substituted for 'district attorney.' (See Reviser's Note under section 501 (now 541) of this title.) Words 'The Supreme Court of the Territory, and the district court of the United States for the District of Columbia' were omitted as obsolete. This section, as revised, applies to all districts enumerated in chapter 5 of this title. There were no provisions respecting vacancies in Hawaii and Puerto Rico. Therefore this section remedies this situation and establishes a uniform method to fill interim vacancies. Words 'and a copy shall be entered on the journal of the court' after 'filed in the clerk's office of said court', in section 511 of title 28, U.S.C., 1940 ed., were omitted as unnecessary. The provisions of section 511 of title 28, U.S.C., 1940 ed., relating to marshals, are incorporated in sections 544 and 545 (see Prior Provisions notes under those sections) of this title. Changes were made in phraseology. PRIOR PROVISIONS A prior section 546, act June 25, 1948, ch. 646, 62 Stat. 911, which related to death of a marshal, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 566 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1986 - Pub. L. 99-646 amended section generally. Prior to amendment, section read as follows: 'The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.' ------DocID 36380 Document 242 of 1452------ -CITE- 28 USC Sec. 547 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 547. Duties -STATUTE- Except as otherwise provided by law, each United States attorney, within his district, shall - (1) prosecute for all offenses against the United States; (2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned; (3) appear in behalf of the defendants in all civil actions, suits or proceedings pending in his district against collectors, or other officers of the revenue or customs for any act done by them or for the recovery of any money exacted by or paid to these officers, and by them paid into the Treasury; (4) institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law, unless satisfied on investigation that justice does not require the proceedings; and (5) make such reports as the Attorney General may direct. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 507(a). (None). ------------------------------- The word 'shall' is substituted for 'it shall be the duty of'. 1948 ACT Prior section 507. - Based on sections 312, 317, 323, 324, 327, 329, 330, 331 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees; second paragraph of section 305e of title 25, U.S.C., 1940 ed., Indians; and title 28, U.S.C., 1940 ed., Sec. 485, 486, 487, 488, 489 (R.S. Sec. 362, 363, 373, 374, 377, 379-381, 771-775, 838; Feb. 27, 1877, ch. 69, Sec. 1, 19 Stat. 241; Apr. 9, 1910, ch. 152, 36 Stat. 294; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; May 10, 1934, ch. 277, Sec. 512, 48 Stat. 758; Aug. 27, 1935, ch. 748, Sec. 6, 49 Stat. 893). This section consolidates provisions of the sections enumerated above. Other provisions of section 312 of title 5, U.S.C., 1940 ed., are incorporated in sections 503 (now 543) and 508 (now 548) of this title. All requirements in said sections for reports to officers other than the Attorney General are omitted as unnecessary and are simplified in subsection (a)(5) of this section. The Attorney General directs the course of litigation in government cases and makes appropriate rules for furnishing information promptly to the Departments interested. Specific duties fixed by sections 485 - 489 of title 28, U.S.C., 1940 ed., and the second paragraph of section 305e of title 25, U.S.C., 1940 ed., to prosecute and defend both civil and criminal proceedings, are covered in subsections (a)(1)-(4) of this section. Use of 'revenue law' in subsection (a)(4) in this section, which is based on section 486 of title 28, U.S.C., 1940 ed., obviates repetition of provisions relating to customs and revenue laws as both are covered by the term. For discussion of this point, see reviser's note under section 3283 in House Report 152, to accompany H.R. 1600 Eightieth Congress, for revision of the Criminal Code. The following sections of said title 5, U.S.C., 1940 ed., are superseded by, covered by, or inconsistent with subsection (a)(2)(5) of this section, subsection (b) of this section (now section 519 of this title), and section 5 of Executive Order No. 6166 of June 10, 1933, transferring to the Department of Justice the function of supervising the work of United States attorneys in connection with suits by or against the United States exercised by any agency or officer: Section 323 requiring the General Counsel of the Treasury to make entries of bonds delivered to United States attorneys by collectors for suit until the amounts have been paid or judgments secured; Section 324 requiring said General Counsel to examine and compare the reports made by collectors of bonds delivered by them to United States attorneys for suit, and of the returns of such bonds; Section 329 authorizing said General Counsel to instruct United States attorneys, marshals and clerks in all matters relating to suits, except for taxes, forfeitures and penalties, and to require them to make such reports to him as he may direct. The first provision of section 329 of title 5, U.S.C., 1940 ed., is covered by the last paragraph of this section (now section 519 of this title), under which the Attorney General exercises supervision of the duties of United States attorneys. The Director of the Administrative Office of the United States Courts supervises the duties of clerks under chapter 41 of this title. The provision for authority of said General Counsel over marshals, also contained in section 329, is incorporated in section 547 (see Prior Provisions note below) of this title in which such authority is vested in the Attorney General. Section 327 of title 5, U.S.C., 1940 ed., authorized said General Counsel to establish regulations, subject to approval by the Attorney General, to be observed by United States attorneys and marshals in which the United States is a party. The provision as to United States attorneys is also covered by the last paragraph of this section (now section 519 of this title), and that as to marshals is covered by section 547 (see Prior Provisions note below) of this title. Provisions of section 327 of title 5, U.S.C., 1940 ed., relating to establishment of regulations for the observance of collectors of the customs, by the General Counsel for the Department of the Treasury, with the approbation of the Secretary of the Treasury, was omitted and recommended for repeal as covered by section 66 of title 19, U.S.C., 1940 ed., Customs Duties. The last paragraph of this section (now section 519 of this title), is based on the first clause of section 317 of title 5, U.S.C., 1940 ed.; see also section 309 of title 5. The second clause of said section 317 is covered by subsection (a)(5) of this section. The authority of the Attorney General over marshals and the requirement that they shall report to him the conduct and state of their offices, contained also in said section 317, is incorporated in section 547 (see Prior Provisions note below) of this title. Section 330 of title 5, U.S.C., 1940 ed., which required that United States attorneys should conduct, under direction of the General Counsel of the Treasury, all suits and proceedings involving the United States under the laws governing national banking associations is covered by subsection (a)(2) of this section. Section 331 of title 5, U.S.C., 1940 ed., requiring United States attorneys to obey directions of the Department of Justice in suits for money due the Post Office Department, is covered also by subsection (a)(2) of this section. Changes in arrangement and phraseology were made. PRIOR PROVISIONS A prior section 547, acts June 25, 1948, ch. 646, 62 Stat. 912; Oct. 18, 1962, Pub. L. 87-845, Sec. 8, 76A Stat. 699, which related to powers and duties of marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 569 of this title by section 4(c) of Pub. L. 89-554. -CROSS- CROSS REFERENCES Bankruptcy offenses, duties of United States attorneys, see section 3057 of Title 18, Crimes and Criminal Procedure. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 section 4243; title 19 section 2350; title 20 section 1082; title 31 section 3718; title 42 section 294h. ------DocID 36381 Document 243 of 1452------ -CITE- 28 USC Sec. 548 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 548. Salaries -STATUTE- Subject to sections 5315 through 5317 of title 5, the Attorney General shall fix the annual salaries of United States attorneys, assistant United States attorneys, and attorneys appointed under section 543 of this title at rates of compensation not in excess of the rate of basic compensation provided for Executive Level IV of the Executive Schedule set forth in section 5315 of title 5, United States Code. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618, and amended Pub. L. 98-473, title II, Sec. 1701(a) Oct. 12, 1984, 98 Stat. 2184.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 508. (None). ------------------------------- The words 'sections 5315-5317 of title 5' are substituted for 'subsection (f) and (g) of section 303 of the Federal Executive Salary Act of 1964' to reflect the codification of those subsections in title 5. The words 'GS-18 of the General Schedule set forth in section 5332 of title 5' are substituted for 'grade 18 of the General Schedule of the Classification Act of 1949, as amended'. 1948 ACT Prior section 508. - Based on section 312 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees, and title 28, U.S.C., 1940 ed., Sec. 579 and 580 (R.S. Sec. 363; May 28, 1896, ch. 252, Sec. 8, 24, 29 Stat. 181, 186; Mar. 3, 1903, ch. 1007, Sec. 1, 32 Stat. 1141; Mar. 4, 1907, ch. 2918, Sec. 1, 34 Stat. 1360; May 27, 1908, ch. 200, Sec. 1, 35 Stat. 375; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 209; June 1, 1922, ch. 204, title II (part), 42 Stat. 616; Jan. 3, 1923, ch. 21, title II, 42 Stat. 1083; Mar. 4, 1923, ch. 295, 42 Stat. 1560; May 28, 1924, ch. 204, title II (part), 43 Stat. 220). Section consolidates part of section 312 of title 5, U.S.C., 1940 ed., and part of section 579 of title 28, U.S.C., 1940 ed., with section 580 of title 28, U.S.C., 1940 ed. Sections 579 and 580 of title 28, U.S.C., 1940 ed., fixed specific salaries for the United States attorneys and assistants, while section 312 of title 5, U.S.C., 1940 ed., provided for a contractual arrangement for compensation of special attorneys. According to a Department of Justice interpretation, provisions for specific salaries were superseded by section 678 of title 5, which provides for adjustment of compensation by heads of departments. Hence, this section leaves the amount of compensation to the Attorney General. Section 578b of title 28, U.S.C., 1940 ed., providing that United States attorneys shall be paid for their services, was omitted as unnecessary. Section 578c of title 28, U.S.C., 1940 ed., providing that United States attorneys shall not receive fees in addition to their salaries, was omitted as obsolete, in view of this section and current practice. Other provisions of section 312 of title 5, U.S.C., 1940 ed., are incorporated in sections 503 (now 543) and 507 (now 509 and 547) of this title, and other provisions of section 579 of title 28, U.S.C., 1940 ed., are incorporated in section 552 (see Prior Provisions note for that section) of this title. PRIOR PROVISIONS A prior section 548, act June 25, 1948, ch. 646, 62 Stat. 912, which related to administration of oaths by marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663. AMENDMENTS 1984 - Pub. L. 98-473 amended section generally, substituting 'rate of basic compensation provided for Executive Level IV of the Executive Schedule set forth in section 5315 of title 5, United States Code' for 'highest rate of GS-18 of the General Schedule set forth in section 5332 of title 5'. SALARY INCREASES 1969 - Increase in the rates of pay of United States Attorneys and Assistant United States Attorneys whose annual salaries are fixed pursuant to this section, effective on the first day of the first pay period which begins on or after Dec. 27, 1969, by amounts equal, as nearly as may be practicable, to the increases provided pursuant to section 2 of Pub. L. 91-231, which raised corresponding rates by 6 percent, see Pub. L. 91-231, set out as a note under section 5332 of Title 5, Government Organization and Employees. 1967 - Pub. L. 90-206, title II, Sec. 211(a), Dec. 16, 1967, 81 Stat. 633, provided that: 'The rates of basic pay of United States attorneys and assistant United States attorneys whose annual salaries are fixed pursuant to section 548 of title 28, United States Code shall be increased, effective on the effective date of section 202 of this title (see Effective Date of 1967 Amendment note set out under section 5332 of Title 5) by amounts equal, as nearly as may be practicable, to the increases provided by section 202(a) of this title (see section 5332(a) of Title 5) for corresponding rates of basic pay.' Section 211(a) of Pub. L. 90-206 effective as of the beginning of the first pay period which begins on or after Oct. 1, 1967, see section 220(a)(2) of Pub. L. 90-206, set out as a note under section 5332 of Title 5. 1966 - Pub. L. 89-504, title I, Sec. 108(a), July 18, 1966, 80 Stat. 293, provided that: 'The rates of basic compensation of assistant United States attorneys whose basic salaries are fixed pursuant to section 508 of title 28, United States Code (now this section) shall be increased, effective on the effective date of section 102 of this title (first day of the first pay period beginning on or after July 1, 1966), by amounts equal, as nearly as may be practicable, to the increases provided by section 102(a) of this title (see section 5332(a) of Title 5), for corresponding rates of compensation.' Provision effective July 18, 1966, see section 109(1) of Pub. L. 89-504. 1965 - Pub. L. 89-301, Sec. 15(a), Oct. 29, 1965, 79 Stat. 1122, provided that: 'The rates of basic compensation of assistant United States attorneys whose basic salaries are fixed pursuant to section 508 of title 28, United States Code, (now this section), shall be increased by 3.6 per centum effective on the first day of the first pay period which begins on or after October 1, 1965.' 1962 - Pub. L. 87-793, Sec. 1003(b), Oct. 11, 1962, 76 Stat. 866, provided that: 'The rates of basic compensation of assistant United States attorneys whose basic salaries are fixed by section 508 of title 28, United States Code, (now this section), shall be increased by 7 1/2 per centum effective on the first day of the first pay period which begins on or after the date of enactment of this Act (Oct. 11, 1962).' COMPENSATION OF INCUMBENT UNITED STATES ATTORNEYS AND ASSISTANT UNITED STATES ATTORNEYS Pub. L. 88-426, Sec. 306(a)(2), Aug. 14, 1962, 78 Stat. 428, as amended by Pub. L. 88-631, Sec. 3(c), Oct. 6, 1964, 78 Stat. 1008, provided that: 'Subject to section 303(f) and (g) of this Act (see sections 5315 to 5317 of Title 5, Government Organization and Employees), each incumbent United States attorney and assistant United States attorney shall be paid compensation at a rate equal to that of attorneys of comparable responsibility and professional qualifications, as determined by the Attorney General, whose compensation is prescribed in the General Schedule of the Classification Act of 1949, as amended (now covered by chapter 51 and subchapter III of chapter 53 of Title 5).' ALASKA, CANAL ZONE AND VIRGIN ISLANDS Act Mar. 2, 1955, ch. 9, Sec. 2(b), 69 Stat. 10, provided that: 'The salaries of United States attorneys and assistant United States attorneys for the districts of Alaska, Canal Zone, and the Virgin Islands are subject to the provisions of section 508 of title 28, United States Code (now this section.)' SALARY LIMITATIONS Acts Aug. 5, 1953, ch. 328, title II, Sec. 202, 67 Stat. 375; July 2, 1954, ch. 456, title II, Sec. 202, 68 Stat. 421, which prescribed salary limitations, were repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 657. ------DocID 36382 Document 244 of 1452------ -CITE- 28 USC Sec. 549 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 549. Expenses -STATUTE- Necessary office expenses of United States attorneys shall be allowed when authorized by the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 618.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 509. (None). ------------------------------- The second paragraph of former section 509 is omitted as it was superseded by the Travel Expense Act of 1949, which is codified in subchapter I of chapter 57 of title 5, United States Code. The second paragraph was based in part on former section 73 of title 5, 1940 ed., which was superseded by the Subsistence Expense Act of 1926. Section 6 of the Travel Expense Act of 1949, which is codified in section 5706 of title 5, United States Code, substantially reenacted former section 73 of title 5, 1940 ed., which was repealed by the Act of June 25, 1948, ch. 646, by which title 28 was originally enacted. The purpose of section 6 was to allow reimbursement for only such actual and necessary travel expenses incurred unless otherwise permitted by the Act of 1949 itself or by laws relating to the military. Section 6 did not, however, provide for the exception of United States attorneys as did former section 73. Sections 2 and 3 of the Act of 1949, which are codified in sections 5701 and 5702 of title 5, United States Code, defined the coverage of the Act and allowed for specific exclusions in the legislative and judicial branches but did not mention an exclusion in the executive branch for United States attorneys. Section 7 of the 1949 Act, which is codified in section 5707 of title 5, United States Code, expressly vested in the Director of the Bureau of the Budget the authority to prescribe regulations covering travel allowances and the reimbursement of travel expenses. Section 8 of the 1949 Act, which is codified in section 5708(1), (2) of title 5, United States Code, made specific exclusions from the coverage of the Act, and United States attorneys were not so excluded. Section 9 of the 1949 Act, which is codified in section 5708(3), (4) of title 5, United States Code, modified acts inconsistent with the 1949 Act, and specifically mentioned acts which authorize reimbursement of 'actual and necessary' expenses. 1948 ACT Prior section 509. - Based on sections 73 and 318 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees, and title 28, U.S.C., 1940 ed., Sec. 586, 587 and 592 (R.S. Sec. 368, 833, 834; Mar. 3, 1875, ch. 133, Sec. 1, 18 Stat. 452; May 28, 1896, ch. 252, Sec. 13, 14, 24, 29 Stat. 183, 186; Mar. 4, 1907, ch. 2918, Sec. 1, 34 Stat. 1360; May 27, 1908, ch. 200, Sec. 1, 35 Stat. 375; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 209; Dec. 24, 1942, ch. 825, Sec. 3, 56 Stat. 1089). Section consolidates parts of sections 73 and 318 of title 5, U.S.C., 1940 ed., and of sections 586, 587, and 592 of title 28, U.S.C., 1940 ed. First paragraph of this section is from section 587 of title 28, U.S.C., 1940 ed., which did not apply to Alaska because of the restriction in section 591 of said title 28. However, the latter section has been superseded, in that respect, by subsequent appropriation acts, the latest being act July 5, 1946, ch. 541, title II, 60 Stat. 460, which specifically allows office expenses for United States attorneys in Alaska. This section applies to all United States attorneys. Section 73 of title 5, U.S.C., 1940 ed., allowed only actual traveling expenses to Government employees, except 'district attorneys,' marshals and clerks of courts and their deputies. It has been superseded by the Subsistence Expense Act of 1926. See sections 821 et seq. of said title 5. References in section 592 of title 28, U.S.C., 1940 ed., to absence 'from their respective official residences' and to going to and returning from attendance before courts, etc., were omitted as surplusage and covered by the phrase 'on official business.' Language relating to Standardized Government Travel Regulations was also omitted as the reference in this section is to the provision in the Subsistence Expense Act, supra, authorizing those regulations. Verification under oath provision was omitted as covered by section 553 (see Prior Provisions note for that section) of this title which simplifies procedure by requiring payment upon certification by the payee. The penal provisions of title 18 are ample protection against fraud and an oath alone is no deterrent. The requirement in section 592 of title 28, U.S.C., 1940 ed., that the marshals should include such payments in their accounts for auditing and allowance, was omitted as unnecessary. See section 541 et seq. (now section 561 et seq.) of this title and section 71 et seq. of title 31, U.S.C., 1940 ed. Section 318 of title 5, U.S.C., 1940 ed., required the Attorney General to supervise the accounts of 'district' attorneys, marshals, clerks, and other court officers. The language of this section covers that requirement. The provision as to marshals is incorporated in section 547 (see Prior Provisions note under that section) of this title. Quarterly expense accounts were required of United States attorneys and marshals by section 586 of title 28, U.S.C., 1940 ed. Such provision is omitted as unnecessary in view of this section and section 547 (see Prior Provisions note under that section) of this title. Further provisions of said section 586 that office expenses of United States attorneys, assistants, and marshals should be allowed under regulations of the Attorney General and verified under oath, are simplified by this section and section 550 (see Prior Provisions note under that section) of this title. Another provision that accounts therefor should be submitted to, examined by the district court and, when approved by the court then audited and allowed by law, was omitted. The power of the Attorney General is sufficient. The reference to audit and allowance was unnecessary as covered by section 71 et seq. of title 31, U.S.C., 1940 ed., Money and Finance. Said section 586 applied also to marshals and deputies and those provisions are incorporated in section 550 (see Prior Provisions note under that section) of this title. The exception in sections 586 and 591 of title 28, U.S.C., 1940 ed., that the former should not apply in Alaska was omitted as unnecessary. Section 114 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, requires travel expense accounts to be rendered and paid as in other districts. Changes were made in phraseology. PRIOR PROVISIONS A prior section 549, act June 25, 1948, ch. 646, 62 Stat. 912, which related to the marshal's power as a sheriff, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 570 of this title by section 4(c) of Pub. L. 89-554. -CROSS- CROSS REFERENCES Payment of office expenses by marshal, see section 566 of this title. ------DocID 36383 Document 245 of 1452------ -CITE- 28 USC Sec. 550 -EXPCITE- TITLE 28 PART II CHAPTER 35 -HEAD- Sec. 550. Clerical assistants, messengers, and private process servers -STATUTE- The United States attorneys may employ clerical assistants, messengers, and private process servers on approval of the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619; and amended Pub. L. 101-647, title XXXVI, Sec. 3626(a), Nov. 29, 1990, 104 Stat. 4965.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 510. (None). ------------------------------- The words 'and at salaries fixed by' are omitted as superseded by the Classification Act of 1949, as amended, which is codified in chapter 51 and subchapter III of chapter 53 of title 5, United States Code. 1948 ACT Prior section 510. - Based on title 28, U.S.C., 1940 ed., Sec. 484, 593 (May 28, 1896, ch. 252, Sec. 15, 29 Stat. 183; June 30, 1906, ch. 3914, Sec. 1, 34 Stat. 753; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 209). Section consolidates and simplifies sections 484 and 593 of title 28, U.S.C., 1940 ed. For provisions with respect to classified civil service, see sections 631-684 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees. Section 593 of title 28, U.S.C., 1940 ed., related to clerks and messengers in the office of United States attorney, southern district of New York. Section 484 of title 28, U.S.C., 1940 ed., related to clerical assistants for all United States attorneys. It was not affected by section 678 of title 5 U.S.C. 1940 ed., Executive Departments and Government Officers and Employees, according to a Department of Justice interpretation. Provision of said section 593 for office expenses of United States attorneys is covered by section 509 (now 549) of this title. Said section 593 also required that payment of salaries of such clerks and messengers be made by the disbursing clerk of the Department of Justice. Under section 550 (see Prior Provisions note below) of this title the marshals will make such payments including the office expenses of United States attorneys. The restriction that section 484 of title 28, U.S.C., 1940 ed., did not apply to Alaska is omitted as unnecessary since section 109 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, authorizes employment of clerical assistants to United States attorneys in Alaska by the Attorney General. The provision in such section 484 of title 28, U.S.C., 1940 ed., that the need for clerical assistants be certified by the district judge, was omitted as unnecessary. The need may be determined by the Attorney General. Changes were made in phraseology. PRIOR PROVISIONS A prior section 550, acts June 25, 1948, ch. 646, 62 Stat. 912; Sept. 9, 1959, Pub. L. 86-243, Sec. 2, 73 Stat. 474, which related to disbursement of salaries and expenses, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 571 of this title by section 4(c) of Pub. L. 89-554. A prior section 551, act June 25, 1948, ch. 646, 62 Stat. 912, which related to the collection of fees by United States marshals, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 572 of this title by section 4(c) of Pub. L. 89-554. A prior section 552, act June 25, 1948, ch. 646, 62 Stat. 912, which related to the fixing of salaries of United States marshals, their deputies and assistants, by the Attorney General, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 571 of this title by section 4(c) of Pub. L. 89-554. A prior section 553, acts June 25, 1948, ch. 646, 62 Stat. 912; May 24, 1949, ch. 139, Sec. 72, 63 Stat. 100; Aug. 4, 1955, ch. 550, 69 Stat. 492; Aug. 14, 1961, Pub. L. 87-139, Sec. 5, 75 Stat. 340, which related to expenses of marshal, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 567 of this title by section 4(c) of Pub. L. 89-554. A prior section 554, act June 25, 1948, ch. 646, 62 Stat. 913, which related to the delivery of prisoners to the successor marshal, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 573 of this title by section 4(c) of Pub. L. 89-554. A prior section 555, act June 25, 1948, ch. 646, 62 Stat. 913, which related to the delivery of all unserved process to the successor marshal or his deputies, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 574 of this title by section 4(c) of Pub. L. 89-554. A prior section 556, act June 25, 1948, ch. 646, 62 Stat. 913, which related to the prohibition of the practice of law by a marshal or deputy marshal, was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663, and reenacted in section 575 of this title by section 4(c) of Pub. L. 89-554. AMENDMENTS 1990 - Pub. L. 101-647 substituted ', messengers, and private process servers' for 'and messengers' in section catchline and text. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-647 effective 180 days after Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date note under section 3001 of this title. ------DocID 36384 Document 246 of 1452------ -CITE- 28 USC CHAPTER 37 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- CHAPTER 37 - UNITED STATES MARSHALS SERVICE -MISC1- Sec. 561. United States Marshals Service. 562. Vacancies. 563. Oath of office. 564. Powers as sheriff. 565. Expenses of the Service. 566. Powers and duties. 567. Collection of fees; accounting. 568. Practice of law prohibited. 569. Reemployment rights. AMENDMENTS 1988 - Pub. L. 100-690, title VII, Sec. 7608(a)(3), Nov. 18, 1988, 102 Stat. 4514, substituted in chapter heading 'Marshals Service' for 'Marshals' and amended chapter analysis generally, substituting items 561 to 569 for former items 561 to 576. 1984 - Pub. L. 98-473, title II, Sec. 1211(c), Oct. 12, 1984, 98 Stat. 2163, added item 576. 1982 - Pub. L. 97-258, Sec. 2(g)(3)(A), Sept. 13, 1982, 96 Stat. 1060, added item 572a. 1972 - Pub. L. 92-310, title II, Sec. 206(a)(2), June 6, 1972, 86 Stat. 203, struck out item 564 'Bond'. 1966 - Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619, added chapter 37 and items 561 to 575. -CROSS- CROSS REFERENCES Supreme Court marshal, see section 672 of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 48 sections 1424b, 1614, 1694. ------DocID 36385 Document 247 of 1452------ -CITE- 28 USC Sec. 561 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 561. United States Marshals Service -STATUTE- (a) There is hereby established a United States Marshals Service as a bureau within the Department of Justice under the authority and direction of the Attorney General. There shall be at the head of the United States Marshals Service (hereafter in this chapter referred to as the 'Service') a Director who shall be appointed by the President, by and with the advice and consent of the Senate. (b) The Director of the United States Marshals Service (hereafter in this chapter referred to as the 'Director') shall, in addition to the powers and duties set forth in this chapter, exercise such other functions as may be delegated by the Attorney General. (c) The President shall appoint, by and with the advice and consent of the Senate, a United States marshal for each judicial district of the United States and for the Superior Court of the District of Columbia, except that any marshal appointed for the Northern Mariana Islands may at the same time serve as marshal in another judicial district. Each United States marshal shall be an official of the Service and shall serve under the direction of the Director. (d) Each marshal shall be appointed for a term of four years. A marshal shall, unless that marshal has resigned or been removed by the President, continue to perform the duties of that office after the end of that 4-year term until a successor is appointed and qualifies. (e) The Director shall designate places within a judicial district for the official station and offices of each marshal. Each marshal shall reside within the district for which such marshal is appointed, except that - (1) the marshal for the District of Columbia, for the Superior Court of the District of Columbia, and for the Southern District of New York may reside within 20 miles of the district for which the marshal is appointed; and (2) any marshal appointed for the Northern Mariana Islands who at the same time is serving as marshal in another district may reside in such other district. (f) The Director is authorized to appoint and fix the compensation of such employees as are necessary to carry out the powers and duties of the Service and may designate such employees as law enforcement officers in accordance with such policies and procedures as the Director shall establish pursuant to the applicable provisions of title 5 and regulations issued thereunder. (g) The Director shall supervise and direct the United States Marshals Service in the performance of its duties. (h) The Director may administer oaths and may take affirmations of officials and employees of the Service, but shall not demand or accept any fee or compensation therefor. (i) There are authorized to be appropriated such sums as may be necessary to carry out the functions of the Service. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512.) -MISC1- PRIOR PROVISIONS A prior section 561, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619, and amended Pub. L. 95-530, Sec. 2, Oct. 27, 1978, 92 Stat. 2028, which related to appointment, term, and residence of United States marshals, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. -CROSS- CROSS REFERENCES Guam, Virgin Islands, and Northern Mariana Islands, appointment of marshal, see sections 1424b, 1614, and 1694 of Title 48, Territories and Insular Possessions. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 562 of this title. ------DocID 36386 Document 248 of 1452------ -CITE- 28 USC Sec. 562 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 562. Vacancies -STATUTE- (a) In the case of a vacancy in the office of a United States marshal, the Attorney General may designate a person to perform the functions of and act as marshal, except that the Attorney General may not designate to act as marshal any person who was appointed by the President to that office but with respect to such appointment the Senate has refused to give its advice and consent. (b) A person designated by the Attorney General under subsection (a) may serve until the earliest of the following events: (1) The entry into office of a United States marshal appointed by the President, pursuant to section 561(c). (2) The expiration of the thirtieth day following the end of the next session of the Senate. (3) If such designee of the Attorney General is appointed by the President pursuant to section 561(c), but the Senate refuses to give its advice and consent to the appointment, the expiration of the thirtieth day following such refusal. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4513.) -MISC1- PRIOR PROVISIONS A prior section 562, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619, which related to appointment of deputy marshals and clerical assistants, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. See section 561(f) of this title. ------DocID 36387 Document 249 of 1452------ -CITE- 28 USC Sec. 563 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 563. Oath of office -STATUTE- The Director and each United States marshal and law enforcement officer of the Service, before taking office, shall take an oath or affirmation to faithfully execute the duties of that office. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4513.) -MISC1- PRIOR PROVISIONS A prior section 563, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619, which specifically stated the oath of office to be taken, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. See section 561(h) of this title. ------DocID 36388 Document 250 of 1452------ -CITE- 28 USC Sec. 564 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 564. Powers as sheriff -STATUTE- United States marshals, deputy marshals and such other officials of the Service as may be designated by the Director, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4513.) -MISC1- PRIOR PROVISIONS A prior section 564, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 619, which related to bonds of United States marshals, was repealed by Pub. L. 92-310, title II, Sec. 206(a)(1), June 6, 1972, 86 Stat. 203. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3002 of this title. ------DocID 36389 Document 251 of 1452------ -CITE- 28 USC Sec. 565 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 565. Expenses of the Service -STATUTE- The Director is authorized to use funds appropriated for the Service to make payments for expenses incurred pursuant to personal services contracts and cooperative agreements, authorized by the Attorney General, for security guards and for the service of summons on complaints, subpoenas, and notices in lieu of services by United States marshals and deputy marshals. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4513.) -MISC1- PRIOR PROVISIONS A prior section 565, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, which related to filling vacancies, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. See section 562 of this title. ------DocID 36390 Document 252 of 1452------ -CITE- 28 USC Sec. 566 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 566. Powers and duties -STATUTE- (a) It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals and the Court of International Trade. (b) The United States marshal of each district is the marshal of the district court and of the court of appeals when sitting in that district, and of the Court of International Trade holding sessions in that district, and may, in the discretion of the respective courts, be required to attend any session of court. (c) Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties. (d) Each United States marshal, deputy marshal, and any other official of the Service as may be designated by the Director may carry firearms and make arrests without warrant for any offense against the United States committed in his or her presence, or for any felony cognizable under the laws of the United States if he or she has reasonable grounds to believe that the person to be arrested has committed or is committing such felony. (e)(1) The United States Marshals Service is authorized to - (A) provide for the personal protection of Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice where criminal intimidation impedes on the functioning of the judicial process or any other official proceeding; and (B) investigate such fugitive matters, both within and outside the United States, as directed by the Attorney General. (2) Nothing in paragraph (1)(B) shall be construed to interfere with or supersede the authority of other Federal agencies or bureaus. (f) In accordance with procedures established by the Director, and except for public money deposited under section 2041 of this title, each United States marshal shall deposit public moneys that the marshal collects into the Treasury, subject to disbursement by the marshal. At the end of each accounting period, the earned part of public moneys accruing to the United States shall be deposited in the Treasury to the credit of the appropriate receipt accounts. (g) Prior to resignation, retirement, or removal from office - (1) a United States marshal shall deliver to the marshal's successor all prisoners in his custody and all unserved process; and (2) a deputy marshal shall deliver to the marshal all process in the custody of the deputy marshal. (h) The United States marshals shall pay such office expenses of United States Attorneys as may be directed by the Attorney General. -SOURCE- (Added Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4514.) -MISC1- PRIOR PROVISIONS A prior section 566, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, and amended Pub. L. 92-310, title II, Sec. 206(b), June 6, 1972, 86 Stat. 203, which provided that upon death of a marshal his deputy or deputies perform his duties until a successor is appointed and qualifies, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. ------DocID 36391 Document 253 of 1452------ -CITE- 28 USC Sec. 567 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 567. Collection of fees; accounting -STATUTE- (a) Each United States marshal shall collect, as far as possible, his lawful fees and account for the same as public moneys. (b) The marshal's accounts of fees and costs paid to a witness or juror on certificate of attendance issued as provided by sections 1825 and 1871 of this title may not be reexamined to charge him for an erroneous payment of the fees or costs. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 621, Sec. 572; renumbered Sec. 567, Pub. L. 100-690, title VII, Sec. 7608(a)(2)(B), Nov. 18, 1988, 102 Stat. 4514.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 551. (None). ------------------------------- In subsection (b), the words 'may not' are substituted for 'shall not'. 1948 ACT Prior section 551. - Based on title 28, U.S.C., 1940 ed., Sec. 577, 578a (R.S. Sec. 846; May 28, 1896, ch. 252, Sec. 6, 13, 24, 29 Stat. 179, 183, 186; May 27, 1908, ch. 200, Sec. 1, 35 Stat. 375; June 6, 1930, ch. 409, 46 Stat. 522; Oct. 13, 1941, ch. 431, Sec. 1, 55 Stat. 736). Section consolidates first sentence of section 577 with section 578a of title 28, U.S.C., 1940 ed., with changes of phraseology necessary to effect consolidation. Other provisions of said section 577 are incorporated in section 1929 of this title. The qualification that payments of witness fees or costs be made upon 'order of court,' contained in said section 577 of title 28, U.S.C., 1940 ed., was omitted as obsolete and suitable reference was made to sections 1825 and 1871 of this title under which payments are now made on certificates of attendance. Section 578a of title 28, U.S.C., 1940 ed., is rewritten in simplified terms without change of substance. The proviso of such section 578a, prohibiting the collection of fees from the United States, was omitted as covered by section 2412 of this title, providing that the United States should be liable only for fees when such liability is expressly provided by Congress. The provision of section 578a of title 28, U.S.C., 1940 ed., requiring that fees and emoluments collected by the marshal shall be deposited by him in accordance with the provisions of section 495 of title 31, U.S.C., 1940 ed., Money and Finance, was omitted as said section 495 governs such deposits without implementation in this section. PRIOR PROVISIONS A prior section 567, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, which related to expenses of marshals, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. See section 565 of this title. AMENDMENTS 1988 - Pub. L. 100-690 renumbered section 572 of this title as this section. ------DocID 36392 Document 254 of 1452------ -CITE- 28 USC Sec. 568 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 568. Practice of law prohibited -STATUTE- A United States marshal or deputy marshal may not practice law in any court of the United States. -SOURCE- (Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 621, Sec. 575; renumbered Sec. 568, Pub. L. 100-690, title VII, Sec. 7608(a)(2)(B), Nov. 18, 1988, 102 Stat. 4514.) -MISC1- Historical and Revision Notes 1966 Act --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 28 U.S.C. 556. (None). ------------------------------- The words 'may not' are substituted for 'shall not'. 1948 ACT Prior section 556. - Based on title 28, U.S.C., 1940 ed., Sec. 395 and 396 (Mar. 3, 1911, ch. 231, Sec. 273, 274, 36 Stat. 1164). Section consolidates parts of sections 395 and 396 of title 28, U.S.C., 1940 ed. Similar provisions in said sections, relating to clerks, are incorporated in section 955 of this title. The revised section substitutes, as simpler and more appropriate, the prohibition against practice of law 'in any court of the United States' for the more involved language of section 395 of title 28, U.S.C., 1940 ed., which provided that no clerks or marshals, deputies, or assistants within the district for which appointed 'shall act as solicitor, proctor, attorney or counsel, in any cause depending in any of said courts, or in any district for which he is acting as such officer.' Provisions of section 396 of title 28, U.S.C., 1940 ed., for striking the name of an offender from the roll of attorneys and for recommendation of dismissal, were omitted as unnecessary and as covered by section 541 of this title. Changes were made in phraseology. PRIOR PROVISIONS A prior section 568, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, which related to availability of appropriations for transfer of prisoners to narcotic farms, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. AMENDMENTS 1988 - Pub. L. 100-690 renumbered section 575 of this title as this section. ------DocID 36393 Document 255 of 1452------ -CITE- 28 USC Sec. 569 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- Sec. 569. Reemployment rights -STATUTE- (a) A United States marshal for a judicial district who was appointed from a position in the competitive service (as defined in section 2102 of title 5) in the United States Marshals Service and who, for reasons other than misconduct, neglect of duty, or malfeasance, is removed from such office, is entitled to be reemployed in any vacant position in the competitive service in the United States Marshals Service at the same grade or pay level, or lower, as the individual's former position if - (1) the individual is qualified for the vacant position; and (2) the individual has made application for the position not later than ninety days after being removed from office as a United States marshal. Such individual shall be so reemployed within thirty days after making such application or after being removed from office, whichever is later. An individual denied reemployment under this section in a position because the individual is not qualified for that position may appeal that denial to the Merit Systems Protection Board under section 7701 of title 5. (b) Any United States marshal serving on the effective date of this section shall continue to serve for the remainder of the term for which such marshal was appointed, unless sooner removed by the President. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 1211(a), Oct. 12, 1984, 98 Stat. 2163, Sec. 576; renumbered Sec. 569, Pub. L. 100-690, title VII, Sec. 7608(a)(2)(B), Nov. 18, 1988, 102 Stat. 4514.) -REFTEXT- REFERENCES IN TEXT The effective date of this section, referred to in subsec. (b), is Oct. 1, 1984. See Effective Date note set out below. -MISC2- PRIOR PROVISIONS A prior section 569, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, and amended Pub. L. 95-598, title II, Sec. 221, Nov. 6, 1978, 92 Stat. 2662; Pub. L. 96-417, title V, Sec. 501(12), Oct. 10, 1980, 94 Stat. 1742; Pub. L. 99-466, Sec. 3(a), Oct. 14, 1986, 100 Stat. 1191, which related to powers and duties generally and supervision by the Attorney General, was repealed by Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. See section 566 of this title. AMENDMENTS 1988 - Pub. L. 100-690 renumbered section 576 of this title as this section. EFFECTIVE DATE Section 1212 of subpart B (Sec. 1211, 1212) of part F of chapter XII of title II of Pub. L. 98-473 provided that: 'The amendments made by this subpart (enacting this section) shall take effect on October 1, 1984.' ------DocID 36394 Document 256 of 1452------ -CITE- 28 USC Sec. 570, 571 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- (Sec. 570, 571. Repealed. Pub. L. 100-690, title VII, Sec. 7608(a)(1), Nov. 18, 1988, 102 Stat. 4512) -MISC1- Section 570, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 620, granted United States marshals the power of a sheriff in executing laws of the United States in a State. See section 564 of this title. Section 571, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 621, and amended Pub. L. 95-598, title II, Sec. 222, 223, Nov. 6, 1978, 92 Stat. 2662; Pub. L. 97-258, Sec. 2(g)(2), Sept. 13, 1982, 96 Stat. 1060, related to disbursement of salaries and moneys. ------DocID 36395 Document 257 of 1452------ -CITE- 28 USC Sec. 572 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- (Sec. 572. Renumbered Sec. 567) ------DocID 36396 Document 258 of 1452------ -CITE- 28 USC Sec. 572a to 574 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- (Sec. 572a to 574. Repealed. Pub. L. 100-690, title VII, Sec. 7608(a)(2)(A), Nov. 18, 1988, 102 Stat. 4514) -MISC1- Section 572a, added Pub. L. 97-258, Sec. 2(g)(3)(B), Sept. 13, 1982, 96 Stat. 1060, related to depositing of public moneys. See section 566(f) of this title. Section 573, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 621, related to delivery of prisoners to a successor. See section 566(g)(1) of this title. Section 574, added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 621, related to delivery of unserved process to a successor. See section 566(g)(2) of this title. ------DocID 36397 Document 259 of 1452------ -CITE- 28 USC Sec. 575, 576 -EXPCITE- TITLE 28 PART II CHAPTER 37 -HEAD- (Sec. 575, 576. Renumbered Sec. 568, 569) ------DocID 36398 Document 260 of 1452------ -CITE- 28 USC CHAPTER 39 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- CHAPTER 39 - UNITED STATES TRUSTEES -MISC1- Sec. 581. United States trustees. 582. Assistant United States trustees. 583. Oath of office. 584. Official stations. 585. Vacancies. 586. Duties; supervision by Attorney General. 587. Salaries. 588. Expenses. 589. Staff and other employees. 589a. United States Trustee System Fund. AMENDMENTS 1986 - Pub. L. 99-554, title I, Sec. 115(b), Oct. 27, 1986, 100 Stat. 3095, added item 589a. UNITED STATES TRUSTEE PILOT; REPEAL OF BANKRUPTCY PROVISIONS RELATING TO UNITED STATES TRUSTEES Pub. L. 95-598, title IV, Sec. 408, Nov. 6, 1978, 92 Stat. 2686, as amended by Pub. L. 98-166, title II, Sec. 200, Nov. 28, 1983, 97 Stat. 1081; Pub. L. 98-353, title III, Sec. 323, July 10, 1984, 98 Stat. 358; Pub. L. 99-429, Sept. 30, 1986, 100 Stat. 985; Pub. L. 99-500, Sec. 101(b) (title II, Sec. 200), Oct. 18, 1986, 100 Stat. 1783-39, 1783-45, and Pub. L. 99-591, Sec. 101(b) (title II, Sec. 200), Oct. 30, 1986, 100 Stat. 3341-39, 3341-45; Pub. L. 99-554, title III, Sec. 307(a), Oct. 27, 1986, 100 Stat. 3125, which provided that the Attorney General conduct such studies and surveys as necessary to evaluate needs, feasibility, and effectiveness of the United States trustee system, and report result of such studies and surveys to Congress, the President, and the Judicial Conference of the United States, beginning on or before January 3, 1980, and annually thereafter during the transition period; that not later than January 3, 1984, the Attorney General report to Congress, the President, and the Judicial Conference of the United States, as to the feasibility, projected annual cost and effectiveness of the United States trustee system, as determined on the basis of the studies and surveys respecting the operation of the United States trustee system in the districts, together with recommendations as to the desirability and method of proceeding with implementation of the United States trustee system in all judicial districts of the United States; and that chapter 15 of title 11 and chapter 39 of this title were repealed, and all references to the United States trustee contained in this title were deleted, 30 days after the effective date of Pub. L. 99-554 (see section 302 of Pub. L. 99-554, set out as a note under section 581 of this title), with service of any United States trustee, of any assistant United States trustee, and of any employee employed or appointed under the authority of such chapter 39 was terminated on such date, was repealed by Pub. L. 99-554, title III, Sec. 307(b), Oct. 27, 1986, 100 Stat. 3125. ------DocID 36399 Document 261 of 1452------ -CITE- 28 USC Sec. 581 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 581. United States trustees -STATUTE- (a) The Attorney General shall appoint one United States trustee for each of the following regions composed of Federal judicial districts (without regard to section 451): (1) The judicial districts established for the States of Maine, Massachusetts, New Hampshire, and Rhode Island. (2) The judicial districts established for the States of Connecticut, New York, and Vermont. (3) The judicial districts established for the States of Delaware, New Jersey, and Pennsylvania. (4) The judicial districts established for the States of Maryland, North Carolina, South Carolina, Virginia, and West Virginia and for the District of Columbia. (5) The judicial districts established for the States of Louisiana and Mississippi. (6) The Northern District of Texas and the Eastern District of Texas. (7) The Southern District of Texas and the Western District of Texas. (8) The judicial districts established for the States of Kentucky and Tennessee. (9) The judicial districts established for the States of Michigan and Ohio. (10) The Central District of Illinois and the Southern District of Illinois; and the judicial districts established for the State of Indiana. (11) The Northern District of Illinois; and the judicial districts established for the State of Wisconsin. (12) The judicial districts established for the States of Minnesota, Iowa, North Dakota, and South Dakota. (13) The judicial districts established for the States of Arkansas, Nebraska, and Missouri. (14) The District of Arizona. (15) The Southern District of California; and the judicial districts established for the State of Hawaii, and for Guam and the Commonwealth of the Northern Mariana Islands. (16) The Central District of California. (17) The Eastern District of California and the Northern District of California; and the judicial district established for the State of Nevada. (18) The judicial districts established for the States of Alaska, Idaho (exclusive of Yellowstone National Park), Montana (exclusive of Yellowstone National Park), Oregon, and Washington. (19) The judicial districts established for the States of Colorado, Utah, and Wyoming (including those portions of Yellowstone National Park situated in the States of Montana and Idaho). (20) The judicial districts established for the States of Kansas, New Mexico, and Oklahoma. (21) The judicial districts established for the States of Alabama, Florida, and Georgia and for the Commonwealth of Puerto Rico and the Virgin Islands of the United States. (b) Each United States trustee shall be appointed for a term of five years. On the expiration of his term, a United States trustee shall continue to perform the duties of his office until his successor is appointed and qualifies. (c) Each United States trustee is subject to removal by the Attorney General. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2662, and amended Pub. L. 99-554, title I, Sec. 111(a)-(c), Oct. 27, 1986, 100 Stat. 3090, 3091.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-554, Sec. 111(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: 'The Attorney General shall appoint one United States trustee for each of the following districts or groups of districts: '(1) District of Maine, District of New Hampshire, District of Massachusetts, and District of Rhode Island. '(2) Southern District of New York. '(3) District of Delaware and District of New Jersey. '(4) Eastern District of Virginia and District of District of Columbia. '(5) Northern District of Alabama. '(6) Northern District of Texas. '(7) Northern District of Illinois. '(8) District of Minnesota, District of North Dakota, District of South Dakota. '(9) Central District of California. '(10) District of Colorado and District of Kansas.' Subsec. (b). Pub. L. 99-554, Sec. 111(b), substituted 'five years' for 'seven years' and 'office' for 'Office'. Subsec. (c). Pub. L. 99-554, Sec. 111(c), struck out 'for cause' after 'removal'. EFFECTIVE DATE OF 1986 AMENDMENT; TRANSITION AND ADMINISTRATIVE PROVISIONS Title III of Pub. L. 99-554, as amended by Pub. L. 101-650, title III, Sec. 317(a), (c), Dec. 1, 1990, 104 Stat. 5115, 5116, provided that: 'SEC. 301. INCUMBENT UNITED STATES TRUSTEES. '(a) Area for Which Appointed. - Notwithstanding any paragraph of section 581(a) of title 28, United States Code, as in effect before the effective date of this Act, a United States trustee serving in such office on the effective date of this Act shall serve the remaining term of such office as United States trustee for the region specified in a paragraph of such section, as amended by this Act, that includes the site at which the primary official station of the United States trustee is located immediately before the effective date of this Act. '(b) Term of Office. - Notwithstanding section 581(b) of title 28, United States Code, as in effect before the effective date of this Act, the term of office of any United States trustee serving in such office on the date of the enactment of this Act (Oct. 27, 1986) shall expire - '(1) 2 years after the expiration date of such term of office under such section, as so in effect, or '(2) 4 years after the date of the enactment of this Act, whichever occurs first. 'SEC. 302. EFFECTIVE DATES; APPLICATION OF AMENDMENTS. '(a) General Effective Date. - Except as provided in subsections (b), (c), (d), (e), and (f), this Act and the amendments made by this Act (see Short Title of 1986 Amendment note below) shall take effect 30 days after the date of the enactment of this Act (Oct. 27, 1986). '(b) Amendments Relating to Bankruptcy Judges and Incumbent United States Trustees. - Subtitle A of title I, and sections 301 and 307(a) (amending sections 152 and 156 of this title, enacting provisions set out as notes under section 581 of this title, and amending provisions set out as notes under section 152 of this title and preceding section 581 of this title), shall take effect on the date of the enactment of this Act (Oct. 27, 1986). '(c) Amendments Relating to Family Farmers. - (1) The amendments made by subtitle B of title II (Sec. 251 to 257 of Pub. L. 99-554, see Tables for classification) shall not apply with respect to cases commenced under title 11 of the United States Code before the effective date of this Act. '(2) Section 1202 of title 11 of the United States Code (as added by the amendment made by section 255 of this Act) shall take effect on the effective date of this Act and before the amendment made by section 227 of this Act (amending section 1202 of this title). '(3) Until the amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification) become effective in a district and apply to a case, for purposes of such case - '(A)(i) any reference in section 326(b) of title 11 of the United States Code to chapter 13 of title 11 of the United States Code shall be deemed to be a reference to chapter 12 or chapter 13 of title 11 of the United States Code, '(ii) any reference in such section 326(b) to section 1302(d) of title 11 of the United States Code shall be deemed to be a reference to section 1302(d) of title 11 of the United States Code or section 586(b) of title 28 of the United States Code, and '(iii) any reference in such section 326(b) to section 1302(a) of title 11 of the United States Code shall be deemed to be a reference to section 1202(a) or section 1302(a) of title 11 of the United States Code, and '(B)(i) the first two references in section 1202(a) of title 11 of the United States Code (as added by the amendment made by section 255 of this Act) to the United States trustee shall be deemed to be a reference to the court, and '(ii) any reference in such section 1202(a) to section 586(b) of title 28 of the United States Code shall be deemed to be a reference to section 1202(c) of title 11 of the United States Code (as so added). '(d) Application of Amendments to Judicial Districts. - '(1) Certain regions not currently served by united states trustees. - (A) The amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification), and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not - '(i) become effective in or with respect to a judicial district specified in subparagraph (B) until, or '(ii) apply to cases while pending in such district before, the expiration of the 270-day period beginning on the effective date of this Act or of the 30-day period beginning on the date the Attorney General certifies under section 303 of this Act the region specified in a paragraph of section 581(a) of title 28, United States Code, as amended by section 111(a) of this Act, that includes such district, whichever occurs first. '(B) Subparagraph (A) applies to the following: '(i) The judicial district established for the Commonwealth of Puerto Rico. '(ii) The District of Connecticut. '(iii) The judicial districts established for the State of New York (other than the Southern District of New York). '(iv) The District of Vermont. '(v) The judicial districts established for the State of Pennsylvania. '(vi) The judicial district established for the Virgin Islands of the United States. '(vii) The District of Maryland. '(viii) The judicial districts established for the State of North Carolina. '(ix) The District of South Carolina. '(x) The judicial districts established for the State of West Virginia. '(xi) The Western District of Virginia. '(xii) The Eastern District of Texas. '(xiii) The judicial districts established for the State of Wisconsin. '(xiv) The judicial districts established for the State of Iowa. '(xv) The judicial districts established for the State of New Mexico. '(xvi) The judicial districts established for the State of Oklahoma. '(xvii) The District of Utah. '(xviii) The District of Wyoming (including those portions of Yellowstone National Park situated in the States of Montana and Idaho). '(xix) The judicial districts established for the State of Alabama. '(xx) The judicial districts established for the State of Florida. '(xxi) The judicial districts established for the State of Georgia. '(2) Certain remaining judicial districts not currently served by united states trustees. - (A) The amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification), and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not - '(i) become effective in or with respect to a judicial district specified in subparagraph (B) until, or '(ii) apply to cases while pending in such district before, the expiration of the 2-year period beginning on the effective date of this Act or of the 30-day period beginning on the date the Attorney General certifies under section 303 of this Act the region specified in a paragraph of section 581(a) of title 28, United States Code, as amended by section 111(a) of this Act, that includes such district, whichever occurs first. '(B) Subparagraph (A) applies to the following: '(i) The judicial districts established for the State of Louisiana. '(ii) The judicial districts established for the State of Mississippi. '(iii) The Southern District of Texas and the Western District of Texas. '(iv) The judicial districts established for the State of Kentucky. '(v) The judicial districts established for the State of Tennessee. '(vi) The judicial districts established for the State of Michigan. '(vii) The judicial districts established for the State of Ohio. '(viii) The judicial districts established for the State of Illinois (other than the Northern District of Illinois). '(ix) The judicial districts established for the State of Indiana. '(x) The judicial districts established for the State of Arkansas. '(xi) The judicial districts established for the State of Nebraska. '(xii) The judicial districts established for the State of Missouri. '(xiii) The District of Arizona. '(xiv) The District of Hawaii. '(xv) The judicial district established for Guam. '(xvi) The judicial district established for the Commonwealth of the Northern Mariana Islands. '(xvii) The judicial districts established for the State of California (other than the Central District of California). '(xviii) The District of Nevada. '(xix) The District of Alaska. '(xx) The District of Idaho. '(xxi) The District of Montana. '(xxii) The District of Oregon. '(xxiii) The judicial districts established for the State of Washington. '(3) Judicial districts for the states of alabama and north carolina. - (A) Notwithstanding paragraphs (1) and (2), and any other provision of law, the amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification), and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not - '(i) become effective in or with respect to a judicial district specified in subparagraph (E) until, or '(ii) apply to cases while pending in such district before, such district elects to be included in a bankruptcy region established in section 581(a) of title 28, United States Code, as amended by section 111(a) of this Act, or October 1, 2002, whichever occurs first, except that the amendment to section 105(a) of title 11, United States Code, shall become effective as of the date of the enactment of the Federal Courts Study Committee Implementation Act of 1990 (Dec. 1, 1990). '(B) Any election under subparagraph (A) shall be made upon a majority vote of the chief judge of such district and each bankruptcy judge in such judicial district in favor of such election. '(C) Notice that an election has been made under subparagraph (A) shall be given, not later than 10 days after such election, to the Attorney General and the appropriate Federal Circuit Court of Appeals for such district. '(D) Any election made under subparagraph (A) shall become effective on the date the amendments made by subtitle A of title II of this Act become effective in the region that includes such district or 30 days after the Attorney General receives the notice required under subparagraph (C), whichever occurs later. '(E) Subparagraph (A) applies to the following: '(i) The judicial districts established for the State of Alabama. '(ii) The judicial districts established for the State of North Carolina. '(F)(i) Subject to clause (ii), with respect to cases under chapters 7, 11, 12, and 13 of title 11, United States Code - '(I) commenced before the effective date of this Act, and '(II) pending in a judicial district in the State of Alabama or the State of North Carolina before any election made under subparagraph (A) by such district becomes effective or October 1, 2002, whichever occurs first, the amendments made by section 113 (amending section 586 of this title) and subtitle A of title II of this Act, and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not apply until October 1, 2003, or the expiration of the 1-year period beginning on the date such election becomes effective, whichever occurs first. '(ii) For purposes of clause (i), the amendments made by section 113 and subtitle A of title II of this Act, and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not apply with respect to a case under chapter 7, 11, 12, or 13 of title 11, United States Code, if - '(I) the trustee in the case files the final report and account of administration of the estate, required under section 704 of such title, or '(II) a plan is confirmed under section 1129, 1225, or 1325 of such title, before October 1, 2003, or the expiration of the 1-year period beginning on the date such election becomes effective, whichever occurs first. '(G) Notwithstanding section 589a of title 28, United States Code, as added by section 115 of this Act, funds collected as a result of the amendments made by section 117 of this Act (amending section 1930 of this title) in a judicial district in the State of Alabama or the State of North Carolina under section 1930(a) of title 28, United States Code, before the date the amendments made by subtitle A of title II of this Act take effect in such district shall be deposited in the general receipts of the Treasury. '(H) The repeal made by section 231 of this Act (repealing chapter 15 of title 11) shall not apply in or with respect to the Northern District of Alabama until March 1, 1987, or the effective date of any election made under subparagraph (A) by such district, whichever occurs first. '(I) In any judicial district in the State of Alabama or the State of North Carolina that has not made the election described in subparagraph (A), any person who is appointed under regulations issued by the Judicial Conference of the United States to administer estates in cases under title 11 of the United States Code may - '(i) establish, maintain, and supervise a panel of private trustees that are eligible and available to serve as trustees in cases under title 11, United States Code, and '(ii) supervise the administration of cases and trustees in cases under chapters 7, 11, 12, and 13 of title 11, United States Code, until the amendments made by subtitle A of title II take effect in such district. '(e) Application of United States Trustee System and Quarterly Fees to Certain Cases. - '(1) In general. - Subject to paragraph (2), with respect to cases under chapters 7, 11, 12, and 13 of title 11, United States Code - '(A) commenced before the effective date of this Act, and '(B) pending in a judicial district referred to in section 581(a) of title 28, United States Code, as amended by section 111(a) of this Act, for which a United States trustee is not authorized before the effective date of this Act to be appointed, the amendments made by section 113 (amending section 586 of this title) and subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification), and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not apply until the expiration of the 3-year period beginning on the effective date of this Act, or of the 1-year period beginning on the date the Attorney General certifies under section 303 of this Act the region specified in a paragraph of such section 581(a), as so amended, that includes such district, whichever occurs first. '(2) Amendments inapplicable. - For purposes of paragraph (1), the amendments made by section 113 and subtitle A of title II of this Act, and section 1930(a)(6) of title 28 of the United States Code (as added by section 117(4) of this Act), shall not apply with respect to a case under chapter 7, 11, 12, or 13 of title 11, United States Code, if - '(A) the trustee in the case files the final report and account of administration of the estate, required under section 704 of such title, or '(B) a plan is confirmed under section 1129, 1225, or 1325 of such title, before the expiration of the 3-year period, or the expiration of the 1-year period, specified in paragraph (1), whichever occurs first. '(3) Rule of construction regarding fees for cases. - This Act (see Short Title of 1986 Amendment note below) and the amendments made by section 117(4) of this Act (amending section 1930 of this title) shall not be construed to require the payment of a fee under paragraph (6) of section 1930(a) of title 28, United States Code, in a case under title 11 of the United States Code for any conduct or period occurring before such paragraph becomes effective in the district in which such case is pending. '(f) Repeal of Chapter 12 of Title 11. - Chapter 12 of title 11 of the United States Code is repealed on October 1, 1993. All cases commenced or pending under chapter 12 of title 11, United States Code, and all matters and proceedings in or relating to such cases, shall be conducted and determined under such chapter as if such chapter had not been repealed. The substantive rights of parties in connection with such cases, matters, and proceedings shall continue to be governed under the laws applicable to such cases, matters, and proceedings as if such chapter had not been repealed. 'SEC. 303. CERTIFICATION OF JUDICIAL DISTRICTS; NOTICE AND PUBLICATION OF CERTIFICATION. '(a) Certification by Attorney General. - The Attorney General may certify in writing a region specified in a paragraph of section 581(a) of title 28, United States Code (other than paragraph (16)), as amended by section 111(a) of this Act, to the appropriate court of appeals of the United States, for the purpose of informing such court that certain amendments made by this Act will become effective in accordance with section 302 of this Act. '(b) Notice and Publication of Certification. - Whenever the Attorney General transmits a certification under subsection (a), the Attorney General shall simultaneously - '(1) transmit a copy of such certification to the Speaker of the House of Representatives and to the President pro tempore of the Senate, and '(2) publish such certification in the Federal Register. 'SEC. 304. ADMINISTRATIVE PROVISIONS. '(a) Cooperative Arrangements. - The Attorney General and the Director of the Administrative Office of the United States Courts may enter into agreements under which United States trustees may - '(1) use - '(A) the services, equipment, personnel, records, reports, and data compilations, in any form, of the courts of the United States, and '(B) the facilities of such courts, and '(2) cooperate in the use by the courts of the United States of - '(A) the services, equipment, personnel, records, reports, and data compilations, in any form, of United States trustees, and '(B) the facilities of such trustees, to prevent duplication during the 2-year period beginning on the effective date of this Act. '(b) Information and Documents Relating to Bankruptcy Cases and United States Trustees. - The Director of the Administrative Office of the United States Courts shall make available to United States trustees, at the request of the Attorney General and on a continuing basis, all records, reports, and data compilations relating to - '(1) cases and proceedings under title 11 of the United States Code, and '(2) the duties of United States trustees under titles 11 and 28 of the United States Code. 'SEC. 305. APPLICATION OF CERTAIN BANKRUPTCY RULES. '(a) Rules Relating to the United States Trustee System. - If a United States trustee is not authorized, before the effective date of this Act, to be appointed for a judicial district referred to in section 581(a) of title 28, United States Code, as amended by section 111(a) of this Act, then part X of the Bankruptcy Rules (11 U.S.C. App.) shall not apply to cases in such district until the amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification) become effective under section 302 of this Act in such district. '(b) Rules Relating to Chapter 12 of Title 11. - The rules prescribed under section 2075 of title 28, United States Code, and in effect on the date of the enactment of this Act (Oct. 27, 1986) shall apply to cases filed under chapter 12 of title 11, United States Code, to the extent practicable and not inconsistent with the amendments made by title II of this Act (see Tables for classification). 'SEC. 306. SALARY OF INCUMBENT UNITED STATES TRUSTEES. 'For service as a United States trustee in the period beginning on the effective date of this Act and ending on the expiration under section 301 of this Act of their respective terms of office, the salary payable to United States trustees serving in such offices on the effective date of this Act shall be fixed in accordance with section 587 of title 28, United States Code, as amended by section 114(a) of this Act. 'SEC. 307. PRESERVATION OF UNITED STATES TRUSTEE SYSTEM DURING PENDENCY OF LEGISLATION; REPEALER. '(a) Temporary Delay of Repeal of United States Trustee System. - Effective immediately before November 10, 1986, section 408(c) of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2687), is amended by striking out 'November 10, 1986' and inserting in lieu thereof '30 days after the effective date of the Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986 (Pub. L. 99-554)'. '(b) Conforming Amendment. - Section 408 of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2687), is repealed. 'SEC. 308. CONSIDERATION OF CURRENT PRIVATE TRUSTEES FOR APPOINTMENT BY UNITED STATES TRUSTEES. '(a) Trustees in Bankruptcy Cases Under Chapter 7. - It is the sense of the Congress that individuals who are serving before the effective date of this Act, as trustees in cases under chapter 7 of title 11, United States Code, should be considered by United States trustees for appointment under section 586(a)(1) of title 28, United States Code, to the panels of private trustees that are established as a result of the amendments made by this Act (see Short Title of 1986 Amendment note below). '(b) Standing Trustees in Bankruptcy Cases Under Chapter 13. - It is the sense of the Congress that individuals who are serving before the effective date of this Act, as standing trustees in cases under chapter 13 of title 11, United States Code, should be considered by the United States trustees for appointment under section 586(b) of title 28, United States Code, as standing trustees who are appointed as a result of the amendments made by this Act (see Short Title of 1986 Amendment note below). 'SEC. 309. APPOINTMENT OF UNITED STATES TRUSTEES BY THE ATTORNEY GENERAL. 'It is the sense of the Congress that individuals otherwise qualified who are serving, before the effective date of this Act, as estate administrators under title 11 of the United States Code should be considered by the Attorney General for appointment under sections 581 and 582 of title 28, United States Code, to new positions of United States trustee and assistant United States trustee resulting from the amendments made by this Act (see Short Title of 1986 Amendment note below). 'SEC. 310. ELECTRONIC CASE MANAGEMENT DEMONSTRATION PROJECT. '(a) Establishment of Project. - Not later than 1 year after the effective date of this Act, the Director of the Executive Office for United States Trustees, in consultation with the Director of the Administrative Office of the United States Courts, shall establish an electronic case management demonstration project to be carried out in 3 Federal judicial districts that have a sufficiently large and varied bankruptcy caseload so as to provide a meaningful evaluation of the cost and effectiveness of such system. A contract for such project shall be awarded - '(1) on the basis of competitive bids submitted by qualified nongovernmental entities that are able to design an automated joint information system for use by the United States courts and by United States trustees, and '(2) in accordance with the Federal Property and Administrative Services Act of 1949 (see Short Title note under 40 U.S.C. 471), the Office of Federal Procurement Policy Act (see Short Title note under 41 U.S.C. 401), and title 31 of the United States Code. '(b) Study by General Accounting Office. - Not later than 1 year after the electronic case management system begins to operate in all of the judicial districts participating in the demonstration project carried out under subsection (a), the General Accounting Office shall conduct a study to compare the cost and effectiveness of such system with the cost and effectiveness of case management systems used in Federal judicial districts that are not participating in such project. '(c) Term of Project. - The demonstration project required by subsection (a) shall be carried out until - '(1) the expiration of the 2-year period beginning on the date the electronic case management system begins to operate in all of the judicial districts participating in such project, or '(2) legislation is enacted to extend, expand, modify, or terminate the operation of such project, whichever occurs first. '(d) Use by Clerks of the Courts. - The electronic case management system demonstrated under the project required by subsection (a) shall provide the clerk of court in each district in which such system is operated, with a means of - '(1) maintaining a complete electronic case file of all relevant information contained in petitions and schedules (and any amendments thereto) relating to debtors in cases under title 11 of the United States Code, including - '(A) a complete list of creditors in each such case, as listed by the debtor, '(B) a complete list of assets scheduled by the debtor, the value of such asset, and any action taken by the trustee or debtor in possession with regard to such asset during the pendency of such case, '(C) a complete list of debts and, with respect to each debt - '(i) any priority of such debt under title 11 of the United States Code, '(ii) whether such debt is secured or unsecured, and '(iii) whether such debt is contingent or noncontingent, and '(D) the debtor's statements of current expenses and income, and '(2) maintaining all calendars and dockets and producing all notices required to be sent in cases under title 11 of the United States Code. '(e) Use by United States Trustees. - The electronic case management system demonstrated under the project required by subsection (a) shall provide, at a minimum, the United States trustee in each district in which such system is operated with - '(1) complete electronic case files which contain, in addition to the information listed in subsection (d), records of case openings, case closings, hearings, and the filing of all motions, trustee appointments, pleadings, and responses, as well as a record of the responses by the United States trustee to those motions, trustee appointments, and pleadings, '(2) a means to generate standardized forms for motions, appointments, pleadings, and responses, '(3) a means to generate standard management reports and letters on an exception basis, '(4) a means to maintain accounting records, reports, and information required to be maintained by debtors in possession and trustees in cases under title 11 of the United States Code, '(5) a means to calculate and record distribution to creditors, final applications and orders for distribution, and final case closing reports, and '(6) a means to monitor the payment of filing and other required fees. '(f) Availability to Certain Governmental Entities. - Unlimited access to information maintained in the electronic case management system demonstrated under the project required by subsection (a) shall be provided at no charge to the following: '(1) The Congress. '(2) The Executive Office for the United States Trustees. '(3) The Administrative Office of the United States Courts. '(4) The clerks of the courts in judicial districts in which such system is operated and persons who review case information, in accordance with section 107(a) of title 11, United States Code, in the offices of the clerks. '(5) The judges on the bankruptcy and district courts in districts in which such system is operated. '(6) Trustees in cases pending in districts in which such system is operated. '(g) Fees for Other Users. - (1) The entity which is awarded a contract to provide the electronic case management system demonstrated under this project may, under guidelines established by the Director of the Executive Office for the United States Trustees in the provisions of such contract, collect reasonable fees from assets of the estate of the debtor in bankruptcy for providing notices and services to the court and trustees under the demonstration project. '(2) Access to information maintained in electronic case files pursuant to the demonstration project may be provided to persons other than those specified in subsection (f), but such access shall be limited to viewing such information only. A reasonable charge for such access may be collected by the entity which is awarded a contract under this section, in accordance with the guidelines established by the Director of the Executive Office for the United States Trustees in such contract. A reasonable portion of any charge so collected may be required by the Director to be remitted to the Executive Office for United States Trustees and deposited in the United States Trustee System Fund established in section 589a of title 28, United States Code. '(h) Security. - Access provided under subsection (f) to an entity or an individual shall be subject to such security limitations as may be imposed by the Congress or the head of the affected entity. 'SEC. 311. CASES PENDING UNDER THE BANKRUPTCY ACT. 'At the end of one calendar year following the date the amendments made by subtitle A of title II of this Act (Sec. 201 to 231 of Pub. L. 99-554, see Tables for classification) take effect in a district in which any case is still pending under the Bankruptcy Act (see 11 U.S.C. notes prec. 101), the district court shall withdraw the reference of any such case and, after notice and a hearing, determine the status of the case. Such case shall be remanded to the bankruptcy judge with such instructions as are necessary for the prompt closing of the case and with a requirement that a progress report on the case be provided by the bankruptcy judge after such interval as the district court deems appropriate.' EFFECTIVE DATE Chapter effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as a note preceding section 101 of Title 11, Bankruptcy. SHORT TITLE OF 1986 AMENDMENT Section 1 of Pub. L. 99-554 provided: 'That this Act (enacting section 589a of this title and section 307 and chapter 12 of Title 11, Bankruptcy, amending this section, sections 49, 96, 152, 156, 157, 526, 582, 584 to 587, 604, 1334, and 1930 of this title, sections 101 to 103, 105, 108, 109, 303, 321, 322, 324, 326, 327, 329, 330, 341, 343, 345 to 348, 362 to 365, 502, 503, 521 to 524, 546 to 549, 554, 557, 701, 703 to 707, 724, 726 to 728, 743, 1102, 1104 to 1106, 1112, 1121, 1129, 1163, 1202, 1302, 1306, 1307, and 1324 to 1326 of Title 11, Bankruptcy Form No. 1, set out in the Appendix to Title 11, repealing chapters 11 and 12 of Title 11, enacting provisions set out as notes under this section and section 589 of this title, amending provisions set out as notes preceding this section and under section 152 of this title, and repealing provisions set out as a note preceding this section) may be cited as the 'Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986'.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 585 of this title. ------DocID 36400 Document 262 of 1452------ -CITE- 28 USC Sec. 582 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 582. Assistant United States trustees -STATUTE- (a) The Attorney General may appoint one or more assistant United States trustees in any region when the public interest so requires. (b) Each assistant United States trustee is subject to removal by the Attorney General. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2663, and amended Pub. L. 99-554, title I, Sec. 111(d), Oct. 27, 1986, 100 Stat. 3091.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-554, Sec. 111(d)(1), substituted 'region' for 'district'. Subsec. (b). Pub. L. 99-554, Sec. 111(d)(2), struck out 'for cause' after 'removal'. EFFECTIVE DATE OF 1986 AMENDMDNT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. APPOINTMENT OF UNITED STATES TRUSTEES BY ATTORNEY GENERAL For sense of Congress concerning consideration of estate administrators under title 11 by the Attorney General for appointment under this section as U.S. trustee and assistant U.S. trustee, see section 309 of Pub. L. 99-554, set out as a note under section 581 of this title. ------DocID 36401 Document 263 of 1452------ -CITE- 28 USC Sec. 583 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 583. Oath of office -STATUTE- Each United States trustee and assistant United States trustee, before taking office, shall take an oath to execute faithfully his duties. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2663.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. ------DocID 36402 Document 264 of 1452------ -CITE- 28 USC Sec. 584 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 584. Official stations -STATUTE- The Attorney General may determine the official stations of the United States trustees and assistant United States trustees within the regions for which they were appointed. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2663, and amended Pub. L. 99-554, title I, Sec. 144(d), Oct. 27, 1986, 100 Stat. 3096.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1986 - Pub. L. 99-554 substituted 'regions' for 'districts'. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. ------DocID 36403 Document 265 of 1452------ -CITE- 28 USC Sec. 585 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 585. Vacancies -STATUTE- (a) The Attorney General may appoint an acting United States trustee for a region in which the office of the United States trustee is vacant. The individual so appointed may serve until the date on which the vacancy is filled by appointment under section 581 of this title or by designation under subsection (b) of this section. (b) The Attorney General may designate a United States trustee to serve in not more than two regions for such time as the public interest requires. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2663, and amended Pub. L. 99-554, title I, Sec. 112, Oct. 27, 1986, 100 Stat. 3091.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1986 - Pub. L. 99-554 amended section generally. Prior to amendment, section read as follows: 'The Attorney General may appoint an acting United States trustee for a district in which the office of United States trustee is vacant, or may designate a United States trustee for another judicial district to serve as trustee for the district in which such vacancy exists. The individual so appointed or designated may serve until the earlier of 90 days after such appointment or designation, as the case may be, or the date on which the vacancy is filled by appointment under section 581 of this title.' EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. ------DocID 36404 Document 266 of 1452------ -CITE- 28 USC Sec. 586 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 586. Duties; supervision by Attorney General -STATUTE- (a) Each United States trustee, within the region for which such United States trustee is appointed, shall - (1) establish, maintain, and supervise a panel of private trustees that are eligible and available to serve as trustees in cases under chapter 7 of title 11; (2) serve as and perform the duties of a trustee in a case under title 11 when required under title 11 to serve as trustee in such a case; (3) supervise the administration of cases and trustees in cases under chapter 7, 11, or 13 of title 11 by, whenever the United States trustee considers it to be appropriate - (A) monitoring applications for compensation and reimbursement filed under section 330 of title 11 and, whenever the United States trustee deems it to be appropriate, filing with the court comments with respect to any of such applications; (B) monitoring plans and disclosure statements filed in cases under chapter 11 of title 11 and filing with the court, in connection with hearings under sections 1125 and 1128 of such title, comments with respect to such plans and disclosure statements; (C) monitoring plans filed under chapters 12 and 13 of title 11 and filing with the court, in connection with hearings under sections 1224, 1229, 1324, and 1329 of such title, comments with respect to such plans; (D) taking such action as the United States trustee deems to be appropriate to ensure that all reports, schedules, and fees required to be filed under title 11 and this title by the debtor are properly and timely filed; (E) monitoring creditors' committees appointed under title 11; (F) notifying the appropriate United States attorney of matters which relate to the occurrence of any action which may constitute a crime under the laws of the United States and, on the request of the United States attorney, assisting the United States attorney in carrying out prosecutions based on such action; (G) monitoring the progress of cases under title 11 and taking such actions as the United States trustee deems to be appropriate to prevent undue delay in such progress; and (H) monitoring applications filed under section 327 of title 11 and, whenever the United States trustee deems it to be appropriate, filing with the court comments with respect to the approval of such applications; (4) deposit or invest under section 345 of title 11 money received as trustee in cases under title 11; (5) perform the duties prescribed for the United States trustee under title 11 and this title, and such duties consistent with title 11 and this title as the Attorney General may prescribe; and (6) make such reports as the Attorney General directs. (b) If the number of cases under chapter 12 or 13 of title 11 commenced in a particular region so warrants, the United States trustee for such region may, subject to the approval of the Attorney General, appoint one or more individuals to serve as standing trustee, or designate one or more assistant United States trustees to serve in cases under such chapter. The United States trustee for such region shall supervise any such individual appointed as standing trustee in the performance of the duties of standing trustee. (c) Each United States trustee shall be under the general supervision of the Attorney General, who shall provide general coordination and assistance to the United States trustees. (d) The Attorney General shall prescribe by rule qualifications for membership on the panels established by United States trustees under paragraph (a)(1) of this section, and qualifications for appointment under subsection (b) of this section to serve as standing trustee in cases under chapter 12 or 13 of title 11. The Attorney General may not require that an individual be an attorney in order to qualify for appointment under subsection (b) of this section to serve as standing trustee in cases under chapter 12 or 13 of title 11. (e)(1) The Attorney General, after consultation with a United States trustee that has appointed an individual under subsection (b) of this section to serve as standing trustee in cases under chapter 12 or 13 of title 11, shall fix - (A) a maximum annual compensation for such individual consisting of - (i) an amount not to exceed the highest annual rate of basic pay in effect for level V of the Executive Schedule; and (ii) the cash value of employment benefits comparable to the employment benefits provided by the United States to individuals who are employed by the United States at the same rate of basic pay to perform similar services during the same period of time; and (B) a percentage fee not to exceed - (i) in the case of a debtor who is not a family farmer, ten percent; or (ii) in the case of a debtor who is a family farmer, the sum of - (I) not to exceed ten percent of the payments made under the plan of such debtor, with respect to payments in an aggregate amount not to exceed $450,000; and (II) three percent of payments made under the plan of such debtor, with respect to payments made after the aggregate amount of payments made under the plan exceeds $450,000; based on such maximum annual compensation and the actual, necessary expenses incurred by such individual as standing trustee. (2) Such individual shall collect such percentage fee from all payments received by such individual under plans in the cases under chapter 12 or 13 of title 11 for which such individual serves as standing trustee. Such individual shall pay to the United States trustee, and the United States trustee shall deposit in the United States Trustee System Fund - (A) any amount by which the actual compensation of such individual exceeds 5 per centum upon all payments received under plans in cases under chapter 12 or 13 of title 11 for which such individual serves as standing trustee; and (B) any amount by which the percentage for all such cases exceeds - (i) such individual's actual compensation for such cases, as adjusted under subparagraph (A) of paragraph (1); plus (ii) the actual, necessary expenses incurred by such individual as standing trustee in such cases. Subject to the approval of the Attorney General, any or all of the interest earned from the deposit of payments under plans by such individual may be utilized to pay actual, necessary expenses without regard to the percentage limitation contained in subparagraph (d)(1)(B) of this section. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2663, and amended Pub. L. 99-554, title I, Sec. 113, Oct. 27, 1986, 100 Stat. 3091; Pub. L. 101-509, title V, Sec. 529 (title I, Sec. 110(a)), Nov. 5, 1990, 104 Stat. 1427, 1452.) -REFTEXT- REFERENCES IN TEXT Level V of the Executive Schedule, referred to in subsec. (e)(1)(A)(i), is set out in section 5316 of Title 5, Government Organization and Employees. -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1990 - Subsec. (e)(1)(A). Pub. L. 101-509 amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: 'a maximum annual compensation for such individual, not to exceed the annual rate of basic pay in effect for step 1 of grade GS-16 of the General Schedule prescribed under section 5332 of title 5; and'. 1986 - Subsec. (a). Pub. L. 99-554, Sec. 113(a)(1), substituted 'the region for which such United States trustee is appointed' for 'his district' in introductory text. Subsec. (a)(3). Pub. L. 99-554, Sec. 113(a)(2), substituted 'title 11 by, whenever the United States trustee considers it to be appropriate - ' for 'title 11;' and added subpars. (A) to (H). Subsec. (a)(5). Pub. L. 99-554, Sec. 113(a)(3), inserted 'and this title, and such duties consistent with title 11 and this title as the Attorney General may prescribe' after 'title 11'. Subsec. (b). Pub. L. 99-554, Sec. 113(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: 'If the number of cases under chapter 13 of title 11 commenced in a particular judicial district so warrant, the United States trustee for such district may, subject to the approval of the Attorney General, appoint one or more individuals to serve as standing trustee, or designate one or more assistant United States trustee, in cases under such chapter. The United States trustee for such district shall supervise any such individual appointed as standing trustee in the performance of the duties of standing trustee.' Subsec. (d). Pub. L. 99-554, Sec. 113(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: 'The Attorney General shall prescribe by rule qualifications for membership on the panels established by United States trustees under subsection (a)(1) of this section, and qualifications for appointment under subsection (b) of this section to serve as standing trustee in cases under chapter 13 of title 11. The Attorney General may not require that an individual be an attorney in order to qualify for appointment under subsection (b) of this section to serve as standing trustee in cases under chapter 13 of title 11.' Subsec. (e). Pub. L. 99-554, Sec. 113(c), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: '(1) The Attorney General, after consultation with a United States trustee that has appointed an individual under subsection (b) of this section to serve as standing trustee in cases under chapter 13 of title 11, shall fix - '(A) a maximum annual compensation for such individual, not to exceed the lowest annual rate of basic pay in effect for grade GS-16 of the General Schedule prescribed under section 5332 of title 5; and '(B) a percentage fee, not to exceed ten percent, based on such maximum annual compensation and the actual, necessary expenses incurred by such individual as standing trustee. '(2) Such individual shall collect such percentage fee from all payments under plans in the cases under chapter 13 of title 11 for which such individual serves as standing trustee. Such individual shall pay to the United States trustee, and the United States trustee shall pay to the Treasury - '(A) any amount by which the actual compensation of such individual exceeds five percent upon all payments under plans in cases under chapter 13 of title 11 for which such individual serves as standing trustee; and '(B) any amount by which the percentage for all such cases exceeds - '(i) such individual actual compensation for such cases, as adjusted under subparagraph (A) of this paragraph; plus '(ii) the actual, necessary expenses incurred by such individual as standing trustee in such cases.' EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 (title III, Sec. 305) of Pub. L. 101-509, set out as a note under section 5301 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1986 AMENDMENT Effective date and applicability of amendment by Pub. L. 99-554 dependent upon the judicial district involved, see section 302(d), (e) of Pub. L. 99-554, set out as a note under section 581 of this title. APPLICATION TO ALL STANDING TRUSTEES Section 529 (title I, Sec. 110(b)) of Pub. L. 101-509 provided that: 'The amendment made by subsection (a) (amending this section) shall apply to any trustee to whom the provisions of section 302(d)(3) of the Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986 (Public Law 99-54 (Pub. L. 99-554); 100 Stat. 3121) (set out in an Effective Date of 1986 Amendment note under section 581 of this title) apply.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 11 sections 326, 701, 703, 1202, 1302, 1326. ------DocID 36405 Document 267 of 1452------ -CITE- 28 USC Sec. 587 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 587. Salaries -STATUTE- Subject to sections 5315 through 5317 of title 5, the Attorney General shall fix the annual salaries of United States trustees and assistant United States trustees at rates of compensation not in excess of the rate of basic compensation provided for Executive Level IV of the Executive Schedule set forth in section 5315 of title 5, United States Code. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2664, and amended Pub. L. 99-554, title I, Sec. 114(a), Oct. 27, 1986, 100 Stat. 3093.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- AMENDMENTS 1986 - Pub. L. 99-554 amended section generally. Prior to amendment, section read as follows: 'The Attorney General shall fix the annual salaries of United States trustees and assistant United States trustees at rates of compensation not to exceed the lowest annual rate of basic pay in effect for grade GS-16 of the General Schedule prescribed under section 5332 of title 5.' EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. ------DocID 36406 Document 268 of 1452------ -CITE- 28 USC Sec. 588 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 588. Expenses -STATUTE- Necessary office expenses of the United States trustee shall be allowed when authorized by the Attorney General. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2664.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. ------DocID 36407 Document 269 of 1452------ -CITE- 28 USC Sec. 589 -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 589. Staff and other employees -STATUTE- The United States trustee may employ staff and other employees on approval of the Attorney General. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 224(a), Nov. 6, 1978, 92 Stat. 2664.) -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, as amended, which provided for the repeal of this section and the deletion of any references to United States Trustees in this title at a prospective date, was repealed by section 307(b) of Pub. L. 99-554. See note set out preceding section 581 of this title. -MISC3- TEMPORARY SUSPENSION OF LIMITATION ON APPOINTMENTS Pub. L. 99-554, title I, Sec. 114(b), Oct. 27, 1986, 100 Stat. 3093, provided that: 'During the period beginning on the effective date of this Act (see section 302 of Pub. L. 99-554, set out as an Effective Date note under section 581 of this title) and ending on October 1, 1989, the provisions of title 5 of the United States Code governing appointments in the competitive service shall not apply with respect to appointments under section 589 of title 28, United States Code.' ------DocID 36408 Document 270 of 1452------ -CITE- 28 USC Sec. 589a -EXPCITE- TITLE 28 PART II CHAPTER 39 -HEAD- Sec. 589a. United States Trustee System Fund -STATUTE- (a) There is hereby established in the Treasury of the United States a special fund to be known as the 'United States Trustee System Fund' (hereinafter in this section referred to as the 'Fund'). Monies in the Fund shall be available to the Attorney General without fiscal year limitation in such amounts as may be specified in appropriations Acts for the following purposes in connection with the operations of United States trustees - (1) salaries and related employee benefits; (2) travel and transportation; (3) rental of space; (4) communication, utilities, and miscellaneous computer charges; (5) security investigations and audits; (6) supplies, books, and other materials for legal research; (7) furniture and equipment; (8) miscellaneous services, including those obtained by contract; and (9) printing. (b) There shall be deposited in the Fund - (1) one-fourth of the fees collected under section 1930(a)(1) of this title; (2) three-fifths of the fees collected under section 1930(a)(3) of this title; (3) one-half of the fees collected under section 1930(a)(4) of this title; (4) one-half of the fees collected under section 1930(a)(5); (FOOTNOTE 1) (FOOTNOTE 1) So in original. Words 'of this title' probably should precede the semicolon. (5) all of the fees collected under section 1930(a)(6) of this title; (6) three-fourths of the fees collected under the last sentence of section 1930(a) of this title; and (7) the compensation of trustees received under section 330(d) of title 11 by the clerks of the bankruptcy courts. (c)(1) Except as provided in paragraph (2), amounts in the Fund which are not currently needed for the purposes specified in subsection (a) shall be kept on deposit or invested in obligations of, or guaranteed by, the United States. (2) On November 1, 1989, and on November 1 of each year thereafter, the Secretary of the Treasury shall transfer into the general fund of the Treasury the amount, if any, in the Fund that exceeds 110 percent of - (A) the amount appropriated for the entire current fiscal year for the purposes specified in subsection (a), or (B) if no appropriation has been made for the entire current fiscal year, the annual equivalent of the aggregate amount appropriated to date for the current fiscal year for the purposes specified in subsection (a). (d)(1) The Attorney General shall transmit to the Congress, not later than 120 days after the end of each fiscal year, a detailed report on the amounts deposited in the Fund and a description of the expenditures made under this section. (2) If for each fiscal year in any period of 2 successive fiscal years - (A) the aggregate amount deposited under subsection (b) in the Fund exceeds 110 percent of expenditures for the purposes specified in subsection (a), or (B) the costs incurred for the purposes specified in subsection (a) exceed the aggregate amount deposited under subsection (b) in the Fund, then the Attorney General shall include in such report a recommendation regarding the manner in which the fees payable under section 1930(a) of title 28, United States Code, may be modified to cause the annual amount deposited in the Fund to more closely approximate the annual amount expended from the Fund. (e) There are authorized to be appropriated to the Fund for any fiscal year such sums as may be necessary to supplement amounts deposited under subsection (b) for the purposes specified in subsection (a). -SOURCE- (Added Pub. L. 99-554, title I, Sec. 115(a), Oct. 27, 1986, 100 Stat. 3094, and amended Pub. L. 101-162, title IV, Sec. 406(c), Nov. 21, 1989, 103 Stat. 1016.) -MISC1- AMENDMENTS 1989 - Subsec. (b)(1). Pub. L. 101-162 substituted 'one-fourth' for 'one-third'. EFFECTIVE DATE Section effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 11 section 330. ------DocID 36409 Document 271 of 1452------ -CITE- 28 USC CHAPTER 40 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- CHAPTER 40 - INDEPENDENT COUNSEL -MISC1- Sec. 591. Applicability of provisions of this chapter. 592. Preliminary investigation and application for appointment of an independent counsel. 593. Duties of the division of the court. 594. Authority and duties of an independent counsel. 595. Congressional oversight. 596. Removal of an independent counsel; termination of office. 597. Relationship with Department of Justice. 598. Severability. 599. Termination of effect of chapter. AMENDMENTS 1987 - Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1293, amended chapter 40 heading and analysis generally, substituting items 591 to 599 for former items 591 to 598. 1986 - Pub. L. 99-554, title I, Sec. 144(g)(1), Oct. 27, 1986, 100 Stat. 3097, substituted '40' for '39' as chapter designation. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), Jan. 3, 1983, 96 Stat. 2039, substituted 'independent counsel' for 'special prosecutor' in chapter heading and in items 592, 594, and 596. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 49 of this title; title 18 section 202. ------DocID 36410 Document 272 of 1452------ -CITE- 28 USC Sec. 591 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 591. Applicability of provisions of this chapter -STATUTE- (a) Preliminary Investigation With Respect to Certain Covered Persons. - The Attorney General shall conduct a preliminary investigation in accordance with section 592 whenever the Attorney General receives information sufficient to constitute grounds to investigate whether any person described in subsection (b) may have violated any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction. (b) Persons to Whom Subsection (a) Applies. - The persons referred to in subsection (a) are - (1) the President and Vice President; (2) any individual serving in a position listed in section 5312 of title 5; (3) any individual working in the Executive Office of the President who is compensated at a rate of pay at or above level II of the Executive Schedule under section 5313 of title 5; (4) any Assistant Attorney General and any individual working in the Department of Justice who is compensated at a rate of pay at or above level III of the Executive Schedule under section 5314 of title 5; (5) the Director of Central Intelligence, the Deputy Director of Central Intelligence, and the Commissioner of Internal Revenue; (6) any individual who leaves any office or position described in any of paragraphs (1) through (5) of this subsection, during the incumbency of the President under whom such individual served in the office or position plus one year after such incumbency, but in no event longer than a period of three years after the individual leaves the office or position; (7) any individual who held an office or position described in any of paragraphs (1) through (5) of this subsection during the incumbency of one President and who continued to hold the office or position for not more than 90 days into the term of the next President, during the 1-year period after the individual leaves the office or position; and (8) the chairman and treasurer of the principal national campaign committee seeking the election or reelection of the President, and any officer of that committee exercising authority at the national level, during the incumbency of the President. (c) Preliminary Investigation With Respect to Persons Not Listed in Subsection (b). - The Attorney General may conduct a preliminary investigation in accordance with section 592 if - (1) the Attorney General receives information sufficient to constitute grounds to investigate whether any person other than a person described in subsection (b) may have violated any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction; and (2) the Attorney General determines that an investigation or prosecution of the person, with respect to the information received, by the Attorney General or other officer of the Department of Justice may result in a personal, financial, or political conflict of interest. (d) Examination of Information to Determine Need for Preliminary Investigation. - (1) Factors to be considered. - In determining under subsection (a) or (c) (or section 592(c)(2)) whether grounds to investigate exist, the Attorney General shall consider only - (A) the specificity of the information received; and (B) the credibility of the source of the information. (2) Time period for making determination. - The Attorney General shall determine whether grounds to investigate exist not later than 15 days after the information is first received. If within that 15-day period the Attorney General determines that the information is not specific or is not from a credible source, then the Attorney General shall close the matter. If within that 15-day period the Attorney General determines that the information is specific and from a credible source, the Attorney General shall, upon making that determination, commence a preliminary investigation with respect to that information. If the Attorney General is unable to determine, within that 15-day period, whether the information is specific and from a credible source, the Attorney General shall, at the end of that 15-day period, commence a preliminary investigation with respect to that information. (e) Recusal of Attorney General. - (1) When recusal is required. - If information received under this chapter involves the Attorney General or a person with whom the Attorney General has a current or recent personal or financial relationship, the Attorney General shall recuse himself or herself by designating the next most senior officer in the Department of Justice whom that information does not involve and who does not have a current or recent personal or financial relationship with such person to perform the duties assigned under this chapter to the Attorney General with respect to that information. (2) Requirements for recusal determination. - The Attorney General shall, before personally making any other determination under this chapter with respect to information received under this chapter, determine under paragraph (1) whether to recuse himself or herself with respect to that information. A determination to recuse shall be in writing, shall identify the facts considered by the Attorney General, and shall set forth the reasons for the recusal. The Attorney General shall file this determination with any notification or application submitted to the division of the court under this chapter with respect to the information involved. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1867, and amended Pub. L. 97-409, Sec. 3, 4(a), Jan. 3, 1983, 96 Stat. 2039, 2040; Pub. L. 98-473, title II, Sec. 228(b), Oct. 12, 1984, 98 Stat. 2030; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1293.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting subsecs. (a) to (e) relating to applicability of chapter for former subsecs. (a) to (c) relating to similar subject. 1984 - Subsec. (a). Pub. L. 98-473 substituted 'Class B or C misdemeanor or an infraction' for 'petty offense'. 1983 - Subsec. (a). Pub. L. 97-409, Sec. 4(a)(1), substituted 'information sufficient to constitute grounds to investigate' for 'specific information' after 'the Attorney General receives'. Subsec. (b)(3). Pub. L. 97-409, Sec. 3, substituted 'who is compensated at or above a rate equivalent to level II' for 'and compensated at a rate not less than the annual rate of basic pay provided for level IV'. Subsec. (b)(4), (5). Pub. L. 97-409, Sec. 3, redesignated as par. (5) 'the Director of Central Intelligence' and all that followed through end of par. (4). Former par. (5) redesignated (6). Subsec. (b)(6). Pub. L. 97-409, Sec. 3, redesignated former par. (5) as (6) and substituted 'through (5) of this subsection during the period consisting of the incumbency of the President such individual serves plus one year after such incumbency, but in no event longer than two years after the individual leaves office;' for 'through (4) of this subsection during the incumbency of the President or during the period the last preceding President held office, if such preceding President was of the same political party as the incumbent President; and'. Former par. (6) redesignated (8). Subsec. (b)(7). Pub. L. 97-409, Sec. 3, added par. (7). Subsec. (b)(8). Pub. L. 97-409, Sec. 3, redesignated former par. (6) as (8) and substituted 'the chairman and treasurer of the principal national campaign committee seeking the election or reelection of the President, and any officer of the campaign exercising authority at the national level, such as the campaign manager or director, during the incumbency of the President' for 'any officer of the principal national campaign committee seeking the election or reelection of the President'. Subsec. (c). Pub. L. 97-409, Sec. 4(a)(2), added subsec. (c). EFFECTIVE DATE OF 1987 AMENDMENT Section 6 of Pub. L. 100-191 provided that: '(a) In General. - Subject to subsection (b), the amendments made by this Act (enacting section 599 of this title, amending this section, sections 49 and 592 to 598 of this title, sections 203 and 205 of Pub. L. 95-521 set out in the Appendix to Title 5, Government Organization and Employees, and section 202 of Title 18, Crimes and Criminal Procedure, enacting provisions set out as a note under section 1 of this title, and amending provisions set out below) take effect on the date of the enactment of this Act (Dec. 15, 1987). '(b) Pending Proceedings. - With respect to any proceeding under chapter 39 of title 28, United States Code (before the redesignation of such chapter as chapter 40 by section 144(g) of Public Law 99-554), or under chapter 40 of such title (after such redesignation), which is pending on the date of the enactment of this Act (Dec. 15, 1987), the following shall apply: '(1) Except as provided in paragraphs (2) and (3), the provisions of chapter 40 of such title as in effect on the day before such date of enactment shall, in lieu of the amendments made by this Act, continue to apply on or after such date to such proceeding until such proceeding is terminated in accordance with such chapter. '(2) The following provisions shall apply to such proceeding on or after such date of enactment: '(A) Section 593(f) of title 28, United States Code, as amended by section 2 of this Act, relating to the award of attorneys' fees. '(B) Section 594(d)(2) of such title, as added by section 2 of this Act, to the extent that such section 594(d)(2) relates to reports by the Attorney General on expenditures by independent counsel, except that the first such report shall be made only with respect to expenditures on or after the date of the enactment of this Act. '(C) Section 594(h)(1)(A) of such title, as added by section 2 of this Act, relating to reports by independent counsel, except that the 6-month periods described in such section 594(h)(1)(A) shall be calculated from the date of the enactment of this Act. '(D) Section 594(i) of such title, as added by section 2 of this Act, relating to the independence of the office of independent counsel for certain purposes. '(E) Section 594(k) of such title, as added by section 2 of this Act, relating to custody of records of independent counsel. '(F) Section 596(a)(3) of such title, as amended by section 2 of this Act, relating to judicial review of the removal of an independent counsel from office. '(G) Section 596(c) of such title, as added by section 2 of this Act, relating to audits of expenditures of independent counsel. '(H) The amendments made by section 3 of this Act (amending sections 203 and 205 of Pub. L. 95-521, set out in Appendix to Title 5, and section 202 of Title 18), relating to the status of independent counsel and their appointees as special government employees and to their financial disclosure requirements. '(3) Section 594(j) of title 28, United States Code, as added by section 2 of this Act, relating to certain standards of conduct shall, 90 days after the date of the enactment of this Act, apply to a pending proceeding described in this subsection.' EFFECTIVE DATE OF 1984 AMENDMENT Section 235(a)(1)(B)(ii)(IV) of Pub. L. 98-473 provided that the amendment made by Pub. L. 98-473 is effective Oct. 12, 1984. EFFECTIVE DATE Section 604 of Pub. L. 95-521 provided that: 'Except as provided in this section, the amendments made by this title (enacting this chapter and sections 49, 528, and 529 of this title) shall take effect on the date of the enactment of this Act (Oct. 26, 1978). The provisions of chapter 39 of title 28 of the United States Code, as added by section 601 of this Act, shall not apply to specific information received by the Attorney General pursuant to section 591 of such title 28, if the Attorney General determines that - '(1) such specific information is directly related to a prosecution pending at the time such specific information is received by the Attorney General; '(2) such specific information is related to a matter which has been presented to a grand jury and is received by the Attorney General within one hundred and eighty days of the date of the enactment of this Act; or '(3) such specific information is related to an investigation that is pending at the time such specific information is received by the Attorney General, and such specific information is received by the Attorney General within ninety days of the date of the enactment of this Act.' PERMANENT APPROPRIATION FOR EXPENSES OF INDEPENDENT COUNSELS Pub. L. 100-202, Sec. 101(a) (title II), Dec. 22, 1987, 101 Stat. 1329, 1329-9, provided: 'That a permanent indefinite appropriation is established within the Department of Justice to pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law: Provided further, That the Comptroller General shall perform semiannual financial reviews of expenditures from the Independent Counsel permanent indefinite appropriation, and report their findings to the Committees on Appropriations of the House and Senate'. CONTINGENCY FUND FOR INDEPENDENT COUNSELS Section 601(c) of Pub. L. 95-521, as amended by Pub. L. 97-409, Sec. 2(c)(2), Jan. 3, 1983, 96 Stat. 2039; Pub. L. 100-191, Sec. 5(b), Dec. 15, 1987, 101 Stat. 1307, provided that: 'There are authorized to be appropriated for each fiscal year such sums as may be necessary, to be held by the Department of Justice as a contingent fund for the use of any independent counsels appointed under chapter 40 (relating to independent counsels) of title 28 of the United States Code in the carrying out of functions under such chapter.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 592, 593 of this title. ------DocID 36411 Document 273 of 1452------ -CITE- 28 USC Sec. 592 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 592. Preliminary investigation and application for appointment of an independent counsel -STATUTE- (a) Conduct of Preliminary Investigation. - (1) In general. - A preliminary investigation conducted under this chapter shall be of such matters as the Attorney General considers appropriate in order to make a determination, under subsection (b) or (c), on whether further investigation is warranted, with respect to each potential violation, or allegation of a violation, of criminal law. The Attorney General shall make such determination not later than 90 days after the preliminary investigation is commenced, except that, in the case of a preliminary investigation commenced after a congressional request under subsection (g), the Attorney General shall make such determination not later than 90 days after the request is received. The Attorney General shall promptly notify the division of the court specified in section 593(a) of the commencement of such preliminary investigation and the date of such commencement. (2) Limited authority of attorney general. - (A) In conducting preliminary investigations under this chapter, the Attorney General shall have no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas. (B)(i) The Attorney General shall not base a determination under this chapter that information with respect to a violation of criminal law by a person is not specific and from a credible source upon a determination that such person lacked the state of mind required for the violation of criminal law. (ii) The Attorney General shall not base a determination under this chapter that there are no reasonable grounds to believe that further investigation is warranted, upon a determination that such person lacked the state of mind required for the violation of criminal law involved, unless there is clear and convincing evidence that the person lacked such state of mind. (3) Extension of time for preliminary investigation. - The Attorney General may apply to the division of the court for a single extension, for a period of not more than 60 days, of the 90-day period referred to in paragraph (1). The division of the court may, upon a showing of good cause, grant such extension. (b) Determination That Further Investigation Not Warranted. - (1) Notification of division of the court. - If the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are no reasonable grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court, and the division of the court shall have no power to appoint an independent counsel with respect to the matters involved. (2) Form of notification. - Such notification shall contain a summary of the information received and a summary of the results of the preliminary investigation. (c) Determination That Further Investigation is Warranted. - (1) Application for appointment of independent counsel. - The Attorney General shall apply to the division of the court for the appointment of an independent counsel if - (A) the Attorney General, upon completion of a preliminary investigation under this chapter, determines that there are reasonable grounds to believe that further investigation is warranted; or (B) the 90-day period referred to in subsection (a)(1), and any extension granted under subsection (a)(3), have elapsed and the Attorney General has not filed a notification with the division of the court under subsection (b)(1). In determining under this chapter whether reasonable grounds exist to warrant further investigation, the Attorney General shall comply with the written or other established policies of the Department of Justice with respect to the conduct of criminal investigations. (2) Receipt of additional information. - If, after submitting a notification under subsection (b)(1), the Attorney General receives additional information sufficient to constitute grounds to investigate the matters to which such notification related, the Attorney General shall - (A) conduct such additional preliminary investigation as the Attorney General considers appropriate for a period of not more than 90 days after the date on which such additional information is received; and (B) otherwise comply with the provisions of this section with respect to such additional preliminary investigation to the same extent as any other preliminary investigation under this section. (d) Contents of Application. - Any application for the appointment of an independent counsel under this chapter shall contain sufficient information to assist the division of the court in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction so that the independent counsel has adequate authority to fully investigate and prosecute the subject matter and all matters related to that subject matter. (e) Disclosure of Information. - Except as otherwise provided in this chapter, no officer or employee of the Department of Justice or an office of independent counsel may, without leave of the division of the court, disclose to any individual outside the Department of Justice or such office any notification, application, or any other document, materials, or memorandum supplied to the division of the court under this chapter. Nothing in this chapter shall be construed as authorizing the withholding of information from the Congress. (f) Limitation on Judicial Review. - The Attorney General's determination under this chapter to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court. (g) Congressional Request. - (1) By judiciary committee or members thereof. - The Committee on the Judiciary of either House of the Congress, or a majority of majority party members or a majority of all nonmajority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel. (2) Report by attorney general pursuant to request. - Not later than 30 days after the receipt of a request under paragraph (1), the Attorney General shall submit, to the committee making the request, or to the committee on which the persons making the request serve, a report on whether the Attorney General has begun or will begin a preliminary investigation under this chapter of the matters with respect to which the request is made, in accordance with subsection (a) or (c) of section 591, as the case may be. The report shall set forth the reasons for the Attorney General's decision regarding such preliminary investigation as it relates to each of the matters with respect to which the congressional request is made. If there is such a preliminary investigation, the report shall include the date on which the preliminary investigation began or will begin. (3) Submission of information in response to congressional request. - At the same time as any notification, application, or any other document, material, or memorandum is supplied to the division of the court pursuant to this section with respect to a preliminary investigation of any matter with respect to which a request is made under paragraph (1), such notification, application, or other document, material, or memorandum shall be supplied to the committee making the request, or to the committee on which the persons making the request serve. If no application for the appointment of an independent counsel is made to the division of the court under this section pursuant to such a preliminary investigation, the Attorney General shall submit a report to that committee stating the reasons why such application was not made, addressing each matter with respect to which the congressional request was made. (4) Disclosure of information. - Any report, notification, application, or other document, material, or memorandum supplied to a committee under this subsection shall not be revealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of such report, notification, application, document, material, or memorandum as will not in the committee's judgment prejudice the rights of any individual. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1868, and amended Pub. L. 97-409, Sec. 2(a)(1), 4(b)-(e), Jan. 3, 1983, 96 Stat. 2039-2041; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1295.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting provisions relating to preliminary investigation and application for appointment of an independent counsel for provisions relating to application for appointment of an independent counsel. 1983 - Subsec. (a). Pub. L. 97-409, Sec. 4(b), designated existing provisions as par. (1), substituted, 'Upon receiving information that the Attorney General determines is sufficient to constitute grounds to investigate that any person covered by the Act has engaged in conduct described in subsection (a) or (c) of section 591 of this title, the Attorney General' for 'The Attorney General, upon receiving specific information that any of the persons described in section 591(b) of this title has engaged in conduct described in section 591(a) of this title,', inserted 'In determining whether grounds to investigate exist, the Attorney General shall consider - (A) the degree of specificity of the information received, and (B) the credibility of the source of the information.', and added par. (2). Subsec. (b)(1). Pub. L. 97-409, Sec. 2(a)(1)(A), 4(c), substituted 'that there are no reasonable grounds to believe that further investigation or prosecution is warranted' for 'that the matter is so unsubstantiated that no further investigation or prosecution is warranted' and substituted 'independent counsel' for 'special prosecutor'. Subsec. (c)(1). Pub. L. 97-409, Sec. 2(a)(1)(A), 4(d), substituted 'finds reasonable grounds to believe that further investigation or prosecution is warranted' for 'finds the matter warrants further investigation or prosecution' after 'preliminary investigation', 'that there are no reasonable grounds to believe that further investigation or prosecution is warranted' for 'that the matter is so unsubstantiated as not to warrant further investigation or prosecution', and 'independent counsel' for 'special prosecutor', and inserted provision that in determining whether reasonable grounds exist to warrant further investigation or prosecution, the Attorney General shall comply with written or other established policies of the Department of Justice with respect to the enforcement of criminal laws. Subsec. (c)(2). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' in provisions following subpar. (B). Subsec. (c)(2)(A). Pub. L. 97-409, Sec. 4(e)(1), substituted 'information sufficient to constitute grounds to investigate' for 'specific information' after 'receives additional'. Subsec. (c)(2)(B). Pub. L. 97-409, Sec. 4(e)(2), substituted 'reasonable grounds exist to warrant' for 'such information warrants' after 'appropriate, that'. Subsecs. (d)(1), (e), (f). Pub. L. 97-409, Sec. 2(a)(1), substituted 'independent counsel' for 'special prosecutor' and 'independent counsel's' for 'special prosecutor's' wherever appearing. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 591, 593 of this title. ------DocID 36412 Document 274 of 1452------ -CITE- 28 USC Sec. 593 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 593. Duties of the division of the court -STATUTE- (a) Reference to Division of the Court. - The division of the court to which this chapter refers is the division established under section 49 of this title. (b) Appointment and Jurisdiction of Independent Counsel. - (1) Authority. - Upon receipt of an application under section 592(c), the division of the court shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction. (2) Qualifications of independent counsel. - The division of the court shall appoint as independent counsel an individual who has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner. The division of the court shall seek to appoint as independent counsel an individual who will serve to the extent necessary to complete the investigation and any prosecution without undue delay. The division of the court may not appoint as an independent counsel any person who holds any office of profit or trust under the United States. (3) Scope of prosecutorial jurisdiction. - In defining the independent counsel's prosecutorial jurisdiction, the division of the court shall assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter with respect to which the Attorney General has requested the appointment of the independent counsel, and all matters related to that subject matter. Such jurisdiction shall also include the authority to investigate and prosecute Federal crimes, other than those classified as Class B or C misdemeanors or infractions, that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General's request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. (4) Disclosure of identity and prosecutorial jurisdiction. - An independent counsel's identity and prosecutorial jurisdiction (including any expansion under subsection (c)) may not be made public except upon the request of the Attorney General or upon a determination of the division of the court that disclosure of the identity and prosecutorial jurisdiction of such independent counsel would be in the best interests of justice. In any event, the identity and prosecutorial jurisdiction of such independent counsel shall be made public when any indictment is returned, or any criminal information is filed, pursuant to the independent counsel's investigation. (c) Expansion of Jurisdiction. - (1) In general. - The division of the court, upon the request of the Attorney General, may expand the prosecutorial jurisdiction of an independent counsel, and such expansion may be in lieu of the appointment of another independent counsel. (2) Procedure for request by independent counsel. - (A) If the independent counsel discovers or receives information about possible violations of criminal law by persons as provided in section 591, which are not covered by the prosecutorial jurisdiction of the independent counsel, the independent counsel may submit such information to the Attorney General. The Attorney General shall then conduct a preliminary investigation of the information in accordance with the provisions of section 592, except that such preliminary investigation shall not exceed 30 days from the date such information is received. In making the determinations required by section 592, the Attorney General shall give great weight to any recommendations of the independent counsel. (B) If the Attorney General determines, after according great weight to the recommendations of the independent counsel, that there are no reasonable grounds to believe that further investigation is warranted, the Attorney General shall promptly so notify the division of the court and the division of the court shall have no power to expand the jurisdiction of the independent counsel or to appoint another independent counsel with respect to the matters involved. (C) If - (i) the Attorney General determines that there are reasonable grounds to believe that further investigation is warranted; or (ii) the 30-day period referred to in subparagraph (A) elapses without a notification to the division of the court that no further investigation is warranted, the division of the court shall expand the jurisdiction of the appropriate independent counsel to include the matters involved or shall appoint another independent counsel to investigate such matters. (d) Return for Further Explanation. - Upon receipt of a notification under section 592 or subsection (c)(2)(B) of this section from the Attorney General that there are no reasonable grounds to believe that further investigation is warranted with respect to information received under this chapter, the division of the court shall have no authority to overrule this determination but may return the matter to the Attorney General for further explanation of the reasons for such determination. (e) Vacancies. - If a vacancy in office arises by reason of the resignation, death, or removal of an independent counsel, the division of the court shall appoint an independent counsel to complete the work of the independent counsel whose resignation, death, or removal caused the vacancy, except that in the case of a vacancy arising by reason of the removal of an independent counsel, the division of the court may appoint an acting independent counsel to serve until any judicial review of such removal is completed. (f) Attorneys' Fees. - (1) Award of fees. - Upon the request of an individual who is the subject of an investigation conducted by an independent counsel pursuant to this chapter, the division of the court may, if no indictment is brought against such individual pursuant to that investigation, award reimbursement for those reasonable attorneys' fees incurred by that individual during that investigation which would not have been incurred but for the requirements of this chapter. The division of the court shall notify the Attorney General of any request for attorneys' fees under this subsection. (2) Evaluation of fees. - The division of the court may direct the Attorney General to file a written evaluation of any request for attorneys' fees under this subsection, analyzing for each expense - (A) the sufficiency of the documentation; (B) the need or justification for the underlying item; and (C) the reasonableness of the amount of money requested. (g) Disclosure of Information. - The division of the court may, subject to section 594(h)(2), allow the disclosure of any notification, application, or any other document, material, or memorandum supplied to the division of the court under this chapter. (h) Amicus Curiae Briefs. - When presented with significant legal issues, the division of the court may disclose sufficient information about the issues to permit the filing of timely amicus curiae briefs. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1869, and amended Pub. L. 97-409, Sec. 2(a)(1), 5, Jan. 3, 1983, 96 Stat. 2039, 2041; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1297.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting subsecs. (a) to (h) for former subsecs. (a) to (g) which related to similar subject matter. 1983 - Subsec. (b). Pub. L. 97-409, Sec. 2(a)(1), substituted 'independent counsel' for 'special prosecutor' and 'independent counsel's' for 'special prosecutor's' wherever appearing. Subsecs. (c) to (e). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' wherever appearing. Subsecs. (f), (g). Pub. L. 97-409, Sec. 5, added subsecs. (f) and (g). EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, but with subsec. (f) applicable to previously initiated proceedings pending on Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 592, 594 of this title; title 26 section 6103. ------DocID 36413 Document 275 of 1452------ -CITE- 28 USC Sec. 594 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 594. Authority and duties of an independent counsel -STATUTE- (a) Authorities. - Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in such independent counsel's prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18. Such investigative and prosecutorial functions and powers shall include - (1) conducting proceedings before grand juries and other investigations; (2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that such independent counsel considers necessary; (3) appealing any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity; (4) reviewing all documentary evidence available from any source; (5) determining whether to contest the assertion of any testimonial privilege; (6) receiving appropriate national security clearances and, if necessary, contesting in court (including, where appropriate, participating in in camera proceedings) any claim of privilege or attempt to withhold evidence on grounds of national security; (7) making applications to any Federal court for a grant of immunity to any witness, consistent with applicable statutory requirements, or for warrants, subpoenas, or other court orders, and, for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General; (8) inspecting, obtaining, or using the original or a copy of any tax return, in accordance with the applicable statutes and regulations, and, for purposes of section 6103 of the Internal Revenue Code of 1986 and the regulations issued thereunder, exercising the powers vested in a United States attorney or the Attorney General; (9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States; and (10) consulting with the United States attorney for the district in which any violation of law with respect to which the independent counsel is appointed was alleged to have occurred. (b) Compensation. - An independent counsel appointed under this chapter shall receive compensation at the per diem rate equal to the annual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5. (c) Additional Personnel. - For the purposes of carrying out the duties of an office of independent counsel, such independent counsel may appoint, fix the compensation, and assign the duties of such employees as such independent counsel considers necessary (including investigators, attorneys, and part-time consultants). The positions of all such employees are exempted from the competitive service. No such employee may be compensated at a rate exceeding the maximum rate of pay payable for GS-18 of the General Schedule under section 5332 of title 5. (d) Assistance of Department of Justice. - (1) In carrying out functions. - An independent counsel may request assistance from the Department of Justice in carrying out the functions of the independent counsel, and the Department of Justice shall provide that assistance, which may include access to any records, files, or other materials relevant to matters within such independent counsel's prosecutorial jurisdiction, and the use of the resources and personnel necessary to perform such independent counsel's duties. (2) Payment of and reports on expenditures of independent counsel. - The Department of Justice shall pay all costs relating to the establishment and operation of any office of independent counsel. The Attorney General shall submit to the Congress, not later than 30 days after the end of each fiscal year, a report on amounts paid during that fiscal year for expenses of investigations and prosecutions by independent counsel. Each such report shall include a statement of all payments made for activities of independent counsel but may not reveal the identity or prosecutorial jurisdiction of any independent counsel which has not been disclosed under section 593(b)(4). (e) Referral of Other Matters to an Independent Counsel. - An independent counsel may ask the Attorney General or the division of the court to refer to the independent counsel matters related to the independent counsel's prosecutorial jurisdiction, and the Attorney General or the division of the court, as the case may be, may refer such matters. If the Attorney General refers a matter to an independent counsel on the Attorney General's own initiative, the independent counsel may accept such referral if the matter relates to the independent counsel's prosecutorial jurisdiction. If the Attorney General refers any matter to the independent counsel pursuant to the independent counsel's request, or if the independent counsel accepts a referral made by the Attorney General on the Attorney General's own initiative, the independent counsel shall so notify the division of the court. (f) Compliance With Policies of the Department of Justice. - An independent counsel shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws. (g) Dismissal of Matters. - The independent counsel shall have full authority to dismiss matters within the independent counsel's prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent with the written or other established policies of the Department of Justice with respect to the enforcement of criminal laws. (h) Reports by Independent Counsel. - (1) Required reports. - An independent counsel shall - (A) file with the division of the court, with respect to the 6-month period beginning on the date of his or her appointment, and with respect to each 6-month period thereafter until the office of that independent counsel terminates, a report which identifies and explains major expenses, and summarizes all other expenses, incurred by that office during the 6-month period with respect to which the report is filed, and estimates future expenses of that office; and (B) before the termination of the independent counsel's office under section 596(b), file a final report with the division of the court, setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought, and the reasons for not prosecuting any matter within the prosecutorial jurisdiction of such independent counsel. (2) Disclosure of information in reports. - The division of the court may release to the Congress, the public, or any appropriate person, such portions of a report made under this subsection as the division of the court considers appropriate. The division of the court shall make such orders as are appropriate to protect the rights of any individual named in such report and to prevent undue interference with any pending prosecution. The division of the court may make any portion of a final report filed under paragraph (1)(B) available to any individual named in such report for the purposes of receiving within a time limit set by the division of the court any comments or factual information that such individual may submit. Such comments and factual information, in whole or in part, may, in the discretion of the division of the court, be included as an appendix to such final report. (i) Independence From Department of Justice. - Each independent counsel appointed under this chapter, and the persons appointed by that independent counsel under subsection (c), are separate from and independent of the Department of Justice for purposes of sections 202 through 209 of title 18. (j) Standards of Conduct Applicable to Independent Counsel, Persons Serving in the Office of an Independent Counsel, and Their Law Firms. - (1) Restrictions on employment while independent counsel and appointees are serving. - (A) During the period in which an independent counsel is serving under this chapter - (i) such independent counsel, and (ii) any person associated with a firm with which such independent counsel is associated, may not represent in any matter any person involved in any investigation or prosecution under this chapter. (B) During the period in which any person appointed by an independent counsel under subsection (c) is serving in the office of independent counsel, such person may not represent in any matter any person involved in any investigation or prosecution under this chapter. (2) Post employment restrictions on independent counsel and appointees. - (A) Each independent counsel and each person appointed by that independent counsel under subsection (c) may not, for 3 years following the termination of the service under this chapter of that independent counsel or appointed person, as the case may be, represent any person in any matter if that individual was the subject of an investigation or prosecution under this chapter that was conducted by that independent counsel. (B) Each independent counsel and each person appointed by that independent counsel under subsection (c) may not, for 1 year following the termination of the service under this chapter of that independent counsel or appointed person, as the case may be, represent any person in any matter involving any investigation or prosecution under this chapter. (3) One-year ban on representation by members of firms of independent counsel. - Any person who is associated with a firm with which an independent counsel is associated or becomes associated after termination of the service of that independent counsel under this chapter may not, for 1 year following such termination, represent any person in any matter involving any investigation or prosecution under this chapter. (4) Definitions. - For purposes of this subsection - (A) the term 'firm' means a law firm whether organized as a partnership or corporation; and (B) a person is 'associated' with a firm if that person is an officer, director, partner, or other member or employee of that firm. (k) Custody of Records of an Independent Counsel. - (1) Transfer of records. - Upon termination of the office of an independent counsel, that independent counsel shall transfer to the Archivist of the United States all records which have been created or received by that office. Before this transfer, the independent counsel shall clearly identify which of these records are subject to rule 6(e) of the Federal Rules of Criminal Procedure as grand jury materials and which of these records have been classified as national security information. Any records which were compiled by an independent counsel and, upon termination of the independent counsel's office, were stored with the division of the court or elsewhere before the enactment of the Independent Counsel Reauthorization Act of 1987, shall also be transferred to the Archivist of the United States by the division of the court or the person in possession of such records. (2) Maintenance, use, and disposal of records. - Records transferred to the Archivist under this chapter shall be maintained, used, and disposed of in accordance with chapters 21, 29, and 33 of title 44. (3) Access to records. - (A) In general. - Subject to paragraph (4), access to the records transferred to the Archivist under this chapter shall be governed by section 552 of title 5. (B) Access by department of justice. - The Archivist shall, upon written application by the Attorney General, disclose any such records to the Department of Justice for purposes of an ongoing law enforcement investigation or court proceeding, except that, in the case of grand jury materials, such records shall be so disclosed only by order of the court of jurisdiction under rule 6(e) of the Federal Rules of Criminal Procedure. (C) Exception. - Notwithstanding any restriction on access imposed by law, the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to the records transferred to the Archivist under this chapter. (4) Records provided by congress. - Records of an investigation conducted by a committee of the House of Representatives or the Senate which are provided to an independent counsel to assist in an investigation or prosecution conducted by that independent counsel - (A) shall be maintained as a separate body of records within the records of the independent counsel; and (B) shall, after the records have been transferred to the Archivist under this chapter, be made available, except as provided in paragraph (3)(B) and (C), in accordance with the rules governing release of the records of the House of Congress that provided the records to the independent counsel. Subparagraph (B) shall not apply to those records which have been surrendered pursuant to grand jury or court proceedings. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1869, and amended Pub. L. 97-409, Sec. 2(a)(1), 6(a)-(c), Jan. 3, 1983, 96 Stat. 2039, 2041; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1300.) -REFTEXT- REFERENCES IN TEXT Section 6103 of the Internal Revenue Code of 1986, referred to in subsec. (a)(8), is classified to section 6103 of Title 26, Internal Revenue Code. The Federal Rules of Criminal Procedure, referred to in subsec. (k)(1), (3)(B), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. The enactment of the Independent Counsel Reauthorization Act of 1987, referred to in subsec. (k)(1), is the enactment of Pub. L. 100-191, which was approved Dec. 15, 1987. -MISC2- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting subsecs. (a) to (k) for former subsecs. (a) to (g) which related to similar subject matter. 1986 - Subsec. (a)(8). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' in section catchline. Subsec. (a). Pub. L. 97-409, Sec. 2(a)(1), substituted 'independent counsel' for 'special prosecutor' wherever appearing and 'independent counsel's' for 'special prosecutor's'. Subsec. (a)(10). Pub. L. 97-409, Sec. 6(a), added par. (10). Subsecs. (b), (c). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' wherever appearing. Subsecs. (d), (e). Pub. L. 97-409, Sec. 2(a)(1), substituted 'independent counsel' for 'special prosecutor' and 'independent counsel's' for 'special prosecutor's' wherever appearing. Subsec. (f). Pub. L. 97-409, Sec. 2(a)(1)(A), 6(b), substituted 'independent counsel' for 'special prosecutor', 'except where not possible' for 'to the extent that such special prosecutor deems appropriate', and 'written or other established policies' for 'written policies'. Subsec. (g). Pub. L. 97-409, Sec. 6(c), added subsec. (g). EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, but with the following provisions applicable to previously initiated proceedings pending on Dec. 15, 1987: subsec. (d)(2) (relating to reports by Attorney General on expenditures by independent counsel, except that the first such report shall be made only with respect to expenditures on or after Dec. 15, 1987), subsec. (h)(1)(A) except that the 6-month periods described in subsec. (h)(1)(A) of this section shall be calculated from Dec. 15, 1987, subsec. (i), subsec. (k) of this section, and 90 days after Dec. 15, 1987, subsec. (j), see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 593, 596, 597 of this title; title 18 section 202. ------DocID 36414 Document 276 of 1452------ -CITE- 28 USC Sec. 595 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 595. Congressional oversight -STATUTE- (a) Oversight of Conduct of Independent Counsel. - (1) Congressional oversight. - The appropriate committees of the Congress shall have oversight jurisdiction with respect to the official conduct of any independent counsel appointed under this chapter, and such independent counsel shall have the duty to cooperate with the exercise of such oversight jurisdiction. (2) Reports to congress. - An independent counsel appointed under this chapter shall submit to the Congress such statements or reports on the activities of such independent counsel as the independent counsel considers appropriate. (b) Oversight of Conduct of Attorney General. - Within 15 days after receiving an inquiry about a particular case under this chapter, which is a matter of public knowledge, from a committee of the Congress with jurisdiction over this chapter, the Attorney General shall provide the following information to that committee with respect to that case: (1) When the information about the case was received. (2) Whether a preliminary investigation is being conducted, and if so, the date it began. (3) Whether an application for the appointment of an independent counsel or a notification that further investigation is not warranted has been filed with the division of the court, and if so, the date of such filing. (c) Information Relating to Impeachment. - An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment. Nothing in this chapter or section 49 of this title shall prevent the Congress or either House thereof from obtaining information in the course of an impeachment proceeding. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1871, and amended Pub. L. 97-409, Sec. 2(a)(1), Jan. 3, 1983, 96 Stat. 2139; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1304.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting subsecs. (a) to (c) relating to congressional oversight for former subsecs. (a) to (e) relating to reporting and congressional oversight. 1983 - Pub. L. 97-409, Sec. 2(a)(1), substituted 'independent counsel' for 'special prosecutor' and 'independent counsel's' for 'special prosecutor's' wherever appearing. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. ------DocID 36415 Document 277 of 1452------ -CITE- 28 USC Sec. 596 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 596. Removal of an independent counsel; termination of office -STATUTE- (a) Removal; Report on Removal. - (1) Grounds for removal. - An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties. (2) Report to division of the court and congress. - If an independent counsel is removed from office, the Attorney General shall promptly submit to the division of the court and the Committees on the Judiciary of the Senate and the House of Representatives a report specifying the facts found and the ultimate grounds for such removal. The committees shall make available to the public such report, except that each committee may, if necessary to protect the rights of any individual named in the report or to prevent undue interference with any pending prosecution, postpone or refrain from publishing any or all of the report. The division of the court may release any or all of such report in accordance with section 594(h)(2). (3) Judicial review of removal. - An independent counsel removed from office may obtain judicial review of the removal in a civil action commenced in the United States District Court for the District of Columbia. A member of the division of the court may not hear or determine any such civil action or any appeal of a decision in any such civil action. The independent counsel may be reinstated or granted other appropriate relief by order of the court. (b) Termination of Office. - (1) Termination by action of independent counsel. - An office of independent counsel shall terminate when - (A) the independent counsel notifies the Attorney General that the investigation of all matters within the prosecutorial jurisdiction of such independent counsel or accepted by such independent counsel under section 594(e), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions; and (B) the independent counsel files a final report in compliance with section 594(h)(1)(B). (2) Termination by division of the court. - The division of the court, either on its own motion or upon the request of the Attorney General, may terminate an office of independent counsel at any time, on the ground that the investigation of all matters within the prosecutorial jurisdiction of such independent counsel or accepted by such independent counsel under section 594(e), and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions. At the time of such termination, the independent counsel shall file the final report required by section 594(h)(1)(B). (c) Audits. - After the termination of the office of an independent counsel, the Comptroller General shall conduct an audit of the expenditures of that office, and shall submit to the appropriate committees of the Congress a report on the audit. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1872, and amended Pub. L. 97-409, Sec. 2(a)(1), 6(d), Jan. 3, 1983, 96 Stat. 2039, 2042; Pub. L. 98-620, title IV, Sec. 402(29)(A), Nov. 8, 1984, 98 Stat. 3359; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1304.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting subsecs. (a) to (c) for former subsecs. (a) and (b) which related to similar subject matter. 1984 - Subsec. (a)(3). Pub. L. 98-620 struck out provision requiring the division of the court to cause such an action to be in every way expedited. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' in section catchline. Subsec. (a)(1). Pub. L. 97-409, Sec. 2(a)(1), 6(d), substituted 'independent counsel' for 'special prosecutor', 'good cause' for 'extraordinary impropriety', and 'independent counsel's' for 'special prosecutor's'. Subsecs. (a)(2), (3), (b). Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' wherever appearing. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, but with subsecs. (a)(3) and (c) applicable to previously initiated proceedings pending on Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 594 of this title. ------DocID 36416 Document 278 of 1452------ -CITE- 28 USC Sec. 597 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 597. Relationship with Department of Justice -STATUTE- (a) Suspension of Other Investigations and Proceedings. - Whenever a matter is in the prosecutorial jurisdiction of an independent counsel or has been accepted by an independent counsel under section 594(e), the Department of Justice, the Attorney General, and all other officers and employees of the Department of Justice shall suspend all investigations and proceedings regarding such matter, except to the extent required by section 594(d)(1), and except insofar as such independent counsel agrees in writing that such investigation or proceedings may be continued by the Department of Justice. (b) Presentation as Amicus Curiae Permitted. - Nothing in this chapter shall prevent the Attorney General or the Solicitor General from making a presentation as amicus curiae to any court as to issues of law raised by any case or proceeding in which an independent counsel participates in an official capacity or any appeal of such a case or proceeding. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1872, and amended Pub. L. 97-409, Sec. 2(a)(1)(A), Jan. 3, 1983, 96 Stat. 2039; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1306.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting provisions relating to relationship with Department of Justice for substantially similar provisions. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), substituted 'independent counsel' for 'special prosecutor' wherever appearing. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. ------DocID 36417 Document 279 of 1452------ -CITE- 28 USC Sec. 598 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 598. Severability -STATUTE- If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by such invalidation. -SOURCE- (Added Pub. L. 95-521, title VI, Sec. 601(a), Oct. 26, 1978, 92 Stat. 1873, and amended Pub. L. 97-409, Sec. 2(a)(1)(A), 7, Jan. 3, 1983, 96 Stat. 2039, 2042; Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1306.) -MISC1- AMENDMENTS 1987 - Pub. L. 100-191 amended section generally, substituting provisions relating to severability for provisions relating to termination of chapter. See section 599 of this title. 1983 - Pub. L. 97-409, Sec. 2(a)(1)(A), 7, substituted reference to the date of enactment of the Ethics in Government Act Amendments of 1982 for reference to the date of enactment of this chapter and substituted 'independent counsel' for 'special prosecutor' wherever appearing. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-191 effective Dec. 15, 1987, and applicable to proceedings initiated and independent counsels appointed on and after Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. ------DocID 36418 Document 280 of 1452------ -CITE- 28 USC Sec. 599 -EXPCITE- TITLE 28 PART II CHAPTER 40 -HEAD- Sec. 599. Termination of effect of chapter -STATUTE- This chapter shall cease to be effective five years after the date of the enactment of the Independent Counsel Reauthorization Act of 1987, except that this chapter shall continue in effect with respect to then pending matters before an independent counsel that in the judgment of such counsel require such continuation until that independent counsel determines such matters have been completed. -SOURCE- (Added Pub. L. 100-191, Sec. 2, Dec. 15, 1987, 101 Stat. 1306.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of the Independent Counsel Reauthorization Act of 1987, referred to in text, is the date of enactment of Pub. L. 100-191, which was approved Dec. 15, 1987. -MISC2- EFFECTIVE DATE Section effective Dec. 15, 1987, see section 6 of Pub. L. 100-191, set out as a note under section 591 of this title. ------DocID 36419 Document 281 of 1452------ -CITE- 28 USC PART III -EXPCITE- TITLE 28 PART III -HEAD- PART III - COURT OFFICERS AND EMPLOYEES -MISC1- Chap. Sec. 41. Administrative Office of United States Courts 601 42. Federal Judicial Center 620 43. United States Magistrates 631 44. Arbitration 651 45. Supreme Court 671 47. Courts of Appeals 711 49. District Courts 751 51. United States Claims Court 791 (53. Repealed.) 55. Court of International Trade 871 57. General Provisions Applicable to Court Officers and Employees 951 58. United States Sentencing Commission 991 AMENDMENT OF ANALYSIS Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, the item for chapter 44 is repealed. SENATE REVISION AMENDMENT Chapter 59 was renumbered as Chapter 57 but without change in its section numbers, by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1988 - Pub. L. 100-702, title IX, Sec. 901(b), Nov. 19, 1988, 102 Stat. 4663, added item for chapter 44. 1984 - Pub. L. 98-473, title II, Sec. 217(b), Oct. 12, 1984, 98 Stat. 2026, added item for chapter 58, effective on the first day of the first calendar month beginning twenty-four months after Oct. 12, 1984 (Nov. 1, 1986). 1982 - Pub. L. 97-164, title I, Sec. 121(g)(1), Apr. 2, 1982, 96 Stat. 35, substituted 'United States Claims Court' for 'Court of Claims' as item for chapter 51. Pub. L. 97-164, title I, Sec. 122(a), Apr. 2, 1982, 96 Stat. 36, struck out item for chapter 53. 1980 - Pub. L. 96-417, title V, Sec. 501(13), Oct. 10, 1980, 94 Stat. 1742, substituted 'Court of International Trade' for 'Customs Court' as item for chapter 55. 1978 - Pub. L. 95-598, title II, Sec. 233(b), Nov. 6, 1978, 92 Stat. 2667, directed the addition of item for chapter 50, 'Bankruptcy Courts', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1968 - Pub. L. 90-578, title I, Sec. 102(a), Oct. 17, 1968, 82 Stat. 1114, substituted 'United States Magistrates' for 'United States Commissioners' as item for chapter 43. 1967 - Pub. L. 90-219, title II, Sec. 204, Dec. 20, 1967, 81 Stat. 669, added item for chapter 42. ------DocID 36420 Document 282 of 1452------ -CITE- 28 USC CHAPTER 41 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- CHAPTER 41 - ADMINISTRATIVE OFFICE OF UNITED STATES COURTS -MISC1- Sec. 601. Creation; Director and Deputy Director. 602. Employees. 603. Salaries. 604. Duties of Director generally. 605. Budget estimates. 606. Duties of Deputy Director. 607. Practice of law prohibited. 608. Seal. 609. Courts' appointive power unaffected. 610. Courts defined. 611. Retirement of Director. 612. Judiciary Automation Fund. AMENDMENTS 1989 - Pub. L. 101-162, title IV, Sec. 404(b)(2), Nov. 21, 1989, 103 Stat. 1015, added item 612. 1967 - Pub. L. 90-219, title II, Sec. 201(b), Dec. 20, 1967, 81 Stat. 668, added item 611. 1959 - Pub. L. 86-370, Sec. 5(a)(2), Sept. 23, 1959, 73 Stat. 652, substituted 'Deputy Director' for 'Assistant Director' in items 601 and 606. 1949 - Act May 24, 1949, ch. 139, Sec. 72a, 63 Stat. 100, inserted an apostrophe after 'Courts' and struck out comma after 'Courts' in item 609. ------DocID 36421 Document 283 of 1452------ -CITE- 28 USC Sec. 601 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 601. Creation; Director and Deputy Director -STATUTE- The Administrative Office of the United States Courts shall be maintained at the seat of government. It shall be supervised by a Director and a Deputy Director appointed and subject to removal by the Chief Justice of the United States, after consulting with the Judicial Conference. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 913; Sept. 23, 1959, Pub. L. 86-370, Sec. 5(a)(1), 73 Stat. 652; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 307, 104 Stat. 5112.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C. 1940 ed., Sec. 444 (Mar. 3, 1911, ch. 231, Sec. 302 as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains part of section 444 of title 28, U.S.C., 1940 ed. The remainder of said section 444 is incorporated in sections 603, 606 and 608 of this title. Changes were made in phraseology. AMENDMENTS 1990 - Pub. L. 101-650 substituted 'Chief Justice of the United States, after consulting with the Judicial Conference' for 'Supreme Court'. 1959 - Pub. L. 86-370 substituted 'Deputy Director' for 'Assistant Director'. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-370 effective Sept. 23, 1959, see section 7(a) of Pub. L. 86-370. REFERENCE TO ASSISTANT DIRECTOR DEEMED REFERENCE TO DEPUTY DIRECTOR Section 5(a)(4) of Pub. L. 86-370 provided that: 'Whenever the Assistant Director of the Administrative Office of the United States Courts is referred to in any other law, such reference shall be deemed to be to the Deputy Director of the Administrative Office of the United States Courts.' CONTINUATION OF LAW EXISTING ON SEPT. 1, 1948 Section 2(b) of act June 25, 1948, provided that: 'The provisions of title 28, Judiciary and Judicial Procedure, of the United States Code, set out in section 1 of this Act, with respect to the organization of each of the several courts therein provided for and of the Administrative Office of the United States Courts, shall be construed as continuations of existing law, and the tenure of the judges, officers, and employees thereof and of the United States attorneys and marshals and their deputies and assistants, in office on the effective date of this Act (Sept. 1, 1948), shall not be affected by its enactment, but each of them shall continue to serve in the same capacity under the appropriate provisions of title 28, as set out in section 1 of this Act, pursuant to his prior appointment: Provided, however, That each circuit court of appeals shall, as in said title 28 set out, hereafter be known as a United States court of appeals. No loss of rights, interruption of jurisdiction, or prejudice to matters pending in any of such courts on the effective date of this Act shall result from its enactment.' ------DocID 36422 Document 284 of 1452------ -CITE- 28 USC Sec. 602 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 602. Employees -STATUTE- (a) The Director shall appoint and fix the compensation of necessary employees of the Administrative Office in accordance with the Administrative Office of the United States Courts Personnel Act of 1990. (b) Notwithstanding any other law, the Director may appoint certified interpreters in accordance with section 604(a)(16)(B) of this title without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, relating to classification and General Schedule pay rates, but the compensation of any person appointed under this subsection shall not exceed the appropriate equivalent of the highest rate of pay payable for the highest grade established in the General Schedule, section 5332 of title 5. (c) The Director may obtain personal services as authorized by section 3109 of title 5, at rates not to exceed the appropriate equivalent of the highest rate of pay payable for the highest grade established in the General Schedule, section 5332 of title 5. (d) All functions of other officers and employees of the Administrative Office and all functions of organizational units of the Administrative Office are vested in the Director. The Director may delegate any of the Director's functions, powers, duties, and authority (except the authority to promulgate rules and regulations) to such officers and employees of the judicial branch of Government as the Director may designate, and subject to such terms and conditions as the Director may consider appropriate; and may authorize the successive redelegation of such functions, powers, duties, and authority as the Director may deem desirable. All official acts performed by such officers and employees shall have the same force and effect as though performed by the Director in person. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 913; Oct. 28, 1978, Pub. L. 95-539, Sec. 5, 92 Stat. 2044; Oct. 30, 1990, Pub. L. 101-474, Sec. 5(a), (q), 104 Stat. 1099, 1101; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 325(b)(4), 104 Stat. 5121.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 445 (Mar. 3, 1911, ch. 231, Sec. 303, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains provisions in section 445 of title 28, U.S.C., 1940 ed., for appointment of employees. Words 'with the approval of the Supreme Court' were omitted to relieve the court of the burden of approving appointments which in practice should properly be made by the Director under the supervision of the Judicial Conference of the United States. The remainder of section 445 of title 28, U.S.C., 1940 ed., is incorporated in sections 603 and 607 of this title. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Administrative Office of the United States Courts Personnel Act of 1990, referred to in subsec. (a), is Pub. L. 101-474, Oct. 30, 1990, 104 Stat. 1097, which amended this section and sections 603 and 604 of this title and sections 2301, 2302, 4301, 4501, 4701, 5102, 5108, 5349, 5595, 5596, 8331, 8347, 8401, and 8402 of Title 5, Government Organization and Employees, and enacted provisions set out below. For complete classification of this Act to the Code, see Tables. -MISC2- AMENDMENTS 1990 - Subsec. (a). Pub. L. 101-474, Sec. 5(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: 'The Director shall appoint and fix the compensation of necessary employees of the Administrative Office in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of title 5, relating to classification and General Schedule pay rates.' Subsec. (b). Pub. L. 101-474, Sec. 5(q), and Pub. L. 101-650 amended subsec. (b) identically, substituting '604(a)(16)(B)' for '604(a)(15)(B)'. 1978 - Pub. L. 95-539, among other changes, substituted provision authorizing the Director to appoint and fix the compensation of necessary employees in accordance with chapter 51 and subchapter III of chapter 53 of title 5 for provision authorizing the Director, subject to the provisions of the civil service laws, to appoint necessary employees for the Administrative Office and inserted provisions relating to appointing and fixing the compensation of certified interpreters, to obtaining personal services as authorized by section 3109 of title 5, and to transferring to the Director all of the functions of the officers and employees of the Administrative Office and all the functions of the organizational units of the Administrative Office with power in the Director to delegate his authority. EFFECTIVE DATE OF 1978 AMENDMENT Section 10 of Pub. L. 95-539 provided that: '(a) Except as provided in subsection (b), this Act (enacting section 1827 and 1828 of this title, amending this section and sections 603, 604, and 1920 of this title, enacting provisions set out as notes under this section and section 1 of this title, and repealing provisions set out as a note under this section) shall take effect on the date of the enactment of this Act (Oct. 28, 1978). '(b) Section 2 of this Act (enacting sections 1827 and 1828 of this title) shall take effect ninety days after the date of the enactment of this Act (Oct. 28, 1978).' REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5. ADMINISTRATIVE OFFICE OF UNITED STATES COURTS PERSONNEL Sections 1 to 4 and 6 of Pub. L. 101-474 provided that: 'SECTION 1. SHORT TITLE. 'This Act (see References in Text note above and Tables for classification) may be cited as the 'Administrative Office of the United States Courts Personnel Act of 1990'. 'SEC. 2. GENERAL PERSONNEL AUTHORITY. 'The Director of the Administrative Office of the United States Courts (hereinafter in this Act referred to as the 'Director') may appoint, fix the compensation of, assign, and direct such personnel as the Director determines necessary to discharge the duties and functions of the Administrative Office. 'SEC. 3. ESTABLISHMENT OF PERSONNEL MANAGEMENT SYSTEM. '(a) The Director shall, by regulation, establish a personnel management system for the Administrative Office which provides for the appointment, pay, promotion, and assignment of all employees on the basis of merit, but without regard to the provisions of title 5, United States Code, governing appointments and other personnel actions in the competitive service, or the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay rates. The system shall apply to all Administrative Office employees except those referred to in section 603 of title 28, United States Code, and shall, at a minimum - '(1) provide for a schedule of pay rates applicable to all employees; except as provided in paragraph (10), the basic pay of any person appointed under this section shall not exceed the rate of basic pay for level V of the Executive Schedule; '(2) incorporate pay comparability principles as set forth in section 5301(a) of title 5, United States Code; '(3) provide for the adjustment of the pay of employees at the same time and in the same percentage amount as rates of basic pay are adjusted for General Schedule and prevailing rate employees, as appropriate; '(4) establish procedures for employee evaluations, the granting of periodic pay adjustments, incentive awards, and resolution of employee grievances; '(5) establish procedures for disciplinary actions, including reduction in grade or pay, suspension, and removal, based on unacceptable performance or misconduct, except that - '(A) such procedures shall be consistent with - '(i) section 4303 of title 5, United States Code, to the extent that they relate to adverse actions based on unacceptable performance; and '(ii) chapter 75 of title 5, United States Code, to the extent that they relate to adverse actions covered by such chapter; and '(B) the Director may exempt from these procedures positions of a confidential or policy-determining character, not to exceed 4 percent of the authorized positions of the Administrative Office; '(6) establish procedures for premium pay (including overtime), except that the Director may at his discretion implement flexible and compressed work schedules and may exempt the hours constituting such schedules from premium pay to the extent he deems necessary to implement such schedules; '(7) include the principles set forth in section 2301(b) of title 5, United States Code; '(8) prohibit personnel practices prohibited under section 2302(b) of title 5, United States Code; '(9) prohibit discrimination on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition; the Director must promulgate regulations providing procedures for resolving complaints of discrimination by employees and applicants for employment; '(10) provide for the basic pay of not more than 5 percent of the authorized positions of the Administrative Office (excluding the positions referred to in section 603 of title 28, United States Code) to be set at rates not to exceed the rate of basic pay for positions at level IV of the Executive Schedule; the aggregate pay (including basic pay and incentive awards) of any individual whose basic pay is set under this subsection may not exceed the salary of the Director; and '(11) in the case of any individual who would be a preference eligible in the executive branch, provide preference for that individual in a manner and to an extent consistent with preference accorded to preference eligibles in the executive branch. '(b) The Director may apply the provisions of sections 5723 and 6304(f) of title 5, United States Code, to the positions referred to in subsection (a)(10) and in section 603 of title 28, United States Code, including the Deputy Director. '(c) The Director may provide for incentive awards for the positions referred to in section 603 of title 28, United States Code, including the Deputy Director, subject to the aggregate pay limitation in subsection (a)(10). '(d) The Chief Justice of the United States or the Judicial Conference of the United States may grant incentive awards to the Director, except that the Director's aggregate pay for any fiscal year, including salary and incentive awards, may not exceed the salary of a United States circuit judge. The Chief Justice or the Judicial Conference may authorize application of section 5723 of title 5, United States Code, to the Director. '(e) The Director may develop and conduct programs to meet the short- and long-range training needs of the agency. '(f) Notwithstanding any other provision of law, an individual who is an employee of the Administrative Office on the day before the effective date of this section and who, as of that day, was entitled to - '(1) appeal a reduction in grade or removal to the Merit Systems Protection Board under chapter 43 of title 5, United States Code, '(2) appeal an adverse action to the Merit Systems Protection Board under chapter 75 of title 5, United States Code, or '(3) file an appeal with the Equal Employment Opportunity Commission under part 1613 of title 29 of the Code of Federal Regulations, shall continue to be entitled to file such appeal so long as the individual remains an employee of the Administrative Office, except that this provision shall not apply to employees in positions referred to in section 603 of title 28, United States Code, or in positions of a confidential or policy-determining character referred to in subsection (a)(10). '(g) Nothing in this Act shall be construed to abolish or diminish any right or remedy granted to employees of or applicants for employment in the Administrative Office by any law prohibiting discrimination in Federal employment on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition, except that, with respect to any such employees and applicants for employment, any authority granted under any such law to the Equal Employment Opportunity Commission, the Office of Personnel Management, the Merit Systems Protection Board, or any other agency in the executive branch, shall be exercised by the Administrative Office. 'SEC. 4. NONCOMPETITIVE APPOINTMENTS. '(a) Notwithstanding any other provision of law, any employee of the Administrative Office who has completed at least 1 year of continuous service under a nontemporary appointment under the personnel system established pursuant to section 3 acquires a competitive status for appointment to any position in the competitive service for which the employee possesses the required qualifications. '(b) A period of continuous service performed as a nontemporary employee of the Administrative Office immediately before the personnel system under section 3 takes effect shall, for purposes of subsection (a), be treated as if it had been performed under such system. 'SEC. 6. AUTHORIZATION. 'There are authorized to be appropriated for fiscal year 1990 and for each fiscal year thereafter such sums as may be necessary to carry out the provisions of this Act.' CONTRACT LIMITATIONS Section 11 of Pub. L. 95-539 provided that: 'Any contracts entered into under this Act or any of the amendments made by this Act (enacting sections 1827 and 1828 of this title, amending this section and sections 603, 604, and 1920 of this title, enacting provisions set out as notes under this section and section 1 of this title, and repealing provisions set out as a note under this section) shall be limited to such extent or in such amounts as are provided in advance in appropriation Acts.' EMPLOYMENT OF EXPERTS OR CONSULTANTS; RATES Pub. L. 86-370, Sec. 5(b), Sept. 23, 1959, 73 Stat. 652, which authorized the Director of the Administrative Office of the United States Courts to procure the temporary or intermittent services of experts or consultants was repealed by Pub. L. 95-539, Sec. 8, Oct. 28, 1978, 92 Stat. 2044. ------DocID 36423 Document 285 of 1452------ -CITE- 28 USC Sec. 603 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 603. Salaries -STATUTE- The salary of the Director shall be the same as the salary of a district judge. Notwithstanding any other provision of law, the Director shall not be deemed to be an 'employee' for the purpose of subchapter I of chapter 63 of title 5. The salary of the Deputy Director shall be 92 percent of the salary of the Director. The salaries of six additional positions shall be fixed by the Director at rates not to exceed the annual rate of basic pay for positions at level IV of the Executive Schedule under section 5315 of title 5. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 913; Oct. 15, 1949, ch. 695, Sec. 5(b), 6(b), 63 Stat. 881; Oct. 31, 1951, ch. 655, Sec. 43(b), 65 Stat. 725; Sept. 23, 1959, Pub. L. 86-370, Sec. 5(a)(1), 73 Stat. 652; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(g), 78 Stat. 434; Dec. 16, 1967, Pub. L. 90-206, title II, Sec. 213(d), 81 Stat. 635; Oct. 28, 1978, Pub. L. 95-539, Sec. 6, 92 Stat. 2044; Dec. 22, 1987, Pub. L. 100-202, Sec. 101(a) (title IV, Sec. 409), 101 Stat. 1329, 1329-27; Oct. 1, 1988, Pub. L. 100-459, title IV, Sec. 406, 102 Stat. 2213; Oct. 30, 1990, Pub. L. 101-474, Sec. 5(b), 104 Stat. 1099.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 444, 445 (Mar. 3, 1911, ch. 231, Sec. 302, 303, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section consolidates parts of title 28, U.S.C., 1940 ed., Sec. 444, 445. The remainder of said sections are incorporated in sections 601, 602, 606, 607, and 608 of this title. The figure '$9,376.50' was substituted for '$7,500' as the salary of the Assistant Director in conformity with section 934 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees. Changes were made in phraseology. SENATE REVISION AMENDMENT The (former) figure, '$7,500,' with respect to salary of the Assistant Director, was restored by Senate amendment. See 80th Congress Senate Report No. 1559, amendments Nos. 15 and 65. AMENDMENTS 1990 - Pub. L. 101-474 inserted after first sentence 'Notwithstanding any other provision of law, the Director shall not be deemed to be an 'employee' for the purpose of subchapter I of chapter 63 of title 5. The salary of the Deputy Director shall be 92 percent of the salary of the Director.' and struck out 'of the Deputy Director and' after 'The salaries'. 1988 - Pub. L. 100-459 substituted 'six' for 'three'. 1987 - Pub. L. 100-202 substituted 'The salaries of the Deputy Director and of three additional positions shall be fixed by the Director at rates not to exceed the annual rate of basic pay for positions at level IV of the Executive Schedule under section 5315 of title 5' for 'The salary of the Deputy Director shall be in the same amount as the annual rate of basic pay for positions at level V of the Executive Schedule under section 5316 of title 5'. 1978 - Pub. L. 95-539 struck out provision authorizing the Director to fix the compensation of Administrative Office employees in accordance with the Classification Act of 1949. 1967 - Pub. L. 90-206 increased salaries of Director and Deputy Director from $27,000 and $26,000 per year to a salary equivalent to a United States district judge and the same amount of basic pay for positions at level V of the Executive Schedule under section 5316 of title 5, respectively. 1964 - Pub. L. 88-426 substituted '$27,000 for '$15,000 and '$26,000' for '$12,500'. 1959 - Pub. L. 86-370 substituted 'Deputy Director' for 'Assistant Director'. 1951 - Act Oct. 31, 1951, substituted reference in second paragraph to the Classification Act of 1949 for reference to former Classification Act of 1923. 1949 - Act Oct. 15, 1949, increased salaries of Director from $10,000 to $15,000 per annum and Assistant Director from $7,500 to $12,500 per annum. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-539 effective Oct. 28, 1978, see section 10(a) of Pub. L. 95-539, set out as a note under section 602 of this title. EFFECTIVE DATE OF 1967 AMENDMENT Section 220(a)(3) of title II of Pub. L. 90-206 provided, except as otherwise expressly provided, that: 'Sections 213(d) and (e) (amending this section and section 792 of this title), 214(j), (k), (l), (n), and (o) (amending sections 60j and 61-1 of Title 2, The Congress, and section 5533 of Title 5, Government Organization and Employees), 215 (amending sections 5314 to 5316 of Title 5) 217 (amending section 5545 of Title 5), 219 (amending sections 136a and 136a-1 of Title 2, sections 42a and 51a of former Title 31, Money and Finance, sections 162a, 166b, and 166b-1 of Title 40, Public Buildings, Property, and Works, and section 39a of Title 44, Public Printing and Documents), and 224(c) (amending material set out as a note under section 102 of Title 2), shall become effective at the beginning of the first pay period which begins on or after the date of enactment of this title (Dec. 16, 1967).' EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-426 effective on first day of first pay period which begins on or after July 1, 1964, except to the extent provided in section 501(c) of Pub. L. 88-426, see section 501(a) of Pub. L. 88-426. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-370 effective Sept. 23, 1959, see section 7(a) of Pub. L. 86-370. EFFECTIVE DATE OF 1949 AMENDMENT The increased compensation provided for by act Oct. 15, 1949, took effect on first day of first pay period which began after Oct. 15, 1949, see section 9 of act Oct. 15, 1949. SALARY INCREASES 1987 - Salaries of Director and Deputy Director increased respectively to $89,500 and $72,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. 1977 - Salaries of Director and Deputy Director increased respectively to $54,500 and $48,500 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2. 1969 - Salaries of Director and Deputy Director increased respectively from $30,000 and $28,000 to $40,000 and $36,000 per annum, commencing February 14, 1969, on recommendation of the President of the United States, see note set out under section 358 of Title 2. 1967 - Pub. L. 90-206, title II, Sec. 213(a), Dec. 16, 1967, 81 Stat. 635, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision of a section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)), section 3656 of Title 18, United States Code, the third sentence of section 603, sections 671 to 675, inclusive, or section 604(a)(5), of Title 28, United States Code, insofar as the latter section applies to graded positions, are hereby increased by amounts reflecting the respective applicable increases provided by section 202(a) of this title (amending section 5332(a) of Title 5, Government Organization and Employees) in corresponding rates of compensation for officers and employees subject to section 5332 of Title 5, United States Code. The rates of basic compensation of officers and employees holding ungraded positions and whose salaries are fixed pursuant to such section 604(a)(5) may be increased by the amounts reflecting the respective applicable increases provided by section 202(a) of this title (amending section 5332(a) of Title 5) in corresponding rates of compensation for officers and employees subject to section 5332 of Title 5, United States Code.' Section 213(a) of Pub. L. 90-206 effective as of beginning of first pay period which begins on or after Oct. 1, 1967, see section 220(a)(2) of Pub. L. 90-206, set out as a note under section 5332 of Title 5. 1966 - Pub. L. 89-504, title II, Sec. 202(a), July 18, 1966, 80 Stat. 293, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)), section 3656 of title 18, United States Code, the third sentence of section 603, sections 671 to 675, inclusive, or section 604(a)(5), of title 28, United States Code, insofar as the latter section applies to graded positions, are hereby increased by amounts reflecting the respective applicable increases provided by section 102(a) of title I of this Act (amending section 1113(b) of former Title 5, Executive Departments and Government Officers and Employees) in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended. The rates of basic compensation of officers and employees holding ungraded positions and whose salaries are fixed pursuant to such section 604(a)(5) may be increased by the amounts reflecting the respective applicable increases provided by section 102(a) of title I of this Act in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' Section 203 of title II of Pub. L. 89-504 provided that: 'This title shall become effective as follows: '(1) This section and section 201 (enacting provisions set out as a note under section 1 of this title) shall become effective on the date of enactment of this Act (July 18, 1966), '(2) Section 202 (enacting provisions set out as note above and under sections 604 and 753 of this title) shall become effective on the first day of the first pay period which begins on or after July 1, 1966.' 1965 - Pub. L. 89-301, Sec. 12(a), Oct. 29, 1965, 79 Stat. 1121, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)) section 3656 of Title 18, United States Code, the third sentence of section 603, sections 671 to 675, inclusive, or section 604(a)(5), of Title 28, United States Code, insofar as the latter section applies to graded positions, are hereby increased by amounts reflecting the respective applicable increases provided by section 2(a) of this Act (amending section 1113(b) of former Title 5, Executive Departments and Government Officers and Employees) in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees). The rates of basic compensation of officers and employees holding ungraded positions and whose salaries are fixed pursuant to such section 604(a)(5) (section 604(a)(5) of this title) may be increased by the amounts reflecting the respective applicable increases provided by section 2(a) of this Act in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5).' 1964 - Pub. L. 88-426, title IV, Sec. 402(a), Aug. 14, 1964, 78 Stat. 433, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)), section 3656 of title 18, United States Code, the third sentence of section 603, sections 672 to 675, inclusive, or section 604(a)(5), of title 28, United States Code, insofar as the latter section applies to graded positions, are hereby increased by amounts reflecting the respective applicable increases provided by title I of this Act in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees). The rates of basic compensation of officers and employees holding ungraded positions and whose salaries are fixed pursuant to section 604(a)(5) (section 604(a)(5) of this title) may be increased by the amounts reflecting the respective applicable increases provided by title I of this Act in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5).' 1962 - Pub. L. 87-793, title VI, Sec. 1004(a), Oct. 11, 1962, 76 Stat. 866, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)), section 3656 of title 18 of the United States Code, the third sentence of section 603, section 604(a)(5), or section 672 to 675 inclusive, of title 28 of the United States Code, or section 107(a)(6) of the Act of July 31, 1956, as amended (5 U.S.C. 2206(a)(6)) (section 2206(a)(b) of former Title 5, Executive Departments and Government Officers and Employees), are hereby increased by two amounts, the first amount to be effective for the period beginning as of the first day of the first pay period which begins on or after the date of enactment of this Act (Oct 11, 1962), and ending immediately prior to the first day of the first pay period which begins on or after January 1, 1964, and the second amount to be effective on the first day of the first pay period which begins on or after January 1, 1964, and thereafter, which reflect the respective applicable increases provided by title II of this part in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' 1960 - Pub. L. 86-568, title I, Sec. 116(a), July 1, 1960, 74 Stat. 303, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed by or pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. 102(a)(2)), section 3656 of title 18 of the United States Code, the third sentence of section 603, section 604(a)(5), or sections 672 to 675, inclusive, of title 28 of the United States Code, or section 107(a)(6) of the Act of July 31, 1956, as amended (5 U.S.C. 2206(a)(6)), are hereby increased by amounts equal to the increases provided by section 612 (112) of this part (amending former section 1113(b) of Title 5) in corresponding rates of compensation paid to officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' Pub. L. 87-367, title III, Sec. 302(d), Oct. 4, 1961, 75 Stat. 793, provided that: 'On and after the effective date of this subsection, section 116(a) of the Federal Employees Salary Increase Act of 1960 (Part B of the Act of July 1, 1960; 74 Stat. 303; Public Law 86-568) (set out as a note above) shall not be applicable with respect to the Deputy Director of the Administrative Office of the United States Courts.' 1958 - Pub. L. 85-462, Sec. 3(a), June 20, 1958, 72 Stat. 207, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C. (a)(2)), section 3656 of title 18 of the United States Code, the third sentence of section 603, section 604(a)(5), or sections 672 to 675 inclusive, of title 28 of the United States Code are hereby increased by amounts equal to the increases provided by section 2 of this Act in corresponding rates of compensation paid to officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' Section 2 of this Act, referred to above, amended section 1113(b) of former Title 5, Executive Departments and Government Officers and Employees, to increase compensation rates. 1955 - Act June 28, 1955, ch. 189, Sec. 3(a), 69 Stat. 175, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed pursuant to paragraph (2) of subdivision a of section 62 of the Bankruptcy Act (11 U.S.C., sec. 102(a)(2)), section 3656 of title 18 of the United States Code, the second and third sentences of section 603, section 604(a)(5), or sections 672 to 675, inclusive, of title 28 of the United States Code are hereby increased by amounts equal to the increases provided by section 2 of this Act in corresponding rates of compensation paid to officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' 1951 - Act Oct. 24, 1951, ch. 554, Sec. 1(c), 65 Stat. 613, provided that: 'The rates of basic compensation of officers and employees in or under the judicial branch of the Government whose rates of compensation are fixed pursuant to section 62(2) of the Bankruptcy Act (11 U.S.C. Sec. 102(a)(2)), section 3656 of title 18 of the United States Code the second and third sentences of section 603, section 604(5), or sections 672 to 675, inclusive, of title 28 of the United States Code, or who are appointed pursuant to section 792(b) of title 28 of the United States Code, are hereby increased by amounts equal to the increases provided by subsections (a) and (b) in corresponding rates of compensation paid to officers and employees subject to the Classification Act of 1949 (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' REFERENCE TO ASSISTANT DIRECTOR DEEMED REFERENCE TO DEPUTY DIRECTOR References in any other law to Assistant Director of the Administrative Office of the United States Courts deemed to be reference to the Deputy Director of the Administrative Office of the United States Courts, see note set out under section 601 of this title. ------DocID 36424 Document 286 of 1452------ -CITE- 28 USC Sec. 604 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 604. Duties of Director generally -STATUTE- (a) The Director shall be the administrative officer of the courts, and under the supervision and direction of the Judicial Conference of the United States, shall: (1) Supervise all administrative matters relating to the offices of clerks and other clerical and administrative personnel of the courts; (2) Examine the state of the dockets of the courts; secure information as to the courts' need of assistance; prepare and transmit semiannually to the chief judges of the circuits, statistical data and reports as to the business of the courts; (3) Submit to the annual meeting of the Judicial Conference of the United States, at least two weeks prior thereto, a report of the activities of the Administrative Office and the state of the business of the courts, together with the statistical data submitted to the chief judges of the circuits under paragraph (a)(2) of this section, and the Director's recommendations, which report, data and recommendations shall be public documents. (4) Submit to Congress and the Attorney General copies of the report, data and recommendations required by paragraph (a)(3) of this section; (5) Fix the compensation of clerks of court, deputies, librarians, criers, messengers, law clerks, secretaries, stenographers, clerical assistants, and other employees of the courts whose compensation is not otherwise fixed by law; (6) Determine and pay necessary office expenses of courts, judges, and those court officials whose expenses are by law allowable, and the lawful fees of United States Commissioners; (7) Regulate and pay annuities to widows and surviving dependent children of justices and judges of the United States, judges of the United States Claims Court, bankruptcy judges, United States magistrates, Directors of the Federal Judicial Center, and Directors of the Administrative Office, and necessary travel and subsistence expenses incurred by judges, court officers and employees, and officers and employees of the Administrative Office, and the Federal Judicial Center, while absent from their official stations on official business, without regard to the per diem allowances and amounts for reimbursement of actual and necessary expenses established by the Administrator of General Services under section 5702 of title 5, except that the reimbursement of subsistence expenses may not exceed that authorized by the Director for judges of the United States under section 456 of this title; (8) Disburse, directly or through the several United States marshals, moneys appropriated for the maintenance and operation of the courts; (9) Establish pretrial services pursuant to section 3152 of title 18, United States Code; (10)(A) Purchase, exchange, transfer, distribute, and assign the custody of lawbooks, equipment, supplies, and other personal property for the judicial branch of Government (except the Supreme Court unless otherwise provided pursuant to paragraph (17)); (B) provide or make available readily to each court appropriate equipment for the interpretation of proceedings in accordance with section 1828 of this title; and (C) enter into and perform contracts and other transactions upon such terms as the Director may deem appropriate as may be necessary to the conduct of the work of the judicial branch of Government (except the Supreme Court unless otherwise provided pursuant to paragraph (17)), and contracts for nonpersonal services providing pretrial services, agencies, for the interpretation of proceedings, and for the provision of special interpretation services pursuant to section 1828 of this title may be awarded without regard to section 3709 of the Revised Statutes of the United States (41 U.S.C. 5); (11) Audit vouchers and accounts of the courts, the Federal Judicial Center, the offices providing pretrial services, and their clerical and administrative personnel; (12) Provide accommodations for the courts, the Federal Judicial Center, the offices providing pretrial services and their clerical and administrative personnel; (13) Lay before Congress, annually, statistical tables that will accurately reflect the business transacted by the several bankruptcy courts, and all other pertinent data relating to such courts; (14) Pursuant to section 1827 of this title, establish a program for the certification and utilization of interpreters in courts of the United States; (15) Pursuant to section 1828 of this title, establish a program for the provision of special interpretation services in courts of the United States; (16)(A) In those districts where the Director considers it advisable based on the need for interpreters, authorize the full-time or part-time employment by the court of certified interpreters; (B) where the Director considers it advisable based on the need for interpreters, appoint certified interpreters on a full-time or part-time basis, for services in various courts when he determines that such appointments will result in the economical provision of interpretation services; and (C) pay out of moneys appropriated for the judiciary interpreters' salaries, fees, and expenses, and other costs which may accrue in accordance with the provisions of sections 1827 and 1828 of this title; (17) In the Director's discretion, (A) accept and utilize voluntary and uncompensated (gratuitous) services, including services as authorized by section 3102(b) of title 5, United States Code; and (B) accept, hold, administer, and utilize gifts and bequests of personal property for the purpose of aiding or facilitating the work of the judicial branch of Government, but gifts or bequests of money shall be covered into the Treasury; (18) Establish procedures and mechanisms within the judicial branch for processing fines, restitution, forfeitures of bail bonds or collateral, and assessments; (19) Regulate and pay annuities to bankruptcy judges and United States magistrates in accordance with section 377 of this title and paragraphs (1)(B) and (2) of section 2(c) of the Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988; (20) Periodically compile - (A) the rules which are prescribed under section 2071 of this title by courts other than the Supreme Court; (B) the rules which are prescribed under section 372(c)(11) of this title; and (C) the orders which are required to be publicly available under section 372(c)(15) of this title; so as to provide a current record of such rules and orders; (21) Establish a program of incentive awards for employees of the judicial branch of the United States Government, other than any judge who is entitled to hold office during good behavior; (22) Receive and expend, either directly or by transfer to the United States Marshals Service or other Government agency, funds appropriated for the procurement, installation, and maintenance of security equipment and protective services for the United States Courts in courtrooms and adjacent areas, including building ingress/egress control, inspection of packages, directed security patrols, and other similar activities; (23) Regulate and pay annuities to judges of the United States Claims Court in accordance with section 178 of this title; and (FOOTNOTE 1) (FOOTNOTE 1) So in original. The word 'and' probably should not appear. (24) (FOOTNOTE 2) Perform such other duties as may be assigned to him by the Supreme Court or the Judicial Conference of the United States. (FOOTNOTE 3) (FOOTNOTE 2) So in original. There are two pars. (24). (FOOTNOTE 3) So in original. The period probably should be '; and'. (24) (FOOTNOTE 2) Lay before Congress, annually, statistical tables that will accurately reflect the business imposed on the Federal courts by the savings and loan crisis. (b) The clerical and administrative personnel of the courts shall comply with all requests by the Director for information or statistical data as to the state of court dockets. (c) Inspection of court dockets outside the continental United States may be made through United States officials residing within the jurisdiction where the inspection is made. (d) The Director, under the supervision and direction of the conference, shall: (1) supervise all administrative matters relating to the offices of the United States magistrates; (2) gather, compile, and evaluate all statistical and other information required for the performance of his duties and the duties of the conference with respect to such officers; (3) lay before Congress annually statistical tables and other information which will accurately reflect the business which has come before the various United States magistrates, including (A) the number of matters in which the parties consented to the exercise of jurisdiction by a magistrate, (B) the number of appeals taken pursuant to the decisions of magistrates and the disposition of such appeals, and (C) the professional background and qualifications of individuals appointed under section 631 of this title to serve as magistrate; (4) prepare and distribute a manual, with annual supplements and periodic revisions, for the use of such officers, which shall set forth their powers and duties, describe all categories of proceedings that may arise before them, and contain such other information as may be required to enable them to discharge their powers and duties promptly, effectively, and impartially. (e) The Director may promulgate appropriate rules and regulations approved by the conference and not inconsistent with any provision of law, to assist him in the performance of the duties conferred upon him by subsection (d) of this section. Magistrates shall keep such records and make such reports as are specified in such rules and regulations. (f) The Director may make, promulgate, issue, rescind, and amend rules and regulations (including regulations prescribing standards of conduct for Administrative Office employees) as may be necessary to carry out the Director's functions, powers, duties, and authority. The Director may publish in the Federal Register such rules, regulations, and notices for the judicial branch of Government as the Director determines to be of public interest; and the Director of the Federal Register hereby is authorized to accept and shall publish such materials. (g)(1) When authorized to exchange personal property, the Director may exchange or sell similar items and may apply the exchange allowance or proceeds of sale in such cases in whole or in part payment for the property acquired, but any transaction carried out under the authority of this subsection shall be evidenced in writing. (2) The Director hereby is authorized to enter into contracts for public utility services and related terminal equipment for periods not exceeding ten years. (h)(1) The Director shall, out of funds appropriated for the operation and maintenance of the courts, provide facilities and pay necessary expenses incurred by the judicial councils of the circuits and the Judicial Conference under section 372 of this title, including mileage allowance and witness fees, at the same rate as provided in section 1821 of this title. Administrative and professional assistance from the Administrative Office of the United States Courts may be requested by each judicial council and the Judicial Conference for purposes of discharging their duties under section 372 of this title. (2) The Director of the Administrative Office of the United States Courts shall include in his annual report filed with the Congress under this section a summary of the number of complaints filed with each judicial council under section 372(c) of this title, indicating the general nature of such complaints and the disposition of those complaints in which action has been taken. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 914; Aug. 3, 1956, ch. 944, Sec. 3, 70 Stat. 1026; Dec. 20, 1967, Pub. L. 90-219, title II, Sec. 203(a)-(c), 81 Stat. 669; Oct. 17, 1968, Pub. L. 90-578, title II, Sec. 201, 82 Stat. 1114; Aug. 22, 1972, Pub. L. 92-397, Sec. 4, 86 Stat. 580; Jan. 3, 1975, Pub. L. 93-619, title II, Sec. 204, 88 Stat. 2089; Oct. 28, 1978, Pub. L. 95-539, Sec. 3, 4, 92 Stat. 2043; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 225, 92 Stat. 2664; Oct. 10, 1979, Pub. L. 96-82, Sec. 5, 93 Stat. 645; Oct. 15, 1980, Pub. L. 96-458, Sec. 5, 94 Stat. 2040; Dec. 12, 1980, Pub. L. 96-523, Sec. 1(c)(1), 94 Stat. 3040; Sept. 27, 1982, Pub. L. 97-267, Sec. 7, 96 Stat. 1139; Oct. 27, 1986, Pub. L. 99-554, title I, Sec. 116, 100 Stat. 3095; Dec. 11, 1987, Pub. L. 100-185, Sec. 2, 101 Stat. 1279; Nov. 15, 1988, Pub. L. 100-659, Sec. 6(a), 102 Stat. 3918; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 402(a), title X, Sec. 1008, 1010, 1011, 1020(a)(2), 102 Stat. 4650, 4667, 4668, 4671; Oct. 30, 1990, Pub. L. 101-474, Sec. 5(r), 104 Stat. 1101; Nov. 29, 1990, Pub. L. 101-647, title XXV, Sec. 2548, 104 Stat. 4888; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 306(e)(1), 325(c)(1), 104 Stat. 5111, 5121.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 726-1 and 726a of title 18, U.S.C., 1940 ed., Criminal Code and Criminal Procedure, and sections 1130(a)(b) and 1131 of title 26, U.S.C., 1940 ed., Internal Revenue Code, title 28, U.S.C., 1940 ed., Sec. 9, 128, 222a, 245, 268a, 278a, 302-306, 374b, 446, 447, 450, 544, 545, 547, 557, 558, 560, 561, 561a, 562, 563, 565, 566, 595, and 596 and sections 11-204 and 11-403, District of Columbia Code, 1940 ed. (R.S. Sec. 1075, 1085; Mar. 3, 1891, ch. 517, Sec. 2, 9, 26 Stat. 826, 829; Feb. 9, 1893, ch. 74, Sec. 4, 27 Stat. 435; July 30, 1894, ch. 172, Sec. 1, 28 Stat. 160; Mar. 3, 1901, ch. 854, Sec. 224, 31 Stat. 1224; June 30, 1902, ch. 1329, 32 Stat. 528; Mar. 3, 1905, ch. 1487, 33 Stat. 1259; Mar. 3, 1911, ch. 231, Sec. 5, 36 Stat. 1088; Mar. 3, 1911, ch. 231, Sec. 118a, as added June 17, 1930, ch. 509, 46 Stat. 774; Mar. 3, 1911, ch. 231, Sec. 118b, as added Feb. 17, 1936, ch. 75, 49 Stat. 1140; Mar. 3, 1911, ch. 231, Sec. 140, 163, 171, 189-193, 291, 36 Stat. 1136, 1140, 1141, 1143, 1167; Mar. 3, 1911, ch. 231, Sec. 304, 305, 308, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223; Aug. 23, 1912, ch. 350, 37 Stat. 412; Feb. 26, 1919, ch. 49, Sec. 1, 2, 3, 4, 5, 7, 8, 40 Stat. 1182; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 210; Nov. 4, 1919, ch. 93, Sec. 1, 41 Stat. 338; Feb. 11, 1921, ch. 46, 41 Stat. 1099; Feb. 22, 1921, ch. 70, Sec. 7, 41 Stat. 1144; Mar. 4, 1921, ch. 161, 41 Stat. 1412; June 1, 1922, ch. 204, title II, 42 Stat. 616; Jan. 3, 1923, ch. 21, title II, 42 Stat. 1084; Mar. 4, 1923, ch. 265, 42 Stat. 1488; May 28, 1924, ch. 204, title II, 43 Stat. 221; Feb. 27, 1925, ch. 364, title II, 43 Stat. 1030; Apr. 29, 1926, ch. 195, title II, 44 Stat. 346, 347; May 21, 1928, ch. 659, 45 Stat. 645; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; June 16, 1930, ch. 494, 46 Stat. 589; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; Apr. 27, 1938, ch. 180, title II, Sec. 1, 52 Stat. 264; Feb. 10, 1939, ch. 2, Sec. 1130(a)(b), 1131, 53 Stat. 162, 163; June 29, 1939, ch. 248, title II, 53 Stat. 902; May 14, 1940, ch. 189, titles III, IV, 54 Stat. 204, 209, 210; June 28, 1941, ch. 258, title IV, 55 Stat. 300-302; July 2, 1942, ch. 472, title IV, 56 Stat. 503, 504; June 28, 1943, ch. 173, title II, Sec. 201, 57 Stat. 242, 243; June 26, 1944, ch. 277, title II, Sec. 201, 58 Stat. 357; Dec. 7, 1944, ch. 522, Sec. 1, 58 Stat. 796; May 21, 1945, ch. 129, titles II, IV, 59 Stat. 184, 199; July 5, 1946, ch. 541, title IV, 60 Stat. 478, 479). For purposes of uniformity, all provisions of law governing the regulation and allowance of office, travel, and subsistence expenses of all officers and employees of the courts, except those provisions relating to Supreme Court officers and employees, are incorporated in subsection (a)(6)(7) of this section. Likewise the provisions respecting the compensation of court officers and employees, except those of the Supreme Court, are incorporated in subsection (a)(5). In each instance the power to fix and determine such salaries and expenses is transferred to the Director of the Administrative Office of the United States Courts. This change is in conformity with the Administrative Office Act 1939 included in this chapter. Compensation of bailiffs however is provided by sections 713 and 755 of this title and that of court reporters by section 753 of this title. Salaries and travel expenses of Court of Claims Commissioners are covered by section 792 of this title. The language 'and the lawful fees of United States Commissioners' in subsection (a)(6) and 'the offices of the United States Commissioners' in subsection (a)(9) is new. It conforms with sections 633, 636 and 639 of this title. Subsection (a)(5)(7) covers the provisions of section 726-1 and 726a of title 18, U.S.C., 1940 ed., which provided that probation officers' salaries should not be less than $1,800 nor more than $3,600 per annum and their traveling expenses should not exceed more than 4 cents per mile. Words 'and officers and employees of the Administrative Office' were added in subsection (a)(7) to expressly authorize travel and subsistence expenses of such officers and employees. The power to fix such pay and allowances is transferred to the Director as above indicated, and conforms with the Administrative Office Act of 1939. For further explanation of the general supervision of probation officers, see reviser's note under section 3654, H. Rept. to accompany H.R. 3190 for revision of title 18, U.S.C. Subsection (a)(8) covers the provisions of section 1131 of title 26, U.S.C. 1940 ed. Such section 1131 authorized the Tax Court, successor to the Board of Tax Appeals, to make expenditures for personal services, rent, law books, reference books, periodicals, and provided that all expenditures should be paid out of appropriations for the Tax Court, on itemized vouchers approved by the court. Two references to 'officials and employees covered by this chapter' were changed to 'clerical and administrative personnel,' following the language of paragraph (a)(1), conferring general power to supervise such personnel as respects administrative matters. Similar language was used in paragraph (b) instead of 'The clerks of the district courts, their deputies and assistants, and all other employees of said courts.' The provisions of section 374b of title 28, U.S.C., 1940 ed., based on successive acts relating to classification and compensation of secretaries and law clerks were omitted as temporary and unnecessary in revision, in view of subsection (a)(5) of this section under which the salaries of all personnel are necessarily limited by current appropriation acts. For increases in basic rates of compensation for other judicial officers and employees see, also, section 521 of Act June 30, 1945, ch. 212. The designation 'senior circuit judges' was changed to 'chief judges of the circuits' in conformity with section 45 of this title. Provisions of section 11-204 of District of Columbia Code, 1940 ed., relating to appointment of clerk of the United States Court of Appeals for the District of Columbia, and deputy clerk, crier, and messenger thereof, and the provisions relating to accounting for fees, are incorporated in sections 711 and 713 of this title. Provisions of said section, requiring the clerk of such court to give bond, were omitted as covered by section 952 of this title. Provisions of said section, relating to regulation of clerk's fees by such court were omitted so as to render uniform the method of such regulation as prescribed by section 1913 of this title, and the provisions of said section, placing a maximum of five hundred dollars per year on the office expenditures of the clerk of such court, were omitted as inconsistent with this consolidated section. For distribution of other provisions of sections on which this section is based, see Distribution Table. Changes were made in phraseology and arrangement. SENATE REVISION AMENDMENTS By Senate amendment, all provisions relating to the Tax Court were eliminated, therefore, as finally enacted, sections 1130(a)(b) and 1131 of Title 26, U.S.C., Internal Revenue Code (1940 ed.), did not constitute part of the source of this section. However, no change in the text of the section was necessary. See 80th Congress Senate Report No. 1559. As finally enacted, part of act July 9, 1947, ch. 211, title IV, 61 Stat. 304, 305, which was classified to title 28, U.S.C., 1946 ed., Sec. 374b, became one of the sources of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559. -REFTEXT- REFERENCES IN TEXT Section 2(c) of the Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act of 1988, referred to in subsec. (a)(19), is section 2(c) of Pub. L. 100-659, Nov. 15, 1988, 102 Stat. 3916, which is set out as a note under section 377 of this title. -MISC2- AMENDMENTS 1990 - Subsec. (a)(7). Pub. L. 101-650, Sec. 325(c)(1), amended Pub. L. 100-702, Sec. 1011. See 1988 Amendment note below. Pub. L. 101-650, Sec. 306(e)(1)(B)(i), inserted 'judges of the United States Claims Court,' before 'bankruptcy judges'. Subsec. (a)(19). Pub. L. 101-474, Sec. 5(r), and Pub. L. 101-650, Sec. 306(e)(1)(A), made identical technical amendment to directory language of Pub. L. 100-702, Sec. 402(a)(1). See 1988 Amendment note below. Subsec. (a)(23). Pub. L. 101-650, Sec. 306(e)(1)(B)(iii), added par. (23). Former par. (23) redesignated (24). Pub. L. 101-474, Sec. 5(r), and Pub. L. 101-650, Sec. 306(e)(1)(A), made identical technical amendments to directory language of Pub. L. 100-702, Sec. 402(a)(1). See 1988 Amendment note below. Subsec. (a)(24). Pub. L. 101-650, Sec. 306(e)(1)(B)(ii), redesignated par. (23), relating to performance of other duties, as (24). Pub. L. 101-647 added par. (24) relating to statistical tables. 1988 - Subsec. (a)(2). Pub. L. 100-702, Sec. 1020(a)(2), substituted 'semiannually' for 'quarterly'. Subsec. (a)(7). Pub. L. 100-702, Sec. 1011, as amended by Pub. L. 101-650, Sec. 325(c)(1), which directed amendment of par. (7) 'by (sic) at the end the following: 'without regard to the per diem allowances and amounts for reimbursement of actual and necessary expenses established by the Administrator of General Services under section 5702 of title 5, except that the reimbursement of subsistence expenses may not exceed that authorized by the Director for judges of the United States under section 456 of this title;' ' was executed by inserting the new language after the comma at the end to reflect the probable intent of Congress. Pub. L. 100-659, Sec. 6(a)(1), inserted 'bankruptcy judges, United States magistrates,' after 'United States,'. Subsec. (a)(14), (15). Pub. L. 100-702, Sec. 1008(1), redesignated par. (14), relating to provision of special interpretation services in courts of United States, as (15). Former par. (15) redesignated (16). Subsec. (a)(16), (17). Pub. L. 100-702, Sec. 1008(1), redesignated pars. (15) and (16) as (16) and (17), respectively. Former par. (17) redesignated (18). Subsec. (a)(18). Pub. L. 100-702, Sec. 1008(1), redesignated par. (17) as (18). Former par. (18), as added by Pub. L. 100-659, redesignated (19). Pub. L. 100-659, Sec. 6(a)(3), added par. (18). Former par. (18) redesignated (19). Subsec. (a)(19). Pub. L. 100-702, Sec. 1008(2), redesignated par. (19), as added by Pub. L. 100-702, Sec. 402(a)(2), as (20). Pub. L. 100-702, Sec. 402(a), as amended by Pub. L. 101-474, Sec. 5(r), and Pub. L. 101-650, Sec. 306(e)(1)(A), redesignated par. (19), relating to performance of other duties, as (23) and added par. (19) relating to compilation of rules and orders. Pub. L. 100-659, Sec. 6(a)(2), redesignated par. (18), relating to performance of other duties, as (19). Subsec. (a)(20). Pub. L. 100-702, Sec. 1008(2), redesignated par. (19), as added by Pub. L. 100-702, Sec. 402(a)(2), as (20). Subsec. (a)(21). Pub. L. 100-702, Sec. 1008(2), added par. (21). Subsec. (a)(22). Pub. L. 100-702, Sec. 1010, added par. (22). Subsec. (a)(23). Pub. L. 100-702, Sec. 402(a)(1), as amended by Pub. L. 101-474, Sec. 5(r), and Pub. L. 101-650, Sec. 306(e)(1)(A), redesignated par. (19), relating to performance of other duties, as (23). 1987 - Subsec. (a)(17), (18). Pub. L. 100-185 added par. (17) and redesignated former par. (17) as (18). 1986 - Subsec. (f). Pub. L. 99-554 struck out subsec. (f) as added by Pub. L. 99-598, Sec. 225(b), which related to the Director naming qualified persons to membership on the panel of trustees, their number, qualifications, removal, etc. 1982 - Subsec. (a)(9). Pub. L. 97-267, Sec. 7(1), struck out 'agencies' after 'pretrial services'. Subsec. (a)(10). Pub. L. 97-267, Sec. 7(2), substituted 'providing pretrial services' for 'for pretrial services agencies'. Subsec. (a)(11). Pub. L. 97-267, Sec. 7(3), substituted 'offices providing pretrial services' for 'pretrial service agencies'. Subsec. (a)(12). Pub. L. 97-267, Sec. 7(4), substituted 'offices providing pretrial services' for 'pretrial services agencies'. 1980 - Subsec. (a)(16)(A). Pub. L. 96-523 inserted '(b)' after '3102'. Subsec. (h). Pub. L. 96-458 added subsec. (h). 1979 - Subsec. (d)(3). Pub. L. 96-82 added cls. (A), (B), and (C). 1978 - Subsec. (a)(10). Pub. L. 95-539, Sec. 3(a), expanded the duties of the Director to include providing or making available equipment for interpretation of proceedings in accordance with section 1828 of this title and to include entering into and performing contracts necessary to the conduct of the work of the judicial branch and exempted from the provisions of section 5 of title 41 contracts for nonpersonal services for pretrial agencies, for interpretation of proceedings, and for special interpretation services pursuant to section 1828 of this title. Subsec. (a)(13), (14). Pub. L. 95-598, Sec. 225(a), added par. (13) relating to annual statistical tables reflecting the business of the several bankruptcy courts, and redesignated former par. (13), relating to provision of special interpretation services in courts of the United States, as (14). Subsec. (a)(13) to (16). Pub. L. 95-539, Sec. 3(b), (c), added pars. (13) to (16). Former par. (13) redesignated (17). Subsec. (a)(17). Pub. L. 95-539, Sec. 3(b), redesignated former par. (13) as (17). Subsec. (f). Pub. L. 95-598, Sec. 225(b), added subsec. (f) relating to the naming of qualified persons to membership on the panel of trustees. Subsecs. (f), (g). Pub. L. 95-539, Sec. 4, added subsecs. (f) and (g). 1975 - Subsec. (a)(9). Pub. L. 93-619 added par. (9). Former par. (9) redesignated (10). Subsec. (a)(10). Pub. L. 93-619 redesignated former par. (9) as (10) and substituted 'the offices of the United States magistrates and commissioners, and the offices of pretrial services agencies' for and the Administrative Office and the offices of the United States magistrates'. Former par. (10) redesignated (11). Subsec. (a)(11). Pub. L. 93-619 redesignated former par. (10) as (11) and inserted reference to pretrial service agencies. Former par. (11) redesignated (12). Subsec. (a)(12). Pub. L. 93-619 redesignated former par. (11) as (12) and inserted reference to pretrial service agencies. Former par. (12) redesignated (13). Subsec. (a)(13). Pub. L. 93-619 redesignated former (12) as (13). 1972 - Subsec. (a)(7). Pub. L. 92-397 substituted 'children of justices and judges of the United States' for 'children of judges'. 1968 - Subsec. (a)(9). Pub. L. 90-578, Sec. 201(a), substituted 'United States magistrates' for 'United States Commissioners'. Subsecs. (d), (e). Pub. L. 90-578 Sec. 201(b), added subsecs. (d) and (e). 1967 - Subsec. (a)(7). Pub. L. 90-219, Sec. 203(a), amended par. (7) generally, inserting ', Directors of the Federal Judicial Center, and Directors of the Administrative Office,' after 'judges' and 'and the Federal Judicial Center,' after 'Administrative Office'. Subsec. (a)(9). Pub. L. 90-219, Sec. 203(b), inserted ', the Federal Judicial Center,' after 'courts'. Subsec. (a)(10), (11). Pub. L. 90-219, Sec. 203(c), inserted ', the Federal Judicial Center,' after 'courts'. 1956 - Subsec. (a)(7). Act Aug. 3, 1956, inserted 'annuities to widows and surviving dependent children of judges and' after 'Regulate and pay'. -CHANGE- CHANGE OF NAME Reference to United States Commissioners deemed to be reference to United States Magistrates pursuant to Pub. L. 90-578, title IV, Sec. 402(b)(2), Oct. 17, 1968, 82 Stat. 1108. See chapter 43 (Sec. 631 et seq.) of this title. Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1990 AMENDMENT Amendment by section 306(e)(1) of Pub. L. 101-650 applicable to judges of, and senior judges in active service with, the United States Claims Court on or after Dec. 1, 1990, see section 306(f) of Pub. L. 101-650, set out as a note under section 8331 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by section 402(a) of Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. EFFECTIVE DATE OF 1980 AMENDMENTS Amendment by Pub. L. 96-523 effective sixty days after Dec. 12, 1980, see section 3 of Pub. L. 96-523, set out as a note under section 3102 of Title 5, Government Organization and Employees. Amendment by Pub. L. 96-458 effective Oct. 1, 1981, see section 7 of Pub. L. 96-458, set out as a note under section 331 of this title. EFFECTIVE DATE OF 1978 AMENDMENTS Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Amendment by Pub. L. 95-539 effective Oct. 28, 1978, see section 10(a) of Pub. L. 95-539, set out as a note under section 602 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment by magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. REPORTS BY DIRECTOR OF ADMINISTRATIVE OFFICE OF UNITED STATES COURTS For requirement that Director of Administrative Office of the United States Courts include statistical information about implementation of chapter 44 of this title in annual report under section 604(a)(3) of this title, see section 903(a) of Pub. L. 100-702, set out as a note under section 651 of this title. 1970 INCREASE IN PAY RATES OF JUDICIAL BRANCH EMPLOYEES WHOSE RATES OF PAY ARE FIXED BY ADMINISTRATIVE ACTION Adjustment of rates of pay of judicial branch employees whose rates of pay are fixed by administrative action by not to exceed the amounts of the adjustment for corresponding rates for employees subject to the section 2(a) of Pub. L. 91-231, which raised such corresponding rates by 6 percent, effective on the first day of the first pay period which begins on or after Dec. 27, 1969, see Pub. L. 91-231, set out as a note under section 5332 of Title 5, Government Organization and Employees. COMPENSATION AND APPOINTMENT OF SECRETARIES AND LAW CLERKS Provisions authorizing the appointment and compensation of secretaries and law clerks to circuit and district judges in such number and at such rates of compensation as may be determined by the Judicial Conference of the United States were contained in the following appropriation acts: Dec. 12, 1985, Pub. L. 99-180, title IV, 99 Stat. 1154. Aug. 30, 1984, Pub. L. 98-411, title IV, 98 Stat. 1571. Nov. 28, 1983, Pub. L. 98-166, title IV, 97 Stat. 1099. Dec. 21, 1982, Pub. L. 97-377, Sec. 101(d) (S. 2956, title IV), 96 Stat. 1866. Dec. 15, 1981, Pub. L. 97-92, Sec. 101(h) (incorporating Pub. L. 96-536, Sec. 101(o); H.R. 7584, title IV), 95 Stat. 1190. Dec. 16, 1980, Pub. L. 96-536, Sec. 101(o) (H.R. 7584, title IV), 94 Stat. 3169. Sept. 24, 1979, Pub. L. 96-68, title IV, 93 Stat. 428. Oct. 10, 1978, Pub. L. 95-431, title IV, 92 Stat. 1037. Aug. 2, 1977, Pub. L. 95-86, title IV, 91 Stat. 435. July 14, 1976, Pub. L. 94-362, title IV, 90 Stat. 953. Oct. 21, 1975, Pub. L. 94-121, title IV, 89 Stat. 630. Oct. 5, 1974, Pub. L. 93-433, title IV, 88 Stat. 1202. Nov. 27, 1973, Pub. L. 93-162, title IV, 87 Stat. 651. Oct. 25, 1972, Pub. L. 92-544, title IV, 86 Stat. 1126. Aug. 10, 1971, Pub. L. 92-77, title IV, 85 Stat. 262. Oct. 21, 1970, Pub. L. 91-472, title IV, 84 Stat. 1056. Dec. 24, 1969, Pub. L. 91-153, title IV, 83 Stat. 419. Aug. 9, 1968, Pub. L. 90-470, title IV, 82 Stat. 685. Nov. 8, 1967, Pub. L. 90-133, title IV, 81 Stat. 427. Nov. 8, 1966, Pub. L. 89-797, title IV, 80 Stat. 1499. Sept. 2, 1965, Pub. L. 89-164, title IV, 79 Stat. 638. Aug. 31, 1964, Pub. L. 88-527, title IV, 78 Stat. 729. Dec. 30, 1963, Pub. L. 88-245, title IV, 77 Stat. 795. Oct. 18, 1962, Pub. L. 87-843, title IV, 76 Stat. 1099. Sept. 21, 1961, Pub. L. 87-264, title III, 75 Stat. 555. Aug. 31, 1960, Pub. L. 86-678, title III, 74 Stat. 566. July 13, 1959, Pub. L. 86-84, title III, 73 Stat. 192. June 30, 1958, Pub. L. 85-474, title III, 72 Stat. 254. June 11, 1957, Pub. L. 85-40, title III, 70 Stat. 65. June 20, 1956, ch. 414, title III, 70 Stat. 310. July 7, 1955, ch. 279, title III, 69 Stat. 276. July 2, 1954, ch. 455, title II, 68 Stat. 410. Aug. 1, 1953, ch. 304, title II, 67 Stat. 334. July 10, 1952, ch. 651, title IV, 66 Stat. 569. Oct. 22, 1951, ch. 533, title IV, 65 Stat. 596. Sept. 6, 1950, ch. 896, Ch. III, title IV, 64 Stat. 631. LIMITATION ON AGGREGATE SALARIES OF SECRETARIES AND LAW CLERKS 1967 - Pub. L. 90-206, title II, Sec. 213(b), Dec. 16, 1967, 81 Stat. 635, provided that: 'The limitations provided by applicable law on the effective date of this section (see Effective Date of 1967 Amendment Note set out under section 5332 of Title 5, Government Organization and Employees) with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by amounts which reflect the respective applicable increases provided by section 202(a) of this title (amending section 5332(a) of Title 5) in corresponding rates of compensation for officers and employees subject to section 5332 of Title 5, United States Code'. Section 213(b) of Pub. L. 90-206 effective as of the beginning of the first pay period which begins on or after Oct. 1, 1967, see section 220(a)(2) of Pub. L. 90-206, set out as a note under section 5332 of Title 5. 1966 - Pub. L. 89-504, title II, Sec. 202(b), July 18, 1966, 80 Stat. 294, provided that: 'The limitations provided by applicable law on the effective date of this section with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by amounts which reflect the respective applicable increases provided by section 102(a) of title I of this Act (amending section 1113(b) of former Title 5, Executive Departments and Government Officers and Employees) in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' Provision effective first day of first pay period which begins on or after July 1, 1966, see section 203 of Pub. L. 89-504, set out as a note under section 603 of this title. 1965 - Pub. L. 89-301, Sec. 12(b), Oct. 29, 1965, 79 Stat. 1122, provided that: 'The limitations provided by applicable law on the effective date of this section with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by amounts which reflect the respective applicable increases provided by section 2(a) of this Act (amending section 1113(b) of former Title 5, Executive Departments and Government Officers and Employees) in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' 1964 - Pub. L. 88-426, title IV, Sec. 402(b), Aug. 14, 1964, 78 Stat. 433, provided that: 'The limitation provided by applicable law on the effective date of this section with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by amounts which reflect the respective applicable increases provided by the title I of this Act in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' 1962 - Pub. L. 87-793, title VI, Sec. 1004(b), Oct. 11, 1962, 76 Stat. 866, provided that: 'The limitations provided by applicable law on the effective date of this section with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by two amounts, the first amount to be effective for the period beginning as of the first day of the first pay period which begins on or after the date of enactment of this Act (Oct. 11, 1962), and ending immediately prior to the first day of the first pay period which begins on or after January 1, 1964, and the second amount to be effective on the first day of the first pay period which begins on or after January 1, 1964, and thereafter, which reflect the respective applicable increases provided by title II of this part in corresponding rates of compensation for officers and employees subject to the Classification Act of 1949, as amended (chapter 51 and subchapter III of chapter 53 of Title 5, Government Organization and Employees).' 1960 - Pub. L. 86-568, title I, Sec. 116(b), July 1, 1960, 74 Stat. 303, provided that: 'The limitations provided by applicable law on the effective date of this section with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges are hereby increased by the amounts necessary to pay the additional basic compensation provided by this part.' Words 'this part', referred to above, means Part B of Pub. L. 86-568, which enacted section 932e of former Title 5, Executive Departments and Government Officers and Employees, amended section 753 of this title, sections 1113, 2091, 2252 and 3002 of former Title 5, sections 867 and 870 of Title 22, Foreign Relations and Intercourse, and sections 4103, 4107 and 4108 of Title 38, Veterans' Benefits, and enacted notes set out under sections 603 and 604 of this title, sections 60a and 60f of Title 2, The Congress, sections 1113, and 2252 of former Title 5, section 590h of Title 16, Conservation, and section 867 of Title 22, 1958 - Pub. L. 85-462, Sec. 3(b), June 20, 1958, 72 Stat. 207, provided that: 'The limitations of $13,485 and $18,010 with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges, contained in the paragraph designated 'Salaries of supporting personnel' in the Judiciary Appropriation Act, 1958 (71 Stat. 65; Public Law 85-49), or any subsequent appropriation Act, shall be increased by the amounts necessary to pay the additional basic compensation provided by this Act.' 1955 - Act June 28, 1955, ch. 189, Sec. 3(b), 69 Stat. 175, provided that: 'The limitations of $10,560 and $14,355 with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges, contained in the paragraph under the heading 'salaries of supporting personnel' in the Judiciary Appropriation Act, 1955 (Public Law 470, Eighty-third Congress), or in any subsequent appropriation Act, shall be increased by the amounts necessary to pay the additional basic compensation provided by this Act.' 1951 - Act Oct. 24, 1951, ch. 554, Sec. 1(d), 65 Stat. 613, provided that: 'The limitations of $9,600 and $13,050 with respect to the aggregate salaries payable to secretaries and law clerks of circuit and district judges, contained in the sixteenth paragraph under the head 'Miscellaneous salaries' in the Judiciary Appropriation Act, 1951 (Public Law 759, Eighty-first Congress), or in any subsequent appropriation Act, shall be increased by the amounts necessary to pay the additional basic compensation provided by this Act.' The particular paragraph of the 'Judiciary Appropriation Act, 1951 (Public Law 759, Eighty-first Congress)', referred to above, is act Sept. 6, 1950, ch. 896, ch. III, title IV, Sec. 401 (part), 64 Stat. 631. The salary limitations therein, also referred to above, were identical with those in the Judiciary Appropriation Act, 1952 (act Oct. 22, 1951, ch. 533, title IV, Sec. 401 (part), 65 Stat. 596). INCREASES IN COMPENSATION RATES Increases in rates of basic compensation fixed pursuant to subsec. (a)(5) of this section, see notes under section 603 of this title. TRAVEL AND SUBSISTENCE EXPENSES Pub. L. 87-139, Sec. 6, Aug. 14, 1961, 75 Stat. 340, provided that: 'The Director of the Administrative Office of the United States Courts shall promulgate, in accordance with section 604(a)(7) and section 456 of title 28 of the United States Code, such regulations as he may deem necessary to effectuate the increases provided by this Act (amending section 553 of this title, former Title 5, Executive Departments and Government Officers and Employees, and sections 237o, 287q, and 1471 of Title 22, Foreign Relations and Intercourse).' -CROSS- CROSS REFERENCES Classification and General Schedule pay rates, see sections 5101 et seq., 5331 et seq. of Title 5, Government Organization and Employees. Duties of Supreme Court Marshal, see section 672 of this title. Expenses of judges and United States attorneys, see sections 456, 460, 549, and 566 of this title. Office expenses of clerks of court, see section 961 and 963 of this title. Overtime pay, see section 5541 et seq. of Title 5, Government Organization and Employees. Supreme Court officers and employees, compensation and disbursement, see section 671 et seq. of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 602, 1871, 2412 of this title; title 18 sections 3155, 3611, 3612, 3663. ------DocID 36425 Document 287 of 1452------ -CITE- 28 USC Sec. 605 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 605. Budget estimates -STATUTE- The Director, under the supervision of the Judicial Conference of the United States, shall submit to the Office of Management and Budget annual estimates of the expenditures and appropriations necessary for the maintenance and operation of the courts and the Administrative Office and the operation of the judicial survivors annuity fund, and such supplemental and deficiency estimates as may be required from time to time for the same purposes, according to law. The Director shall cause periodic examinations of the judicial survivors annuity fund to be made by an actuary, who may be an actuary employed by another department of the Government temporarily assigned for the purpose, and whose findings and recommendations shall be transmitted by the Director to the Judicial Conference. Such estimates shall be approved, before presentation to the Office of Management and Budget, by the Judicial Conference of the United States, except that the estimate with respect to the Court of International Trade shall be approved by such court and the estimate with respect to the United States Court of Appeals for the Federal Circuit shall be approved by such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915; July 9, 1956, ch. 517, Sec. 1(e), 70 Stat. 497; Aug. 3, 1956, ch. 944, Sec. 4, 70 Stat. 1026; Sept. 19, 1961, Pub. L. 87-253, Sec. 3, 75 Stat. 521; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(14), 94 Stat. 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 119(a), 96 Stat. 33; Sept. 13, 1982, Pub. L. 97-258, Sec. 5(b), 96 Stat. 1068, 1085.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 447 (Mar. 3, 1911, ch. 231, Sec. 305, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains provisions of section 447 of title 28, U.S.C., 1940 ed., relating to budget estimates. The remainder of said section 447 is incorporated in section 604 of this title. The designation 'senior circuit judges' was changed to 'chief judges of the circuits' in conformity with section 45 of this title. Changes were made in phraseology. SENATE REVISION AMENDMENT Those provisions of this section which related to the Tax Court were eliminated by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1982 - Pub. L. 97-258 struck out paragraph which had provided that budget estimates be included in the budget without revision, but subject to the recommendations of the Bureau of the Budget, as provided by section 11 of Title 31 for the estimates of the Supreme Court. See section 1105(b) of Title 31, Money and Finance. Pub. L. 97-164 substituted 'Office of Management and Budget' for 'Bureau of the Budget' wherever appearing and inserted requirement that the estimate of the expenditures and appropriations necessary for the maintenance and operation of the United States Court of Appeals for the Federal Circuit be approved by such court. 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1961 - Pub. L. 87-253 struck out from second paragraph the requirement that the estimate with respect to the Court of Customs and Patent Appeals be approved by such court. 1956 - Act Aug. 3, 1956, inserted provision to authorize the Director to include in the budget estimates of the courts the expenditures and appropriations necessary for the operation of the judicial survivors annuity fund, and inserted provision that Director shall cause periodic actuarial examinations to be made of the judicial survivors annuity fund and shall report the actuary's findings and recommendations to the Judicial Conference. Act July 9, 1956, struck out 'and the Court of Claims' after 'the Customs Court' and substituted 'and' for the comma after 'the Court of Customs and Patents Appeals' in second par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 3006A. ------DocID 36426 Document 288 of 1452------ -CITE- 28 USC Sec. 606 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 606. Duties of Deputy Director -STATUTE- The Deputy Director shall perform the duties assigned to him by the Director, and shall act as Director during the absence or incapacity of the Director or when the Director's office is vacant. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915; Sept. 23, 1959, Pub. L. 86-370, Sec. 5(a)(1), 73 Stat. 652.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 444 (Mar. 3, 1911, ch. 231, Sec. 302, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains provisions as to duties of Assistant Director in section 444 of title 28, U.S.C., 1940 ed. The remainder of said section 444 is incorporated in sections 601, 603 and 608 of this title. AMENDMENTS 1959 - Pub. L. 86-370 substituted 'Deputy Director' for 'Assistant Director'. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-370 effective Sept. 23, 1959, see section 7(a) of Pub. L. 86-370. REFERENCE TO ASSISTANT DIRECTOR DEEMED REFERENCE TO DEPUTY DIRECTOR References in any other law to Assistant Director of the Administrative Office of the United States Courts deemed to be reference to the Deputy Director of the Administrative Office of the United States Courts, see note set out under section 601 of this title. ------DocID 36427 Document 289 of 1452------ -CITE- 28 USC Sec. 607 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 607. Practice of law prohibited -STATUTE- An officer or employee of the Administrative Office shall not engage directly or indirectly in the practice of law in any court of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 445 (Mar. 3, 1911, ch. 231, Sec. 303, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains the last paragraph of title 28, U.S.C., 1940 ed., Sec. 445. The remainder of said section is incorporated in sections 602 and 603 of this title. Changes were made in phraseology. ------DocID 36428 Document 290 of 1452------ -CITE- 28 USC Sec. 608 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 608. Seal -STATUTE- The Director shall use a seal approved by the Supreme Court. Judicial notice shall be taken of such seal. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 444 (Mar. 3, 1911, ch. 231, Sec. 302, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains a part of section 444 of title 28, U.S.C., 1940 ed. The remainder of said section 444 is incorporated in sections 601, 603 and 606 of this title. Changes were made in phraseology. ------DocID 36429 Document 291 of 1452------ -CITE- 28 USC Sec. 609 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 609. Courts' appointive power unaffected -STATUTE- The authority of the courts to appoint their own administrative or clerical personnel shall not be limited by any provisions of this chapter. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed. Sec. 446 (Mar. 3, 1911, ch. 231, Sec. 304, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). This section contains the last clause of section 446(1) of title 28, U.S.C., 1940 ed. A similar provision with respect to the Attorney General's authority over United States attorneys and their assistants, and United States marshals and their deputies was omitted as unnecessary since there is nothing in this chapter that could affect such authority of the Attorney General. For other provisions of section 446 of title 28, U.S.C., 1940 ed., see section 604 of this title. Minor changes were made in phraseology. ------DocID 36430 Document 292 of 1452------ -CITE- 28 USC Sec. 610 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 610. Courts defined -STATUTE- As used in this chapter the word 'courts' includes the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Claims Court, and the Court of International Trade. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915; Oct. 31, 1951, ch. 655, Sec. 44, 65 Stat. 725; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 226, 92 Stat. 2665; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(15), 94 Stat. 1742; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 120(a), 96 Stat. 33.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 450 (Mar. 3, 1911, ch. 231, Sec. 308, as added Aug. 7, 1939, ch. 501, Sec. 1, 53 Stat. 1223). Words 'and the United States Court for China' were omitted. See reviser's note under section 411 of this title. Provisions making this chapter and sections 332 and 333 of this title expressly applicable to the Court of Appeals for the District of Columbia were omitted as covered by 'courts of appeals.' (See section 41 of this title and reviser's notes under such section and section 44 of this title.) A definition of 'continental United States' as 'the States of the Union and the District of Columbia' is omitted as unnecessary. (See reviser's note under section 333 of this title.) The term 'district courts in the United States' in this section includes the District Court for the District of Columbia. (See section 88 of this title.) Other provisions of section 450 of title 28, U.S.C., 1940 ed., are incorporated in sections 333 and 604 of this title. The phrase 'all other courts of the United States established by Act of Congress' was added to provide for future growth of the Federal judicial system. (See Senate Revision Amendment below.) Changes in arrangement and phraseology were made. SENATE REVISION AMENDMENT Those provisions of this section which related to the Tax Court were eliminated by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'the United States Claims Court' for 'the Court of Claims, the Court of Customs and Patent Appeals'. 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1978 - Pub. L. 95-598 directed the amendment of section by substituting ', district courts, and bankruptcy courts' for 'and district courts', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Pub. L. 85-508 struck out provisions which included District Court for Territory of Alaska within definition of court. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1951 - Act Oct. 31, 1951, inserted reference to the District Court of Guam. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 963, 1631 of this title; title 5 sections 5584, 5595, 5596, 8331, 8347, 8402. ------DocID 36431 Document 293 of 1452------ -CITE- 28 USC Sec. 611 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 611. Retirement of Director -STATUTE- (a) The Director may, by written election filed with the Chief Justice of the United States within 6 months after the date on which he takes office, waive coverage under chapter 83 of title 5, subchapter III (the Civil Service Retirement System) or chapter 84 of title 5 (the Federal Employees' Retirement System), whichever is applicable, and bring himself within the purview of this section. A Director who elects coverage under this section shall be deemed an 'employee' for purposes of chapter 84 of title 5, subchapter III, regardless of whether he has waived the coverage of chapter 83, subchapter III, or chapter 84. Waiver of coverage under chapter 83, subchapter III, and election of this section shall not operate to foreclose to the Director, upon separation from service other than by retirement, such opportunity as the law may provide to secure retirement credit under chapter 83 for service as Director by depositing with interest the amount required by section 8334 of title 5. A Director who waives coverage under chapter 84 and elects this section may secure retirement credit under chapter 84 for service as Director by depositing with interest 1.3 percent of basic pay for service from January 1, 1984, through December 31, 1986, and the amount referred to in section 8422(a) of title 5, for service after December 31, 1986. Interest shall be computed under section 8334(e) of title 5. (b) Upon the retirement of a Director who has elected coverage under this section and who has served at least fifteen years and attained the age of sixty-five years the Administrative Office of the United States Courts shall pay him an annuity for life equal to 80 per centum of the salary of the office at the time of his retirement. Upon the retirement of a Director who has elected coverage under this section and who has served at least ten years, but who is not eligible to receive an annuity under the first paragraph of this subsection, the Administrative Office of the United States Courts shall pay him an annuity for life equal to that proportion of 80 per centum of the salary of the office at the time of his retirement that the number of years of his service bears to fifteen, reduced by one-quarter of 1 per centum for each full month, if any, he is under the age of sixty-five at the time of separation from service. (c) A Director who has elected coverage under this section and who becomes permanently disabled to perform the duties of his office shall be retired and shall receive an annuity for life equal to 80 per centum of the salary of the office at the time of his retirement if he has served at least fifteen years, or equal to that proportion of 80 percentum of such salary that the aggregate number of years of his service bears to fifteen if he has served less than fifteen years, but in no event less than 50 per centum of such salary. (d) For the purpose of this section, 'service' means service, whether or not continuous, as Director of the Administrative Office of the United States Courts, and any service, not to exceed five years, as a judge of the United States, a Senator or Representative in Congress, or a civilian official appointed by the President, by and with the advice and consent of the Senate. (e) Each annuity payable under this section shall be increased by the same percentage amount and effective on the same date as annuities payable under chapter 83 of title 5, are increased as provided by section 8340 of title 5. -SOURCE- (Added Pub. L. 90-219, title II, Sec. 201(a), Dec. 20, 1967, 81 Stat. 668, and amended Pub. L. 100-702, title X, Sec. 1004(a), 1006(a)(1), Nov. 19, 1988, 102 Stat. 4665, 4666.) -MISC1- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702, Sec. 1006(a)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: 'The Director may, by written election filed with the Chief Justice of the United States within six months after the date on which he takes office, waive coverage under subchapter III (relating to civil service retirement) of chapter 83, Title 5, United States Code, and bring himself within the purview of this section. Such waiver and election shall not operate to foreclose to the Director, upon separation from service other than by retirement, such opportunity as the law may provide to secure civil service retirement credit for service as Director by depositing with interest the amount required by section 8334 of title 5, United States Code.' Subsec. (e). Pub. L. 100-702, Sec. 1004(a), added subsec. (e). EFFECTIVE DATE OF 1988 AMENDMENT Section 1004(b) of title X of Pub. L. 100-702 provided that: 'The amendments made by this section (amending this section and section 627 of this title) shall apply to cost-of-living increases that go into effect on or after the date of enactment of this title (Nov. 19, 1988) with respect to any annuity being paid or becoming payable on or after such date.' Section 1006(b) of title X of Pub. L. 100-702 provided that: 'The amendments made by this section (amending this section and section 627 of this title) shall apply to persons holding the offices of Director of the Administrative Office of the United States Courts, Director of the Federal Judicial Center, and Administrative Assistant to the Chief Justice on the date of enactment of this title (Nov. 19, 1988).' RETROACTIVE EFFECT Section 205 of Pub. L. 90-219 provided that: '(a) Except as provided in subsection (b), the amendments made by this title (enacting this section and amending sections 376 and 604 of this title), insofar as they relate to retirement and survivorship benefits of the Director of the Administrative Office of the United States Courts, shall be applicable only with respect to persons first appointed to such office after the date of enactment of this Act (Dec. 20, 1967). '(b) The provisions of section 611(a), the first paragraph of section 611(b), and section 376(s), of title 28, United States Code, as added by such amendments, shall be applicable to a Director or former Director of the Administrative Office of the United States Courts who was first appointed prior to the date of enactment of this Act (Dec. 20, 1967) if at the time such Director or former Director left or leaves such office he had, or shall have, attained the age of sixty-five years and completed fifteen years of service as Director of the Administrative Office of the United States Courts and if, on or before the expiration of six months following the date of enactment of this Act (Dec. 20, 1967), he makes the election referred to in section 611(a) or section 376(s), or both, as the case may be.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 376, 677 of this title. ------DocID 36432 Document 294 of 1452------ -CITE- 28 USC Sec. 612 -EXPCITE- TITLE 28 PART III CHAPTER 41 -HEAD- Sec. 612. Judiciary Automation Fund -STATUTE- (a) Establishment and Availability of Fund. - There is hereby established in the Treasury of the United States a special fund to be known as the 'Judiciary Automation Fund' (hereafter in this section referred to as the 'Fund'). Moneys in the Fund shall be available to the Director without fiscal year limitation for the procurement (by lease, purchase, exchange, transfer, or otherwise) of automatic data processing equipment for the judicial branch of the United States. The Fund shall also be available for expenses, including personal services and other costs, for the effective management, coordination, operation, and use of automatic data processing equipment in the judicial branch. (b) Plan for Meeting Automatic Data Processing Needs. - (1) Development of plan. - The Director shall develop and annually revise, with the approval of the Judicial Conference of the United States, a long range plan for meeting the automatic data processing equipment needs of the judicial branch. Such plan and revisions shall be submitted to Congress. (2) Expenditures consistent with plan. - The Director may use amounts in the Fund to procure automatic data processing equipment for the judicial branch of the United States only in accordance with the plan developed under paragraph (1). (c) Deposits Into Fund. - (1) Deposits. - There shall be deposited in the Fund - (A) all proceeds resulting from activities conducted under subsection (a), including net proceeds of disposal of excess or surplus property and receipts from carriers and others for loss of or damage to property; (B) amounts available for activities described in subsection (a) from funds appropriated to the judiciary; and (C) any advances and reimbursements required by paragraph (2). (2) Advances and reimbursements. - Whenever the Director procures automatic data processing equipment for any entity in the judicial branch other than the courts or the Administrative Office, that entity shall advance or reimburse the Fund, whichever the Director considers appropriate, for the costs of the automatic data processing equipment, from appropriations available to that entity. (d) Authorization of Appropriations. - There are authorized to be appropriated to the Fund for any fiscal year such sums as are required to supplement amounts deposited under subsection (c) in order to conduct activities under subsection (a). (e) Contract Authority. - (1) For each fiscal year. - (A) (FOOTNOTE 1) In fiscal year 1990, and in each succeeding fiscal year, the Director may enter into contracts for the procurement of automatic data processing equipment in amounts which, in the aggregate, do not exceed $75,000,000 in advance of the availability of amounts in the Fund for such contracts. (FOOTNOTE 1) So in original. No subpar. (B) was enacted. (2) Multiyear contracts. - In conducting activities under subsection (a), the Director is authorized to enter into multiyear contracts for automatic data processing equipment for periods of not more than five years for any contract, if - (A) funds are available and adequate for payment of the costs of such contract for the first fiscal year and for payment of any costs of cancellation or termination of the contract; (B) such contract is awarded on a fully competitive basis; and (C) the Director determines that - (i) the need for the automatic data processing equipment being provided will continue over the period of the contract; and (ii) the use of the multi-year contract will yield substantial cost savings when compared with other methods of providing the necessary resources. (3) Cancellation costs of multiyear contract. - Any cancellation costs incurred with respect to a contract entered into under paragraph (2) shall be paid from currently available amounts in the Fund. (f) Applicability of Procurement Statute. - The procurement of automatic data processing equipment under this section shall be conducted in compliance with section 111 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759). (g) Authority of Administrator of General Services. - Nothing in this section shall be construed to limit the authority of the Administrator of General Services under sections 111 and 201 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481 and 759). (h) Annual Report. - The Director shall submit to the Congress an annual report on the operation of the Fund, including on the inventory, use, and acquisition of automatic data processing equipment from the Fund and the consistency of such acquisition with the plan prepared under subsection (b). The report shall set forth the amounts deposited into the Fund under subsection (c). (i) Reprogramming. - The Director of the Administrative Office of the United States Courts, under the supervision of the Judicial Conference of the United States, and upon notification to the Committees on Appropriations of the House of Representatives and the Senate, may use amounts deposited into the Fund under subparagraph (c)(1)(B) for purposes other than those established in subsection (a) only by following reprogramming procedures in compliance with provisions set forth in section 606 of Public Law 100-459. (j) Appropriations Into the Fund. - If the budget request of the Judiciary (FOOTNOTE 2) is appropriated in full, the amount deposited into the Fund during any fiscal year under the authority of subparagraph (c)(1)(B) will be the same as the amount of funds requested by the Judiciary (FOOTNOTE 2) for activities described in subsection (a). If an amount to be deposited is not specified by Congress and if the full request is not appropriated, the amount to be deposited under (c)(1)(B) (FOOTNOTE 3) will be set by the spending priorities established by the Judicial Conference. (FOOTNOTE 2) So in original. Probably should not be capitalized. (FOOTNOTE 3) So in original. Probably should be 'subparagraph (c)(1)(B)'. (k) Definition. - For purposes of this section, the term 'automatic data processing equipment' has the meaning given that term in section 111(a)(2)(A) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(a)(2)(A)). (l) Termination of Authority. - The Fund, and the authorities conferred by this section, terminate on September 30, 1994. All unobligated amounts remaining in the Fund on that date shall be deposited into the 'Judicial Services Account' to be used to reimburse other appropriations. -SOURCE- (Added Pub. L. 101-162, title IV, Sec. 404(b)(1), Nov. 21, 1989, 103 Stat. 1013.) -REFTEXT- REFERENCES IN TEXT Section 606 of Public Law 100-459, referred to in subsec. (i), is section 606 of Pub. L. 100-459, title VI, Oct. 1, 1988, 102 Stat. 2227, which is not classified to the Code. ------DocID 36433 Document 295 of 1452------ -CITE- 28 USC CHAPTER 42 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- CHAPTER 42 - FEDERAL JUDICIAL CENTER -MISC1- Sec. 620. Federal Judicial Center. 621. Board; composition, tenure of members, compensation. 622. Meetings; conduct of business. 623. Duties of the Board. 624. Powers of the Board. 625. Director and staff. 626. Compensation of the Director and Deputy Director. 627. Retirement; employee benefits. 628. Appropriations and accounting. 629. Federal Judicial Center Foundation. AMENDMENTS 1988 - Pub. L. 100-702, title III, Sec. 301(b), 304(b)(2), Nov. 19, 1988, 102 Stat. 4647, 4648, inserted 'and Deputy Director' after 'Director' in item 626 and added item 629. 1978 - Pub. L. 95-598, title II, Sec. 230(2), Nov. 6, 1978, 92 Stat. 2665, struck out item 629 'Organizational provisions'. 1967 - Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 664, added chapter 42 and items 620 to 629. ------DocID 36434 Document 296 of 1452------ -CITE- 28 USC Sec. 620 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 620. Federal Judicial Center -STATUTE- (a) There is established within the judicial branch of the Government a Federal Judicial Center, whose purpose it shall be to further the development and adoption of improved judicial administration in the courts of the United States. (b) The Center shall have the following functions: (1) to conduct research and study of the operation of the courts of the United States, and to stimulate and coordinate such research and study on the part of other public and private persons and agencies; (2) to develop and present for consideration by the Judicial Conference of the United States recommendations for improvement of the administration and management of the courts of the United States; (3) to stimulate, create, develop, and conduct programs of continuing education and training for personnel of the judicial branch of the Government and other persons whose participation in such programs would improve the operation of the judicial branch, including, but not limited to, judges, United States magistrates, clerks of court, probation officers, and persons serving as mediators and arbitrators; (4) insofar as may be consistent with the performance of the other functions set forth in this section, to provide staff, research, and planning assistance to the Judicial Conference of the United States and its committees; and (5) Insofar (FOOTNOTE 1) as may be consistent with the performance of the other functions set forth in this section, to cooperate with the State Justice Institute in the establishment and coordination of research and programs concerning the administration of justice. (FOOTNOTE 1) So in original. Probably should not be capitalized. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 664, and amended Pub. L. 95-598, title II, Sec. 227, Nov. 6, 1978, 92 Stat. 2665; Pub. L. 98-620, title II, Sec. 214, Nov. 8, 1984, 98 Stat. 3346; Pub. L. 99-336, Sec. 6(b), June 19, 1986, 100 Stat. 639; Pub. L. 100-702, title III, Sec. 303, Nov. 19, 1988, 102 Stat. 4648.) -MISC1- AMENDMENTS 1988 - Subsec. (b)(3). Pub. L. 100-702 amended par. (3) generally. Prior to amendment, par. (3) read as follows: 'to stimulate, create, develop, and conduct programs of continuing education and training for personnel of the judicial branch of the Government, including, but not limited to, judges, clerks of court, probation officers, and United States magistrates;'. 1986 - Subsec. (b)(3). Pub. L. 99-336 struck out 'referees,' after 'judges,' and substituted 'magistrates' for 'commissioners'. 1984 - Subsec. (b)(5). Pub. L. 98-620 added par. (5). 1978 - Subsec. (b)(3). Pub. L. 95-598 directed the amendment of par. (3) by striking out 'referees,' and by substituting 'magistrates' for 'commissioners', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1986 AMENDMENT Section 6(c) of Pub. L. 99-336 provided that: 'The amendments made by this section (amending this section and section 288d of Title 2, The Congress, and redesignating sections 1364 to 1366 of this title) shall take effect on the date of the enactment of this Act (June 19, 1986).' EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 effective Oct. 1, 1985, see section 216 of Pub. L. 98-620, set out as a note under section 10701 of Title 42, The Public Health and Welfare. STUDY OF INTERCIRCUIT CONFLICTS AND STRUCTURAL ALTERNATIVES FOR COURTS OF APPEALS BY FEDERAL JUDICIAL CENTER Pub. L. 101-650, title III, Sec. 302, Dec. 1, 1990, 104 Stat. 5104, provided that: '(a) Intercircuit Conflicts. - The Board of the Federal Judicial Center is requested to conduct a study and submit to the Congress a report by January 1, 1992, on the number and frequency of conflicts among the judicial circuits in interpreting the law that remain unresolved because they are not heard by the Supreme Court. '(b) Factors To Consider in Study. - In conducting such a study, the Center should consider, to the extent feasible, all relevant factors, such as whether the conflict - '(1) imposes economic costs or other harm on persons engaging in interstate commerce; '(2) encourages forum shopping among circuits; '(3) creates unfairness to litigants in different circuits, as in allowing Federal benefits in one circuit that are denied in other circuits; or '(4) encourages nonacquiescence by Federal agencies in the holdings of the courts of appeals for different circuits, but is unlikely to be resolved by the Supreme Court. '(c) Structural Alternatives for the Courts of Appeals. - The Board of the Federal Judicial Center is requested to study the full range of structural alternatives for the Federal Courts of Appeals and submit a report on the study to the Congress and the Judicial Conference of the United States, no later than 2 years after the date of the enactment of this Act (Dec. 1, 1990).' ------DocID 36435 Document 297 of 1452------ -CITE- 28 USC Sec. 621 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 621. Board; composition, tenure of members, compensation -STATUTE- (a) The activities of the Center shall be supervised by a Board to be composed of - (1) the Chief Justice of the United States, who shall be the permanent Chairman of the Board; (2) two active judges of the courts of appeals of the United States, three active judges of the district courts of the United States, one active judge of the bankruptcy courts of the United States elected by vote of the members of the Judicial Conference of the United States: Provided, however, That the judges so elected shall not be members of the Judicial Conference of the United States; and (3) the Director of the Administrative Office of the United States Courts, who shall be a permanent member of the Board. (b) The term of office of each elected member of the Board shall be four years. A member elected to serve for an unexpired term arising by virtue of the death, disability, retirement, or resignation of a member shall be elected only for such unexpired term. (c) No member elected for a four-year term shall be eligible for reelection to the Board. (d) Members of the Board shall serve without additional compensation, but shall be reimbursed for actual and necessary expenses incurred in the performance of their official duties. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 664, and amended Pub. L. 95-598, title II, Sec. 228, 229, Nov. 6, 1978, 92 Stat. 2665.) -MISC1- AMENDMENTS 1978 - Subsec. (a)(2). Pub. L. 95-598, Sec. 228, inserted reference to one active judge of the bankruptcy courts of the United States. Subsec. (b). Pub. L. 95-598, Sec. 229, struck out provisions requiring that section 629 of this title govern the terms of office of the first members elected to the Board. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. ------DocID 36436 Document 298 of 1452------ -CITE- 28 USC Sec. 622 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 622. Meetings; conduct of business -STATUTE- (a) Regular meetings of the Board shall be held quarterly. Special meetings shall be held from time to time upon the call of the Chairman, acting at his own discretion or pursuant to the petition of any four members. (b) Each member of the Board shall be entitled to one vote. A simple majority of the membership shall constitute a quorum for the conduct of business. The Board shall act upon the concurrence of a simple majority of the members present and voting. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 665.) ------DocID 36437 Document 299 of 1452------ -CITE- 28 USC Sec. 623 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 623. Duties of the Board -STATUTE- (a) In its direction and supervision of the activities of the Federal Judicial Center, the Board shall - (1) establish such policies and develop such programs for the Federal Judicial Center as will further achievement of its purpose and performance of its functions; (2) formulate recommendations for improvements in the administration of the courts of the United States, in the training of the personnel of those courts, and in the management of their resources; (3) submit to the Judicial Conference of the United States, at least one month in advance of its annual meeting, a report of the activities of the Center and such recommendations as the Board may propose for the consideration of the Conference; (4) present to other government departments agencies, and instrumentalities whose programs or activities relate to the administration of justice in the courts of the United States the recommendations of the Center for the improvement of such programs or activities; (5) study and determine ways in which automatic data processing and systems procedures may be applied to the administration of the courts of the United States, and include in the annual report required by paragraph (3) of this subsection details of the results of the studies and determinations made pursuant to this paragraph; (6) consider and recommend to both public and private agencies aspects of the operation of the courts of the United States deemed worthy of special study; and (7) conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States Government. (b) The Board shall transmit to Congress and to the Attorney General of the United States copies of all reports and recommendations submitted to the Judicial Conference of the United States. The Board shall also keep the Committees on the Judiciary of the United States Senate and House of Representatives fully and currently informed with respect to the activities of the Center. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 665, and amended Pub. L. 100-702, title III, Sec. 302, Nov. 19, 1988, 102 Stat. 4648.) -MISC1- AMENDMENTS 1988 - Subsec. (a)(7). Pub. L. 100-702 added par. (7). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 629 of this title. ------DocID 36438 Document 300 of 1452------ -CITE- 28 USC Sec. 624 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 624. Powers of the Board -STATUTE- The Board is authorized - (1) to appoint and fix the duties of the Director and the Deputy Director of the Federal Judicial Center, who shall serve at the pleasure of the Board; (2) to request from any department, agency, or independent instrumentality of the Government any information it deems necessary to the performance of the functions of the Federal Judicial Center set forth in this chapter, and each such department, agency, or instrumentality is directed to cooperate with the Board and, to the extent permitted by law, to furnish such information to the Center upon request of the Chairman or upon request of the Director when the Board has delegated this authority to him; (3) to contract with and compensate government and private agencies or persons for research projects and other services, without regard to section 3709 of the Revised Statutes, as amended (41 U.S.C. 5), and to delegate such contract authority to the Director of the Federal Judicial Center, who is hereby empowered to exercise such delegated authority. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 666, and amended Pub. L. 100-702, title III, Sec. 304(a), Nov. 19, 1988, 102 Stat. 4648.) -MISC1- AMENDMENTS 1988 - Par. (1). Pub. L. 100-702 inserted 'and the Deputy Director' after 'Director'. ------DocID 36439 Document 301 of 1452------ -CITE- 28 USC Sec. 625 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 625. Director and staff -STATUTE- (a) The Director shall supervise the activities of persons employed by the Center and perform other duties assigned to him by the Board. (b) The Director shall appoint and fix the compensation of such additional professional personnel as the Board may deem necessary, without regard to the provisions of title 5, United States Code, governing appointments in competitive service, or the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay rates: Provided, however, That the compensation of any person appointed under this subsection shall not exceed the annual rate of basic pay of level V of the Executive Schedule pay rates, section 5316, title 5, United States Code: And provided further, That the salary of a reemployed annuitant under the Civil Servive (FOOTNOTE 1) Retirement Act shall be adjusted pursuant to the provisions of section 8344, title 5, United States Code. (FOOTNOTE 1) So in original. Should be 'Service'. (c) The Director shall appoint and fix the compensation of such secretarial and clerical personnel as he may deem necessary, subject to the provisions of title 5, United States Code, governing appointments in competitive service and the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay rates. (d) The Director may procure personal services as authorized by section 3109 of title 5, United States Code, at rates not to exceed the daily equivalent of the highest rate payable under General Schedule pay rates, section 5332, title 5, United States Code. (e) The Director is authorized to incur necessary travel and other miscellaneous expenses incident to the operation of the Center. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 666.) -REFTEXT- REFERENCES IN TEXT The General Schedule, referred to in subsec. (b), is set out under section 5332 of Title 5, Government Organization and Employees. The Civil Service Retirement Act, referred to in subsec. (b), is act May 29, 1930, ch. 349, 46 Stat. 468, as amended by act July 31, 1956, ch. 804, Sec. 401, 70 Stat. 743, which was repealed by Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 632, and reenacted by the first section thereof as subchapter III (Sec. 8331 et seq.) of chapter 83 of Title 5. -MISC2- REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 (title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of Title 5. ------DocID 36440 Document 302 of 1452------ -CITE- 28 USC Sec. 626 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 626. Compensation of the Director and Deputy Director -STATUTE- The compensation of the Director of the Federal Judicial Center shall be the same as that of the Director of the Administrative Office of the United States Courts, and his appointment and salary shall not be subject to the provisions of title 5, United States Code, governing appointments in competitive service, or the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay rates: Provided, however, That any Director who is a justice or judge of the United States inactive or retired status shall serve without additional compensation. The compensation of the Deputy Director of the Federal Judicial Center shall be the same as that of the Deputy Director of the Administrative Office of the United States Courts. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 666, and amended Pub. L. 100-702, title III, Sec. 304(b)(1), Nov. 19, 1988, 102 Stat. 4648.) -REFTEXT- REFERENCES IN TEXT The General Schedule, referred to in text, is set out under section 5332 of Title 5, Government Organization and Employees. -MISC2- AMENDMENTS 1988 - Pub. L. 100-702 inserted 'and Deputy Director' in section catchline and inserted at end of text 'The compensation of the Deputy Director of the Federal Judicial Center shall be the same as that of the Deputy Director of the Administrative Office of the United States Courts.' EFFECTIVE DATE OF 1988 AMENDMENT Section 304(c) of Pub. L. 100-702 provided that: 'The amendment made by subsection (b) (amending this section) shall be effective for fiscal years beginning on or after October 1, 1988.' ------DocID 36441 Document 303 of 1452------ -CITE- 28 USC Sec. 627 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 627. Retirement; employee benefits -STATUTE- (a) A Director of the Federal Judicial Center who attains the age of seventy years shall be retired from that office. (b) The Director, the professional staff, and the clerical and secretarial employees of the Federal Judicial Center shall be deemed to be officers and employees of the judicial branch of the United States Government within the meaning of subchapter III of chapter 83 (relating to civil service retirement), chapter 87 (relating to Federal employees' life insurance program), and chapter 89 (relating to Federal employees' health benefits program) of title 5, United States Code: Provided, however, That the Director, upon written notice filed with the Director of the Administrative Office of the United States Courts within 6 months after the date on which he takes office, may waive coverage under chapter 83 of title 5, subchapter III (the Civil Service Retirement System) or chapter 84 of title 5 (the Federal Employees' Retirement System), whichever is applicable, and elect coverage under the retirement and disability provisions of this section. A Director who elects coverage under this section shall be deemed an 'employee' for purposes of chapter 84 of title 5, subchapter III, regardless of whether he has waived the coverage of chapter 83, subchapter III, or chapter 84: And provided further, That upon his nonretirement separation from the Federal Judicial Center, waiver of coverage under chapter 83, subchapter III, and election of this section shall not operate to foreclose to the Director such opportunity as the law may provide to secure retirement credit under chapter 83 for service as Director by depositing with interest the amount required by section 8334 of title 5. A Director who waives coverage under chapter 84 and elects this section may secure retirement credit under chapter 84 for service as Director by depositing with interest 1.3 percent of basic pay for service from January 1, 1984, through December 31, 1986, and the amount referred to in section 8422(a) of title 5, for service after December 31, 1986. Interest shall be computed under section 8334(e) of title 5. (c) Upon the retirement of a Director who has elected coverage under this section and who has served at least fifteen years and attained the age of sixty-five years the Director of the Administrative Office of the United States Courts shall pay him an annuity for life equal to 80 per centum of the salary of the office at the time of his retirement. Upon the retirement of a Director who has elected coverage under this section and who has served at least ten years, but who is not eligible to receive an annuity under the first paragraph of this subsection, the Administrative Office of the United States Courts shall pay him an annuity for life equal to that proportion of 80 per centum of the salary of the office at the time of his retirement that the number of years of his service bears to fifteen, reduced by one-quarter of 1 per centum for each full month, if any, he is under the age of sixty-five at the time of separation from service. (d) A director who has elected coverage under this section and who becomes permanently disabled to perform the duties of his office shall be retired and shall receive an annuity for life equal to 80 per centum of the salary of the office at the time of his retirement if he has served at least fifteen years, or equal to that proportion of 80 per centum of such salary that the aggregate number of years of his service bears to fifteen if he has served less than fifteen years, but in no event less than 50 per centum of such salary. (e) For the purpose of this section, 'service' means service, whether or not continuous, as Director of the Federal Judicial Center, and any service, not to exceed five years, as a judge of the United States, a Senator or Representative in Congress, or a civilian official appointed by the President, by and with the advice and consent of the Senate. (f) Each annuity payable under this section shall be increased by the same percentage amount and effective on the same date as annuities payable under chapter 83 of title 5, are increased as provided by section 8340 of title 5. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 666, and amended Pub. L. 100-702, title X, Sec. 1004(a), 1006(a)(2), Nov. 19, 1988, 102 Stat. 4665, 4666.) -MISC1- AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-702, Sec. 1006(a)(2), amended provisions after 'Provided, however,' generally. Prior to amendment, those provisions read as follows: 'That the Director, upon written notice filed with the Director of the Administrative Office of the United States Courts within six months after the date on which he takes office, may waive coverage under subchapter III of chapter 83 of title 5, United States Code (relating to civil service retirement), and elect coverage under the retirement and disability provisions of this section: And provided further, That upon his non-retirement separation from the Federal Judicial Center, such waiver and election shall not operate to foreclose to the Director such opportunity as the law may provide to secure civil service retirement credit for service as Director by depositing with interest the amount required by section 8334 of title 5, United States Code.' Subsec. (f). Pub. L. 100-702, Sec. 1004(a), added subsec. (f). EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 1004(a) of Pub. L. 100-702 applicable to cost-of-living increases that go into effect on or after Nov. 19, 1988, with respect to any annuity being paid or becoming payable on or after such date, see section 1004(b) of Pub. L. 100-702, set out as a note under section 611 of this title. Amendment by section 1006(a)(2) of Pub. L. 100-702 applicable to persons holding offices of Director of the Administrative Office of the United States Courts, Director of the Federal Judicial Center, and Administrative Assistant to the Chief Justice on Nov. 19, 1988, see section 1006(b) of Pub. L. 100-702, set out as a note under section 611 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 376 of this title. ------DocID 36442 Document 304 of 1452------ -CITE- 28 USC Sec. 628 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 628. Appropriations and accounting -STATUTE- There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this chapter. The Administrative Office of the United States Courts shall provide accounting, disbursing, auditing, and other fiscal services for the Federal Judicial Center. -SOURCE- (Added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 667.) ------DocID 36443 Document 305 of 1452------ -CITE- 28 USC Sec. 629 -EXPCITE- TITLE 28 PART III CHAPTER 42 -HEAD- Sec. 629. Federal Judicial Center Foundation -STATUTE- (a) There is established a private nonprofit corporation which shall be known as the Federal Judicial Center Foundation (hereafter in this section referred to as the 'Foundation') and which shall be incorporated in the District of Columbia. The purpose of the Foundation shall be to have sole authority to accept and receive gifts of real and personal property and services made for the purpose of aiding or facilitating the work of the Federal Judicial Center. The Foundation shall not accept conditional or otherwise restricted gifts, except gifts that are designated for the support of specific projects previously approved by the Board of the Center may be accepted. The Foundation shall have no authority to administer or otherwise determine the use of gifts accepted under this section. (b) The business of the Foundation shall be conducted by a Board that shall have seven members, including a chairman. Three members, including the chairman, shall be appointed by the Chief Justice of the United States, two by the President Pro Tempore of the Senate, and two by the Speaker of the House of Representatives. The term of office of each member of the Board shall be 5 years, except that the initial terms shall be 5 years for the chairman, one member appointed by the President Pro Tempore and one member appointed by the Speaker, 3 years for the other member appointed by the President Pro Tempore and the other member appointed by the Speaker, and two years for the two other members appointed by the Chief Justice. Members of the Board shall serve without compensation but, upon authorization of the Director of the Center, shall be reimbursed by the Federal Judicial Center for actual and necessary expenses incurred in the performance of their official duties. No person who is a Federal or State judge in regular active service or otherwise eligible to perform judicial duties shall be eligible for membership on the Board. The Center shall provide all administrative support and facilities necessary for the operation of the Board. (c) The Federal Judicial Center is authorized to administer and use gifts received by the Foundation under this section. The gifts shall be used to further the goals of the Center as determined by the Board of the Center. (d) Gifts of money and proceeds from sales of other property received as gifts shall be deposited in a separate fund in the Treasury of the United States and disbursed on the order of the Director of the Center, in accordance with policies established by the Board of the Center. (e) The Board of the Foundation shall, not later than October 1 of each year, submit to the Committees on the Judiciary of the United States Senate and House of Representatives a report with respect to gifts received under this section during the preceding 12-month period, including the source of each such gift, the amount of each gift of cash or cash equivalent, and a description of any other gift. The Center shall include in its annual report of the activities of the Center under section 623(a)(3) a description of the purposes for which gifts were used during the year covered by the report. (f) For the purpose of Federal income, estate, and gift taxes, property accepted under this section shall be considered as a gift or bequest to or for the use of the United States. -SOURCE- (Added Pub. L. 100-702, title III, Sec. 301(a), Nov. 19, 1988, 102 Stat. 4646.) -MISC1- PRIOR PROVISIONS A prior section 629, added Pub. L. 90-219, title I, Sec. 101, Dec. 20, 1967, 81 Stat. 667, which related to organization provisions for the Board, was repealed by Pub. L. 95-598, title II, Sec. 230(1), Nov. 6, 1978, 92 Stat. 2665, effective Nov. 6, 1978. ------DocID 36444 Document 306 of 1452------ -CITE- 28 USC CHAPTER 43 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- CHAPTER 43 - UNITED STATES MAGISTRATES -MISC1- Sec. 631. Appointment and tenure. 632. Character of service. 633. Determination of number, locations, and salaries of magistrates. 634. Compensation. 635. Expenses. 636. Jurisdiction, powers, and temporary assignment. 637. Training. 638. Dockets and forms; United States Code; seals. 639. Definitions. AMENDMENTS 1972 - Pub. L. 92-239, Sec. 3, Mar. 1, 1972, 86 Stat. 47, substituted 'Jurisdiction, powers, and temporary assignment' for 'Jurisdiction and powers' in item 636. 1968 - Pub. L. 90-578, title I, Sec. 101, Oct. 17, 1968, 82 Stat. 1108, substituted 'MAGISTRATES' for 'COMMISSIONERS' in chapter heading, and 'Character of service' for 'Park commissioners; jurisdiction and powers; procedure' in item 632, 'Determination of number, locations, and salaries of magistrates' for 'Fees and expenses' in item 633, 'Compensation' for 'Salaries of park commissioners; disposition of fees' in item 634, 'Expenses' for 'Park commissioners; residence' in item 635, 'Jurisdiction and powers' for 'Accounts' in item 636, 'Training' for 'Oaths, acknowledgments, affidavits and depositions' in item 637, 'Dockets and forms; United States Code; seals' for 'Seals' in item 638, and 'Definitions' for 'Dockets and forms; United States Code' in item 639. 1954 - Act Aug. 13, 1954, ch. 728, Sec. 1(c), 68 Stat. 704, inserted 'and expenses' after 'Fees' in item 633. -CROSS- CROSS REFERENCES Petty offenses, trial by magistrates, see section 3401 of Title 18, Crimes and Criminal Procedure. Rules of procedure and practice for trials of cases before magistrates, and taking of appeals, see section 3402 of Title 18 and rules 1 and 54 of Title 18, Appendix. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 375 of this title. ------DocID 36445 Document 307 of 1452------ -CITE- 28 USC Sec. 631 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 631. Appointment and tenure -STATUTE- (a) The judges of each United States district court and the district court of the Virgin Islands shall appoint United States magistrates in such numbers and to serve at such locations within the judicial district as the conference may determine under this chapter. In the case of a magistrate appointed by the district court of the Virgin Islands, this chapter shall apply as though the court appointing such magistrate were a United States district court. Where there is more than one judge of a district court, the appointment, whether an original appointment or a reappointment, shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. Where the conference deems it desirable, a magistrate may be designated to serve in one or more districts adjoining the district for which he is appointed. Such a designation shall be made by the concurrence of a majority of the judges of each of the district courts involved and shall specify the duties to be performed by the magistrate in the adjoining district or districts. (b) No individual may be appointed or reappointed to serve as a magistrate under this chapter unless: (1) He has been for at least five years a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, except that an individual who does not meet the bar membership requirements of this paragraph may be appointed and serve as a part-time magistrate if the appointing court or courts and the conference find that no qualified individual who is a member of the bar is available to serve at a specific location; (2) He is determined by the appointing district court or courts to be competent to perform the duties of the office; (3) In the case of an individual appointed to serve in a national park, he resides within the exterior boundaries of that park, or at some place reasonably adjacent thereto; (4) He is not related by blood or marriage to a judge of the appointing court or courts at the time of his initial appointment; and (5) He is selected pursuant to standards and procedures promulgated by the Judicial Conference of the United States. Such standards and procedures shall contain provision for public notice of all vacancies in magistrate positions and for the establishment by the district courts of merit selection panels, composed of residents of the individual judicial districts, to assist the courts in identifying and recommending persons who are best qualified to fill such positions. (c) A magistrate may hold no other civil or military office or employment under the United States: Provided, however, That, with the approval of the conference, a part-time referee in bankruptcy or a clerk or deputy clerk of a court of the United States may be appointed and serve as a part-time United States magistrate, but the conference shall fix the aggregate amount of compensation to be received for performing the duties of part-time magistrate and part-time referee in bankruptcy, clerk or deputy clerk: And provided further, That retired officers and retired enlisted personnel of the Regular and Reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard, members of the Reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and members of the Army National Guard of the United States, the Air National Guard of the United States, and the Naval Militia and of the National Guard of a State, territory, or the District of Columbia, except the National Guard disbursing officers who are on a full-time salary basis, may be appointed and serve as United States magistrates. (d) Except as otherwise provided in sections 375 and 636(h) of this title, no individual may serve under this chapter after having attained the age of seventy years: Provided, however, That upon a majority vote of all the judges of the appointing court or courts, which is taken upon the magistrate's attaining age seventy and upon each subsequent anniversary thereof, a magistrate who has attained the age of seventy years may continue to serve and may be reappointed under this chapter. (e) The appointment of any individual as a full-time magistrate shall be for a term of eight years, and the appointment of any individuals as a part-time magistrate shall be for a term of four years, except that the term of a full-time or part-time magistrate appointed under subsection (k) shall expire upon - (1) the expiration of the absent magistrate's term, (2) the reinstatement of the absent magistrate in regular service in office as a magistrate, (3) the failure of the absent magistrate to make timely application under subsection (j) of this section for reinstatement in regular service in office as a magistrate after discharge or release from military service, (4) the death or resignation of the absent magistrate, or (5) the removal from office of the absent magistrate pursuant to subsection (i) of this section, whichever may first occur. (f) Upon the expiration of his term, a magistrate may, by a majority vote of the judges of the appointing district court or courts and with the approval of the judicial council of the circuit, continue to perform the duties of his office until his successor is appointed, or for 180 days after the date of the expiration of the magistrate's term, whichever is earlier. (g) Each individual appointed as a magistrate under this section shall take the oath or affirmation prescribed by section 453 of this title before performing the duties of his office. (h) Each appointment made by a judge or judges of a district court shall be entered of record in such court, and notice of such appointment shall be given at once by the clerk of that court to the Director. (i) Removal of a magistrate during the term for which he is appointed shall be only for incompetency, misconduct, neglect of duty, or physical or mental disability, but a magistrate's office shall be terminated if the conference determines that the services performed by his office are no longer needed. Removal shall be by the judges of the district court for the judicial district in which the magistrate serves; where there is more than one judge of a district court, removal shall not occur unless a majority of all the judges of such court concur in the order of removal; and when there is a tie vote of the judges of the district court on the question of the removal or retention in office of a magistrate, then removal shall be only by a concurrence of a majority of all the judges of the council. In the case of a magistrate appointed under the third sentence of subsection (a) of this section, removal shall not occur unless a majority of all the judges of the appointing district courts concur in the order of removal; and where there is a tie vote on the question of the removal or retention in office of a magistrate, then removal shall be only by a concurrence of a majority of all the judges of the council or councils. Before any order or removal shall be entered, a full specification of the charges shall be furnished to the magistrate, and he shall be accorded by the judge or judges of the removing court, courts, council, or councils an opportunity to be heard on the charges. (j)(1) A magistrate who is inducted into the Armed Forces of the United States pursuant to the Military Selective Service Act of 1967 (50 U.S.C. App. 451 et seq.), or is otherwise ordered to active duty with such forces for a period of more than thirty days, and who makes application for a leave of absence to the district court or courts which appointed him, shall be granted a leave of absence without compensation for such period as he is required to serve in such forces. Every application for a leave of absence under this subsection shall include a copy of the official orders requiring the magistrate's military service. The granting of a leave of absence under this subsection shall not operate to extend the term of office of any magistrate. (2) A magistrate granted a leave of absence under this subsection who - (A) receives a certificate of service under section 9(a) of the Military Selective Service Act of 1967 (50 U.S.C. App. 459(a)), or is released under honorable conditions from the military service, (B) makes application for reinstatement to regular service in office as a magistrate within ninety days after he is released from such service or training or from hospitalization continuing after discharge for a period of not more than one year, and (C) is determined by the appointing court or courts in the manner specified in subsection (a) of this section to be still qualified to perform the duties of such position, shall be reinstated in regular service in such office. (k) Upon the grant by the appropriate district court or courts of a leave of absence to a magistrate entitled to such relief under the terms of subsection (i) (FOOTNOTE 1) of this section, such court or courts may proceed to appoint, in the manner specified in subsection (a) of this section, another magistrate, qualified for appointment and service under subsections (b), (c), and (d) of this section, who shall serve for the period specified in subsection (e) of this section. (FOOTNOTE 1) See References in Text note below. (l) A United States magistrate appointed under this chapter shall be exempt from the provisions of subchapter I of chapter 63 of title 5. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 915; May 24, 1949, ch. 139, Sec. 73, 63 Stat. 100; July 9, 1952, ch. 609, Sec. 1, 66 Stat. 509; July 25, 1956, ch. 722, 70 Stat. 642; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1108; Oct. 17, 1976, Pub. L. 94-520, Sec. 2, 90 Stat. 2458; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 231, 92 Stat. 2665; Oct. 10, 1979, Pub. L. 96-82, Sec. 3(a)-(d), 93 Stat. 644, 645; Aug. 6, 1982, Pub. L. 97-230, 96 Stat. 255; Nov. 14, 1986, Pub. L. 99-651, title II, Sec. 201(a)(1), 100 Stat. 3646; Nov. 15, 1988, Pub. L. 100-659, Sec. 5, 102 Stat. 3918; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1003(a)(2), 102 Stat. 4665; June 30, 1989, Pub. L. 101-45, title II, Sec. 104, 103 Stat. 122; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 308(b), 104 Stat. 5112.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 526 and 527, sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e, 256d, 395e, 403c-5, 403h-5, 404c-5, and 408m of title 16, U.S.C., 1940 ed., Conservation, and section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (May 27, 1894, ch. 72, Sec. 5, 28 Stat. 74; May 28, 1896, ch. 252, Sec. 19, 20, 29 Stat. 184; Apr. 12, 1900, ch. 191, Sec. 34, 31 Stat. 84; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Jan. 7, 1913, ch. 6, 37 Stat. 648; Aug. 22, 1914, ch. 264, Sec. 6, 38 Stat. 700; June 30, 1916, ch. 197, Sec. 6, 39 Stat. 245; Aug. 21, 1916, ch. 368, Sec. 6, 39 Stat. 523; Mar. 2, 1917, ch. 145, Sec. 41, 39 Stat. 965; June 2, 1920, ch. 218, Sec. 7, 8, 41 Stat. 733; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; Apr. 25, 1928, ch. 434, Sec. 6, 45 Stat. 460; Apr. 26, 1928, ch. 438, Sec. 6, 45 Stat. 464; Mar. 2, 1929, ch. 583, Sec. 6, 45 Stat. 1538; Apr. 19, 1930, ch. 200, Sec. 6, 46 Stat. 228; June 25, 1935, ch. 309, Sec. 1, 49 Stat. 422; Aug. 19, 1937, ch. 703, Sec. 5, 50 Stat. 702; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118; June 25, 1938, ch. 684, Sec. 1, 52 Stat. 1164; June 28, 1938, ch. 778, Sec. 1, 52 Stat. 1213; Mar. 4, 1940, ch. 40, Sec. 2, 54 Stat. 43; Mar. 6, 1942, ch. 150, Sec. 5, 56 Stat. 134; Mar. 6, 1942, ch. 151, Sec. 5, 56 Stat. 137; Apr. 29, 1942, ch. 264, Sec. 5, 56 Stat. 260; June 5, 1942, ch. 341, Sec. 5, 56 Stat. 318; Dec. 28, 1945, ch. 592, 59 Stat. 659, 660; Apr. 23, 1946, ch. 202, Sec. 1, 60 Stat. 119, 120). Section consolidates section 526 and a portion of 527, both of title 28, U.S.C., 1940 ed., with provisions of sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e, 256d, 395e, 403c-5, 403h-5, 404c-5 and 408m of title 16, U.S.C., 1940 ed., and provisions of section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to appointment of United States commissioners. For other provisions of said sections see Distribution Table. Some of the provisions of section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions were retained in that title. The provision of sections 395e, 403c-5, 404c-5, and 408m of title 16, U.S.C., 1940 ed., for appointment of the Park Commissioner in the Hawaii National Park, Shenandoah National Park, Great Smoky Mountains National Park, Mammoth Cave National Park and Isle Royale National Park upon 'the recommendation of the Secretary of the Interior' was omitted as inconsistent not only with other provisions of this title but with other statutes applicable to other national parks. All such park commissioners are United States commissioners and the revision of these sections makes possible uniformity and consistency in administrative matters concerning such commissioners. (See, also, sections 604 and 634 of this title.) Words 'the Director of the Administrative Office of the United States Courts' were substituted for 'Attorney General' in section 526 of title 28, U.S.C., 1940 ed., in view of the general supervision by the Director over clerks and commissioners under section 601 et seq. of this title. See, also, section 751 of this title prohibiting clerks from receiving compensation in another capacity. First sentence of subsection (b) was substituted for the provision in section 527 of title 28, U.S.C., 1940 ed., prohibiting specified persons from acting as commissioners. Words 'at such places in the district as may be designated by the district court,' in section 526 of title 28, U.S.C., 1940 ed., were omitted as unnecessary. A provision in section 526 of title 28, U.S.C., 1940 ed., that commissioners should have the same powers and duties as are conferred and imposed by law, was omitted as superfluous. The phrase in sections 526 and 527 of title 16, U.S.C., 1940 ed., 'except as provided in section 591' and section 591, the effect of which was to except Alaska from this section, were omitted as unnecessary. This revised section by its terms limits the section and chapter 43 of this title to commissioners appointed by a 'district court,' which includes the courts enumerated in chapter 5 of this title but not those of Alaska, Canal Zone, or Virgin Islands. Sections from title 16, U.S.C., 1940 ed., contained no tenure provisions. Changes in phraseology were made. Prior residence requirement for national park commissioners in section 635. - Based on sections 1a and 403c-9 of title 16, U.S.C., 1940 ed., Conservation (Aug. 19, 1937, ch. 703, Sec. 8, 50 Stat. 702; June 28, 1938, ch. 778, Sec. 1, 52 Stat. 1213). Section consolidates section 1a with part of section 403c-9 of title 16, U.S.C., 1940 ed., relating to residence of a national park commissioner. The provisions of sections 1a and 403c-9 of title 16, U.S.C., 1940 ed., relating to designation by the Secretary of the Interior of some place of residence reasonably adjacent to the park was modified by making such designation subject to the approval of the appointing court. SENATE REVISION AMENDMENT By Senate amendment, 'Big Bend' and 'Crater Lake' were inserted in subsection (a) of this section, and section 158a of title 16, U.S.C., which was derived from act May 15, 1947, ch. 55, Sec. 1, 61 Stat. 91, accordingly became an additional source of this section, such Act being included in the schedule of repeals. See 80th Congress Senate Report No. 1559. As finally enacted, act May 15, 1947, ch. 57, 61 Stat. 92, which amended section 403c-5 of title 16, U.S.C., became an additional source of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559. 1949 ACT This amendment conforms the language of section 631(b) to the provisions of section 35 of the Bankruptcy Act, as amended by the act of June 28, 1946 (Sec. 3, 60 Stat. 324), that full-time referees in bankruptcy may not be appointed United States Commissioners. This amendment also removes an ambiguity from section 631(b) by making it clear that the Director of the Administrative Office of the United States Courts has power to establish maximum limits of compensation to be received for performing the combined offices of commissioner and clerk or deputy clerk. This was the intent of sections 631 and 751 of title 28. (See the fifteenth paragraph of the reviser's note to the latter section, H. Rept. No. 308, April 25, 1947, p. A90, to accompany H.R. 3214, 80th Cong.) -REFTEXT- REFERENCES IN TEXT The Military Selective Service Act of 1967 (50 U.S.C. App. 451 et seq.), referred to in subsec. (j)(1), subsequently renamed the Military Selective Service Act, is act June 24, 1948, ch. 625, 62 Stat. 604, as amended, which is classified principally to section 451 et seq. of Title 50, Appendix, War and National Defense. For complete classification of this Act to the Code, see References in Text note set out under section 451 of Title 50, Appendix, and Tables. Subsection (i) of this section, referred to in subsec. (k), probably means subsec. (j) of this section in view of the redesignation of former subsec. (i) as (j) by Pub. L. 96-82. -MISC2- AMENDMENTS 1990 - Subsec. (f). Pub. L. 101-650 substituted '180' for '60'. 1989 - Subsec. (b)(1). Pub. L. 101-45 struck out 'and he is a member in good standing of the bar of the highest court of the State in which he is to serve, or, in the case of an individual appointed to serve - '(A) in the District of Columbia, a member in good standing of the bar of the United States district court for the District of Columbia; or '(B) in the Commonwealth of Puerto Rico, a member in good standing of the bar of the Supreme Court of Puerto Rico, and in the Virgin Islands of the United States, a member in good standing of the bar of the district court of the Virgin Islands;' after 'Virgin Islands of the United States,' and struck out 'the first sentence of' before 'this paragraph'. 1988 - Subsec. (e). Pub. L. 100-659 substituted '(k)' for '(j)' in introductory text, '(j)' for '(i)' in par. (3), and '(i)' for '(h)' in par. (5). Subsec. (l). Pub. L. 100-702 added subsec. (l). 1986 - Subsec. (d). Pub. L. 99-651 substituted 'Except as otherwise provided in sections 375 and 636(h) of this title, no' for 'No', and 'a majority' for 'the unanimous', and inserted 'which is taken upon the magistrate's attaining age seventy and upon each subsequent anniversary thereof,' after 'courts,'. 1982 - Subsec. (b)(1). Pub. L. 97-230 substituted 'He has been for at least five years a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and he is a member' for 'He is, and has been for at least five years, a member'. 1979 - Subsec. (a). Pub. L. 96-82, Sec. 3(a), substituted 'Where the conference deems it desirable, a magistrate may be designated to serve in one or more districts adjoining the district for which he is appointed' and 'Such a designation shall be made by the concurrence of a majority of the judges of each of the district courts involved and shall specify the duties to be performed by the magistrate in the adjoining district or districts' for 'Where an area under the administration of the National Park Service, or the United States Fish and Wildlife Service, or any other Federal agency, extends into two or more judicial districts and it is deemed desirable by the conference that the territorial jurisdiction of a magistrate's appointment include the entirety of such area, the appointment or reappointment shall be made by the concurrence of a majority of all judges of the district courts of the judicial districts involved, and where there is no such concurrence by the concurrence of the chief judges of such district courts'. Subsec. (b). Pub. L. 96-82, Sec. 3(b), substituted 'appointed or reappointed to serve' for 'appointed or serve' in provisions preceding par. (1), inserted ', and has been for at least 5 years,' after 'He is' in provisions of par. (1) preceding subpar. (A), struck out subpar. (C) relating to service by members an good standing of the bar of the highest court of one of the two or more States where the area involved is under the administration of the National Park Service, the United States Fish and Wildlife Service, or any other Federal agency that extends to two or more States. Subsec. (b)(5). Pub. L. 96-82, Sec. 3(c), added par. (5). Subsec. (f). Pub. L. 96-82, Sec. 3(d)(2), added subsec. (f). Former subsec. (f) redesignated (g). Subsecs. (g) to (k). Pub. L. 96-82, Sec. 3(d)(1), redesignated former subsecs. (f) to (j) as (g) to (k), respectively. 1978 - Subsec. (c). Pub. L. 95-598 directed the amendment of subsec. (c) by substituting 'of the conference,' for 'of the conference, a part-time referee in bankruptcy or' and 'magistrate and' for 'magistrate and part-time referee in bankruptcy,', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1976 - Subsec. (a). Pub. L. 94-520, Sec. 2(1), (2), inserted 'and the district court of the Virgin Islands' after 'United States district court', and provided that in the case of a magistrate appointed by the district court of the Virgin Islands, this chapter was to apply as though the appointing court were a United States District Court. Subsec. (b). Pub. L. 94-520, Sec. 2(3), provided that a magistrate appointed under this chapter to serve in the Virgin Islands, must be a member in good standing of the bar of the district court of the Virgin Islands. 1968 - Pub. L. 90-578 revised provisions of this section generally as described for subsecs. (a) to (j) hereunder, substituting provisions for appointment and tenure of magistrates for appointment and tenure of commissioners. Subsec. (a). Pub. L. 90-578 provided for determination of number of appointees by the conference, rather than by the district court, authorized the determination of location of service, omitted as superseded by existing provisions prior provisions for appointments for certain specified national parks, required appointments in a district court with more than one judge to be concurred in by majority of all the judges, and by the chief judge in absence of such concurrence, required such concurrence of judges of district courts or concurrence of chief judges in absence of such concurrence by the judges where appointments are for an area under administration of the National Park Service, or the United States Fish and Wildlife Service, or any other Federal agency, which extends into more than one judicial district which should be served in its entirety by one magistrate, and omitted last par. prescribing appointment record and notice. See subsec. (g) of this section. Subsec. (b). Pub. L. 90-578 added subsec. (b). Prior provisions which were eliminated prohibited holding dual offices when the person held a civil or military office or employment under the United States or was employed by a Federal justice or judge, but such restriction was made inapplicable to a part-time referee in bankruptcy, or to a clerk or deputy clerk of a Federal court when approved by the Director and compensated in an aggregate amount fixed by the Director for performance of dual duties. See subsec. (c) of this section. Subsec. (c). Pub. L. 90-578 incorporated provisions of former subsec. (b) of this section in provisions designated as subsec. (c), omitted express restriction against holding dual offices when employed by a Federal justice or judge, provided for approval of the conference with respect to part-time service as a magistrate of part-time referee in bankruptcy or clerk or deputy clerk of a Federal court, formerly requiring approval of the Director as to service of clerk or deputy clerk of court as a commissioner, made former provisions as to aggregate amount of compensation for service as clerk or deputy clerk of court and commissioner applicable to part-time service as magistrate of part-time referee in bankruptcy, clerk and deputy clerk of court, and authorized appointment of retired military personnel, except National Guard disbursing officers who are on a full-time salary basis, as United States magistrates. Former subsec. (c) which provided for a four year term of office of commissioner unless sooner removed by the district court. See subsecs. (e) and (h) of this section. Subsec. (d). Pub. L. 90-578 added subsec. (d). Subsec. (e). Pub. L. 90-578 substituted provisions designated as subsec. (e) for term of office of eight and four years for full-time and part-time officers and for expiration of term of office for provisions of former subsec. (c) of this section for term of four years unless sooner removed by the district court. Subsec. (f). Pub. L. 90-578 added subsec. (f). Subsec. (g). Pub. L. 90-578 incorporated provisions of last par. of former subsec. (a) of this section in provisions designated as subsec. (g) and provided expressly for appointment by a judge or judges of a district court. Subsecs. (h) to (j). Pub. L. 90-578 added subsecs. (h) to (j). 1956 - Subsec. (a). Act July 25, 1956, provided for two United States Commissioners for the Cumberland Gap National Historical Park. 1952 - Subsec. (a). Act July 9, 1952, provided for two United States Commissioners for the Great Smoky Mountains National Park, in place of one. 1949 - Subsec. (b). Act May 24, 1949, amended second sentence generally. Prior to amendment, second sentence read as follows: 'This subsection shall not apply to a referee in bankruptcy nor shall it apply to a clerk or deputy clerk of a court of the United States whose appointment as commissioner is approved by the Director of the Administrative Office of the United States Courts.' -CHANGE- CHANGE OF NAME Section 321 of Pub. L. 101-650 provided that: 'After the enactment of this Act (Dec. 1, 1990), each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge, and any reference to any United States magistrate or magistrate that is contained in title 28, United States Code, in any other Federal statute, or in any regulation of any department or agency of the United States in the executive branch that was issued before the enactment of this Act, shall be deemed to refer to a United States magistrate judge appointed under section 631 of title 28, United States Code.' -MISC4- EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as a note under section 155 of this title. EFFECTIVE DATE OF 1979 AMENDMENT Section 3(g) of Pub. L. 96-82 provided that: 'The amendment made by subsection (c) of this section (amending this section) shall not take effect until 30 days after the meeting of the Judicial Conference of the United States next following the effective date of this Act (Oct. 10, 1979).' (The meeting of the Judicial Conference took place on Mar. 5 and 6, 1980.) EFFECTIVE DATE OF 1968 AMENDMENT Section 403 of Pub. L. 90-578 provided that: 'Except as otherwise provided by sections 401 and 402 of this title (set out as Appointment of Magistrates and Applicable Law notes below), this Act (amending this chapter and sections 202, 3006A, 3041, 3043, 3045, 3060, 3102, 3116, 3184, 3191, 3195, 3401, 3402, 3569, and 3771 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under this section) shall take effect on the date of its enactment (Oct. 17, 1968).' SHORT TITLE OF 1979 AMENDMENT Section 1 of Pub. L. 96-82 provided: 'That this Act (amending this section, sections 604, 633, 634, 635, 636, and 1915 of this title, and section 3401 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under this section) may be cited as the 'Federal Magistrate Act of 1979'.' SHORT TITLE Section 1 of Pub. L. 90-578 provided: 'That this Act (amending this chapter and sections 202, 3006A, 3041, 3043, 3045, 3060, 3102, 3116, 3184, 3191, 3195, 3401, 3402, 3569, and 3771 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under this section) may be cited as the 'Federal Magistrates Act'.' SEPARABILITY Section 501 of Pub. L. 90-578 provided that: 'If any provision of this Act (amending this chapter and sections 202, 3006A, 3041, 3043, 3045, 3060, 3102, 3116, 3184, 3191, 3195, 3401, 3402, 3569, and 3771 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as notes under this section) or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of its application to other persons and circumstances shall not be affected.' DUE CONSIDERATION BY MERIT SELECTION PANELS OF WOMEN, BLACKS, HISPANICS, AND OTHER MINORITIES Section 3(e) of Pub. L. 96-82 provided that: 'The merit selection panels established under section 631(b)(5) of title 28, United States Code, in recommending persons to the district court, shall give due consideration to all qualified individuals, especially such groups as women, blacks, Hispanics, and other minorities.' MAGISTRATES SERVING PRIOR TO PROMULGATION OF MAGISTRATE SELECTION STANDARDS AND PROCEDURES BY JUDICIAL CONFERENCE; REAPPOINTMENT; CERTIFICATION AS QUALIFIED Section 3(f) of Pub. L. 96-82 provided that: 'Magistrates (now United States magistrate judges) serving prior to the promulgation of magistrate selection standards and procedures by the Judicial Conference of the United States may only exercise the jurisdiction conferred under the amendment made by section 2 of this Act (enacting section 636(c) of this title) after having been reappointed under such standards and procedures or after having been certified as qualified to exercise such jurisdiction by the judicial council of the circuit in which the magistrate serves.' JUDICIAL CONFERENCE STUDY OF THE FUTURE OF THE MAGISTRATE SYSTEM Section 9 of Pub. L. 96-82 provided for a study by the Judicial Conference of the United States to begin within 90 days after the effective date of Pub. L. 96-82, which was approved Oct. 10, 1979, and to be completed and made available to Congress within 24 months thereafter respecting the future of the magistrate system. AUTHORIZATION OF APPROPRIATIONS Section 10 of Pub. L. 96-82 provided that: 'Such sums as may be necessary to carry out the purposes of this Act (see Short Title of 1979 Amendment note above) are hereby authorized to be appropriated for expenditure on or after October 1, 1979.' APPOINTMENT OF MAGISTRATES Section 401 of Pub. L. 90-578 provided that: '(a) No individual may serve as a United States commissioner within any judicial district after the date on which a United States magistrate (now United States magistrate judge) assumes office in such judicial district. '(b) An individual serving as a United States commissioner within any judicial district on the date of enactment of this Act (Oct. 17, 1968) who is a member in good standing of the bar of the highest court of any State may be appointed to the office of United States magistrate for an initial term, and may be reappointed to such office for successive terms, notwithstanding his failure to meet the bar membership qualification imposed by section 631(b)(1) of chapter 43, title 28, United States Code: Provided, however, That any appointment or reappointment of such an individual must be by unanimous vote of all the judges of the appointing district court or courts.' APPLICABLE LAW Section 402 of Pub. L. 90-578 provided that: '(a) All provisions of law relating to the powers, duties, jurisdiction, functions, service, compensation, and facilities of United States commissioners, as such provisions existed on the day preceding the date of enactment of this Act (Oct. 17, 1968), shall continue in effect in each judicial district until but not on or after (1) the date on which the first United States magistrate (now United States magistrate judge) assumes office within such judicial district pursuant to section 631 of chapter 43, title 28, United States Code, as amended by this Act, or (2) the third anniversary of the date of enactment of this Act (Oct. 17, 1968), whichever date is earlier. '(b) On and after the date on which the first United States magistrate assumes office within any judicial district pursuant to section 631 of chapter 43, title 28, United States Code, as amended by this Act, or the third anniversary of the date of enactment of this Act (Oct. 17, 1968), whichever date is earlier - '(1) the provisions of chapter 43, title 28, United State Code, as amended by this Act (this chapter), shall be effective within such judicial district except as otherwise specifically provided by section 401(b) of this title (set out as Appointment of Magistrates note above); and '(2) within such judicial district every reference to a United States commissioner contained in any previously enacted statute of the United States (other than sections 8331(1)(E), 8332(i), 8701(a)(7), and 8901(1)(G) of title 5), any previously promulgated rule of any court of the United States, or any previously promulgated regulation of any executive department or agency of the United States, shall be deemed to be a reference to a United States magistrate duly appointed under section 631 of chapter 43, title 28, United States Code, as amended by this Act. '(c) The administrative powers and duties of the Director of the Administrative Office of the United States Courts with respect to United States commissioners under the provisions of chapter 41, title 28, United States Code, as such provisions existed on the day preceding the date of enactment of this Act (Oct. 17, 1968), shall continue in effect until no United States commissioner remains in service.' SPECIAL COMMISSIONER FOR GRAND CANYON NATIONAL PARK; APPOINTMENT; JURISDICTION; COMPENSATION Pub. L. 86-258, Sept. 14, 1959, 73 Stat. 546, required the United States District Court for the District of Arizona to appoint a special commissioner for the Grand Canyon National Park, Arizona, and provided for the term, jurisdiction, and salary of the commissioner. JURISDICTIONAL LIMITATION OF COMMISSIONER HOLDING OFFICE ON JULY 9, 1952 Section 2 of act July 9, 1952, provided that the jurisdiction of the United States commissioner for the Great Smoky Mountains National Park on July 9, 1952 would be limited to the portion of the park situated in North Carolina. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 372, 377, 604, 636, 751 of this title; title 5 section 8331. ------DocID 36446 Document 308 of 1452------ -CITE- 28 USC Sec. 632 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 632. Character of service -STATUTE- (a) Full-time United States magistrates may not engage in the practice of law, and may not engage in any other business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers. (b) Part-time United States magistrates shall render such service as judicial officers as is required by law. While so serving they may engage in the practice of law, but may not serve as counsel in any criminal action in any court of the United States, nor act in any capacity that is, under such regulations as the conference may establish, inconsistent with the proper discharge of their office. Within such restrictions, they may engage in any other business, occupation, or employment which is not inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 916; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1110.) -MISC1- AMENDMENTS 1968 - Pub. L. 90-578 substituted provisions as to character of service of full-time and part-time United States magistrates for former provisions prescribing jurisdiction and powers of national park commissioners and practice and procedure before such officers. See section 636 of this title. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. ------DocID 36447 Document 309 of 1452------ -CITE- 28 USC Sec. 633 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 633. Determination of number, locations, and salaries of magistrates -STATUTE- (a) Surveys by the Director. - (1) The Director shall, within one year immediately following the date of the enactment of the Federal Magistrates Act, make a careful survey of conditions in judicial districts to determine (A) the number of appointments of full-time magistrates and part-time magistrates required to be made under this chapter to provide for the expeditious and effective administration of justice, (B) the locations at which such officers shall serve, and (C) their respective salaries under section 634 of this title. Thereafter, the Director shall, from time to time, make such surveys, general or local, as the conference shall deem expedient. (2) In the course of any survey, the Director shall take into account local conditions in each judicial district, including the areas and the populations to be served, the transportation and communications facilities available, the amount and distribution of business of the type expected to arise before officers appointed under this chapter (including such matters as may be assigned under section 636(b) of this chapter), and any other material factors. The Director shall give consideration to suggestions from any interested parties, including district judges, United States commissioners or officers appointed under this chapter, United States attorneys, bar associations, and other parties having relevant experience or information. (3) The surveys shall be made with a view toward creating and maintaining a system of full-time United States magistrates. However, should the Director find, as a result of any such surveys, areas in which the employment of a full-time magistrate would not be feasible or desirable, he shall recommend the appointment of part-time United States magistrates in such numbers and at such locations as may be required to permit prompt and efficient issuance of process and to permit individuals charged with criminal offenses against the United States to be brought before a judicial officer of the United States promptly after arrest. (b) Determination by the Conference. - Upon the completion of the initial surveys required by subsection (a) of this section, the Director shall report to the district courts, the councils, and the conference his recommendations concerning the number of full-time magistrates and part-time magistrates, their respective locations, and the amount of their respective salaries under section 634 of this title. The district courts shall advise their respective councils, stating their recommendations and the reasons therefor; the councils shall advise the conference, stating their recommendations and the reasons therefor, and shall also report to the conference the recommendations of the district courts. The conference shall determine, in the light of the recommendations of the Director, the district courts, and the councils, the number of full-time United States magistrates and part-time United States magistrates, the locations at which they shall serve, and their respective salaries. Such determinations shall take effect in each judicial district at such time as the district court for such judicial district shall determine, but in no event later than one year after they are promulgated. (c) Changes in Number, Locations, and Salaries. - Except as otherwise provided in this chapter, the conference may, from time to time, in the light of the recommendations of the Director, the district courts, and the councils, change the number, locations, and salaries of full-time and part-time magistrates, as the expeditious administration of justice may require. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 916; Aug. 13, 1954, ch. 728, Sec. 1(a), (b), 68 Stat. 704; Sept. 2, 1957, Pub. L. 85-276, Sec. 1, 2, 71 Stat. 600; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1111; Oct. 10, 1979, Pub. L. 96-82, Sec. 4, 93 Stat. 645; Nov. 14, 1986, Pub. L. 99-651, title II, Sec. 202(d), 100 Stat. 3648.) -REFTEXT- REFERENCES IN TEXT Date of the enactment of the Federal Magistrates Act, referred to in subsec. (a)(1), means Oct. 17, 1968, the date of enactment of Pub. L. 90-578. -MISC2- AMENDMENTS 1986 - Subsec. (b). Pub. L. 99-651 substituted 'section 634' for 'section 643'. 1979 - Subsec. (c). Pub. L. 96-82 struck out provision that determinations of the conference changing the number, locations, and salaries of full-time and part-time magistrates take effect sixty days after they are promulgated. 1968 - Pub. L. 90-578 substituted provisions for determination of number, locations, and salaries of magistrates, comprising subsecs. (a) to (c) of this section, relating to: surveys by the Director; determination by the conference; and changes in number, locations, and salaries', respectively, for prior provisions for fees and expenses of United States commissioners, prescribing in undesignated introductory provisions a $10,500 limitation for any one calendar year for certain enumerated services rendered, and in former subsec. (c) for actual and necessary office expenses, including compensation of a necessary clerical assistant, of United States commissioners performing full time duty in office and not engaged in practice of law, now covered in sections 634 and 635 of this title. 1957 - Subsec. (a). Pub. L. 85-276, Sec. 1, placed in subsec. (a) provisions of former subsec. (b) relating to limitation of compensation of commissioners and, among other charges, increased fees and compensation of commissioners. Subsec. (b). Pub. L. 85-276, Sec. 2, repealed subsec. (b) which limited compensation of commissioners. 1954 - Act Aug. 13, 1954, inserted 'and expenses' after 'Fees' in section catchline. Subsec. (c). Act Aug. 13, 1954, added subsec. (c). -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as a note under section 155 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 634 of this title. ------DocID 36448 Document 310 of 1452------ -CITE- 28 USC Sec. 634 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 634. Compensation -STATUTE- (a) Officers appointed under this chapter shall receive, as full compensation for their services, salaries to be fixed by the conference pursuant to section 633, at rates for full-time United States magistrates up to an annual rate equal to 92 percent of the salary of a judge of the district court of the United States, as determined pursuant to section 135, and at rates for part-time magistrates of not less than an annual salary of $100, nor more than one-half the maximum salary payable to a full-time magistrate. In fixing the amount of salary to be paid to any officer appointed under this chapter, consideration shall be given to the average number and the nature of matters that have arisen during the immediately preceding period of five years, and that may be expected thereafter to arise, over which such officer would have jurisdiction and to such other factors as may be material. Disbursement of salaries shall be made by or pursuant to the order of the Director. (b) Except as provided by section 8344, title 5, relating to reductions of the salaries of reemployed annuitants under subchapter III of chapter 83 of such title and unless the office has been terminated as provided in this chapter, the salary of a full-time United States magistrate shall not be reduced, during the term in which he is serving, below the salary fixed for him at the beginning of that term. (c) All United States magistrates, effective upon their taking the oath or affirmation of office, and all necessary legal, clerical, and secretarial assistants employed in the offices of full-time United States magistrates shall be deemed to be officers and employees in the judicial branch of the United States Government within the meaning of subchapter III (relating to civil service retirement) of chapter 83, chapter 87 (relating to Federal employees' group life insurance), and chapter 89 (relating to Federal employees' health benefits program) of title 5. Part-time magistrates shall not be excluded from coverage under these chapters solely for lack of a prearranged regular tour of duty. A legal assistant appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1112; Sept. 21, 1972, Pub. L. 92-428, 86 Stat. 721; Oct. 17, 1976, Pub. L. 94-520, Sec. 1, 90 Stat. 2458; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 232, 92 Stat. 2665; Oct. 10, 1979, Pub. L. 96-82, Sec. 8(b), 93 Stat. 647; July 10, 1984, Pub. L. 98-353, title I, Sec. 108(a), title II, Sec. 210, 98 Stat. 342, 351; Dec. 22, 1987, Pub. L. 100-202, Sec. 101(a) (title IV, Sec. 408(b)), 101 Stat. 1329, 1329-27; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1003(a)(4), 102 Stat. 4665.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 29, 72, 74, 80h, 103, 104, 117h, 117j, 132, 132a, 133, 175, 176, 198h, 198j, 204h, 204j, 256f, 256h, 379, 380, 395h, 395j, 403c-9, 403c-11, 403h-7, 403h-9, 404c-7, 404c-9, 408o, and 408q of title 16, U.S.C., 1940 ed., Conservation (May 7, 1894, ch. 72, Sec. 7, 28 Stat. 75; Apr. 17, 1900, ch. 192, Sec. 1, 31 Stat. 133; Apr. 20, 1904, ch. 1400, Sec. 9, 11, 33 Stat. 189; Mar. 2, 1907, ch. 2516, Sec. 2, 34 Stat. 1218; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Aug. 22, 1914, ch. 264, Sec. 9, 11, 38 Stat. 701; June 30, 1916, ch. 197, Sec. 9, 11, 39 Stat. 246; Aug. 21, 1916, ch. 368, Sec. 9, 11, 39 Stat. 523, 524; June 2, 1920, ch. 218, Sec. 11, 13, 41 Stat. 734; Mar. 4, 1923, ch. 295, 42 Stat. 1560; Apr. 25, 1928, ch. 434, Sec. 9, 11, 45 Stat. 461; Apr. 26, 1928, ch. 438, Sec. 9, 11, 45 Stat. 465; Mar. 2, 1929, ch. 583, Sec. 9, 11, 45 Stat. 1539; Apr. 19, 1930, ch. 200, Sec. 9, 11, 46 Stat. 229; June 25, 1935, ch. 309, Sec. 2, 3, 49 Stat. 422; Aug. 19, 1937, ch. 703, Sec. 9, 11, 50 Stat. 702, 703; June 25, 1938, ch. 684, Sec. 2, 52 Stat. 1164; June 28, 1938, ch. 778, Sec. 1, 52 Stat. 1213; Mar. 4, 1940, ch. 40, Sec. 2, 54 Stat. 43; Mar. 6, 1942, ch. 150, Sec. 7, 9, 56 Stat. 135; Mar. 6, 1942, ch. 151, Sec. 7, 9, 56 Stat. 137; Apr. 29, 1942, ch. 264, Sec. 7, 9, 56 Stat. 260, 261; June 5, 1942, ch. 341, Sec. 7, 9, 56 Stat. 319; Apr. 23, 1946, ch. 202, Sec. 4, 60 Stat. 120; June 24, 1946, ch. 463, Sec. 5, 60 Stat. 303). Section consolidates provisions of sections 29, 72, 74, 80h, 103, 104, 117h, 117j, 132, 132a, 133, 175, 176, 198h, 198j, 204h, 204j, 256f, 256h, 379, 380, 395h, 395j, 403c-9, 403c-11, 403h-7, 403h-9, 404c-7, 404c-9, 408o and 408q of title 16, Conservation, relating to salary and fees of park commissioners with changes in arrangement and phraseology necessary to effect consolidation. The provisions of some of these sections that the park commissioner should be 'paid an annual salary, as appropriated for by Congress, payable quarterly' were rewritten upon advice of the Judicial Conference Committee on the Revision of the Judicial Code appointed by the Chief Justice of the United States, in order to place administration supervision of commissioners upon the district court and the Judicial Conference of the United States. The provisions of some of these sections for deposit of fees, costs, expenses, fines, and penalties with the clerk of district court were rewritten to provide merely that he shall account for the same as public moneys. The provisions of some of these sections with reference to salaries of the United States attorney and his assistants and the United States marshal and his deputies were omitted as covered by sections 508 (now 548) and 552 (see Prior Provisions note for that section) of this title. SENATE REVISION AMENDMENT As finally enacted, section 158d of title 16, U.S.C., which was derived from act May 15, 1947, ch. 55, Sec. 4, 61 Stat. 91, 92, was an additional source of this section and was accordingly included by Senate amendment in the schedule of repeals. See 80th Congress Senate Report No. 1559. AMENDMENTS 1988 - Subsec. (c). Pub. L. 100-702 inserted at end 'A legal assistant appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court.' 1987 - Subsec. (a). Pub. L. 100-202 amended first sentence generally. Prior to amendment, first sentence read as follows: 'Officers appointed under this chapter shall receive as full compensation for their services salaries to be fixed by the conference pursuant to section 633 of this title, at rates for full-time and part-time United States magistrates not to exceed rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361) as adjusted by section 461 of this title except that the salary of a part-time United States magistrate shall not be less than $100 nor more than one-half the maximum salary payable to a full-time magistrate.' 1984 - Subsec. (a). Pub. L. 98-353, Sec. 108(a), substituted 'rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361) as adjusted by section 461 of this title' for 'the rates now or hereafter provided for full-time and part-time referees in bankruptcy, respectively, referred to in section 40a of the Bankruptcy Act (11 U.S.C. 68(a)), as amended,'. Subsec. (c). Pub. L. 98-353, Sec. 210, substituted 'subchapter III' for 'subsection III'. 1979 - Subsec. (c). Pub. L. 96-82 inserted reference to legal assistants. 1978 - Subsec. (a). Pub. L. 95-598 directed the amendment of subsec. (a) by substituting 'not to exceed $48,500 per annum, subject to adjustment in accordance with section 225 of the Federal Salary Act of 1967 and section 461 of this title,' for 'for full-time and part-time United States magistrates not to exceed the rates now or hereafter provided for full-time and part-time referees in bankruptcy, respectively, referred to in section 40a of the Bankruptcy Act (11 U.S.C. 68(a)), as amended,', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1976 - Subsec. (a). Pub. L. 94-520 substituted provision fixing the maximum annual salary of a part-time magistrate appointed under this chapter at one-half the maximum salary payable to a full-time magistrate for a former provision that fixed such annual salaries at $15,000 per year and provided that the salary of a full-time magistrate was not to exceed 75% of the annual salary of a United States District Court judge. 1972 - Subsec. (a). Pub. L. 92-428 substituted limits of compensation for full-time and part-time United States magistrates at rates not exceeding those of full-time and part-time referees in bankruptcy, with exceptions that the salary of a part-time United States magistrate shall not be less than $100 nor more than $15,000 per annum and that the salary of a full-time United States magistrate shall not exceed 75 per cent of the salary of a judge of a district court of the United States, for provisions fixing maximum limits for full-time and part-time United States magistrates at $22,500 and $11,000, respectively, and minimum limit for part-time United States magistrates at $100 per annum. 1968 - Pub. L. 90-578 substituted provisions for compensation of United States magistrates, comprising subsecs. (a) to (c) of this section and relating to: limitation on amount of compensation and consideration of certain factors for its determination; reduction of salaries of full-time magistrates; and consideration as judicial branch officers and employees of United States magistrates and necessary clerical and secretarial assistants, for prior provisions for salaries of park commissioners and disposition of fees, fines, and costs collected as public moneys. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-202 effective Oct. 1, 1988, and any salary affected by the amendment to be adjusted at beginning of first applicable pay period commencing on or after such date, see section 101(a) (title IV, Sec. 408(d)) of Pub. L. 100-202, set out as a note under section 153 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 108(a) of Pub. L. 98-353 effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. SALARY INCREASES 1987 - Maximum salaries of U.S. magistrates (full-time) and U.S. magistrates (part-time) increased respectively to $72,500 and $36,200 per annum, on recommendation of the President of the United States, see note set out under section 358 of Title 2, The Congress. CONTINUATION OF MAXIMUM RATES OF SALARY OF FULL-TIME AND PART-TIME UNITED STATES MAGISTRATES IN EFFECT ON JUNE 27, 1984 Section 108(b) of Pub. L. 98-353 provided that: 'The maximum rates for salary of full-time and part-time United States magistrates (now United States magistrate judges) in effect on June 27, 1984, shall remain in effect until changed as a result of a determination made under section 634(a) of title 28, United States Code, as amended by this Act.' (Section 108(b) of Pub. L. 98-353 effective June 27, 1984, see section 122(c) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 633 of this title. ------DocID 36449 Document 311 of 1452------ -CITE- 28 USC Sec. 635 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 635. Expenses -STATUTE- (a) Full-time United States magistrates serving under this chapter shall be allowed their actual and necessary expenses incurred in the performance of their duties, including the compensation of such legal assistants as the Judicial Conference, on the basis of the recommendations of the judicial councils of the circuits, considers necessary, and the compensation of necessary clerical and secretarial assistance. Such expenses and compensation shall be determined and paid by the Director under such regulations as the Director shall prescribe with the approval of the conference. The Administrator of General Services shall provide such magistrates with necessary courtrooms, office space, furniture and facilities within United States courthouses or office buildings owned or occupied by departments or agencies of the United States, or should suitable courtroom and office space not be available within any such courthouse or office building, the Administrator of General Services, at the request of the Director, shall procure and pay for suitable courtroom and office space, furniture and facilities for such magistrate in another building, but only if such request has been approved as necessary by the judicial council of the appropriate circuit. (b) Under such regulations as the Director shall prescribe with the approval of the conference, the Director shall reimburse part-time magistrates for actual expenses necessarily incurred by them in the performance of their duties under this chapter. Such reimbursement may be made, at rates not exceeding those prescribed by such regulations, for expenses incurred by such part-time magistrates for clerical and secretarial assistance, stationery, telephone and other communications services, travel, and such other expenses as may be determined to be necessary for the proper performance of the duties of such officers: Provided, however, That no reimbursement shall be made for all or any portion of the expense incurred by such part-time magistrates for the procurement of office space. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1112; Oct. 10, 1979, Pub. L. 96-82, Sec. 8(a), 93 Stat. 646.) -MISC1- HISTORICAL AND REVISION NOTES Prior section 663. - Based on title 28, U.S.C., 1940 ed., Sec. 597, 597a, 597b, 597c (May 28, 1896, ch. 252, Sec. 21, 24, 29 Stat. 184, 186; Aug. 1, 1946, ch. 721, Sec. 1-4, 60 Stat. 752, 753). The provision of section 597c of title 28, U.S.C., 1940 ed., excepting commissioners in the Territory of Alaska was omitted as unnecessary since this exception is implicit in the revised section. The words 'in each judicial district' limit the section to the commissioners in the districts enumerated in chapter 5 which includes Hawaii, Puerto Rico, and District of Columbia but omits Alaska, Canal Zone, (Guam) and Virgin Islands. Salaries of park commissioners are provided by section 634 of this title. Changes were made in phraseology. AMENDMENTS 1979 - Subsec. (a). Pub. L. 96-82 inserted reference to the compensation of such legal assistants as the Judicial Conference, on the basis of the recommendations of the judicial councils of the circuits, considers necessary. 1968 - Pub. L. 90-578 substituted provisions relating to expenses for provisions prescribing residence for park commissioners. See section 631(b)(3) of this title. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 636 of this title. ------DocID 36450 Document 312 of 1452------ -CITE- 28 USC Sec. 636 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 636. Jurisdiction, powers, and temporary assignment -STATUTE- (a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment - (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts; (2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions; (3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section, (FOOTNOTE 1) and (FOOTNOTE 1) So in original. The comma probably should be a semicolon. (4) the power to enter a sentence for a misdemeanor or infraction with the consent of the parties. (b)(1) Notwithstanding any provision of law to the contrary - (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial (FOOTNOTE 2) relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (FOOTNOTE 2) So in original. Probably should be 'post-trial'. (C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. (3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. (4) Each district court shall establish rules pursuant to which the magistrates shall discharge their duties. (c) Notwithstanding any provision of law to the contrary - (1) Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other part-time magistrate may exercise such jurisdiction, if such magistrate meets the bar membership requirements set forth in section 631(b)(1) and the chief judge of the district court certifies that a full-time magistrate is not reasonably available in accordance with guidelines established by the judicial council of the circuit. When there is more than one judge of a district court, designation under this paragraph shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. (2) If a magistrate is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate to exercise such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, either the district court judge or the magistrate may again advise the parties of the availability of the magistrate, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent. (3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court. In this circumstance, the consent of the parties allows a magistrate designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be construed as a limitation of any party's right to seek review by the Supreme Court of the United States. (4) Notwithstanding the provisions of paragraph (3) of this subsection, at the time of reference to a magistrate, the parties may further consent to appeal on the record to a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals. Wherever possible the local rules of the district court and the rules promulgated by the conference shall endeavor to make such appeal inexpensive. The district court may affirm, reverse, modify, or remand the magistrate's judgment. (5) Cases in the district courts under paragraph (4) of this subsection may be reviewed by the appropriate United States court of appeals upon petition for leave to appeal by a party stating specific objections to the judgment. Nothing in this paragraph shall be construed to be a limitation on any party's right to seek review by the Supreme Court of the United States. (6) The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate under this subsection. (7) The magistrate shall, subject to guidelines of the Judicial Conference, determine whether the record taken pursuant to this section shall be taken by electronic sound recording, by a court reporter, or by other means. (d) The practice and procedure for the trial of cases before officers serving under this chapter, and for the taking and hearing of appeals to the district courts, shall conform to rules promulgated by the Supreme Court pursuant to section 2072 of this title. (e) In a proceeding before a magistrate, any of the following acts or conduct shall constitute a contempt of the district court for the district wherein the magistrate is sitting: (1) disobedience or resistance to any lawful order, process, or writ; (2) misbehavior at a hearing or other proceeding, or so near the place thereof as to obstruct the same; (3) failure to produce, after having been ordered to do so, any pertinent document; (4) refusal to appear after having been subpenaed or, upon appearing, refusal to take the oath or affirmation as a witness, or, having taken the oath or affirmation, refusal to be examined according to law; or (5) any other act or conduct which if committed before a judge of the district court would constitute contempt of such court. Upon the commission of any such act or conduct, the magistrate shall forthwith certify the facts to a judge of the district court and may serve or cause to be served upon any person whose behavior is brought into question under this section an order requiring such person to appear before a judge of that court upon a day certain to show cause why he should not be adjudged in contempt by reason of the facts so certified. A judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a judge of the court, or commit such person upon the conditions applicable in the case of defiance of the process of the district court or misconduct in the presence of a judge of that court. (f) In an emergency and upon the concurrence of the chief judges of the districts involved, a United States magistrate may be temporarily assigned to perform any of the duties specified in subsection (a) or (b) of this section in a judicial district other than the judicial district for which he has been appointed. No magistrate shall perform any of such duties in a district to which he has been temporarily assigned until an order has been issued by the chief judge of such district specifying (1) the emergency by reason of which he has been transferred, (2) the duration of his assignment, and (3) the duties which he is authorized to perform. A magistrate so assigned shall not be entitled to additional compensation but shall be reimbursed for actual and necessary expenses incurred in the performance of his duties in accordance with section 635. (g) A United States magistrate may perform the verification function required by section 4107 of title 18, United States Code. A magistrate may be assigned by a judge of any United States district court to perform the verification required by section 4108 and the appointment of counsel authorized by section 4109 of title 18, United States Code, and may perform such functions beyond the territorial limits of the United States. A magistrate assigned such functions shall have no authority to perform any other function within the territory of a foreign country. (h) A United States magistrate who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate in any judicial district by the judicial council of the circuit within which such district is located. Upon recall, a magistrate may receive a salary for such service in accordance with regulations promulgated by the Judicial Conference, subject to the restrictions on the payment of an annuity set forth in section 377 of this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such magistrate. The requirements set forth in subsections (a), (b)(3), and (d) of section 631, and paragraph (1) of subsection (b) of such section to the extent such paragraph requires membership of the bar of the location in which an individual is to serve as a magistrate, shall not apply to the recall of a retired magistrate under this subsection or section 375 of this title. Any other requirement set forth in section 631(b) shall apply to the recall of a retired magistrate under this subsection or section 375 of this title unless such retired magistrate met such requirement upon appointment or reappointment as a magistrate under section 631. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1113; Mar. 1, 1972, Pub. L. 92-239, Sec. 1, 2, 86 Stat. 47; Oct. 21, 1976, Pub. L. 94-577, Sec. 1, 90 Stat. 2729; Oct. 28, 1977, Pub. L. 95-144, Sec. 2, 91 Stat. 1220; Oct. 10, 1979, Pub. L. 96-82, Sec. 2, 93 Stat. 643; Oct. 12, 1984, Pub. L. 98-473, title II, Sec. 208, 98 Stat. 1986; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 402(29)(B), 98 Stat. 3359; Nov. 14, 1986, Pub. L. 99-651, title II, Sec. 201(a)(2), 100 Stat. 3647; Nov. 15, 1988, Pub. L. 100-659, Sec. 4(c), 102 Stat. 3918; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7322, 102 Stat. 4467; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 404(b)(1), title X, Sec. 1014, 102 Stat. 4651, 4669; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 308(a), 104 Stat. 5112.) -MISC1- HISTORICAL AND REVISION NOTES Prior jurisdiction, powers, and procedure provisions in section 632. - Based on sections 27, 66, 67, 68, 80f, 100, 117e, 129, 172, 181b, 204e, 256d, 376, 395e, 403c-5, 403c-6, 403h-5, 404c-5, and 408m of title 16, U.S.C., 1940 ed., Conservation (May 7, 1894, ch. 72, Sec. 5, 28 Stat. 74; Apr. 20, 1904, ch. 1400, Sec. 6, 33 Stat. 188; Mar. 2, 1907, ch. 2516, Sec. 1, 2, 34 Stat. 1218; Mar. 3, 1911, ch. 230, 36 Stat. 1086; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Aug. 22, 1914, ch. 264, Sec. 6, 38 Stat. 700; June 30, 1916, ch. 197, Sec. 6, 39 Stat. 245; Aug. 21, 1916, ch. 368, Sec. 6, 39 Stat. 523; June 2, 1920, ch. 218, Sec. 7, 8, 41 Stat. 733; Apr. 25, 1928, ch. 434, Sec. 6, 45 Stat. 460; Apr. 26, 1928, ch. 438, Sec. 6, 45 Stat. 464; Apr. 19, 1930, ch. 200, Sec. 6, 4 Stat. 228; May 2, 1932, ch. 155, Sec. 3, 47 Stat. 145; June 25, 1935, ch. 309, Sec. 1, 49 Stat. 422; Aug. 19, 1937, ch. 703, Sec. 5, 6, 50 Stat. 702; June 25, 1938, ch. 684, Sec. 1, 52 Stat. 1164; June 28, 1938, ch. 778, Sec. 1, 52 Stat. 1213; Mar. 4, 1940, ch. 40, Sec. 2, 54 Stat. 43; Mar. 6, 1942, ch. 150, Sec. 5, 56 Stat. 134; Mar. 6, 1942, ch. 151, Sec. 5, 56 Stat. 137; Apr. 29, 1942, ch. 264, Sec. 5, 56 Stat. 260; June 5, 1942, ch. 341, Sec. 5, 56 Stat. 318; Apr. 23, 1946, ch. 202, Sec. 2, 60 Stat. 120; June 24, 1946, ch. 463, Sec. 2, 60 Stat. 303). Section consolidates provisions of sections 27, 66, 67, 68, 80f, 100, 117e, 129, 172, 181b, 204e, 256d, 376, 395e, 403c-5, 403c-6, 403h-5, 404c-5 and 408m of title 16, U.S.C., 1940 ed., relating to jurisdiction and powers of park commissioners with necessary changes in arrangement and phraseology. For other provisions of such sections, see Distribution Table. The provisions of sections 27, 66, 67, 68, 100, 117e, 129, 172, 181b, 204e, 256d, 376, 395e, 403c-5, 403c-6, 403h-5, 404c-5 and 408m of title 16, U.S.C., 1940 ed., relating to the powers of park commissioners respecting issuance of warrants of arrest and other process were omitted and are recommended for repeal as covered by sections 3041 and 3141 of revised title 18 (H.R. 1600, 80th Cong.), and Rules, 4, 5(c), and 9 of the new Federal Rules of Criminal Procedure. Provisions in sections 27, 66, 67, 68, 100, 117e, 129, 172, 181b, 204e, 256d, 376, 395e, 403c-5, 403c-6, 403h-5, 404c-5 and 408m of title 16, U.S.C., 1940 ed., for arrest without warrant for violation of law or regulation within a national park were also omitted and are recommended for repeal as covered by section 3054 of revised title 18 (H.R. 2200, 79th Cong.), Rule 4 of the Federal Rules of Criminal Procedure and Rule 4 of the Federal Rules of Civil Procedure. SENATE REVISION AMENDMENT As finally enacted, section 158b of Title 16, U.S.C., which was derived from act May 15, 1947, ch. 55, Sec. 2, 61 Stat. 92, was an additional source of this section, and such act was accordingly included by Senate amendment in the schedule of repeals. No change in the text of the section was necessary as the result of inclusion of such section 158b. See 80th Congress Senate Report No. 1559. As finally enacted, act May 15, 1947, ch. 57, 61 Stat. 92, which amended section 403c-5 of Title 16, U.S.C., was an additional source of this section, and such act was accordingly included by Senate amendment in the schedule of repeals. See 80th Congress Senate Report No. 1559. Prior oaths, acknowledgments, affidavits, and depositions provisions in section 637. - Based on title 28, U.S.C., 1940 ed., Sec. 525, 758 (R.S. Sec. 945; May 28, 1896, ch. 252, Sec. 19, 29 Stat. 184; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). This section consolidates part of section 525 with section 758 of title 28, U.S.C., 1940 ed. The provision of said section 525 empowering clerks and deputy clerks to administer oaths is incorporated in section 953 of this title. The provision of said section 758 that acknowledgments of bail and affidavits should have the same effect as if taken before judges was omitted as surplusage. The exception as to Alaska, provided in section 591 of title 28, U.S.C., 1940 ed., and referred to in section 525 of title 28, U.S.C., 1940 ed., was omitted as unnecessary since section 108 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and section 1119 of the Compiled Laws of Alaska, 1933, give commissioners all powers of notaries public. See also reviser's notes to sections 631 and 633 of this title. Word 'acknowledgments' was inserted to make it clear that commissioners, like justices of the peace, can take acknowledgments as well as oaths, affidavits, etc. The authority to take depositions was included to conform to Federal Rules of Civil Procedure, Rule 28. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Rules of Criminal Procedure for the United States District Courts, referred to in subsec. (a)(1), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. The Federal Rules of Civil Procedure for the United States district courts, referred to in subsecs. (b)(2) and (c)(3), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1990 - Subsec. (c)(2). Pub. L. 101-650 substituted 'the availability of a magistrate to exercise' for 'their right to consent to the exercise of' in first sentence and amended third sentence generally. Prior to amendment, third sentence read as follows: 'Thereafter, neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate.' 1988 - Subsec. (a)(4). Pub. L. 100-690 added par. (4). Subsec. (c)(7). Pub. L. 100-702, Sec. 1014, amended par. (7) generally. Prior to amendment, par. (7) read as follows: 'The magistrate shall determine, taking into account the complexity of the particular matter referred to the magistrate, whether the record in the proceeding shall be taken, pursuant to section 753 of this title, by electronic sound recording means, by a court reporter appointed or employed by the court to take a verbatim record by shorthand or by mechanical means, or by an employee of the court designated by the court to take such a verbatim record. Notwithstanding the magistrate's determination, (A) the proceeding shall be taken down by a court reporter if any party so requests, (B) the proceeding shall be recorded by a means other than a court reporter if all parties so agree, and (C) no record of the proceeding shall be made if all parties so agree. Reporters referred to in this paragraph may be transferred for temporary service in any district court of the judicial circuit for reporting proceedings under this subsection, or for other reporting duties in such court.' Subsec. (d). Pub. L. 100-702, Sec. 404(b)(1), substituted 'section 2072 of this title' for 'section 3402 of title 18, United States Code'. Subsec. (h). Pub. L. 100-659 inserted 'section 377 of this title or in' after 'annuity set forth in' and 'which are applicable to such magistrate' after 'title 5' in second sentence. 1986 - Subsec. (h). Pub. L. 99-651 added subsec. (h). 1984 - Subsec. (a)(2). Pub. L. 98-473 substituted 'issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial' for 'impose conditions of release under section 3146 of title 18'. Subsec. (c)(4). Pub. L. 98-620 struck out 'expeditious and' before 'inexpensive'. 1979 - Subsec. (c). Pub. L. 96-82, Sec. 2(2), added subsec. (c). Former subsec. (c) redesignated (d). Subsecs. (d) to (g). Pub. L. 96-82, Sec. 2(1), redesignated former subsecs. (c) to (f) as (d) to (g), respectively. 1977 - Subsec. (f). Pub. L. 95-144 added subsec. (f). 1976 - Subsec. (b). Pub. L. 94-577 completely revised provisions under which additional duties may be assigned to a United States Magistrate by allowing, among other additional duties, the assignment of pretrial matters, dispositive motions, and service as a special master. 1972 - Pub. L. 92-239, Sec. 2, substituted 'Jurisdiction, powers, and temporary assignment' for 'Jurisdiction and powers' in section catchline. Subsec. (e). Pub. L. 92-239, Sec. 1, added subsec. (e). 1968 - Pub. L. 90-578 substituted provisions declaratory of jurisdiction and powers of United States magistrates for prior provisions respecting rendition of accounts by United States commissioners. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by section 404(b)(1) of Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. Amendment by Pub. L. 100-659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrates (now United States magistrate judges) who retire on or after Nov. 15, 1988, with exception for judges and magistrates retiring on or after July 31, 1987, see section 9 of Pub. L. 100-659, set out as an Effective Date note under section 377 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as a note under section 155 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 375, 377, 631, 633 of this title; title 7 section 2149; title 19 section 1915; title 46 sections 4311, 12309. ------DocID 36451 Document 313 of 1452------ -CITE- 28 USC Sec. 637 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 637. Training -STATUTE- The Federal Judicial Center shall conduct periodic training programs and seminars for both full-time and part-time United States magistrates, including an introductory training program for new magistrates, to be held within one year after initial appointment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1114.) -MISC1- AMENDMENTS 1968 - Pub. L. 90-578 substituted provisions for periodic training programs and seminars for United States magistrates for prior authorization of United States commissioners to administer oaths and take bail, acknowledgements, affidavits, and depositions, now incorporated in section 636(a)(2) of this title. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. ------DocID 36452 Document 314 of 1452------ -CITE- 28 USC Sec. 638 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 638. Dockets and forms; United States Code; seals -STATUTE- (a) The Director shall furnish to United States magistrates adequate docket books and forms prescribed by the Director. The Director shall also furnish to each such officer a copy of the current edition of the United States Code. (b) All property furnished to any such officer shall remain the property of the United States and, upon the termination of his term of office, shall be transmitted to his successor in office or otherwise disposed of as the Director orders. (c) The Director shall furnish to each United States magistrate appointed under this chapter an official impression seal in a form prescribed by the conference. Each such officer shall affix his seal to every jurat or certificate of his official acts without fee. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1114.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 528, 528a (June 28, 1906, ch. 3573, 34 Stat. 546; July 10, 1946, ch. 548, 60 Stat. 525). Section consolidates section 528 and part of section 528a of title 28, U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation. Provisions of section 528a of title 28, U.S.C., 1940 ed., relating to dockets and forms, are incorporated in section 639 of this title. Words 'Director of the Administrative Office of the United States Courts' were substituted for 'Attorney General', contained in section 528 of title 28, U.S.C., 1940 ed., in view of Act Aug. 7, 1939, ch. 501, Sec. 6, 53 Stat. 1226, 28 U.S.C., 1940 ed., following Sec. 446, giving the Directors supervision of court administrative matters. Changes in phraseology were made. AMENDMENTS 1968 - Subsec. (a). Pub. L. 90-578 incorporated in provisions designated as subsec. (a) provisions of first par. of former section 639 of this title, substituting 'United States magistrates' for prior designation as 'United States Commissioners', specifying that the copy of the United States Code be a current edition, and dispensing with approval by the chief judge of the district court for a copy of such Code. Subsec. (b). Pub. L. 90-578 incorporated in provisions designated as subsec. (b) provisions of the second par. of former section 639 of this title. Subsec. (c). Pub. L. 90-578 designated existing provisions as subsec. (c), and substituted 'United States magistrate' for 'United States commissioner', provision for appointment under this chapter rather than after July 10, 1946, provision that the form of the seal be prescribed by the conference rather than the Director, and 'without fee' for 'without additional fee'. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. ------DocID 36453 Document 315 of 1452------ -CITE- 28 USC Sec. 639 -EXPCITE- TITLE 28 PART III CHAPTER 43 -HEAD- Sec. 639. Definitions -STATUTE- As used in this chapter - (1) 'Conference' shall mean the Judicial Conference of the United States; (2) 'Council' shall mean the Judicial Council of the Circuit; (3) 'Director' shall mean the Director of the Administrative Office of the United States Courts; (4) 'Full-time magistrate' shall mean a full-time United States magistrate; (5) 'Part-time magistrate' shall mean a part-time United States magistrate; and (6) 'United States magistrate' and 'magistrate' shall mean both full-time and part-time United States magistrates. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 917; Oct. 17, 1968, Pub. L. 90-578, title I, Sec. 101, 82 Stat. 1114.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 528a (July 10, 1946, ch. 548, 60 Stat. 525). Provisions of section 528a of title 28, U.S.C., 1940 ed., for furnishing seal is included in section 638 of this title. Changes were made in phraseology. AMENDMENTS 1968 - Pub. L. 90-578 substituted definition provisions for prior requirements obligating the Director to furnish docket books and forms to United States commissioners and, with approval of the chief judge of the district court, a copy of the United States Code, declaring such property to remain United States property, and calling for transmission of such property to successors in office or for its disposal as directed by the Director, now incorporated in section 638(a) and (b) of this title. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when a later effective date is applicable, which is the earlier of date when implementation of amendment by appointment of magistrates (now United States magistrate judges) and assumption of office takes place or third anniversary of enactment of Pub. L. 90-578 on Oct. 17, 1968, see section 403 of Pub. L. 90-578, set out as a note under section 631 of this title. ------DocID 36454 Document 316 of 1452------ -CITE- 28 USC CHAPTER 44 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- CHAPTER 44 - ARBITRATION -MISC1- Sec. 651. Authorization of arbitration. 652. Jurisdiction. 653. Powers of arbitrator; arbitration hearing. 654. Arbitration award and judgment. 655. Trial de novo. 656. Certification of arbitrators. 657. Compensation of arbitrators. 658. District courts that may authorize arbitration. REPEAL OF CHAPTER Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this chapter is repealed. See Effective Date of Repeal note set out under section 651 of this title. ------DocID 36455 Document 317 of 1452------ -CITE- 28 USC Sec. 651 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 651. Authorization of arbitration -STATUTE- (a) Authority of Certain District Courts. - Each United States district court described in section 658 may authorize by local rule the use of arbitration in any civil action, including an adversary proceeding in bankruptcy. A district court described in section 658(1) may refer any such action to arbitration as set forth in section 652(a). A district court described in section 658(2) may refer only such actions to arbitration as are set forth in section 652(a)(1)(A). (b) Title 9 Not Affected. - This chapter shall not affect title 9. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4659.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note below. -MISC1- EFFECTIVE DATE Section 907 of title IX of Pub. L. 100-702 provided that: 'This title and the amendments made by this title (enacting this chapter and provisions set out as notes under sections 651 and 652 of this title) shall take effect 180 days after the date of enactment of this Act (Nov. 19, 1988).' EFFECTIVE DATE OF REPEAL Section 906 of Pub. L. 100-702 provided that: 'Effective 5 years after the date of the enactment of this Act (Nov. 19, 1988), chapter 44, as added by section 901 of this Act, and the item relating to that chapter in the table of chapters at the beginning of part III of such title, are repealed, except that the provisions of that chapter shall continue to apply through final disposition of all actions in which referral to arbitration was made before the date of repeal.' MODEL PROCEDURES Section 902 of title IX of Pub. L. 100-702 provided that: 'The Judicial Conference of the United States may develop model rules relating to procedures for arbitration under chapter 44, as added by section 901 of this Act. No model rule may supersede any provision of such chapter 44, this title (enacting this chapter and provisions set out as notes under sections 651 and 652 of this title), or any law of the United States.' REPORTS BY DIRECTOR OF ADMINISTRATIVE OFFICE OF UNITED STATES COURTS AND BY FEDERAL JUDICIAL CENTER Section 903 of Pub. L. 100-702 provided that: '(a) Annual Report by Director of Administrative Office of the United States Courts. - The Director of the Administrative Office of the United States Courts shall include in the annual report of the activities of the Administrative Office required under section 604(a)(3) (28 U.S.C. 604(a)(3)), statistical information about the implementation of chapter 44, as added by section 901 of this Act. '(b) Report by Federal Judicial Center. - Not later than 5 years after the date of enactment of this Act (Nov. 19, 1988), the Federal Judicial Center, in consultation with the Director of the Administrative Office of the United States Courts, shall submit to the Congress a report on the implementation of chapter 44, as added by section 901 of this Act, which shall include the following: '(1) A description of the arbitration programs authorized by such chapter, as conceived and as implemented in the judicial districts in which such programs are authorized. '(2) A determination of the level of satisfaction with the arbitration programs in those judicial districts by a sampling of court personnel, attorneys, and litigants whose cases have been referred to arbitration. '(3) A summary of those program features that can be identified as being related to program acceptance both within and across judicial districts. '(4) A description of the levels of satisfaction relative to the cost per hearing of each program. '(5) Recommendations to the Congress on whether to terminate or continue chapter 44, or, alternatively, to enact an arbitration provision in title 28, United States Code, authorizing arbitration in all Federal district courts.' EFFECT ON JUDICIAL RULEMAKING POWERS Section 904 of title IX of Pub. L. 100-702 provided that: 'Nothing in this title (enacting this chapter and provisions set out as notes under sections 651 and 652 of this title), or in chapter 44, as added by section 901 of this Act, is intended to abridge, modify, or enlarge the rule making powers of the Federal judiciary.' AUTHORIZATION OF APPROPRIATIONS Section 905 of Pub. L. 100-702 provided that: 'There are authorized to be appropriated for the fiscal year ending September 30, 1989, and for each of the succeeding 4 fiscal years, to the judicial branch such sums as may be necessary to carry out the purposes of chapter 44, as added by section 901 of this Act. Funds appropriated under this section shall be allocated by the Administrative Office of the United States Courts to Federal judicial districts and the Federal Judicial Center. The funds so appropriated are authorized to remain available until expended, except that such funds may not be expended for the arbitration of actions referred to arbitration after the date of repeal set forth in section 906 of this Act (set out as an Effective Date of Repeal note above).' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 652 of this title. ------DocID 36456 Document 318 of 1452------ -CITE- 28 USC Sec. 652 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 652. Jurisdiction -STATUTE- (a) Actions That May Be Referred to Arbitration. - (1) Notwithstanding any provision of law to the contrary and except as provided in subsections (b) and (c) of this section, and section 901(c) of the Judicial Improvements and Access to Justice Act, a district court that authorizes arbitration under section 651 may - (A) allow the referral to arbitration of any civil action (including any adversary proceeding in bankruptcy) pending before it if the parties consent to arbitration, and (B) require the referral to arbitration of any civil action pending before it if the relief sought consists only of money damages not in excess of $100,000 or such lesser amount as the district court may set, exclusive of interest and costs. (2) For purposes of paragraph (1)(B), a district court may presume damages are not in excess of $100,000 unless counsel certifies that damages exceed such amount. (b) Actions That May Not Be Referred Without Consent of Parties. - Referral to arbitration under subsection (a)(1)(B) may not be made - (1) of an action based on an alleged violation of a right secured by the Constitution of the United States, or (2) if jurisdiction is based in whole or in part on section 1343 of this title. (c) Exceptions From Arbitration. - Each district court shall establish by local rule procedures for exempting, sua sponte or on motion of a party, any case from arbitration in which the objectives of arbitration would not be realized - (1) because the case involves complex or novel legal issues, (2) because legal issues predominate over factual issues, or (3) for other good cause. (d) Safeguards in Consent Cases. - In any civil action in which arbitration by consent is allowed under subsection (a)(1)(A), the district court shall by local rule establish procedures to ensure that - (1) consent to arbitration is freely and knowingly obtained, and (2) no party or attorney is prejudiced for refusing to participate in arbitration. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4659.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -REFTEXT- REFERENCES IN TEXT Section 901(c) of the Judicial Improvements and Access to Justice Act, referred to in subsec. (a)(1), is section 901(c) of Pub. L. 100-702, which is set out as a note below. -MISC2- EXCEPTION TO LIMITATION ON MONEY DAMAGES Section 901(c) of Pub. L. 100-702 provided that: 'Notwithstanding section 652 (28 U.S.C. 652) (as added by subsection (a) of this section), establishing a limitation of $100,000 in money damages with respect to cases referred to arbitration, a district court listed in section 658 (28 U.S.C. 658) (as added by subsection (a) of this section), whose local rule on the date of the enactment of this Act (Nov. 19, 1988) provides for a limitation on money damages, with respect to such cases, of not more than $150,000, may continue to apply the higher limitation.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 651, 653 of this title. ------DocID 36457 Document 319 of 1452------ -CITE- 28 USC Sec. 653 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 653. Powers of arbitrator; arbitration hearing -STATUTE- (a) Powers. - An arbitrator to whom an action is referred under section 652 shall have, within the judicial district of the district court which referred the action to arbitration, the power - (1) to conduct arbitration hearings, (2) to administer oaths and affirmations, and (3) to make awards. (b) Time for Beginning Arbitration Hearing. - An arbitration hearing under this chapter shall begin within a time period specified by the district court, but in no event later than 180 days after the filing of an answer, except that the arbitration proceeding shall not, in the absence of the consent of the parties, commence until 30 days after the disposition by the district court of any motion to dismiss the complaint, motion for judgment on the pleadings, motion to join necessary parties, or motion for summary judgment, if the motion was filed during a time period specified by the district court. The 180-day and 30-day periods specified in the preceding sentence may be modified by the court for good cause shown. (c) Subpoenas. - Rule 45 of the Federal Rules of Civil Procedure (relating to subpoenas) applies to subpoenas for the attendance of witnesses and the production of documentary evidence at an arbitration hearing under this chapter. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4660.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (c), are set out in the Appendix to this title. ------DocID 36458 Document 320 of 1452------ -CITE- 28 USC Sec. 654 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 654. Arbitration award and judgment -STATUTE- (a) Filing and Effect of Arbitration Award. - An arbitration award made by an arbitrator under this chapter, along with proof of service of such award on the other party by the prevailing party or by the plaintiff, shall, promptly after the arbitration hearing is concluded, be filed with the clerk of the district court that referred the case to arbitration. Such award shall be entered as the judgment of the court after the time has expired for requesting a trial de novo under section 655. The judgment so entered shall be subject to the same provisions of law and shall have the same force and effect as a judgment of the court in a civil action, except that the judgment shall not be subject to review in any other court by appeal or otherwise. (b) Sealing of Arbitration Award. - The district court shall provide by local rule that the contents of any arbitration award made under this chapter shall not be made known to any judge who might be assigned to the case - (1) except as necessary for the court to determine whether to assess costs or attorney fees under section 655, (2) until the district court has entered final judgment in the action or the action has been otherwise terminated, or (3) except for purposes of preparing the report required by section 903(b) of the Judicial Improvements and Access to Justice Act. (c) Taxation of Costs. - The district court may by rule allow for the inclusion of costs as provided in section 1920 of this title as a part of the arbitration award. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4660.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -REFTEXT- REFERENCES IN TEXT Section 903(b) of the Judicial Improvements and Access to Justice Act, referred to in subsec. (b)(3), is section 903(b) of Pub. L. 100-702, which is set out as a note under section 651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 655 of this title. ------DocID 36459 Document 321 of 1452------ -CITE- 28 USC Sec. 655 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 655. Trial de novo -STATUTE- (a) Time for Demand. - Within 30 days after the filing of an arbitration award with a district court under section 654, any party may file a written demand for a trial de novo in the district court. (b) Restoration to Court Docket. - Upon a demand for a trial de novo, the action shall be restored to the docket of the court and treated for all purposes as if it had not been referred to arbitration. In such a case, any right of trial by jury that a party otherwise would have had, as well as any place on the court calendar which is no later than that which a party otherwise would have had, are preserved. (c) Limitation on Admission of Evidence. - The court shall not admit at the trial de novo any evidence that there has been an arbitration proceeding, the nature or amount of any award, or any other matter concerning the conduct of the arbitration proceeding, unless - (1) the evidence would otherwise be admissible in the court under the Federal Rules of Evidence, or (2) the parties have otherwise stipulated. (d) Taxation of Arbitrator Fees as Cost. - (1)(A) A district court may provide by rule that, in any trial de novo under this section, arbitrator fees paid under section 657 may be taxed as costs against the party demanding the trial de novo. (B) Such rule may provide that a party demanding a trial de novo under subsection (a), other than the United States or its agencies or officers, shall deposit a sum equal to such arbitrator fees as advanced payment of such costs, unless the party is permitted to proceed in forma pauperis. (2) Arbitrator fees shall not be taxed as costs under paragraph (1)(A), and any sum deposited under paragraph (1)(B) shall be returned to the party demanding the trial de novo, if - (A) the party demanding the trial de novo obtains a final judgment more favorable than the arbitration award, or (B) the court determines that the demand for the trial de novo was made for good cause. (3) Any arbitrator fees taxed as costs under paragraph (1)(A), and any sum deposited under paragraph (1)(B) that is not returned to the party demanding the trial de novo, shall be paid to the Treasury of the United States. (4) Any rule under this subsection shall provide that no penalty for demanding a trial de novo, other than that provided in this subsection, shall be assessed by the court. (e) Assessment of Costs and Attorney Fees. - In any trial de novo demanded under subsection (a) in which arbitration was done by consent of the parties, a district court may assess costs, as provided in section 1920 of this title, and reasonable attorney fees against the party demanding the trial de novo if - (1) such party fails to obtain a judgment, exclusive of interest and costs, in the court which is substantially more favorable to such party than the arbitration award, and (2) the court determines that the party's conduct in seeking a trial de novo was in bad faith. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4661.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (c)(1), are set out in the Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 654 of this title. ------DocID 36460 Document 322 of 1452------ -CITE- 28 USC Sec. 656 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 656. Certification of arbitrators -STATUTE- (a) Standards for Certification. - Each district court listed in section 658 shall establish standards for the certification of arbitrators and shall certify arbitrators to perform services in accordance with such standards and this chapter. The standards shall include provisions requiring that any arbitrator - (1) shall take the oath or affirmation described in section 453, and (2) shall be subject to the disqualification rules of section 455. (b) Treatment of Arbitrator as Independent Contractor and Special Government Employee. - An arbitrator is an independent contractor and is subject to the provisions of sections 201 through 211 of title 18 to the same extent as such provisions apply to a special Government employee of the executive branch. A person may not be barred from the practice of law because such person is an arbitrator. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4662.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. ------DocID 36461 Document 323 of 1452------ -CITE- 28 USC Sec. 657 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 657. Compensation of arbitrators -STATUTE- (a) Compensation. - The district court may, subject to limits set by the Judicial Conference of the United States, establish and pay the amount of compensation, if any, that each arbitrator shall receive for services rendered in each case. (b) Transportation Allowances. - Under regulations prescribed by the Director of the Administrative Office of the United States Courts, a district court may reimburse arbitrators for actual transportation expenses necessarily incurred in the performance of duties under this chapter. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4662.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 655 of this title. ------DocID 36462 Document 324 of 1452------ -CITE- 28 USC Sec. 658 -EXPCITE- TITLE 28 PART III CHAPTER 44 -HEAD- Sec. 658. District courts that may authorize arbitration -STATUTE- The district courts for the following judicial districts may authorize the use of arbitration under this chapter: (1) Northern District of California, Middle District of Florida, Western District of Michigan, Western District of Missouri, District of New Jersey, Eastern District of New York, Middle District of North Carolina, Western District of Oklahoma, Eastern District of Pennsylvania, and Western District of Texas. (2) Ten additional judicial districts, which shall be approved by the Judicial Conference of the United States. The Judicial Conference shall give notice of the 10 districts approved under this paragraph to the Federal Judicial Center and to the public. -SOURCE- (Added Pub. L. 100-702, title IX, Sec. 901(a), Nov. 19, 1988, 102 Stat. 4662.) -STATAMEND- REPEAL OF SECTION Pub. L. 100-702, title IX, Sec. 906, Nov. 19, 1988, 102 Stat. 4664, provided that, effective 5 years after Nov. 19, 1988, this section is repealed. See Effective Date of Repeal note set out under section 651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 651, 656 of this title. ------DocID 36463 Document 325 of 1452------ -CITE- 28 USC CHAPTER 45 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- CHAPTER 45 - SUPREME COURT -MISC1- Sec. 671. Clerk. 672. Marshal. 673. Reporter. 674. Librarian. 675. Law clerks and secretaries. 676. Printing and binding. 677. Administrative Assistant to the Chief Justice. AMENDMENTS 1972 - Pub. L. 92-238, Sec. 2, Mar. 1, 1972, 86 Stat. 46, added item 677. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see sections 951 et seq. of this title. ------DocID 36464 Document 326 of 1452------ -CITE- 28 USC Sec. 671 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 671. Clerk -STATUTE- (a) The Supreme Court may appoint and fix the compensation of a clerk and one or more deputy clerks. The clerk shall be subject to removal by the Court. Deputy clerks shall be subject to removal by the clerk with the approval of the Court or the Chief Justice of the United States. ((b) Repealed. Pub. L. 92-310, title II, Sec. 206(c), June 6, 1972, 86 Stat. 203.) (c) The clerk may appoint and fix the compensation of necessary assistants and messengers with the approval of the Chief Justice of the United States. (d) The clerk shall pay into the Treasury all fees, costs, and other moneys collected by him. He shall make annual returns thereof to the Court under regulations prescribed by it. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 918; Mar. 10, 1964, Pub. L. 88-279, Sec. 1, 78 Stat. 158; June 6, 1972, Pub. L. 92-310, title II, Sec. 206(c), 86 Stat. 203.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 325, 326, 327, 541 and 542 (Feb. 22, 1875, ch. 95, Sec. 2, 3, 18 Stat. 333; Mar. 3, 1883, ch. 143, 22 Stat. 631; Mar. 15, 1898, ch. 68, Sec. 8, 30 Stat. 317; Mar. 3, 1911, ch. 231, Sec. 219, 220, 221, 291, 36 Stat. 1152, 1153, 1167; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). This section consolidates sections 541 and 542 of title 28, U.S.C., 1940 ed., with parts of sections 325, 326 and 327 of such title. The provisions in said section 325 relating to appointment of a marshal and reporter are incorporated in sections 672 and 673 of this title. The provisions in section 327 of title 28, U.S.C., 1940 ed., relating to duties and liabilities of the clerk's deputies are incorporated in section 954 of this title. The provision of section 326 of title 28, U.S.C., 1940 ed., that a duly certified copy of the clerk's bond should be competent evidence in any court, is incorporated in section 1737 of this title. The provision that the clerk shall be subject to removal by the Court is new. Section 327 of title 28, U.S.C., 1940 ed., contained a similar provision as to deputies, but fixed no term of office for the clerk and made no provision for his removal. The Supreme Court held, in 1839, that a district judge had power to remove his clerk at pleasure in absence of any law fixing the clerk's tenure. In re Hennen, 38 U.S. 230, 13 Pet. 230, 10 L.Ed. 138. (See, also Myers v. U.S., 1926, 47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160.) The provision in section 326 of title 28, U.S.C., 1940 ed., that the clerk's bond be not less than $5,000 and not more than $20,000 was omitted. The Supreme Court should have wide discretion in such administrative matters. (See Hearings before Appropriations Committee, House of Representatives, 78th Cong., 2d sess., on Judiciary Appropriation Bill for 1945, page 102.) A provision of section 326 of title 28, U.S.C., 1940 ed., that a renewed or augmented bond should be required upon the Attorney General's motion and after thirty days' notice was omitted. The manner of requiring such bond is left to the Court's discretion by the revised section. A further provision of section 326 of title 28, U.S.C., 1940 ed., that the failure to furnish such renewed or augmented bond should vacate the clerk's office was omitted as unnecessary, since the clerk is removable by the Court under this section. The references in section 541 of title 28, U.S.C., 1940 ed., to return 'under oath' to be made 'on the 1st day of January of each year, or thirty days thereafter' and 'on a form prescribed by the Attorney General', were omitted as fully covered by the revised language 'annual returns' under 'regulations prescribed by the Court'. Verification seems unnecessary especially as clerks of the courts of appeals are not required to submit similar returns under oath (see section 711 of this title). 'Court' was substituted for 'Attorney General', since the latter's powers and functions in court administrative matters have been transferred to the Director of the Administration Office of the United States Courts. (See sections 604 and 607 of this title.) The Director, however, exercises no authority in Supreme Court matters. Section 542 of title 28, U.S.C., 1940 ed., provided that the clerk 'shall not retain', out of fees received, more than $6,000 annually above clerk hire and expenses; that the surplus should be paid into the Treasury. Such indirect and unusual provision is simplified in this section by providing that his salary shall be fixed by the Court. Such salary limitation is omitted as inconsistent with larger salaries paid other clerks of courts. The provisions that the Court shall fix the compensation of deputy clerks, and that the clerk shall fix the compensation of assistants and messengers with the approval of the Chief Justice, are new. Current appropriation Acts providing that the compensation of officers and employees of the Supreme Court, other than clerk and reporter shall be fixed by the court, unnecessarily burden the court with administrative details. Provision for allowance and approval of payments of compensation and office expenses by the clerk upon allowance and approval by the Chief Justice, instead of by the Court, was inserted with the approval of the Judicial Conference Committee on Revision of the Judicial Code as not inconsistent with section 542 of title 28, U.S.C., 1940 ed. References in sections 541 and 542 of title 28, U.S.C., 1940 ed., to certification of expenses by the justices and for audit and allowances by the General Accounting Office, were omitted as unnecessary in view of this section. Changes were made in phraseology. AMENDMENTS 1972 - Subsec. (b). Pub. L. 92-310 repealed subsec. (b) which related to bond of Clerk of Supreme Court. 1964 - Subsec. (c). Pub. L. 88-279 struck out provision for disbursement by clerk of compensation of clerk, his deputies, assistants, and messengers and the necessary expenses of office from the fees collected by clerk, upon allowance and approval by Chief Justice of the United States. Subsec. (d). Pub. L. 88-279 substituted 'moneys collected by him' for 'emoluments of his office over and above his lawful disbursements'. EFFECTIVE DATE OF 1964 AMENDMENT Section 4 of Pub. L. 88-279 provided that: 'The amendments proposed in this Act (amending this section and section 672 of this title) shall become effective only when funds have been appropriated and are available to pay the salaries and other expenses of the clerk's office.' APPROPRIATIONS Section 3 of Pub. L. 88-279 provided that: 'There are hereby authorized to be appropriated annually such sums as are necessary to carry out the provisions of this Act (amending this section and section 672 of this title).' -CROSS- CROSS REFERENCES Fees of clerk to be fixed by Supreme Court, see section 1911 of this title. Oath of clerk and deputies, see section 951 of this title. ------DocID 36465 Document 327 of 1452------ -CITE- 28 USC Sec. 672 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 672. Marshal -STATUTE- (a) The Supreme Court may appoint a marshal, who shall be subject to removal by the Court, and may fix his compensation. (b) The marshal may, with the approval of the Chief Justice of the United States, appoint and fix the compensation of necessary assistants and other employees to attend the Court, and necessary custodial employees. (c) The marshal shall: (1) Attend the Court at its sessions; (2) Serve and execute all process and orders issued by the Court or a member thereof; (3) Take charge of all property of the United States used by the Court or its members; (4) Disburse funds appropriated for work upon the Supreme Court building and grounds under the jurisdiction of the Architect of the Capitol upon certified vouchers submitted by the Architect; (5) Disburse funds appropriated for the purchase of books, pamphlets, periodicals and other publications, and for their repair, binding, and rebinding, upon vouchers certified by the librarian of the Court; (6) Pay the salaries of the Chief Justice, associate justices, and all officers and employees of the Court and disburse other funds appropriated for disbursement, under the direction of the Chief Justice; (7) Pay the expenses of printing briefs and travel expenses of attorneys in behalf of persons whose motions to appear in forma pauperis in the Supreme Court have been approved and when counsel have been appointed by the Supreme Court, upon vouchers certified by the clerk of the Court; (8) Oversee the Supreme Court Police. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 918; Mar. 10, 1964, Pub. L. 88-279, Sec. 2, 78 Stat. 158; Dec. 29, 1982, Pub. L. 97-390, Sec. 2, 96 Stat. 1958.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 325, 331, and section 13d of title 40, U.S.C., 1940 ed., Public Buildings, Property and Works (Mar. 3, 1911, ch. 231, Sec. 219, 224, 36 Stat. 1152, 1153; April 11, 1928, ch. 358, 45 Stat. 424; May 7, 1934, ch. 222, Sec. 4, 48 Stat. 668). This section consolidates part of section 325 of title 28, U.S.C., 1940 ed., with section 331 of such title and section 13d of title 40, U.S.C., 1940 ed. Provisions of section 325 of title 28, U.S.C., 1940 ed., relating to appointment of clerk and reporter of the Supreme Court are incorporated in sections 671 and 673 of this title. Provision of section 331 of title 28, U.S.C., 1940 ed., fixing the marshal's salary at 'not to exceed $5,500 per annum' was omitted and the court given authority to fix the salary in conformity with sections 671 and 673 of this title relating to the clerk and the reporter. Part of subsection (c)(5) is new. It recognizes the propriety of certification by the Court Librarian of vouchers for expenditures for the library. (See reviser's note under section 674 of this title.) The marshal's duties as superintendent of the Supreme Court building are incorporated in section 13c of title 40, U.S.C., 1940 ed. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (c)(8). Pub. L. 97-390 added par. (8). 1964 - Subsec. (c)(6). Pub. L. 88-279, Sec. 2(a), struck out 'except the clerk, his deputies and employees,' after 'employees of the Court'. Subsec. (c)(7). Pub. L. 88-279, Sec. 2(b), added par. (7). EFFECTIVE DATE OF 1964 AMENDMENT Amendment by Pub. L. 88-279 effective upon appropriation and availability of funds to pay salaries and other expenses of the clerk's office, see section 4 of Pub. L. 88-279, set out as a note under section 671 of this title. APPROPRIATIONS Annual appropriations to carry out amendment of this section by Pub. L. 88-279, see section 3 of Pub. L. 88-279, set out as a note under section 671 of this title. ------DocID 36466 Document 328 of 1452------ -CITE- 28 USC Sec. 673 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 673. Reporter -STATUTE- (a) The Supreme Court may appoint and fix the compensation of a reporter of its decisions who shall be subject to removal by the Court. (b) The reporter may appoint and fix the compensation of necessary professional and clerical assistants and other employees, with the approval of the Court or the Chief Justice of the United States. (c) The reporter shall, under the direction of the Court or the Chief Justice, prepare the decisions of the Court for publication in bound volumes and advance copies in pamphlet installments. The reporter shall determine the quality and size of the paper, type, format, proofs and binding subject to the approval of the Court or the Chief Justice. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 919.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 325, 332, and 333 (Mar. 3, 1911, ch. 231, Sec. 219, 225, 226, 36 Stat. 1152, 1153; July 1, 1922, ch. 267, Sec. 1, 2, 42 Stat. 816; May 29, 1926, ch. 425, Sec. 1, 44 Stat. 677). This section consolidates sections 332 and 333 of title 28, U.S.C., 1940 ed., with part of section 325 of such title. Provisions of section 325 of title 28, U.S.C., 1940 ed., relating to appointment of clerk and marshal of the Supreme Court are incorporated in sections 671 and 672 of this title. The provision as to tenure is new and is added to insure consistency with other revised sections relating to tenure of court officers. The provisions of section 333 of title 28, U.S.C., 1940 ed., fixing the reporter's salary at $8,000 per annum were omitted and the Court given authority to fix the salary in conformity with sections 671 and 672 of this title relating to the clerk and the marshal. Provisions of section 333 of title 28, U.S.C., 1940 ed., for allowance of stationery, supplies, equipment, and office rent are omitted as obsolete. Offices are now provided in the Supreme Court building and supplies are furnished by the marshal. The last sentence of section 333 of title 28, U.S.C., 1940 ed., relating to the payment of the reporter's expenses from appropriation for the Supreme Court, was omitted as surplusage. The revised section makes specific the implied power to fix the compensation of the reporter's assistants. The provision in section 332 of title 28, U.S.C., 1940 ed., authorizing the Public Printer to do the printing referred to in such section, was omitted as unnecessary. (See section 111 of title 44, U.S.C., 1940 ed., Public Printing and Documents.) Authority for making an appropriation to carry into effect the provisions of this section relating to compensation and allowances of the reporter, compensation of his assistants, and preparation of the decisions of the Supreme Court for publication, is contained in section 336 of title 28, U.S.C., 1940 ed. (Acts July 1, 1922, ch. 267, Sec. 5, 42 Stat. 818; May 29, 1926, ch. 425, Sec. 3, 44 Stat. 678), which is omitted, but not repealed, as unnecessary in this revision. ------DocID 36467 Document 329 of 1452------ -CITE- 28 USC Sec. 674 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 674. Librarian -STATUTE- (a) The Supreme Court may appoint a librarian, whose salary it shall fix, and who shall be subject to removal by the Court. (b) The librarian shall, with the approval of the Chief Justice, appoint necessary assistants and fix their compensation and make rules governing the use of the library. (c) He shall select and acquire by purchase, gift, bequest, or exchange, such books, pamphlets, periodicals, microfilm and other processed copy as may be required by the Court for its official use and for the reasonable needs of its bar. (d) The librarian shall certify to the marshal for payment vouchers covering expenditures for the purchase of such books and other material, and for binding, rebinding and repairing the same. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 919; June 6, 1972, Pub. L. 92-310, title II, Sec. 206(d), 86 Stat. 203.) -MISC1- HISTORICAL AND REVISION NOTES This section gives statutory recognition to the office of librarian. For many years the Court has appointed its librarian directly through the Chief Justice, rather than through the marshal. Other members of the library staff are appointed by the librarian, with the approval of the Chief Justice. Under this section the marshal will not be required to certify to expenditures for some 2,000 books bought for the library each year but this will be the duty of the librarian. AMENDMENTS 1972 - Subsec. (d). Pub. L. 92-310 struck out sentence which required the librarian to furnish a bond. ------DocID 36468 Document 330 of 1452------ -CITE- 28 USC Sec. 675 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 675. Law clerks and secretaries -STATUTE- The Chief Justice of the United States, and the associate justices of the Supreme Court may appoint law clerks and secretaries whose salaries shall be fixed by the Court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 919.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1926 ed., Sec. 328 (June 1, 1922, ch. 204, title II, 42 Stat. 614; Jan. 3, 1923, ch. 21, title II, 42 Stat. 1081; May 28, 1924, ch. 204, title II, 43 Stat. 218; Feb. 27, 1925, ch. 364, title II, 43 Stat. 1028). Section is derived from Appropriation Acts for fiscal years cited in the credits. It was omitted from the 1934 and 1940 editions of the U.S. Code because it was considered to be probably of a temporary nature. This section is consistent with other provisions authorizing the appointment of similar personnel for circuit and district judges. The 1942 appropriation act (July 2, 1942, ch. 472, title IV, 56 Stat. 501) made provision for 'all other officers and employees, whose compensation shall be fixed by the Court, except as otherwise provided by law and who may be assigned by the Chief Justice to any office or work of the Court.' The salary limitation of $3,600 was omitted and the Court authorized to fix law clerks' salaries. Current appropriation acts provide that salaries of the Court's officers and employees, except the clerk and reporter, shall be fixed by the Court. See section 711 et seq. and section 751 et seq., of this title, relating to appointment of law clerks and secretaries to circuit and district judges. Changes were made in phraseology. ------DocID 36469 Document 331 of 1452------ -CITE- 28 USC Sec. 676 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 676. Printing and binding -STATUTE- (a) The printing and binding for the Supreme Court, including the printing and binding of individual copies, advance pamphlet installments, and bound volumes, of its decisions, whether requisitioned or ordered by the Court or any of its officers or by any other office or agency, and whether paid for by, or charged to the appropriation for, the Court or any other office or agency, shall be done by the printer or printers whom the Court or the Chief Justice of the United States may select, unless it shall otherwise order. (b) Whenever advance pamphlet installments and bound volumes of the Court's decisions are printed by a private printer, an adequate number of copies for distribution in accordance with the requirements of section 411 of this title and for sale to the public shall be provided and made available for these purposes in such manner and at such prices as may be determined from time to time by the Supreme Court or the Chief Justice of the United States, in lieu of compliance by the Public Printer and the Superintendent of Documents with the requirements of sections 411 and 412 of this title with respect to such copies. Pending distribution or sale, such copies shall be the property of the United States and shall be held in the custody of the marshal or such other person, organization, or agency, as the Supreme Court or the Chief Justice of the United States may designate. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 919; May 24, 1949, ch. 139, Sec. 74, 63 Stat. 100; Oct. 31, 1951, ch. 655, Sec. 45, 65 Stat. 725.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 354 (Feb. 27, 1925, ch. 364, title II, 43 Stat. 1028; Apr. 29, 1926, ch. 195, title II, 44 Stat. 344; Feb. 24, 1927, ch. 189, title II, 44 Stat. 1194; Feb. 15, 1928, ch. 57, title II, 45 Stat. 79; Jan. 25, 1929, ch. 102, title II, 45 Stat. 1109; Apr. 18, 1930, ch. 184, title II, 46 Stat. 188; Feb. 23, 1931, ch. 280, title II, 46 Stat. 1323; July 1, 1932, ch. 361, title II, 47 Stat. 490; Mar. 1, 1933, ch. 144, title II, 47 Stat. 1382; Apr. 7, 1934, ch. 104, title II, 48 Stat. 539). The section was expanded to include the printing and binding of the official edition of the court's decisions, thus making possible an economy in the expenditure of Government funds by having the printing and binding done by the same printer. Subsection (b) of the revised section was supplied to conform to sections 411 and 412 of this title. 1949 ACT This section corrects a grammatical error in subsection (a) of section 676 of title 28, U.S.C. AMENDMENTS 1951 - Subsec. (b). Act Oct. 31, 1951, inserted 'of this title' in two places. 1949 - Subsec. (a). Act May 24, 1949, inserted 'whom' between 'printers' and 'the Court'. ------DocID 36470 Document 332 of 1452------ -CITE- 28 USC Sec. 677 -EXPCITE- TITLE 28 PART III CHAPTER 45 -HEAD- Sec. 677. Administrative Assistant to the Chief Justice -STATUTE- (a) The Chief Justice of the United States may appoint an Administrative Assistant who shall serve at the pleasure of the Chief Justice and shall perform such duties as may be assigned to him by the Chief Justice. The salary payable to the Administrative Assistant shall be fixed by the Chief Justice at a rate which shall not exceed the salary payable to the Director of the Administrative Office of the United States Courts. The Administrative Assistant may elect to bring himself within the same retirement program available to the Director of the Administrative Office of the United States Courts, as provided by section 611 of this title, by filing a written election with the Chief Justice within the time and in the manner prescribed by section 611. (b) The Administrative Assistant, with the approval of the Chief Justice, may appoint and fix the compensation of necessary employees. The Administrative Assistant and his employees shall be deemed employees of the Supreme Court. -SOURCE- (Added Pub. L. 92-238, Sec. 1, Mar. 1, 1972, 86 Stat. 46.) ------DocID 36471 Document 333 of 1452------ -CITE- 28 USC CHAPTER 47 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- CHAPTER 47 - COURTS OF APPEALS -MISC1- Sec. 711. Clerks and employees. 712. Law clerks and secretaries. 713. Librarians. 714. Criers and messengers. 715. Staff attorneys and technical assistants. AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 120(b)(2), (c)(2), Apr. 2, 1982, 96 Stat. 33, substituted 'Librarians' for 'Criers, bailiffs and messengers' in item 713 and added items 714 and 715. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see section 951 et seq. of this title. United States marshals to be marshals of the courts of appeals, see section 566 of this title. ------DocID 36472 Document 334 of 1452------ -CITE- 28 USC Sec. 711 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- Sec. 711. Clerks and employees -STATUTE- (a) Each court of appeals may appoint a clerk who shall be subject to removal by the court. (b) The clerk, with the approval of the court, may appoint necessary deputies, clerical assistants and employees in such number as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies, clerical assistants and employees shall be subject to removal by the clerk with the approval of the court. (c) The clerk shall pay into the Treasury all fees, costs and other moneys collected by him and make returns thereof to the Director of the Administrative Office of the United States Courts under regulations prescribed by him. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 920.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 221 and 222, 544 and 546 and District of Columbia Code, 1940 ed., Sec. 11-204 (Mar. 3, 1891, ch. 517, Sec. 2, 26 Stat. 826; Feb. 9, 1893, ch. 74, Sec. 4, 27 Stat. 435; July 30, 1894, ch. 172, Sec. 1, 28 Stat. 160; June 6, 1900, ch. 791, Sec. 1, 31 Stat. 639; Mar. 3, 1901, ch. 854, Sec. 224, 31 Stat. 1224; June 30, 1902, ch. 1329, 32 Stat. 528; Mar. 3, 1911, ch. 231, Sec. 124, 125, 36 Stat. 1132; Aug. 23, 1912, ch. 350, 37 Stat. 412; Feb. 22, 1921, ch. 70, Sec. 7, 41 Stat. 1144; June 1, 1922, ch. 204, title II, 42 Stat. 616; Mar. 4, 1923, ch. 265, 42 Stat. 1488; May 21, 1928, ch. 659, 45 Stat. 645). This section consolidates section 546 of title 28, U.S.C., 1940 ed., with parts of sections 221, 222, and 544 of such title and a part of section 11-204 of the District of Columbia Code, 1940 ed. Other provisions of such sections are incorporated in sections 604, 713, 954, 956, 961, and 962 of this title. Some provisions of section 11-204 of the District of Columbia Code, 1940 ed., were retained in that code. (See reviser's note under section 604 of this title.) Discrepancies between such section 11-204 of District of Columbia Code, 1940 ed., and the more general provisions of title 28 were eliminated by adopting the more general provisions. Words 'Director of the Administrative Office of the United States Courts' were substituted for 'Attorney General,' in view of the act of Aug. 7, 1939, ch. 501, Sec. 6, 53 Stat. 1226, 28 U.S.C., 1940 ed., following Sec. 446. A provision that the returns should be filed annually was changed to place the times of accounting within the discretion of the Director of the Administrative Office of the United States Courts, who has supervision over such accounts. (See section 604 of this title.) This section is in harmony with section 671 of this title as to accounting similarly by the Clerk of the Supreme Court. 'Court of appeals' was substituted for 'circuit court of appeals' to conform to section 43 of this title. The provision that each clerk shall be removable by the court is new. Section 222 of title 28, U.S.C., 1940 ed., provided that deputies might be removed at the pleasure of the clerk, subject to the court's approval, and there was no term of office specified for the clerk and no provision for his removal. The words 'and other necessary employees' were added in subsection (b) to supply an omission of existing law and to give statutory authority for the appointment of necessary employees for which compensation is annually appropriated. Changes were made in phraseology. -CROSS- CROSS REFERENCES Compensation and expenses of clerks of court, their deputies, etc., see section 604 of this title. Oath and bond of clerk and deputies, see section 951 of this title. ------DocID 36473 Document 335 of 1452------ -CITE- 28 USC Sec. 712 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- Sec. 712. Law clerks and secretaries -STATUTE- Circuit judges may appoint necessary law clerks and secretaries. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 920; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1003(a)(3), 102 Stat. 4665.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 222a (Mar. 3, 1911, ch. 231, Sec. 118a, as added June 17, 1930, ch. 509, 46 Stat. 774). Provision of section 222a of title 28, U.S.C., 1940 ed., relating to compensation of law clerks is incorporated in section 604 of this title. (See reviser's note under such section.) Words 'with the approval of the Attorney General,' were omitted to confer on circuit judges the same authority given Supreme Court justices under section 675 of this title. The provision for appointment of secretaries is new. Existing law fixes compensation of secretaries but makes no provision for their appointment. (See section 604 of this title and reviser's note thereunder.) Changes were made in phraseology. AMENDMENTS 1988 - Pub. L. 100-702 inserted at end 'A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court.' -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. ------DocID 36474 Document 336 of 1452------ -CITE- 28 USC Sec. 713 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- Sec. 713. Librarians -STATUTE- (a) Each court of appeals may appoint a librarian who shall be subject to removal by the court. (b) The librarian, with the approval of the court, may appoint necessary library assistants in such numbers as the Director of the Administrative Office of the United States Courts may approve. The librarian may remove such library assistants with the approval of the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 920; May 24, 1949, ch. 139, Sec. 75, 63 Stat. 100; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 120(b)(1), 96 Stat. 33.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 547, and section 11-204 of District of Columbia Code, 1940 ed., (Mar. 3, 1891, ch. 517, Sec. 9, 26 Stat. 829; Feb. 9, 1893, ch. 74, Sec. 4, 27 Stat. 435; July 30, 1894, ch. 172, Sec. 1, 28 Stat. 160; Mar. 3, 1901, ch. 854, Sec. 224, 31 Stat. 1224; June 30, 1902, ch. 1329, 32 Stat. 528; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Aug. 23, 1912, ch. 350, 37 Stat. 412; Feb. 22, 1921, ch. 70, Sec. 7, 41 Stat. 1144; Mar. 4, 1923, ch. 265, 42 Stat. 1488; May 21, 1928, ch. 659, 45 Stat. 645). Section consolidates parts of section 11-204 of the District of Columbia Code, 1940 ed., and section 547 of title 28, U.S.C., 1940 ed. The Judicial Code provided for the appointment of assistants and messengers in the Supreme Court, criers and 'persons to wait upon juries' in the district courts, a messenger in the Court of Customs and Patent Appeals, and a bailiff and a chief messenger in the Court of Claims (see title 28, U.S.C., 1940 ed., Sec. 9, 244, 305, 331) and also provided (see same title, Sec. 547) that criers, bailiffs and messengers of the courts of appeals should be allowed the same compensation as allowed for similar services in the district courts, but did not provide for the appointment of said criers, bailiffs and messengers. This section authorizes such appointments. The provisions of section 224 of title 28, U.S.C., 1940 ed., that the United States marshal shall provide for the expenses of criers, bailiffs and messengers for the circuit courts of appeals are superseded by sections 601-610 of this title vesting such functions in the Administrative Office of the United States Courts. Provisions of section 11-204 of District of Columbia Code, 1940 ed., relating to appointment and compensation of clerk of the United States Court of Appeals for the District of Columbia are incorporated in sections 711 and 604 of this title, respectively. Other provisions of such section were retained in the District of Columbia Code. (See reviser's note under section 604 of this title.) Compensation of bailiffs is provided by section 755 of this title. Other provisions of section 547 of title 28, U.S.C., 1940 ed., relating to compensation of criers, clerks, and messengers are incorporated in section 604 of this title. Marshal for the Court of Appeals for the District of Columbia was authorized by the District of Columbia Appropriation Act of June 29, 1937, 50 Stat. 378. The duties of criers and bailiffs are made specific consistently with section 755 of this title, and existing administrative practice. The removal provisions are added to make this section consistent with the same provisions in other sections relating to tenure of court officers. Changes in phraseology and arrangement were made. 1949 ACT This section corrects typographical errors in section 713 of title 28, U.S.C. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Librarians' for 'Criers, bailiffs, and messengers' in section catchline. Subsec. (a). Pub. L. 97-164 struck out 'and necessary library assistants' after 'Each court of appeals may appoint a librarian'. Subsec. (b). Pub. L. 97-164 substituted 'The librarian, with the approval of the court, may appoint necessary library assistants in such numbers as the Director of the Administrative Office of the United States Courts may approve' for 'Each court of appeals, except the Court of Appeals for the District of Columbia, may appoint a crier and such messengers as may be necessary, all of whom shall be subject to removal by the court' and 'The librarian may remove such library assistants with the approval of the court' for 'The crier shall also perform the duties of bailiff and messenger'. Subsecs. (c), (d). Pub. L. 97-164 struck out subsecs. (c) and (d) which had provided, respectively, that the Court of Appeals for the District of Columbia could appoint a marshal, who would attend the court at its sessions, be custodian of its courthouse, have supervision over its custodial employees, take charge of all property of the United States used by the court or its employees, and perform such other duties as the court might direct, that the court could also appoint necessary messengers who would be subject to removal by the court, that the United States marshal of the district in which a court of appeals was sitting or in which a circuit judge was present in chambers, could, with the approval of the court or judge, employ necessary bailiffs, that the bailiffs would attend the court, preserve order, and perform such other necessary duties as the court, judge or marshal might direct, and that such bailiffs would receive the same compensation as bailiffs employed for the district courts. See section 714 of this title. 1949 - Act May 24, 1949, inserted subsection designation (b) preceding second par. and renumbered former subsecs. (b) and (c) as (c) and (d), respectively. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. CONTINUATION OF SERVICE OF MARSHAL FOR COURT OF APPEALS FOR DISTRICT OF COLUMBIA; APPLICABILITY OF OTHER LAW TO COURT DURING SUCH INDIVIDUAL'S SERVICE Pub. L. 98-620, title IV, Sec. 415, Nov. 8, 1984, 98 Stat. 3364, provided that: 'Any individual who, on the date of the enactment of the Federal Courts Improvement Act of 1982 (Pub. L. 97-164, enacted Apr. 2, 1982), was serving as marshal for the Court of Appeals for the District of Columbia under section 713(c) of title 28, United States Code, may, after the date of the enactment of this Act (Nov. 8, 1984), so serve under that section as in effect on the date of the enactment of the Federal Courts Improvement Act of 1982. While such individual so serves, the provisions of section 714(a) of title 28, United States Code, shall not apply to the Court of Appeals for the District of Columbia.' -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. ------DocID 36475 Document 337 of 1452------ -CITE- 28 USC Sec. 714 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- Sec. 714. Criers and messengers -STATUTE- (a) Each court of appeals may appoint a crier who shall be subject to removal by the court. (b) The crier, with the approval of the court, may appoint necessary messengers in such number as the Director of the Administrative Office of the United States Courts may approve. The crier may remove such messengers with the approval of the court. The crier shall also perform the duties of bailiff and messenger. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 120(c)(1), Apr. 2, 1982, 96 Stat. 33.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. APPLICABILITY OF THIS SECTION TO COURT OF APPEALS FOR DISTRICT OF COLUMBIA DURING CONTINUED SERVICE OF MARSHAL FOR COURT IN OFFICE ON APR. 2, 1982 Subsec. (a) of this section not applicable to the Court of Appeals for the District of Columbia during the continued service as Marshal for such Court of any individual who was serving in such office under section 713(c) of this title as of Apr. 2, 1982, see section 415 of Pub. L. 98-620, set out as a note under section 713 of this title. ------DocID 36476 Document 338 of 1452------ -CITE- 28 USC Sec. 715 -EXPCITE- TITLE 28 PART III CHAPTER 47 -HEAD- Sec. 715. Staff attorneys and technical assistants -STATUTE- (a) The chief judge of each court of appeals, with the approval of the court, may appoint a senior staff attorney, who shall be subject to removal by the chief judge with the approval of the court. (b) The senior staff attorney, with the approval of the chief judge, may appoint necessary staff attorneys and secretarial and clerical employees in such numbers as the Director of the Administrative Office of the United States Courts may approve, but in no event may the number of staff attorneys exceed the number of positions expressly authorized in an annual appropriation Act. The senior staff attorney may remove such staff attorneys and secretarial and clerical employees with the approval of the chief judge. (c) The chief judge of the Court of Appeals for the Federal Circuit, with the approval of the court, may appoint a senior technical assistant who shall be subject to removal by the chief judge with the approval of the court. (d) The senior technical assistant, with the approval of the court, may appoint necessary technical assistants in such number as the Director of the Administrative Office of the United States Courts may approve, but in no event may the number of technical assistants in the Court of Appeals for the Federal Circuit exceed the number of circuit judges in regular active service within such circuit. The senior technical assistant may remove such technical assistants with the approval of the court. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 120(c)(1), Apr. 2, 1982, 96 Stat. 34.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36477 Document 339 of 1452------ -CITE- 28 USC CHAPTER 49 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- CHAPTER 49 - DISTRICT COURTS -MISC1- Sec. 751. Clerks. 752. Law clerks and secretaries. 753. Reporters. 754. Receivers of property in different districts. 755. Criers and bailiffs. 756. Power to appoint. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see section 951 et seq. of this title. ------DocID 36478 Document 340 of 1452------ -CITE- 28 USC Sec. 751 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 751. Clerks -STATUTE- (a) Each district court may appoint a clerk who shall be subject to removal by the court. (b) The clerk may appoint, with the approval of the court, necessary deputies, clerical assistants and employees in such number as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies, clerical assistants and employees shall be subject to removal by the clerk with the approval of the court. (c) The clerk of each district court shall reside in the district for which he is appointed, except that the clerk of the district court for the District of Columbia and the Southern District of New York may reside within twenty miles thereof. The district court may designate places within the district for the offices of the clerk and his deputies, and their official stations. (d) A clerk of a district court or his deputy or assistant shall not receive any compensation or emoluments through any office or position to which he is appointed by the court, other than that received as such clerk, deputy or assistant, whether from the United States or from private litigants. This subsection shall not apply to clerks or deputy clerks appointed as United States commissioners pursuant to section 631 of this title. (e) The clerk of each district court shall pay into the Treasury all fees, costs and other moneys collected by him, except naturalization fees listed in section 742 of Title 8 and uncollected fees not required by Act of Congress to be prepaid. He shall make returns thereof to the Director of the Administrative Office of the United States Courts under regulations prescribed by him. (f) When the Court of International Trade is sitting in a judicial district, other than the Southern District or Eastern District of New York, the clerk of the district court of such judicial district or an authorized deputy clerk, upon the request of the chief judge of the Court of International Trade and with the approval of such district court, shall act in the district as clerk of the Court of International Trade, as prescribed by the rules and orders of the Court of International Trade for all purposes relating to the civil action then pending before such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 920; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 504, 94 Stat. 1743.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 6, 7, 8, 524, 557, 567, 568, and 569, sections 644 and 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and section 11-401 of the District of Columbia Code, 1940 ed. (R.S. Sec. 833; June 20, 1874, ch. 328, Sec. 2, 18 Stat. 109; May 28, 1896, ch. 252, Sec. 8, 29 Stat. 181; Apr. 12, 1900, ch. 191, Sec. 34, 31 Stat. 84; Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1901, ch. 854, Sec. 174, 31 Stat. 1218; June 28, 1902, ch. 1301, Sec. 1, 32 Stat. 475; June 30, 1902, ch. 1329, 32 Stat. 527; June 30, 1906, ch. 3914, Sec. 1, 34 Stat. 754; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Mar. 3, 1911, ch. 231, Sec. 3, 4, 291, 36 Stat. 1087, 1167; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 2, 1917, ch. 145, Sec. 41, 39 Stat. 965; Feb. 26, 1919, ch. 49, Sec. 1, 4, 9, 40 Stat. 1182, 1183; Feb. 11, 1921, ch. 46, 41 Stat. 1099; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412, 1413; June 10, 1921, ch. 18, Sec. 301, 310, 42 Stat. 23, 25; June 16, 1921, ch. 23, Sec. 1, 42 Stat. 41; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; June 1, 1922, ch. 204, Title II, 42 Stat. 614, 616; Jan. 3, 1923, ch. 21 title II, 42 Stat. 1084; Feb. 12, 1925, ch. 220, 43 Stat. 890; Dec. 13, 1926, ch. 6, Sec. 1, 44 Stat. 919; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat. 118; June 16, 1938, ch. 465, 52 Stat. 752; June 14, 1941, ch. 203, Sec. 1, 2, 55 Stat. 251). This section consolidates provisions of section 11-401 of the District of Columbia Code, 1940 ed., sections 644 and 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and title 28, U.S.C., 1940 ed., sections 6, 7, 8, 524, 557, 567, 568, and 569 relating to district court clerks. Other provisions of such sections 8 and 524 are incorporated in sections 505 (now 545), 541 (see 561), and 954 of this title and other provisions of such section 11-401 of the District of Columbia Code have been retained in such Code. Words 'with the approval of the court' were substituted for 'Attorney General.' The power to approve appointment of court officers is more properly a judicial one. (See section 711 of this title.) The provision in section 6 of title 28, U.S.C., 1940 ed., that the clerk be appointed by the district judge or senior judge where there was more than one member of the court was changed and the power vested in the court. The provisions of section 644 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to compensation of clerks and deputy clerks were omitted as covered by section 604 of this title. Other provisions of said section 644 are incorporated in section 753 of this title. Provision for similar officers in Alaska, Canal Zone, and the Virgin Islands is made by sections 106, 1349, and 1405y, respectively, of title 48, U.S.C., 1940 ed. A part of section 863 of said title 48, was retained in title 48. For remainder of such section, see Distribution Table. Words in sections 6 and 7 of title 28, U.S.C., 1940 ed., 'Except as otherwise provided for by law,' were omitted as obsolete and superfluous. References in section 7 of title 28, U.S.C., 1940 ed., that the clerk recommend appointment of deputies and clerical assistants were omitted as unnecessary. The provision that each clerk shall be subject to removal by the court is new. No tenure was provided for by title 28, U.S.C., 1940 ed., but said title contained provisions that other clerks should hold office during the pleasure of the courts which appointed them, and that deputies should hold office during the pleasure of the clerks. The Supreme Court held, in 1839, that a judge of a district court could remove the clerk thereof at pleasure in absence of any law fixing the clerk's tenure. In re Hennen, 38 U.S. 230, 13 Pet. 230, 10 L.Ed. 138. (See also, Meyers v. U.S., 47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160.) Words 'circuit or' after 'Every clerk of the' in section 524 of title 28, U.S.C., 1940 ed., were omitted because of the abolition of the circuit courts by act Mar. 3, 1911, ch. 231, Sec. 289, 36 Stat. 1167, title 28, U.S.C., 1940 ed., Sec. 430. The provisions in section 524 of title 28, U.S.C., 1940 ed., that the clerk shall give his personal attention to his official duties, and declaring his office vacant upon removal from his district or neglect of duty, were omitted as covered by the removal provision of this section. The provision permitting the clerk of the district court for the District of Columbia to reside within twenty miles of the District of Columbia was added because of the relatively small and congested area of the District, as a result of which few federal officers are appointed from the District or reside therein. The provision in subsection (b) of this section authorizing judges to designate the places for maintaining offices by the clerks was added because of many special provisions, in sections 141-196 of title 28, U.S.C., 1940 ed., for the maintenance of offices by the clerks of the district courts at various particular places. These provisions have been omitted, on revision, as covered by the more general provisions of this section. For residence requirements of United States attorneys and marshals, see sections 505 (now 545) and 541 (see 561) of this title. A provision that a breach of section 569 of title 28, U.S.C., 1940 ed., should be deemed a vacation of the offender's appointment, was omitted as covered by the removal provision of this section. The provision of section 569 of title 28, U.S.C., 1940 ed., limiting the compensation of a clerk who is appointed United States commissioner, to $3,000 a year for both offices was omitted as obsolete. The proper adjustment of the compensation of such clerks is an administrative matter more appropriately regulated by the Director of the Administrative Office under the Supervision of the Judicial Conference of the United States. (See section 604 of this title.) Reference in sections 557, 567 and 568 of title 28, U.S.C., 1940 ed., to accounting by district court clerks in Alaska, were omitted as covered by sections 106 and 107 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to duties of those clerks. References in sections 557 and 567 of title 28, U.S.C., 1940 ed., to the clerk of the district court of the United States for the District of Columbia, were omitted as covered by words 'The clerk of each district court of the United States.' As revised, this section is in harmony with the provisions in chapters 45 and 47 of this title relating to accounting by the clerk of the Supreme Court and clerks of the courts of appeals. Provisions as to time and method of accounting and settlement of accounts were omitted as covered by chapter 41 of this title giving the Director of the Administrative Office of the United States Courts supervision over such accounts, and of chapter 2, Audit and Settlement of Accounts, of title 31, U.S.C., 1940 ed., Money and Finance. Provisions as to particular fees and moneys to be accounted for were omitted as covered by words 'all fees, costs and other moneys.' Included in such provisions was a provision as to naturalization fees, but a later act, now appearing in section 742 of title 8, U.S.C., 1940 ed., Aliens and Nationality, provided a different method of accounting and an exception expressly referring to such section was inserted in this section. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 742 of Title 8, referred to in subsec. (e), was repealed by act June 27, 1952, ch. 477, title IV, Sec. 403(a)(42), 66 Stat. 280. See section 1455 of Title 8, Aliens and Nationality. -MISC2- AMENDMENTS 1980 - Subsec. (f). Pub. L. 96-417 added subsec. (f). -CHANGE- CHANGE OF NAME Reference to United States commissioners deemed to be reference to United States magistrates pursuant to Pub. L. 90-578, title IV, Sec. 402(b)(2), Oct. 17, 1968, 82 Stat. 1108. See chapter 43 (Sec. 631 et seq.) of this title. Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. -CROSS- CROSS REFERENCES Compensation and expenses of clerks, deputies, etc., see section 604 of this title. Oath and bond of clerks and deputies, see sections 951 and 963 of this title. Powers and duties of clerks and deputies, see section 956 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 775 of this title. ------DocID 36479 Document 341 of 1452------ -CITE- 28 USC Sec. 752 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 752. Law clerks and secretaries -STATUTE- District judges may appoint necessary law clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may be imposed by law. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 921; Sept. 1, 1959, Pub. L. 86-221, 73 Stat. 452; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1003(a)(3), 102 Stat. 4665.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 5b and 128 (Mar. 3, 1911, ch. 231, Sec. 118b, as added Feb. 17, 1936, ch. 75, 49 Stat. 1140; May 14, 1940, ch. 189, title IV, 54 Stat. 210; June 28, 1941, ch. 258, title IV, 55 Stat. 301; July 2, 1942, ch. 472, title IV, 56 Stat. 504). This section consolidates provisions of sections 5b and 128 of title 28, U.S.C., 1940 ed., relating to appointment of law clerks for district judges. Words in section 128 of title 28, U.S.C., 1940 ed., 'but there shall not be appointed more than thirty-five of such law clerks during the first fiscal year of the enactment of this section' were omitted as executed and obsolete. Words 'Thereafter such number in excess of thirty-five per year shall be limited by necessity of each case as hereinabove provided' were also deleted as superseded by section 5b of said title and obsolete. The Director of the Administrative Office has expressed such views. Chief judge of the circuit was substituted for senior circuit judge to conform to section 44 of this title. Provisions of section 128 of title 28, U.S.C., 1940 ed., relating to salary, or compensation of such clerks are incorporated in section 604 of this title. (See reviser's note under that section.) The provisions in section 5b of title 28, U.S.C., 1940 ed., that district judges shall not appoint more than three law clerks in any one circuit was not repeated in the Judiciary Appropriation Acts, 1944, 1945, and 1946, 57 Stat. 242, 58 Stat. 357, 59 Stat. 196, ch. 129. The Director of the Administrative Office for United States Courts advises that as a matter of fact, more than three law clerks are serving district judges in several of the circuits at the present time. Consequently the limitation is omitted from this section. The provision for appointment of secretaries is new. Existing law fixes compensation of secretaries but makes no provision for their appointment. (See section 604 of this title and reviser's note thereunder.) Minor changes were made in phraseology. SENATE REVISION AMENDMENT As finally enacted, sections 374c and 374d of Title 28, U.S.C., 1946 ed., which were derived from act July 23, 1947, ch. 300, Sec. 1, 2, 61 Stat. 409, were an additional source of this section. Hence, by Senate amendment, the section was changed to conform with such sections, and such act was included in the schedule of repeals. See 80th Congress Senate Report No. 1559. AMENDMENTS 1988 - Pub. L. 100-702 inserted at end 'A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court.' 1959 - Pub. L. 86-221 substituted provision permitting district judges to appoint necessary law clerks and secretaries subject to aggregate salary limitations for provisions permitting a district judge to appoint a secretary and also a law clerk upon certification of necessity by the chief judge of the circuit and permitting the chief judge of a district court having five or more district judges to appoint an assistant secretary. -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 775 of this title. ------DocID 36480 Document 342 of 1452------ -CITE- 28 USC Sec. 753 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 753. Reporters -STATUTE- (a) Each district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands shall appoint one or more court reporters. The number of reporters shall be determined by the Judicial Conference of the United States. The qualifications of such reporters shall be determined by standards formulated by the Judicial Conference. Each reporter shall take an oath faithfully to perform the duties of his office. Each such court, with the approval of the Director of the Administrative Office of the United States Courts, may appoint additional reporters for temporary service not exceeding three months, when there is more reporting work in the district than can be performed promptly by the authorized number of reporters and the urgency is so great as to render it impracticable to obtain the approval of the Judical Conference. If any such court and the Judicial Conference are of the opinion that it is in the public interest that the duties of reporter should be combined with those of any other employee of the court, the Judicial Conference may authorize such a combination and fix the salary for the performance of the duties combined. (b) Each session of the court and every other proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, subject to regulations promulgated by the Judicial Conference and subject to the discretion and approval of the judge. The regulations promulgated pursuant to the preceding sentence shall prescribe the types of electronic sound recording or other means which may be used. Proceedings to be recorded under this section include (1) all proceedings in criminal cases had in open court; (2) all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and (3) such other proceedings as a judge of the court may direct or as may be required by rule or order of court as (FOOTNOTE 1) may be requested by any party to the proceeding. (FOOTNOTE 1) So in original. Probably should be 'or as'. The reporter or other individual designated to produce the record shall attach his official certificate to the original shorthand notes or other original records so taken and promptly file them with the clerk who shall preserve them in the public records of the court for not less than ten years. The reporter or other individual designated to produce the record shall transcribe and certify such parts of the record of proceedings as may be required by any rule or order of court, including all arraignments, pleas, and proceedings in connection with the imposition of sentence in criminal cases unless they have been recorded by electronic sound recording as provided in this subsection and the original records so taken have been certified by him and filed with the clerk as provided in this subsection. He shall also transcribe and certify such other parts of the record of proceedings as may be required by rule or order of court. Upon the request of any party to any proceeding which has been so recorded who has agreed to pay the fee therefor, or of a judge of the court, the reporter or other individual designated to produce the record shall promptly transcribe the original records of the requested parts of the proceedings and attach to the transcript his official certificate, and deliver the same to the party or judge making the request. The reporter or other designated individual shall promptly delivery to the clerk for the records of the court a certified copy of any transcript so made. The transcript in any case certified by the reporter or other individual designated to produce the record shall be deemed prima facie a correct statement of the testimony taken and proceedings had. No transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other individual designated to produce the record. The original notes or other original records and the copy of the transcript in the office of the clerk shall be open during office hours to inspection by any person without charge. (c) The reporters shall be subject to the supervision of the appointing court and the Judicial Conference in the performance of their duties, including dealings with parties requesting transcripts. (d) The Judicial Conference shall prescribe records which shall be maintained and reports which shall be filed by the reporters. Such records shall be inspected and audited in the same manner as the records and accounts of clerks of the district courts, and may include records showing: (1) the quantity of transcripts prepared; (2) the fees charged and the fees collected for transcripts; (3) any expenses incurred by the reporters in connection with transcripts; (4) the amount of time the reporters are in attendance upon the courts for the purpose of recording proceedings; and (5) such other information as the Judicial Conference may require. (e) Each reporter shall receive an annual salary to be fixed from time to time by the Judicial Conference of the United States. All supplies shall be furnished by the reporter at his own expense. (f) Each reporter may charge and collect fees for transcripts requested by the parties, including the United States, at rates prescribed by the court subject to the approval of the Judicial Conference. He shall not charge a fee for any copy of a transcript delivered to the clerk for the records of court. Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question). The reporter may require any party requesting a transcript to prepay the estimated fee in advance except as to transcripts that are to be paid for by the United States. (g) If, upon the advice of the chief judge of any district court within the circuit, the judicial council of any circuit determines that the number of court reporters provided such district court pursuant to subsection (a) of this section is insufficient to meet temporary demands and needs and that the services of additional court reporters for such district court should be provided the judges of such district court (including the senior judges thereof when such senior judges are performing substantial judicial services for such court) on a contract basis, rather than by appointment of court reporters as otherwise provided in this section, and such judicial council notifies the Director of the Administrative Office, in writing, of such determination, the Director of the Administrative Office is authorized to and shall contract, without regard to section 3709 of the Revised Statutes of the United States, as amended (41 U.S.C. 5), with any suitable person, firm, association, or corporation for the providing of court reporters to serve such district court under such terms and conditions as the Director of the Administrative Office finds, after consultation with the chief judge of the district court, will best serve the needs of such district court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 921; Oct. 31, 1951, ch. 655, Sec. 46, 65 Stat. 726; June 28, 1955, ch. 189, Sec. 3(c), 69 Stat. 176; June 20, 1958, Pub. L. 85-462, Sec. 3(c), 72 Stat. 207; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; July 1, 1960, Pub. L. 86-568, title I, Sec. 116(c), 74 Stat. 303; Sept. 2, 1965, Pub. L. 89-163, 79 Stat. 619; Sept. 2, 1965, Pub. L. 89-167, 79 Stat. 647; June 2, 1970, Pub. L. 91-272, Sec. 14, 84 Stat. 298; Dec. 11, 1970, Pub. L. 91-545, 84 Stat. 1412; Apr. 2, 1982, Pub. L. 97-164, title IV, Sec. 401(a), 96 Stat. 56.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 9a(a), (b), (c), (d), and section 644 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (Apr. 30, 1900, ch. 339, Sec. 86, 31 Stat. 158; Mar. 3, 1909, ch. 269, Sec. 1, 35 Stat. 838; Mar. 3, 1911, ch. 231, Sec. 5a, as added Jan. 20, 1944, ch. 3, Sec. 1(a), (b), (c), (d), 58 Stat. 5, 6, 7; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; June 1, 1922, ch. 204, title II, 42 Stat. 614, 616; Jan. 3, 1923, ch. 21, title II, 52 Stat. 1084; Feb. 12, 1925, ch. 220, 43 Stat. 890). Section consolidates section 9a(a), (b), (c), (d) of title 28, U.S.C., 1940 ed., and part of section 644 of title 48, U.S.C., 1940 ed., relating to reporters. The provisions of section 644 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to clerks and deputy clerks, were incorporated in section 751 of this title. The provision of said section 644 fixing the salary of the reporter at $1,200 per annum was omitted as inconsistent with this section. Certain other provisions of said section 644 were also omitted. (See reviser's note under section 751 of this title.) Words 'including the District Court of the United States for the District of Columbia, and the district courts in the territories and insular possessions' were omitted as covered by 'Each district court in the United States, the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone, and the District Court of the Virgin Islands.' (See reviser's note under section 88 of this title.) The courts in Hawaii and Puerto Rico are district courts of the United States under definitive section 451 of this title. Words 'for the performance of the duties combined' were substituted for 'therefor, as provided by subsection (c) hereof, any provision of law to the contrary notwithstanding'. Subsections (e) and (f) of this section incorporate part of the provisions of subsection 9a(c) of title 28, U.S.C., 1940 ed. The other provisions of said subsection are incorporated in sections 550 (see Prior Provisions note under that section) and 1915 of this title. The last paragraph of subsection (b) of this section was revised to conform with the language of section 556 of title 28, U.S.C., 1940 ed., providing for inspection of books in the offices of clerks of district courts. Such section 556 will be omitted, however, as more properly coverable by rule of court. -REFTEXT- REFERENCES IN TEXT The Criminal Justice Act, referred to in subsec. (f), probably means Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, known as the Criminal Justice Act of 1964, which is classified to section 3006A of Title 18, Crimes and Criminal Procedure, and provisions set out as notes under section 3006A of Title 18. -MISC2- AMENDMENTS 1982 - Subsec. (b). Pub. L. 97-164, amended subsec. (b) generally, substituting provisions permitting proceedings to be recorded using electronic sound recording, or any other method, subject to the approval and authorization of the Judicial Conference and of the presiding judge, for provisions requiring that an official court reporter attend each session of the court and every other proceeding designated by rule or order of the court or one of the judges. 1970 - Subsec. (e). Pub. L. 91-272, Sec. 14(1), struck out provisions limiting to the $3,000 to $7,630 range the annual salary paid to reporters. Subsec. (f). Pub. L. 91-545 restricted authorization of United States to pay fees for transcripts furnished in criminal proceedings to transcripts furnished to persons proceeding under the Criminal Justice Act. Subsec. (g). Pub. L. 91-272, Sec. 14(2), added subsec. (g) 1965 - Subsec. (b). Pub. L. 89-163 made provision for recording of proceedings in United States District Courts by means of electronic sound recording devices, made subject to the Judicial Conference the types of electronic sound recording means used by the reporters, made electronic sound recordings of proceedings on arraignment, plea, and sentence in a criminal case when properly certified by the court reporter admissible evidence to establish the record of that part of the proceedings, required the transcribing of arraignments in addition to the criminal proceedings already required to be transcribed, and waived the transcribing requirement for arraignments, pleas, and sentencing proceedings when such proceedings have been electronically recorded and such records certified and filed as provided in this subsection. Subsec. (f). Pub. L. 89-167 provided for payment by United States of fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis if trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. 1960 - Subsec. (e). Pub. L. 86-568 increased maximum annual salary from $7,095 to $7,630. 1958 - Subsec. (a). Pub. L. 85-508 struck out provisions which related to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for State of Alaska. Subsec. (e). Pub. L. 85-462 increased maximum annual salary from $6,450 to $7,095. 1955 - Subsec. (e). Act June 28, 1955, increased maximum annual salary from $6,000 to $6,450. 1951 - Subsec. (a). Act Oct. 31, 1951, inserted reference to District Court of Guam in first par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1960 AMENDMENT Amendment by Pub. L. 86-568 effective on the first day of the first pay period which begins on or after July 1, 1960, see section 122 of Pub. L. 86-568. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see Pub. L. 85-508, set out as a note preceding section 21 of Title 48, Territories and Insular Possessions. SAVINGS PROVISION Section 401(b) of Pub. L. 97-164 provided that: 'The regulations promulgated by the Judicial Conference pursuant to subsection (b) of section 753 of title 28, as amended by subsection (a) of this section, shall not take effect before one year after the effective date of this Act (Oct. 1, 1982). During the one-year period after the date of the enactment of this Act (Apr. 2, 1982), the Judicial Conference shall experiment with the different methods of recording court proceedings. Prior to the effective date of such regulations, the law and regulations in effect the day before the date of enactment of this Act shall remain in full force and effect.' -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -MISC5- SALARY LIMITATION FOR COURT REPORTERS 1967 - Pub. L. 90-206, title II, Sec. 213(c), Dec. 16, 1967, 81 Stat. 635, inserted a new salary limitation for court reporters effective the first pay period which begins on or after Oct. 1, 1967, which reflected the respective applicable pay increases provided by section 202(a) of Pub. L. 90-206 in corresponding rates of compensation for particular officers and employees of the government. 1966 - Pub. L. 89-504, title II, Sec. 202(c), July 18, 1966, 80 Stat. 294, inserted a new salary limitation for court reporters effective the first pay period which begins on or after July 1, 1966, which reflected the respective applicable pay increases provided by section 102(a) of title I of Pub. L. 89-504 in corresponding rates of compensation for particular officers and employees of the government. 1965 - Pub. L. 89-301, Sec. 12(c), Oct. 29, 1965, 79 Stat. 1122, inserted a new salary limitation for court reporters which reflected the applicable pay increases provided by section 2(a) of Pub. L. 89-301 in corresponding rates of compensation for particular government officers and employees. 1964 - Pub. L. 88-426, title IV, Sec. 402(c), Aug. 14, 1964, 78 Stat. 434, inserted a new salary limitation for court reporters which reflected the applicable pay increases provided by title I of Pub. L. 88-426 in corresponding rates of compensation for particular government officers and employees. 1962 - Pub. L. 87-793, title VI, Sec. 1004(c), Oct. 11, 1962, 76 Stat. 866, inserted a new salary limitation for court reporters effective for the pay period beginning on or after Oct. 11, 1962, and ending immediately prior to the first pay period beginning on or after Jan. 1, 1964, and provided for a second salary limitation effective for the first pay period beginning on or after Jan. 1, 1964, which reflected applicable pay increases provided by title II of Pub. L. 87-793 in corresponding rates of compensation for particular government officers and employees. -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 775 of this title. ------DocID 36481 Document 343 of 1452------ -CITE- 28 USC Sec. 754 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 754. Receivers of property in different districts -STATUTE- A receiver appointed in any civil action or proceeding involving property, real, personal or mixed, situated in different districts shall, upon giving bond as required by the court, be vested with complete jurisdiction and control of all such property with the right to take possession thereof. He shall have capacity to sue in any district without ancillary appointment, and may be sued with respect thereto as provided in section 959 of this title. Such receiver shall, within ten days after the entry of his order of appointment, file copies of the complaint and such order of appointment in the district court for each district in which property is located. The failure to file such copies in any district shall divest the receiver of jurisdiction and control over all such property in that district. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 922.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 117 (Mar. 3, 1911, ch. 231, Sec. 56, 36 Stat. 1102). Word 'action' was substituted for 'suit', in view of Rule 2 of the Federal Rules of Civil Procedure. Section 117 of title 28, U.S.C., 1940 ed., applied to land or other property of a fixed character lying in different States within the same circuit. Words 'property, real, personal or mixed, situated in different districts', were inserted to broaden the scope of this section to cover all property in different districts without respect to situs 'within different states within same judicial circuit'. The revised section permits the receiver appointed by any district court to control all property of the defendant in whatever district the property is situated. The provisions of section 117 of title 28, U.S.C., 1940 ed., for divesting the receiver's jurisdiction and control of property in other districts upon disapproval by the circuit court of appeals or a judge thereof of the circuit embracing the district of appointment was omitted as unnecessary in view of sections 1292 and 2107 of this title. Said section 1292 provides for review of the order of appointment and the directions of the reviewing court will control the receiver. Provisions of section 117 of title 28, U.S.C., 1940 ed., relating to process are the basis of section 1692 of this title. Under section 117 of title 28, U.S.C., 1940 ed., failure to file copies of the complaint and order of appointment in any district where part of the property was located divested the receiver of jurisdiction over all the property except that part located in the State where the suit was brought. This has been changed by limiting the exception to the district where the copies are not filed. Obviously the election of the receiver not to take control of property in one district ought not to preclude his control in those districts in which he did file such copies. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Capacity to sue or be sued, see rule 17, Appendix to this title. CROSS REFERENCES Mismanagement of property by receiver, criminal penalty, see section 1911 of Title 18, Crimes and Criminal Procedure. Process and orders affecting property in different districts, see section 1692 of this title. ------DocID 36482 Document 344 of 1452------ -CITE- 28 USC Sec. 755 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 755. Criers and bailiffs -STATUTE- Each district judge may appoint a crier for the court in which he presides who shall perform also the duties of bailiff and messenger. A crier may perform also the duties of law clerk if he is qualified to do so and the district judge who appointed him designates him to serve as a crier-law clerk. A crier designated to serve as a crier-law clerk shall receive the compensation of a law clerk, but only so much of that compensation as is in excess of the compensation to which he would be entitled as a crier shall be deemed the compensation of a law clerk for the purposes of any limitation imposed by law upon the aggregate salaries of law clerks and secretaries appointed by a district judge. Each United States marshal may employ, with the approval of the judge, not exceeding four bailiffs as the district judge may determine, to attend the court, maintain order, wait upon the grand and petit juries, and perform such other necessary duties as the judge or marshal may direct. If the position of crier or bailiff is to be filled by the appointment of a person who has not previously served as either crier or bailiff, preference in the appointment shall be given to a person who has served in the military or naval forces of the United States in time of war and who has been honorably discharged therefrom, if in the opinion of the appointing officer such person is as well qualified as any other available person to perform to the satisfaction of the appointing officer all the duties of the position. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 923; Oct. 21, 1965, Pub. L. 89-281, 79 Stat. 1012; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7608(b), 102 Stat. 4515.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 9, 595, 596 (R.S. Sec. 715; Mar. 3, 1905, ch. 1487, 33 Stat. 1259; Mar. 3, 1911, ch. 231, Sec. 5, 36 Stat. 1088; June 1, 1922, ch. 204, title II, 42 Stat. 617; Jan. 3, 1923, ch. 21, title II, 42 Stat. 1084; May 28, 1924, ch. 204, title II, 43 Stat. 221; May 14, 1940, ch. 189, title III, 54 Stat. 204; June 28, 1941, ch. 258, title III, 55 Stat. 295; July 2, 1942, ch. 472, title III, 56 Stat. 486; July 1, 1943, ch. 182, title II, 57 Stat. 286; June 28, 1944, ch. 294, title II, 58 Stat. 410; Dec. 7, 1944, ch. 522, Sec. 1, 2, 58 Stat. 796; May 21, 1945, ch. 129, title II, 59 Stat. 184). Section consolidates parts of sections 9, 595, and 596 of title 28, U.S.C., 1940 ed. The other provisions of such sections appear in section 604 of this title. Compensation of criers and other court attendants, except bailiffs under section 604 of this title, will be fixed by the Director of the Administrative Office of the United States Courts. AMENDMENTS 1988 - Pub. L. 100-690 struck out third par. which provided each bailiff an allowance of $6 a day for services to be paid only for actual attendance when court was in session or judge or jury was present. 1965 - Pub. L. 89-281 inserted provisions to first par. permitting a crier to perform duties of law clerk if he is qualified to do so and district judge who appointed him designates him to serve as a crier-law clerk, specifying that a crier-law clerk shall receive compensation of a law clerk, and requiring that only so much of that compensation as is in excess of compensation to which he would be entitled as a crier shall be deemed compensation of a law clerk for purposes of any limitation imposed by law upon aggregate salaries of law clerks and secretaries appointed by a district judge. -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. ------DocID 36483 Document 345 of 1452------ -CITE- 28 USC Sec. 756 -EXPCITE- TITLE 28 PART III CHAPTER 49 -HEAD- Sec. 756. Power to appoint -STATUTE- Whenever a majority of the district judges of any district court cannot agree upon the appointment of any officer of such court, the chief judge shall make such appointment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 923.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 375 (Mar. 3, 1911, ch. 231, Sec. 260, 36 Stat. 1161; Feb. 25, 1919, ch.29, Sec. 6, 40 Stat. 1157; Mar. 1, 1929, ch. 419, 45 Stat. 1422; May 11, 1944, ch. 192, Sec. 1, 3, 58 Stat. 218, 219). Only part of section 375 of title 28, U.S.C., 1940 ed., appears in this section. The remainder is incorporated in sections 136, 294 and 371 of this title. The term 'chief judge' was substituted for 'senior district judge'. (See reviser's note under section 136 of this title.) Minor changes in phraseology were made. ------DocID 36484 Document 346 of 1452------ -CITE- 28 USC (CHAPTER 50 -EXPCITE- TITLE 28 PART III (CHAPTER 50 -HEAD- (CHAPTER 50 - OMITTED) -COD- CODIFICATION Chapter 50, consisting of sections 771 to 775, which was added by Pub. L. 95-598, title II, Sec. 233(a), Nov. 6, 1978, 92 Stat. 2665, and which related to bankruptcy courts, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. ------DocID 36485 Document 347 of 1452------ -CITE- 28 USC CHAPTER 51 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- CHAPTER 51 - UNITED STATES CLAIMS COURT -MISC1- Sec. 791. Clerk. (792, 793. Repealed.) 794. Law clerks and secretaries. 795. Bailiffs and messengers. 796. Reporting of court proceedings. 797. Recall of retired judges. 798. Places of holding court; appointment of special masters. AMENDMENTS 1984 - Pub. L. 98-620, title IV, Sec. 416(b), Nov. 8, 1984, 98 Stat. 3364, added item 798. 1982 - Pub. L. 97-164, title I, Sec. 121(b), (c)(2), (d)(2), (f)(2), (g)(2), Apr. 2, 1982, 96 Stat. 34-36, substituted 'United States Claims Court' for 'Court of Claims' as chapter heading and, in analysis of sections in the chapter, struck out item 792 'Commissioners' substituted 'Law clerks and secretaries' for 'Stenographers and clerical employees' in item 794, substituted 'Bailiffs and messengers' for 'Bailiff and messenger' in item 795, and substituted 'judges' for 'commissioners' in item 797. 1972 - Pub. L. 92-375, Sec. 1, Aug. 10, 1972, 86 Stat. 529, added item 797. 1970 - Pub. L. 91-272, Sec. 15(b), June 2, 1970, 84 Stat. 298, added item 796. 1954 - Act Sept. 3, 1954, ch. 1263, Sec. 40, 68 Stat. 1240, struck out item 793 'Reporter-commissioners; stenographers'. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see section 951 et seq. of this title. ------DocID 36486 Document 348 of 1452------ -CITE- 28 USC Sec. 791 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 791. Clerk -STATUTE- (a) The United States Claims Court may appoint a clerk, who shall be subject to removal by the court. The clerk, with the approval of the court, may appoint necessary deputies and employees in such numbers as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies and employees shall be subject to removal by the clerk with the approval of the court. (b) The clerk shall pay into the Treasury all fees, costs and other moneys collected by him. He shall make returns thereof to the Director of the Administrative Office of the United States Courts under regulations prescribed by him. (c) On the first day of every regular session of Congress, the clerk shall transmit to Congress a full and complete statement of all the judgments rendered by the court during the previous year, showing the dates and amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of the nature of the claims upon which they were rendered, and a statement of the costs taxed in each case. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 923; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 121(a), 96 Stat. 34.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 244, 248, 283a and 289 (Mar. 3, 1911, ch. 231, Sec. 139, 143, 183, 36 Stat. 1136, 1142; June 10, 1921, ch. 18, Sec. 301, 302, 310, 42 Stat. 23, 25, Mar. 3, 1933, ch. 212, title II, Sec. 19, 47 Stat. 1519; May 10, 1934, ch. 277, Sec. 512(b), 48 Stat. 759). This section consolidates a part of sections 244 and 248 with sections 283a and 289, all of title 28, U.S.C., 1940 ed. Provisions in section 248 of title 28, U.S.C., 1940 ed., for distribution by the clerk of copies of the court's decisions is incorporated in section 415 of this title. Certain provisions of section 244 of title 28, U.S.C., 1940 ed., relating to the bailiff and the chief messenger of the Court of Claims, and powers and duties of the clerk, his deputies and assistants, are incorporated in sections 795 and 956 of this title. A provision in section 244 of title 28, U.S.C., 1940 ed., relating to the oath of the clerk of such court was omitted as covered by section 951 of this title. Word 'clerk' was substituted for 'chief clerk' to harmonize with such designation of clerks of all other courts. Provision that such officers shall be under the direction of the court in the performance of their duties was omitted as superfluous. Provision in section 244 of title 28, U.S.C., 1940 ed., that the clerk and assistant shall be subject to removal by the Court was substituted for the grounds of misconduct or incapacity. This change is in harmony with like provisions as to the clerks of other courts. Section 289 of title 28, U.S.C., 1940 ed., required the Attorney General to duplicate the reporting to Congress of judgments which are furnished by the clerk. The revised section eliminates such duplication by requiring the clerk to transmit the information to Congress. Words 'Director of the Administrative Office of the United States Courts' were substituted for 'Attorney General,' in view of the act of August 7, 1939, ch. 501, Sec. 6, 53 Stat. 1226, 28 U.S.C., 1940 ed., following Sec. 446. As revised, this section is consistent with similar provisions as to clerks of district courts and the courts of appeals in chapters 47 and 49 of this title. Changes in phraseology were made. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164 substituted 'The United States Claims Court may appoint a clerk, who shall be subject to removal by the court' for 'The Court of Claims may appoint a clerk and an assistant clerk, each of whom shall be subject to removal by the court' and 'The clerk, with the approval of the court, may appoint necessary deputies and employees in such numbers as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies and employees shall be subject to removal by the clerk with the approval of the court' for 'The court shall report any such removal and the cause thereof to Congress as soon as possible'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Compensation and expenses of clerks of court, their deputies, etc., see section 604 of this title. Oath and bond of clerks and deputies, see section 951 of this title. ------DocID 36487 Document 349 of 1452------ -CITE- 28 USC Sec. 792 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- (Sec. 792. Repealed. Pub. L. 97-164, title I, Sec. 121(b), Apr. 2, 1982, 96 Stat. 34) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 923; July 28, 1953, ch. 253, Sec. 4(a), 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 41, 68 Stat. 1240; Aug. 14, 1964, Pub. L. 88-426, title IV, Sec. 403(h), 78 Stat. 434; Oct. 15, 1966, Pub. L. 89-681, Sec. 3, 80 Stat. 959; Dec. 16, 1967, Pub. L. 90-206, title II, Sec. 213(e), 81 Stat. 635; Aug. 9, 1975, Pub. L. 94-82, title II, Sec. 205(b)(7), 89 Stat. 423; July 20, 1977, Pub. L. 95-69, Sec. 3, 91 Stat. 274, provided for appointment by Court of Claims and compensation of sixteen commissioners. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36488 Document 350 of 1452------ -CITE- 28 USC Sec. 793 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- (Sec. 793. Repealed. July 28, 1953, ch. 253, Sec. 6, 67 Stat. 226) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 924, related to appointment of reporter-commissioners by Court of Claims and employment of stenographers therefor. ------DocID 36489 Document 351 of 1452------ -CITE- 28 USC Sec. 794 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 794. Law clerks and secretaries -STATUTE- The judges of the United States Claims Court may appoint necessary law clerks and secretaries, in such numbers as the Judicial Conference of the United States may approve, subject to any limitation of the aggregate salaries of such employees which may be imposed by law. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 924; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 121(c)(1), 96 Stat. 34; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1003(a)(3), 102 Stat. 4665.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 270 (Feb. 24, 1925, ch. 301, Sec. 2, 43 Stat. 965; May 29, 1928, ch. 852, Sec. 711, 45 Stat. 882; June 23, 1930, ch. 573, Sec. 1, 46 Stat. 799; Oct. 16, 1941, ch. 443, 55 Stat. 741). The first sentence of the revised section makes express provision for appointment of stenographers and necessary clerical employees. Other provisions of section 270 of title 28, U.S.C., 1940 ed., are incorporated in sections 456 and 792 of this title. Specific provision for $5 per diem for stenographers is omitted as unnecessary and inconsistent with section 962 of this title. Travel and subsistence allowances of Government employees are governed by sections 822-833 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees. Changes were made in phraseology. AMENDMENTS 1988 - Pub. L. 100-702 inserted at end 'A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5, unless specifically included by the appointing judge or by local rule of court.' 1982 - Pub. L. 97-164 substituted 'Law clerks and secretaries' for 'Stenographers and clerical employees' as section catchline and, in text, substituted 'The judges of the United States Claims Court may appoint necessary law clerks and secretaries, in such numbers as the Judicial Conference of the United States may approve, subject to any limitation of the aggregate salaries of such employees which may be imposed by law' for 'The Court of Claims shall appoint stenographers and other clerical employees in such numbers as may be necessary each of whom shall be subject to removal by the court'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. ------DocID 36490 Document 352 of 1452------ -CITE- 28 USC Sec. 795 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 795. Bailiffs and messengers -STATUTE- The chief judge of United States Claims Court, with the approval of the court, may appoint necessary bailiffs and messengers, in such numbers as the Director of the Administrative Office of the United States Courts may approve, each of whom shall be subject to removal by the chief judge, with the approval of the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 924; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 121(d)(1), 96 Stat. 35.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 244 (Mar. 3, 1911, ch. 231, Sec. 139, 36 Stat. 1136). The provision in section 244 of title 28, U.S.C., 1940 ed., that the bailiff should serve 4 years unless sooner removed by the court for cause, was changed by omitting the 4-year tenure and removal 'for cause' requirement. As revised this section conforms with sections relating to the similar court officers. Term 'chief messenger' in section 244 of title 28, U.S.C., 1940 ed., was changed to 'messenger' as the court has but one messenger. A provision of section 244 of title 28, U.S.C., 1940 ed., providing for appointment of a clerk and assistant is incorporated in section 791 of this title, and a provision thereof, relating to powers and duties of the clerk, his deputies and assistants, is incorporated in section 956 of this title. The second paragraph was added to conform with sections 713, 755, and 834 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Bailiffs and messengers' for 'Bailiff and messenger' in section catchline and, in text, substituted 'The chief judge of United States Claims Court, with the approval of the court, may appoint necessary bailiffs and messengers, in such numbers as the Director of the Administrative Office of the United States Courts may approve, each of whom shall be subject to removal by the chief judge, with the approval of the court' for 'The Court of Claims may appoint a bailiff and a messenger who shall be subject to removal by the court' and struck out provision that the bailiff attend the court, preserve order, and perform such other necessary duties as the court might direct. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Compensation and expenses of court officers and employees, see section 604 of this title. ------DocID 36491 Document 353 of 1452------ -CITE- 28 USC Sec. 796 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 796. Reporting of court proceedings -STATUTE- Subject to the approval of the United States Claims Court, the Director of the Administrative Office of the United States Courts is authorized to contract for the reporting of all proceedings had in open court, and in such contract to fix the terms and conditions under which such reporting services shall be performed, including the terms and conditions under which transcripts shall be supplied by the contractor to the court and to other persons, departments, and agencies. -SOURCE- (Added Pub. L. 91-272, Sec. 15(a), June 2, 1970, 84 Stat. 298, and amended Pub. L. 97-164, title I, Sec. 121(e), Apr. 2, 1982, 96 Stat. 35.) -MISC1- AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Subject to the approval of the United States Claims Court, the Director of the Administrative Office of the United States Courts' for 'The Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36492 Document 354 of 1452------ -CITE- 28 USC Sec. 797 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 797. Recall of retired judges -STATUTE- (a) Any judge of the United States Claims Court who has retired from regular active service under subchapter III of chapter 83, or chapter 84, of title 5 shall be known and designated as a senior judge and may perform duties as a judge when recalled pursuant to subsection (b) of this section. (b) The chief judge of the Claims Court may, whenever he deems it advisable, recall any senior judge, with such judge's consent, to perform such duties as a judge and for such period of time as the chief judge may specify. (c) Any senior judge performing duties pursuant to this section shall not be counted as a judge for purposes of the number of judgeships authorized by section 171 of this title. (d) Any senior judge, while performing duties pursuant to this section, shall be paid the same allowances for travel and other expenses as a judge in active service. Such senior judge shall also receive from the Claims Court supplemental pay in an amount sufficient, when added to his civil service retirement annuity, to equal the salary of a judge in active service for the same period or periods of time. Such supplemental pay shall be paid in the same manner as the salary of a judge. -SOURCE- (Added Pub. L. 92-375, Sec. 2, Aug. 10, 1972, 86 Stat. 529, and amended Pub. L. 97-164, title I, Sec. 121(f)(1), Apr. 2, 1982, 96 Stat. 35; Pub. L. 99-651, title II, Sec. 202(c), Nov. 14, 1986, 100 Stat. 3648.) -MISC1- AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-651 inserted reference to chapter 84 of title 5. 1982 - Pub. L. 97-164 substituted 'judges' for 'commissioners' in section catchline. Subsec. (a). Pub. L. 97-164 substituted 'Any judge of the United States Claims Court who has retired from regular active service under subchapter III of chapter 83 of title 5 shall be known and designated as a senior judge and may perform duties as a judge when recalled pursuant to subsection (b) of this section' for 'Any commissioner who has retired from regular active service under the Civil Service Retirement Act shall be known and designated as a senior commissioner and may perform duties as a commissioner when recalled pursuant to subsection (b) of this section'. Subsec. (b). Pub. L. 97-164 substituted 'The chief judge of the Claims Court may, whenever he deems it advisable, recall any senior judge, with such judge's consent, to perform such duties as a judge and for such period of time as the chief judge may specify' for 'The United States Court of Claims, whenever it deems such action advisable, may recall any senior commissioner, with the latter's acquiescence, to perform such duties as a commissioner and for such period of time as the court may specify'. Subsec. (c). Pub. L. 97-164 substituted 'Any senior judge performing duties pursuant to this section shall not be counted as a judge for purposes of the number of judgeships authorized by section 171 of this title' for 'Any senior commissioner performing duties pursuant to this section shall not be counted as a commissioner for purposes of the number of commissioner positions authorized by section 792 of this title'. Subsec. (d). Pub. L. 97-164 substituted 'judge' for 'commissioner' wherever appearing, 'Such senior judge' for 'He', and 'Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective Jan. 1, 1987, see section 203 of Pub. L. 99-651, set out as a note under section 155 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 374, 375 of this title. ------DocID 36493 Document 355 of 1452------ -CITE- 28 USC Sec. 798 -EXPCITE- TITLE 28 PART III CHAPTER 51 -HEAD- Sec. 798. Places of holding court; appointment of special masters -STATUTE- (a) The United States Claims Court is hereby authorized to utilize facilities and hold court in Washington, District of Columbia, and in four locations outside of the Washington, District of Columbia metropolitan area, for the purpose of conducting trials and such other proceedings as may be appropriate to executing the court's functions. The Director of the Administrative Office of the United States Courts shall designate such locations and provide for such facilities. (b) The chief judge of the Claims Court may appoint special masters to assist the court in carrying out its functions. Any special masters so appointed shall carry out their responsibilities and be compensated in accordance with procedures set forth in the rules of the court. -SOURCE- (Added Pub. L. 98-620, title IV, Sec. 416(a), Nov. 8, 1984, 98 Stat. 3364.) ------DocID 36494 Document 356 of 1452------ -CITE- 28 USC (CHAPTER 53 -EXPCITE- TITLE 28 PART III (CHAPTER 53 -HEAD- (CHAPTER 53 - REPEALED) ------DocID 36495 Document 357 of 1452------ -CITE- 28 USC Sec. 831 to 834 -EXPCITE- TITLE 28 PART III (CHAPTER 53 -HEAD- (Sec. 831 to 834. Repealed. Pub. L. 97-164, title I, Sec. 122(a), Apr. 2, 1982, 96 Stat. 36) -MISC1- Section 831, act June 25, 1948, ch. 646, 62 Stat. 924, authorized Court of Customs and Patent Appeals to appoint a clerk, assistant clerks, stenographic law clerks, clerical assistants, and other necessary employees, and set out duties of clerk. Section 832, acts June 25, 1948, ch. 646, 62 Stat. 924; May 24, 1949, ch. 139, Sec. 76, 63 Stat. 101, authorized Court of Customs and Patent Appeals to appoint a marshal and set out duties of that marshal. Section 833, act June 25, 1948, ch. 646, 62 Stat. 925, authorized Court of Customs and Patent Appeals to appoint a reporter and set out duties of that reporter. Section 834, act June 25, 1948, ch. 646, 62 Stat. 925, authorized Court of Customs and Patent Appeals to appoint necessary bailiffs and messengers and set out duties of those bailiffs and messengers. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36496 Document 358 of 1452------ -CITE- 28 USC CHAPTER 55 -EXPCITE- TITLE 28 PART III CHAPTER 55 -HEAD- CHAPTER 55 - COURT OF INTERNATIONAL TRADE -MISC1- Sec. 871. Clerk, chief deputy clerk, assistant clerk, deputies, assistants, and other employees. 872. Criers, bailiffs, and messengers. AMENDMENTS 1986 - Pub. L. 99-466, Sec. 3(b)(3), Oct. 14, 1986, 100 Stat. 1191, struck out item 872 'Marshal and deputy marshals' and redesignated item 873 as 872. 1980 - Pub. L. 96-417, title V, Sec. 501(16), Oct. 10, 1980, 94 Stat. 1742, substituted in chapter heading 'COURT OF INTERNATIONAL TRADE' for 'CUSTOMS COURT'. 1959 - Pub. L. 86-243, Sec. 1, Sept. 9, 1959, 73 Stat. 474, included chief deputy clerk and assistant clerk in item 871, substituted 'Marshal and deputy marshals' for 'Marshal; appointment' in item 872, and added item 873. 1949 - Act May 24, 1949, ch. 139, Sec. 77, 63 Stat. 101, inserted '; appointment' in item 872. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see section 951 et seq. of this title. ------DocID 36497 Document 359 of 1452------ -CITE- 28 USC Sec. 871 -EXPCITE- TITLE 28 PART III CHAPTER 55 -HEAD- Sec. 871. Clerk, chief deputy clerk, assistant clerk, deputies, assistants, and other employees -STATUTE- The Court of International Trade may appoint a clerk, a chief deputy clerk, an assistant clerk, deputy clerks, and such deputies, assistants, and other employees as may be necessary for the effective dispatch of the business of the court, who shall be subject to removal by the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 925; Sept. 9, 1959, Pub. L. 86-243, Sec. 1, 73 Stat. 474; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(17), 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 6 of title 19, U.S.C., 1940 ed., Customs Duties (May 4, 1923, ch. 251, Sec. 2, 42 Stat. 1453; Jan. 13, 1925, ch. 76, 43 Stat. 748; May 28, 1926, ch. 411, Sec. 1, 44 Stat. 669; June 17, 1930, ch. 497, title IV, Sec. 518, 649, 46 Stat. 737, 762). Section is based on the last two sentences of section 6 of title 19, U.S.C., 1940 ed., which provided for appointment by the Attorney General in conformity with the civil service laws. This and other administrative powers of the Department of Justice with respect to the courts were transferred to the Administrative Office of the United States Courts by section 446 of title 28, U.S.C., 1940 ed., which is section 604 of this title. The revised section vests the power of appointment in the chief judge to conform with section 253 of this title and rules 5 and 22 of the Rules of the Customs Court adopted May 29, 1936. Changes were made in phraseology. AMENDMENTS 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. 1959 - Pub. L. 86-243 included chief deputy clerk and assistant clerk in section catchline, transferred the appointing authority from the chief judge to the Customs Court, provided for appointment of a chief deputy clerk, an assistant clerk and deputy clerks and for power of removal and deleted reference to the civil service laws with respect to appointments. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. SAVINGS PROVISION Section 4 of Pub. L. 86-243 provided that: 'Nothing contained in the amendments made by this Act (enacting section 873 and amending sections 253, 550, 871 and 872 of this title) shall be construed to deprive any person serving on the date of enactment of this Act (Sept. 9, 1959) as an officer or employee of the Customs Court of any rights, privileges, or civil service status, if any, to which such person is entitled under the laws of the United States or regulations thereunder.' -CROSS- CROSS REFERENCES Compensation and expenses of clerks of court, their deputies, etc., see section 604 of this title. Oath and bond of clerks and deputies, see section 951 of this title. ------DocID 36498 Document 360 of 1452------ -CITE- 28 USC Sec. 872 -EXPCITE- TITLE 28 PART III CHAPTER 55 -HEAD- Sec. 872. Criers, bailiffs, and messengers -STATUTE- The Court of International Trade may appoint such criers as it may require for said court, which criers shall also perform the duties of bailiffs and messengers and such other duties as the court directs and shall be subject to removal by the court. -SOURCE- (Added Pub. L. 86-243, Sec. 1, Sept. 9, 1959, 73 Stat. 474, Sec. 873, and amended Pub. L. 96-417, title V, Sec. 501(19), Oct. 10, 1980, 94 Stat. 1742; renumbered Sec. 872, Pub. L. 99-466, Sec. 3(b)(2), Oct. 14, 1986, 100 Stat. 1191.) -MISC1- PRIOR PROVISIONS A prior section 872, acts June 25, 1948, ch. 646, 62 Stat. 925; May 24, 1949, ch. 139, Sec. 78, 63 Stat. 101; Sept. 9, 1959, Pub. L. 86-243, Sec. 1, 73 Stat. 474; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(18), 94 Stat. 1742, relating to a marshal and deputy marshals, was repealed by Pub. L. 99-466, Sec. 3(b)(1), 4, Oct. 14, 1986, 100 Stat. 1191, effective 60 days after Oct. 14, 1986. AMENDMENTS 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. SAVINGS PROVISION Enactment of section by Pub. L. 86-243 not to deprive Customs Court officers or employees of any rights, privileges, or civil service status, see section 4 of Pub. L. 86-243, set out as a note under section 871 of this title. ------DocID 36499 Document 361 of 1452------ -CITE- 28 USC CHAPTER 57 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- CHAPTER 57 - GENERAL PROVISIONS APPLICABLE TO COURT OFFICERS AND EMPLOYEES -MISC1- Sec. 951. Oath of office of clerks and deputies. (952. Repealed.) 953. Administration of oaths and acknowledgments. 954. Death of clerk; duties of deputies. 955. Practice of law restricted. 956. Powers and duties of clerks and deputies. 957. Clerks ineligible for certain offices. 958. Persons ineligible as receivers. 959. Trustees and receivers suable; management; State laws. 960. Tax liability. 961. Office expenses of clerks. (962. Repealed.) 963. Courts defined. SENATE REVISION AMENDMENT This chapter was renumbered '57', but without change in its section numbers, by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1972 - Pub. L. 92-310, title II, Sec. 206(e)(2), (f)(2), June 6, 1972, 86 Stat. 203, struck out item 952 'Bonds of clerks and deputies', and struck out 'and remedies against' before 'deputies' in item 954. 1968 - Pub. L. 90-623, Sec. 4, Oct. 22, 1968, 82 Stat. 1315, struck out item 962 'Traveling expenses'. 1949 - Act May 24, 1949, ch. 139, Sec. 78a, 63 Stat. 101, struck out 'by clerks' after 'law' in item 955. -CROSS- CROSS REFERENCES General provisions applicable to court officers and employees, see section 951 et seq. of this title. ------DocID 36500 Document 362 of 1452------ -CITE- 28 USC Sec. 951 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 951. Oath of office of clerks and deputies -STATUTE- Each clerk of court and his deputies shall take the following oath or affirmation before entering upon their duties: 'I, XXX XXX, having been appointed XXX, do solemnly swear (or affirm) that I will truly and faithfully enter and record all orders, decrees, judgments and proceedings of such court, and will faithfully and impartially discharge all other duties of my office according to the best of my abilities and understanding. So help me God.' -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 925.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 512 (R.S., Sec. 794; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Section 512 of title 28, U.S.C., 1940 ed., applied only to the Clerk of the Supreme Court and clerks and deputies of the district courts. This section is applicable to the Supreme Court and to all courts established by act of Congress. The last sentence of section 512 of title 28, U.S.C., 1940 ed., reading 'The words 'So help me God.' shall be omitted in all cases where an affirmation is admitted instead of an oath,' was omitted as unnecessary because on affirmation such words would not be included. As revised, the section conforms with section 453 of this title providing for the form of judicial oath. Minor changes were made in phraseology. ------DocID 36501 Document 363 of 1452------ -CITE- 28 USC Sec. 952 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- (Sec. 952. Repealed. Pub. L. 92-310, title II, Sec. 206(e)(1), June 6, 1972, 86 Stat. 203) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 926, related to bonds of clerks and deputies. ------DocID 36502 Document 364 of 1452------ -CITE- 28 USC Sec. 953 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 953. Administration of oaths and acknowledgments -STATUTE- Each clerk of court and his deputies may administer oaths and affirmations and take acknowledgments. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 264, 523 and 525, section 1114(a) of title 26, U.S.C., 1940 ed., Internal Revenue Code, and District of Columbia Code, 1940 ed., Sec. 11-402 (R.S. Sec. 799; May 28, 1896, ch. 252, Sec. 19, 29 Stat. 184; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1901, ch. 854, Sec. 178, 31 Stat. 1219; June 30, 1902, ch. 1329, 32 Stat. 527; Mar. 3, 1911, ch. 231, Sec. 158, 291, 36 Stat. 1139, 1167; Feb. 10, 1939, ch. 2, Sec. 1114(a), 53 Stat. 160; Oct. 21, 1942, ch. 619, title V, Sec. 504(a)(c), 56 Stat. 957; Feb. 25, 1944, ch. 63, title V, Sec. 503, 58 Stat. 72). This section consolidates a part of section 525, sections 264 and 523 of title 28, U.S.C., 1940 ed., part of section 1114(a) of title 26, U.S.C., 1940 ed., section 11-402 of the District of Columbia Code, 1940 ed., As respects acknowledgments, sections 264, 523 and 525 of title 28, U.S.C., 1940 ed., and section 11-402 of District of Columbia Code, 1940 ed., referred only to the Court of Claims and the District Court for the District of Columbia. However, section 555 of said title 28, before amendment in 1944, provided for the collection of a fee by district court clerks for taking acknowledgments. The 1944 amendment provided for the fixing of fees by the Judicial Conference of the United States. If notaries and other minor officials may take acknowledgments there seems to be no reason why clerks of Federal courts and their deputies should not have such power. Words 'Except as provided in section 591 of this title,' in section 525 of title 28, U.S.C., 1940 ed., were omitted. Under such section 591, the provisions of such section 525 were inapplicable to the Territory of Alaska, but a later act of June 6, 1900, ch. 786, Sec. 7, 31 Stat. 324, section 106 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, provided that clerks of the District Court for Alaska should perform the duties required or authorized to be performed by clerks of United States courts in other districts. Provisions of section 525 of title 28, U.S.C., 1940 ed., relating to United States commissioners are incorporated in section 637 of this title. Provisions of section 264 of title 28, U.S.C., 1940 ed., and section 1114(a) of title 26, U.S.C., 1940 ed., relating to administration of oaths and acknowledgments by judges, are incorporated in section 459 of this title. For distribution of other provisions of such section 1114(a) of title 26, see Distribution Table. Changes in phraseology were made. SENATE REVISION AMENDMENT Those provisions of this section which related to the Tax Court were eliminated by Senate amendment, therefore section 1114(a) of Title 26, U.S.C., Internal Revenue Code, was not a part of the source of this section upon final enactment. The Senate amendments also eliminated section 1114(a) of the Internal Revenue Code from the schedule of repeals. See 80th Congress Senate Report No. 1559. ------DocID 36503 Document 365 of 1452------ -CITE- 28 USC Sec. 954 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 954. Death of clerk; duties of deputies -STATUTE- Upon the death of any clerk of court, his deputy or deputies shall execute the duties of the deceased clerk in his name until his successor is appointed and qualifies. The compensation of a deceased clerk of the Supreme Court may be paid to his personal representatives until his successor is appointed and qualifies. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926; June 6, 1972, Pub. L. 92-310, title II, Sec. 206(f), 86 Stat. 203.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 8, 222 and 327 (Mar. 3, 1911, ch. 231, Sec. 4, 125, 221, 36 Stat. 1087, 1132, 1153). Section consolidates parts of sections 8, 222 and 327 of title 28, U.S.C., 1940 ed. Sections 8, 222 and 327 of title 28, U.S.C., 1940 ed., related only to district courts, courts of appeals and the Supreme Court, respectively. This section applies to all Federal courts and is in conformity with section 548 (546) of this title relating to death of a United States marshal. The provision for continuance of the salary of the clerk of the Supreme Court until his successor is appointed and qualifies was inserted to preserve existing law as declared in the unpublished opinion of Chief Justice Taft, March 23, 1932 (filed in the Department of Justice), with respect to a deceased clerk of the Supreme Court. Other provisions of sections 8, 222 and 327 of title 28, U.S.C., 1940 ed., are incorporated in sections 671, 711, and 751 of this title. AMENDMENTS 1972 - Pub. L. 92-310 struck out 'and remedies against' before 'deputies' in section catchline and repealed provisions which related to the default or misfeasance of a deputy in connection with the bond of a deceased clerk of a Federal court. ------DocID 36504 Document 366 of 1452------ -CITE- 28 USC Sec. 955 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 955. Practice of law restricted -STATUTE- The clerk of each court and his deputies and assistants shall not practice law in any court of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 395 and 396 (Mar. 3, 1911, ch. 231, Sec. 273, 274, 36 Stat. 1164). Section consolidates parts of sections 395 and 396 of title 28, U.S.C., 1940 ed. The remainder, relating to United States marshals and their deputies, is incorporated in section 556 of this title. Sections 395 and 396 of title 28, U.S.C., 1940 ed., have been extended to include all clerks, deputies, and assistants. The revised section substitutes as simpler and more appropriate, the prohibition against practice of law 'in any court of the United States.' (See reviser's note under section 556 of this title.) For explanation of provisions omitted from sections 395 and 396 of title 28, U.S.C., 1940 ed., also see reviser's note under section 556 of this title. Changes in phraseology were made. ------DocID 36505 Document 367 of 1452------ -CITE- 28 USC Sec. 956 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 956. Powers and duties of clerks and deputies -STATUTE- The clerk of each court and his deputies and assistants shall exercise the powers and perform the duties assigned to them by the court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 221, 244, 304 and 305 (Mar. 3, 1911, ch. 231, Sec. 124, 139, 191, 192, 36 Stat. 1132, 1136, 1144; June 16, 1930, ch. 494, 46 Stat. 589). This section contains only a part of sections 221, 244, 304 and 305 of title 28, U.S.C., 1940 ed. The other provisions of such sections are incorporated in sections 604, 711, 831, 833, 834, 957 and 1926 of this title. Sections 221, 244, 304 and 305 of title 28, U.S.C., 1940 ed., related to the clerks of the circuit courts of appeals, the Court of Claims and the Court of Customs and Patent Appeals. The phrase 'assigned to them by the court' was substituted for the indefinite provision of section 221 of title 28, U.S.C., 1940 ed., that the clerk of each circuit court of appeals 'shall exercise the same powers and perform the same duties * * * as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable.' This section is new insofar as it affects the Clerk of the Supreme Court and clerks of the district courts and the Customs Court. Existing law does not prescribe the powers and duties of those clerks. The duties of the clerk of the Customs Court have been prescribed by the rules of such court adopted May 29, 1936. Changes were made in phraseology. ------DocID 36506 Document 368 of 1452------ -CITE- 28 USC Sec. 957 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 957. Clerks ineligible for certain offices -STATUTE- A clerk of a court or any of his deputies shall not be appointed a commissioner, master, referee or receiver in any case, unless there are special reasons requiring such appointment which are recited in the order of appointment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 234, 92 Stat. 2667; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 122(b), 96 Stat. 36; July 10, 1984, Pub. L. 98-353, title I, Sec. 109, 98 Stat. 342.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 127, 304 (Mar. 3, 1911, ch. 231, Sec. 68, 191, 36 Stat. 1105, 1144). Section consolidates section 127 with part of 304 of title 28, U.S.C., 1940 ed. Provisions of section 304 of title 28, U.S.C., 1940 ed., relating to appointment, powers, duties, and compensation of the clerk of the Court of Customs and Patent Appeals, and table of fees are incorporated in sections 604, 831, 956 and 1926 of this title. Appointment and compensation of masters for district courts, see Rule 53(a) of the Federal Rules of Civil Procedure. The words 'commissioner' and 'referee' did not appear in section 127 of title 28, U.S.C., 1940 ed. They were added to subsection (a) to remove possible ambiguity. Words 'by the court or any judge thereof' in section 304 of title 28, U.S.C., 1940 ed., were omitted as surplusage. Words 'or assistant clerks' and 'in any case' were added in subsection (b) to make the section applicable to that officer and consistent with the prohibition in this section against deputies of district court clerks. Minor changes were made in phraseology. AMENDMENTS 1984 - Pub. L. 98-353 struck out 'district' before 'court'. 1982 - Pub. L. 97-164 struck out designation '(a)' before 'A clerk of a district court' and struck out subsec. (b) which had provided that the clerk or assistant clerk of the Court of Customs and Patent Appeals could not be appointed a commissioner, master, or referee in any case. 1978 - Pub. L. 95-598 directed the amendment of section by inserting 'or bankruptcy court' after 'district court', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-353 effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES For provision against the appointment of certain officers as receivers, see section 958 of this title. ------DocID 36507 Document 369 of 1452------ -CITE- 28 USC Sec. 958 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 958. Persons ineligible as receivers -STATUTE- A person holding any civil or military office or employment under the United States or employed by any justice or judge of the United States shall not at the same time be appointed a receiver in any case in any court of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 527 (May 28, 1896, ch. 252, Sec. 20, 29 Stat. 184; Dec. 28, 1945, ch. 592, 59 Stat. 659). Provisions of section 527 of title 28, U.S.C., 1940 ed., relating to ineligibility of various persons as United States commissioner appear as section 631 of this title. Words 'janitor of any Government building' were omitted as covered by words 'person holding any civil or military employment under the United States' used in the revised section. The general language of the revised section was substituted for the provisions of section 527 of title 28, U.S.C., 1940 ed., enumerating certain officers and employees. The exception of Alaska by reference to 'section 591 of this title' in section 527 of title 28, U.S.C., 1940 ed., was omitted as surplusage. Alaska is excluded by reason of the words 'any court of the United States' which are limited by definitive section 451 of this title. Changes in phraseology were made. ------DocID 36508 Document 370 of 1452------ -CITE- 28 USC Sec. 959 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 959. Trustees and receivers suable; management; State laws -STATUTE- (a) Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice, but this shall not deprive a litigant of his right to trial by jury. (b) Except as provided in section 1166 of title 11, a trustee, receiver or manager appointed in any cause pending in any court of the United States, including a debtor in possession, shall manage and operate the property in his possession as such trustee, receiver or manager according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 926; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 235, 92 Stat. 2667.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 124, 125 (Mar. 3, 1911, ch. 231, Sec. 65, 66, 36 Stat. 1104). Section consolidates part of section 124 of title 28, U.S.C., 1940 ed., with section 125 of the same title. The criminal penalty for violation of said section 124 is incorporated in section 1911 of Title 18, Crimes and Criminal Procedure. Section was extended and made applicable to trustees and debtors in possession. The provision at the end of subsection (a) for preserving the right to a jury trial was added to clarify the intent of section 125 of title 28, U.S.C., 1940 ed., as construed in Vany v. Receiver of Toledo, St. L. and K.C. R.R. Co., C.C. 1895, 67 F. 379. Changes in phraseology were made. AMENDMENTS 1978 - Subsec. (b). Pub. L. 95-598 substituted 'Except as provided in section 1166 of title 11, a trustee' for 'A trustee'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Capacity to sue or be sued, see rule 17, Appendix to this title. CROSS REFERENCES Mismanagement of property by receiver, criminal penalty, see section 1911 of Title 18, Crimes and Criminal Procedure. Process and orders affecting property in different districts, see section 1692 of this title. Receivers of property in different districts, jurisdiction, see section 754 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 754 of this title. ------DocID 36509 Document 371 of 1452------ -CITE- 28 USC Sec. 960 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 960. Tax liability -STATUTE- Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 927.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 124a (June 18, 1934, ch. 585, 48 Stat. 993). A proviso in section 124a of title 28, U.S.C., 1940 ed., relating to taxes accruing prior to the effective date of the 1934 act, was omitted as obsolete. References in section 124a of title 28, U.S.C., 1940 ed., to specific officers was omitted as covered by the words 'Any officers.' Word 'Federal' was added before 'State' in recognition of the liability of such officers for Federal taxes under the revenue laws. Changes in phraseology were made. ------DocID 36510 Document 372 of 1452------ -CITE- 28 USC Sec. 961 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 961. Office expenses of clerks -STATUTE- Each clerk of court shall be allowed his necessary office expenses when authorized by the Director of the Administrative Office of the United States Courts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 927.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 544, 563 (Mar. 3, 1891, ch. 517, Sec. 2, 26 Stat. 826; Feb. 26, 1919, ch. 49, Sec. 5, 40 Stat. 1182; Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1412; June 1, 1922, ch. 204, title II, 42 Stat. 616; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921). Section consolidates parts of sections 544 and 563 of title 28, U.S.C., 1940 ed. For remainder of such sections, see Distribution Table. Changes were made in phraseology. ------DocID 36511 Document 373 of 1452------ -CITE- 28 USC Sec. 962 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- (Sec. 962. Repealed. Pub. L. 89-554, Sec. 8(a), Sept. 6, 1966, 80 Stat. 663) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 927, related to traveling expenses and subsistence for officers and employees of the courts of the United States and of the Administrative Office of the United States Courts. ------DocID 36512 Document 374 of 1452------ -CITE- 28 USC Sec. 963 -EXPCITE- TITLE 28 PART III CHAPTER 57 -HEAD- Sec. 963. Courts defined -STATUTE- As used in this chapter, unless the context indicates otherwise, the words 'court' and 'courts' include the Supreme Court of the United States and the courts enumerated in section 610 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 927.) -MISC1- HISTORICAL AND REVISION NOTES This section was included to embrace the Supreme Court and all courts under the supervision of the Administrative Office of the United States Courts. See section 610 of this title and reviser's note thereunder. ------DocID 36513 Document 375 of 1452------ -CITE- 28 USC CHAPTER 58 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- CHAPTER 58 - UNITED STATES SENTENCING COMMISSION -MISC1- Sec. 991. United States Sentencing Commission; establishment and purposes. 992. Terms of office; compensation. 993. Powers and duties of Chairman. 994. Duties of the Commission. 995. Powers of the Commission. 996. Director and staff. 997. Annual report. 998. Definitions. ------DocID 36514 Document 376 of 1452------ -CITE- 28 USC Sec. 991 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 991. United States Sentencing Commission; establishment and purposes -STATUTE- (a) There is established as an independent commission in the judicial branch of the United States a United States Sentencing Commission which shall consist of seven voting members and one nonvoting member. The President, after consultation with representatives of judges, prosecuting attorneys, defense attorneys, law enforcement officials, senior citizens, victims of crime, and others interested in the criminal justice process, shall appoint the voting members of the Commission, by and with the advice and consent of the Senate, one of whom shall be appointed, by and with the advice and consent of the Senate, as the Chairman. At least three of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States. Not more than four of the members of the Commission shall be members of the same political party. The Attorney General, or his designee, shall be an ex officio, nonvoting member of the Commission. The Chairman and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown. (b) The purposes of the United States Sentencing Commission are to - (1) establish sentencing policies and practices for the Federal criminal justice system that - (A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code; (B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and (C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and (2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2017, and amended Pub. L. 99-22, Sec. 1(1), Apr. 15, 1985, 99 Stat. 46.) -MISC1- AMENDMENTS 1985 - Subsec. (a). Pub. L. 99-22 struck out 'in regular active service' after 'Federal judges'. EFFECTIVE DATE Chapter effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub. L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure. COMPOSITION OF MEMBERS OF COMMISSION DURING FIRST FIVE-YEAR PERIOD For provisions directing that, notwithstanding the provisions of this section, during the five-year period following Oct. 12, 1984, the United States Sentencing Commission shall consist of nine members, including two ex officio, nonvoting members, see section 235(b)(5) of Pub. L. 98-473, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 994 of this title. ------DocID 36515 Document 377 of 1452------ -CITE- 28 USC Sec. 992 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 992. Terms of office; compensation -STATUTE- (a) The voting members of the United States Sentencing Commission shall be appointed for six-year terms, except that the initial terms of the first members of the Commission shall be staggered so that - (1) two members, including the Chairman, serve terms of six years; (2) three members serve terms of four years; and (3) two members serve terms of two years. (b) No voting member may serve more than two full terms. A voting member appointed to fill a vacancy that occurs before the expiration of the term for which his predecessor was appointed shall be appointed only for the remainder of such term. (c) The Chairman of the Commission shall hold a full-time position and shall be compensated during the term of office at the annual rate at which judges of the United States courts of appeals are compensated. The voting members of the Commission, other than the Chairman, shall hold full-time positions until the end of the first six years after the sentencing guidelines go into effect pursuant to section 235(a)(1)(B)(ii) of the Sentencing Reform Act of 1984, and shall be compensated at the annual rate at which judges of the United States courts of appeals are compensated. Thereafter, the voting members of the Commission, other than the Chairman, shall hold part-time positions and shall be paid at the daily rate at which judges of the United States courts of appeals are compensated. A Federal judge may serve as a member of the Commission without resigning his appointment as a Federal judge. (d) Sections 44(c) and 134(b) of this title (relating to the residence of judges) do not apply to any judge holding a full-time position on the Commission under subsection (c) of this section. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2018, and amended Pub. L. 99-646, Sec. 4, 6(a), Nov. 10, 1986, 100 Stat. 3592.) -REFTEXT- REFERENCES IN TEXT Section 235(a)(1)(B)(ii) of the Sentencing Reform Act of 1984, referred to in subsec. (c), is section 235(a)(1)(B)(ii) of Pub. L. 98-473, which is set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure. -MISC2- AMENDMENTS 1986 - Subsec. (c). Pub. L. 99-646, Sec. 4, substituted 'section 235(a)(1)(B)(ii) of the Sentencing Reform Act of 1984' for 'section 225(a)(1)(B)(ii) of the Sentencing Reform Act of 1983'. Subsec. (d). Pub. L. 99-646, Sec. 6(a), added subsec. (d). COMMENCEMENT OF TERMS OF FIRST MEMBERS OF COMMISSION For provisions directing that, for purposes of subsec. (a) of this section, the terms of the first members of the United States Sentencing Commission shall not begin to run until the sentencing guidelines go into effect pursuant to section 235(a)(1)(B)(ii) of Pub. L. 98-473, see section 235(a)(2) of Pub. L. 98-473, both of which are set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure. ------DocID 36516 Document 378 of 1452------ -CITE- 28 USC Sec. 993 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 993. Powers and duties of Chairman -STATUTE- The Chairman shall - (a) call and preside at meetings of the Commission, which shall be held for at least two weeks in each quarter after the members of the Commission hold part-time positions; and (b) direct - (1) the preparation of requests for appropriations for the Commission; and (2) the use of funds made available to the Commission. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub. L. 99-22, Sec. 1(2), Apr. 15, 1985, 99 Stat. 46; Pub. L. 99-646, Sec. 5, Nov. 10, 1986, 100 Stat. 3592.) -MISC1- AMENDMENTS 1986 - Subsec. (b)(2). Pub. L. 99-646 struck out provision that, before appointment of first Chairman, Administrative Office of the United States Courts may make requests for appropriations for Commission. 1985 - Subsec. (b)(2). Pub. L. 99-22 inserted provision authorizing the Administrative Office of the United States Courts to make requests for appropriations for the Commission before the appointment of the first Chairman of the Commission. ------DocID 36517 Document 379 of 1452------ -CITE- 28 USC Sec. 994 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 994. Duties of the Commission -STATUTE- (a) The Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of this title and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System - (1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, including - (A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment; (B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment; (C) a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term; (D) a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively; and (E) a determination under paragraphs (6) and (11) of section 3563(b) of title 18; (2) general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code, including the appropriate use of - (A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18; (B) the conditions of probation and supervised release set forth in sections 3563(b) and 3583(d) of title 18; (C) the sentence modification provisions set forth in sections 3563(c), 3564, 3573, and 3582(c) of title 18; (D) the fine imposition provisions set forth in section 3572 of title 18; (E) the authority granted under rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject a plea agreement entered into pursuant to rule 11(e)(1); and (F) the temporary release provisions set forth in section 3622 of title 18, and the prerelease custody provisions set forth in section 3624(c) of title 18; and (3) guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of supervised release and revocation of supervised release set forth in section 3583(e) of title 18. (b)(1) The Commission, in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code. (2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment. (c) The Commission, in establishing categories of offenses for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, have any relevance to the nature, extent, place of service, or other incidents (FOOTNOTE 1) of an appropriate sentence, and shall take them into account only to the extent that they do have relevance - (FOOTNOTE 1) So in original. Probably should be 'incidence'. (1) the grade of the offense; (2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense; (3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of persons, or a breach of public trust; (4) the community view of the gravity of the offense; (5) the public concern generated by the offense; (6) the deterrent effect a particular sentence may have on the commission of the offense by others; and (7) the current incidence of the offense in the community and in the Nation as a whole. (d) The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents (FOOTNOTE 1) of an appropriate sentence, and shall take them into account only to the extent that they do have relevance - (1) age; (2) education; (3) vocational skills; (4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant; (5) physical condition, including drug dependence; (6) previous employment record; (7) family ties and responsibilities; (8) community ties; (9) role in the offense; (10) criminal history; and (11) degree of dependence upon criminal activity for a livelihood. The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders. (e) The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant. (f) The Commission, in promulgating guidelines pursuant to subsection (a)(1), shall promote the purposes set forth in section 991(b)(1), with particular attention to the requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities. (g) The Commission, in promulgating guidelines pursuant to subsection (a)(1) to meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take into account the nature and capacity of the penal, correctional, and other facilities and services available, and shall make recommendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission. (h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and - (1) has been convicted of a felony that is - (A) a crime of violence; or (B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); (FOOTNOTE 2) and (FOOTNOTE 2) See References in Text note below. (2) has previously been convicted of two or more prior felonies, each of which is - (A) a crime of violence; or (B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a). (FOOTNOTE 2) (i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant - (1) has a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions; (2) committed the offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income; (3) committed the offense in furtherance of a conspiracy with three or more persons engaging in a pattern of racketeering activity in which the defendant participated in a managerial or supervisory capacity; (4) committed a crime of violence that constitutes a felony while on release pending trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately convicted; or (5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved trafficking in a substantial quantity of a controlled substance. (j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury. (k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment. (l) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect - (1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of - (A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and (B) multiple offenses committed at different times, including those cases in which the subsequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the provisions of section 3147 (penalty for an offense committed while on release) of title 18; and (2) the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commission of an offense and for an offense that was the sole object of the conspiracy or solicitation. (m) The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense. This will require that, as a starting point in its development of the initial sets of guidelines for particular categories of cases, the Commission ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission, and in cases involving sentences to terms of imprisonment, the length of such terms actually served. The Commission shall not be bound by such average sentences, and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of title 18, United States Code. (n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. (o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work. (p) The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines and modifications to previously submitted amendments that have not taken effect, including modifications to the effective dates of such amendments. Such an amendment or modification shall be accompanied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress. (q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including - (1) modernization of existing facilities; (2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure adequate security; and (3) use of existing Federal facilities, such as those currently within military jurisdiction. (r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate. (s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in - (1) the community view of the gravity of the offense; (2) the public concern generated by the offense; and (3) the deterrent effect particular sentences may have on the commission of the offense by others. (t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason. (u) If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced. (v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition. (w) The appropriate judge or officer shall submit to the Commission in connection with each sentence imposed (other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline) a written report of the sentence, the offense for which it is imposed, the age, race, and sex of the offender, information regarding factors made relevant by the guidelines, and such other information as the Commission finds appropriate. The Commission shall submit to Congress at least annually an analysis of these reports and any recommendations for legislation that the Commission concludes is warranted by that analysis. (x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub. L. 99-217, Sec. 3, Dec. 26, 1985, 99 Stat. 1728; Pub. L. 99-363, Sec. 2, July 11, 1986, 100 Stat. 770; Pub. L. 99-570, title I, Sec. 1006(b), 1008, Oct. 27, 1986, 100 Stat. 3207-7; Pub. L. 99-646, Sec. 6(b), 56, Nov. 10, 1986, 100 Stat. 3592, 3611; Pub. L. 100-182, Sec. 16(b), 23, Dec. 7, 1987, 101 Stat. 1269, 1271; Pub. L. 100-690, title VII, Sec. 7083, 7103(b), 7109, Nov. 18, 1988, 102 Stat. 4408, 4417, 4419.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (a)(2)(E), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. Section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), referred to in subsec. (h)(1)(B), (2)(B), was classified to section 955a of Title 21, Food and Drugs, prior to the general amendment of Act September 15, 1980, by Pub. L. 99-570, title III, Sec. 3202, Oct. 27, 1986, 100 Stat. 3207-95, and Pub. L. 99-640, Sec. 17, Nov. 10, 1986, 100 Stat. 3552, which restated the provisions of former section 1 of Act September 15, 1980, in the new section 3 of Act September 15, 1980, which is classified to section 1903 of Title 46, Appendix, Shipping. For complete classification of this Act to the Code, see section 1901 of Title 46, Appendix, and Tables. -MISC2- AMENDMENTS 1988 - Subsec. (a)(1)(E). Pub. L. 100-690, Sec. 7103(b), added subpar. (E). Subsec. (n). Pub. L. 100-690, Sec. 7083, substituted 'as a minimum sentence' for 'as minimum sentence'. Subsec. (p). Pub. L. 100-690, Sec. 7109, amended subsec. (p) generally. Prior to amendment, subsec. (p) read as follows: 'The Commission, at or after the beginning of a regular session of Congress but not later than the first day of May, shall report to the Congress any amendments of the guidelines promulgated pursuant to subsection (a)(1), and a report of the reasons therefor, and the amended guidelines shall take effect one hundred and eighty days after the Commission reports them, except to the extent the effective date is enlarged or the guidelines are disapproved or modified by Act of Congress.' 1987 - Subsec. (r). Pub. L. 100-182, Sec. 23(a), substituted 'two years' for 'one year'. Subsec. (s). Pub. L. 100-182, Sec. 23(b), struck out at end: 'Within one hundred and eighty days of the filing of such petition the Commission shall provide written notice to the defendant whether or not it has approved the petition. If the petition is disapproved the written notice shall contain the reasons for such disapproval. The Commission shall submit to the Congress at least annually an analysis of such written notices.' Subsec. (w). Pub. L. 100-182, Sec. 16(b), inserted '(other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline)' after 'each sentence imposed'. 1986 - Subsec. (a)(2)(C). Pub. L. 99-363, Sec. 2(1)(B), amended subpar. (C) generally, inserting '3564,' after '3563(c),'. Subsec. (a)(2)(D) to (F). Pub. L. 99-363, Sec. 2(1)(A), (C), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively. Subsec. (a)(3). Pub. L. 99-570, Sec. 1006(b), inserted 'and revocation of supervised release' after 'supervised release'. Pub. L. 99-363, Sec. 2(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: 'guidelines or general policy statements regarding the appropriate use of the probation revocation provisions set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of probation or supervised release set forth in sections 3563(c), 3564(d), and 3583(e) of title 18.' Subsec. (b). Pub. L. 99-363, Sec. 2(3), designated existing provisions as pars. (1) and (2), and in par. (2) substituted 'the greater of 25 percent or 6 months, except that, if the maximum term of the range is 30 years or more, the maximum may be life imprisonment' for '25 per centum'. Subsec. (b)(2). Pub. L. 99-646, Sec. 56, substituted 'that, if the minimum' for 'that, if the maximum'. Subsec. (h). Pub. L. 99-646, Sec. 6(b)(1), (2), substituted 'guidelines specify' for 'guidelines will specify' and struck out 'by section 3581(b) of title 18, United States Code,' after 'term authorized' in introductory text. Subsec. (i). Pub. L. 99-646, Sec. 6(b)(2), substituted 'guidelines specify' for 'guidelines will specify'. Subsecs. (n) to (t). Pub. L. 99-570, Sec. 1008(1), (2), added subsec. (n) and redesignated former subsecs. (n) to (t) as (o) to (u), respectively. Subsec. (u). Pub. L. 99-646, Sec. 6(b)(3), which directed that subsec. (t) be amended by inserting 'in what circumstances and' after 'specify' and striking out 'that are outside the applicable guideline ranges' after 'terms of imprisonment', was executed to subsec. (u) to reflect the probable intent of Congress and the intervening redesignation of subsec. (t) as (u) by Pub. L. 99-570. Pub. L. 99-570, Sec. 1008(2), redesignated subsec. (t) as (u). Subsecs. (v) to (x). Pub. L. 99-570, Sec. 1008(2), redesignated former subsecs. (u) to (w) as (v) to (x), respectively. 1985 - Subsec. (q). Pub. L. 99-217 substituted 'not later than one year after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect' for 'within three years of the date of enactment of the Sentencing Reform Act of 1983'. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100-182, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure. INCREASED PENALTIES IN MAJOR BANK CRIME CASES Pub. L. 101-647, title XXV, Sec. 2507, Nov. 29, 1990, 104 Stat. 4862, provided that: '(a) Increased Penalties. - Pursuant to section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide that a defendant convicted of violating, or conspiring to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of title 18, United States Code, or section 1341 or 1343 affecting a financial institution (as defined in section 20 of title 18, United States Code), shall be assigned not less than offense level 24 under chapter 2 of the sentencing guidelines if the defendant derives more than $1,000,000 in gross receipts from the offense. '(b) Amendments to Sentencing Guidelines. - If the sentencing guidelines are amended after the effective date of this section (Nov. 29, 1990), the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result.' GUIDELINES RELATING TO METHAMPHETAMINE OFFENSES Pub. L. 101-647, title XXVII, Sec. 2701, Nov. 29, 1990, 104 Stat. 4912, provided that: 'The United States Sentencing Commission is instructed to amend the existing guidelines for offenses involving smokable crystal methamphetamine under section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) so that convictions for offenses involving smokable crystal methamphetamine will be assigned an offense level under the guidelines which is two levels above that which would have been assigned to the same offense involving other forms of methamphetamine.' GUIDELINES RELATING TO OFFENSES SUBSTANTIALLY JEOPARDIZING SAFETY AND SOUNDNESS OF FEDERALLY INSURED FINANCIAL INSTITUTIONS Pub. L. 101-73, title IX, Sec. 961(m), Aug. 9, 1989, 103 Stat. 501, provided that: 'Pursuant to section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide for a substantial period of incarceration for a violation of, or a conspiracy to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343, or 1344 of title 18, United States Code, that substantially jeopardizes the safety and soundness of a federally insured financial institution.' PENALTIES FOR IMPORTATION OF CONTROLLED SUBSTANCES BY AIRCRAFT AND OTHER VESSELS Section 6453 of Pub. L. 100-690 provided that: '(a) In General. - Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1010(a) of the Controlled Substances Import and Export Act (21 U.S.C. 960(a)) under circumstances in which - '(1) an aircraft other than a regularly scheduled commercial air carrier was used to import the controlled substance; or '(2) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is - '(A) two levels greater than the level that would have been assigned had the offense not been committed under circumstances set forth in (A) or (B) ((1) or (2)) above; and '(B) in no event less than level 26. '(b) Effect of Amendment. - If the sentencing guidelines are amended after the effective date of this section (Nov. 18, 1988), the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result.' ENHANCED PENALTIES FOR OFFENSES INVOLVING CHILDREN Pub. L. 101-647, title III, Sec. 321, Nov. 29, 1990, 104 Stat. 4817, provided that: 'The United States Sentencing Commission shall amend existing guidelines for sentences involving sexual crimes against children, including offenses contained in chapter 109A of title 18, so that more substantial penalties may be imposed if the Commission determines current penalties are inadequate.' Section 6454 of Pub. L. 100-690 provided that: '(a) In General. - Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating sections 405, 405A, or 405B of the Controlled Substances Act (21 U.S.C. 845, 845a or 845b) involving a person under 18 years of age shall be assigned an offense level under chapter 2 of the sentencing guidelines that is - '(1) two levels greater than the level that would have been assigned for the underlying controlled substance offense; and '(2) in no event less than level 26. '(b) Effects of Amendment. - If the sentencing guidelines are amended after the effective date of this section (Nov. 18, 1988), the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result. '(c) Multiple Enhancements. - The guidelines referred to in subsection (a), as promulgated or amended under such subsection, shall provide that an offense that could be subject to multiple enhancements pursuant to such subsection is subject to not more than one such enhancement.' DRUG OFFENSES WITHIN FEDERAL PRISONS; SENTENCING GUIDELINES Section 6468(c), (d) of Pub. L. 100-690 provided that: '(c) Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1791(a)(1) of title 18, United States Code, and punishable under section 1791(b)(1) of that title as so redesignated, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is - '(1) two levels greater than the level that would have been assigned had the offense not been committed in prison; and '(2) in no event less than level 26. '(d) If the sentencing guidelines are amended after the effective date of this section (Nov. 18, 1988), the Sentencing Commission shall implement the instruction set forth in subsection (c) so as to achieve a comparable result.' COMMON CARRIER OPERATION UNDER INFLUENCE OF ALCOHOL OR DRUGS; SENTENCING GUIDELINES Section 6482(c) of Pub. L. 100-690 provided that: '(1) Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (Pub. L. 100-182, set out below), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that - '(A) a defendant convicted of violating section 342 of title 18, United States Code, under circumstances in which death results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 26; and '(B) a defendant convicted of violating section 342 of title 18, United States Code, under circumstances in which serious bodily injury results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 21. '(2) If the sentencing guidelines are amended after the effective date of this section (Nov. 18, 1988), the Sentencing Commission shall implement the instruction set forth in paragraph (1) so as to achieve a comparable result.' EMERGENCY GUIDELINES PROMULGATION AUTHORITY Section 21 of Pub. L. 100-182 provided that: '(a) In General. - In the case of - '(1) an invalidated sentencing guideline; '(2) the creation of a new offense or amendment of an existing offense; or '(3) any other reason relating to the application of a previously established sentencing guideline, and determined by the United States Sentencing Commission to be urgent and compelling; the Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of title 28 and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System a temporary guideline or amendment to an existing guideline, to remain in effect until and during the pendency of the next report to Congress under section 994(p) of title 28, United States Code. '(b) Expiration of Authority. - The authority of the Commission under paragraphs (1) and (2) of subsection (a) shall expire on November 1, 1989. The authority of the Commission to promulgate and distribute guidelines under paragraph (3) of subsection (a) shall expire on May 1, 1988.' SUBMISSION TO CONGRESS OF INITIAL SENTENCING GUIDELINES Provisions directing that the United States Sentencing Commission submit to Congress within 30 months of Oct. 12, 1984, the initial sentencing guidelines promulgated pursuant to subsec. (a)(1) of this section, see section 235(a)(1)(B)(i) of Pub. L. 98-473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure. EFFECTIVE DATE OF SENTENCING GUIDELINES Sentencing guidelines promulgated pursuant to this section effective when U.S. Sentencing Commission has submitted the initial set of sentencing guidelines to Congress, the General Accounting Office has studied and reported to Congress on the guidelines, Congress has examined the guidelines, and section 212(a)(2) of Pub. L. 98-473 takes effect (Nov. 1, 1987), see section 235(a)(1)(B)(ii) of Pub. L. 98-473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure. STUDIES OF IMPACT AND OPERATION OF SENTENCING GUIDELINE SYSTEM; REPORTING REQUIREMENTS Section 236 of Pub. L. 98-473 provided that: '(a)(1) Four years after the sentencing guidelines promulgated pursuant to section 994(a)(1), and the provisions of sections 3581, 3583, and 3624 of title 18, United States Code, go into effect, the General Accounting Office shall undertake a study of the guidelines in order to determine their impact and compare the guidelines system with the operation of the previous sentencing and parole release system, and, within six months of the undertaking of such study, report to the Congress the results of its study. '(2) Within one month of the start of the study required under subsection (a), the United States Sentencing Commission shall submit a report to the General Accounting Office, all appropriate courts, the Department of Justice, and the Congress detailing the operation of the sentencing guideline system and discussing any problems with the system or reforms needed. The report shall include an evaluation of the impact of the sentencing guidelines on prosecutorial discretion, plea bargaining, disparities in sentencing, and the use of incarceration, and shall be issued by affirmative vote of a majority of the voting members of the Commission. '(b) The Congress shall review the study submitted pursuant to subsection (a) in order to determine - '(1) whether the sentencing guideline system has been effective; '(2) whether any changes should be made in the sentencing guideline system; and '(3) whether the parole system should be reinstated in some form and the life of the Parole Commission extended.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 995, 998 of this title; title 18 sections 3143, 3552, 3553, 3582, 3583, 3621, 3622, 5037; title 29 sections 504, 1111. ------DocID 36518 Document 380 of 1452------ -CITE- 28 USC Sec. 995 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 995. Powers of the Commission -STATUTE- (a) The Commission, by vote of a majority of the members present and voting, shall have the power to - (1) establish general policies and promulgate such rules and regulations for the Commission as are necessary to carry out the purposes of this chapter; (2) appoint and fix the salary and duties of the Staff Director of the Sentencing Commission, who shall serve at the discretion of the Commission and who shall be compensated at a rate not to exceed the highest rate now or hereafter prescribed for Level 6 of the Senior Executive Service Schedule (5 U.S.C. 5382); (3) deny, revise, or ratify any request for regular, supplemental, or deficiency appropriations prior to any submission of such request to the Office of Management and Budget by the Chairman; (4) procure for the Commission temporary and intermittent services to the same extent as is authorized by section 3109(b) of title 5, United States Code; (5) utilize, with their consent, the services, equipment, personnel, information, and facilities of other Federal, State, local, and private agencies and instrumentalities with or without reimbursement therefor; (6) without regard to 31 U.S.C. 3324, enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the Commission, with any public agency, or with any person, firm, association, corporation, educational institution, or non-profit organization; (7) accept and employ, in carrying out the provisions of this title, voluntary and uncompensated services, notwithstanding the provisions of 31 U.S.C. 1342, however, individuals providing such services shall not be considered Federal employees except for purposes of chapter 81 of title 5, United States Code, with respect to job-incurred disability and title 28, United States Code, with respect to tort claims; (8) request such information, data, and reports from any Federal agency or judicial officer as the Commission may from time to time require and as may be produced consistent with other law; (9) monitor the performance of probation officers with regard to sentencing recommendations, including application of the Sentencing Commission guidelines and policy statements; (10) issue instructions to probation officers concerning the application of Commission guidelines and policy statements; (11) arrange with the head of any other Federal agency for the performance by such agency of any function of the Commission, with or without reimbursement; (12) establish a research and development program within the Commission for the purpose of - (A) serving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices; and (B) assisting and serving in a consulting capacity to Federal courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices; (13) collect systematically the data obtained from studies, research, and the empirical experience of public and private agencies concerning the sentencing process; (14) publish data concerning the sentencing process; (15) collect systematically and disseminate information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a) of title 18, United States Code; (16) collect systematically and disseminate information regarding effectiveness of sentences imposed; (17) devise and conduct, in various geographical locations, seminars and workshops providing continuing studies for persons engaged in the sentencing field; (18) devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel and other persons connected with the sentencing process; (19) study the feasibility of developing guidelines for the disposition of juvenile delinquents; (20) make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy; (21) hold hearings and call witnesses that might assist the Commission in the exercise of its powers or duties; (22) perform such other functions as are required to permit Federal courts to meet their responsibilities under section 3553(a) of title 18, United States Code, and to permit others involved in the Federal criminal justice system to meet their related responsibilities; (23) retain private attorneys to provide legal advice to the Commission in the conduct of its work, or to appear for or represent the Commission in any case in which the Commission is authorized by law to represent itself, or in which the Commission is representing itself with the consent of the Department of Justice; and the Commission may in its discretion pay reasonable attorney's fees to private attorneys employed by it out of its appropriated funds. When serving as officers or employees of the United States, such private attorneys shall be considered special government employees as defined in section 202(a) of title 18; and (24) grant incentive awards to its employees pursuant to chapter 45 of title 5, United States Code. (b) The Commission shall have such other powers and duties and shall perform such other functions as may be necessary to carry out the purposes of this chapter, and may delegate to any member or designated person such powers as may be appropriate other than the power to establish general policy statements and guidelines pursuant to section 994(a)(1) and (2), the issuance of general policies and promulgation of rules and regulations pursuant to subsection (a)(1) of this section, and the decisions as to the factors to be considered in establishment of categories of offenses and offenders pursuant to section 994(b). The Commission shall, with respect to its activities under subsections (a)(9), (a)(10), (a)(11), (a)(12), (a)(13), (a)(14), (a)(15), (a)(16), (a)(17), and (a)(18), to the extent practicable, utilize existing resources of the Administrative Office of the United States Courts and the Federal Judicial Center for the purpose of avoiding unnecessary duplication. (c) Upon the request of the Commission, each Federal agency is authorized and directed to make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the Commission in the execution of its functions. (d) A simple majority of the membership then serving shall constitute a quorum for the conduct of business. Other than for the promulgation of guidelines and policy statements pursuant to section 994, the Commission may exercise its powers and fulfill its duties by the vote of a simple majority of the members present. (e) Except as otherwise provided by law, the Commission shall maintain and make available for public inspection a record of the final vote of each member on any action taken by it. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2024, and amended Pub. L. 100-690, title VII, Sec. 7104, 7105, 7106(b), Nov. 18, 1988, 102 Stat. 4418; Pub. L. 101-650, title III, Sec. 325(b)(5), Dec. 1, 1990, 104 Stat. 5121.) -REFTEXT- REFERENCES IN TEXT The provisions of title 28, United States Code, with respect to tort claims, referred to in subsec. (a)(7), are classified generally to section 1346(b) and chapter 171 (Sec. 2671 et seq.) of this title. -MISC2- AMENDMENTS 1990 - Subsec. (a)(22). Pub. L. 101-650 struck out 'and' after semicolon at end. 1988 - Subsec. (a)(2). Pub. L. 100-690, Sec. 7105, substituted 'Level 6 of the Senior Executive Service Schedule (5 U.S.C. 5382)' for 'grade 18 of the General Schedule pay rates (5 U.S.C. 5332)'. Subsec. (a)(23). Pub. L. 100-690, Sec. 7104, added par. (23). Subsec. (a)(24). Pub. L. 100-690, Sec. 7106(b), added par. (24). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 998 of this title. ------DocID 36519 Document 381 of 1452------ -CITE- 28 USC Sec. 996 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 996. Director and staff -STATUTE- (a) The Staff Director shall supervise the activities of persons employed by the Commission and perform other duties assigned to him by the Commission. (b) The Staff Director shall, subject to the approval of the Commission, appoint such officers and employees as are necessary in the execution of the functions of the Commission. The officers and employees of the Commission shall be exempt from the provisions of part III of title 5, United States Code, except the following chapters: 45 (Incentive Awards), 81 (Compensation for Work Injuries), 83 (Retirement), 85 (Unemployment Compensation), 87 (Life Insurance), and 89 (Health Insurance). -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2026, and amended Pub. L. 100-690, title VII, Sec. 7106(c), Nov. 18, 1988, 102 Stat. 4418; Pub. L. 101-650, title III, Sec. 325(b)(6), Dec. 1, 1990, 104 Stat. 5121.) -MISC1- AMENDMENTS 1990 - Subsec. (b). Pub. L. 101-650 substituted 'and 89 (Health Insurance)' for '89 (Health Insurance), and 91 (Conflicts of Interest)'. 1988 - Subsec. (b). Pub. L. 100-690 inserted reference to chapter 45 (Incentive Awards). ------DocID 36520 Document 382 of 1452------ -CITE- 28 USC Sec. 997 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 997. Annual report -STATUTE- The Commission shall report annually to the Judicial Conference of the United States, the Congress, and the President of the United States on the activities of the Commission. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2026.) ------DocID 36521 Document 383 of 1452------ -CITE- 28 USC Sec. 998 -EXPCITE- TITLE 28 PART III CHAPTER 58 -HEAD- Sec. 998. Definitions -STATUTE- As used in this chapter - (a) 'Commission' means the United States Sentencing Commission; (b) 'Commissioner' means a member of the United States Sentencing Commission; (c) 'guidelines' means the guidelines promulgated by the Commission pursuant to section 994(a) of this title; and (d) 'rules and regulations' means rules and regulations promulgated by the Commission pursuant to section 995 of this title. -SOURCE- (Added Pub. L. 98-473, title II, Sec. 217(a), Oct. 12, 1984, 98 Stat. 2026.) ------DocID 36522 Document 384 of 1452------ -CITE- 28 USC PART IV -EXPCITE- TITLE 28 PART IV -HEAD- PART IV - JURISDICTION AND VENUE -MISC1- Chap. Sec. 81. Supreme Court 1251 83. Courts of Appeals 1291 85. District Courts; Jurisdiction 1331 87. District Courts; Venue 1391 89. District Courts; Removal of Cases from State Courts 1441 91. United States Claims Court 1491 (93. Repealed) 95. Court of International Trade 1581 97. Jurisdictional Immunities of Foreign States 1602 99. General Provisions 1631 AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 133(j)(1), 134, title III, Sec. 301(b), Apr. 2, 1982, 96 Stat. 41, 55, substituted 'United States Claims Court' for 'Court of Claims' in item for chapter 91, struck out item for chapter 93 'Court of Customs and Patent Appeals', and added item for chapter 99. 1980 - Pub. L. 96-417, title V, Sec. 501(20), Oct. 10, 1980, 94 Stat. 1742, substituted 'Court of International Trade' for 'Customs Court' in item for chapter 95. 1978 - Pub. L. 95-598, title II, Sec. 241(b), Nov. 6, 1978, 92 Stat. 2671, directed the addition of item for chapter 90, 'District Courts and Bankruptcy Courts', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1976 - Pub. L. 94-583, Sec. 4(b), Oct. 21, 1976, 90 Stat. 2897, added item for chapter 97. -CROSS- CROSS REFERENCES District of Columbia courts, jurisdiction, see Title 11 of District of Columbia Code. Judicial power of the United States, see Const. Art. 3, Sec. 1, 2, and U.S. Const. Amend. 11. Tax Court jurisdiction, see section 7441 et seq. of Title 26, Internal Revenue Code. ------DocID 36523 Document 385 of 1452------ -CITE- 28 USC CHAPTER 81 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- CHAPTER 81 - SUPREME COURT -MISC1- Sec. 1251. Original jurisdiction. (1252. Repealed.) 1253. Direct appeals from decisions of three-judge courts. 1254. Courts of appeals; certiorari; certified questions. (1255, 1256. Repealed.) 1257. State courts; certiorari. 1258. Supreme Court of Puerto Rico; certiorari. 1259. Court of Military Appeals; certiorari. AMENDMENTS 1988 - Pub. L. 100-352, Sec. 1, 2(c), 5(a), June 27, 1988, 102 Stat. 662, 663, struck out item 1252 'Direct appeals from decisions invalidating Acts of Congress', struck out 'appeal;' after 'certiorari;' in item 1254, and struck out 'appeal;' after 'State courts;' in item 1257 and after 'of Puerto Rico;' in item 1258. 1983 - Pub. L. 98-209, Sec. 10(a)(2), Dec. 6, 1983, 97 Stat. 1406, added item 1259. 1982 - Pub. L. 97-164, title I, Sec. 123, Apr. 2, 1982, 96 Stat. 36, struck out item 1255 'Court of Claims; certiorari; certified questions' and item 1256 'Court of Customs and Patent Appeals; certiorari'. 1961 - Pub. L. 87-189, Sec. 2, Aug. 30, 1961, 75 Stat. 417, added item 1258. DEFINITIONS OF COURTS AND JUDGES Section 32 of act June 25, 1948, as amended by act May 24, 1949, ch. 139, Sec. 127, 63 Stat. 107, provided: '(a) All laws of the United States in force on September 1, 1948, in which reference is made to a 'circuit court of appeals'; 'senior circuit judge'; 'senior district judge'; 'presiding judge'; 'chief justice', except when reference to the Chief Justice of the United States is intended; or 'justice', except when used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice, are hereby amended by substituting 'court of appeals' for 'circuit court of appeals'; 'chief judge of the circuit' for 'senior circuit judge'; 'chief judge of the district court' for 'senior district judge'; 'chief judge' for 'presiding judge'; 'chief judge' for 'chief justice', except when reference to the Chief Justice of the United States is intended; and 'judge' for 'justice', except when the latter term is used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice. '(b) All laws of the United States in force on September 1, 1948, in which reference is made to the Supreme Court of the District of Columbia or to the District Court of the United States for the District of Columbia are amended by substituting 'United States District Court for the District of Columbia' for such designations. '(c) All laws of the United States in force on September 1, 1948, in which reference is made to the 'Conference of Senior Circuit Judges', or to the 'Judicial Conference of Senior Circuit Judges' are amended by substituting 'Judicial Conference of the United States' for such designations. '(d) This section shall not be construed to amend historical references to courts or judicial offices which have no present or future application to such courts or offices.' -CROSS- RULES OF THE SUPREME COURT Procedure generally, on appeal to or in Supreme Court, see Appendix to this title. FEDERAL RULES OF CRIMINAL PROCEDURE Bail upon review, see rule 46, Title 18, Appendix, Crimes and Criminal Procedure. Stay of execution, and relief pending review, see rule 38. CROSS REFERENCES Procedure and particular proceedings, generally, see sections 1651 et seq. and 2201 et seq. of this title. ------DocID 36524 Document 386 of 1452------ -CITE- 28 USC Sec. 1251 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1251. Original jurisdiction -STATUTE- (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. (b) The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 927; Sept. 30, 1978, Pub. L. 95-393, Sec. 8(b), 92 Stat. 810.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 341, 371(7), (8) (Mar. 3, 1911, ch. 231, Sec. 233, 256, 36 Stat. 1156, 1160; Oct. 6, 1917, ch. 97, Sec. 2, 40 Stat. 395; June 10, 1922, ch. 216, Sec. 2, 42 Stat. 635). This section reconciles provisions of sections 341 and 371(7), (8) of title 28, U.S.C., 1940 ed., with Article 3, section 2 and Amendment 11 of the Constitution. Sections 341 and 371 of title 28, U.S.C., 1940 ed., were not wholly consistent with such constitutional provisions. Said section 341 provided that the Supreme Court should have original jurisdiction of controversies between a State and citizens of other States or aliens, whereas the 11th Amendment prohibits an action in any Federal Court against a State by citizens of another State or aliens. The original jurisdiction conferred on the Supreme Court by Article 3, section 2, of the Constitution is not exclusive by virtue of that provision alone. Congress may provide for or deny exclusiveness. Ames v. Kansas, 1884, 4 S.Ct. 437, 111 U.S. 449, 28 L.Ed. 442; U.S. v. 4,450.72 Acres of Land, Clearwater County, State of Minnesota, D.C. Minn., 1939, 27 F.Supp. 167, affirmed 125 F.2d 636. Sections 341 and 371 of title 28, U.S.C., 1940 ed., did not confer expressly exclusive jurisdiction on the Supreme Court in civil cases between States, Louisiana v. Texas, 1899, 20 S.Ct. 251, 176 U.S. 1, 44 L.Ed. 347, as has been provided in subsection (a)(1) of the revised section. The language at the beginning of said section 341, for which said subsection has been substituted, was ambiguous and made it appear that an action by a State against the United States would be within the exclusive jurisdiction of the Supreme Court. However, in U.S. v. Louisiana, 1887, 8 S.Ct. 17, 123 U.S. 32, 31 L.Ed. 69, the Supreme Court, in a case appealed from the Court of Claims, held to the contrary. So, also, in actions by the United States to condemn lands of a State or to enforce penalties for violation of a Federal statute against a State-owned utility, the United States district courts have jurisdiction. See United States v. State of Utah, 1931, 51 S.Ct. 438, 283 U.S. 64, 75 L.Ed. 844; United States v. 4,450.72 Acres of Land, Clearwater County, State of Minnesota, D.C.Minn. 1939, 27 F.Supp. 167, affirmed 125 F.2d 636; United States v. State of California, 1936, 56 S.Ct. 421, 297 U.S. 175, 80 L.Ed. 567. The intent of section 371(7), (8) of title 28, U.S.C., 1940 ed., that the jurisdiction of the courts of the United States should be exclusive of the courts of the States in controversies to which a State is a party, and suits against ambassadors, public ministers, consuls and vice consuls, is preserved and clarified by this section and section 1351 of this title. The revised section preserves existing law with reference to foreign ambassadors, other public ministers and consuls. Under subsection (a)(2) the Supreme Court has exclusive jurisdiction of actions or proceedings against the ambassadors or public ministers of other nations. Under subsection (b)(1) the Supreme Court has original but not exclusive jurisdiction of actions or proceedings brought by such ambassadors or other public ministers or to which consuls or vice consuls of other nations are parties. Section 1351 of this title gives to United States district courts, exclusive of the courts of the States, jurisdiction of civil actions against such consuls and vice consuls. This section and said section 1351 of this title have no application to ambassadors, public ministers, consuls or vice consuls representing the United States. See Milward v. McSaul, D.C.S.D.N.Y. 1846, 17 Fed.Cas.No. 9,623 and State of Ohio ex rel. Popovici v. Alger, 1930, 50 S.Ct. 154, 280 U.S. 379, 74 L.Ed. 489. Changes were made in phraseology. AMENDMENTS 1978 - Subsec. (a). Pub. L. 95-393, Sec. 8(b)(1), designated introductory provision of subsec. (a) and (a)(1) as (a), and struck out '(2) All actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants, not inconsistent with the law of nations'. Subsec. (b)(1). Pub. L. 95-393, Sec. 8(b)(2), substituted 'to which ambassadors, other public ministers, consuls, or' for 'brought by ambassadors or other public ministers of foreign states or to which consuls or'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-393 effective at the end of the ninety-day period beginning on Sept. 30, 1978, see section 9 of Pub. L. 95-393, set out as an Effective Date note under section 254a of Title 22, Foreign Relations and Intercourse. STATUTES GOVERNING WRITS OF ERROR TO APPLY TO APPEALS Act Jan. 31, 1928, ch. 14, Sec. 2, 45 Stat. 54, amended Apr. 26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, Sec. 23, 62 Stat. 990, provided that 'All Acts of Congress referring to writs of error shall be construed as amended to the extent necessary to substitute appeal for writ of error.' See also, notes preceding section 1 of this title. -CROSS- RULES OF THE SUPREME COURT Procedure in original actions, see rule 17, Appendix to this title. CROSS REFERENCES Controversies involving pollution of waters, jurisdiction of actions by States, see section 466g-1 of Title 33, Navigation and Navigable Waters. Jury trial in original actions at law in Supreme Court against citizens of the United States, see section 1872 of this title. Original jurisdiction - District Court of all suits against consuls and vice-consuls, see section 1351 of this title. Supreme Court, see, also, Const. Art. 3, Sec. 2, Cl. 2. Writs, see section 1651 of this title. ------DocID 36525 Document 387 of 1452------ -CITE- 28 USC Sec. 1252 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- (Sec. 1252. Repealed. Pub. L. 100-352, Sec. 1, June 27, 1988, 102 Stat. 662) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 928; Oct. 31, 1951, ch. 655, Sec. 47, 65 Stat. 726; July 7, 1958, Pub. L. 85-508, Sec. 12(e), (f), 72 Stat. 348; Mar. 18, 1959, Pub. L. 86-3, Sec. 14(a), 73 Stat. 10, provided for direct appeals to Supreme Court from decisions invalidating Acts of Congress. 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 Pub. L. 100-352, set out as a note under section 1254 of this title. ------DocID 36526 Document 388 of 1452------ -CITE- 28 USC Sec. 1253 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1253. Direct appeals from decisions of three-judge courts -STATUTE- Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 928.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 47, 47a, 380 and 380a (Mar. 3, 1911, ch. 231, Sec. 210, 266, 36 Stat. 1150, 1162; Mar. 4, 1913, ch. 160, 37 Stat. 1013; Oct. 22, 1913, ch. 32, 38, Stat. 220; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 938; Aug. 24, 1937, ch. 754, Sec. 3, 50 Stat. 752). This section consolidates the provisions of sections 47, 47a, 380, and 380a of title 28, U.S.C., 1940 ed., relating to direct appeals from decisions of three-judge courts involving orders of the Interstate Commerce Commission or holding State or Federal laws repugnant to the Constitution of the United States. For distribution of other provisions of the sections on which this revised section is based, see Distribution Table. The language in section 380 of title 28, U.S.C., 1940 ed., referring to restraining the enforcement or execution of an order made by an administrative board or a State officer was omitted as covered by this revised section and section 2281 of this title. Words in section 380a of title 28, U.S.C., 1940 ed., 'This section shall not be construed to be in derogation of any right of direct appeal to the Supreme Court of the United States under existing provisions of law,' were omitted as unnecessary. Section 217 of title 7, U.S.C., 1940 ed., Agriculture, provides for a three-judge court in proceedings to suspend or restrain the enforcement of orders of the Secretary of Agriculture under the Packers and Stockyards Act of 1921. The final proviso of section 502 of title 33, U.S.C., 1940 ed., Navigation and Navigable Waters, for direct appeal in certain criminal cases for failure to alter bridges obstructing navigation, is recommended for express repeal in view of its implied repeal by section 345 of title 28, U.S.C., 1940 ed. (See U.S. v. Belt, 1943, 63 S.Ct. 1278, 319 U.S. 521, 87 L.Ed. 1559. See reviser's note under section 1252 of this title.) Section 28 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 44 of title 49, U.S.C., 1940 ed., Transportation, are identical and provide for convening of a three-judge court to hear and determine civil cases arising under the Sherman anti-trust law and the Interstate Commerce Act, respectively, wherein the United States is plaintiff and when the Attorney General deems such cases of general public importance. Section 401(d) of title 47, U.S.C., 1940 ed., Telegraphs, Telephones, and Radiotelegraphs, made the provisions of sections 28 and 29 of title 15, U.S.C., 1940 ed., Commerce and Trade, sections 44 and 45 of title 49, U.S.C., 1940 ed., Transportation, and section 345(1) of title 28, U.S.C., 1940 ed., relating to three-judge courts and direct appeals, applicable to orders of the Federal Communications Commission enforcing the Communications Act of 1934. -CROSS- RULES OF THE SUPREME COURT Procedure on appeal, see Appendix to this title. Stays, see rule 23. FEDERAL RULES OF CIVIL PROCEDURE Stay of proceedings to enforce judgment, see rule 62, Appendix to this title. CROSS REFERENCES Direct appeals from three-judge courts - Anti-Trust Laws, see section 29 of Title 15, Commerce and Trade. Communications Act of 1934, see section 402 of Title 47, Telegraphs, Telephones, and Radiographs. Packers and Stockyards Act, see section 217 of Title 7, Agriculture. Quorum of Supreme Court justices absent, see section 2109 of this title. Time for appeal or certiorari, see section 2101 of this title. Writs, see section 1651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2101 of this title. ------DocID 36527 Document 389 of 1452------ -CITE- 28 USC Sec. 1254 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1254. Courts of appeals; certiorari; certified questions -STATUTE- Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; (2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 928; June 27, 1988, Pub. L. 100-352, Sec. 2(a), (b), 102 Stat. 662.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 346 and 347 (Mar. 3, 1911, ch. 231, Sec. 239, 240, 36 Stat. 1157; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 938; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; June 7, 1934, ch. 426, 48 Stat. 926). Section consolidates sections 346 and 347 of title 28, U.S.C., 1940 ed. Words 'or in the United States Court of Appeals for the District of Columbia' and 'or of the United States Court of Appeals for the District of Columbia' in sections 346 and 347 of title 28, U.S.C., 1940 ed., were omitted. (See section 41 of this title.) The prefatory words of this section preceding paragraph (1) were substituted for subsection (c) of said section 347. The revised section omits the words of section 347 of title 28, U.S.C., 1940 ed., 'and with like effect as if the case had been brought there with unrestricted appeal', and the words of section 346 of such title 'in the same manner as if it had been brought there by appeal'. The effect of subsections (1) and (3) of the revised section is to preserve existing law and retain the power of unrestricted review of cases certified or brought up on certiorari. Only in subsection (2) is review restricted. Changes were made in phraseology and arrangement. AMENDMENTS 1988 - Pub. L. 100-352, Sec. 2(b), struck out 'appeal;' after 'certiorari;' in section catchline. Pars. (2), (3). Pub. L. 100-352, Sec. 2(a), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: 'By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented;'. EFFECTIVE DATE OF 1988 AMENDMENT Section 7 of Pub. L. 100-352 provided that: 'The amendments made by this Act (amending sections 1254, 1257, 1258, 2101, 2104, and 2350 of this title, section 437h of Title 2, The Congress, section 136w of Title 7, Agriculture, section 1631e of Title 22, Foreign Relations and Intercourse, section 652 of Title 25, Indians, section 988 of Title 33, Navigation and Navigable Waters, section 1652 of Title 43, Public Lands, and sections 719, 743, and 1105 of Title 45, Railroads, and repealing sections 1252 and 2103 of this title) shall take effect ninety days after the date of the enactment of this Act (June 27, 1988), except that such amendments shall not apply to cases pending in the Supreme Court on the effective date of such amendments or affect the right to review or the manner of reviewing the judgment or decree of a court which was entered before such effective date.' -CROSS- RULES OF THE SUPREME COURT Procedure generally on appeal, writ of certiorari, or certification of questions, see Appendix to this title. Stays, see rule 23. FEDERAL RULES OF CIVIL PROCEDURE Power of appellate court to stay proceedings not limited by rule 62, see rule 62(g), Appendix to this title. CROSS REFERENCES Quorum of Supreme Court justices, see section 2109 of this title. Review generally, see section 2101 et seq. of this title. Review of appeals of orders relating to use of pesticide chemicals and raw agricultural commodities, see section 346a of Title 21, Food and Drugs. Time for appeal or certiorari, see section 2101 of this title. Vesting and liquidation of Bulgarian, Hungarian, and Rumanian property, final orders or decrees of district courts of the United States reviewable as provided in this section, see section 1631e of Title 22, Foreign Relations and Intercourse. Writs, see section 1651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1334, 1452, 2350 of this title; title 2 section 437g; title 5 section 1508, 7123; title 7 sections 136n, 194, 228b-3, 2007e; title 8 section 1324b; title 11 section 305; title 12 sections 1467a, 1786, 1818, 2266; title 15 sections 21, 29, 45, 57a, 77i, 78aa, 79x, 79y, 80a-42, 80a-43, 80b-13, 687a, 687e, 717r, 1193, 1262, 1394, 1474, 1710, 1719, 1913, 2003, 2004, 2008, 2060, 2618, 3416; title 16 sections 79l, 825l, 825p; title 20 sections 351d, 1070c-3, 1111h, 1234g, 1413, 1416, 2727, 2834, 2972; title 21 sections 346a, 348, 355, 360g, 360kk, 371; title 22 sections 2740, 2851, 3086; title 23 section 131; title 26 sections 3310, 7482; title 27 section 204; title 29 sections 160, 210, 660, 667, 1578; title 30 section 816; title 33 sections 520, 988; title 38 sections 784, 4092; title 40 section 333; title 42 sections 263a, 291h, 504, 1316, 1320a-7a, 2022, 2689l, 3027, 3414, 3785, 5311, 5405, 6029, 6306, 6869, 8412; title 45 section 153; title 47 section 402; title 49 App. sections 45, 1486, 1674b, 1675, 2005, 2507. ------DocID 36528 Document 390 of 1452------ -CITE- 28 USC Sec. 1255, 1256 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- (Sec. 1255, 1256. Repealed. Pub. L. 97-164, title I, Sec. 123, Apr. 2, 1982, 96 Stat. 36) -MISC1- Section 1255, act June 25, 1948, ch. 646, 62 Stat. 928, authorized Supreme Court to review cases in Court of Claims by writ of certiorari and by certification of questions of law. Section 1256, act June 25, 1948, ch. 646, 62 Stat. 928, authorized Supreme Court to review cases in Court of Customs and Patent Appeals by writ of certiorari. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36529 Document 391 of 1452------ -CITE- 28 USC Sec. 1257 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1257. State courts; certiorari -STATUTE- (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. (b) For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 929; July 29, 1970, Pub. L. 91-358, title I, Sec. 172(a)(1), 84 Stat. 590; June 27, 1988, Pub. L. 100-352, Sec. 3, 102 Stat. 662.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 344 (Mar. 3, 1911, ch. 231, Sec. 236, 237, 36 Stat. 1156; Dec. 23, 1914, ch. 2, 38 Stat. 790; Sept. 6, 1916, ch. 448, Sec. 2, 39 Stat. 726; Feb. 17, 1922, ch. 54, 42 Stat. 366; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 937; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Provisions of section 344 of title 28, U.S.C., 1940 ed., relating to procedure for review of decisions of State courts are incorporated in section 2103 of this title. Other provisions of such section 344 of title 28, U.S.C., 1940 ed., are incorporated in section 2106 of this title. The revised section applies in both civil and criminal cases. In Twitchell v. Philadelphia, 1868, 7 Wall. 321, 19 L.Ed. 223, it was expressly held that the provisions of section 25 of the Judiciary Act of 1789, 1 Stat. 85, on which title 28, U.S.C., 1940 ed., Sec. 344, is based, applied to criminal cases, and many other Supreme Court decisions impliedly involve the same holding inasmuch as the Court has taken jurisdiction of criminal cases on appeal from State courts. See, for example, Herndon v. Georgia, 1935, 55 S.Ct. 794, 295 U.S. 441, 79 L.Ed. 1530 and Ashcraft v. Tennessee, 1944, 64 S.Ct. 921, 322 U.S. 143, 88 L.Ed. 1192. Provision, in section 344(b) of title 28, U.S.C., 1940 ed., for review and determination on certiorari 'with the same power and authority and with like effect as if brought up by appeal' was omitted as unnecessary. The scope of review under this section is unrestricted. Words 'and the power to review under this paragraph may be exercised as well where the Federal claim is sustained as where it is denied,' in said section 344(b), were omitted as surplusage. The last sentence in said section 344(b) relating to the right to relief under both subsections of said section 344, was omitted as unnecessary. Changes were made in phraseology. AMENDMENTS 1988 - Pub. L. 100-352 struck out 'appeal;' before 'certiorari' in section catchline and amended text generally. Prior to amendment, text read as follows: 'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: '(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. '(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. '(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States. 'For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals.' 1970 - Pub. L. 91-358 provided that for the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Supreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100-352, set out as a note under section 1254 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Section 199(a) of title I of Pub. L. 91-358 provided that: 'The effective date of this title (and the amendments made by this title) (enacting sections 1363, 1451, and 2113 of this title and amending this section, sections 292 and 1869 of this title, section 5102 of Title 5, Government Organization and Employees, and section 260a of Title 42, The Public Health and Welfare) shall be the first day of the seventh calendar month which begins after the date of the enactment of this Act (July 29, 1970).' -CROSS- RULES OF THE SUPREME COURT Jurisdiction on writ of certiorari, see rules 10 to 16, Appendix to this title. CROSS REFERENCES Determination on review, see section 2106 of this title. Quorum of Supreme Court justices absent, disposition of case, see section 2109 of this title. Review of State court decisions - Priority of criminal cases, see section 2102 of this title. Procedure and effect, see section 2104 of this title. Time for appeal or certiorari, see section 2101 of this title. Writs, see section 1651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 15 section 3207; title 16 section 2633. ------DocID 36530 Document 392 of 1452------ -CITE- 28 USC Sec. 1258 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1258. Supreme Court of Puerto Rico; certiorari -STATUTE- Final judgments or decrees rendered by the Supreme Court of the Commonwealth of Puerto Rico may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Commonwealth of Puerto Rico is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. -SOURCE- (Added Pub. L. 87-189, Sec. 1, Aug. 30, 1961, 75 Stat. 417, and amended Pub. L. 100-352, Sec. 4, June 27, 1988, 102 Stat. 662.) -MISC1- AMENDMENTS 1988 - Pub. L. 100-352 struck out 'appeal;' before 'certiorari' in section catchline and amended text generally. Prior to amendment, text read as follows: 'Final judgments or decrees rendered by the Supreme Court of the Commonwealth of Puerto Rico may be reviewed by the Supreme Court as follows: '(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. '(2) By appeal, where is drawn in question the validity of a statute of the Commonwealth of Puerto Rico on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity. '(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Commonwealth of Puerto Rico is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution, treaties, or statutes of, or commission held or authority exercised under, the United States.' EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Supreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100-352, set out as a note under section 1254 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 15 section 3207; title 16 section 2633. ------DocID 36531 Document 393 of 1452------ -CITE- 28 USC Sec. 1259 -EXPCITE- TITLE 28 PART IV CHAPTER 81 -HEAD- Sec. 1259. Court of Military Appeals; certiorari -STATUTE- Decisions of the United States Court of Military Appeals may be reviewed by the Supreme Court by writ of certiorari in the following cases: (1) Cases reviewed by the Court of Military Appeals under section 867(a)(1) of title 10. (2) Cases certified to the Court of Military Appeals by the Judge Advocate General under section 867(a)(2) of title 10. (3) Cases in which the Court of Military Appeals granted a petition for review under section 867(a)(3) of title 10. (4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Military Appeals granted relief. -SOURCE- (Added Pub. L. 98-209, Sec. 10(a)(1), Dec. 6, 1983, 97 Stat. 1405, and amended Pub. L. 101-189, div. A, title XIII, Sec. 1304(b)(3), Nov. 29, 1989, 103 Stat. 1577.) -MISC1- AMENDMENTS 1989 - Pub. L. 101-189 substituted 'section 867(a)(1)' for 'section 867(b)(1)' in par. (1), 'section 867(a)(2)' for 'section 867(b)(2)' in par. (2), and 'section 867(a)(3)' for 'section 867(b)(3)' in par. (3). EFFECTIVE DATE Section effective on the first day of the eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98-209, set out as an Effective Date of 1983 Amendment note under section 801 of Title 10, Armed Forces. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 10 section 867a. ------DocID 36532 Document 394 of 1452------ -CITE- 28 USC CHAPTER 83 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- CHAPTER 83 - COURTS OF APPEALS -MISC1- Sec. 1291. Final decisions of district courts. 1292. Interlocutory decisions. (1293. Repealed.) 1294. Circuits in which decisions reviewable. 1295. Jurisdiction of the United States Court of Appeals for the Federal Circuit. (1296. Repealed.) AMENDMENTS 1984 - Pub. L. 98-620, title IV, Sec. 402(29)(C), Nov. 8, 1984, 98 Stat. 3359, struck out item 1296 'Precedence of cases in the United States Court of Appeals for the Federal Circuit'. 1982 - Pub. L. 97-164, title I, Sec. 127(b), Apr. 2, 1982, 96 Stat. 39, added items 1295 and 1296. 1978 - Pub. L. 95-598, title II, Sec. 236(b), Nov. 6, 1978, 92 Stat. 2667, directed the addition of item 1293, 'Bankruptcy appeals', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1961 - Pub. L. 87-189, Sec. 4, Aug. 30, 1961, 75 Stat. 417, struck out item 1293 'Final decisions of Puerto Rico and Hawaii Supreme Courts'. -CROSS- FEDERAL RULES OF APPELLATE PROCEDURE Appeal to a court of appeals, see rules 3 and 4, Appendix to this title. Joint or consolidated appeals to a court of appeals, see rule 3. Record on appeal to a court of appeals, see rule 10. FEDERAL RULES OF CRIMINAL PROCEDURE Application of rules, see note by Advisory Committee under rule 54, Title 18, Appendix, Crimes and Criminal Procedure. Bail upon review, see rule 46. Stay of execution and relief pending review, see rule 38. CROSS REFERENCES Jurisdiction of courts and appeals in particular matters, see Historical and Revision Notes under section 1291 of this title. Procedure and particular proceedings, generally, see sections 1651 et seq. and 2201 et seq. of this title. Vesting and liquidation of Bulgarian, Hungarian, and Rumanian property, final orders or decrees of district courts of the United States reviewable as provided in this chapter, see section 1631e of Title 22, Foreign Relations and Intercourse. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 22 section 1631e; title 29 sections 1813, 1853, 1854. ------DocID 36533 Document 395 of 1452------ -CITE- 28 USC Sec. 1291 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- Sec. 1291. Final decisions of district courts -STATUTE- The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 929; Oct. 31, 1951, ch. 655, Sec. 48, 65 Stat. 726; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 124, 96 Stat. 36.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 225(a), 933(a)(1), and section 1356 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and sections 61 and 62 of title 7 of the Canal Zone Code (Mar. 3, 1911, ch. 231, Sec. 128, 36 Stat. 1133; Aug. 24, 1912, ch. 390, Sec. 9, 37 Stat. 566; Jan. 28, 1915, ch. 22, Sec. 2, 38 Stat. 804; Feb. 7, 1925, ch. 150, 43 Stat. 813; Sept. 21, 1922, ch. 370, Sec. 3, 42 Stat. 1006; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 936; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; May 17, 1932, ch. 190, 47 Stat. 158; Feb. 16, 1933, ch. 91, Sec. 3, 47 Stat. 817; May 31, 1935, ch. 160, 49 Stat. 313; June 20, 1938, ch. 526, 52 Stat. 779; Aug. 2, 1946, ch. 753, Sec. 412(a)(1), 60 Stat. 844). This section rephrases and simplifies paragraphs 'First', 'Second', and 'Third' of section 225(a) of title 28, U.S.C., 1940 ed., which referred to each Territory and Possession separately, and to sections 61 and 62 of the Canal Zone Code, section 933(a)(1) of said title relating to jurisdiction of appeals in tort claims cases, and the provisions of section 1356 of title 48, U.S.C., 1940 ed., relating to jurisdiction of appeals from final judgments of the district court for the Canal Zone. The district courts for the districts of Hawaii and Puerto Rico are embraced in the term 'district courts of the United States.' (See definitive section 451 of this title.) Paragraph 'Fourth' of section 225(a) of title 28, U.S.C., 1940 ed., is incorporated in section 1293 of this title. Words 'Fifth. In the United States Court for China, in all cases' in said section 225(a) were omitted. (See reviser's note under section 411 of this title.) Venue provisions of section 1356 of title 48, U.S.C., 1940 ed., are incorporated in section 1295 of this title. Section 61 of title 7 of the Canal Zone Code is also incorporated in sections 1291 and 1295 of this title. In addition to the jurisdiction conferred by this chapter, the courts of appeals also have appellate jurisdiction in proceedings under Title 11, Bankruptcy, and jurisdiction to review: (1) Orders of the Secretary of the Treasury denying an application for, suspending, revoking, or annulling a basic permit under chapter 8 of title 27; (2) Orders of the Interstate Commerce Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Board of Governors of the Federal Reserve System and the Federal Trade Commission, based on violations of the antitrust laws or unfair or deceptive acts, methods, or practices in commerce; (3) Orders of the Secretary of the Army under sections 504, 505 and 516 of title 33, U.S.C., 1940 ed., Navigation and Navigable Waters; (4) Orders of the Civil Aeronautics Board under chapter 9 of title 49, except orders as to foreign air carriers which are subject to the President's approval; (5) Orders under chapter 1 of title 7, refusing to designate boards of trade as contract markets or suspending or revoking such designations, or excluding persons from trading in contract markets; (6) Orders of the Federal Power Commission under chapter 12 of title 16; (7) Orders of the Federal Security Administrator under section 371(e) of title 21, in a case of actual controversy as to the validity of any such order, by any person adversely affected thereby; (8) Orders of the Federal Power Commission under chapter 15B of title 15; (9) Final orders of the National Labor Relations Board; (10) Cease and desist orders under section 193 of title 7; (11) Orders of the Securities and Exchange Commission; (12) Orders to cease and desist from violating section 1599 of title 7; (13) Wage orders of the Administrator of the Wage and Hour Division of the Department of Labor under section 208 of title 29; (14) Orders under sections 81r and 1641 of title 19, U.S.C., 1940 ed., Customs Duties. The courts of appeals also have jurisdiction to enforce: (1) Orders of the Interstate Commerce Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Board of Governors of the Federal Reserve System, and the Federal Trade Commission, based on violations of the antitrust laws or unfair or deceptive acts, methods, or practices in commerce; (2) Final orders of the National Labor Relations Board; (3) Orders to cease and desist from violating section 1599 of title 7. The Court of Appeals for the District of Columbia also has jurisdiction to review orders of the Post Office Department under section 576 of title 39 relating to discriminations in sending second-class publications by freight; Maritime Commission orders denying transfer to foreign registry of vessels under subsidy contract; sugar allotment orders; decisions of the Federal Communications Commission granting or refusing applications for construction permits for radio stations, or for radio station licenses, or for renewal or modification of radio station licenses, or suspending any radio operator's license. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164, Sec. 124, inserted '(other than the United States Court of Appeals for the Federal Circuit)' after 'The court of appeals' and inserted provision that the jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title. 1958 - Pub. L. 85-508 struck out provisions which gave courts of appeals jurisdiction of appeals from District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1951 - Act Oct. 31, 1951, inserted reference to District Court of Guam. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c.16 as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- FEDERAL RULES OF APPELLATE PROCEDURE Procedure on appeal, see rule 1 et seq., Appendix to this title. FEDERAL RULES OF CRIMINAL PROCEDURE Procedure on appeal, see rules 38 and 46(a)(2), Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Antitrust Civil Process Act judicial proceedings subject to appeal pursuant to this section, see section 1314 of Title 15, Commerce and Trade. Criminal cases, direct appeals to Supreme Court, and appeals to courts of appeals, see section 3731 of Title 18, Crimes and Criminal Procedure. Direct appeals to Supreme Court, see section 1253 of this title. Prize cases, allowance of appeal, see section 7680 of Title 10, Armed Forces. Time for appeal, see section 2107 of this title. Trade-mark actions, appellate jurisdiction, see section 1121 of Title 15, Commerce and Trade. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1295, 1334, 1452, 2072 of this title; title 11 section 305; title 15 sections 29, 57b-1, 78aa, 79y, 80a-43, 80b-14, 1314, 1719; title 16 sections 825p, 1456; title 18 section 3145; title 31 section 3733; title 42 sections 2000e-5, 3414; title 45 section 153; title 49 App. section 45; title 50 App. section 17. ------DocID 36534 Document 396 of 1452------ -CITE- 28 USC Sec. 1292 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- Sec. 1292. Interlocutory decisions -STATUTE- (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction - (1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting. (d)(1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title, or when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (2) When any judge of the United States Claims Court, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Claims Court, as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Claims Court or by the United States Court of Appeals for the Federal Circuit or a judge of that court. (4)(A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Claims Court under section 1631 of this title. (B) When a motion to transfer an action to the Claims Court is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court's grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the district court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedition is reasonably necessary. However, during the period in which proceedings are stayed as provided in this subparagraph, no transfer to the Claims Court pursuant to the motion shall be carried out. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 929; Oct. 31, 1951, ch. 655, Sec. 49, 65 Stat. 726; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Sept. 2, 1958, Pub. L. 85-919, 72 Stat. 1770; Apr. 2, 1982, Pub. L. 97-164, Sec. 125, 96 Stat. 36; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 412, 98 Stat. 3362; Nov. 19, 1988, Pub. L. 100-702, title V, Sec. 501, 102 Stat. 4652.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 225(b), 227, 227a, and section 61 of title 7 of the Canal Zone Code (Mar. 3, 1911, ch. 231, Sec. 128, 129, 36 Stat. 1133, 1134; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 937; Feb. 28, 1927, ch. 228, 44 Stat. 1261; Apr. 3, 1926, ch. 102, 44 Stat. 233; May 20, 1926, ch. 347, Sec. 13(a), 44 Stat. 587; Apr. 11, 1928, ch. 354, Sec. 1, 45 Stat. 422; May 17, 1932, ch. 190, 47 Stat. 158). Section consolidates sections 225(b), 227 and part of 227a of title 28, U.S.C., 1940 ed., with necessary changes in phraseology to effect the consolidation. The second paragraph of section 225(b) of title 28, U.S.C., 1940 ed., relating to review of decisions of the district courts, under section 9 of the Railway Labor Act (section 159 of title 45), was omitted as covered by section 1291 of this title. Words in section 227 of title 28, U.S.C., 1940 ed., 'or decree,' after 'interlocutory order,' were deleted, in view of Rule 65 of the Federal Rules of Civil Procedure, using only the word 'order.' Provisions of sections 227 and 227a of title 28, U.S.C., 1940 ed., relating to stay of proceedings pending appeal were omitted as superseded by Federal Rules of Civil Procedure, Rule 73. Provisions of section 227 of title 28, U.S.C., 1940 ed., requiring an additional bond by the district court as a condition of appeal were omitted in view of Federal Rules of Civil Procedure, Rule 73. Words in section 227 of title 28, U.S.C., 1940 ed., 'and sections 346 and 347 of this title shall apply to such cases in the circuit courts of appeals as to other cases therein,' at the end of the first sentence of section 227 of title 28, U.S.C., 1940 ed., were deleted as fully covered by section 1254 of this title, applicable to any case in a court of appeals. Other procedural provisions of said section 227 were omitted as covered by section 2101 et seq. of this title. In subsection (4), which is based on section 227a of title 28, U.S.C., 1940 ed., words 'civil actions' were substituted for 'suits in equity' and word 'judgments' was substituted for 'decree,' in view of Rules 2 and 54 of the Federal Rules of Civil Procedure. The provision of sections 227 and 227a of title 28, U.S.C., 1940 ed., that appeal must be taken within thirty days after entry of order, decree or judgment is incorporated in section 2107 of this title. The provisions of section 227a of title 28, U.S.C., 1940 ed., relating to stay of proceedings pending appeal, were omitted as superseded by Rule 73 of the Federal Rules of Civil Procedure. The district courts for the districts of Hawaii and Puerto Rico are embraced in the term 'district courts of the United States.' (See definitive section 451 of this title.) Consequently the specific reference in section 225 of title 28, U.S.C., 1940 ed., to 'the United States district courts for Hawaii' was omitted. The District Court for the District of Puerto Rico is not enumerated in section 225(b) of title 28, U.S.C., 1940 ed., nevertheless subsection (2) of the revised section does not except such court. Thus in conformity with the last sentence of section 864, title 48, U.S.C., 1940 ed. For distribution of said section 864, see Distribution Table. Section 61 of title 7 of the Canal Zone Code is also incorporated in sections 1291 and 1294 of this title. AMENDMENTS 1988 - Subsec. (d)(4). Pub. L. 100-702 added par. (4). 1984 - Subsec. (b). Pub. L. 98-620, Sec. 412(a), inserted 'which would have jurisdiction of an appeal of such action' after 'The Court of Appeals'. Subsec. (c)(1). Pub. L. 98-620, Sec. 412(b), inserted 'or (b)' after '(a)'. 1982 - Subsec. (a). Pub. L. 97-164, Sec. 125(a)(1), substituted 'Except as provided in subsections (c) and (d) of this section, the courts' for 'The courts' in introductory provisions. Subsec. (a)(4). Pub. L. 97-164, Sec. 125(a)(2), (3), struck out par. (4) which related to judgments in civil actions for patent infringement which were final except for accounting. Subsecs. (c), (d). Pub. L. 97-164, Sec. 125(b), added subsecs. (c) and (d). 1958 - Pub. L. 85-919 designated existing provisions as subsec. (a) and added subsec. (b). Par. (1). Pub. L. 85-508 struck out reference to District Court for Territory of Alaska. See section 81A of this title which established a United States District Court for the State of Alaska. 1951 - Par. (1). Act Oct. 31, 1951, inserted reference to District Court of Guam. EFFECTIVE DATE OF 1988 AMENDMENT Section 502 of title V of Pub. L. 100-702 provided that: 'The amendment made by section 501 (amending this section) shall apply to any action commenced in the district court on or after the date of enactment of this title (Nov. 19, 1988).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Stay of proceedings on appeal, see rule 62, Appendix to this title. CROSS REFERENCES Direct review in Supreme Court, see section 1253 of this title. Time for appeal, see section 2107 of this title. Vesting and liquidation of Bulgarian, Hungarian, and Rumanian property, final orders or decrees of district courts of the United States reviewable as provided in this section, see section 1631e of Title 22, Foreign Relations and Intercourse. Writs in aid of jurisdiction, power to issue, see section 1651 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 256, 1291, 1294, 1295, 1334, 1452 of this title; title 9 section 15; title 11 section 305; title 15 sections 29, 78aa, 79y, 80a-43, 80b-14; title 16 sections 825p, 1456; title 42 section 2000e-5; title 49 App. section 45. ------DocID 36535 Document 397 of 1452------ -CITE- 28 USC Sec. 1293 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- (Sec. 1293. Repealed. Pub. L. 87-189, Sec. 3, Aug. 30, 1961, 75 Stat. 417) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 929; Mar. 18, 1959, Pub. L. 86-3, Sec. 14(b), 73 Stat. 10, provided for appeal from supreme court of Puerto Rico to court of appeals for first circuit. See section 1258 of this title. A subsequent section 1293, added Pub. L. 95-598, title II, Sec. 236(a), Nov. 6, 1978, 92 Stat. 2667, which related to bankruptcy appeals, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. ------DocID 36536 Document 398 of 1452------ -CITE- 28 USC Sec. 1294 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- Sec. 1294. Circuits in which decisions reviewable -STATUTE- Except as provided in sections 1292(c), 1292(d), and 1295 of this title, appeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows: (1) From a district court of the United States to the court of appeals for the circuit embracing the district; (2) From the United States District Court for the District of the Canal Zone, to the Court of Appeals for the Fifth Circuit; (3) From the District Court of the Virgin Islands, to the Court of Appeals for the Third Circuit; (4) From the District Court of Guam, to the Court of Appeals for the Ninth Circuit. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 930; Oct. 31, 1951, ch. 655, Sec. 50(a), 65 Stat. 727; July 7, 1958, Pub. L. 85-508, Sec. 12(g), 72 Stat. 348; Mar. 18, 1959, Pub. L. 86-3, Sec. 14(c), 73 Stat. 10; Aug. 30, 1961, Pub. L. 87-189, Sec. 5, 75 Stat. 417; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 237, 92 Stat. 2667; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 126, 96 Stat. 37.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 1141(b)(1)(2)(3) of title 26, U.S.C., 1940 ed., Internal Revenue Code, title 28, U.S.C., 1940 ed., Sec. 225(d) and sections 645, 864, 865, 1356, and 1392 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, and section 61 of title 7 of the Canal Zone Code (Apr. 12, 1900, ch. 191, Sec. 35, 31 Stat. 85; Mar. 3, 1911, ch. 231, Sec. 128, 36 Stat. 1133; Aug. 24, 1912, ch. 390, Sec. 9, 37 Stat. 566; Mar. 2, 1917, ch. 145, Sec. 42, 43, 39 Stat. 966; Mar. 3, 1917, ch. 171, Sec. 2, 39 Stat. 1132; Sept. 21, 1922, ch. 370, Sec. 3, 42 Stat. 1006; Feb. 13, 1925, ch. 229, Sec. 1, 13, 43 Stat. 936, 942; Feb. 26, 1926, ch. 27, Sec. 1002, 44 Stat. 110; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; May 17, 1932, ch. 190, 47 Stat. 158; Feb. 16, 1933, ch. 91, Sec. 3, 47 Stat. 817; May 10, 1934, ch. 277, Sec. 519, 48 Stat. 760; Feb. 10, 1939, ch. 2, Sec. 1141(b)(1)(2)(3), 53 Stat. 164). Section consolidates the venue provisions of sections 645, 864, 1356, and 1392 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions with sections 1141(b)(1)(2)(3) to title 26, U.S.C., 1940 ed., Internal Revenue and sections 225(d) and 865 of said title 48. Other provisions of said section 864, not incorporated in this section and sections 41 and 119 of this title, were retained in title 48. Other provisions of said section 1356 are incorporated in section 1291 of this title. Other provisions of said section 1392 were also retained in title 48. Paragraph (3) of section 1141(b) of title 26, U.S.C., 1940 ed., was omitted as executed. It made such subsection applicable to all decisions of the Board of Tax Appeals (Tax Court) rendered on and after May 10, 1934. Provisions of section 225(d) of title 28, U.S.C., 1940 ed., for review of the decisions of the United States Court for China were omitted. (See reviser's note under section 411 of this title.) Subsection (b) rephrases and rearranges the relevant provisions of section 1141(b)(1)(2)(3) of title 26, U.S.C., 1940 ed. Specific reference to the United States district courts for the districts of Hawaii, Puerto Rico and District of Columbia was omitted as unnecessary, these courts being embraced in the definition of 'a district court of the United States' contained in section 451 of this title. Administrative orders, referred to in reviser's note under section 1291 of this title, are reviewable and enforceable in the following circuits: ORDERS REVIEWABLE (1) Alcoholic permit orders - in the District of Columbia or in the circuit where the applicant or permittee resides or has his principal place of business; (2) Antitrust and unfair trade orders - in the circuit where unlawful act occurred or petitioner resides or carries on business; (3) Bridge alteration; cost orders - in the circuit where bridge is wholly or partly located; (4) Civil aeronautics orders - in the District of Columbia or circuit where petitioner resides or has his principal place of business; (5) Commodity exchange orders - in the circuit where board of trade has its principal place of business or in circuit where petitioner for review of exclusion order carries on business; (6) Electric and water power orders - in the District of Columbia or circuit where licensee or public utility to which order relates is located or has its principal place of business; (7) Food, drug and cosmetic orders - in the circuit where person adversely affected resides or has his principal place of business; (8) Gas orders - in the District of Columbia or circuit where company to which order relates is located or has its principal place of business; (9) National Labor Relations Board's final orders - in the District of Columbia or circuit where unfair labor practice occurred or violator resides or transacts business; (10) Packers cease and desist orders - in the circuit where packer has his principal place of business; (11) Radio license decisions - in the District of Columbia; (12) Securities and Exchange Commission orders - in the District of Columbia or circuit where petitioner resides or has his principal place of business; (13) Seed orders - in the circuit where violator resides or has his principal place of business; (14) Wage orders - in the District of Columbia or circuit where petitioner resides or has his principal place of business; (15) Foreign Trade Zones Board orders - in the circuit where the Zone is located; (16) Customhouse broker licenses - in circuit where applicant or licensee resides or has his principal place of business. ORDERS ENFORCEABLE (1) Antitrust and unfair trade orders - in the circuit where unlawful act occurred or person allegedly committing unlawful act resides or carries on business; (2) National Labor Relations Board's final orders - in the circuit where unfair labor practice occurred or violator resides or transacts business; (3) Seed orders - in the circuit where violator resides or has his principal place of business. Section 61 of title 7 of the Canal Zone Code is also incorporated in sections 1291 and 1292 of this title. Changes were made in phraseology. By Senate amendment, this section was renumbered '1294', and subsec. (b), which related to the Tax Court, was eliminated. Therefore, as finally enacted, section 1141(b)(1)(2)(3) of Title 26, U.S.C., Internal Revenue Code 1939, was not one of the sources of this section. The Senate amendments also eliminated section 1141 of the Internal Revenue Code 1939 from the schedule of repeals. See Senate Report No. 1559. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Except as provided in sections 1292(c), 1292(d), and 1295 of this title, appeals from reviewable decisions' for 'Appeals from reviewable decisions' in introductory provisions. 1978 - Pub. L. 95-598 directed the amendment of section by substituting 'district, bankruptcy, and territorial' for 'district and territorial' and by adding pars. (5) and (6) relating to panels designated under section 160(a) of this title and bankruptcy courts, respectively, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1961 - Pars. (4), (5). Pub. L. 87-189 redesignated par. (5) as (4) and repealed former par. (4) which provided that appeals from the Supreme Court of Puerto Rico should be taken to the Court of Appeals for the First Circuit. See section 1258 of this title. 1959 - Pars. (4) to (6). Pub. L. 86-3 redesignated pars. (5) and (6) as (4) and (5), respectively, and repealed former par. (4) which provided that appeals from the Supreme Court of Hawaii should be taken to the Court of Appeals for the Ninth Circuit. See section 91 of this title and notes thereunder. 1958 - Par. (2). Pub. L. 85-508 redesignated par. (3) as (2) and repealed former par. (2) which provided that appeals from the District Court for the Territory of Alaska or any division thereof should be taken to the Court of Appeals for the Ninth Circuit. See section 81A of this title which establishes a United States District Court for the State of Alaska. Pars. (3) to (7). Pub. L. 85-508 redesignated pars. (4) to (7) as (3) to (6), respectively. 1951 - Par. (7). Act Oct. 31, 1951, added par. (7). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-3 effective on admission of State of Hawaii into the Union, see note set out under section 91 of this title. Admission of Hawaii into the Union was accomplished Aug. 25, 1959, upon issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86-3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding section 491 of Title 48, Territories and Insular Possessions. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- CROSS REFERENCES Administrative orders, circuits where reviewable and enforceable, see reviser's note for this section. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1295 of this title; title 15 sections 77v, 78aa, 79y, 80a-43, 80b-14. ------DocID 36537 Document 399 of 1452------ -CITE- 28 USC Sec. 1295 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- Sec. 1295. Jurisdiction of the United States Court of Appeals for the Federal Circuit -STATUTE- (a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction - (1) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1338 of this title, except that a case involving a claim arising under any Act of Congress relating to copyrights, exclusive rights in mask works, or trademarks and no other claims under section 1338(a) shall be governed by sections 1291, 1292, and 1294 of this title; (2) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue shall be governed by sections 1291, 1292, and 1294 of this title; (3) of an appeal from a final decision of the United States Claims Court; (4) of an appeal from a decision of - (A) the Board of Patent Appeals and Interferences of the Patent and Trademark Office with respect to patent applications and interferences, at the instance of an applicant for a patent or any party to a patent interference, and any such appeal shall waive the right of such applicant or party to proceed under section 145 or 146 of title 35; (B) the Commissioner of Patents and Trademarks or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings as provided in section 21 of the Trademark Act of 1946 (15 U.S.C. 1071); or (C) a district court to which a case was directed pursuant to section 145 or 146 of title 35; (5) of an appeal from a final decision of the United States Court of International Trade; (6) to review the final determinations of the United States International Trade Commission relating to unfair practices in import trade, made under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337); (7) to review, by appeal on questions of law only, findings of the Secretary of Commerce under U.S. note 6 to subchapter X of chapter 98 of the Harmonized Tariff Schedule of the United States (relating to importation of instruments or apparatus); (8) of an appeal under section 71 of the Plant Variety Protection Act (7 U.S.C. 2461); (9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5; and (10) of an appeal from a final decision of an agency board of contract appeals pursuant to section 8(g)(1) of the Contract Disputes Act of 1978 (41 U.S.C. 607(g)(1)). (b) The head of any executive department or agency may, with the approval of the Attorney General, refer to the Court of Appeals for the Federal Circuit for judicial review any final decision rendered by a board of contract appeals pursuant to the terms of any contract with the United States awarded by that department or agency which the head of such department or agency has concluded is not entitled to finality pursuant to the review standards specified in section 10(b) of the Contract Disputes Act of 1978 (41 U.S.C. 609(b)). The head of each executive department or agency shall make any referral under this section within one hundred and twenty days after the receipt of a copy of the final appeal decision. (c) The Court of Appeals for the Federal Circuit shall review the matter referred in accordance with the standards specified in section 10(b) of the Contract Disputes Act of 1978. The court shall proceed with judicial review on the administrative record made before the board of contract appeals on matters so referred as in other cases pending in such court, shall determine the issue of finality of the appeal decision, and shall, if appropriate, render judgment thereon, or remand the matter to any administrative or executive body or official with such direction as it may deem proper and just. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 127(a), Apr. 2, 1982, 96 Stat. 37, and amended Pub. L. 98-622, title II, Sec. 205(a), Nov. 8, 1984, 98 Stat. 3388; Pub. L. 100-418, title I, Sec. 1214(a)(3), Aug. 23, 1988, 102 Stat. 1156; Pub. L. 100-702, title X, Sec. 1020(a)(3), Nov. 19, 1988, 102 Stat. 4671.) -REFTEXT- REFERENCES IN TEXT The Harmonized Tariff Schedule of the United States, referred to in subsec. (a)(7), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under section 1202 of Title 19, Customs Duties. -MISC2- AMENDMENTS 1988 - Subsec. (a)(1). Pub. L. 100-702 inserted ', exclusive rights in mask works,' after 'copyrights'. Subsec. (a)(7). Pub. L. 100-418 substituted 'U.S. note 6 to subchapter X of chapter 98 of the Harmonized Tariff Schedule of the United States' for 'headnote 6 to schedule 8, part 4, of the Tariff Schedules of the United States'. 1984 - Subsec. (a)(4)(A). Pub. L. 98-622 substituted 'Patent Appeals and' for 'Appeals or the Board of Patent'. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-418 effective Jan. 1, 1989, and applicable with respect to articles entered on or after such date, see section 1217(b)(1) of Pub. L. 100-418, set out as an Effective Date note under section 3001 of Title 19, Customs Duties. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-622 applicable to all United States patents granted before, on, or after Nov. 8, 1984, and to all applications for United States patents pending on or filed after that date, except as otherwise provided, see section 106 of Pub. L. 98-622, set out as a note under section 103 of Title 35, Patents. Amendment by Pub. L. 98-622 effective three months after Nov. 8, 1984, see section 207 of Pub. L. 98-622, set out as a note under section 7 of Title 35. EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -MISC5- TRANSFER OF CASES AND PETITIONS PENDING IN COURT OF CLAIMS AND IN COURT OF CUSTOMS AND PATENT APPEALS ON OCTOBER 1, 1982 For provisions directing that any case pending before the Court of Claims on Oct. 1, 1982, in which a report on the merits has been filed by a commissioner, or in which there is pending a request for review, and upon which the court has not acted, and any matter pending before the United States Court of Customs and Patent Appeals on Oct. 1, 1982, be transferred to the United States Court of Appeals for the Federal Circuit, and that any petition for rehearing, reconsideration, alteration, modification, or other change in any decision of the United States Court of Claims or the United States Court of Customs and Patent Appeals rendered prior to Oct. 1, 1982, that has not been determined by either of those courts on that date, or that is filed after that date, be determined by the United States Court of Appeals for the Federal Circuit, see section 403(a)-(c) of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1291, 1292, 1294 of this title; title 41 section 607. ------DocID 36538 Document 400 of 1452------ -CITE- 28 USC Sec. 1296 -EXPCITE- TITLE 28 PART IV CHAPTER 83 -HEAD- (Sec. 1296. Repealed. Pub. L. 98-620, title IV, Sec. 402(29)(C), Nov. 8, 1984, 98 Stat. 3359) -MISC1- Section, added Pub. L. 97-164, title I, Sec. 127(a), Apr. 2, 1982, 96 Stat. 39, related to precedence of cases in United States Court of Appeals for the Federal Circuit. EFFECTIVE DATE OF REPEAL Repeal not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. ------DocID 36539 Document 401 of 1452------ -CITE- 28 USC CHAPTER 85 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- CHAPTER 85 - DISTRICT COURTS; JURISDICTION -MISC1- Sec. 1330. Actions against foreign states. 1331. Federal question. 1332. Diversity of citizenship; amount in controversy; costs. 1333. Admiralty, maritime and prize cases. 1334. Bankruptcy cases and proceedings. 1335. Interpleader. 1336. Interstate Commerce Commission's orders. 1337. Commerce and antitrust regulations; amount in controversy, costs. 1338. Patents, plant variety protection, copyrights, mask works, trade-marks, and unfair competition. 1339. Postal matters. 1340. Internal revenue; customs duties. 1341. Taxes by States. 1342. Rate orders of State agencies. 1343. Civil rights and elective franchise. 1344. Election disputes. 1345. United States as plaintiff. 1346. United States as defendant. 1347. Partition action where United States is joint tenant. 1348. Banking association as party. 1349. Corporation organized under federal law as party. 1350. Alien's action for tort. 1351. Consuls, vice consuls, and members of a diplomatic mission as defendant. 1352. Bonds executed under federal law. 1353. Indian allotments. 1354. Land grants from different states. 1355. Fine, penalty or forfeiture. 1356. Seizures not within admiralty and maritime jurisdiction. 1357. Injuries under Federal laws. 1358. Eminent domain. 1359. Parties collusively joined or made. 1360. State civil jurisdiction in actions to which Indians are parties. 1361. Action to compel an officer of the United States to perform his duty. 1362. Indian tribes. 1363. Jurors' employment rights. 1364. Direct actions against insurers of members of diplomatic missions and their families. 1365. Senate actions. 1366. Construction of references to laws of the United States or Acts of Congress. 1367. Supplemental jurisdiction. AMENDMENTS 1990 - Pub. L. 101-650, title III, Sec. 310(b), Dec. 1, 1990, 104 Stat. 5114, added item 1367. 1988 - Pub. L. 100-702, title X, Sec. 1020(a)(7), Nov. 19, 1988, 102 Stat. 4672, substituted 'Actions' for 'Action' in item 1330, inserted a period after 'question' in item 1331, substituted 'plant variety protection, copyrights, mask works, trade-marks,' for 'copyrights, and trade-marks' in item 1338, and inserted 'and elective franchise' in item 1343. 1986 - Pub. L. 99-336, Sec. 6(a)(1)(A), June 19, 1986, 100 Stat. 638, renumbered item 1364 'Senate actions' and item 1364 'Construction of references to laws of the United States or Acts of Congress' as items 1365 and 1366, respectively. 1984 - Pub. L. 98-353, title I, Sec. 101(b), July 10, 1984, 98 Stat. 333, substituted 'cases' for 'matters' in item 1334. 1980 - Pub. L. 96-486, Sec. 2(b), Dec. 1, 1980, 94 Stat. 2369, struck out '; amount in controversy; costs.' after 'question' in item 1331. 1978 - Pub. L. 95-598, title II, Sec. 238(b), Nov. 6, 1978, 92 Stat. 2668, directed the substitution of 'Bankruptcy appeals' for 'Bankruptcy matters and proceedings' in item 1334, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Pub. L. 95-572, Sec. 6(b)(2), Nov. 2, 1978, 92 Stat. 2457, added item 1363 and redesignated former item 1363 'Construction of references to laws of the United States or Acts of Congress', as 1364. Pub. L. 95-521, title VII, Sec. 705(f)(2), Oct. 26, 1978, 92 Stat. 1880, added item 1364 'Senate actions'. Pub. L. 95-486, Sec. 9(c), Oct. 20, 1978, 92 Stat. 1634, substituted 'Commerce and antitrust regulations; amount in controversy, costs' for 'Commerce and antitrust regulations' in item 1337. Pub. L. 95-393, Sec. 7(b), 8(a)(2), Sept. 30, 1978, 92 Stat. 810, substituted 'Consuls, vice consuls, and members of a diplomatic mission as defendant' for 'Consuls and vice consuls as defendants' in item 1351 and added item 1364 'Direct actions against insurers of members of diplomatic missions and their families'. 1976 - Pub. L. 94-583, Sec. 2(b), Oct. 21, 1976, 90 Stat. 2891, added item 1330. 1970 - Pub. L. 91-358, title I, Sec. 172(c)(2), July 29, 1970, 84 Stat. 591, added item 1363. 1966 - Pub. L. 89-635, Sec. 2, Oct. 10, 1966, 80 Stat. 880, added item 1362. 1962 - Pub. L. 87-748, Sec. 1(b), Oct. 5, 1962, 76 Stat. 744, added item 1361. 1958 - Pub. L. 85-554, Sec. 4, July 25, 1958, 72 Stat. 415, inserted 'costs' in items 1331 and 1332. 1953 - Act Aug. 15, 1953, ch. 505, Sec. 3, 67 Stat. 589, added item 1360. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Procedure, generally, in district courts, see Appendix to this title. Jurisdictional grounds, statement required in claim for relief, see rule 8. Parties, see rules 17 to 25. Process and service, see rules 4 and 5. FEDERAL RULES OF CRIMINAL PROCEDURE Procedure, generally, in district courts, see Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Admiralty and maritime jurisdiction, see section 740 of Title 46, Appendix, Shipping. Amendment of pleadings to show jurisdiction, see section 1653 of this title. Costs on dismissal for lack of jurisdiction, see section 1919 of this title. Criminal jurisdiction of district courts, see section 3231 et seq. of Title 18, Crimes and Criminal Procedure. Criminal procedure, see section 3001 et seq. of Title 18. District of Columbia district court, additional jurisdiction, see D.C. Code Sec. 11-501. Guam, jurisdiction of district court, see section 1424 of Title 48, Territories and Insular Possessions. Immigration, jurisdiction of district courts, see section 1329 of Title 8, Aliens and Nationality. Jurisdiction in suits to recover share of expenses against handlers of agricultural commodities regardless of amount in controversy, see section 610 of Title 7, Agriculture. Jurisdiction of district courts in particular matters, see table in reviser's note for section 1332 of this title. Naturalization, judicial review by district courts of denial of application, see section 1421 of Title 8, Aliens and Nationality. Process, see section 1691 et seq. of this title. Removal of cases from state courts, see sections 1441 et seq. of this title. Virgin Islands, jurisdiction of district court, see sections 1612 and 1613 of Title 48, Territories and Insular Possessions. ------DocID 36540 Document 402 of 1452------ -CITE- 28 USC Sec. 1330 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1330. Actions against foreign states -STATUTE- (a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement. (b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title. (c) For purposes of subsection (b), an appearance by a foreign state does not confer personal jurisdiction with respect to any claim for relief not arising out of any transaction or occurrence enumerated in sections 1605-1607 of this title. -SOURCE- (Added Pub. L. 94-583, Sec. 2(a), Oct. 21, 1976, 90 Stat. 2891.) -MISC1- EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out as a note under section 1602 of this title. ------DocID 36541 Document 403 of 1452------ -CITE- 28 USC Sec. 1331 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1331. Federal question -STATUTE- The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 930; July 25, 1958, Pub. L. 85-554, Sec. 1, 72 Stat. 415; Oct. 21, 1976, Pub. L. 94-574, Sec. 2, 90 Stat. 2721; Dec. 1, 1980, Pub. L. 96-486, Sec. 2(a), 94 Stat. 2369.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Jurisdiction of federal questions arising under other sections of this chapter is not dependent upon the amount in controversy. (See annotations under former section 41 of title 28, U.S.C.A., and 35 C.J.S., p. 833 et seq., Sec. 30-43. See, also, reviser's note under section 1332 of this title.) Words 'wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs,' were added to conform to rulings of the Supreme Court. See construction of provision relating to jurisdictional amount requirement in cases involving a Federal question in United States v. Sayward, 16 S.Ct. 371, 160 U.S. 493, 40 L.Ed. 508; Fishback v. Western Union Tel. Co., 16 S.Ct. 506, 161 U.S. 96, 40 L.Ed. 630; and Halt v. Indiana Manufacturing Co., 1900, 20 S.Ct. 272, 176 U.S. 68, 44 L.Ed. 374. Words 'all civil actions' were substituted for 'all suits of a civil nature, at common law or in equity' to conform with Rule 2 of the Federal Rules of Civil Procedure. Words 'or treaties' were substituted for 'or treaties made, or which shall be made under their authority,' for purposes of brevity. The remaining provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1332, 1341, 1342, 1345, 1354, and 1359 of this title. Changes were made in arrangement and phraseology. AMENDMENTS 1980 - Pub. L. 96-486 struck out '; amount in controversy; costs' in section catchline, struck out minimum amount in controversy requirement of $10,000 for original jurisdiction in federal question cases which necessitated striking the exception to such required minimum amount that authorized original jurisdiction in actions brought against the United States, any agency thereof, or any officer or employee thereof in an official capacity, struck out provision authorizing the district court except where express provision therefore was made in a federal statute to deny costs to a plaintiff and in fact impose such costs upon such plaintiff where plaintiff was adjudged to be entitled to recover less than the required amount in controversy, computed without regard to set-off or counterclaim and exclusive of interests and costs, and struck out existing subsection designations. 1976 - Subsec. (a). Pub. L. 94-574 struck out $10,000 jurisdictional amount where action is brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. 1958 - Pub. L. 85-554 included costs in section catchline, designated existing provisions as subsec. (a), substituted '$10,000' for '$3,000', and added subsec. (b). EFFECTIVE DATE OF 1980 AMENDMENT; APPLICABILITY Section 4 of Pub. L. 96-486 provided: 'This Act (amending this section and section 2072 of Title 15, Commerce and Trade, and enacting provisions set out as a note under section 1 of this title) shall apply to any civil action pending on the date of enactment of this Act (Dec. 1, 1980).' EFFECTIVE DATE OF 1958 AMENDMENT Section 3 of Pub. L. 85-554 provided that: 'This Act (amending this section and sections 1332 and 1345 of this title) shall apply only in the case of actions commenced after the date of the enactment of this Act (July 25, 1958).' -CROSS- CROSS REFERENCES Controversies involving pollution of waters, jurisdiction of actions by States, see section 466g-1 of Title 33, Navigation and Navigable Waters. Convention on the Settlement of Investment Disputes, exclusive jurisdiction of district courts over actions and proceedings for enforcement of arbitration awards under the Convention, regardless of amount in controversy, see section 1650a of Title 22, Foreign Relations and Intercourse. Federal Deposit Insurance Corporation as party, see section 1819 of Title 12, Banks and Banking. Federal Reserve Bank as party, see section 632 of Title 12. International Finance Corporation as party, see section 282f of Title 22, Foreign Relations and Intercourse. International or foreign banking transactions, see section 632 of Title 12, Banks and Banking. Reclamation projects, compensation for rights-of-way, see section 945b of Title 43, Public Lands. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1441 of this title; title 15 section 2064; title 25 section 416a; title 42 section 405. ------DocID 36542 Document 404 of 1452------ -CITE- 28 USC Sec. 1332 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1332. Diversity of citizenship; amount in controversy; costs -STATUTE- (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between - (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $50,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) For the purposes of this section and section 1441 of this title - (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. (d) The word 'States', as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 930; July 26, 1956, ch. 740, 70 Stat. 658; July 25, 1958, Pub. L. 85-554, Sec. 2, 72 Stat. 415; Aug. 14, 1964, Pub. L. 88-439, Sec. 1, 78 Stat. 445; Oct. 21, 1976, Pub. L. 94-583, Sec. 3, 90 Stat. 2891; Nov. 19, 1988, Pub. L. 100-702, title II, Sec. 201(a), 202(a), 203(a), 102 Stat. 4646.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1341, 1342, 1345, 1354, and 1359 of this title. (See reviser's notes under said sections.) Jurisdiction conferred by other sections of this chapter, except section 1335, is not dependent upon diversity of citizenship. (See annotations under former section 41 of title 28, U.S.C.A., and 35 C.J.S., p. 833 et seq. Sec. 30-43. See, also, reviser's note under section 1331 of this title.) As to citizenship of bank where jurisdiction depends upon diversity of citizenship, see section 1348 of this title. Words 'all civil actions' were substituted for 'all suits of a civil nature, at common law or in equity' in order to conform to Rule 2 of the Federal Rules of Civil Procedure. Words 'or citizens of the District of Columbia, Territory of Hawaii, or Alaska, and any State or Territory' which were inserted by the amendatory act April 20, 1940, are omitted. The word 'States' is defined in this section and enumeration of the references is unnecessary. The revised section conforms with the views of Philip F. Herrick, United States Attorney, Puerto Rico, who observed that the act of April 20, 1940, permitted action between a citizen of Hawaii and of Puerto Rico, but not between a citizen of New York and Puerto Rico, in the district court. This changes the law to insure uniformity. The 1940 amendment applied only to the provision as to controversies between 'citizens of different States.' The new definition in subsection (b) extends the 1940 amendment to apply to controversies between citizens of the Territories or the District of Columbia, and foreign states or citizens or subjects thereof. The diversity of citizenship language of section 41(1) of title 28, U.S.C., 1940 ed., as amended in 1940, was described as ambiguous in McGarry v. City of Bethlehem, 45 F.Supp. 385, 386. In that case the 1940 amendment was held unconstitutional insofar as it affected the District of Columbia. However, two other district courts upheld the amendment. Winkler v. Daniels, D.C.Va. 1942, 43 F.Supp. 265; Glaeser v. Acacia Mutual Life Ass'n., D.C.Cal. 1944, 55 F.Supp. 925. This section is intended to cover all diversity of citizenship instances in civil actions in accordance with the judicial construction of the language in the original section 41(1) of title 28, U.S.C., 1940 ed. Therefore, the revised language covers civil actions between - Citizens of a State, and citizens of other States and foreign states or citizens or subjects thereof; Citizens of a Territory or the District of Columbia, and foreign states or citizens or subjects thereof; Citizens of different States; Citizens of different Territories; Citizens of a State, and citizens of Territories; Citizens of a State or Territory, and citizens of the District of Columbia; Citizens of a State, and foreign states or citizens or subjects thereof. The revised section removes an uncertainty referred to in the McGarry case, supra, as to whether Congress intended to permit citizens of the Territories or the District of Columbia to sue a State or Territory itself rather than the citizens thereof. The court observed that 'Congress could hardly have had such intention.' The sentence 'The foregoing provisions as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section' was omitted as unnecessary. Those paragraphs are (2)-(28) of said section 41 of title 28, U.S.C., 1940 ed., which are revised and incorporated in this chapter and, except for those relating to actions against the United States and interpleader, contains no provision as to a sum or value necessary to confer jurisdiction. Consequently the omitted sentence is covered by excluding such requirement. Section 41(1) of title 28, U.S.C., 1940 ed., as originally enacted, purported to include all jurisdictional provisions relating to the district courts. Subsequently, many special jurisdictional provisions were enacted and incorporated in other titles of the U.S.C., 1940 ed., as follows: Title Section 7 209 7 210 7 216 7 292 7 499g 7 608a(6) 7 608c(15)(B) 7 610(b)(2) 7 648 7 1175 7 1365-1367 7 1376 7 1508(c) 8 164 8 701 8 903 9 4 9 8 9 9 11 11(a) 11 46 11 205(a)(l) 11 401 11 511 11 512 11 514-516 11 711 11 712 11 811 11 812 11 1011 11 1012 11 1013 11 1200 12 93 12 195 12 632 15 4 15 9 15 15 15 25 15 26 15 31 15 53 15 68e 15 77t 15 77v 15 77vvv 15 78u(e) 15 78u(f) 15 78aa 15 79k(d)(e) 15 79r(f)(g) 15 80a-25 15 80a-34 15 80a-35 15 80a-41(c)(e) 15 80a-43 15 80b-14 15 97 15 99 15 433 15 715d(c) 15 715i 15 717s 15 717u 16 10 16 583e 16 820 16 825m 16 825n 16 825p 17 26 17 34 21 193 21 332 21 355 25 314 25 345 26 3633 26 3800 27 207 29 101 29 103-109 29 160(e) 29 216 29 217 30 188 31 232 33 495 33 918 33 921 35 63 35 66 35 67 35 72a 35 90 38 445 40 257 40 270b 40 361 41 113(b)(2) 42 405(c)(5)(g) 43 546 43 1062 45 56 45 88 45 89 45 153(p) 45 159 45 185 45 228j4 45 228k 45 268 45 355(f) 46 597 46 688 46 711 46 741 et seq. 46 781 et seq. 46 941(c) 46 951 46 954 46 1114(c) 46 1128d 47 11 47 13 47 33 47 36 47 207 47 401 47 406 47 407 48 242 48 245 49 5(8) 49 9 49 16(2) 49 16(9) 49 16(12) 49 17(9) 49 19a(l) 49 20(9) 49 23 49 26(h) 49 41(1)(3) 49 43 49 181(b)(c) 49 305(g) 49 322(b) 49 647 49 916 49 1017 49 1021 50 23 D.C. Code 11-305 - 11-307 D.C. Code 11-309 D.C. Code 11-324 AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702, Sec. 201(a), substituted '$50,000' for '$10,000' in introductory text. Pub. L. 100-702, Sec. 203(a), inserted at end 'For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.' Subsec. (b). Pub. L. 100-702, Sec. 201(a), substituted '$50,000' for '$10,000'. Subsec. (c). Pub. L. 100-702, Sec. 202(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: 'For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.' 1976 - Subsec. (a)(2). Pub. L. 94-583 substituted 'and citizens or subjects of a foreign state;' for ', and foreign states or citizens or subjects thereof; and'. Subsec. (a)(3). Pub. L. 94-583 substituted 'citizens or subjects of a foreign state are additional parties; and' for 'foreign states or citizens or subjects thereof are additional parties'. Subsec. (a)(4). Pub. L. 94-583 added par. (4). 1964 - Subsec. (c). Pub. L. 88-439 inserted proviso deeming an insurer of liability insurance, in an action to which the insurer is not joined as a party-defendant, a citizen, of the State of which the insured is a citizen, as well as the State the insurer has been incorporated by and the State where it has its principal place of business. 1958 - Pub. L. 85-554 included costs in section catchline. Subsec. (a). Pub. L. 85-554 substituted '$10,000' for '$3,000'. Subsecs. (b) to (d). Pub. L. 85-554 added subsecs. (b) and (c) and redesignated former subsec. (b) as (d). 1956 - Subsec. (b). Act July 26, 1956, included the Commonwealth of Puerto Rico. EFFECTIVE DATE OF 1988 AMENDMENT Section 201(b) of title II of Pub. L. 100-702 provided that: 'The amendments made by this section (amending this section) shall apply to any civil action commenced on or after the 180th day after the date of enactment of this title (Nov. 19, 1988).' Section 202(b) of title II of Pub. L. 100-702 provided that: 'The amendment made by this section (amending this section) shall apply to any civil action commenced in or removed to a United States district court on or after the 180th day after the date of enactment of this title (Nov. 19, 1988).' Section 203(b) of title II of Pub. L. 100-702 provided that: 'The amendment made by this section (amending this section) shall apply to claims in civil actions commenced in or removed to the United States district courts on or after the 180th day after the date of enactment of this title (Nov. 19, 1988).' EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-583 effective 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out as an Effective Date note under section 1602 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Section 2 of Pub. L. 88-439 provided that: 'The amendment made by this Act to section 1332(c), title 28, United States Code, applies only to causes of action arising after the date of enactment of this Act (Aug. 14, 1964).' EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-554 applicable only in the case of actions commenced after July 25, 1958, see section 3 of Pub. L. 85-554, set out as a note under section 1331 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Defenses and objections, see rule 12, Appendix to this title. CROSS REFERENCES Controversies involving pollution of waters, jurisdiction of actions by States, see section 466g-1 of Title 33, Navigation and Navigable Waters. Removal of cases from State courts, see section 1441 et seq. of this title. Venue of actions based on diversity of citizenship, see section 1391 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1335, 1367, 1446, 1603 of this title; title 42 section 9613; title 48 sections 1424, 1612, 1694a. ------DocID 36543 Document 405 of 1452------ -CITE- 28 USC Sec. 1333 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1333. Admiralty, maritime and prize cases -STATUTE- The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931; May 24, 1949, ch. 139, Sec. 79, 63 Stat. 101.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 41(3) and 371 (3), (4) (Mar. 3, 1911, ch. 231, Sec. 24, par. 3, 256, pars. 3, 4, 36 Stat. 1091, 1160; Oct. 6, 1917, ch. 97, Sec. 1, 2, 40 Stat. 395; June 10, 1922, ch. 216, Sec. 1, 2, 42 Stat. 634). Section consolidates certain provisions of sections 41(3), 371(3) and 371(4) of title 28, U.S.C., 1940 ed. Other provisions of sections 41(3) and 371(4), relating to seizures, are incorporated in section 1356 of this title. (See reviser's note thereunder.) The 'saving to suitors' clause in sections 41(3) and 371(3) of title 28, U.S.C., 1940 ed., was changed by substituting the words 'any other remedy to which he is otherwise entitled' for the words 'the right of a common law remedy where the common law is competent to give it.' The substituted language is simpler and more expressive of the original intent of Congress and is in conformity with Rule 2 of the Federal Rules of Civil Procedure abolishing the distinction between law and equity. Provisions of section 41(3) of title 28, U.S.C., 1940 ed., based on the 1917 and 1922 amendments, relating to remedies under State workmen's compensation laws, were deleted. Such amendments were held unconstitutional by the Supreme Court. (See Knickerbocker Ice Co. v. Stewart, 1920, 40 S.Ct. 438, 253 U.S. 149, 64 L.Ed. 834, and State of Washington v. W. C. Dawson & Co., 1924, 44 S.Ct. 302, 264 U.S. 219, 68 L.Ed. 646.) Words 'libellant or petitioner' were substituted for 'suitors' to describe moving party in admiralty cases. Changes were made in phraseology. 1949 ACT This section amends section 1333(a)(1) of title 28, U.S.C., by substituting 'suitors' for 'libellant or petitioner' to conform to the language of the law in existence at the time of the enactment of the revision of title 28. AMENDMENTS 1949 - Subd. (1). Act May 24, 1949, substituted 'suitors' for 'libellant or petitioner'. -CROSS- CROSS REFERENCES Admiralty and maritime jurisdiction of cases of damage or injury to persons or property, caused by a vessel, whether done or consummated on land, see section 740 of Title 46, Appendix, Shipping. Admiralty suits against United States, jurisdiction, see sections 741 et seq. and 781 et seq. of Title 46, Appendix. Jury trial in admiralty cases, see section 1873 of this title. Limitation of vessel owner's liability, see section 181 et seq. of Title 46, Appendix. Prize - Generally, see section 7651 et seq. of Title 10, Armed Forces. Jurisdiction, see section 7652 of Title 10. Seaman, definition of, see section 10101 of Title 46, Shipping. ------DocID 36544 Document 406 of 1452------ -CITE- 28 USC Sec. 1334 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1334. Bankruptcy cases and proceedings -STATUTE- (a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. (c)(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Any decision to abstain or not to abstain made under this subsection is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title. This subsection shall not be construed to limit the applicability of the stay provided for by section 362 of title 11, United States Code, as such section applies to an action affecting the property of the estate in bankruptcy. (d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 238(a), 92 Stat. 2667; July 10, 1984, Pub. L. 98-353, title I, Sec. 101(a), 98 Stat. 333; Oct. 27, 1986, Pub. L. 99-554, title I, Sec. 144(e), 100 Stat. 3096; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 309(b), 104 Stat. 5113.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(19) and 371(6) (Mar. 3, 1911, ch. 231, Sec. 24, par. 19, 256, par. 6, 36 Stat. 1093, 1160). Changes in phraseology were made. AMENDMENTS 1990 - Subsec. (c)(2). Pub. L. 101-650 inserted in second sentence 'or not to abstain' after 'to abstain' and 'by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title' before period at end. 1986 - Subsec. (d). Pub. L. 99-554 substituted 'and of property of the estate' for 'and of the estate'. 1984 - Pub. L. 98-353 in amending section generally, substituted 'cases' for 'matters' in section catchline, designated existing provision as subsec. (a), and in subsec. (a) as so designated, substituted 'Except as provided in subsection (b) of this section, the district' for 'The district' and 'original and exclusive jurisdiction of all cases under title 11' for 'original jurisdiction, exclusive of the courts of the States, of all matters and proceedings in bankruptcy', and added subsecs. (b) to (d). 1978 - Pub. L. 95-598 directed the general amendment of section to relate to bankruptcy appeals, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-353 effective July 10, 1984, except that subsec. (c)(2) not applicable with respect to cases under Title 11, Bankruptcy, that are pending on July 10, 1984, or to proceedings arising in or related to such cases, see section 122(a), (b) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. JURISDICTION OVER AND TRANSFER OF BANKRUPTCY CASES AND PROCEEDINGS Section 115 of Pub. L. 98-353 provided that: '(a) On the date of the enactment of this Act (July 10, 1984) the appropriate district court of the United States shall have jurisdiction of - '(1) cases, and matters and proceedings in cases, under the Bankruptcy Act (former Title 11, Bankruptcy) that are pending immediately before such date in the bankruptcy courts continued by section 404(a) of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2687) (formerly set out as a note preceding section 151 of this title), and '(2) cases under title 11 of the United States Code, and proceedings arising under title 11 of the United States Code or arising in or related to cases under title 11 of the United States Code, that are pending immediately before such date in the bankruptcy courts continued by section 404(a) of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2687). '(b) On the date of the enactment of this Act (July 10, 1984), there shall be transferred to the appropriate district court of the United States appeals from final judgments, orders, and decrees of the bankruptcy courts pending immediately before such date in the bankruptcy appellate panels appointed under section 405(c) of the Act of November 6, 1978 (Public Law 95-598; 92 Stat. 2685) (formerly set out as a note preceding section 1471 of this title).' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 156, 157, 1408, 1452 of this title. ------DocID 36545 Document 407 of 1452------ -CITE- 28 USC Sec. 1335 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1335. Interpleader -STATUTE- (a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if (1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy. (b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(26) (Mar. 3, 1911, ch. 231, Sec. 24, par. 26, as added Jan. 20, 1936, ch. 13, Sec. 1, 49 Stat. 1096). Words 'civil action' were substituted for 'suits in equity'; word 'plaintiff' was substituted for 'complainant'; and word 'judgment' was substituted for 'decree,' in order to make the language of this section conform with the Federal Rules of Civil Procedure. The words 'duly verified' following 'in the nature of interpleader,' near the beginning of the section, were omitted. Under Rule 11 of the Federal Rules of Civil Procedure pleadings are no longer required to be verified or accompanied by affidavit unless specially required by statute. Although verification was specially required by section 41(26) of title 28, U.S.C., 1940 ed., the need therefor is not apparent. Provisions of section 41(26)(b) of title 28, U.S.C., 1940 ed., relating to venue are the basis of section 1397 of this title. (See, also, reviser's note under said section.) Subsections (c) and (d) of said section 41(26) relating to issuance of injunctions constitute section 2361 of this title. (See reviser's note under said section.) Subsection (e) of such section 41(26), relating to defense in nature of interpleader and joinder of additional parties, was omitted as unnecessary, such matters being governed by the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Interpleader, injunctions and deposit in court, see rules 22, 65, and 67, Appendix to this title. Form of complaint, see Form 18, Appendix to rules. CROSS REFERENCES Actions on war risk insurance claims, see section 1292 of Title 46, Appendix, Shipping. Interpleader actions - Process and procedure, see section 2361 of this title. Venue, see section 1397 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1332, 1397, 2361 of this title. ------DocID 36546 Document 408 of 1452------ -CITE- 28 USC Sec. 1336 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1336. Interstate Commerce Commission's orders -STATUTE- (a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, in whole or in part, any order of the Interstate Commerce Commission, and to enjoin or suspend, in whole or in part, any order of the Interstate Commerce Commission for the payment of money or the collection of fines, penalties, and forfeitures. (b) When a district court or the United States Claims Court refers a question or issue to the Interstate Commerce Commission for determination, the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission arising out of such referral. (c) Any action brought under subsection (b) of this section shall be filed within 90 days from the date that the order of the Interstate Commerce Commission becomes final. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931; Aug. 30, 1964, Pub. L. 88-513, Sec. 1, 78 Stat. 695; Jan. 2, 1975, Pub. L. 93-584, Sec. 1, 88 Stat. 1917; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 128, 96 Stat. 39.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(27), (28) (Mar. 3, 1911, ch. 231, Sec. 24(27), (28), 207, 36 Stat. 1091, 1148; Oct. 22, 1913, ch. 32, 38 Stat. 219). Words 'Except as otherwise provided by enactment of Congress' were inserted because of certain similar cases of which the courts of appeals are given jurisdiction. (See, for example, section 21 of title 15, U.S.C., 1940 ed., Commerce and Trade.) Words 'any civil action' were substituted for 'all cases' and 'cases' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (b). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1975 - Subsec. (a). Pub. L. 93-584 substituted provisions that the district courts shall have jurisdiction of civil actions to enforce, in whole or in part, orders of the Interstate Commerce Commission, and to enjoin or suspend, in whole or in part, any order of the Interstate Commerce Commission for the payment of money or the collection of fines, penalties, and forfeitures, for provisions that the district courts shall have jurisdiction of civil actions to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission. 1964 - Pub. L. 88-513 designated existing provisions as subsec. (a) and added subsecs. (b) and (c). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93-584 not applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as a note under section 2321 of this title. -CROSS- CROSS REFERENCES Procedure for enforcement and review of Interstate Commerce Commission orders, see section 2321 et seq. of this title. Venue of actions involving Interstate Commerce Commission's order, see section 1398 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1398 of this title; title 49 section 11901. ------DocID 36547 Document 409 of 1452------ -CITE- 28 USC Sec. 1337 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1337. Commerce and antitrust regulations; amount in controversy, costs -STATUTE- (a) The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies: Provided, however, That the district courts shall have original jurisdiction of an action brought under section 11707 of title 49, only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs. (b) Except when express provision therefor is otherwise made in a statute of the United States, where a plaintiff who files the case under section 11707 of title 49, originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of any interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) The district courts shall not have jurisdiction under this section of any matter within the exclusive jurisdiction of the Court of International Trade under chapter 95 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931; Oct. 20, 1978, Pub. L. 95-486, Sec. 9(a), 92 Stat. 1633; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 505, 94 Stat. 1743; Jan. 12, 1983, Pub. L. 97-449, Sec. 5(f), 96 Stat. 2442.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(8), (23) (Mar. 3, 1911, ch. 231, Sec. 24, pars. 8, 23, 36 Stat. 1092, 1093; Oct. 22, 1913, ch. 32, 38 Stat. 219). Words 'civil action' were substituted for 'suits', in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. AMENDMENTS 1983 - Pub. L. 97-449 substituted 'section 11707 of title 49' for 'section 20(11) of part I of the Interstate Commerce Act (49 U.S.C. 20(11)) or section 219 of part II of such Act (49 U.S.C. 319)' wherever appearing. 1980 - Subsec. (c). Pub. L. 96-417 added subsec. (c). 1978 - Pub. L. 95-486 designated existing provisions as subsec. (a), inserted proviso giving the district courts original jurisdiction of actions brought under sections 20(11) and 219 of the Interstate Commerce Act when the amounts in controversy for each receipt exceed $10,000, exclusive of interests and costs, and added subsec. (b). EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 sections 607, 609. ------DocID 36548 Document 410 of 1452------ -CITE- 28 USC Sec. 1338 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1338. Patents, plant variety protection, copyrights, mask works, trade-marks, and unfair competition -STATUTE- (a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. (b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws. (c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 931; Dec. 24, 1970, Pub. L. 91-577, title III, Sec. 143(b), 84 Stat. 1559; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1020(a)(4), 102 Stat. 4671.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(7) and 371(5) (Mar. 3, 1911, ch. 231, Sec. 24, par. 7, 256, par. 5, 36 Stat. 1092, 1160). Section consolidates section 41(7) with section 371 (5) of title 28, U.S.C., 1940 ed., with necessary changes in phraseology. Words 'of any civil action' were substituted for 'all suits at law or in equity' and 'cases' to conform section to Rule 2 of the Federal Rules of Civil Procedure. Word 'patents' was substituted for 'patent-right' in said section 371 (Fifth) of title 28, U.S.C., 1940 ed. Similar provisions respecting suits cognizable in district courts, including those of territories and possessions. (See section 34 of title 17, U.S.C., 1940 ed., Copyrights.) Subsection (b) is added and is intended to avoid 'piecemeal' litigation to enforce common-law and statutory copyright, patent, and trade-mark rights by specifically permitting such enforcement in a single civil action in the district court. While this is the rule under Federal decisions, this section would enact it as statutory authority. The problem is discussed at length in Hurn v. Oursler (1933, 53 S.Ct. 586, 289 U.S. 238, 77 L.Ed. 1148) and in Musher Foundation v. Alba Trading Co. (C.C.A. 1942, 127 F.2d 9) (majority and dissenting opinions). AMENDMENTS 1988 - Pub. L. 100-702, Sec. 1020(a)(4)(B), amended section catchline generally, inserting 'mask works,' after 'copyrights,'. Subsec. (c). Pub. L. 100-702, Sec. 1020(a)(4)(A), added subsec. (c). 1970 - Pub. L. 91-577 inserted references to 'plant variety protection' in section catchline and in subsecs. (a) and (b). EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-577 effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as an Effective Date note under section 2321 of Title 7, Agriculture. -CROSS- CROSS REFERENCES Amount in controversy under this section, see Historical and Revision Notes under section 1331 of this title. Civil action to obtain patent or in case of interference, see sections 145 and 146 of Title 35, Patents. Claims Court, jurisdiction of claims against United States for patent infringement, see section 1498 of this title. Diversity of citizenship under this section, see Historical and Revision Notes under section 1332 of this title. Foreign Assistance Act of 1961, jurisdiction and legal remedy for unauthorized use or disclosure of patents and technical information, see section 2356 of Title 22, Foreign Relations and Intercourse. Infringements of - Copyrights and rights and remedies therefor, see section 501 et seq. of Title 17, Copyrights. Patents, see sections 271 et seq. and 281 et seq. of Title 35, Patents. Trade-marks, see sections 1057, 1114, 1115, and 1117 of Title 15, Commerce and Trade. Jurisdiction of trade-mark actions, see section 1121 of Title 15. Pleading and proof in patent actions for infringement, see section 282 of Title 35, Patents. Venue - Patent or copyright actions, see section 1400 of this title. Trade-mark infringement action, see section 1391(b) of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1295 of this title. ------DocID 36549 Document 411 of 1452------ -CITE- 28 USC Sec. 1339 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1339. Postal matters -STATUTE- The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(6) (Mar. 3, 1911, ch. 231, Sec. 24, par. 6, 36 Stat. 1092). Changes were made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in actions under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Postal laws in general, see Title 39, Postal Service. ------DocID 36550 Document 412 of 1452------ -CITE- 28 USC Sec. 1340 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1340. Internal revenue; customs duties -STATUTE- The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 501(21), 94 Stat. 1742.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(5) (Mar. 3, 1911, ch. 231, Sec. 24, par. 5, 36 Stat. 1092; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475). Words 'Customs Court' were substituted for 'Court of Customs and Patent Appeals.' Section 41(5) of title 28, U.S.C., 1940 ed., is based on the Judicial Code of 1911. At that time the only court, other than the district courts, having jurisdiction of customs cases, was the Court of Customs Appeals which became the Court of Customs and Patent Appeals in 1929. The Customs Court was created in 1926 as a court of original jurisdiction over customs cases. (See reviser's note preceding section 251 of this title.) Words 'any civil action' were substituted for 'all cases' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. AMENDMENTS 1980 - Pub. L. 96-417 redesignated the Customs Court as the Court of International Trade. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. -CROSS- CROSS REFERENCES Action by the United States - Collection of unpaid estate tax, see section 7404 of Title 26, Internal Revenue Code. Enforcement of tax lien or subjection of property to payment of tax, see section 7403 of Title 26. Recovery of erroneous tax refund, see section 7405 of Title 26. Action to clear title to property upon which tax lien filed by United States, see section 7424 of Title 26. Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Court of International Trade jurisdiction, see section 1581 et seq. of this title. Customs officers' immunity from liability, see section 1513 of Title 19, Customs Duties. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Jurisdiction of action for refund by taxpayer against United States, see section 1346 of this title. Prohibition of suits to restrain tax assessment or collection, see section 7421 of Title 26, Internal Revenue Code. Venue - Action for collection of internal revenue taxes, see section 1396 of this title. Action for refund brought by taxpayer against collection officer, see section 1391 of this title. Action for refund brought by taxpayer against United States, see section 1402 of this title. Fines, penalties or forfeitures, generally, see section 1395 of this title. Judicial action to enforce forfeiture under internal revenue laws, see section 7323 of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7402. ------DocID 36551 Document 413 of 1452------ -CITE- 28 USC Sec. 1341 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1341. Taxes by States -STATUTE- The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). This section restates the last sentence of section 41(1) of title 28, U.S.C., 1940 ed. Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1342, 1345, 1354, and 1359 of this title. Words 'at law or in equity' before 'in the courts of such State' were omitted as unnecessary. Words 'civil action' were substituted for 'suit' in view of Rule 2 of the Federal Rules of Civil Procedure. Words 'under State law' were substituted for 'imposed by or pursuant to the laws of any State' for the same reason. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 45 section 546b; title 49 sections 11503, 11503a. ------DocID 36552 Document 414 of 1452------ -CITE- 28 USC Sec. 1342 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1342. Rate orders of State agencies -STATUTE- The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). This section rearranges and restates the fourth sentence of section 41(1) of title 28, U.S.C., 1940 ed. Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1345, 1354, and 1359 of this title. Words 'at law or in equity' before 'in the courts of such State' were omitted as unnecessary. Words 'civil action' were substituted for 'suit,' in view of Rule 2 of the Federal Rules of Civil Procedure. Word 'operation' was substituted for 'enforcement, operation or execution' for the same reason. ------DocID 36553 Document 415 of 1452------ -CITE- 28 USC Sec. 1343 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1343. Civil rights and elective franchise -STATUTE- (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. (b) For purposes of this section - (1) the District of Columbia shall be considered to be a State; and (2) any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932; Sept. 3, 1954, ch. 1263, Sec. 42, 68 Stat. 1241; Sept. 9, 1957, Pub. L. 85-315, part III, Sec. 121, 71 Stat. 637; Dec. 29, 1979, Pub. L. 96-170, Sec. 2, 93 Stat. 1284.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(12), (13), and (14) (Mar. 3, 1911, ch. 231, Sec. 24, pars. 12, 13, 14, 36 Stat. 1092). Words 'civil action' were substituted for 'suits,' 'suits at law or in equity' in view of Rule 2 of the Federal Rules of Civil Procedure. Numerous changes were made in arrangement and phraseology. AMENDMENTS 1979 - Pub. L. 96-170 designated existing provisions as subsec. (a) and added subsec. (b). 1957 - Pub. L. 85-315 inserted 'and elective franchise' in section catchline and added par. (4). 1954 - Act Sept. 3, 1954, substituted 'section 1985 of Title 42' for 'section 47 of Title 8' wherever appearing. EFFECTIVE DATE OF 1979 AMENDMENT Section 3 of Pub. L. 96-170 provided that: 'The amendments made by this Act (amending this section and section 1983 of Title 42, The Public Health and Welfare) shall apply with respect to any deprivation of rights, privileges, or immunities secured by the Constitution and laws occurring after the date of the enactment of this Act (Dec. 29, 1979).' -CROSS- CROSS REFERENCES Generally, see section 1981 et seq. of Title 42, The Public Health and Welfare. Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Civil action for deprivation of civil rights, see section 1983 of Title 42, The Public Health and Welfare. Civil action or injunction for deprivation of voting rights, see section 1971 of Title 42. Conspiracy against rights of citizens constituting federal crime, see section 241 of Title 18, Crimes and Criminal Procedure. Conspiracy to interfere with civil rights, see section 1985 of Title 42, The Public Health and Welfare. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 652 of this title. ------DocID 36554 Document 416 of 1452------ -CITE- 28 USC Sec. 1344 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1344. Election disputes -STATUTE- The district courts shall have original jurisdiction of any civil action to recover possession of any office, except that of elector of President or Vice President, United States Senator, Representative in or delegate to Congress, or member of a state legislature, authorized by law to be commenced, where in it appears that the sole question touching the title to office arises out of denial of the right to vote, to any citizen offering to vote, on account of race, color or previous condition of servitude. The jurisdiction under this section shall extend only so far as to determine the rights of the parties to office by reason of the denial of the right, guaranteed by the Constitution of the United States and secured by any law, to enforce the right of citizens of the United States to vote in all the States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 932.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(15) (Mar. 3, 1911, ch. 231, Sec. 24, par. 15, 36 Stat. 1092). Words 'civil action' were substituted for 'suits,' in view of Rule 2 of the Federal Rules of Civil Procedure. Words 'United States Senator' were added, as no reason appears for including Representatives and excluding Senators. Moreover, the Seventeenth amendment, providing for the popular election of Senators, was adopted after the passage of the 1911 law on which this section is based. Changes were made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Jurisdiction of action for damages for injuries in voting, see section 1357 of this title. ------DocID 36555 Document 417 of 1452------ -CITE- 28 USC Sec. 1345 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1345. United States as plaintiff -STATUTE- Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 933.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1342, 1354, and 1359 of this title. Words 'civil actions, suits or proceedings' were substituted for 'suits of a civil nature, at common law or in equity' in view of Rules 2 and 81(a)(7) of the Federal Rules of Civil Procedure. Word 'agency' was inserted in order that this section shall apply to actions by agencies of the Government and to conform with special acts authorizing such actions. (See definitive section 451 of this title.) The phrase 'Except as otherwise provided by Act of Congress,' at the beginning of the section was inserted to make clear that jurisdiction exists generally in district courts in the absence of special provisions conferring it elsewhere. Changes were made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Jurisdiction of - Action against national banking association, see section 1348 of this title. Action for enforcement of fines, penalties, or forfeitures, see section 1355 of this title. Bonds executed under federal law, see section 1352 of this title. District courts in postal matters, see section 1339 of this title. Third party tort liability for hospital and medical care, see section 2651 et seq. of Title 42, The Public Health and Welfare. United States as party - Generally, see section 2401 et seq. of this title. Interstate Commerce Commission orders, see section 2322 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 sections 1452, 1819, 2279aa-14. ------DocID 36556 Document 418 of 1452------ -CITE- 28 USC Sec. 1346 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1346. United States as defendant -STATUTE- (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. (b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section. (d) The district courts shall not have jurisdiction under this section of any civil action or claim for a pension. (e) The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986. (f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, Sec. 2(a), 63 Stat. 62; May 24, 1949, ch. 139, Sec. 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ch. 655, Sec. 50(b), 65 Stat. 727; July 30, 1954, ch. 648, Sec. 1, 68 Stat. 589; July 7, 1958, Pub. L. 85-508, Sec. 12(e), 72 Stat. 348; Aug. 30, 1964, Pub. L. 88-519, 78 Stat. 699; Nov. 2, 1966, Pub. L. 89-719, title II, Sec. 202(a), 80 Stat. 1148; July 23, 1970, Pub. L. 91-350, Sec. 1(a), 84 Stat. 449; Oct. 25, 1972, Pub. L. 92-562, Sec. 1, 86 Stat. 1176; Oct. 4, 1976, Pub. L. 94-455, title XII, Sec. 1204(c)(1), title XIII, Sec. 1306(b)(7), 90 Stat. 1697, 1719; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(a), 92 Stat. 2389; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 129, 96 Stat. 39; Sept. 3, 1982, Pub. L. 97-248, title IV, Sec. 402(c)(17), 96 Stat. 669; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, 100 Stat. 2095.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 41(20), 931(a), 932 (Mar. 3, 1911, ch. 231, Sec. 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, Sec. 1310(c), 42 Stat. 311; June 2, 1924, ch. 234, Sec. 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, Sec. 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, Sec. 410(a), 411, 60 Stat. 843). Section consolidates provisions of section 41(20) conferring jurisdiction upon the district court, in civil actions against the United States, with the first sentence of section 931(a) relating to jurisdiction of the district courts in tort claims cases, and those provisions of section 932 making the provisions of said section 41(20), relating to counterclaim and set-off, applicable to tort claims cases, all of title 28, U.S.C., 1940 ed. Provision in section 931(a) of title 28, U.S.C., 1940 ed., for trials without a jury, is incorporated in section 2402 of this revised title. For other provisions thereof, see Distribution Table. Words 'commencing an action under this section' in subsec. (c) of this revised section cover the provision in section 932 of title 28, U.S.C., 1940 ed., requiring that the same provisions 'for counterclaim and set-off' shall apply to tort claims cases brought in the district courts. The phrase in section 931(a) of title 28, U.S.C., 1940 ed., 'accruing on and after January 1, 1945' was omitted because executed as of the date of the enactment of this revised title. Provisions in section 41(20) of title 28, U.S.C., 1940 ed., relating to time for commencing action against United States and jury trial constitute sections 2401 and 2402 of this title. (See reviser's notes under said sections.) Words in section 41(20) of title 28, U.S.C., 1940 ed., 'commenced after passage of the Revenue Act of 1921' were not included in revised subsection (a)(1) because obsolete and superfluous. Actions under this section involving erroneous or illegal assessments by the collector of taxes would be barred unless filed within the 5-year limitation period of section 1113(a) of the Revenue Act of 1926, 44 Stat. 9, 116. (See United States v. A. S. Kreider Co., 1941, 61 S.Ct. 1007, 313 U.S. 443, 85 L.Ed. 1447.) Words in section 41(20) of title 28, U.S.C., 1940 ed., 'if the collector of internal revenue is dead or is not in office at the time such action or proceeding is commenced' were omitted. The revised section retains the language of section 41(20) of title 28, U.S.C., 1940 ed., with respect to actions against the United States if the collector is dead or not in office when action is commenced, and consequently maintains the long existing distinctions in practice between actions against the United States and actions against the collector who made the assessment or collection. In the latter class of actions either party may demand a jury trial while jury trial is denied in actions against the United States. See section 2402 of this title. In reality all such actions are against the United States and not against local collectors. (See Lowe v. United States, 1938, 58 S.Ct. 896, 304 U.S. 302, 82 L.Ed. 1362; Manseau v. United States, D.C.Mich. 1943, 52 F.Supp. 395, and Combined Metals Reduction Co. v. United States, D.C.Utah 1943, 53 F.Supp. 739.) The revised subsection (c)(1) omitted clause: 'but no suit pending on the 27th day of June 1898 shall abate or be affected by this provision,' contained in section 41(20) of title 28, U.S.C., 1940 ed., as obsolete and superfluous. The words contained in section 41(20) of title 28, U.S.C., 1940 ed., 'claims growing out of the Civil War, and commonly known as 'war-claims,' or to hear and determine other claims which had been reported adversely prior to the 3d day of March 1887 by any court, department, or commission authorized to have and determine the same,' were omitted for the same reason. The words 'in a civil action or in admiralty,' in subsection (a)(2), were substituted for 'either in a court of law, equity, or admiralty' to conform to Rule 2 of the Federal Rules of Civil Procedure. Words in section 41(20) 'in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable' were omitted from subsection (a)(2) of this revised section as unnecessary. See reviser's note under section 1491 of this title. For jurisdiction of The Tax Court to review claims for refunds of processing taxes collected under the unconstitutional Agriculture Adjustment Act, see sections 644-659 of title 7, U.S.C., 1940 ed., Agriculture, and the 1942 Revenue Act, Act Oct. 21, 1942, ch. 610, title V, Sec. 510(a), (c), (d), 56 Stat. 667. (See, also, Lamborn v. United States, C.C.P.A. 1939, 104 F.2d 75, certiorari denied 60 S.Ct. 115, 308 U.S. 589, 84 L.Ed. 493.) See, also, reviser's note under section 1491 of this title as to jurisdiction of the Court of Claims in suits against the United States generally. For venue of actions under this section, see section 1402 of this title and reviser's note thereunder. Minor changes were made in phraseology. SENATE REVISION AMENDMENT The provision of title 28, U.S.C., Sec. 932, which related to application of the Federal Rules of Civil Procedure, were originally set out in section 2676 of this revised title, but such section 2676 was eliminated by Senate amendment. See 80th Congress Senate Report No. 1559, amendment No. 61. 1949 ACT This section corrects typographical errors in section 1346(a)(1) of title 28, U.S.C., and in section 1346(b) of such title. -REFTEXT- REFERENCES IN TEXT The internal-revenue laws, referred to in subsec. (a)(1), are classified generally to Title 26, Internal Revenue Code. Sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978, referred to in subsec. (a)(2), are classified to sections 607(g)(1) and 609(a)(1) of Title 41, Public Contracts. Sections 6226, 6228(a), 7426, 7428, and 7429 of the Internal Revenue Code of 1986, referred to in subsec. (e), are classified to sections 6226, 6228(a), 7426, 7428, and 7429, respectively, of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Subsec. (e). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1982 - Subsec. (a). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. Subsec. (e). Pub. L. 97-248 substituted 'section 6226, 6228(a), 7426, or' for 'section 7426 or section'. 1978 - Subsec. (a)(2). Pub. L. 95-563 excluded from the jurisdiction of district courts civil actions or claims against the United States founded upon any express or implied contract with the United States or for damages in cases not sounding in tort subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. 1976 - Subsec. (e). Pub. L. 94-455 inserted 'or section 7429' and 'or section 7428 (in the case of the United States district court for the District of Columbia)', after 'section 7426'. 1972 - Subsec. (f). Pub. L. 92-562 added subsec. (f). 1970 - Subsec. (a)(2). Pub. L. 91-350 specified that the term 'express or implied contracts with the United States' includes express or implied contracts with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration. 1966 - Subsec. (e). Pub. L. 89-719 added subsec. (e). 1964 - Subsec. (d). Pub. L. 88-519 struck out provisions which prohibited district courts from exercising jurisdiction of civil actions or claims to recover fees, salary, or compensation for official services of officers or employees of the United States. 1958 - Subsec. (b). Pub. L. 85-508 struck out reference to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1954 - Subsec. (a)(1). Act July 30, 1954, struck out language imposing jurisdictional limitation of $10,000 on suits to recover taxes. 1951 - Subsec. (d). Act Oct. 31, 1951, inserted references to 'claim' and 'employees'. 1949 - Subsec. (a)(1). Act May 24, 1949, Sec. 80(a), inserted ', (i) if the claim does not exceed $10,000 or (ii)'. Subsec. (b). Acts Apr. 25, 1949, and May 24, 1949, Sec. 80(b), made a technical change to correct 'chapter 173' to read 'chapter 171', and inserted 'on and after January 1, 1945' after 'for money damages'. EFFECTIVE DATE OF 1982 AMENDMENTS Amendment by Pub. L. 97-248 applicable to partnership taxable years beginning after Sept. 3, 1982, with provision for the applicability of the amendment to any partnership taxable year ending after Sept. 3, 1982, if the partnership, each partner, and each indirect partner requests such application and the Secretary of the Treasury or his delegate consents to such application, see section 407(a)(1), (3) of Pub. L. 97-248, set out as an Effective Date note under section 6221 of Title 26, Internal Revenue Code. Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978 and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. EFFECTIVE DATE OF 1970 AMENDMENT Section 2 of Pub. L. 91-350 provided that: '(a) In addition to granting jurisdiction over suits brought after the date of enactment of this Act (July 23, 1970), the provisions of this Act (amending this section and section 1491 of this title and section 724a of former Title 31, Money and Finance) shall also apply to claims and civil actions dismissed before or pending on the date of enactment of this Act if the claim or civil action is based upon a transaction, omission, or breach that occurred not more than six years prior to the date of enactment of this Act (July 23, 1970). '(b) The provisions of subsection (a) of this section shall apply notwithstanding a determination or judgment made prior to the date of enactment of this Act that the United States district courts or the United States Court of Claims did not have jurisdiction to entertain a suit on an express or implied contract with a nonappropriated fund instrumentality of the United States described in section 1 of this Act.' EFFECTIVE DATE OF 1966 AMENDMENT Section 203 of title II of Pub. L. 89-719 provided that: 'The amendments made by this title (amending this section and sections 1402 and 2410 of this title) shall apply after the date of the enactment of this Act (Nov. 2, 1966).' EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Costs where United States is party, see rule 54, Appendix to this title. CROSS REFERENCES Claims Court jurisdiction, see section 1491 et seq. of this title. Costs where United States is party, see section 2412 of this title. Interest on judgments against United States, see section 2411 of this title. Jury trial denied in actions under this section, see section 2402 of this title. Nuclear incident involving nuclear reactor of United States warship, payment of claims or judgments for bodily injury, death, or damage resulting from, see section 2211 of Title 42, The Public Health and Welfare. Remedy under this section for damages caused by operation of motor vehicles by Government employees to be exclusive of any other civil action or proceeding, see section 2679 of this title. Tax Court jurisdiction, see section 7441 et seq. of Title 26, Internal Revenue Code. Time for commencing action against United States, see section 2401 of this title. Tort claims procedure, see section 2671 et seq. of this title. Venue of actions against United States, see section 1402 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 995, 1295, 1402, 2402, 2409a, 2671, 2676, 2677, 2678, 2679, 2680 of this title; title 2 section 190g; title 5 sections 3373, 3374, 8477; title 10 sections 1054, 1089; title 22 sections 2702, 3761, 4606; title 23 section 307; title 25 sections 640d-17, 1680c; title 26 section 7422; title 29 section 938; title 38 sections 224, 351, 4116; title 41 sections 113, 602; title 42 sections 233, 405, 2212, 2221, 2223, 2458a, 4654, 5055; title 43 section 1737; title 46 App. section 1242; title 47 section 606; title 49 App. section 1540; title 50 App. sections 9, 2410. ------DocID 36557 Document 419 of 1452------ -CITE- 28 USC Sec. 1347 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1347. Partition action where United States is joint tenant -STATUTE- The district courts shall have original jurisdiction of any civil action commenced by any tenant in common or joint tenant for the partition of lands where the United States is one of the tenants in common or joint tenants. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 933.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(25) (Mar. 3, 1911, ch. 231, Sec. 24, par. 25, 36 Stat. 1094). The venue provision in section 41(25) of title 28, U.S.C., 1940 ed., is incorporated in section 1399 of this title. Words 'civil action' were substituted for 'suits in equity,' in view of Rule 2 of the Federal Rules of Civil Procedure. A change was made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Venue of action for partition of lands where United States is tenant in common or joint tenant, see section 1399 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2409a of this title. ------DocID 36558 Document 420 of 1452------ -CITE- 28 USC Sec. 1348 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1348. Banking association as party -STATUTE- The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter. All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 933.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(16) (Mar. 3, 1911, ch. 231, Sec. 24, par. 16, 36 Stat. 1092). Words 'any civil action' were substituted for 'all cases,' in view of Rule 2 of the Federal Rules of Civil Procedure. Words 'real, personal, or mixed, and all suits in equity,' after 'all other actions by or against them,' were omitted as superfluous. -TRANS- EXCEPTION AS TO TRANSFER OF FUNCTIONS Functions vested by any provision of law in the Comptroller of the Currency, referred to in this section, were not included in the transfer of functions of officers, agencies and employees of the Department of the Treasury to the Secretary of the Treasury, made by Reorg. Plan No. 26 of 1950, Sec. 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280. See section 321(c)(2) of Title 31, Money and Finance. -CROSS- CROSS REFERENCES Amount in controversy - Immaterial in action other than on diverse citizenship, see Historical and Revision Notes under section 1331 of this title. Required in diverse citizenship action under this section, see Historical and Revision Notes under section 1332 of this title. Injunction by national bank against Comptroller of Currency denying failure to redeem notes, see section 195 of Title 12, Banks and Banking. Jurisdiction of action by or against - Federal reserve bank, see section 632 of Title 12. Liquidating agent of national bank, see section 197 of Title 12. National bank receiver, see section 1345 of this title. Powers of conservator of national bank, see section 203 of Title 12, Banks and Banking. Prohibition on state court from enjoining national bank, see section 91 of Title 12. Venue of action - Against national banking association, see section 94 of Title 12. By banking association to enjoin the Comptroller of the Currency, see section 1394 of this title. ------DocID 36559 Document 421 of 1452------ -CITE- 28 USC Sec. 1349 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1349. Corporation organized under federal law as party -STATUTE- The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 42 (Feb. 13, 1925, ch. 229, Sec. 12, 43 Stat. 941). Words 'civil action' were substituted for 'action or suit,' in view of Rule 2 of the Federal Rules of Civil Procedure. Minor changes were made in phraseology. -CROSS- CROSS REFERENCES Action arising under law of United States, see section 1331 of this title. Action by agency of United States, see section 1345 of this title. Action by or against - Federal land banks, see section 2012 of Title 12, Banks and Banking. Federal reserve banks, see section 632 of Title 12. National banking association, see section 1348 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 sections 1452, 2279aa-14. ------DocID 36560 Document 422 of 1452------ -CITE- 28 USC Sec. 1350 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1350. Alien's action for tort -STATUTE- The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(17) (Mar. 3, 1911, ch. 231, Sec. 24, par. 17, 36 Stat. 1093). Words 'civil action' were substituted for 'suits,' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes in phraseology were made. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. ------DocID 36561 Document 423 of 1452------ -CITE- 28 USC Sec. 1351 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1351. Consuls, vice consuls, and members of a diplomatic mission as defendant -STATUTE- The district courts shall have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against - (1) consuls or vice consuls of foreign states; or (2) members of a mission or members of their families (as such terms are defined in section 2 of the Diplomatic Relations Act). -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934; May 24, 1949, ch. 139, Sec. 80(c), 63 Stat. 101; Sept. 30, 1978, Pub. L. 95-393, Sec. 8(a)(1), 92 Stat. 810.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(18), 371(8) (Mar. 3, 1911, ch. 231, Sec. 24, par. 18, 256, par. 8, 36 Stat. 1093, 1160). Words 'civil action' were substituted for 'suits,' and 'all suits and proceedings' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 2 of the Diplomatic Relations Act, referred to in par. (2), is classified to section 254a of Title 22, Foreign Relations and Intercourse. -MISC2- AMENDMENTS 1978 - Pub. L. 95-393 substituted 'Consuls, vice consuls, and members of a diplomatic mission as defendant' for 'Consuls and vice consuls as defendants' in section catchline, designated existing provisions as introductory provision preceding par. (1), and in such introductory provision as so designated, substituted 'civil actions and proceedings against - ' for 'actions and proceedings against consuls or vice consuls of foreign states', and added pars. (1) and (2). 1949 - Act May 24, 1949, substituted 'of all actions and proceedings' for 'of any civil action'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-393 effective at end of ninety-day period beginning on Sept. 30, 1978, see section 9 of Pub. L. 95-393, set out as an Effective Date note under section 254a of Title 22, Foreign Relations and Intercourse. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Judicial power extended in cases affecting consuls, see Const. Art. 3, Sec. 2, cl. 1. ------DocID 36562 Document 424 of 1452------ -CITE- 28 USC Sec. 1352 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1352. Bonds executed under federal law -STATUTE- The district courts shall have original jurisdiction, concurrent with State courts, of any action on a bond executed under any law of the United States, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 506, 94 Stat. 1743.) -MISC1- HISTORICAL AND REVISION NOTES This section is necessary to permit actions in the district courts upon any bond authorized by a law of the United States. In the absence of this new provision, such actions could not be maintained except by the United States, where the amount and other jurisdictional requisites did not exist. The new section also makes clear that it does not affect the right to prosecute such actions in State courts. AMENDMENTS 1980 - Pub. L. 96-417 inserted exception for matters within the jurisdiction of the Court of International Trade under section 1582 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(B) of Pub. L. 96-417, set out as a note under section 251 of this title. ------DocID 36563 Document 425 of 1452------ -CITE- 28 USC Sec. 1353 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1353. Indian allotments -STATUTE- The district courts shall have original jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any Act of Congress or treaty. The judgment in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him; but this provision shall not apply to any lands held on or before December 21, 1911, by either of the Five Civilized Tribes, the Osage Nation of Indians, nor to any of the lands within the Quapaw Indian Agency. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(24) (Mar. 3, 1911, ch. 231, Sec. 24, par. 24, 36 Stat. 1094; Dec. 21, 1911, ch. 5, 37 Stat. 46). Words 'any civil action' were substituted for 'all actions, suits, or proceedings,' in view of Rule 2 of the Federal Rules of Civil Procedure. The sentence 'The right of appeal shall be allowed to either party as in other cases' was omitted as covered by section 1291 of this title, relating to appeals to the court of appeals. Changes in phraseology were made. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Jurisdiction of action for allotment, see section 345 of Title 25, Indians. ------DocID 36564 Document 426 of 1452------ -CITE- 28 USC Sec. 1354 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1354. Land grants from different states -STATUTE- The district courts shall have original jurisdiction of actions between citizens of the same state claiming lands under grants from different states. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1342, 1345, and 1359 of this title. Changes were made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. ------DocID 36565 Document 427 of 1452------ -CITE- 28 USC Sec. 1355 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1355. Fine, penalty or forfeiture -STATUTE- The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 507, 94 Stat. 1743.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(9) and 371(2) (Mar. 3, 1911, ch. 231, Sec. 24, par. 9, 256, par. 2, 36 Stat. 1092, 1160). Word 'fine' was inserted so that this section will apply to the many provisions in the United States Code for fines which are essentially civil. (See, also, section 2461 of this title and reviser's note thereunder.) Words 'pecuniary or otherwise' were added to make this section expressly applicable to both pecuniary and property forfeitures. The original section was so construed in Miller v. United States, 1870, 11 Wall. 268, 20 L.Ed. 135; Tyler v. Defrees, 1870, 11 Wall. 331, and The Rosemary, C.C.A. 1928, 26 F.2d 354, certiorari denied 49 S.Ct. 23, 278 U.S. 619, 73 L.Ed. 542. Changes were made in phraseology. AMENDMENTS 1980 - Pub. L. 96-417 inserted exception for matters within the jurisdiction of the Court of International Trade under section 1582 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(B) of Pub. L. 96-417, set out as a note under section 251 of this title. -CROSS- CROSS REFERENCES Actions for forfeiture under customs laws, see section 1604 of Title 19, Customs Duties. Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Fines, penalties and forfeitures, proceedings, see section 2461 et seq. of this title. Venue of action for fine, penalty, or forfeiture see section 1395 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 21 sections 360pp, 842. ------DocID 36566 Document 428 of 1452------ -CITE- 28 USC Sec. 1356 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1356. Seizures not within admiralty and maritime jurisdiction -STATUTE- The district courts shall have original jurisdiction, exclusive of the courts of the States, of any seizure under any law of the United States on land or upon waters not within admiralty and maritime jurisdiction, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 508, 94 Stat. 1743.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(3) and 371(4) (Mar. 3, 1911, ch. 231, Sec. 24, par. 3, 256, par. 4, 36 Stat. 1091, 1160; Oct. 6, 1917, ch. 97, Sec. 1, 40 Stat. 395; June 10, 1922, ch. 216, Sec. 1, 42 Stat. 634). Section consolidates certain provisions of sections 41(3) and 371(4) of title 28, U.S.C., 1940 ed. Other provisions of such sections are incorporated in section 1333 of this title. Changes were made in arrangement and phraseology. AMENDMENTS 1980 - Pub. L. 96-417 inserted exception for matters within the jurisdiction of the Court of International Trade under section 1582 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(B) of Pub. L. 96-417, set out as a note under section 251 of this title. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. Jurisdiction of - Admiralty, maritime and prize cases, see section 1333 of this title. Fine, penalty, or forfeiture, see section 1355 of this title. ------DocID 36567 Document 429 of 1452------ -CITE- 28 USC Sec. 1357 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1357. Injuries under Federal laws -STATUTE- The district courts shall have original jurisdiction of any civil action commenced by any person to recover damages for any injury to his person or property on account of any act done by him, under any Act of Congress, for the protection or collection of any of the revenues, or to enforce the right of citizens of the United States to vote in any State. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 934.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(11) (Mar. 3, 1911, ch. 231, Sec. 24, par. 11, 36 Stat. 1092.) Words 'any civil action' were substituted for 'all suits,' in view of Rule 2 of the Federal Rules of Civil Procedure. Minor changes were made in phraseology. -CROSS- CROSS REFERENCES Amount in controversy immaterial in action under this section, see Historical and Revision Notes under section 1331 of this title. Diversity of citizenship immaterial in action under this section, see Historical and Revision Notes under section 1332 of this title. ------DocID 36568 Document 430 of 1452------ -CITE- 28 USC Sec. 1358 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1358. Eminent domain -STATUTE- The district courts shall have original jurisdiction of all proceedings to condemn real estate for the use of the United States or its departments or agencies. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 935.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 257 of title 40, U.S.C., 1940 ed., Public Buildings, Property, and Works (Aug. 1, 1888, ch. 728, Sec. 1, 25 Stat. 357; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). The venue provisions of section 257 of title 40, U.S.C., 1940 ed., are incorporated in section 1403 of this title. Other provisions of section 257 of title 40, U.S.C., 1940 ed., are retained in said title 40. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Procedure in condemnation proceedings, see rule 71A, Appendix to this title. CROSS REFERENCES Amount in controversy immaterial in proceedings under this section, see Historical and Revision Notes under section 1331 of this title. Armed forces, acquisition of property, see section 2663 of Title 10, Armed Forces. Coast Guard, acquisition of land, see section 92 of Title 14, Coast Guard. Condemnation of property, right of Government officials, see section 257 of Title 40, Public Buildings, Property, and Works. Declaration of taking proceedings in eminent domain, see section 258a et seq. of Title 40. District of Columbia, procedure in condemnation proceedings, see D.C. Code, Sec. 16-1301 et seq. Irrigation project, acquisition of land, see section 421 of Title 43, Public Lands. Lumber production, acquisition of property for, see section 2664 of Title 10, Armed Forces. Reclamation projects, compensation for rights-of-way, see section 945b of Title 43, Public Lands. River and harbor improvements, acquisition of land, see section 591 et seq. of Title 33, Navigation and Navigable Waters. Tennessee Valley Authority, procedure in condemnation proceedings, see section 831x of Title 16, Conservation. Venue of eminent domain proceedings, see section 1403 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 16 section 79c; title 50 section 167f. ------DocID 36569 Document 431 of 1452------ -CITE- 28 USC Sec. 1359 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1359. Parties collusively joined or made -STATUTE- A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 935.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed. Sec. 41(1) and 80 (Mar. 3, 1911, ch. 231, Sec. 24(1), 37, 36 Stat. 1091, 1098; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1342, 1345, and 1354 of this title. Provisions of section 80 of title 28, U.S.C., 1940 ed., for payment of costs upon dismissal of an action for lack of jurisdiction are incorporated in section 1919 of this title. Other provisions of said section 80 appear in section 1447 of this title. Provisions of section 80 of title 28, U.S.C., 1940 ed., for dismissal of an action not really and substantially involving a dispute or controversy within the jurisdiction of a district court, were omitted as unnecessary. Any court will dismiss a case not within its jurisdiction when its attention is drawn to the fact, or even on its own motion. The assignee clause in section 41(1) of title 28, U.S.C., 1940 ed., 'is a jumble of legislative jargon.' (For further references to the consequences of 'its obscure phraseology,' see, 35 Ill. Law Rev., January 1941, pp. 569-571.) The revised section changes this clause by confining its application to cases wherein the assignment is improperly or collusively made to invoke jurisdiction. Furthermore, the difficulty of applying the original clause is overcome and the original purpose of such clause is better served by substantially following section 80 of title 28, U.S.C., 1940 ed. The assignee clause was incorporated in the original Judiciary Act of 1789. Such section 80 was enacted in 1875. The history of the assignee clause 'shows clearly that its purpose and effect, at the time of its enactment were to prevent the conferring of jurisdiction on the Federal courts, on grounds of diversity of citizenship, by assignment, in cases where it would not otherwise exist.' (Sowell v. Federal Reserve Bank, 1925, 45 S.Ct. 528, 529, 268 U.S. 449, 453, 69 L.Ed. 1041, 1048.) Thus the purpose of the assignee clause was to prevent the manufacture of Federal jurisdiction by the device of assignment. It achieves this purpose only partially. For example, the assignee clause excepts two types of choses in action from its coverage: (1) Foreign bill of exchange; and (2) corporate bearer paper. But this does not prevent the use of assignment of these choses in action to create the necessary diversity or alienage for jurisdictional purposes. Such section 80 does, however, prevent that. (See Bullard v. City of Cisco, 1933, 54 S.Ct. 177, 290 U.S. 179, 78 L.Ed. 254, 93 A.L.R. 141.) Its coverage against collusive jurisdiction is unlimited, and its approach is direct. The assignee clause, on the other hand, prevents the bona fide assignee of a chose in action within its terms from resorting to the Federal courts unless there is jurisdiction to support the assignee-plaintiff's case and a showing that there would have been jurisdiction if the assignor had brought the action in lieu of the assignee-plaintiff. Since the assignee clause deals with the bona fide assignee, there has been much litigation to determine the assignments which should or should not be within the purview of the clause. Thus the courts have thought it advisable to limit the term 'chose in action' and exclude from its scope (1) an implied in law duty or promise, and (2) a transfer of a property interest; and to exclude an assignment by operation of law from the coverage of the clause. Intermediate assignments and reassignment also give difficulty. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Defenses and objections, pleadings allowed and form of motions, see rules 7 and 12, Appendix to this title. Parties, see rules 17 to 25. CROSS REFERENCES Amendment of pleadings to show jurisdiction, see section 1653 of this title. Costs on dismissal for lack of jurisdiction, see section 1919 of this title. Removed cases, remand to State court for lack of jurisdiction, see section 1447 of this title. ------DocID 36570 Document 432 of 1452------ -CITE- 28 USC Sec. 1360 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1360. State civil jurisdiction in actions to which Indians are parties -STATUTE- (a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State: --------------------------------------------------------------------- State of Indian country affected --------------------------------------------------------------------- Alaska All Indian country within the State. California All Indian country within the State. Minnesota All Indian country within the State, except the Red Lake Reservation. Nebraska All Indian country within the State. Oregon All Indian country within the State, except the Warm Springs Reservation. Wisconsin All Indian country within the State. ------------------------------- (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. (c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section. -SOURCE- (Added Aug. 15, 1953, ch. 505, Sec. 4, 67 Stat. 589, and amended Aug. 24, 1954, ch. 910, Sec. 2, 68 Stat. 795; Aug. 8, 1958, Pub. L. 85-615, Sec. 2, 72 Stat. 545; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 239, 92 Stat. 2668; July 10, 1984, Pub. L. 98-353, title I, Sec. 110, 98 Stat. 342.) -MISC1- AMENDMENTS 1984 - Subsec. (a). Pub. L. 98-353 struck out 'or Territories' after 'Each of the States', struck out 'or Territory' after 'State' in 5 places, and substituted 'within the State' for 'within the Territory' in item relating to Alaska. 1978 - Subsec. (a). Pub. L. 95-598 directed the amendment of subsec. (a) by substituting in the item relating to Alaska 'within the State' for 'within the Territory', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958 - Subsec. (a). Pub. L. 85-615 gave Alaska jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in all Indian country within the Territory of Alaska. 1954 - Subsec. (a). Act Aug. 24, 1954, brought the Menominee Tribe within the provisions of this section. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-353 effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. ADMISSION OF ALASKA AS STATE Admission of Alaska into the Union was accomplished Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, July 7, 1958, 72 Stat. 339, set out as notes preceding section 21 of Title 48, Territories and Insular Possessions. AMENDMENT OF STATE CONSTITUTIONS TO REMOVE LEGAL IMPEDIMENT; EFFECTIVE DATE Section 6 of act Aug. 15, 1953, provided that: 'Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act (adding this section and section 1162 of Title 18, Crimes and Criminal Procedure): Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.' CONSENT OF UNITED STATES TO OTHER STATES TO ASSUME JURISDICTION Act Aug. 15, 1953, ch. 505, Sec. 7, 67 Stat. 590, which gave consent of the United States to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this section and section 1162 of Title 18, Crimes and Criminal Procedure, to assume jurisdiction at such time and in such manner as the people of the State shall, by legislative action, obligate and bind the State to assumption thereof, was repealed by section 403(b) of Pub. L. 90-284, title IV, Apr. 11, 1968, 82 Stat. 79, such repeal not to affect any cession of jurisdiction made pursuant to such section prior to its repeal. Retrocession of jurisdiction by State acquired by State pursuant to section 7 of Act Aug. 15, 1953, prior to its repeal, see section 1323 of Title 25, Indians. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 25 sections 566e, 711e, 713f, 714e, 715d, 1300b-15, 1300f, 1300i-1, 1323, 1747, 1772d, 1918. ------DocID 36571 Document 433 of 1452------ -CITE- 28 USC Sec. 1361 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1361. Action to compel an officer of the United States to perform his duty -STATUTE- The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. -SOURCE- (Added Pub. L. 87-748, Sec. 1(a), Oct. 5, 1962, 76 Stat. 744.) -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Writ of mandamus abolished in United States district courts, but relief available by appropriate action or motion, see rule 81, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 10 section 2409a; title 18 section 923; title 25 section 2103; title 42 sections 300j-9, 5851, 7622. ------DocID 36572 Document 434 of 1452------ -CITE- 28 USC Sec. 1362 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1362. Indian tribes -STATUTE- The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. -SOURCE- (Added Pub. L. 89-635, Sec. 1, Oct. 10, 1966, 80 Stat. 880.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 25 section 1725. ------DocID 36573 Document 435 of 1452------ -CITE- 28 USC Sec. 1363 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1363. Jurors' employment rights -STATUTE- The district courts shall have original jurisdiction of any civil action brought for the protection of jurors' employment under section 1875 of this title. -SOURCE- (Added Pub. L. 95-572, Sec. 6(b)(1), Nov. 2, 1978, 92 Stat. 2457.) -MISC1- PRIOR PROVISIONS A prior section 1363 was renumbered section 1366 of this title. EFFECTIVE DATE Section 7 of Pub. L. 95-572 provided that: '(a) Except as provided in subsection (b) of this section, the amendments made by this Act (enacting this section and section 1875, renumbering section 1363, relating to construction of references to laws of the United States or Acts of Congress, as section 1364, and amending sections 1863, 1865, 1866, 1869, and 1871 of this title) shall apply with respect to any grand or petit juror summoned for service or actually serving on or after the date of enactment of this Act (Nov. 2, 1978). '(b) The amendment made by section 5 of this Act (amending section 1871 of this title) shall apply with respect to any grand or petit juror serving on or after the sixtieth day following the date of enactment of this Act (Nov. 2, 1978).' ------DocID 36574 Document 436 of 1452------ -CITE- 28 USC Sec. 1364 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1364. Direct actions against insurers of members of diplomatic missions and their families -STATUTE- (a) The district courts shall have original and exclusive jurisdiction, without regard to the amount in controversy, of any civil action commenced by any person against an insurer who by contract has insured an individual, who is, or was at the time of the tortious act or omission, a member of a mission (within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.C. 254a(3))) or a member of the family of such a member of a mission, or an individual described in section 19 of the Convention on Privileges and Immunities of the United Nations of February 13, 1946, against liability for personal injury, death, or damage to property. (b) Any direct action brought against an insurer under subsection (a) shall be tried without a jury, but shall not be subject to the defense that the insured is immune from suit, that the insured is an indispensable party, or in the absence of fraud or collusion, that the insured has violated a term of the contract, unless the contract was cancelled before the claim arose. -SOURCE- (Added Pub. L. 95-393, Sec. 7(a), Sept. 30, 1978, 92 Stat. 809, and amended Pub. L. 97-241, title II, Sec. 203(b)(4), Aug. 24, 1982, 96 Stat. 291; Pub. L. 100-204, title I, Sec. 138(a), Dec. 22, 1987, 101 Stat. 1347.) -COD- CODIFICATION Two other sections 1364 were renumbered sections 1365 and 1366 of this title. -MISC3- AMENDMENTS 1987 - Subsec. (a). Pub. L. 100-204 inserted ', or was at the time of the tortious act or omission,' after 'who is'. 1982 - Subsec. (a). Pub. L. 97-241 substituted 'within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.C. 254a(3))' for 'as defined in the Vienna Convention on Diplomatic Relations'. EFFECTIVE DATE OF 1987 AMENDMENT Section 138(b) of Pub. L. 100-204 provided that: 'The amendment made by subsection (a) (amending this section) shall apply to the first tortious act or omission occurring after the date of enactment of this Act (Dec. 22, 1987).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-241 effective Oct. 1, 1982, see section 204 of Pub. L. 97-241, set out as an Effective Date note under section 4301 of Title 22, Foreign Relations and Intercourse. EFFECTIVE DATE Section effective at end of ninety-day period beginning on Sept. 30, 1978, see section 9 of Pub. L. 95-393, set out as a note under section 254a of Title 22, Foreign Relations and Intercourse. ------DocID 36575 Document 437 of 1452------ -CITE- 28 USC Sec. 1365 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1365. Senate actions -STATUTE- (a) The United States District Court for the District of Columbia shall have original jurisdiction, without regard to the amount in controversy, over any civil action brought by the Senate or any authorized committee or subcommittee of the Senate to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to comply with, any subpena or order issued by the Senate or committee or subcommittee of the Senate to any entity acting or purporting to act under color or authority of State law or to any natural person to secure the production of documents or other materials of any kind or the answering of any deposition or interrogatory or to secure testimony or any combination thereof. This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subpena or order issued to an officer or employee of the Federal Government acting within his official capacity. (b) Upon application by the Senate or any authorized committee or subcommittee of the Senate, the district court shall issue an order to an entity or person refusing, or failing to comply with, or threatening to refuse or not to comply with, a subpena or order of the Senate or committee or subcommittee of the Senate requiring such entity or person to comply forthwith. Any refusal or failure to obey a lawful order of the district court issued pursuant to this section may be held by such court to be a contempt thereof. A contempt proceeding shall be commenced by an order to show cause before the court why the entity or person refusing or failing to obey the court order should not be held in contempt of court. Such contempt proceeding shall be tried by the court and shall be summary in manner. The purpose of sanctions imposed as a result of such contempt proceeding shall be to compel obedience to the order of the court. Process in any such action or contempt proceeding may be served in any judicial district wherein the entity or party refusing, or failing to comply, or threatening to refuse or not to comply, resides, transacts business, or may be found, and subpenas for witnesses who are required to attend such proceeding may run into any other district. Nothing in this section shall confer upon such court jurisdiction to affect by injunction or otherwise the issuance or effect of any subpena or order of the Senate or any committee or subcommittee of the Senate or to review, modify, suspend, terminate, or set aside any such subpena or order. An action, contempt proceeding, or sanction brought or imposed pursuant to this section shall not abate upon adjournment sine die by the Senate at the end of a Congress if the Senate or the committee or subcommittee of the Senate which issued the subpena or order certifies to the court that it maintains its interest in securing the documents, answers, or testimony during such adjournment. ((c) Repealed. Pub. L. 98-620, title IV, Sec. 402(29)(D), Nov. 8, 1984, 98 Stat. 3359.) (d) The Senate or any committee or subcommittee of the Senate commencing and prosecuting a civil action or contempt proceeding under this section may be represented in such action by such attorneys as the Senate may designate. (e) A civil action commenced or prosecuted under this section, may not be authorized pursuant to the Standing Order of the Senate 'authorizing suits by Senate Committees' (S. Jour. 572, May 28, 1928). (f) For the purposes of this section the term 'committee' includes standing, select, or special committees of the Senate established by law or resolution. -SOURCE- (Added Pub. L. 95-521, title VII, Sec. 705(f)(1), Oct. 26, 1978, 92 Stat. 1879, Sec. 1364, and amended Pub. L. 98-620, title IV, Sec. 402(29)(D), Nov. 8, 1984, 98 Stat. 3359; renumbered Sec. 1365, Pub. L. 99-336, Sec. 6(a)(1)(B), June 19, 1986, 100 Stat. 638.) -MISC1- AMENDMENTS 1984 - Subsec. (c). Pub. L. 98-620 struck out subsec. (c) which provided that in any civil action or contempt proceeding brought pursuant to this section, the court had to assign the action or proceeding for hearing at the earliest practicable date and cause the action or proceeding in every way to be expedited, and that any appeal or petition for review from any order or judgment in such action or proceeding had to be expedited in the same manner. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. EFFECTIVE DATE Section effective Jan. 3, 1979, see section 717 of Pub. L. 95-521, set out as a note under section 288 of Title 2, The Congress. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 288d of title 2. ------DocID 36576 Document 438 of 1452------ -CITE- 28 USC Sec. 1366 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1366. Construction of references to laws of the United States or Acts of Congress -STATUTE- For the purposes of this chapter, references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia. -SOURCE- (Added Pub. L. 91-358, title I, Sec. 172(c)(1), July 29, 1970, 84 Stat. 590, Sec. 1363; renumbered Sec. 1364, Pub. L. 95-572, Sec. 6(b)(1), Nov. 2, 1978, 92 Stat. 2456; renumbered Sec. 1366, Pub. L. 99-336, Sec. 6(a)(1)(C), June 19, 1986, 100 Stat. 639.) ------DocID 36577 Document 439 of 1452------ -CITE- 28 USC Sec. 1367 -EXPCITE- TITLE 28 PART IV CHAPTER 85 -HEAD- Sec. 1367. Supplemental jurisdiction -STATUTE- (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if - (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. (e) As used in this section, the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States. -SOURCE- (Added Pub. L. 101-650, title III, Sec. 310(a), Dec. 1, 1990, 104 Stat. 5113.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b), are set out in the Appendix to this title. -MISC2- EFFECTIVE DATE Section 310(c) of Pub. L. 101-650 provided that: 'The amendments made by this section (enacting this section) shall apply to civil actions commenced on or after the date of the enactment of this Act (Dec. 1, 1990).' ------DocID 36578 Document 440 of 1452------ -CITE- 28 USC CHAPTER 87 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- CHAPTER 87 - DISTRICT COURTS; VENUE -MISC1- Sec. 1391. Venue generally. 1392. Defendants or property in different districts in same State. (1393. Repealed.) 1394. Banking association's action against Comptroller of Currency. 1395. Fine, penalty or forfeiture. 1396. Internal revenue taxes. 1397. Interpleader. 1398. Interstate Commerce Commission's orders. 1399. Partition action involving United States. 1400. Patents and copyrights. 1401. Stockholder's derivative action. 1402. United States as defendant. 1403. Eminent domain. 1404. Change of venue. 1405. Creation or alteration of district or division. 1406. Cure or waiver of defects. 1407. Multidistrict litigation. 1408. Venue of cases under title 11. 1409. Venue of proceedings arising under title 11 or arising in or related to cases under title 11. 1410. Venue of cases ancillary to foreign proceedings. 1411. Jury trials. 1412. Change of venue. AMENDMENTS 1988 - Pub. L. 100-702, title X, Sec. 1001(a), Nov. 19, 1988, 102 Stat. 4664, struck out item 1393 'Divisions; single defendant; defendants in different divisions'. 1984 - Pub. L. 98-353, title I, Sec. 102(b), July 10, 1984, 98 Stat. 335, added items 1408 to 1412. 1978 - Pub. L. 95-598, title II, Sec. 240(b), Nov. 6, 1978, 92 Stat. 2668, directed the addition of item 1408, 'Bankruptcy appeals', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1968 - Pub. L. 90-296, Sec. 2, Apr. 29, 1968, 82 Stat. 110, added item 1407. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Venue, see rules 18, 20 to 22, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Criminal cases, venue, see sections 3235 et seq. of Title 18, Crimes and Criminal Procedure. Jurisdiction of district courts, see sections 1331 et seq. of this title, and Historical and Revision Notes for section 1332 of this title. Process, see section 1691 et seq. of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 42 section 3612. ------DocID 36579 Document 441 of 1452------ -CITE- 28 USC Sec. 1391 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1391. Venue generally -STATUTE- (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced. (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only if (FOOTNOTE 1) (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. (FOOTNOTE 1) So in original. Probably should be 'in'. (c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. (d) An alien may be sued in any district. (e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought. (f) A civil action against a foreign state as defined in section 1603(a) of this title may be brought - (1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; (2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title; (3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or (4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 935; Oct. 5, 1962, Pub. L. 87-748, Sec. 2, 76 Stat. 744; Dec. 23, 1963, Pub. L. 88-234, 77 Stat. 473; Nov. 2, 1966, Pub. L. 89-714, Sec. 1, 2, 80 Stat. 1111; Oct. 21, 1976, Pub. L. 94-574, Sec. 3, 90 Stat. 2721; Oct. 21, 1976, Pub. L. 94-583, Sec. 5, 90 Stat. 2897; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1013(a), 102 Stat. 4669; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 311, 104 Stat. 5114.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 111, 112 (Mar. 3, 1911, ch. 231, Sec. 50, 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, Sec. 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213). Section consolidates section 111 of title 28, U.S.C., 1940 ed., with part of section 112 of such title. The portion of section 112 of title 28, U.S.C., 1940 ed., relating to venue generally constitutes this section and the parts relating to arrest of the defendant, venue and process in stockholders' actions constitute sections 1401, 1693, and 1695 of this title. Provision in section 111 of title 28, U.S.C., 1940 ed., that a district court may proceed as to parties before it although one or more defendants do not reside in the district, and that its judgment shall be without prejudice to such absent defendants, was omitted as covered by rule 19(b) of the Federal Rules of Civil Procedure. Word 'action' was substituted for 'suit' in view of Rule 2 of the Federal Rules of Civil Procedure. Word 'reside' was substituted for 'whereof he is an inhabitant' for clarity inasmuch as 'inhabitant' and 'resident' are synonymous. (See Ex parte Shaw, 1892, 12 S.Ct. 935, 145 U.S. 444, 36 L.Ed. 768; Standard Stoker Co., Inc. v. Lower, D.C., 1931, 46 F.2d 678; Edgewater Realty Co. v. Tennessee Coal, Iron & Railroad Co., D.C., 1943, 49 F.Supp. 807.) Reference to 'all plaintiffs' and 'all defendants' were substituted for references to 'the plaintiff' and 'the defendant,' in view of many decisions holding that the singular terms were used in a collective sense. (See Smith v. Lyon, 1890, 10 S.Ct. 303, 133 U.S. 315, 33 L.Ed. 635; Hooe v. Jamieson, 1897, 17 S.Ct. 596, 166 U.S. 395, 41 L.Ed. 1049; and Fetzer v. Livermore, D.C., 1926, 15 F.2d 462.) In subsection (c), references to defendants 'found' within a district or voluntarily appearing were omitted. The use of the word 'found' made section 111 of title 28, U.S.C., 1940 ed., ambiguous. The argument that an action could be brought in the district where one defendant resided and a nonresident defendant was 'found,' was rejected in Camp v. Gress, 1919, 39 S.Ct. 478, 250 U.S. 308, 63 L.Ed. 997. However, this ambiguity will be obviated in the future by the omission of such reference. Subsection (d) of this section is added to give statutory recognition to the weight of authority concerning a rule of venue as to which there has been a sharp conflict of decisions. (See Sandusky Foundry & Machine Co. v. DeLavand, 1918, D.C.Ohio, 251 F. 631, 632, and cases cited. See also Keating v. Pennsylvania Co., 1917, D.C.Ohio, 245 F. 155 and cases cited.) Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (e), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1990 - Subsec. (a). Pub. L. 101-650, Sec. 311(1), substituted cls. (1) to (3) for 'the judicial district where all plaintiffs or all defendants reside, or in which the claim arose'. Subsec. (b). Pub. L. 101-650, Sec. 311(2), substituted 'may, except as otherwise provided by law, be brought only if' and cls. (1) to (3) for 'may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law'. Subsec. (e). Pub. L. 101-650, Sec. 311(3), substituted '(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3)' for 'or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4)'. 1988 - Subsec. (c). Pub. L. 100-702 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: 'A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' 1976 - Subsec. (e). Pub. L. 94-574 provided that, in actions against the United States, its agencies, or officers or employees in their official capacities, additional persons may be joined in accordance with the Federal Rules of Civil Procedure and with other venue requirements which would be applicable if the United States, its agencies, or one of its officers or employees were not a party. Subsec. (f). Pub. L. 94-583 added subsec. (f). 1966 - Subsec. (a). Pub. L. 89-714, Sec. 1, authorized a civil action to be brought in the judicial district in which the claim arose. Subsec. (b). Pub. L. 89-714, Sec. 1, authorized a civil action to be brought in the judicial district in which the claim arose. Subsec. (f). Pub. L. 89-714, Sec. 2, repealed subsec. (f) which permitted a civil action on a tort claim arising out of the manufacture, assembly, repair, ownership, maintenance, use, or operation of an automobile to be brought in the judicial district wherein the act or omission complained of occurred. Present provisions are now contained in subsecs. (a) and (b) of this section. 1963 - Subsec. (f). Pub. L. 88-234 added subsec. (f) 1962 - Subsec. (e). Pub. L. 87-748 added subsec. (e). EFFECTIVE DATE OF 1988 AMENDMENT Section 1013(b) of title X of Pub. L. 100-702 provided that: 'The amendment made by this section (amending this section) takes effect 90 days after the date of enactment of this title (Nov. 19, 1988).' EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-583 effective 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out as an Effective Date note under section 1602 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Venue unaffected, see rule 82, Appendix to this title. CROSS REFERENCES Antitrust laws, actions under, see sections 15 and 22 of Title 15, Commerce and Trade. Change of venue, see section 1404 of this title. Diversity of citizenship, jurisdiction of district courts, see section 1332 of this title. Place of arrest in civil action, see section 1693 of this title. Process, see sections 1691 et seq. of this title. Process in stockholder's derivative action, see section 1695 of this title. Residence - Federal National Mortgage Association as resident of District of Columbia, see section 1717 of Title 12, Banks and Banking. International Finance Corporation as inhabitant of Federal judicial district in which principal office in United States is located, see section 282f of Title 22, Foreign Relations and Intercourse. Saint Lawrence Seaway Development Corporation as resident of northern judicial district of New York, see section 984 of Title 33, Navigation and Navigable Waters. Waiver of venue, see section 1406 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 22 section 290l-5; title 42 section 1973aa-2. ------DocID 36580 Document 442 of 1452------ -CITE- 28 USC Sec. 1392 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1392. Defendants or property in different districts in same State -STATUTE- (a) Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts. (b) Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 935.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 113, 116 (Mar. 3, 1911, ch. 231, Sec. 52, 55, 36 Stat. 1101, 1102). Section consolidates section 113 of title 28, U.S.C., 1940 ed., with section 116 of such title. Last sentence of section 113 of title 28, U.S.C., 1940 ed., relating to execution on judgments or decrees, was omitted as covered by section 2001 et seq. of this title. Words 'civil action' were substituted for 'suit' in view of Rule 2 of the Federal Rules of Civil Procedure. Words of said section 113, 'against a single defendant, inhabitant of such State, must be brought in the district where he resides' were omitted as covered by section 1391 of this title. Words of section 116 of title 28, U.S.C., 1940 ed., 'land or other subject matter of a fixed character' were deleted and the word 'property' substituted for flexibility and uniformity. (See sections 754, 1692, of this title and reviser's notes thereunder.) Words of said section 116, 'and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject matter were wholly within the district for which such court is constituted' were omitted as surplusage and fully covered by Rule 4 of the Federal Rules of Civil Procedure. Said rule also covers the following omitted language: 'A duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides.' Changes were made in phraseology. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 42 section 1973aa-2. ------DocID 36581 Document 443 of 1452------ -CITE- 28 USC Sec. 1393 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- (Sec. 1393. Repealed. Pub. L. 100-702, title X, Sec. 1001(a), Nov. 19, 1988, 102 Stat. 4664) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 935, related to divisional venue in civil cases of a single defendant or defendants in different divisions. EFFECTIVE DATE OF REPEAL Section 1001(b) of Pub. L. 100-702 provided that: 'The amendments made by this section (repealing this section) take effect 90 days after the date of enactment of this Act (Nov. 19, 1988).' ------DocID 36582 Document 444 of 1452------ -CITE- 28 USC Sec. 1394 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1394. Banking association's action against Comptroller of Currency -STATUTE- Any civil action by a national banking association to enjoin the Comptroller of the Currency, under the provisions of any Act of Congress relating to such associations, may be prosecuted in the judicial district where such association is located. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 935.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 110 (Mar. 3, 1911, ch. 231, Sec. 49, 36 Stat. 1100). Words 'Any civil action' were substituted for 'All proceedings,' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -TRANS- EXCEPTION AS TO TRANSFER OF FUNCTIONS Functions vested by any provision of law in the Comptroller of the Currency, referred to in this section, were not included in the transfer of functions of officers, agencies and employees of the Department of the Treasury to the Secretary of the Treasury, made by Reorg. Plan No. 26 of 1950, Sec. 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280. See section 321(c)(2) of Title 31, Money and Finance. -CROSS- CROSS REFERENCES Jurisdiction of district court in banking association's action against the Comptroller of the Currency, see section 1348 of this title. ------DocID 36583 Document 445 of 1452------ -CITE- 28 USC Sec. 1395 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1395. Fine, penalty or forfeiture -STATUTE- (a) A civil proceeding for the recovery of a pecuniary fine, penalty or forfeiture may be prosecuted in the district where it accrues or the defendant is found. (b) A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found. (c) A civil proceeding for the forfeiture of property seized outside any judicial district may be prosecuted in any district into which the property is brought. (d) A proceeding in admiralty for the enforcement of fines, penalties and forfeitures against a vessel may be brought in any district in which the vessel is arrested. (e) Any proceeding for the forfeiture of a vessel or cargo entering a port of entry closed by the President in pursuance of law, or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection, or of any vessel or vehicle conveying persons or property to or from such State or section or belonging in whole or in part to a resident thereof, may be prosecuted in any district into which the property is taken and in which the proceeding is instituted. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 104, 106, 107, and 108, and section 3745(c) of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1911, ch. 231, Sec. 43, 45, 46, 47, 36 Stat. 1100; Feb. 10, 1939, ch. 2, Sec. 3745(c), 53 Stat. 460). This section consolidates section 3745(c) of title 26, U.S.C., 1940 ed., with sections 104, 106, 107, and 108 of title 28, U.S.C., 1940 ed., relating to venue in civil proceedings to recover and enforce civil fines, penalties, and forfeitures, pecuniary or otherwise. Subsection (a) is based on said section 104 of title 28 and said section 3745(c) of title 26. Subsections (b) and (c) consolidate such sections 106 and 107 of title 28. Subsection (e) is based on such section 108 of title 28. Subsection (b) substituted words 'may be prosecuted in any district where such property is found' for 'shall be prosecuted in the district where the seizure is made,' to include not only property seized, but also all other property subject to forfeiture. Words 'civil' and 'fine' were inserted to make this section applicable to the many provisions of the United States Code for fines essentially civil. (See reviser's note under section 1355 of this title.) Provisions of section 3745(c) of title 26, U.S.C., 1940 ed., that such suit may be brought 'before any other court of competent jurisdiction' were omitted as misleading surplusage, since United States district courts, under section 1355 of this title, have exclusive jurisdiction. Subsection (d) was added for completeness and clarity. Changes were made in phraseology. SENATE REVISION AMENDMENT While section 3745(c) of Title 26, U.S.C., Internal Revenue Code, is one of the sources of this section, it was eliminated from the schedule of repeals by Senate amendment. Therefore, such section 3745(c) remains in Title 26. See 80th Congress Senate Report No. 1559. -CROSS- CROSS REFERENCES Jurisdiction of district court in action to recover fines, penalties, or forfeitures, see section 1355 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 sections 981, 2254; title 21 section 881; title 26 section 7410. ------DocID 36584 Document 446 of 1452------ -CITE- 28 USC Sec. 1396 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1396. Internal revenue taxes -STATUTE- Any civil action for the collection of internal revenue taxes may be brought in the district where the liability for such tax accrues, in the district of the taxpayer's residence, or in the district where the return was filed. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 105, and section 3744 of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1911, ch. 231, Sec. 44, 36 Stat. 1100; Feb. 10, 1939, ch. 2, Sec. 3744, 53 Stat. 460). Section consolidates section 3744 of title 26, U.S.C., 1940 ed., Internal Revenue Code, with section 105 of title 28, U.S.C., 1940 ed. Words 'or in the district where the return was filed' are new. This extension of venue will permit of an action in a district easily determinable for collection of revenue earned in several districts, or States, but the return for which is filed with one collector. Changes were made in phraseology. SENATE REVISION AMENDMENT While section 3744 of Title 26, U.S.C., Internal Revenue Code (1939), is one of the sources of this section, it was eliminated from the schedule of repeals by Senate amendment. Therefore, it remains in Title 26 (I.R.C. 1939). See 80th Congress Senate Report No. 1559. -CROSS- CROSS REFERENCES Jurisdiction of district courts in actions or proceedings under internal-revenue laws, see section 7402 of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7410. ------DocID 36585 Document 447 of 1452------ -CITE- 28 USC Sec. 1397 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1397. Interpleader -STATUTE- Any civil action of interpleader or in the nature of interpleader under section 1335 of this title may be brought in the judicial district in which one or more of the claimants reside. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(26) (Mar. 3, 1911, ch. 231, Sec. 24, par. 26, as added Jan. 20, 1936, ch. 13, Sec. 1, 49 Stat. 1096). Provisions of section 41(26) of title 28, U.S.C., 1940 ed., relating to jurisdiction are the basis of section 1335 of this title and other provisions thereof are incorporated in section 2361 of this title. Words 'civil action' were substituted for 'suit,' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- CROSS REFERENCES Process and procedure in interpleader actions, see section 2361 of this title. ------DocID 36586 Document 448 of 1452------ -CITE- 28 USC Sec. 1398 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1398. Interstate Commerce Commission's orders -STATUTE- (a) Except as otherwise provided by law, a civil action brought under section 1336(a) of this title shall be brought only in a judicial district in which any of the parties bringing the action resides or has its principal office. (b) A civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, an order of the Interstate Commerce Commission made pursuant to the referral of a question or issue by a district court or by the United States Claims Court, shall be brought only in the court which referred the question or issue. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936; Aug. 30, 1964, Pub. L. 88-513, Sec. 2, 78 Stat. 695; Jan. 2, 1975, Pub. L. 93-584, Sec. 2, 88 Stat. 1917; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 130, 96 Stat. 39.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 43 (Oct. 22, 1913, ch. 32, 38 Stat. 219). This section is completely rewritten to give effect to changes recommended by the Judicial Conference of the United States. Section 43 of title 28, U.S.C., 1940 ed., is as follows: 'Sec. 43. Venue of suits relating to orders of Interstate Commerce Commission. 'The venue of any suit brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In case such transportation relates to a through shipment the term 'destination' shall be construed as meaning final destination of such shipment.' The amendment of section 207 of title 28, U.S.C., 1940 ed., proposed by the Judicial Conference is: 'Except as otherwise provided in the Act entitled 'An Act to Regulate Commerce', approved February 4, 1887, as amended, the venue of any suit brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties bringing the suit or wherein such party or any of such parties has its principal office.' The revised section substitutes the words 'Except as otherwise provided by law' for the words of the conference bill, 'in the act entitled 'An Act to Regulate Commerce, approved February 4, 1887, as amended' '. (See section 16 of title 49, U.S.C., 1940 ed., which provides for jurisdiction and venue of actions to enforce Interstate Commerce Commission orders for the payment of money.) AMENDMENTS 1982 - Subsec. (b). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1975 - Subsec. (a). Pub. L. 93-584 substituted provisions that civil actions under section 1336(a) of this title shall be brought only in a judicial district in which any of the parties bringing the action resides or has its principal office, for provisions that civil actions to enforce, suspend, or set aside in whole or in part orders of the Interstate Commerce Commission shall be brought in such judicial district. 1964 - Pub. L. 88-513 designated existing provisions as subsec. (a) and added subsec. (b). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93-584 not applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as a note under section 2321 of this title. -CROSS- CROSS REFERENCES Enforcement and review of Interstate Commerce Commission's orders, see section 2321 et seq. of this title. Jurisdiction of district courts in actions involving Interstate Commerce Commission's orders, see section 1336 of this title. ------DocID 36587 Document 449 of 1452------ -CITE- 28 USC Sec. 1399 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1399. Partition action involving United States -STATUTE- Any civil action by any tenant in common or joint tenant for the partition of lands, where the United States is one of the tenants in common or joint tenants, may be brought only in the judicial district where such lands are located or, if located in different districts in the same State, in any of such districts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(25) (Mar. 3, 1911, ch. 231, Sec. 24, par. 25, 36 Stat. 1094). Provisions of section 41(25) of title 28, U.S.C., 1940 ed., relating to jurisdiction are the basis of section 1347 of this title. Words 'civil action' were substituted for 'suits in equity,' in view of Rule 2 of the Federal Rules of Civil Procedure. Provision with respect to property in different districts was added to conform with section 1392 of this title. Changes were made in phraseology. -CROSS- CROSS REFERENCES Jurisdiction of district court in partition action where United States is tenant in common or joint tenant, see section 1347 of this title. ------DocID 36588 Document 450 of 1452------ -CITE- 28 USC Sec. 1400 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1400. Patents and copyrights -STATUTE- (a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works may be instituted in the district in which the defendant or his agent resides or may be found. (b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1020(a)(5), 102 Stat. 4671.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 109, and section 35 of title 17, U.S.C., 1940 ed., Copyrights (Mar. 4, 1909, ch. 320, Sec. 35, 35 Stat. 1084; Mar. 3, 1911, ch. 231, Sec. 48, 36 Stat. 1100). Section consolidates section 35 of title 17, U.S.C., 1940 ed., with part of section 109 of title 28, U.S.C., 1940 ed., with necessary changes in phraseology. Subsection (b) is based on section 109 of title 28, U.S.C., 1940 ed., with the following changes: Words 'civil action' were substituted for 'suit,' and words 'in law or in equity,' after 'shall have jurisdiction' were deleted, in view of Rule 2 of the Federal Rules of Civil Procedure. Words in subsection (b) 'where the defendant resides' were substituted for 'of which the defendant is an inhabitant.' A corresponding change was made in subsection (a). Words 'inhabitant' and 'resident,' as respects venue, are synonymous. (See reviser's note under section 1391 of this title.) Words 'whether a person, partnership, or corporation' before 'has committed' were omitted as surplusage. The provisions of section 109 of title 28, U.S.C., 1940 ed., relating to process are incorporated in section 1694 of this title. Jurisdiction and venue of patent suits against residents of foreign countries or persons residing in plurality of districts, see section 72a of title 35, U.S.C., 1940 ed., Patents. SENATE REVISION AMENDMENT Title 17 of the United States Code was enacted into positive law by act July 30, 1947, ch. 391, 61 Stat. 652, and, in such enactment, section 35 of the prior title became section 111 of the new title, and all Acts from which sections of the prior title had been derived, were repealed. Therefore, this paragraph should read: 'Based on Title 28, U.S.C., 1940 ed., Sec. 109 (Mar. 3, 1911, ch. 231, Sec. 48, 36 Stat. 1100), and section 111 of Title 17, U.S.C., 1946 ed., Copyrights.' By Senate amendment, section 111 of Title 17 U.S.C., is included in the schedule of repeals. See 80th Congress Senate Report No. 1559. AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702 inserted 'or exclusive rights in mask works' after 'copyrights'. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Process, see rule 4, Appendix to this title. CROSS REFERENCES Jurisdiction and venue of patent suits against residents of foreign countries or persons residing in plurality of districts, see sections 146 and 291 of Title 35, Patents. Jurisdiction of district courts in patent or copyright actions, see section 1338 of this title. Jurisdiction and legal remedy for unauthorized use or disclosure of patents and technical information, see section 2356 of Title 22, Foreign Relations and Intercourse. Process in patent infringement action, see section 1694 of this title. ------DocID 36589 Document 451 of 1452------ -CITE- 28 USC Sec. 1401 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1401. Stockholder's derivative action -STATUTE- Any civil action by a stockholder on behalf of his corporation may be prosecuted in any judicial district where the corporation might have sued the same defendants. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 936.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 112 (part) (Mar. 3, 1911, ch. 231, Sec. 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, Sec. 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213). For disposition of other provisions of section 112 of title 28, U.S.C., 1940 ed., see reviser's note under section 1391 of this title. Words 'civil action' were substituted for 'suit,' in view of Rule 2 of the Federal Rules of Civil Procedure. Words 'other than said corporation,' after 'same defendants,' were omitted as superfluous. Obviously a corporation would not be suing itself. Changes were made in phraseology. -CROSS- CROSS REFERENCES Citizenship of corporations for purposes of diversity of citizenship and removability of actions, see section 1332 of this title. Process in stockholder's derivative action, see section 1695 of this title. ------DocID 36590 Document 452 of 1452------ -CITE- 28 USC Sec. 1402 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1402. United States as defendant -STATUTE- (a) Any civil action in a district court against the United States under subsection (a) of section 1346 of this title may be prosecuted only: (1) Except as provided in paragraph (2), in the judicial district where the plaintiff resides; (2) In the case of a civil action by a corporation under paragraph (1) of subsection (a) of section 1346, in the judicial district in which is located the principal place of business or principal office or agency of the corporation; or if it has no principal place of business or principal office or agency in any judicial district (A) in the judicial district in which is located the office to which was made the return of the tax in respect of which the claim is made, or (B) if no return was made, in the judicial district in which lies the District of Columbia. Notwithstanding the foregoing provisions of this paragraph a district court, for the convenience of the parties and witnesses, in the interest of justice, may transfer any such action to any other district or division. (b) Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. (c) Any civil action against the United States under subsection (e) of section 1346 of this title may be prosecuted only in the judicial district where the property is situated at the time of levy, or if no levy is made, in the judicial district in which the event occurred which gave rise to the cause of action. (d) Any civil action under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States shall be brought in the district court of the district where the property is located or, if located in different districts, in any of such districts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937; Sept. 2, 1958, Pub. L. 85-920, 72 Stat. 1770; Nov. 2, 1966, Pub. L. 89-719, title II, Sec. 202(b), 80 Stat. 1149; Oct. 25, 1972, Pub. L. 92-562, Sec. 2, 86 Stat. 1176; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 131, 96 Stat. 39.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 762, 931(a) (Mar. 3, 1887, ch. 359, Sec. 5, 24 Stat. 506; Aug. 2, 1946, ch. 753, Sec. 410(a), 60 Stat. 843). Section consolidates the venue provisions of section 762 of title 28, U.S.C., 1940 ed., with the venue provisions of section 931(a) of such title, the latter provisions relating to tort claims cases. The jurisdictional provisions of such section 931(a) are incorporated in section 1346(b) of this title. For other provisions thereof, see Distribution Table. Provisions of section 762 of title 28, U.S.C., 1940 ed., relating to the verification and contents of a petition filed against the United States were omitted as unnecessary. Section 265 of title 28, U.S.C., 1940 ed., relative to the petition in cases filed in the Court of Claims was also omitted from the revised title. (See, also, Rule 11 of the Federal Rules of Civil Procedure.) Words 'civil action' were substituted for 'suit' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164 inserted 'in a district court' after 'civil action' in introductory provisions preceding par. (1). The phrase 'civil action' also appeared in par. (2), but no change was made to reflect the probable intent of Congress as indicated on page 79 of House Report No. 97-312. 1972 - Subsec. (d). Pub. L. 92-562 added subsec. (d). 1966 - Subsec. (c). Pub. L. 89-719 added subsec. (c). 1958 - Subsec. (a). Pub. L. 85-920 provided for venue and change of venue in tax refund suits by corporation. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-719 applicable after Nov. 2, 1966, see section 203 of Pub. L. 89-719, set out as a note under section 1346 of this title. -CROSS- CROSS REFERENCES Actions on war risk insurance claims, see section 1292 of Title 46, Appendix, Shipping. Jurisdiction and legal remedy for unauthorized use or disclosure of patents and technical information, see section 2356 of Title 22, Foreign Relations and Intercourse. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7429. ------DocID 36591 Document 453 of 1452------ -CITE- 28 USC Sec. 1403 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1403. Eminent domain -STATUTE- Proceedings to condemn real estate for the use of the United States or its departments or agencies shall be brought in the district court of the district where the land is located or, if located in different districts in the same State, in any of such districts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 257 of title 40, U.S.C., 1940 ed., Public Buildings, Property, and Works (Aug. 1, 1888, ch. 728, Sec. 1, 25 Stat. 357; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Section constitutes the first clause of the second sentence of section 257, of title 40, U.S.C., 1940 ed. The revised section is expressive of the purpose of such section 257 with necessary changes in phraseology. The jurisdiction provision of section 257 of title 40, U.S.C., 1940 ed., is incorporated in section 1358 of this title. The remainder of section 257 of title 40, U.S.C., 1940 ed., is retained in said title 40. Provision with respect to property in different districts was added to conform with section 1392 of this title. See, also, section 1392 of this title which fixes venue of an action involving property in different districts in the same State. -CROSS- CROSS REFERENCES Jurisdiction of district courts in eminent domain proceedings, see section 1358 of this title. Venue of action involving property in different districts in same state, see section 1392 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 16 section 79c; title 42 section 2222; title 50 section 167f. ------DocID 36592 Document 454 of 1452------ -CITE- 28 USC Sec. 1404 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1404. Change of venue -STATUTE- (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer. (c) A district court may order any civil action to be tried at any place within the division in which it is pending. (d) As used in this section, 'district court' includes the United States District Court for the District of the Canal Zone; and 'district' includes the territorial jurisdiction of that court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937; Oct. 18, 1962, Pub. L. 87-845, Sec. 9, 76A Stat. 699.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 119, 163 (Mar. 3, 1911, ch. 231, Sec. 58, 36 Stat. 1103; Sept. 8, 1916, ch. 475, Sec. 5, 39 Stat. 851). Section consolidates sections 119 and 163 of title 28, U.S.C., 1940 ed., with necessary changes in phraseology and substance. Section 119 of title 28, U.S.C., 1940 ed., related only to transfer of cases from one division to another on stipulation of the parties. Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S.Ct. 6, 314 U.S. 44, 86 L.Ed. 28, which was prosecuted under the Federal Employer's Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so. Sections 143, 172, 177, and 181 of title 28, U.S.C., 1940 ed., relating to the district courts of Arizona, Montana, New Mexico, and Ohio, contained special provisions similar to subsection (b), applicable to those States. To establish uniformity, the general language of such subsection has been drafted and the special provisions of those sections omitted. Subsection (b) is based upon section 163 of title 28, U.S.C., 1940 ed., which applied only to the district of Maine. This revised subsection extends to all judicial districts and permits transfer of cases between divisions. Criminal cases may be transferred pursuant to Rules 19-21 of the new Federal Rules of Criminal Procedure, and the criminal provisions of said section 163 are therefore omitted. AMENDMENTS 1962 - Subsec. (d). Pub. L. 87-845 added subsec. (d). EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-845 effective Jan. 2, 1963, see section 25 of Pub. L. 87-845, set out as a note under section 14 of Title 18, Crimes and Criminal Procedure. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Venue and transfer of criminal prosecutions, see rule 18 et seq., Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Equal employment opportunity provisions, judicial district of principal office as district in which action might have been brought, see section 2000e-5 of Title 42, The Public Health and Welfare. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1407 of this title; title 42 section 2000e-5. ------DocID 36593 Document 455 of 1452------ -CITE- 28 USC Sec. 1405 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1405. Creation or alteration of district or division -STATUTE- Actions or proceedings pending at the time of the creation of a new district or division or transfer of a county or territory from one division or district to another may be tried in the district or division as it existed at the institution of the action or proceeding, or in the district or division so created or to which the county or territory is so transferred as the parties shall agree or the court direct. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 121 (Mar. 3, 1911, ch. 231, Sec. 59, 36 Stat. 1103). Enforcement of liens in like circumstances is provided by section 1656 of this title. Remainder of section 121 of title 28, U.S.C., 1940 ed., is incorporated in section 3240 of revised title 18, Crimes and Criminal Procedure (H.R. 1600, 80th Cong.). Changes were made in phraseology. ------DocID 36594 Document 456 of 1452------ -CITE- 28 USC Sec. 1406 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1406. Cure or waiver of defects -STATUTE- (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue. (c) As used in this section, 'district court' includes the United States District Court for the District of the Canal Zone; and 'district' includes the territorial jurisdiction of that court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937; May 24, 1949, ch. 139, Sec. 81, 63 Stat. 101; Sept. 13, 1960, Pub. L. 86-770, Sec. 1, 74 Stat. 912; Oct. 18, 1962, Pub. L. 87-845, Sec. 10, 76A Stat. 699; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 132, 96 Stat. 39.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Subsection (a) provides statutory sanction for transfer instead of dismissal, where venue is improperly laid. Subsection (b) is declaratory of existing law. (See Panama R.R. Co. v. Johnson, 1924, 44 S.Ct. 391, 264 U.S. 375, 68 L.Ed. 748.) It makes clear the intent of Congress that venue provisions are not jurisdictional but may be waived. 1949 ACT This section removes an ambiguity in section 1406(a) of title 28, U.S.C., by substituting 'may' for 'shall', thus making it clear that the court may decline to transfer a case brought in the wrong district under circumstances where it would not be in the interest of justice to make such transfer. AMENDMENTS 1982 - Subsecs. (c), (d). Pub. L. 97-164 redesignated subsec. (d) as (c). Former subsec. (c), which provided that if a case within the exclusive jurisdiction of the Court of Claims were filed in a district court, the district court, if it were in the interest of justice, was required to transfer the case to the Court of Claims where the case would proceed as if it had been filed in the Court of Claims on the date that it was filed in the district court, was struck out. 1962 - Subsec. (d). Pub. L. 87-845 added subsec. (d). 1960 - Subsec. (c). Pub. L. 86-770 added subsec. (c). 1949 - Subsec. (a). Act May 24, 1949, inserted 'dismiss, or if it be in the interest of justice'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-845 effective Jan. 2, 1962, see section 25 of Pub. L. 87-845, set out as a note under section 14 of Title 18, Crimes and Criminal Procedure. EFFECTIVE DATE OF 1960 AMENDMENT Section 4 of Pub. L. 86-770 provided in part that: 'The amendments made by sections 1 and 2 of this Act (adding subsec. (c) of this section and section 1506 of this title) shall apply to any case or proceeding pending on, or brought after, the date of enactment of this Act (Sept. 13, 1960) in the district courts or the Court of Claims.' -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- CROSS REFERENCES Equal employment opportunity provisions, judicial district of principal office as district in which action might have been brought, see section 2000e-5 of Title 42, The Public Health and Welfare. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 42 section 2000e-5. ------DocID 36595 Document 457 of 1452------ -CITE- 28 USC Sec. 1407 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1407. Multidistrict litigation -STATUTE- (a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded. (b) Such coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges to whom such actions are assigned by the judicial panel on multidistrict litigation. For this purpose, upon request of the panel, a circuit judge or a district judge may be designated and assigned temporarily for service in the transferee district by the Chief Justice of the United States or the chief judge of the circuit, as may be required, in accordance with the provisions of chapter 13 of this title. With the consent of the transferee district court, such actions may be assigned by the panel to a judge or judges of such district. The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings. (c) Proceedings for the transfer of an action under this section may be initiated by - (i) the judicial panel on multidistrict litigation upon its own initiative, or (ii) motion filed with the panel by a party in any action in which transfer for coordinated or consolidated pretrial proceedings under this section may be appropriate. A copy of such motion shall be filed in the district court in which the moving party's action is pending. The panel shall give notice to the parties in all actions in which transfers for coordinated or consolidated pretrial proceedings are contemplated, and such notice shall specify the time and place of any hearing to determine whether such transfer shall be made. Orders of the panel to set a hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed in the office of the clerk of the district court in which a transfer hearing is to be or has been held. The panel's order of transfer shall be based upon a record of such hearing at which material evidence may be offered by any party to an action pending in any district that would be affected by the proceedings under this section, and shall be supported by findings of fact and conclusions of law based upon such record. Orders of transfer and such other orders as the panel may make thereafter shall be filed in the office of the clerk of the district court of the transferee district and shall be effective when thus filed. The clerk of the transferee district court shall forthwith transmit a certified copy of the panel's order to transfer to the clerk of the district court from which the action is being transferred. An order denying transfer shall be filed in each district wherein there is a case pending in which the motion for transfer has been made. (d) The judicial panel on multidistrict litigation shall consist of seven circuit and district judges designated from time to time by the Chief Justice of the United States, no two of whom shall be from the same circuit. The concurrence of four members shall be necessary to any action by the panel. (e) No proceedings for review of any order of the panel may be permitted except by extraordinary writ pursuant to the provisions of title 28, section 1651, United States Code. Petitions for an extraordinary writ to review an order of the panel to set a transfer hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed only in the court of appeals having jurisdiction over the district in which a hearing is to be or has been held. Petitions for an extraordinary writ to review an order to transfer or orders subsequent to transfer shall be filed only in the court of appeals having jurisdiction over the transferee district. There shall be no appeal or review of an order of the panel denying a motion to transfer for consolidated or coordinated proceedings. (f) The panel may prescribe rules for the conduct of its business not inconsistent with Acts of Congress and the Federal Rules of Civil Procedure. (g) Nothing in this section shall apply to any action in which the United States is a complainant arising under the antitrust laws. 'Antitrust laws' as used herein include those acts referred to in the Act of October 15, 1914, as amended (38 Stat. 730; 15 U.S.C. 12), and also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a, and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52 Stat. 116, 117; 15 U.S.C. 56); but shall not include section 4A of the Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 15a). (h) Notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel on multidistrict litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act. -SOURCE- (Added Pub. L. 90-296, Sec. 1, Apr. 29, 1968, 82 Stat. 109, and amended Pub. L. 94-435, title III, Sec. 303, Sept. 30, 1976, 90 Stat. 1396.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (f), are set out in the Appendix to this title. Section 4C of the Clayton Act, referred to in subsec. (h), is section 4C of act Oct. 15, 1914, ch. 323, as added by Pub. L. 94-435, title III, Sec. 301, Sept. 30, 1976, 90 Stat. 1394, which is classified to section 15c of Title 15, Commerce and Trade. -MISC2- AMENDMENTS 1976 - Pub. L. 94-435 added subsec. (h). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2112 of this title; title 15 section 78u; title 45 sections 719, 1105. RULES OF PROCEDURE OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION (ADOPTED FEBRUARY 26, 1981, EFFECTIVE JUNE 1, 1981, AS AMENDED TO JANUARY 2, 1991) I. GENERAL RULES Rule 1. Definitions. 2. Place of Keeping Records and Files. 3. Place of Filing of Papers. 4. Failure to Comply with Rules. 5. Practice. II. RULES FOR MULTIDISTRICT LITIGATION UNDER 28 U.S.C. SEC. 1407 6. Admission to Practice Before the Panel and Representation in Transferred Actions. 7. Manner of Filing Papers. 8. Service of Papers Filed. 9. Form of Papers Filed. 10. Motion Practice. 11. Show Cause Orders. 12. Conditional Transfer Orders for 'Tag-Along Actions'. 13. Miscellaneous Provisions Concerning 'Tag-Along Actions'. 14. Termination and Remand. 15. Applications for Extensions of Time. 16. Hearings. 17. Notice of Presentation or Waiver of Oral Argument, and Matters Submitted on the Briefs. 18. Effect of the Pendency of an Action Before the Panel. 19. Transfer of Files. III. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW UNDER 28 U.S.C. SEC. 2112(A)(3) 20. Filing of Notices. 21. Accompaniments to Notices. 22. Service of Notices. 23. Form of Notices. 24. Random Selection. 25. Service of Panel Consolidation Order. -MISC8- I. GENERAL RULES RULE 1. DEFINITIONS As used in these Rules 'Panel' means the members of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, Title 28, United States Code. 'Clerk of the Panel' means the official appointed by the Panel to act as Clerk of the Panel and shall include those deputized by the Clerk of the Panel to perform or assist in the performance of the duties of the Clerk of the Panel. 'Chairman' means the Chairman of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, or the member of the Panel designated by the Panel to act as Chairman in the absence or inability of the appointed Chairman. A 'tag-along action' refers to a civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407. (As amended June 14, 1988, eff. July 6, 1988.) RULE 2. PLACE OF KEEPING RECORDS AND FILES The records and files of the Panel shall be kept by the Clerk of the Panel at the offices of the Panel. Records and files may be temporarily or permanently removed to such places at such times as the Panel or the Chairman of the Panel shall direct. The Clerk of the Panel may charge fees, as prescribed by the Judicial Conference of the United States, for duplicating records and files. Records and files shall be transferred to the Federal Records Center pursuant to Government Services Administration Authority to Dispose Records. (As amended June 14, 1988, eff. July 6, 1988.) RULE 3. PLACE OF FILING OF PAPERS All papers for consideration by the Panel shall be submitted for filing to the Clerk of the Panel by mailing or delivering to: Clerk of the Panel Judicial Panel on Multidistrict Litigation 1120 Vermont Avenue, N.W. Suite 1002 Washington, D.C. 20005 No papers shall be left with or mailed to a Judge of the Panel. (As amended June 14, 1988, eff. July 6, 1988.) RULE 4. FAILURE TO COMPLY WITH RULES The Clerk of the Panel may, when a paper submitted for filing is not in compliance with the provisions of these Rules, refuse to file such paper until full compliance is accomplished. (As amended June 14, 1988, eff. July 6, 1988.) RULE 5. PRACTICE Where not fixed by statute or rule, the practice shall be that heretofore customarily followed by the Panel. (As amended June 14, 1988, eff. July 6, 1988.) II. RULES FOR MULTIDISTRICT LITIGATION UNDER 28 U.S.C. SEC. 1407 RULE 6. ADMISSION TO PRACTICE BEFORE THE PANEL AND REPRESENTATION IN TRANSFERRED ACTIONS Every member in good standing of the Bar of any district court of the United States is entitled without condition to practice before the Judicial Panel on Multidistrict Litigation. Any attorney of record in any action transferred under Section 1407 may continue to represent his or her client in any district court of the United States to which such action is transferred. Parties to any action transferred under Section 1407 are not required to obtain local counsel in the district to which such action is transferred. (As amended June 14, 1988, eff. July 6, 1988.) RULE 7. MANNER OF FILING PAPERS (a) An original of the following papers shall be submitted for filing to the Clerk of the Panel: a proof of service pursuant to Rule 8(a) and (b) of these Rules, a notice of appearance pursuant to Rule 8(c) of these Rules, a status notice pursuant to Rules 10(e), 11(e) and 12(b) of these Rules, a notice of opposition pursuant to Rules 12(c) and 14(f)(ii) of these Rules, a notice of related action pursuant to Rule 13(e) of these Rules, an application for extension of time pursuant to Rule 15 of these Rules, or a notice of presentation or waiver of oral argument pursuant to Rule 17(a) of these Rules. An original and eleven copies of all other papers shall be submitted for filing to the Clerk of the Panel. The Clerk of the Panel may require that additional copies also be submitted for filing. (b) When papers are submitted for filing in compliance with the provisions of these Rules, the Clerk of the Panel shall endorse thereon the date for filing. (c) Copies of motions for transfer of an action or actions pursuant to 28 U.S.C. Sec. 1407 shall be filed in each district court in which an action is pending that will be affected by the motion. Copies of a motion for remand pursuant to 28 U.S.C. Sec. 1407 shall be filed in the Section 1407 transferee district court in which any action affected by the motion is pending. (As amended June 14, 1988, eff. July 6, 1988.) RULE 8. SERVICE OF PAPERS FILED (a) All papers filed with the Clerk of the Panel shall be accompanied by proof of service on all other parties in all actions involved in the litigation. Service and proof of service shall be made as provided in Rules 5 and 6 of the Federal Rules of Civil Procedure. The proof of service shall indicate the name and address of each person served and shall indicate the party represented by each. If a party is not represented by counsel, the proof of service shall indicate the name of the party and his last known address. The proof of service shall indicate why any person named as a party in a constituent complaint was not served with the Section 1407 pleading. The original proof of service shall be filed with the Clerk of the Panel and copies thereof shall be sent to each person included within the proof of service. After the 'Panel Service List' described in subsection (d) of this Rule has been received from the Clerk of the Panel, the 'Panel Service List' shall be utilized for service of responses to motions and all other filings. In such instances, the 'Panel Service List' shall be attached to the proof of service and shall be supplemented in the proof of service in the event of the presence of additional parties or successor counsel. (b) The proof of service pertaining to motions for the transfer of actions pursuant to 28 U.S.C. Sec. 1407 shall certify that copies of the motions have been mailed or otherwise delivered for filing to the clerk of each district court in which an action is pending that will be affected by the motion. The proof of service pertaining to a motion for remand pursuant to 28 U.S.C. Sec. 1407 shall certify that a copy of the motion has been mailed or otherwise delivered for filing to the clerk of the Section 1407 transferee district court in which any action affected by the motion is pending. (c) Within eleven days of filing of a motion to transfer, an order to show cause or a conditional transfer order, each party or designated attorney shall notify the Clerk of the Panel, in writing, of the name and address of the attorney designated to receive service of all pleadings, notices, orders and other papers relating to practice before the Judicial Panel on Multidistrict Litigation. Only one attorney shall be designated for each party. Any party not represented by counsel shall be served by mailing such pleadings to the party's last known address. Requests for an extension of time to file the designation of attorney shall not be granted except in extraordinary circumstances. (d) In order to facilitate compliance with subsection (a) of this Rule, the Clerk of the Panel shall prepare and serve on all counsel and parties not represented by counsel, a 'Panel Service List' containing the names and addresses of the designated attorneys and the party or parties they represent and the names and addresses of the parties not represented by counsel. (e) If following transfer of any group of multidistrict litigation, the transferee district court appoints liaison counsel, this Rule shall be satisfied by serving each party in each affected action and all liaison counsel. Liaison counsel designated by the transferee district court shall receive copies of all Panel orders concerning their particular litigation and shall be responsible for distribution to the parties for whom he or she serves as liaison counsel. (As amended June 14, 1988, eff. July 6, 1988.) RULE 9. FORM OF PAPERS FILED (a) Averments in any motion seeking action by the Panel shall be made in numbered paragraphs, each of which shall be limited, as far as practicable, to a statement of a single factual averment. (b) Responses to averments in motions shall be made in numbered paragraphs, each of which shall correspond to the number of the paragraph of the motion to which the responsive paragraph is directed. Each responsive paragraph shall admit or deny wholly or in part the averment of the motion, and shall contain the respondent's version of the subject matter when the averment or the motion is not wholly admitted. (c) Each pleading filed shall be (i) flat and unfolded; (ii) plainly written, typed in double space, printed or prepared by means of a duplicating process, without erasures or interlineations which materially deface it; (iii) on opaque, unglazed, white paper (not onionskin); (iv) approximately 8 1/2 X 11 inches in size; and (v) secured on the left margin. (d) The heading on the first page of each pleading shall commence not less than three inches from the top of the page. Each pleading shall bear the heading 'Before the Judicial Panel on Multidistrict Litigation,' the identification 'MDL Docket No. XX' and the appropriate descriptive title of the litigation involved. (e) The final page of each pleading shall contain the name, address and telephone number of the attorney or party in active charge of the case. (f) Except with the approval of the Panel, each brief submitted for filing with the Panel shall be limited to twenty pages, exclusive of exhibits. (As amended June 14, 1988, eff. July 6, 1988.) RULE 10. MOTION PRACTICE (a) All requests for action by the Panel under 28 U.S.C. Sec. 1407 shall be made by written motion. Every motion shall be accompanied by: (i) a brief in support thereof in which the background of the litigation and factual and legal contentions of the movant shall be concisely stated in separate portions of the brief with citation of applicable authorities; and (ii) a schedule giving (A) the complete name of each action involved; (B) the district court in which each action is pending; (C) the civil action number of each action; and (D) the name of the judge assigned each action, if known. (b) The Clerk of the Panel shall notify recipients of a motion of the filing date, caption, MDL docket number, briefing schedule and pertinent Panel policies. (c) Within twenty days after filing of a motion, all other parties shall file a response thereto. Failure of a party to respond to a motion shall be treated as that party's acquiescence to the action requested in the motion. (d) The movant may, within five days after the lapse of the time period for filing responsive briefs, file a single brief in reply to any opposition. (e) Motions, their accompaniments, responses, and replies shall also be governed by Rules 7, 8 and 9 of these Rules. (f) With respect to any action that is the subject of Panel consideration, counsel shall notify the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel. (g) A joinder in a motion shall not add any action to the previous motion. (h) Once a motion is filed, any responsive pleading that purports to be a 'motion' in the docket shall be filed by the Clerk of the Panel as a response unless the 'motion' adds an action. The Clerk of the Panel, upon designating such a pleading as a motion, shall acknowledge that designation by the distribution of a briefing schedule to all parties in the docket. Response time resulting from an additional motion shall ordinarily be extended only to those parties directly affected by the additional motion. An accelerated briefing schedule for the additional motion may be set by the Clerk of the Panel to conform with the hearing schedule established by the Chairman. (As amended June 14, 1988, eff. July 6, 1988.) RULE 11. SHOW CAUSE ORDERS (a) When transfer of multidistrict litigation is being considered on the initiative of the Panel pursuant to 28 U.S.C. Sec. 1407(c)(i), an order shall be filed by the Clerk of the Panel directing the parties to show cause why the action or actions should not be transferred for coordinated or consolidated pretrial proceedings. Any party or counsel in such actions shall notify the Clerk of the Panel of any other federal district court actions related to the litigation encompassed by the show cause order. This notification shall include not only additional actions pending at the time of the issuance of the show cause order but also all future-filed related federal actions. (b) Any party may file a response to the show cause order within twenty days of the filing of said order unless otherwise provided for in the order. Failure of a party to respond to a show cause order shall be treated as that party's acquiescence to the Panel action contemplated in the order. (c) Within five days after the lapse of the time period for filing a response, any party may file a reply limited to new matters. (d) Responses and replies shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules. (e) With respect to any action that is the subject of Panel consideration, counsel shall notify the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel. (As amended June 14, 1988, eff. July 6, 1988.) RULE 12. CONDITIONAL TRANSFER ORDERS FOR 'TAG-ALONG ACTIONS' (a) Upon learning of the pendency of a potential 'tag-along action,' as defined in Rule 1 of these Rules, an order may be entered by the Clerk of the Panel transferring that action to the previously designated transferee district court on the basis of the prior hearing or hearings and for the reasons expressed in previous opinions and orders of the Panel in the litigation. The Clerk of the Panel shall serve this order on each party to the litigation but, in order to afford all parties the opportunity to oppose transfer, shall not send the order to the clerk of the transferee district court for fifteen days from the entry thereof. (b) Parties to an action subject to a conditional transfer order shall notify the Clerk of the Panel within the fifteen-day period if that action is no longer pending in its transferor district court. (c) Any party opposing the transfer shall file a notice of opposition with the Clerk of the Panel within the fifteen-day period. If a notice of opposition is received by the Clerk of the Panel within this fifteen-day period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee district court until further order of the Panel. (d) Within fifteen days of the filing of its notice of opposition, the party opposing transfer shall file a motion to vacate the conditional transfer order and brief in support thereof. The Clerk of the Panel shall set the motion for hearing at the next appropriate session of the Panel. Failure to file and serve a motion and brief shall be treated as withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee district court. (e) Conditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee district court. (f) Notices of opposition and motions to vacate orders of the Panel and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules. (As amended June 14, 1988, eff. July 6, 1988.) RULE 13. MISCELLANEOUS PROVISIONS CONCERNING 'TAG-ALONG ACTIONS' (a) Potential 'tag-along actions' filed in the transferee district require no action on the part of the Panel and requests for assignment of such actions to the Section 1407 transferee judge should be made in accordance with local rules for the assignment of related actions. (b) Upon learning of the pendency of a potential 'tag-along action' and having reasonable anticipation of opposition to transfer of that action, the Panel may direct the Clerk of the Panel to file a show cause order, in accordance with Rule 11 of these Rules, instead of a conditional transfer order. (c) Failure to serve one or more of the defendants in a potential 'tag-along action' with the complaint and summons as required by Rule 4 of the Federal Rules of Civil Procedure does not preclude transfer of such action under Section 1407. Such failure, however, may be submitted by such a defendant as a basis for opposing the proposed transfer. The inability of the Clerk of the Panel to serve a conditional transfer order on all defendants or their counsel shall not render the transfer of the action void but can be submitted by such a defendant as a basis for moving to remand as to such defendant. (d) A civil action apparently involving common questions of fact with actions under consideration by the Panel for transfer under Section 1407, which was filed or came to the attention of the Panel either after the initial hearing before it or too late to be included in the initial hearing, will be treated by the Panel as a potential 'tag-along action.' (e) Any party or counsel in actions previously transferred under Section 1407 or under consideration by the Panel for transfer under Section 1407 shall notify the Clerk of the Panel of any potential 'tag-along actions' in which that party is also named or in which that counsel appears. (As amended June 14, 1988, eff. July 6, 1988.) RULE 14. TERMINATION AND REMAND In the absence of unusual circumstances - (a) Actions terminated in the transferee district court by valid judgment, including but not limited to summary judgment, judgment of dismissal and judgment upon stipulation, shall not be remanded by the Panel and shall be dismissed by the transferee district court. The clerk of the transferee district court shall send a copy of the order terminating the action to the Clerk of the Panel but shall retain the original files and records unless otherwise directed by the transferee judge or by the Panel. (b) Each transferred action that has not been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial, unless ordered transferred by the transferee judge to the transferee or other district under 28 U.S.C. Sec. 1404(a) or 28 U.S.C. Sec. 1406. In the event that the transferee judge so transfers an action under 28 U.S.C. Sec. 1404(a) or 1406, no further action of the Panel shall be necessary to authorize further proceedings including trial. Actions that were originally filed in the transferee district require no action by the Panel to be reassigned to another judge in the transferee district at the conclusion of the coordinated or consolidated pretrial proceedings affecting those actions. (c) The Panel shall consider remand of each transferred action or any separable claim, cross-claim, counterclaim or third-party claim at or before the conclusion of coordinated or consolidated pretrial proceedings on (i) motion of any party, (ii) suggestion of the transferee district court, or (iii) the Panel's own initiative, by entry of an order to show cause, a conditional remand order or other appropriate order. (d) The Panel is reluctant to order remand absent a suggestion of remand from the transferee district court. If remand is sought be motion of a party, the motion shall be accompanied by: (i) an affidavit reciting (A) whether the movant has requested a suggestion of remand from the transferee district court, how the court responded to any request, and, if no such request was made, why; (B) whether all common discovery and other pretrial proceedings have been completed in the action sought to be remanded, and if not, what remains to be done; and (C) whether all orders of the transferee district court have been satisfactorily complied with, and if not, what remains to be done; and (ii) a copy of the transferee district court's final pretrial order, where such order has been entered. Motions to remand and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules. (e) When an order to show cause why an action or actions should not be remanded is entered pursuant to subsection (c), paragraph (iii) of this Rule, any party may file a response within twenty days of the filing of said order unless otherwise provided for in the order. Within five days of filing of a party's response, any party may file a reply brief limited to new matters. Failure of a party to respond to a show cause order regarding remand shall be treated as that party's acquiescence to the remand. Responses and replies shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules. (f) Conditional Remand Orders (i) When the Panel has been advised by the transferee district judge, or otherwise has reason to believe, that pretrial proceedings in the litigation assigned to the transferee district judge are concluded or that remand of an action or actions is otherwise appropriate, an order may be entered by the Clerk of the Panel remanding the action or actions to the transferor district court. The Clerk of the Panel shall serve this order on each party to the litigation but, in order to afford all parties the opportunity to oppose remand, shall not send the order to the clerk of the transferee district court for fifteen days from the entry thereof. (ii) Any party opposing the remand shall file a notice of opposition with the Clerk of the Panel within the fifteen-day period. If a notice of opposition is received by the Clerk of the Panel within this fifteen-day period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee district court until further order of the Panel. (iii) Within fifteen days of the filing of its notice of opposition, the party opposing remand shall file a motion to vacate the conditional remand order and brief in support thereof. The Clerk of the Panel shall set the motion for hearing at the next appropriate session of the Panel. Failure to file and serve a motion and brief shall be treated as a withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee district court. (iv) Conditional remand orders do not become effective unless and until they are filed with the clerk of the transferee district court. (v) Notices of opposition and motions to vacate such orders of the Panel and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules. (g) Upon receipt of an order to remand from the Clerk of the Panel, the parties shall furnish forthwith to the transferee district clerk a stipulation or designation of the contents of the record or part thereof to be remanded and furnish the transferee district clerk all necessary copies of any pleading or other matter filed so as to enable the transferee district clerk to comply with the order of remand. (As amended June 14, 1988, eff. July 6, 1988.) RULE 15. APPLICATIONS FOR EXTENSIONS OF TIME Any application for an extension of time to file a pleading or perform an act required by these Rules must be in writing, must request a specific number of additional days and may be acted upon by the Clerk of the Panel. Such an application will be evaluated in relation to the impact on the Panel's calendar as well as on the basis of the reasons set forth in support of the application. Any party aggrieved by the Clerk of the Panel's action on such application may submit its objections to the Panel for consideration. All applications for extensions of time shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules. (As amended June 14, 1988, eff. July 6, 1988.) RULE 16. HEARINGS (a) Hearings shall be held as ordered by the Panel. The Panel shall convene whenever and wherever desirable or necessary in the judgment of the Chairman. The Chairman shall determine which matters shall be set for hearing at each session and the Clerk of the Panel shall give notice to counsel for all parties involved in the litigation of the time, place and subject matter of such hearing. (b) No transfer or remand determination regarding any action pending in district court shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing has been held or unless the matter has been submitted on the briefs in accordance with Rule 17 of these Rules. Unless otherwise ordered by the Panel, all other matters before the Panel, such as a motion for reconsideration, shall be considered and determined upon the basis of the papers filed. (c) Except for leave of the Panel on a showing of good cause, only those parties who have filed a motion or written response to a motion or order shall be permitted to appear before the Panel and present oral argument. (d) When the Panel is hearing oral argument regarding whether to transfer a potential tag-along action, or whether to remand a previously transferred action, ordinarily only the parties in that action will be permitted to present oral argument, regardless of whether papers have been filed by other interested parties. (e) Counsel for those supporting transfer or remand under Section 1407 and counsel for those opposing such transfer or remand are to confer separately prior to the hearing for the purpose of organizing their arguments and selecting representatives to present all views without duplication. (f) Unless otherwise ordered by the Panel, a maximum of thirty minutes shall be allotted for argument in each new group of actions being considered for Section 1407 treatment and a maximum of twenty minutes shall be allotted for arguments in all other matters. The time shall be divided equally among those with varying viewpoints. Counsel for the moving party or parties shall generally be heard first. (g) So far as practicable and consistent with the purposes of Section 1407, the offering of oral testimony before the Panel shall be avoided. Accordingly, oral testimony shall not be received except upon notice, motion and order of the Panel expressly providing for it. Proof may be submitted as provided in the Federal Rules of Civil Procedure. (h) After an action or group of actions has been set for hearing, it may only be continued by order of the Panel on good cause shown. (As amended June 14, 1988, eff. July 6, 1988.) RULE 17. NOTICE OF PRESENTATION OR WAIVER OF ORAL ARGUMENT, AND MATTERS SUBMITTED ON THE BRIEFS (a) At such time in advance of the date of the hearing as required by the Clerk of the Panel in the notice of hearing, counsel shall notify the Clerk of the Panel in writing of one of the following: (1) counsel will waive oral argument, if all other counsel in the matter set for hearing waive oral argument; (2) counsel will present oral argument, regardless of whether any other counsel in the matter set for hearing presents oral argument; or (3) counsel waives oral argument. All notices of presentation or waiver of oral argument shall be filed and served in conformity with Rules 7 and 8 of these Rules. (b) If all parties to a matter set for hearing waive oral argument, the matter shall be submitted for decision by the Panel on the basis of the papers filed. If a party is not present when a matter to be heard is called at the hearing, the matter shall not be rescheduled and that party's position shall be treated as submitted for decision by the Panel on the basis of the papers filed, unless otherwise ordered by the Panel. (As amended June 14, 1988, eff. July 6, 1988.) RULE 18. EFFECT OF THE PENDENCY OF AN ACTION BEFORE THE PANEL The pendency of a motion, order to show cause, conditional transfer order or conditional remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. Sec. 1407 does not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C. Sec. 1407 shall be effective when the transfer or remand order is filed in the office of the clerk of the district court of the transferee district. (As amended June 14, 1988, eff. July 6, 1988.) RULE 19. TRANSFER OF FILES (a) Upon receipt of a certified copy of a transfer order from the clerk of the transferee district court, the clerk of the transferor district court shall forward to the clerk of the transferee district court the complete original file and a certified copy of the docket sheet for each transferred action. (b) If an appeal is pending, or a notice of appeal has been filed, or leave to appeal has been sought under 28 U.S.C. Sec. 1292(b) or a petition for an extraordinary writ is pending, in any action included in an order of transfer under 28 U.S.C. Sec. 1407, and the original file or parts thereof have been forwarded to the court of appeals, the clerk of the transferor district court shall notify the clerk of the court of appeals of the order of transfer and secure the original file long enough to prepare and transmit to the clerk of the transferee district court a certified copy of the docket sheet. (c) If the transfer order provides for the separation and simultaneous remand of any claim, cross-claim, counterclaim, or third-party claim, the clerk of the transferor district court shall retain the original file and shall prepare and transmit to the clerk of the transferee district court a certified copy of the docket sheet and copies of all papers except those relating exclusively to separated and remanded claims. (d) Upon receipt of an order to remand from the Clerk of the Panel, the transferee district court shall prepare and send to the clerk of the transferor district court the following: (i) a certified copy of the individual docket sheet for each action being remanded; (ii) a certified copy of the master docket sheet, if applicable; (iii) the entire file for each action being remanded; (iv) a certified copy of the final pretrial order, if applicable; and (v) a 'record on remand' to be composed of those parts of the files and records produced during coordinated or consolidated pretrial proceedings which have been stipulated to or designated by counsel as being necessary for any or all proceedings to be conducted following remand. It shall be the responsibility of counsel originally preparing or filing any document to be included in the 'record on remand' to furnish on request sufficient copies to the clerk of the transferee district court. (e) The Clerk of the Panel shall be notified when any files have been transmitted pursuant to this Rule. (Added June 14, 1988, eff. July 6, 1988.) III. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW UNDER 28 U.S.C. SEC. 2112(A)(3) RULE 20. FILING OF NOTICES (a) An original of a notice of multicircuit petitions for review pursuant to 28 U.S.C. Sec. 2112(a)(3) shall be submitted for filing to the Clerk of the Panel by the affected agency, board, commission or officer. The term 'agency' as used in Section III of these Rules shall include agency, board, commission or officer. (b) All notices of multicircuit petitions for review submitted by the affected agency for filing with the Clerk of the Panel shall embrace exclusively petitions for review filed in the courts of appeals within ten days after issuance of an agency order and received by the affected agency from the petitioners within that ten day period. (c) When a notice of multicircuit peitions for review is submitted for filing to the Clerk of the Panel, and the Clerk of the Panel determines that the submission is in compliance with the provisions of these Rules, the Clerk of the Panel shall file the notice and endorse thereon the date of filing. (d) Copies of notices of multicircuit petitions for review shall be filed by the affected agency with the clerk of each circuit court of appeals in which a petition for review is pending that is included in the notice. (Added June 14, 1988, eff. July 6, 1988.) RULE 21. ACCOMPANIMENTS TO NOTICES (a) All notices of multicircuit petitions for review shall be accompanied by: (i) a copy of each involved petition for review as the petition for review is defined in 28 U.S.C. Sec. 2112(a)(2); and (ii) a schedule giving (A) the date of the relevant agency order; (B) the case name of each petition for review involved; (C) the circuit court of appeals in which each petition for review is pending; (D) the appellate docket number of each petition for review; (E) the date of filing by the court of appeals of each petition for review; and (F) the date of receipt by the agency of each petition for review. (b) The schedule in Subsection (a)(ii) of this Rule shall also be governed by Rules 20, 22 and 23(a) of these Rules. (Added June 14, 1988, eff. July 6, 1988.) RULE 22. SERVICE OF NOTICES (a) All notices of multicircuit petitions for review shall be accompanied by proof of service by the affected agency on all other parties in all petitions for review included in the notice. Service and proof of service shall be made as provided in Rule 25 of the Federal Rules of Appellate Procedure. The proof of service shall state the name and address of each person served and shall indicate the party represented by each. If a party is not represented by counsel, the proof of service shall indicate the name of the party and his or her last known address. The original proof of service shall be submitted by the affected agency for filing with the Clerk of the Panel and copies thereof shall be sent by the affected agency to each person included within the proof of service. (b) The proof of service pertaining to notices of multicircuit petitions for review shall certify that copies of the notices have been mailed or otherwise delivered by the affected agency for filing to the clerk of each circuit court of appeals in which a petition for review is pending that is included in the notice. (Added June 14, 1988, eff. July 6, 1988.) RULE 23. FORM OF NOTICES (a) Each notice of multicircuit petitions for review shall be (i) flat and unfolded; (ii) plainly written, typed in double space, printed or prepared by means of a duplicating process, without erasures or interlineations which materially deface it; (iii) on opaque, unglazed, white paper (not onionskin); (iv) approximately 8 1/2 X 11 inches in size; and (v) secured on the left margin. (b) The heading on the first page of each notice of multicircuit petitions for review shall commence not less than three inches from the top of the page. Each notice shall bear the heading 'Notice to the Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review.' (c) The final page of each notice of multicircuit petitions for review shall contain the name, address and telephone number of the individual or individuals who submitted the notice on behalf of the agency. (Added June 14, 1988, eff. July 6, 1988.) RULE 24. RANDOM SELECTION (a) Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel or designated deputy shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. This random selection shall be witnessed by the Clerk of the Panel or a designated deputy other than the random selector. Thereafter, an order on behalf of the Panel shall be issued, signed by the random selector and the witness, (i) consolidating the petitions for review in the court of appeals for the circuit that was randomly selected; and (ii) designating that circuit as the one in which the record is to be filed pursuant to Rules 16 and 17 of the Federal Rules of Appellate Procedure. (b) A consolidation of petitions for review shall be effective when the Panel's consolidation order is filed at the offices of the Panel by the Clerk of the Panel. (Added June 14, 1988, eff. July 6, 1988.) RULE 25. SERVICE OF PANEL CONSOLIDATION ORDER (a) The Clerk of the Panel shall serve the Panel's consolidation order on the affected agency through the individual or individuals, as identified in Rule 23(c) of these Rules, who submitted the notice of multicircuit petitions for review on behalf of the agency. (b) That individual or individuals, or anyone else designated by the agency, shall promptly serve the Panel's consolidation order on all other parties in all petitions for review included in the Panel's consolidation order, and shall promptly submit a proof of that service to the Clerk of the Panel. Service and proof of that service shall also be governed by Rule 22 of these Rules. (c) The Clerk of the Panel shall serve the Panel's consolidation order on the clerks of all circuit courts of appeals that were among the candidates for the Panel's random selection. (Added June 14, 1988, eff. July 6, 1988.) ------DocID 36596 Document 458 of 1452------ -CITE- 28 USC Sec. 1408 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1408. Venue of cases under title 11 -STATUTE- Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district - (1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district; or (2) in which there is pending a case under title 11 concerning such person's affiliate, general partner, or partnership. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 102(a), July 10, 1984, 98 Stat. 334.) -MISC1- PRIOR PROVISIONS A prior section 1408, added by Pub. L. 95-598, title II, Sec. 240(a), Nov. 6, 1978, 92 Stat. 2668, which related to bankruptcy appeals, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as a note under section 151 of this title. ------DocID 36597 Document 459 of 1452------ -CITE- 28 USC Sec. 1409 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1409. Venue of proceedings arising under title 11 or arising in or related to cases under title 11 -STATUTE- (a) Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending. (b) Except as provided in subsection (d) of this section, a trustee in a case under title 11 may commence a proceeding arising in or related to such case to recover a money judgment of or property worth less than $1,000 or a consumer debt of less than $5,000 only in the district court for the district in which the defendant resides. (c) Except as provided in subsection (b) of this section, a trustee in a case under title 11 may commence a proceeding arising in or related to such case as statutory successor to the debtor or creditors under section 541 or 544(b) of title 11 in the district court for the district where the State or Federal court sits in which, under applicable nonbankruptcy venue provisions, the debtor or creditors, as the case may be, may have commenced an action on which such proceeding is based if the case under title 11 had not been commenced. (d) A trustee may commence a proceeding arising under title 11 or arising in or related to a case under title 11 based on a claim arising after the commencement of such case from the operation of the business of the debtor only in the district court for the district where a State or Federal court sits in which, under applicable nonbankruptcy venue provisions, an action on such claim may have been brought. (e) A proceeding arising under title 11 or arising in or related to a case under title 11, based on a claim arising after the commencement of such case from the operation of the business of the debtor, may be commenced against the representative of the estate in such case in the district court for the district where the State or Federal court sits in which the party commencing such proceeding may, under applicable nonbankruptcy venue provisions, have brought an action on such claim, or in the district court in which such case is pending. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 102(a), July 10, 1984, 98 Stat. 334.) -MISC1- EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as a note under section 151 of this title. ------DocID 36598 Document 460 of 1452------ -CITE- 28 USC Sec. 1410 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1410. Venue of cases ancillary to foreign proceedings -STATUTE- (a) A case under section 304 of title 11 to enjoin the commencement or continuation of an action or proceeding in a State or Federal court, or the enforcement of a judgment, may be commenced only in the district court for the district where the State or Federal court sits in which is pending the action or proceeding against which the injunction is sought. (b) A case under section 304 of title 11 to enjoin the enforcement of a lien against a property, or to require the turnover of property of an estate, may be commenced only in the district court for the district in which such property is found. (c) A case under section 304 of title 11, other than a case specified in subsection (a) or (b) of this section, may be commenced only in the district court for the district in which is located the principal place of business in the United States, or the principal assets in the United States, of the estate that is the subject of such case. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 102(a), July 10, 1984, 98 Stat. 335.) -MISC1- EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as a note under section 151 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1408 of this title. ------DocID 36599 Document 461 of 1452------ -CITE- 28 USC Sec. 1411 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1411. Jury trials -STATUTE- (a) Except as provided in subsection (b) of this section, this chapter and title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim. (b) The district court may order the issues arising under section 303 of title 11 to be tried without a jury. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 102(a), July 10, 1984, 98 Stat. 335.) -MISC1- EFFECTIVE DATE Section effective July 10, 1984, except that subsec. (a) not applicable with respect to cases under Title 11, Bankruptcy, that are pending on July 10, 1984, or to proceedings arising in or related to such cases, see section 122(a), (b) of Pub. L. 98-353, set out as a note under section 151 of this title. ------DocID 36600 Document 462 of 1452------ -CITE- 28 USC Sec. 1412 -EXPCITE- TITLE 28 PART IV CHAPTER 87 -HEAD- Sec. 1412. Change of venue -STATUTE- A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 102(a), July 10, 1984, 98 Stat. 335.) -MISC1- EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as a note under section 151 of this title. ------DocID 36601 Document 463 of 1452------ -CITE- 28 USC CHAPTER 89 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS -MISC1- Sec. 1441. Actions removable generally. 1442. Federal officers sued or prosecuted. 1442a. Members of armed forces sued or prosecuted. 1443. Civil rights cases. 1444. Foreclosure action against United States. 1445. Nonremovable actions. 1446. Procedure for removal. 1447. Procedure after removal generally. 1448. Process after removal. 1449. State court record supplied. 1450. Attachment or sequestration; securities. 1451. Definitions. 1452. Removal of claims related to bankruptcy cases. AMENDMENTS 1984 - Pub. L. 98-353, title I, Sec. 103(b), July 10, 1984, 98 Stat. 335, added item 1452. 1970 - Pub. L. 91-358, title I, Sec. 172(d)(2), July 29, 1970, 84 Stat. 591, added item 1451. 1958 - Pub. L. 85-554, Sec. 5(b), July 25, 1958, 72 Stat. 416, substituted 'Nonremovable actions' for 'Carriers; non-removable actions' in item 1445. 1956 - Act Aug. 10, 1956, ch. 1041, Sec. 19(b), 70A Stat. 627, added item 1442a. -CROSS- CROSS REFERENCES Puerto Rico, removal of causes to United States District Court of Puerto Rico, see section 864 of Title 48, Territories and Insular Possessions. -SECREF- CHAPTER REFERRED TO IN OTHER SECTION This chapter is referred to in title 33 section 1323; title 39 section 409; title 42 section 7192. ------DocID 36602 Document 464 of 1452------ -CITE- 28 USC Sec. 1441 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1441. Actions removable generally -STATUTE- (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title, (FOOTNOTE 1) is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may may (FOOTNOTE 2) remand all matters in which State law predominates. (FOOTNOTE 1) So in original. The comma probably should not appear. (FOOTNOTE 2) So in original. (d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. (e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 937; Oct. 21, 1976, Pub. L. 94-583, Sec. 6, 90 Stat. 2898; June 19, 1986, Pub. L. 99-336, Sec. 3(a), 100 Stat. 637; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1016(a), 102 Stat. 4669; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 312, 104 Stat. 5114.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 71, 114 (Mar. 3, 1911, ch. 231, Sec. 28, 53, 36 Stat. 1094, 1101; Jan. 20, 1914, ch. 11, 38 Stat. 278; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Section consolidates removal provisions of sections 71 and 114 of title 28, U.S.C., 1940 ed., and is intended to resolve ambiguities and conflicts of decisions. Phrases such as 'in suits of a civil nature, at law or in equity,' the words 'case,' 'cause,' 'suit,' and the like have been omitted and the words 'civil action' substituted in harmony with Rules 2 and 81(c) of the Federal Rules of Civil Procedure. Ambiguous phrases such as 'the District Court of the United States for the proper district' have been clarified by the substitution of the phrase 'the district and division embracing the place where such action is pending.' (See General Investment Co. v. Lake Shore & M.S. Ry. Co., 1922, 43 S.Ct. 107, 112, 260 U.S. 261, 67 L.Ed. 244 and cases cited therein.) All the provisions with reference to removal of controversies between citizens of different States because of inability, from prejudice or local influence, to obtain justice, have been discarded. These provisions, born of the bitter sectional feelings engendered by the Civil War and the Reconstruction period, have no place in the jurisprudence of a nation since united by three wars against foreign powers. Indeed, the practice of removal for prejudice or local influence has not been employed much in recent years. Subsection (c) has been substituted for the provision in section 71 of title 28, U.S.C., 1940 ed., 'and when in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States.' This quoted language has occasioned much confusion. The courts have attempted to distinguish between separate and separable controversies, a distinction which is sound in theory but illusory in substance. (See 41 Harv. L. Rev. 1048; 35 Ill. L. Rev. 576.) Subsection (c) permits the removal of a separate cause of action but not of a separable controversy unless it constitutes a separate and independent claim or cause of action within the original jurisdiction of United States District Courts. In this respect it will somewhat decrease the volume of Federal litigation. Rules 18, 20, and 23 of the Federal Rules of Civil Procedure permit the most liberal joinder of parties, claims, and remedies in civil actions. Therefore there will be no procedural difficulty occasioned by the removal of the entire action. Conversely, if the court so desires, it may remand to the State court all nonremovable matters. The provisions of section 71 of title 28, U.S.C., 1940 ed., with respect to removal of actions under the Federal Employer's Liability Act (U.S.C., 1940 ed., title 45, Railroads, Sec. 51-60) and actions against a carrier for loss, damage, or delay to shipments under section 20 of title 49, U.S.C., 1940 ed., Transportation, are incorporated in section 1445 of this title. AMENDMENTS 1990 - Subsec. (c). Pub. L. 101-650 substituted 'within the jurisdiction conferred by section 1331 of this title' for ', which would be removable if sued upon alone' and 'may remand all matters in which State law predominates' for 'remand all matters not otherwise within its original jurisdiction'. 1988 - Subsec. (a). Pub. L. 100-702 inserted at end 'For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.' 1986 - Subsec. (e). Pub. L. 99-336 added subsec. (e). 1976 - Subsec. (d). Pub. L. 94-583 added subsec. (d). EFFECTIVE DATE OF 1986 AMENDMENT Section 3(b) of Pub. L. 99-336 provided that: 'The amendment made by this section (amending this section) shall apply with respect to claims in civil actions commenced in State courts on or after the date of the enactment of this section (June 19, 1986).' EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-583 effective 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out as an Effective Date note under section 1602 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of Rules of Civil Procedure, see rule 81, Appendix to this title. CROSS REFERENCES Asian Development Bank, removal of actions against, see section 285f of Title 22, Foreign Relations and Intercourse. Citizenship of corporations for purposes of this section, see section 1332 of this title. Federal Reserve banks and banking transactions, removal of actions involving, see section 632 of Title 12, Banks and Banking. Inter-American Development Bank, removal of actions against, see section 283f of Title 22, Foreign Relations and Intercourse. International Finance Corporation, removal of actions against, see section 282f of Title 22. International Monetary Fund and International Bank for Reconstruction and Development, removal of actions against, see section 286g of Title 22. International or foreign banking, removal of suits arising out of, see section 632 of Title 12, Banks and Banking. Securities Act, cases not removable, see section 77v of Title 15, Commerce and Trade. Stay of State court proceedings, see section 2283 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1332 of this title; title 33 section 1323. ------DocID 36603 Document 465 of 1452------ -CITE- 28 USC Sec. 1442 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1442. Federal officers sued or prosecuted -STATUTE- (a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. (2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States. (3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties; (4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House. (b) A personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State, wherein jurisdiction is obtained by the State court by personal service of process, may be removed by the defendant to the district court of the United States for the district and division in which the defendant was served with process. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 938.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 76 and 77 (Mar. 3, 1911, ch. 231, Sec. 33, 34, 36 Stat. 1097, 1098; Aug. 23, 1916, ch. 399, 39 Stat. 532). Section consolidates sections 76 and 77 of title 28, U.S.C., 1940 ed. The revised subsection (a)(1) is extended to apply to all officers and employees of the United States or any agency thereof. Section 76 of title 28, U.S.C., 1940 ed., was limited to revenue officers engaged in the enforcement of the criminal or revenue laws. The procedural provisions of section 76 of title 28, U.S.C., 1940 ed., are incorporated in sections 1446 and 1447 of this title. (See reviser's notes under those sections.) Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of Rules of Civil Procedure to removed actions, see rule 81, Appendix to this title. Continuation of section under rule 81, see note by Advisory Committee under rule 81. CROSS REFERENCES Senate or House, suits against officers of, removal provisions applicable, see section 118 of Title 2, The Congress. Stay of State court proceedings, see section 2283 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 sections 1452, 2279aa-14. ------DocID 36604 Document 466 of 1452------ -CITE- 28 USC Sec. 1442a -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1442a. Members of armed forces sued or prosecuted -STATUTE- A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to hear and determine the cause. -SOURCE- (Added Aug. 10, 1956, ch. 1041, Sec. 19(a), 70A Stat. 626.) -MISC1- DERIVATION Section was from the Uniform Code of Military Justice, act May 5, 1950, ch. 169, Sec. 9, 64 Stat. 146, which was based on Article 117, Articles of War, act June 4, 1920, ch. 227, subch. II, Sec. 1, 41 Stat. 811, as amended June 24, 1948, ch. 625, title II, Sec. 242, 62 Stat. 642. ------DocID 36605 Document 467 of 1452------ -CITE- 28 USC Sec. 1443 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1443. Civil rights cases -STATUTE- Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 938.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 74 (Mar. 3, 1911, ch. 231, Sec. 31, 36 Stat. 1096). Other provisions of section 74 of title 28, U.S.C., 1940 ed., are incorporated in sections 1446 and 1447 of this title. Words 'or in the part of the State where such suit or prosecution is pending' after 'courts of such States,' were omitted as unnecessary. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of rules, see rule 81, Appendix to this title. Continuation of section under rule 81, see note by Advisory Committee under rule 81. CROSS REFERENCES Stay of State court proceedings, see section 2283 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1447 of this title. ------DocID 36606 Document 468 of 1452------ -CITE- 28 USC Sec. 1444 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1444. Foreclosure action against United States -STATUTE- Any action brought under section 2410 of this title against the United States in any State court may be removed by the United States to the district court of the United States for the district and division in which the action is pending. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 938; May 24, 1949, ch. 139, Sec. 82, 63 Stat. 101.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 903 (Mar. 4, 1931, ch. 515, Sec. 3, 46 Stat. 1529). The procedural provisions of section 903 of title 28, U.S.C., 1940 ed., were omitted as covered by section 1446 of this title. Changes were made in phraseology. 1949 ACT This section corrects typographical errors in section 1444 of title 28, U.S.C. AMENDMENTS 1949 - Act May 24, 1949, inserted 'court' between 'State' and 'may', and substituted 'division' for 'divisions'. -CROSS- CROSS REFERENCES Actions affecting property on which United States has a lien, see section 2410 of this title. Stay of State court proceedings, see section 2283 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2410 of this title; title 26 section 7424. ------DocID 36607 Document 469 of 1452------ -CITE- 28 USC Sec. 1445 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1445. Nonremovable actions -STATUTE- (a) A civil action in any State court against a railroad or its receivers or trustees, arising under sections 51-60 of Title 45, may not be removed to any district court of the United States. (b) A civil action in any State court against a common carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, arising under section 11707 of title 49, may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs. (c) A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 939; July 25, 1958, Pub. L. 85-554, Sec. 5, 72 Stat. 415; Oct. 17, 1978, Pub. L. 95-473, Sec. 2(a)(3)(A), 92 Stat. 1465; Oct. 20, 1978, Pub. L. 95-486, Sec. 9(b), 92 Stat. 1634.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 71 (Mar. 3, 1911, ch. 231, Sec. 28, 36 Stat. 1094; Jan. 20, 1914, ch. 11, 38 Stat. 278; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). The words 'or its receivers or trustees' were inserted in both subsections to make clear that nonremovable actions against a carrier do not become removable under section 1442 of this title when filed against court receivers or trustees. This was the unquestioned rule prior to the act of Aug. 23, 1916, ch. 399, 39 Stat. 532, amending section 76 of title 28, U.S.C., 1940 ed., and permitting removal of actions against officers of United States courts. The cases are in conflict as to whether under that amendment the case becomes removable when the carrier is in receivership or undergoing reorganization. The revised section resolves the conflict by denying the right of removal to receivers and trustees where it would be nonexistent if the carrier were the party defendant. Thus the subject matter rather than legalistic distinctions as to the identity of the parties is made determinative consideration. A reference in section 71 of title 28, U.S.C., 1940 ed., to sections 51-59 of title 45, U.S.C., 1940 ed., Railroads, was changed to '51-60.' Such sections 51-59 embraced all of chapter 2 of said title 45 when the law on which such section 71 is based was enacted, but a new section (60) was added in 1939. Other provisions of section 71 of title 28, U.S.C., 1940 ed., appear in section 1441 of this title. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Sections 51-60 of Title 45, referred to in subsec. (a), are based on act Apr. 22, 1908, ch. 149, 35 Stat. 65, as amended, which is popularly known as the Employer's Liability Act. -MISC2- AMENDMENTS 1978 - Subsec. (b). Pub. L. 95-486 substituted '$10,000' for '$3,000'. Pub. L. 95-473 substituted 'section 11707 of title 49' for 'section 20 of Title 49'. 1958 - Pub. L. 85-554 substituted 'Nonremovable actions' for 'Carriers; nonremovable actions' in section catchline and added subsec. (c). EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-554 applicable only in the case of actions commenced after July 25, 1958, see section 3 of Pub. L. 85-554, set out as a note under section 1331 of this title. -CROSS- CROSS REFERENCES Stay of State court proceedings, see section 2283 of this title. ------DocID 36608 Document 470 of 1452------ -CITE- 28 USC Sec. 1446 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1446. Procedure for removal -STATUTE- (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. (c)(1) A petition for removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the petition at a later time. (2) A petition for removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds which exist at the time of the filing of the petition shall constitute a waiver of such grounds, and a second petition may be filed only on grounds not existing at the time of the original petition. For good cause shown, the United States district court may grant relief from the limitations of this paragraph. (3) The filing of a petition for removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the petition is first denied. (4) The United States district court to which such petition is directed shall examine the petition promptly. If it clearly appears on the face of the petition and any exhibits annexed thereto that the petition for removal should not be granted, the court shall make an order for its summary dismissal. (5) If the United States district court does not order the summary dismissal of such petition, it shall order an evidentiary hearing to be held promptly and after such hearing shall make such disposition of the petition as justice shall require. If the United States district court determines that such petition shall be granted, it shall so notify the State court in which prosecution is pending, which shall proceed no further. (d) Promptly after the filing of such petition for the removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. (e) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, Sec. 83, 63 Stat. 101; Sept. 29, 1965, Pub. L. 89-215, 79 Stat. 887; July 30, 1977, Pub. L. 95-78, Sec. 3, 91 Stat. 321; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1016(b), 102 Stat. 4669.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 72, 74, 75, 76 (May 3, 1911, ch. 231, Sec. 29, 31, 32, 33, 36 Stat. 1095, 1097; Aug. 23, 1916, ch. 399, 39 Stat. 532; July 30, 1977, Pub. L. 95-78, Sec. 3, 91 Stat. 321.) Section consolidates portions of sections 74, 75, and 76 with section 72 of title 28, U.S.C., 1940 ed., with important changes of substance and phraseology. Subsection (a), providing for the filing of the removal petition in the district court, is substituted for the requirement of sections 72 and 74 of title 28, U.S.C., 1940 ed., that the petition be filed in the State court. This conforms to the method prescribed by section 76 of title 28, U.S.C., 1940 ed., and to the recommendation of United States District Judges Calvin W. Chesnut and T. Waties Warring approved by the Committee of the Judicial Conference on the Revision of the Judicial Code. Subsection (b) makes uniform the time for filing petitions to remove all civil actions within twenty days after commencement of action or service of process whichever is later, instead of 'at any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead' as required by section 72 of title 28, U.S.C., 1940 ed. As thus revised, the section will give adequate time and operate uniformly throughout the Federal jurisdiction. The provisions of sections 74 and 76 of title 28, U.S.C., 1940 ed., for filing at any time 'before trial or final hearing' in civil rights cases and cases involving revenue officers, court officers and officers of either House of Congress were omitted. Subsection (c) embodies the provisions of sections 74 and 76 of title 28, U.S.C., 1940 ed., for filing the removal petition before trial and makes them applicable to all criminal prosecutions but not to civil actions. This provision was retained to protect Federal officers enforcing revenue or criminal laws from being rushed to trial in State courts before petition for removal could be filed. Words 'or final hearing' following the words 'before trial,' were omitted for purposes of clarity and simplification of procedure. The provision of said section 76 of title 28, U.S.C., 1940 ed., for certificate of counsel that he has examined the proceedings and carefully inquired into all matters set forth in the petition and believes them to be true, was omitted as unnecessary and inconsistent with Rule 11 of the Federal Rules of Civil Procedure. Subsection (d) is derived from sections 72 and 74 of title 28, U.S.C., 1940 ed., but the requirement for cost bond is limited to civil actions in conformity with the more enlightened trend of modern procedure to remove all unnecessary impediments to the administration of criminal justice. Provisions of said section 72 as to the conditions of the bond were rewritten because inappropriate when the petition for removal is filed in the Federal court. Subsection (e) provides for notice to the adverse parties and for the filing in the State court of a copy of the petition for removal in substitution for the requirements of sections 72 and 74 of title 28, U.S.C., 1940 ed., for the filing of the removal petition in the State court. The last sentence of subsection (e) is derived from sections 72, 74 and 76 of title 28, U.S.C., 1940 ed. Subsection (f) is derived from sections 75 and 76 of title 28, U.S.C., 1940 ed. Since the procedure in removal cases is now governed by the Federal Rules of Civil Procedure (Rule 81(c)) and Federal Rules of Criminal Procedure (Rule 54(b)), the detailed directions of the various sections with respect to such procedure were omitted as unnecessary. Thus the provision of section 72 of title 28, U.S.C., 1940 ed., with respect to appearance, special bail and filing the record were omitted as covered by the Federal Rules of Civil Procedure, Rules 64, 81(c). The provisions of section 74 of title 28, U.S.C., 1940 ed., as to the effect of security and other proceedings and remedies in the State court were omitted as covered by section 1450 of this title. The requirements of section 74 of title 28, U.S.C., 1940 ed., that the clerk of the State court shall furnish copies of pleadings and proceedings to the petitioner and that the petitioner shall file the same in the district court are covered by section 1447 of this title. The provisions of section 74 of title 28, U.S.C., 1940 ed., requiring the adverse parties to plead anew in the district court were omitted as unnecessary in view of Federal Rules of Civil Procedure, Rule 81(c). The last sentence of such section was omitted as covered by section 1447(d) of this title. 1949 ACT Subsection (b) of section 1446 of title 28, U.S.C., as revised, has been found to create difficulty in those States, such as New York, where suit is commenced by the service of a summons and the plaintiff's initial pleading is not required to be served or filed until later. The first paragraph of the amendment to subsection (b) corrects this situation by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading. This provision, however, without more, would create further difficulty in those States, such as Kentucky, where suit is commenced by the filing of the plaintiff's initial pleading and the issuance and service of a summons without any requirement that a copy of the pleading be served upon or otherwise furnished to the defendant. Accordingly the first paragraph of the amendment provides that in such cases the petition for removal shall be filed within 20 days after the service of the summons. The first paragraph of the amendment conforms to the amendment of rule 81(c) of the Federal Rules of Civil Procedure, relating to removed actions, adopted by the Supreme Court on December 29, 1948, and reported by the Court to the present session of Congress. The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co., 169 U.S. 92.) In addition, this amendment clarifies the intent of section 1446(e) of title 28, U.S.C., to indicate that notice need not be given simultaneously with the filing, but may be given promptly thereafter. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702, Sec. 1016(b)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: 'A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.' Subsec. (b). Pub. L. 100-702, Sec. 1016(b)(2), substituted 'notice of removal' for 'petition for removal' in two places and inserted before period at end of second par. ', except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action'. Subsecs. (d) to (f). Pub. L. 100-702, Sec. 1016(b)(3), redesignated subsecs. (e) and (f) as (d) and (e), respectively, and struck out former subsec. (d) which read as follows: 'Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.' 1977 - Subsec. (c). Pub. L. 95-78, Sec. 3(a), designated existing provisions as par. (1), set a period of 30 days as the maximum allowable time prior to commencement of trial and following arraignment during which time a petition for removal can be filed, provided for the grant of additional time for good cause shown, and added pars. (2) to (5). Subsec. (e). Pub. L. 95-78, Sec. 3(b), inserted 'for the removal of a civil action' after 'filing of such petition'. 1965 - Subsec. (b). Pub. L. 89-215 substituted 'thirty days' for 'twenty days' wherever appearing. 1949 - Subsec. (b). Act May 24, 1949, Sec. 83(a), provided that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading, and provided that the petition for removal shall be filed within 20 days after the service of summons. Subsec. (e). Act May 24, 1949, Sec. 83(b), indicated that notice need not be given simultaneously with the filing, but may be made promptly thereafter. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95-78 effective Oct. 1, 1977, see section 4 of Pub. L. 95-78, set out as an Effective Date of Pub. L. 95-78 note under section 3771 of Title 18, Crimes and Criminal Procedure. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of Rules of Civil Procedure, see rule 81, Appendix to this title. Continuation of section under rule 81, see note by Advisory Committee under rule 81. CROSS REFERENCES Stay of State court proceedings, see section 2283 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1441, 1447 of this title; title 22 sections 283gg, 290i-7, 290k-9; title 25 sections 487, 610c, 642, 670; title 42 section 2210. ------DocID 36609 Document 471 of 1452------ -CITE- 28 USC Sec. 1447 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1447. Procedure after removal generally -STATUTE- (a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise. (b) It may require the petitioner to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court. (c) A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. (e) If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, Sec. 84, 63 Stat. 102; July 2, 1964, Pub. L. 88-352, title IX, Sec. 901, 78 Stat. 266; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1016(c), 102 Stat. 4670.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 71, 72, 74, 76, 80, 81 and 83 (Mar. 3, 1911, ch. 231, Sec. 28, 29, 31, 33, 37 and 38, 36 Stat. 1094-1098; Jan. 20, 1914, ch. 11, 39 Stat. 278; Aug. 23, 1916, ch. 399, 39 Stat. 532; Apr. 16, 1920, ch. 146, 41 Stat. 554; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Section consolidates procedural provisions of sections 71, 72, 74, 76, 80, 81 and 83 of title 28, U.S.C., 1940 ed., with important changes in substance and phraseology. Subsection (a) is derived from sections 72, 76, 81 and 83 of title 28, U.S.C., 1940 ed. The remaining provisions of said section 83 are the basis of section 1448 of this title. Subsection (b) is derived from sections 72, 74, 76 and 83 of title 28, U.S.C., 1940 ed., which have been rewritten to provide the utmost simplicity and flexibility of procedure in bringing the State court record to the district court. (Editorial Note. - Subsecs. (c), (d) and (e) as originally revised and incorporated in this section read as follows: '(c) It may order the pleadings recast and the parties realigned according to their real interest. '(d) If any party fails to comply with its lawful orders, the district court may enter such further orders and judgments as justice requires. '(e) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.') Subsections (c) and (d) are substituted for unnecessary and inconsistent procedural provisions. Subsection (e) (now subsec. (c)) is derived from sections 71 and 80 of title 28, U.S.C., 1940 ed. Such subsection is rewritten to eliminate the cumbersome procedure of remand. Under this chapter as revised, the petition for removal under section 1446 of this chapter will be filed in the Federal court in the first instance and the right of removal determined in that court before the petition is granted. The provisions in section 80 of title 28, U.S.C., 1940 ed., relating to actions commenced in district courts, as distinguished from actions removed thereto, are incorporated in section 1359 of this title. Other provisions of said section 80 appear in section 1919 of this title. 1949 ACT This section strikes out subsections (c) and (d) of section 1447 of title 28, U.S.C., as covered by the Federal Rules of Civil Procedure, and adds a new subsection to such section 1447 to remove any doubt that the former law as to the finality of an order of remand to a State court is continued. This section also amends renumbered subsection (c) to remove any doubt that the former law authorizing the district court upon remand to order payment of costs is continued. AMENDMENTS 1988 - Subsec. (c). Pub. L. 100-702, Sec. 1016(c)(1), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: 'If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.' Subsec. (e). Pub. L. 100-702, Sec. 1016(c)(2), added subsec. (e). 1964 - Subsec. (d). Pub. L. 88-352, inserted exception provision. 1949 - Subsec. (c). Act May 24, 1949, Sec. 84(a), struck out former subsecs. (c) and (d), renumbered former subsec. (e) to be subsec. (c) and inserted at end of first sentence of new subsec. (c) 'and may order the payment of just costs'. Subsec. (d). Act May 24, 1949, Sec. 84(b), added subsec. (d). EXCEPTION TO SUBSECTION (D) Act Aug. 4, 1947, ch. 458, Sec. 3(c), 61 Stat. 732, provides in part that the United States shall have the right to appeal from any order of remand entered in any case removed to a United States district court pursuant to the provisions of act Apr. 12, 1926, ch. 115, 44 Stat. 239. These acts referred to herein relate to restrictions on land of the Five Civilized Tribes of Oklahoma and are set out as notes under section 355 of Title 25, Indians. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of Rules, see rule 81, Appendix to this title. CROSS REFERENCES Amendment of pleadings to show jurisdiction, see section 1653 of this title. Parties collusively joined or made, see section 1359 of this title. Stay of State court proceedings, see section 2283 of this title. ------DocID 36610 Document 472 of 1452------ -CITE- 28 USC Sec. 1448 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1448. Process after removal -STATUTE- In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 940.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 83 (Apr. 16, 1920, ch. 146, 41 Stat. 554). Words 'district court of the United States' were substituted for 'United States Court,' because only the district courts now possess jurisdiction over removed civil and criminal cases. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Application of Rules, see rule 81, Appendix to this title. CROSS REFERENCES Power of district court to bring before it proper parties, whether or not served with State court process, see section 1447 of this title. ------DocID 36611 Document 473 of 1452------ -CITE- 28 USC Sec. 1449 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1449. State court record supplied -STATUTE- Where a party is entitled to copies of the records and proceedings in any suit or prosecution in a State court, to be used in any district court of the United States, and the clerk of such State court, upon demand, and the payment or tender of the legal fees, fails to deliver certified copies, the district court may, on affidavit reciting such facts, direct such record to be supplied by affidavit or otherwise. Thereupon such proceedings, trial, and judgment may be had in such district court, and all such process awarded, as if certified copies had been filed in the district court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 940; May 24, 1949, ch. 139, Sec. 85, 63 Stat. 102.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 78 (Mar. 3, 1911, ch. 231, Sec. 35, 36 Stat. 1098). Changes were made in phraseology. 1949 ACT This section corrects a typographical error by eliminating from section 1449 of title 28, U.S.C., the words 'any attachment or sequestration of the', which had been inadvertently included, and inserting in lieu thereof the words, 'and the clerk of such State court, upon'. AMENDMENTS 1949 - Act May 24, 1949, substituted 'and the clerk of such State court, upon' for 'any attachment or sequestration of the'. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Continuation of former sections 78 and 82, see note by Advisory Committee under rule 81, Appendix to this title. CROSS REFERENCES Writs of certiorari to State courts, see section 1447 of this title. ------DocID 36612 Document 474 of 1452------ -CITE- 28 USC Sec. 1450 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1450. Attachment or sequestration; securities -STATUTE- Whenever any action is removed from a State court to a district court of the United States, any attachment or sequestration of the goods or estate of the defendant in such action in the State court shall hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the State court. All bonds, undertakings, or security given by either party in such action prior to its removal shall remain valid and effectual notwithstanding such removal. All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 940.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 79 (Mar. 3, 1911, ch. 231, Sec. 36, 36 Stat. 1098). Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Attachment or sequestration in federal court after removal, see rule 64, Appendix to this title. Continuation of section, see note by Advisory Committee under rule 81. Jury trial in removal actions, see rule 81. ------DocID 36613 Document 475 of 1452------ -CITE- 28 USC Sec. 1451 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1451. Definitions -STATUTE- For purposes of this chapter - (1) The term 'State court' includes the Superior Court of the District of Columbia. (2) The term 'State' includes the District of Columbia. -SOURCE- (Added Pub. L. 91-358, title I, Sec. 172(d)(1), July 29, 1970, 84 Stat. 591.) -MISC1- EFFECTIVE DATE Section effective first day of seventh calendar month which begins after July 29, 1970, see section 199(a) of Pub. L. 91-358, set out as an Effective Date of 1970 Amendment note under section 1257 of this title. ------DocID 36614 Document 476 of 1452------ -CITE- 28 USC Sec. 1452 -EXPCITE- TITLE 28 PART IV CHAPTER 89 -HEAD- Sec. 1452. Removal of claims related to bankruptcy cases -STATUTE- (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. (b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title. -SOURCE- (Added Pub. L. 98-353, title I, Sec. 103(a), July 10, 1984, 98 Stat. 335, and amended Pub. L. 101-650, title III, Sec. 309(c), Dec. 1, 1990, 104 Stat. 5113.) -MISC1- AMENDMENTS 1990 - Subsec. (b). Pub. L. 101-650 inserted before period at end 'by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title'. EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as a note under section 151 of this title. ------DocID 36615 Document 477 of 1452------ -CITE- 28 USC (CHAPTER 90 -EXPCITE- TITLE 28 PART IV (CHAPTER 90 -HEAD- (CHAPTER 90 - OMITTED) -COD- CODIFICATION Chapter 90, consisting of sections 1471 to 1482, which was added by Pub. L. 95-598, title II, Sec. 241(a), Nov. 6, 1978, 92 Stat. 2668, and which related to district courts and bankruptcy courts, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -MISC3- TRANSITION TO NEW COURT SYSTEM Pub. L. 95-598, title IV, Sec. 409, Nov. 6, 1978, 92 Stat. 2687, as amended by Pub. L. 98-249, Sec. 1(d), Mar. 31, 1984, 98 Stat. 116; Pub. L. 98-271, Sec. 1(d), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98-299, Sec. 1(d), May 25, 1984, 98 Stat. 214; Pub. L. 98-325, Sec. 1(d), June 20, 1984, 98 Stat. 268; Pub. L. 98-353, title I, Sec. 121(d), July 10, 1984, 98 Stat. 346, which provided for transfer to the new court system of cases, and matters and proceedings in cases, under the Bankruptcy Act (former Title 11) pending at the end of Sept. 30, 1983, in the courts of bankruptcy continued under section 404(a) of Pub. L. 95-598, with certain exceptions, and cases and proceedings arising under or related to cases under Title 11 pending at the end of July 9, 1984, and directed that civil actions pending on July 9, 1984, over which a bankruptcy court had jurisdiction on July 9, 1984, not abate, but continuation of such actions not finally determined before Apr. 1, 1985, be removed to a bankruptcy court under this chapter, and that all law books, publications, etc., furnished bankruptcy judges as of July 9, 1984, be transferred to the United States bankruptcy courts under the supervision of the Director of the Administrative Office of the United States Courts, was repealed by Pub. L. 98-353, title I, Sec. 122(a), July 10, 1984, 98 Stat. 343, 346, eff. July 10, 1984. ------DocID 36616 Document 478 of 1452------ -CITE- 28 USC CHAPTER 91 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- CHAPTER 91 - UNITED STATES CLAIMS COURT -MISC1- Sec. 1491. Claims against United States generally; actions involving Tennessee Valley Authority. 1492. Congressional reference cases. (1493. Repealed.) 1494. Accounts of officers, agents or contractors. 1495. Damages for unjust conviction and imprisonment; claim against United States. 1496. Disbursing officers' claims. 1497. Oyster growers' damages from dredging operations. 1498. Patent and copyright cases. 1499. Liquidated damages withheld from contractors under Contract Work Hours and Safety Standards Act. 1500. Pendency of claims in other courts. 1501. Pensions. 1502. Treaty cases. 1503. Set-offs. (1504. Repealed.) 1505. Indian claims. (1506. Repealed.) 1507. Jurisdiction for certain declaratory judgments. 1508. Jurisdiction for certain partnership proceedings. 1509. No jurisdiction in cases involving refunds of tax shelter promoter and understatement penalties. HISTORICAL AND REVISION NOTES 1949 ACT This section inserts in the analysis of chapter 91 of title 28, U.S.C., item 1505, corresponding to new section 1505. AMENDMENTS 1984 - Pub. L. 98-369, div. A, title VII, Sec. 714(g)(3), July 18, 1984, 98 Stat. 962, added item 1509. 1982 - Pub. L. 97-248, title IV, Sec. 402(c)(18)(B), Sept. 3, 1982, 96 Stat. 669, added item 1508. Pub. L. 97-164, title I, Sec. 133(e)(2)(B), (f), (h), (j)(2), Apr. 2, 1982, 96 Stat. 41, substituted 'UNITED STATES CLAIMS COURT' for 'COURT OF CLAIMS' in chapter heading, substituted 'Liquidated damages withheld from contractors under Contract Work Hours and Safety Standards Act' for 'Penalties imposed against contractors under eight hour law' in item 1499, and struck out items 1504 'Tort Claims' and 1506 'Transfer to cure defect of jurisdiction'. 1976 - Pub. L. 94-455, title XIII, Sec. 1306(b)(9)(B), Oct. 4, 1976, 90 Stat. 1720, added item 1507. 1960 - Pub. L. 86-770, Sec. 2(b), Sept. 13, 1960, 74 Stat. 912, added item 1506. Pub. L. 86-726, Sec. 4, Sept. 8, 1960, 74 Stat. 856, substituted 'Patent and copyright cases' for 'Patent cases' in item 1498. 1954 - Act Sept. 3, 1954, ch. 1263, Sec. 43, 68 Stat. 1241, inserted '; actions involving Tennessee Valley Authority' in item 1491 and struck out item 1493 'Departmental reference cases'. 1949 - Act May 24, 1949, ch. 139, Sec. 86, 63 Stat. 102, added item 1505. -CROSS- RULES OF THE UNITED STATES CLAIMS COURT See Appendix to this title. CROSS REFERENCES District courts, concurrent jurisdiction of actions or claims not exceeding $10,000, see section 1346 of this title. Organization of Claims Court, see section 171 et seq. of this title. Procedure in Claims Court, see section 2501 et seq. of this title. ------DocID 36617 Document 479 of 1452------ -CITE- 28 USC Sec. 1491 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1491. Claims against United States generally; actions involving Tennessee Valley Authority -STATUTE- (a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. (2) To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just. The Claims Court shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978. (3) To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercising this jurisdiction, the court shall give due regard to the interests of national defense and national security. (b) Nothing herein shall be construed to give the United States Claims Court jurisdiction of any civil action within the exclusive jurisdiction of the Court of International Trade, or of any action against, or founded on conduct of, the Tennessee Valley Authority, or to amend or modify the provisions of the Tennessee Valley Authority Act of 1933 with respect to actions by or against the Authority. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 940; July 28, 1953, ch. 253, Sec. 7, 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 44(a), (b), 68 Stat. 1241; July 23, 1970, Pub. L. 91-350, Sec. 1(b), 84 Stat. 449; Aug. 29, 1972, Pub. L. 92-415, Sec. 1, 86 Stat. 652; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(i), 92 Stat. 2391; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 509, 94 Stat. 1743; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(a), 96 Stat. 39.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250(1) (Mar. 3, 1911, ch. 231; Sec. 145, 36 Stat. 1136). District courts are given concurrent jurisdiction of certain claims against the United States under section 1346 of this title. (See also reviser's note under that section and section 1621 of this title relating to jurisdiction of the Tax Court.) The proviso in section 250(1) of title 28, U.S.C., 1940 ed., relating to claims growing out of the Civil War, commonly known as 'war claims,' and other claims which had been reported adversely before March 3, 1887 by any court, department, or commission authorized to determine them, were omitted as obsolete. The exception in section 250(1) of title 28, U.S.C., 1940 ed., as to pension claims appears in section 1501 of this title. Words 'in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable' were omitted as unnecessary since the Court of Claims manifestly, under this section will determine whether a petition against the United States states a cause of action. In any event, the Court of Claims has no admiralty jurisdiction, but the Suits in Admiralty Act, sections 741-752 of title 46, U.S.C., 1940 ed., Shipping, vests exclusive jurisdiction over suits in admiralty against the United States in the district courts. Sanday & Co. v. U.S., 1932, 76 Ct.Cl. 370. For additional provisions respecting jurisdiction of the court of claims in war contract settlement cases see section 114b of Title 41, U.S.C., 1940 ed., Public Contracts. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 10(a)(1) of the Contract Disputes Act of 1978, referred to in subsec. (a)(2), is classified to section 609(a)(1) of Title 41, Public Contracts. The Tennessee Valley Authority Act of 1933, referred to in subsec. (b), is act May 18, 1933, ch. 32, 48 Stat. 58, as amended, which is classified generally to chapter 12A (Sec. 831 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see section 831 of Title 16 and Tables. -MISC2- AMENDMENTS 1982 - Subsec. (a)(1). Pub. L. 97-164 designated first two sentences of existing first undesignated paragraph as subsec. (a)(1) and substituted 'United States Claims Court' for 'Court of Claims'. Subsec. (a)(2). Pub. L. 97-164 designated third, fourth, and fifth sentences of existing first undesignated paragraph as par. (2) and substituted 'The Claims Court' for 'The Court of Claims' and 'arising under section 10(a)(1) of the Contract Disputes Act of 1978' for 'arising under the Contract Disputes Act of 1978'. Subsec. (a)(3). Pub. L. 97-164 added par. (3). Subsec. (b). Pub. L. 97-164 designated existing second undesignated paragraph as subsec. (b) and substituted 'United States Claims Court' for 'Court of Claims', 'conduct of, the Tennessee Valley Authority, or' for 'actions of, the Tennessee Valley Authority, nor', 'Tennessee Valley Authority Act of 1933' for 'Tennessee Valley Authority Act of 1933, as amended,', and 'actions by or against the Authority' for 'suits by or against the Authority'. 1980 - Pub. L. 96-417 substituted 'Court of Claims of any civil action within the exclusive jurisdiction of the Court of International Trade, or of any action' for 'in suits' in second par. 1978 - Pub. L. 95-563 provided that the Court of Claims would have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under the Contract Disputes Act of 1978. 1972 - Pub. L. 92-415 inserted provisions authorizing the court to issue orders directing restoration to office or position, placement in appropriate duty or retirement status and correction of applicable records and to issue such orders to any United States official and to remand appropriate matters to administrative and executive bodies with proper directions. 1970 - Pub. L. 91-350 specified that the term 'express or implied contracts with the United States' includes express or implied contracts with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration. 1954 - Act Sept. 3, 1954, inserted '; actions involving Tennessee Valley Authority' in section catchline and altered the form of first par. to spell out the general jurisdiction of the Court in paragraph form rather than as clauses of the par. 1953 - Act July 28, 1953, substituted 'United States Court of Claims' for 'Court of Claims' near beginning of section, and inserted last par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. EFFECTIVE DATE OF 1972 AMENDMENT Section 2 of Pub. L. 92-415 provided that: 'This Act (amending this section) shall be applicable to all judicial proceedings pending on or instituted after the date of its enactment (Aug. 29, 1972).' EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-350 applicable to claims and civil actions dismissed before or pending on July 23, 1970, if the claim or civil action was based upon a transaction, omission, or breach that occurred not more than six years prior to July 23, 1970, notwithstanding a determination or judgment made prior to July 23, 1970, that the United States district courts or the United States Court of Claims did not have jurisdiction to entertain a suit on an express or implied contract with a nonappropriated fund instrumentality of the United States, see section 2 of Pub. L. 91-350, set out as a note under section 1346 of this title. -CROSS- RULES OF THE UNITED STATES CLAIMS COURT See Appendix to this title. CROSS REFERENCES Admiralty suits against United States, jurisdiction of district courts, see sections 741 et seq. and 781 et seq. of Title 46, Appendix, Shipping. Costs, where United States is party, see section 2412 of this title. District courts, concurrent jurisdiction of actions or claims not exceeding $10,000, see section 1346 of this title. Limitation of actions, see section 2501 of this title. Procedure in Claims Court, see section 2501 et seq. of this title. Railroads, government-aided, action to recover freight withheld, see section 87 of Title 45, Railroads. Tax Court jurisdiction, see section 7441 et seq. of Title 26, Internal Revenue Code. Tennessee Valley Authority, use of patents by, see section 831r of Title 16, Conservation. War contracts, jurisdiction and procedure to enforce termination claim, see sections 113, 114 of Title 41, Public Contracts. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2409a of this title; title 12 section 216b; title 20 section 1132f; title 25 sections 1300i-11, 3001; title 41 sections 114, 602; title 42 section 4654; title 45 section 1018; title 46 App. section 1242; title 47 section 606. ------DocID 36618 Document 480 of 1452------ -CITE- 28 USC Sec. 1492 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1492. Congressional reference cases -STATUTE- Any bill, except a bill for a pension, may be referred by either House of Congress to the chief judge of the United States Claims Court for a report in conformity with section 2509 of this title. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; Oct. 15, 1966, Pub. L. 89-681, Sec. 1, 80 Stat. 958; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(b), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 257 (Mar. 3, 1911, ch. 231, Sec. 151, 36 Stat. 1138). This section contains only the jurisdictional provision of section 257 of title 28, U.S.C., 1940 ed. The procedural provisions are incorporated in section 2509 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'chief judge of the United States Claims Court' for 'chief commissioner of the Court of Claims'. 1966 - Pub. L. 89-681 substituted provisions allowing any bill, except a bill for a pension, to be referred by either House of Congress to the chief commissioner of the Court of Claims for a report in conformity with section 2509 of this title for provisions giving the Court of Claims jurisdiction to report to either House of Congress on any bill referred by such House, except a bill for a pension, and to render judgment if the claim against the United States represented by the referred bill was one over which the court had jurisdiction under other Acts of Congress. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2509 of this title; title 17 section 502. ------DocID 36619 Document 481 of 1452------ -CITE- 28 USC Sec. 1493 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- (Sec. 1493. Repealed. July 28, 1953, ch. 253, Sec. 8, 67 Stat. 226) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 941, authorized Court of Claims to give legal advice to heads of executive departments in matters referred to it by the heads, if Court had jurisdiction over the matters. ------DocID 36620 Document 482 of 1452------ -CITE- 28 USC Sec. 1494 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1494. Accounts of officers, agents or contractors -STATUTE- The United States Claims Court shall have jurisdiction to determine the amount, if any, due to or from the United States by reason of any unsettled account of any officer or agent of, or contractor with, the United States, or a guarantor, surety or personal representative of any such officer, agent or contractor, and to render judgment thereof, (FOOTNOTE 1) where - (FOOTNOTE 1) So in original. Probably should be 'thereon,'. (1) claimant or the person he represents has applied to the proper department of the Government for settlement of the account; (2) three years have elapsed from the date of such application without settlement; and (3) no suit upon the same has been brought by the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; July 28, 1953, ch. 253, Sec. 9, 67 Stat. 226; Sept. 3, 1954, ch. 1263, Sec. 44(c), 68 Stat. 1242; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(c)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 287 (Mar. 3, 1911, ch. 231, Sec. 180, 36 Stat. 1141; Feb. 13, 1925, ch. 229, Sec. 3, 43 Stat. 939). Only the jurisdictional provisions of section 287 of title 28, U.S.C., 1940 ed., are contained in this section. The procedural provisions are incorporated in section 2511 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1954 - Act Sept. 3, 1954, struck out 'United States' from name of Court of Claims. 1953 - Act July 28, 1953, substituted 'United States Court of Claims' for 'Court of Claims', inserted 'to or from' after 'due', and inserted 'and to render judgment thereon,'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Procedure on accounts of officers, agents, or contractors, see section 2511 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2511 of this title. ------DocID 36621 Document 483 of 1452------ -CITE- 28 USC Sec. 1495 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1495. Damages for unjust conviction and imprisonment; claim against United States -STATUTE- The United States Claims Court shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(c)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 729 of title 18, U.S.C., 1940 ed., Crimes and Criminal Procedure (May 24, 1938, ch. 266, Sec. 1-4, 52 Stat. 438). Only the jurisdictional provision of section 729 of title 18, U.S.C., 1940 ed., appears in this section. The remainder is incorporated in section 2513 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Procedure on claims for damages for unjust conviction and imprisonment, see section 2513 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2513 of this title. ------DocID 36622 Document 484 of 1452------ -CITE- 28 USC Sec. 1496 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1496. Disbursing officers' claims -STATUTE- The United States Claims Court shall have jurisdiction to render judgment upon any claim by a disbursing officer of the United States or by his administrator or executor for relief from responsibility for loss, in line of duty, of Government funds, vouchers, records or other papers in his charge. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(c)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250(3) (Mar. 3, 1911, ch. 231, Sec. 145, 36 Stat. 1136; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Words 'paymaster, quartermaster, commissary of subsistence, or other,' preceding 'disbursing officer of the United States,' were omitted. See Henderson v. United States, 1907, 42 Ct.Cl. 449 and Hobbs v. United States, 1881, 17 Ct.Cl. 189, holding that the term 'other disbursing officer' extends to any disbursing officer of the executive departments of the Government. Words 'by capture or otherwise' were omitted as surplusage. Words 'and for which such officer was and is held responsible,' at the end of section 250(3) of title 28, U.S.C., 1940 ed., were omitted as surplusage. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Allowance of credit in settlement of disbursing officers' accounts, see section 2512 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 section 114. ------DocID 36623 Document 485 of 1452------ -CITE- 28 USC Sec. 1497 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1497. Oyster growers' damages from dredging operations -STATUTE- The United States Claims Court shall have jurisdiction to render judgment upon any claim for damages to oyster growers on private or leased lands or bottoms arising from dredging operations or use of other machinery and equipment in making river and harbor improvements authorized by Act of Congress. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(c), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250a (Aug. 30, 1935, ch. 831, Sec. 13, 49 Stat. 1049; July 13, 1943, ch. 231, 57 Stat. 553). The proviso at the end of section 250a of title 28, U.S.C., 1940 ed., is incorporated in section 2501 of this title. Words 'river and harbor improvements' were substituted for 'such improvements', in view of Dixon v. U.S., 103 Ct. Cl. 160, holding that words, 'such improvements' were not limited to the specific improvements listed in the 1935 act, but applied to any river and harbor improvements. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'growers' ' for 'growers,' in section catchline, and 'United States Claims Court' for 'Court of Claims' in text. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Time for filing petition by oyster growers, see section 2501 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2501 of this title. ------DocID 36624 Document 486 of 1452------ -CITE- 28 USC Sec. 1498 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1498. Patent and copyright cases -STATUTE- (a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the United States Claims Court for the recovery of his reasonable and entire compensation for such use and manufacture. For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. The court shall not award compensation under this section if the claim is based on the use or manufacture by or for the United States of any article owned, leased, used by, or in the possession of the United States prior to July 1, 1918. A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the invention by the Government. This section shall not confer a right of action on any patentee or any assignee of such patentee with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used. (b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive remedy of the owner of such copyright shall be by action against the United States in the Claims Court for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date. (c) The provisions of this section shall not apply to any claim arising in a foreign country. (d) Hereafter, whenever a plant variety protected by a certificate of plant variety protection under the laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government, and with the authorization and consent of the Government, the exclusive remedy of the owner of such certificate shall be by action against the United States in the Claims Court for the recovery of his reasonable and entire compensation as damages for such infringement: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the protected plant variety by the Government: Provided, however, That this subsection shall not confer a right of action on any certificate owner or any assignee of such owner with respect to any protected plant variety made by a person while in the employment or service of the United States, where such variety was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted, the appropriate corporation owned or controlled by the United States or the head of the appropriate agency of the Government, as the case may be, is authorized to enter into an agreement with the certificate owner in full settlement and compromise, for the damages accrued to him by reason of such infringement and to settle the claim administratively out of available appropriations. (e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 941; May 24, 1949, ch. 139, Sec. 87, 63 Stat. 102; Oct. 31, 1951, ch. 655, Sec. 50(c), 65 Stat. 727; July 17, 1952, ch. 930, 66 Stat. 757; Sept. 8, 1960, Pub. L. 86-726, Sec. 1, 4, 74 Stat. 855, 856; Dec. 24, 1970, Pub. L. 91-577, title III, Sec. 143(d), 84 Stat. 1559; Oct. 19, 1976, Pub. L. 94-553, title I, Sec. 105(c), 90 Stat. 2599; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(d), 96 Stat. 40; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1020(a)(6), 102 Stat. 4671.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on section 68 of title 35, U.S.C., 1940 ed., Patents (June 25, 1910, ch. 423, 36 Stat. 851; July 1, 1918, ch. 114, 40 Stat. 705). Provisions contained in the second proviso of section 68 of title 35, U.S.C., 1940 ed., relating to right of the United States to any general or special defense available to defendants in patent infringement suits were omitted as unnecessary. In the absence of statutory restriction, any defense available to a private party is equally available to the United States. Changes in phraseology were made. 1949 ACT This amendment clarifies section 1498 of title 28, U.S.C., by restating its first paragraph to conform more closely with the original law. -REFTEXT- REFERENCES IN TEXT Hereafter, referred to in subsec. (b), probably means the date of enactment of Pub. L. 86-726, which was approved on Sept. 8, 1960. The copyright laws of the United States, referred to in subsec. (b), are classified generally to Title 17, Copyrights. Hereafter, referred to in subsec. (d), probably means after the date of enactment of Pub. L. 91-577, which was approved on Dec. 24, 1970. -MISC2- AMENDMENTS 1988 - Subsec. (e). Pub. L. 100-702 added subsec. (e). 1982 - Subsec. (a). Pub. L. 97-168, Sec. 133(d)(1), substituted 'United States Claims Court' for 'Court of Claims'. Subsecs. (b), (d). Pub. L. 97-164, Sec. 133(d)(2), substituted 'Claims Court' for 'Court of Claims'. 1976 - Subsec. (b). Pub. L. 94-553 substituted 'section 504(c) of title 17' for 'section 101(b) of title 17'. 1970 - Subsec. (d). Pub. L. 91-577 added subsec. (d). 1960 - Pub. L. 86-726, Sec. 4, substituted 'Patent and copyright cases' for 'Patent cases' in section catchline. Pub. L. 86-726, Sec. 1, designated existing provisions as subsec. (a) and added subsecs. (b) and (c). 1952 - Act July 17, 1952, allowed Government employees to maintain patent suits against the United States in certain instances. 1951 - Act Oct. 31, 1951, inserted second par. 1949 - Act May 29, 1949, conformed first par. of section to original law. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-553 effective Jan. 1, 1978, see section 102 of Pub. L. 94-553, set out as an Effective Date note preceding section 101 of Title 17, Copyrights. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-577 effective Dec. 24, 1970, see section 141 of Pub. L. 91-577, set out as an Effective Date note under section 2321 of Title 7, Agriculture. WAIVER OF IMMUNITY FOR MEMBERS OF CONGRESS Section 2 of Pub. L. 86-726 provided that: 'Nothing in this Act (amending this section and section 2386 of Title 10, Armed Forces) shall be construed to in any way waive any immunity provided for Members of Congress under article I of section 6 of the Constitution of the United States.' -CROSS- CROSS REFERENCES Actions for unauthorized use of patents or disclosure of information, see section 2356 of Title 22, Foreign Relations and Intercourse. Government interests in patents, see section 267 of Title 35, Patents. Patented inventions incorporated in space vehicles launched by United States Government for other persons not considered use or manufacture by or for United States within subsec. (a) of this section, see section 2457(l) of Title 42, The Public Health and Welfare. Use of patents by Tennessee Valley Authority, see section 831r of Title 16, Conservation. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 17 section 502; title 19 section 1337; title 22 section 2356; title 35 section 183; title 42 section 2457. ------DocID 36625 Document 487 of 1452------ -CITE- 28 USC Sec. 1499 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1499. Liquidated damages withheld from contractors under Contract Work Hours and Safety Standards Act -STATUTE- The United States Claims Court shall have jurisdiction to render judgment upon any claim for liquidated damages withheld from a contractor or subcontractor under section 104 of the Contract Work Hours and Safety Standards Act. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 942; Aug. 13, 1962, Pub. L. 87-581, title II, Sec. 202(a), 76 Stat. 360; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(e)(1), (2)(A), 96 Stat. 40, 41; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 325(b)(7), 104 Stat. 5121.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 324 of title 40, U.S.C., 1940 ed., Public Buildings, Property and Works (June 19, 1912, ch. 174, Sec. 1, 37 Stat. 137). This section contains only the jurisdictional provision in the last clause of section 324 of title 40, U.S.C., 1940 ed. Changes in phraseology were made. -REFTEXT- REFERENCES IN TEXT Contract Work Hours and Safety Standards Act, referred to in section catchline and text, is title I of Pub. L. 87-581, Aug. 13, 1962, 76 Stat. 357, as amended, which is classified generally to subchapter II (Sec. 327 et seq.) of chapter 5 of Title 40, Public Buildings, Property, and Works. Section 104 of the Act is classified to section 330 of Title 40. For complete classification of this Act to the Code, see Short Title note set out under section 327 of Title 40 and Tables. -MISC2- AMENDMENTS 1990 - Pub. L. 101-650 substituted 'Hours and Safety Standards' for 'Hours Standards' in text. 1982 - Pub. L. 97-164 substituted 'Contract Work Hours and Safety Standards Act' for 'Contract Work Hours Standards Act' in section catchline and 'United States Claims Court' for 'Court of Claims' in text. 1962 - Pub. L. 87-581 amended section generally, substituting 'Liquidated damages withheld from contractors under Contract Work Hours Standards Act' for 'Penalties imposed against contractors under eight hour law' in section catchline, and 'liquidated damages withheld from a contractor or subcontractor under section 104 of the Contract Work Hours Standards Act' for 'a penalty withheld from a contractor or subcontractor under section 324 of Title 40' in text. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-581 effective 60 days after Aug. 13, 1962, but shall not affect contracts existing or thereafter entered into pursuant to invitations for bids outstanding on Aug. 13, 1962, see section 204 of Pub. L. 87-581, set out as an Effective Date note under section 327 of Title 40, Public Buildings, Property, and Works. CONTINUED JURISDICTION UPON CLAIMS UNDER SECTION 324 OF TITLE 40 Section 202(b) of Pub. L. 87-581 provided that: 'The Court of Claims (now United States Claims Court) shall continue to have jurisdiction to render judgment upon any claim for a penalty withheld from a contractor or subcontractor under section 324 of title 40, United States Code, in connection with any contract subject to said section existing on the effective date of this Act (see Effective Date note set out under section 327 of Title 40, Public Buildings, Property, and Works), or thereafter entered into pursuant to invitations for bids that are outstanding at the time of the enactment of this Act (Aug. 13, 1962).' -CROSS- CROSS REFERENCES Time for filing claim, see section 330 of Title 40, Public Buildings, Property, and Works. ------DocID 36626 Document 488 of 1452------ -CITE- 28 USC Sec. 1500 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1500. Pendency of claims in other courts -STATUTE- The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 942; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(e)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 260 (Mar. 3, 1911, ch. 231, Sec. 154, 36 Stat. 1138). Words 'or in the Supreme Court on appeal therefrom' were omitted as unnecessary. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36627 Document 489 of 1452------ -CITE- 28 USC Sec. 1501 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1501. Pensions -STATUTE- The United States Claims Court shall not have jurisdiction of any claim for a pension. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 942; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(e)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250(1) (Mar. 3, 1911, ch. 231, Sec. 145, 36 Stat. 1136). Section constitutes the exception in section 250(1) of title 28, U.S.C., 1940 ed. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 section 114. ------DocID 36628 Document 490 of 1452------ -CITE- 28 USC Sec. 1502 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1502. Treaty cases -STATUTE- Except as otherwise provided by Act of Congress, the United States Claims Court shall not have jurisdiction of any claim against the United States growing out of or dependent upon any treaty entered into with foreign nations. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 942; May 24, 1949, ch. 139, Sec. 88, 63 Stat. 102; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(e)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 259 (Mar. 3, 1911, ch. 231, Sec. 153, 36 Stat. 1138). Phrase 'Except as otherwise provided by enactment of Congress' was inserted to cover cases where special Acts confer jurisdiction. (See Sioux Tribe of Indians v. United States, 1943, 97 Ct.Cl. 613, certiorari denied 63 S.Ct. 992, 318 U.S. 789, 87 L.Ed. 1155, and In re United States, 1873, 17 Wall. 439, 443, 21 L.Ed. 696.) Words 'not pending therein on December 1, 1862,' were omitted as obsolete. Changes in phraseology were made. 1949 ACT This section, in amending section 1502 of title 28, U.S.C., conforms with the provisions of act of August 13, 1946 (ch. 959, Sec. 25, 60 Stat. 1056), which affected section 153 of the Judicial Code of 1911 by striking therefrom the words 'or with Indian tribes.' Such section 153 of the Judicial Code was the source of such section 1502. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1949 - Act May 24, 1949, struck out 'or with Indian tribes' after 'foreign nations'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Jurisdiction of court over Indian claims after Aug. 13, 1946, see section 1505 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7422. ------DocID 36629 Document 491 of 1452------ -CITE- 28 USC Sec. 1503 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1503. Set-offs -STATUTE- The United States Claims Court shall have jurisdiction to render judgment upon any set-off or demand by the United States against any plaintiff in such court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 942; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(e)(1), 96 Stat. 40.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250(2) (Mar. 3, 1911, ch. 231, Sec. 145, 36 Stat. 1136). The second subsection of section 250 of title 28, U.S.C., 1940 ed., is incorporated in this section. The proviso, relating to suits for fees due officers of the United States, has been incorporated in section 2501 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- RULES OF THE UNITED STATES CLAIMS COURT Counterclaims, see rule 13, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 section 114. ------DocID 36630 Document 492 of 1452------ -CITE- 28 USC Sec. 1504 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- (Sec. 1504. Repealed. Pub. L. 97-164, title I, Sec. 133(f), Apr. 2, 1982, 96 Stat. 41) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 942, directed that the Court of Claims have jurisdiction to review by appeal final judgments in the district courts in civil actions based on tort claims brought under section 1346(b) of this title if the notice of appeal filed in the district court had affixed to it a written consent on behalf of the appellees that the appeal be taken to the Court of Claims. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36631 Document 493 of 1452------ -CITE- 28 USC Sec. 1505 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1505. Indian claims -STATUTE- The United States Claims Court shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Claims Court if the claimant were not an Indian tribe, band or group. -SOURCE- (Added May 24, 1949, ch. 139, Sec. 89(a), 63 Stat. 102, and amended Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 133(g), 96 Stat. 41.) -MISC1- HISTORICAL AND REVISION NOTES 1949 ACT Section 1505 is added to title 28, U.S.C., by this amendment to incorporate the act of August 13, 1946 (ch. 959, Sec. 24, 60 Stat. 1055), which was originally classified to title 28, U.S.C., but was later transferred to title 25 of such code. Since such section 24 deals with jurisdiction of the Court of Claims it should be in title 28. This amendatory section omits as surplusage all provisions of said section 24 except the first sentence, as being fully covered by the express provisions of sections 1503 and 2501 and other provisions of chapter 165 of title 28, U.S.C., relating to Court of Claims procedure. The proviso of such section 24 is omitted as unnecessary since the provision conferring jurisdiction cannot in any view alter the relationship of the Government with its Indians. The omitted language is as follows: 'In any suit brought under the jurisdiction conferred by this section the claimant shall be entitled to recover in the same manner, to the same extent, and subject to the same conditions and limitations, and the United States shall be entitled to the same defenses, both at law and in equity, and to the same offsets, counterclaims, and demands, as in cases brought in the Court of Claims under section 250 of this title: Provided, however, That nothing contained in this section shall be construed as altering the fiduciary or other relations between the United States and the several Indian tribes, bands, or groups.' AMENDMENTS 1982 - Pub. L. 97-164 substituted 'The United States Claims Court shall have jurisdiction' for 'The Court of Claims shall have jurisdiction' and 'cognizable in the Claims Court' for 'cognizable in the Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 25 sections 640d-17, 1300i-11. ------DocID 36632 Document 494 of 1452------ -CITE- 28 USC Sec. 1506 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- (Sec. 1506. Repealed. Pub. L. 97-164, title I, Sec. 133(h), Apr. 2, 1982, 96 Stat. 41) -MISC1- Section, added Pub. L. 86-770, Sec. 2(a), Sept. 13, 1960, 74 Stat. 912, provided that if a case within the exclusive jurisdiction of the district courts was filed in the Court of Claims, the Court of Claims, if it were in the interest of justice, had to transfer such case to any district court in which it could have been brought at the time such case was filed, where the case would proceed as if it had been filed in the district court on the date it was filed in the Court of Claims. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36633 Document 495 of 1452------ -CITE- 28 USC Sec. 1507 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1507. Jurisdiction for certain declaratory judgments -STATUTE- The United States Claims Court shall have jurisdiction to hear any suit for and issue a declaratory judgment under section 7428 of the Internal Revenue Code of 1986. -SOURCE- (Added Pub. L. 94-455, title XIII, Sec. 1306(b)(9)(A), Oct. 4, 1976, 90 Stat. 1720, and amended Pub. L. 97-164, title I, Sec. 133(i), Apr. 2, 1982, 96 Stat. 41; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.) -REFTEXT- REFERENCES IN TEXT Section 7428 of the Internal Revenue Code of 1986, referred to in text, is classified to section 7428 of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE Section applicable with respect to pleadings filed with the United States Tax Court, the district court of the United States for the District of Columbia, or the United States Court of Claims more than 6 months after Oct. 4, 1976, but only with respect to determinations (or requests for determinations) made after Jan. 1, 1976, see section 1306(c) of Pub. L. 94-455, set out as a note under section 7428 of Title 26, Internal Revenue Code. ------DocID 36634 Document 496 of 1452------ -CITE- 28 USC Sec. 1508 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1508. Jurisdiction for certain partnership proceedings -STATUTE- The Claims Court shall have jurisdiction to hear and to render judgment upon any petition under section 6226 or 6228(a) of the Internal Revenue Code of 1986. -SOURCE- (Added Pub. L. 97-248, title IV, Sec. 402(c)(18)(A), Sept. 3, 1982, 96 Stat. 669, and amended Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.) -REFTEXT- REFERENCES IN TEXT Sections 6226 and 6228(a) of the Internal Revenue Code of 1986, referred to in text, are classified to sections 6226 and 6228(a) of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. EFFECTIVE DATE Section applicable to partnership taxable years beginning after Sept. 3, 1982, with provision for the applicability of this section to any partnership taxable year ending after Sept. 3, 1982, if the partnership, each partner, and each indirect partner requests such application and the Secretary of the Treasury or his delegate consents to such application, see section 407(a)(1), (3) of Pub. L. 97-248, set out as a note under section 6221 of Title 26, Internal Revenue Code. ------DocID 36635 Document 497 of 1452------ -CITE- 28 USC Sec. 1509 -EXPCITE- TITLE 28 PART IV CHAPTER 91 -HEAD- Sec. 1509. No jurisdiction in cases involving refunds of tax shelter promoter and understatement penalties -STATUTE- The United States Claims Court shall not have jurisdiction to hear any action or proceeding for any refund or credit of any penalty imposed under section 6700 of the Internal Revenue Code of 1986 (relating to penalty for promoting abusive tax shelters, etc.) or section 6701 of such Code (relating to penalties for aiding and abetting understatement of tax liability). -SOURCE- (Added Pub. L. 98-369, div. A, title VII, Sec. 714(g)(2), July 18, 1984, 98 Stat. 962, and amended Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.) -REFTEXT- REFERENCES IN TEXT Sections 6700 and 6701 of the Internal Revenue Code of 1986, referred to in text, are classified to sections 6700 and 6701, respectively, of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. EFFECTIVE DATE Section 714(g)(4) of Pub. L. 98-369 provided that: 'The amendments made by this subsection (enacting this section and amending section 7422 of Title 26, Internal Revenue Code) shall apply to any claim for refund or credit filed after the date of the enactment of this Act (July 18, 1984).' ------DocID 36636 Document 498 of 1452------ -CITE- 28 USC (CHAPTER 93 -EXPCITE- TITLE 28 PART IV (CHAPTER 93 -HEAD- (CHAPTER 93 - REPEALED) ------DocID 36637 Document 499 of 1452------ -CITE- 28 USC Sec. 1541 to 1546 -EXPCITE- TITLE 28 PART IV (CHAPTER 93 -HEAD- (Sec. 1541 to 1546. Repealed. Pub. L. 97-164, title I, Sec. 134, Apr. 2, 1982, 96 Stat. 41) -MISC1- Section 1541, acts June 25, 1948, ch. 646, 62 Stat. 942; June 2, 1970, Pub. L. 91-271, title I, Sec. 102, 84 Stat. 274; July 26, 1979, Pub. L. 96-39, title X, Sec. 1001(b)(4)(A), 93 Stat. 305; Oct. 10, 1980, Pub. L. 96-417, title IV, Sec. 401(a), title V, Sec. 501(23), (24), 94 Stat. 1740, 1742, gave the Court of Customs and Patent Appeals exclusive jurisdiction of appeals from all final decisions of the Court of International Trade and from interlocutory orders of the Court of International Trade granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions, and with discretion to entertain appeals from certain orders of the Court of International Trade. See section 1295(a)(5) of this title. Section 1542, acts June 25, 1948, ch. 646, 62 Stat. 942; May 24, 1949, ch. 139, Sec. 89(b), 63 Stat. 102, gave the Court of Customs and Patent Appeals jurisdiction of appeals from decisions of the Board of Appeals and the Board of Interference Examiners of the Patent Office as to patent applications and interferences, at the instance of an applicant for a patent or any party to a patent interference, with such appeal by an applicant to waive his right to proceed under section 63 of Title 35, and the Commissioner of Patents as to trademark applications and proceedings as provided in section 1071 of Title 15. See section 1295(a)(4) of this title. Section 1543, acts June 25, 1948, ch. 646, 62 Stat. 943; Oct. 10, 1980, Pub. L. 96-417, title IV, Sec. 401(b)(1), 94 Stat. 1740, gave the Court of Customs and Patent Appeals jurisdiction to review final determinations of the United States International Trade Commission made under section 337 of the Tariff Act of 1930 relating to unfair trade practices in import trade. See section 1295(a)(6) of this title. Section 1544, added Pub. L. 89-651, Sec. 8(c)(1), Oct. 14, 1966, 80 Stat. 901, gave the Court of Customs and Patent Appeals jurisdiction to review, by appeal on questions of law only, findings of the Secretary of Commerce under headnote 6 to schedule 8, part 4, of the Tariff Schedules of the United States (relating to importation of instruments or apparatus). See section 1295(a)(7) of this title. Section 1545, added Pub. L. 91-577, title III, Sec. 143(a), Dec. 24, 1970, 84 Stat. 1558, gave the Court of Customs and Patent Appeals nonexclusive jurisdiction of appeals under section 71 of the Plant Variety Protection Act, classified to section 2461 of Title 7, Agriculture. See section 1295(a)(8) of this title. Section 1546, added Pub. L. 96-417, title IV, Sec. 402(a), Oct. 10, 1980, 94 Stat. 1740, gave the Court of Customs and Patent Appeals all of the powers in law and in equity of, or conferred by statute upon, a court of appeals of the United States. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36638 Document 500 of 1452------ -CITE- 28 USC CHAPTER 95 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- CHAPTER 95 - COURT OF INTERNATIONAL TRADE -MISC1- Sec. 1581. Civil actions against the United States and agencies and officers thereof. 1582. Civil actions commenced by the United States. 1583. Counterclaims, cross-claims, and third-party actions. 1584. Civil actions under the United States-Canada Free-Trade Agreement. 1585. Powers in law and equity. AMENDMENTS 1988 - Pub. L. 100-449, title IV, Sec. 402(d)(2), Sept. 28, 1988, 102 Stat. 1884, added item 1584. 1982 - Pub. L. 97-164, title I, Sec. 135, Apr. 2, 1982, 96 Stat. 41, struck out item 1584 'Cure of defects'. 1980 - Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1728, substituted 'COURT OF INTERNATIONAL TRADE' for 'CUSTOMS COURT' in heading for chapter 95, 'Civil actions against the United States and agencies and officers thereof' for 'Powers generally' in item 1581, 'Civil actions commenced by the United States' for 'Jurisdiction of the Customs Court' in item 1582, and added items 1583 to 1585. -CROSS- RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE See Appendix to this title. CROSS REFERENCES Procedure in Court of International Trade, see section 2631 et seq. of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 1337 of this title. ------DocID 36639 Document 501 of 1452------ -CITE- 28 USC Sec. 1581 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- Sec. 1581. Civil actions against the United States and agencies and officers thereof -STATUTE- (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. (b) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516 of the Tariff Act of 1930. (c) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930. (d) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review - (1) any final determination of the Secretary of Labor under section 223 of the Trade Act of 1974 with respect to the eligibility of workers for adjustment assistance under such Act; (2) any final determination of the Secretary of Commerce under section 251 of the Trade Act of 1974 with respect to the eligibility of a firm for adjustment assistance under such Act; and (3) any final determination of the Secretary of Commerce under section 271 of the Trade Act of 1974 with respect to the eligibility of a community for adjustment assistance under such Act. (e) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review any final determination of the Secretary of the Treasury under section 305(b)(1) of the Trade Agreements Act of 1979. (f) The Court of International Trade shall have exclusive jurisdiction of any civil action involving an application for an order directing the administering authority or the International Trade Commission to make confidential information available under section 777(c)(2) of the Tariff Act of 1930. (g) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review - (1) any decision of the Secretary of the Treasury to deny a customs broker's license under section 641(b)(2) or (3) of the Tariff Act of 1930, or to deny a customs broker's permit under section 641(c)(1) of such Act, or to revoke a license or permit under section 641(b)(5) or (c)(2) of such Act; and (2) any decision of the Secretary of the Treasury to revoke or suspend a customs broker's license or permit, or impose a monetary penalty in lieu thereof, under section 641(d)(2)(B) of the Tariff Act of 1930. (h) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for - (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section. This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930 or by a binational panel under article 1904 of the United States-Canada Free-Trade Agreement and section 516A(g) of the Tariff Act of 1930. (j) The Court of International Trade shall not have jurisdiction of any civil action arising under section 305 of the Tariff Act of 1930. -SOURCE- (Added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1728, and amended Pub. L. 98-573, title II, Sec. 212(b)(1), Oct. 30, 1984, 98 Stat. 2983; Pub. L. 99-514, title XVIII, Sec. 1891(1), Oct. 22, 1986, 100 Stat. 2926; Pub. L. 100-449, title IV, Sec. 402(a), Sept. 28, 1988, 102 Stat. 1883.) -MISC1- PRIOR HISTORY OF COURT The United States Customs Court, the predecessor of the Court of International Trade, was omitted in the general revision of this chapter by Pub. L. 96-417. The predecessor of the United States Customs Court was the Board of General Appraisers which was created by the Customs Administrative Act of June 10, 1890. The Board was under the administrative supervision of the Secretary of the Treasury. From 1890 to 1926, the Board of General Appraisers had jurisdiction over all protests from decisions of the collectors of customs and appeals for reappraisement under sections 13 and 14 of the Customs Administrative Act of June 10, 1890, ch. 407, 26 Stat. 136. The Customs Court was established by act May 28, 1926, ch. 411, Sec. 1, 2, 44 Stat. 669, sections 405a and 405b of Title 19, Customs Duties, and said act transferred to it all the jurisdiction and powers of the former Board of General Appraisers. The Tariff Act of June 1930, ch. 497, title IV, Sec. 518, 46 Stat. 737, section 1518 of Title 19, continued the Customs Court as constituted on June 17, 1930 with, however, several important changes. -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsec. (a), is classified to section 1515 of Title 19, Customs Duties. Section 516 of the Tariff Act of 1930, referred to in subsec. (b), is classified to section 1516 of Title 19. Section 516A of the Tariff Act of 1930, referred to in subsecs. (c) and (i), is classified to section 1516a of Title 19. The Trade Act of 1974, referred to in subsec. (d)(1) to (3), is Pub. L. 93-618, Jan. 3, 1975, 88 Stat. 1978, as amended, which is classified principally to chapter 12 (Sec. 2101 et seq.) of Title 19. Sections 223, 251, and 271 of the Trade Act of 1974 are classified to sections 2273, 2341, and 2371, respectively, of Title 19. For complete classification of this Act to the Code, see References in Text note set out under section 2101 of Title 19 and Tables. Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in subsec. (e), is classified to section 2515(b)(1) of Title 19. Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec. (f), is classified to section 1677f(c)(2) of Title 19. Section 641 of the Tariff Act of 1930, referred to in subsec. (g)(1), (2), is classified to section 1641 of Title 19. Section 305 of the Tariff Act of 1930, referred to in subsec. (j), is classified to section 1305 of Title 19. -MISC2- PRIOR PROVISIONS A prior section 1581, act June 25, 1948, ch. 646, 62 Stat. 943, related to powers of the Customs Court generally and was omitted in the general revision of this chapter by Pub. L. 96-417. See section 1585 of this title. AMENDMENTS 1988 - Subsec. (i). Pub. L. 100-449 inserted at end 'This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930 or by a binational panel under article 1904 of the United States-Canada Free-Trade Agreement and section 516A(g) of the Tariff Act of 1930.' 1986 - Subsec. (g)(1). Pub. L. 99-514 substituted '(3)' for '(3) or (c)'. 1984 - Subsec. (g)(1). Pub. L. 98-573 amended par. (1) generally, substituting 'a customs broker's license under section 641(b)(2) or (3) or (c) of the Tariff Act of 1930, or to deny a customs broker's permit under section 641(c)(1) of such Act, or to revoke a license or permit under section 641(b)(5) or (c)(2) of such Act' for 'or revoke a customhouse broker's license under section 641(a) of the Tariff Act of 1930'. Subsec. (g)(2). Pub. L. 98-573 amended par. (2) generally, substituting 'any decision of the Secretary of the Treasury to revoke or suspend a customs broker's license or permit, or impose a monetary penalty in lieu thereof, under section 641(d)(2)(B) of the Tariff Act of 1930' for 'any order of the Secretary of the Treasury to revoke or suspend a customhouse broker's license under section 641(b) of the Tariff Act of 1930'. EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100-449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100-449, set out in a note under section 2112 of Title 19, Customs Duties. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. EFFECTIVE DATE Chapter effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. Subsecs. (d) and (g) to (i) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(A) of Pub. L. 96-417. -CROSS- CROSS REFERENCES Additional duties for failure to mark article or container of foreign origin, see section 1304 of Title 19, Customs Duties. Appeals - By American manufacturers, producers, or wholesalers on value of classification, see section 1516 of Title 19. Decisions of Court of International Trade, see section 1295 of this title. Procedure on appeal, see section 2631 et seq. of this title. Protests from determination of appropriate customs officer under Anti-Dumping Law, see section 1516a of Title 19, Customs Duties. Finality of decision of Court of International Trade, see section 2645 of this title. Liability of consignee for additional or increased duties, see section 1485 of Title 19, Customs Duties. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2631, 2636, 2637, 2639, 2643 of this title; title 19 section 1515. ------DocID 36640 Document 502 of 1452------ -CITE- 28 USC Sec. 1582 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- Sec. 1582. Civil actions commenced by the United States -STATUTE- The Court of International Trade shall have exclusive jurisdiction of any civil action which arises out of an import transaction and which is commenced by the United States - (1) to recover a civil penalty under section 592, 641(b)(6), 641(d)(2)(A), 704(i)(2), or 734(i)(2) of the Tariff Act of 1930; (2) to recover upon a bond relating to the importation of merchandise required by the laws of the United States or by the Secretary of the Treasury; or (3) to recover customs duties. -SOURCE- (Added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1729, and amended Pub. L. 98-573, title II, Sec. 212(b)(2), Oct. 30, 1984, 98 Stat. 2983; Pub. L. 99-514, title XVIII, Sec. 1891(2), Oct. 22, 1986, 100 Stat. 2926.) -REFTEXT- REFERENCES IN TEXT Sections 592, 641(b)(6), 641(d)(2)(A), 704(i)(2), and 734(i)(2) of the Tariff Act of 1930, referred to in par. (1), are classified to sections 1592, 1641(b)(6), 1641(d)(2)(A), 1671c(i)(2), and 1673c(i)(2), respectively, of Title 19, Customs Duties. -MISC2- PRIOR PROVISIONS A prior section 1582, acts June 25, 1948, ch. 646, 62 Stat. 943; June 2, 1970; Pub. L. 91-271, title I, Sec. 110, 84 Stat. 278; July 26, 1979, Pub. L. 96-39, title X, Sec. 1001(b)(4)(B), 93 Stat. 305, related to the jurisdiction of the Customs Court and was omitted in the general revision of this chapter by Pub. L. 96-417. AMENDMENTS 1986 - Par. (1). Pub. L. 99-514 substituted '641(b)(6)' for '641(a)(1)(C)'. 1984 - Par. (1). Pub. L. 98-573 inserted references to section 641(a)(1)(C) and 641(d)(2)(A) of the Tariff Act of 1930. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(A) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1352, 1355, 1356, 2639, 2640, 2643 of this title. ------DocID 36641 Document 503 of 1452------ -CITE- 28 USC Sec. 1583 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- Sec. 1583. Counterclaims, cross-claims, and third-party actions -STATUTE- In any civil action in the Court of International Trade, the court shall have exclusive jurisdiction to render judgment upon any counterclaim, cross-claim, or third-party action of any party, if (1) such claim or action involves the imported merchandise that is the subject matter of such civil action, or (2) such claim or action is to recover upon a bond or customs duties relating to such merchandise. -SOURCE- (Added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1729.) -MISC1- PRIOR PROVISIONS A prior section 1583, act June 25, 1948, ch. 646, 62 Stat. 943, related to certain cases of exclusive jurisdiction of the Customs Court and was repealed by Pub. L. 91-271, title I, Sec. 111, June 2, 1970, 84 Stat. 278. EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(A) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2643 of this title. ------DocID 36642 Document 504 of 1452------ -CITE- 28 USC Sec. 1584 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- Sec. 1584. Civil actions under the United States-Canada Free-Trade Agreement -STATUTE- The United States Court of International Trade shall have exclusive jurisdiction of any civil action which arises under section 777(d) of the Tariff Act of 1930 and is commenced by the United States to enforce administrative sanctions levied for violation of a protective order or an undertaking. -SOURCE- (Added Pub. L. 100-449, title IV, Sec. 402(d)(1), Sept. 28, 1988, 102 Stat. 1884.) -REFTEXT- REFERENCES IN TEXT Section 777(d) of the Tariff Act of 1930, referred to in text, is classified to section 1677f(d) of Title 19, Customs Duties. -MISC2- PRIOR PROVISIONS A prior section 1584, added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1729, which provided that if a civil action within the exclusive jurisdiction of the Court of International Trade was commenced in a district court of the United States, the district court, in the interest of justice, was to transfer such civil action to the Court of International Trade, where such action would proceed as if it had been commenced in the Court of International Trade in the first instance, and that if a civil action within the exclusive jurisdiction of a district court, a court of appeals, or the Court of Customs and Patent Appeals was commenced in the Court of International Trade, the Court of International Trade, in the interest of justice, would transfer such civil action to the appropriate district court or court of appeals or to the Court of Customs and Patent Appeals where such action was to proceed as if it had been commenced in such court in the first instance, was repealed by Pub. L. 97-164, title I, Sec. 135, Apr. 2, 1982, 96 Stat. 41, effective Oct. 1, 1982. EFFECTIVE AND TERMINATION DATES Section effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100-449, set out in a note under section 2112 of Title 19, Customs Duties. ------DocID 36643 Document 505 of 1452------ -CITE- 28 USC Sec. 1585 -EXPCITE- TITLE 28 PART IV CHAPTER 95 -HEAD- Sec. 1585. Powers in law and equity -STATUTE- The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States. -SOURCE- (Added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1730.) -CROSS- CROSS REFERENCES Power of court to issue writs, see section 1651 of this title. Protests from determinations of appropriate customs officer under Anti-Dumping Law, jurisdiction of Court of International Trade, see section 1516a of Title 19, Customs Duties. Punishment for contempt, see section 401 of Title 18, Crimes and Criminal Procedure. ------DocID 36644 Document 506 of 1452------ -CITE- 28 USC CHAPTER 97 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -MISC1- Sec. 1602. Findings and declaration of purpose. 1603. Definitions. 1604. Immunity of a foreign state from jurisdiction. 1605. General exceptions to the jurisdictional immunity of a foreign state. 1606. Extent of liability. 1607. Counterclaims. 1608. Service; time to answer default. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 1609. Immunity from attachment and execution of property of a foreign state. 1610. Exceptions to the immunity from attachment or execution. 1611. Certain types of property immune from execution. ------DocID 36645 Document 507 of 1452------ -CITE- 28 USC Sec. 1602 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1602. Findings and declaration of purpose -STATUTE- The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -MISC1- EFFECTIVE DATE Section 8 of Pub. L. 94-583 provided that: 'This Act (enacting this chapter and section 1330 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title) shall take effect ninety days after the date of its enactment (Oct. 21, 1976).' SHORT TITLE For short title of Pub. L. 94-583 as the 'Foreign Sovereign Immunities Act of 1976', see section 1 of Pub. L. 94-583, set out as a Short Title of 1976 Amendments note under section 1 of this title. SEPARABILITY Section 7 of Pub. L. 94-583 provided that: 'If any provision of this Act (enacting this chapter and section 1330 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title) or the application thereof to any foreign state is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.' ------DocID 36646 Document 508 of 1452------ -CITE- 28 USC Sec. 1603 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1603. Definitions -STATUTE- For purposes of this chapter - (a) A 'foreign state', except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An 'agency or instrumentality of a foreign state' means any entity - (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (d) of this title, nor created under the laws of any third country. (c) The 'United States' includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. (d) A 'commercial activity' means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. (e) A 'commercial activity carried on in the United States by a foreign state' means commercial activity carried on by such state and having substantial contact with the United States. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1332, 1391, 1441, 1610 of this title; title 15 section 15. ------DocID 36647 Document 509 of 1452------ -CITE- 28 USC Sec. 1604 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1604. Immunity of a foreign state from jurisdiction -STATUTE- Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -REFTEXT- REFERENCES IN TEXT The time of enactment of this Act, referred to in text, probably means the time of enactment of Pub. L. 94-583, which was approved Oct. 21, 1976. ------DocID 36648 Document 510 of 1452------ -CITE- 28 USC Sec. 1605 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1605. General exceptions to the jurisdictional immunity of a foreign state -STATUTE- (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case - (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to - (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; or (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable. (b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That - (1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and (2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state's interest. (c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may include costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as provided in this section. (d) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46 U.S.C. 911 and following). Such action shall be brought, heard, and determined in accordance with the provisions of that Act and in accordance with the principles of law and rules of practice of suits in rem, whenever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892, and amended Pub. L. 100-640, Sec. 1, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669, Sec. 2, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III, Sec. 325(b)(8), Dec. 1, 1990, 104 Stat. 5121.) -REFTEXT- REFERENCES IN TEXT The Ship Mortgage Act, 1920, referred to in subsec. (d), is section 30 of act June 5, 1920, ch. 250, 41 Stat. 1000, as amended, which was classified generally to chapter 25 (Sec. 911 et seq.) of former Title 46, Shipping, and was repealed by Pub. L. 100-710, title I, Sec. 106(b)(2), Nov. 23, 1988, 102 Stat. 4752, and reenacted by section 102(c) thereof as chapters 301 and 313 of Title 46, Shipping. -MISC2- AMENDMENTS 1990 - Subsec. (a)(6). Pub. L. 101-650 substituted 'state' for 'State' after 'foreign'. 1988 - Subsec. (a)(6). Pub. L. 100-669 added par. (6). Subsec. (b). Pub. L. 100-702, Sec. 1(3), struck out at end 'Whenever notice is delivered under subsection (b)(1) of this section, the maritime lien shall thereafter be deemed to be an in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose, such value to be determined as of the time notice is served under subsection (b)(1) of this section.' Subsec. (b)(1). Pub. L. 100-640, Sec. 1(1), substituted 'and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved' for 'but such notice shall not be deemed to have been delivered, nor may it thereafter be delivered, if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit - unless the party was unaware that the vessel or cargo of a foreign state was involved, in which event the service of process of arrest shall be deemed to constitute valid delivery of such notice'. Subsec. (b)(2). Pub. L. 100-640, Sec. 1(2), substituted 'paragraph (1) of this subsection' for 'subsection (b)(1) of this section'. Subsecs. (c), (d). Pub. L. 100-702, Sec. 1(3), added subsecs. (c) and (d). EFFECTIVE DATE OF 1988 AMENDMENT Section 3 of Pub. L. 100-640 provided that: 'The amendments made by this Act (amending this section and section 1610 of this title) shall apply to actions commenced on or after the date of the enactment of this Act (Nov. 9, 1988).' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1391, 1604, 1606, 1607, 1610 of this title; title 15 section 15. ------DocID 36649 Document 511 of 1452------ -CITE- 28 USC Sec. 1606 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1606. Extent of liability -STATUTE- As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2894.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1604 of this title. ------DocID 36650 Document 512 of 1452------ -CITE- 28 USC Sec. 1607 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1607. Counterclaims -STATUTE- In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim - (a) for which a foreign state would not be entitled to immunity under section 1605 of this chapter had such claim been brought in a separate action against the foreign state; or (b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or (c) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2894.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1604, 1605, 1606 of this title. ------DocID 36651 Document 513 of 1452------ -CITE- 28 USC Sec. 1608 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1608. Service; time to answer; default -STATUTE- (a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or (2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or (4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services - and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted. As used in this subsection, a 'notice of suit' shall mean a notice addressed to a foreign state and in a form prescribed by the Secretary of State by regulation. (b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or (2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state - (A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or (B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or (C) as directed by order of the court consistent with the law of the place where service is to be made. (c) Service shall be deemed to have been made - (1) in the case of service under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic note; and (2) in any other case under this section, as of the date of receipt indicated in the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed. (d) In any action brought in a court of the United States or of a State, a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state shall serve an answer or other responsive pleading to the complaint within sixty days after service has been made under this section. (e) No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2894.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1603, 1605, 1610 of this title. ------DocID 36652 Document 514 of 1452------ -CITE- 28 USC Sec. 1609 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1609. Immunity from attachment and execution of property of a foreign state -STATUTE- Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2895.) -REFTEXT- REFERENCES IN TEXT The time of enactment of this Act, referred to in text, probably means the time of enactment of Pub. L. 94-583, which was approved Oct. 21, 1976. ------DocID 36653 Document 515 of 1452------ -CITE- 28 USC Sec. 1610 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1610. Exceptions to the immunity from attachment or execution -STATUTE- (a) The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if - (1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, or (2) the property is or was used for the commercial activity upon which the claim is based, or (3) the execution relates to a judgment establishing rights in property which has been taken in violation of international law or which has been exchanged for property taken in violation of international law, or (4) the execution relates to a judgment establishing rights in property - (A) which is acquired by succession or gift, or (B) which is immovable and situated in the United States: Provided, That such property is not used for purposes of maintaining a diplomatic or consular mission or the residence of the Chief of such mission, or (5) the property consists of any contractual obligation or any proceeds from such a contractual obligation to indemnify or hold harmless the foreign state or its employees under a policy of automobile or other liability or casualty insurance covering the claim which merged into the judgment, or (6) the judgment is based on an order confirming an arbitral award rendered against the foreign state, provided that attachment in aid of execution, or execution, would not be inconsistent with any provision in the arbitral agreement. (b) In addition to subsection (a), any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if - (1) the agency or instrumentality has waived its immunity from attachment in aid of execution or from execution either explicitly or implicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport to effect except in accordance with the terms of the waiver, or (2) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605(a)(2), (3), or (5), or 1605(b) of this chapter, regardless of whether the property is or was used for the activity upon which the claim is based. (c) No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter. (d) The property of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment prior to the entry of judgment in any action brought in a court of the United States or of a State, or prior to the elapse of the period of time provided in subsection (c) of this section, if - (1) the foreign state has explicitly waived its immunity from attachment prior to judgment, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and (2) the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction. (e) The vessels of a foreign state shall not be immune from arrest in rem, interlocutory sale, and execution in actions brought to foreclose a preferred mortgage as provided in section 1605(d). -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2896, and amended Pub. L. 100-640, Sec. 2, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669, Sec. 3, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III, Sec. 325(b)(9), Dec. 1, 1990, 104 Stat. 5121.) -REFTEXT- REFERENCES IN TEXT The effective date of this Act, referred to in subsecs. (a) and (b), is 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94-583, set out as an Effective Date note under section 1602 of this title. -MISC2- AMENDMENTS 1990 - Subsecs. (a)(6), (e). Pub. L. 101-650 substituted 'state' for 'State' after 'foreign'. 1988 - Subsec. (a)(6). Pub. L. 100-669 added par. (6). Subsec. (e). Pub. L. 100-640 added subsec. (e). EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-640 applicable to actions commenced on or after Nov. 9, 1988, see section 3 of Pub. L. 100-640, set out as a note under section 1605 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1609, 1611 of this title. ------DocID 36654 Document 516 of 1452------ -CITE- 28 USC Sec. 1611 -EXPCITE- TITLE 28 PART IV CHAPTER 97 -HEAD- Sec. 1611. Certain types of property immune from execution -STATUTE- (a) Notwithstanding the provisions of section 1610 of this chapter, the property of those organizations designated by the President as being entitled to enjoy the privileges, exemptions, and immunities provided by the International Organizations Immunities Act shall not be subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the States. (b) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution, if - (1) the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or from execution, notwithstanding any withdrawal of the waiver which the bank, authority or government may purport to effect except in accordance with the terms of the waiver; or (2) the property is, or is intended to be, used in connection with a military activity and (A) is of a military character, or (B) is under the control of a military authority or defense agency. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2897.) -REFTEXT- REFERENCES IN TEXT The International Organizations Immunities Act, referred to in subsec. (a), is title I of act Dec. 29, 1945, ch. 652, 59 Stat. 669, as amended, which is classified principally to subchapter XVIII (Sec. 288 et seq.) of chapter 7 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 288 of Title 22 and Tables. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1609 of this title. ------DocID 36655 Document 517 of 1452------ -CITE- 28 USC CHAPTER 99 -EXPCITE- TITLE 28 PART IV CHAPTER 99 -HEAD- CHAPTER 99 - GENERAL PROVISIONS -MISC1- Sec. 1631. Transfer to cure want of jurisdiction. ------DocID 36656 Document 518 of 1452------ -CITE- 28 USC Sec. 1631 -EXPCITE- TITLE 28 PART IV CHAPTER 99 -HEAD- Sec. 1631. Transfer to cure want of jurisdiction -STATUTE- Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. -SOURCE- (Added Pub. L. 97-164, title III, Sec. 301(a), Apr. 2, 1982, 96 Stat. 55.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1292 of this title. ------DocID 36657 Document 519 of 1452------ -CITE- 28 USC PART V -EXPCITE- TITLE 28 PART V -HEAD- PART V - PROCEDURE -MISC1- Chap. Sec. 111. General Provisions 1651 113. Process 1691 115. Evidence; Documentary 1731 117. Evidence; Depositions 1781 119. Evidence; Witnesses 1821 121 Juries; Trial by Jury 1861 123. Fees and Costs 1911 125. Pending Actions and Judgments 1961 127. Executions and Judicial Sales 2001 129. Moneys Paid into Court 2041 131. Rules of Courts 2071 133. Review - Miscellaneous Provisions 2101 ------DocID 36658 Document 520 of 1452------ -CITE- 28 USC CHAPTER 111 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- CHAPTER 111 - GENERAL PROVISIONS -MISC1- Sec. 1651. Writs. 1652. State laws as rules of decision. 1653. Amendment of pleadings to show jurisdiction. 1654. Appearance personally or by counsel. 1655. Lien enforcement; absent defendants. 1656. Creation of new district or division or transfer of territory; lien enforcement. 1657. Priority of civil actions. 1658. Time limitations on the commencement of civil actions arising under Acts of Congress. AMENDMENTS 1990 - Pub. L. 101-650, title III, Sec. 313(b), Dec. 1, 1990, 104 Stat. 5115, added item 1658. 1984 - Pub. L. 98-620, title IV, Sec. 401(b), Nov. 8, 1984, 98 Stat. 3357, added item 1657. -CROSS- CROSS REFERENCES Criminal procedure, see section 3001 et seq. of Title 18, Crimes and Criminal Procedure. Removal of cases from State courts, procedure, see section 1446 of this title. ------DocID 36659 Document 521 of 1452------ -CITE- 28 USC Sec. 1651 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1651. Writs -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, Sec. 90, 63 Stat. 102.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 342, 376, 377 (Mar. 3, 1911, ch. 231, Sec. 234, 261, 262, 36 Stat. 1156, 1162). Section consolidates sections 342, 376, and 377 of title 28, U.S.C., 1940 ed., with necessary changes in phraseology. Such section 342 provided: 'The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul is a party.' Such section 376 provided: 'Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States.' Such section 377 provided: 'The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' The special provisions of section 342 of title 28, U.S.C., 1940 ed., with reference to writs of prohibition and mandamus, admiralty courts and other courts and officers of the United States were omitted as unnecessary in view of the revised section. The revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts. The provisions of section 376 of title 28, U.S.C., 1940 ed., with respect to the powers of a justice or judge in issuing writs of ne exeat were changed and made the basis of subsection (b) of the revised section but the conditions and limitations on the writ of ne exeat were omitted as merely confirmatory of well-settled principles of law. The provision in section 377 of title 28, U.S.C., 1940 ed., authorizing issuance of writs of scire facias, was omitted in view of rule 81(b) of the Federal Rules of Civil Procedure abolishing such writ. The revised section is expressive of the construction recently placed upon such section by the Supreme Court in U.S. Alkali Export Assn. v. U.S., 65 S.Ct. 1120, 325 U.S. 196, 89 L.Ed. 1554, and De Beers Consol. Mines v. U.S., 65 S.Ct. 1130, 325 U.S. 212, 89 L.Ed. 1566. 1949 ACT This section corrects a grammatical error in subsection (a) of section 1651 of title 28, U.S.C. AMENDMENTS 1949 - Subsec. (a). Act May 24, 1949, inserted 'and' after 'jurisdictions'. WRIT OF ERROR Act Jan. 31, 1928, ch. 14, Sec. 2, 45 Stat. 54, as amended Apr. 26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, Sec. 23, 62 Stat. 990, provided that: 'All Acts of Congress referring to writs of error shall be construed as amended to the extent necessary to substitute appeal for writ of error.' -CROSS- 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 sections 495 and 519 of Title 33, Navigation and Navigable Waters. Federal Communications Act and orders of Commission, enforcement of, see sections 11, 401, and 406 of Title 47, Telegraphs, Telephones, and Radiotelegraphs. Federal Power Act, and orders thereunder, enforcement and prevention of violations, see sections 820 and 825m of Title 16, Conservation. Federal Trade Commission Act, and orders thereunder, enforcement of, see section 49 of Title 15, Commerce and Trade. Interstate Commerce Act, enforcement of, see section 11703 of Title 49, Transportation. National Railroad Adjustment Board, enforcement of orders, see section 153 of Title 45, Railroads. Securities and Public Utilities Holding Companies Acts and orders of Securities and Exchange Commission, enforcement of, see sections 77t, 78u, and 79r of Title 15, Commerce and Trade. Stockyards Act, adopting by reference section 49 of Title 15, see section 222 of Title 7, Agriculture. Tariff Act and orders of Tariff Commission, enforcement of, see section 1333 of Title 19, Customs Duties. Union Pacific Railroad, operation of, see section 88 of Title 45, Railroads. Puerto Rico, power of supreme and district courts to grant mandamus, see section 872 of Title 48, Territories and Insular Possessions. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1407, 3202 of this title. ------DocID 36660 Document 522 of 1452------ -CITE- 28 USC Sec. 1652 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1652. State laws as rules of decision -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944.) -MISC1- HISTORICAL REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 725 (R.S. Sec. 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. ------DocID 36661 Document 523 of 1452------ -CITE- 28 USC Sec. 1653 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1653. Amendment of pleadings to show jurisdiction -STATUTE- Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 399 (Mar. 3, 1911, ch. 231, Sec. 274c, as added Mar. 3, 1915, ch. 90, 38 Stat. 956). Section was extended to permit amendment of all jurisdictional allegations instead of merely allegations of diversity of citizenship as provided by section 399 of title 28, U.S.C., 1940 ed. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Amended and supplemental pleadings, see rules 12 and 15, Appendix to this title. ------DocID 36662 Document 524 of 1452------ -CITE- 28 USC Sec. 1654 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1654. Appearance personally or by counsel -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, Sec. 91, 63 Stat. 103.) -MISC1- HISTORICAL REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 394 (Mar. 3, 1911, ch. 231, Sec. 272, 36 Stat. 1164). Words 'as, by the rules of the said courts respectively, are permitted to manage and conduct causes therein,' after 'counsel,' were omitted as surplusage. The revised section and section 2071 of this title effect no change in the procedure of the Tax Court before which certain accountants may be admitted as counsel for litigants under Rule 2 of the Tax Court. Changes were made in phraseology. 1949 ACT This section restores in section 1654 of title 28, U.S.C., language of the original law. AMENDMENTS 1949 - Act May 24, 1949, inserted 'as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein'. ------DocID 36663 Document 525 of 1452------ -CITE- 28 USC Sec. 1655 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1655. Lien enforcement; absent defendants -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 118 (Mar. 3, 1911, ch. 231, Sec. 57, 36 Stat. 1102). Word 'action' was substituted for 'suit,' in view of Rule 2 of the Federal Rules of Civil Procedure. In view of Rule 4(f) of the Federal Rules of Civil Procedure permitting service of process anywhere within the territorial limits of the States, the word 'State' was substituted for 'district' in the first and third paragraphs. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Process and relief from judgment or order, see rules 4 and 60, Appendix to this title. ------DocID 36664 Document 526 of 1452------ -CITE- 28 USC Sec. 1656 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1656. Creation of new district or division or transfer of territory; lien enforcement -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 944; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 242, 92 Stat. 2671.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 122 (Mar. 3, 1911, ch. 231, Sec. 60, 36 Stat. 1103). A provision as to creation of a new district or division or transfer of territory before March 3, 1911, was omitted as obsolete. Words descriptive of the lien were omitted as unnecessary. Changes were made in phraseology. AMENDMENTS 1978 - Pub. L. 95-598 directed the amendment of section by inserting 'or in a bankruptcy court' after 'a district court', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Effect of rule 69 on this section, see note by Advisory Committee under rule 69, Appendix to this title. ------DocID 36665 Document 527 of 1452------ -CITE- 28 USC Sec. 1657 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1657. Priority of civil actions -STATUTE- (a) Notwithstanding any other provision of law, each court of the United States shall determine the order in which civil actions are heard and determined, except that the court shall expedite the consideration of any action brought under chapter 153 or section 1826 of this title, any action for temporary or preliminary injunctive relief, or any other action if good cause therefor is shown. For purposes of this subsection, 'good cause' is shown if a right under the Constitution of the United States or a Federal Statute (including rights under section 552 of title 5) would be maintained in a factual context that indicates that a request for expedited consideration has merit. (b) The Judicial Conference of the United States may modify the rules adopted by the courts to determine the order in which civil actions are heard and determined, in order to establish consistency among the judicial circuits. -SOURCE- (Added Pub. L. 98-620, title IV, Sec. 401(a), Nov. 8, 1984, 98 Stat. 3356.) -MISC1- EFFECTIVE DATE Section 403 of Pub. L. 98-620 provided that: 'The amendments made by this subtitle (subtitle A (Sec. 401-403) of title IV of Pub. L. 98-620, enacting this section, amending sections 596, 636, 1364, 2284, and 2349 of this title, sections 437g, 437h, and 687 of Title 2, The Congress, section 552 of Title 5, Government Organization and Employees, sections 8, 136d, 136h, 136n, 136w, 194, 1366, 1600, and 1601 of Title 7, Agriculture, section 1464 of Title 12, Banks and Banking, sections 18a, 21, 45, 57a-1, 78k-1, 687a, 687c, 719h, 1415, 2003, and 2622 of Title 15, Commerce and Trade, sections 1463a, 1910, 3117, and 3168 of Title 16, Conservation, sections 1964 and 1966 of Title 18, Crimes and Criminal Procedure, sections 346a and 348 of Title 21, Food and Drugs, section 618 of Title 22, Foreign Relations and Intercourse, section 640d-3 of Title 25, Indians, sections 3310, 6110, 6363, 7609, 9010, and 9011 of Title 26, Internal Revenue Code, sections 110, 160, 660, and 1303 of Title 29, Labor, section 816 of Title 30, Mineral Lands and Mining, section 2022 of Title 38, Veterans' Benefits, section 3628 of Title 39, Postal Service, sections 300j-9, 504, 6508, and 8514 of Title 42, The Public Health and Welfare, sections 1062, 1349, 1652, and 2011 of Title 43, Public Lands, sections 355, 745, 1018, and 1205 of Title 45, Railroads, section 402 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, section 2305 of Title 49, Appendix, Transportation, section 792a of Title 50, War and National Defense, and sections 462 and 1984 of Title 50, Appendix, repealing sections 1296 and 2647 of this title, section 28 of Title 15, and section 3614 of Title 42, and amending provisions set out as a note under section 2304 of Title 10, Armed Forces) shall not apply to cases pending on the date of the enactment of this subtitle (Nov. 8, 1984).' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 section 1821. ------DocID 36666 Document 528 of 1452------ -CITE- 28 USC Sec. 1658 -EXPCITE- TITLE 28 PART V CHAPTER 111 -HEAD- Sec. 1658. Time limitations on the commencement of civil actions arising under Acts of Congress -STATUTE- 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. -SOURCE- (Added Pub. L. 101-650, title III, Sec. 313(a), Dec. 1, 1990, 104 Stat. 5114.) -REFTEXT- REFERENCES IN TEXT The date of the enactment of this section, referred to in text, is the date of enactment of Pub. L. 101-650, which was approved Dec. 1, 1990. -MISC2- EFFECTIVE DATE Section 313(c) of Pub. L. 101-650 provided that: 'The amendments made by this section (enacting this section) shall apply with respect to causes of action accruing on or after the date of the enactment of this Act (Dec. 1, 1990).' ------DocID 36667 Document 529 of 1452------ -CITE- 28 USC CHAPTER 113 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- CHAPTER 113 - PROCESS -MISC1- Sec. 1691. Seal and teste of process. 1692. Process and orders affecting property in different districts. 1693. Place of arrest in civil action. 1694. Patent infringement action. 1695. Stockholder's derivative action. 1696. Service in foreign and international litigation. AMENDMENTS 1964 - Pub. L. 88-619, Sec. 4(b), Oct. 3, 1964, 78 Stat. 996, added item 1696. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Process, see Rule 4, Appendix to this title. ------DocID 36668 Document 530 of 1452------ -CITE- 28 USC Sec. 1691 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1691. Seal and teste of process -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 721 (R.S. Sec. 911; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Provisions as to teste of process issuing from the district courts were omitted as superseded by Rule 4 (b) of the Federal Rules of Civil Procedure. Provision for teste of the Chief Justice of writs and process was omitted as unnecessary. A provision requiring the United States to bear the expense of providing seals was omitted as unnecessary and obsolete. Changes were made in phraseology. 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 section 2459 of Title 22, Foreign Relations and Intercourse. -CROSS- 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 section 2241 of this title. Power of courts to issue writs, see section 1651 of this title. Power of Supreme Court to prescribe rules of procedure and evidence, see section 2072 of this title. Writs venire facias abolished, see Historical and Revision Notes under section 1867 of this title. ------DocID 36669 Document 531 of 1452------ -CITE- 28 USC Sec. 1692 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1692. Process and orders affecting property in different districts -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 117 (Mar. 3, 1911, ch. 231, Sec. 56, 36 Stat. 1102). Provisions of section 117 of title 28, U.S.C., 1940 ed., as to jurisdiction and control of a receiver of property in several districts are the basis of section 754 of this title. For explanation of revision of section 117 of title 28, U.S.C., 1940 ed., and its extension to include property, not only in the same judicial circuit, but in any judicial circuit. (See reviser's note under section 754 of this title.) Changes were made in phraseology. -CROSS- CROSS REFERENCES Receivers of property in different districts, see section 754 of this title. ------DocID 36670 Document 532 of 1452------ -CITE- 28 USC Sec. 1693 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1693. Place of arrest in civil action -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 112 (Mar. 3, 1911, ch. 231, Sec. 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, Sec. 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213). Venue provisions of section 112 of title 28, U.S.C., 1940 ed., appear in sections 1391 and 1401 of this title. Other provisions are incorporated in section 1695 of this title. The exception at the beginning of the section was substituted for 'Except as provided in sections 113-117 of this title.' Changes were made in phraseology. -CROSS- CROSS REFERENCES Venue generally, see section 1391 of this title. Waiver of venue, see section 1406 of this title. ------DocID 36671 Document 533 of 1452------ -CITE- 28 USC Sec. 1694 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1694. Patent infringement action -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 109 (Mar. 3, 1911, ch. 231, Sec. 48, 36 Stat. 1100). Venue provisions of section 109 of title 28, U.S.C., 1940 ed., appear in section 1400 of this title. Changes were made in phraseology. -CROSS- CROSS REFERENCES Venue in patent infringement action, see section 1400 of this title. ------DocID 36672 Document 534 of 1452------ -CITE- 28 USC Sec. 1695 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1695. Stockholder's derivative action -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 112 (Mar. 3, 1911, ch. 231, Sec. 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, Sec. 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213). The phrase 'is organized or licensed to do business or is doing business' was substituted for the words 'resides or is found,' as more specific and to conform to section 1391 of this title. Venue provisions of section 112 of title 28, U.S.C., 1940 ed., appear in section 1391 and 1401 of this title. Other provisions are incorporated in section 1693 of this title. Changes were made in phraseology. -CROSS- CROSS REFERENCES Venue in stockholder's derivative action, see section 1401 of this title. ------DocID 36673 Document 535 of 1452------ -CITE- 28 USC Sec. 1696 -EXPCITE- TITLE 28 PART V CHAPTER 113 -HEAD- Sec. 1696. Service in foreign and international litigation -STATUTE- (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. -SOURCE- (Added Pub. L. 88-619, Sec. 4(a), Oct. 3, 1964, 78 Stat. 995.) ------DocID 36674 Document 536 of 1452------ -CITE- 28 USC CHAPTER 115 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- CHAPTER 115 - EVIDENCE; DOCUMENTARY -MISC1- Sec. 1731. Handwriting. 1732. Record made in regular course of business; photographic copies. 1733. Government records and papers; copies. 1734. Court record lost or destroyed generally. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 1735. Court record lost or destroyed where United States interested. 1736. Congressional Journals. 1737. Copy of officer's bond. 1738. State and Territorial statutes and judicial proceedings; full faith and credit. 1738A. Full faith and credit given to child custody determinations. 1739. State and Territorial nonjudicial records; full faith and credit. 1740. Copies of consular papers. 1741. Foreign official documents. (1742. Repealed.) 1743. Demand on postmaster. 1744. Copies of patent office documents generally. (FOOTNOTE 1) 1745. Copies of foreign patent documents. 1746. Unsworn declarations under penalty of perjury. AMENDMENTS 1980 - Pub. L. 96-611, Sec. 8(b), Dec. 28, 1980, 94 Stat. 3571, added item 1738A. 1976 - Pub. L. 94-550, Sec. 1(b), Oct. 18, 1976, 90 Stat. 2534, added item 1746. 1964 - Pub. L. 88-619, Sec. 5(b), 6(b), 7(b), Oct. 3, 1964, 78 Stat. 996, substituted 'official documents' for 'documents generally; copies' in item 1741, inserted '(Repealed)' in item 1742, and substituted 'documents' for 'specifications and drawings' in item 1745. 1951 - Act Aug. 28, 1951, ch. 351, Sec. 2, 65 Stat. 206, inserted '; photographic copies' in item 1732. 1949 - Act May 24, 1949, ch. 139, Sec. 92(a), 63 Stat. 103, struck out item 1745 'Printed copies of patient specifications and drawings' and renumbered item 1746 as 1745. -CROSS- 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. ------DocID 36675 Document 537 of 1452------ -CITE- 28 USC Sec. 1731 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1731. Handwriting -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 638 (Feb. 26, 1913, ch. 79, 37 Stat. 683). Words 'as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding', were omitted as superfluous. Changes were made in phraseology. -CROSS- 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. ------DocID 36676 Document 538 of 1452------ -CITE- 28 USC Sec. 1732 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1732. Record made in regular course of business; photographic copies -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 945; Aug. 28, 1951, ch. 351, Sec. 1, 3, 65 Stat. 205, 206; Aug. 30, 1961, Pub. L. 87-183, 75 Stat. 413; Jan. 2, 1975, Pub. L. 93-595, Sec. 2(b), 88 Stat. 1949.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 695 (June 20, 1936, ch. 640, Sec. 1, 49 Stat. 1561). Changes in phraseology were made. AMENDMENTS 1975 - Pub. L. 93-595 struck out subsec. (a) which had made admissible as evidence writings or records made as a memorandum or record of any act, transaction, occurrence, or event if made in the regular course of business, and struck out designation '(b)' preceding remainder of section. See Federal Rules of Evidence set out in Appendix to this title. 1961 - Subsec. (b). Pub. L. 87-183 struck out 'unless held in a custodial or fiduciary capacity or' after 'may be destroyed in the regular course of business'. 1951 - Act Aug. 29, 1951, Sec. 3, inserted reference to photographic copies in section catchline. Subsecs. (a), (b). Act Aug. 28, 1951, Sec. 1, designated existing provisions as subsec. (a) and added subsec. (b). -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44, Appendix to this title. Effect of rule 44 on former section 695 of this title, see note by Advisory Committee under rule 44. 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 5555. ------DocID 36677 Document 539 of 1452------ -CITE- 28 USC Sec. 1733 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1733. Government records and papers; copies -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 946; Jan. 2, 1975, Pub. L. 93-595, Sec. 2(c), 88 Stat. 1949.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 661-667, 671 (R.S. Sec. 882-886, 889; July 31, 1894, ch. 174, Sec. 17, 22, 28 Stat. 210; Mar. 2, 1895, ch. 177, Sec. 10, 28 Stat. 809; June 10, 1921, ch. 18, Sec. 301, 302, 304, 310, 42 Stat. 23-25; May 10, 1934, ch. 277, Sec. 512, 48 Stat. 758; June 19, 1934, ch. 653, Sec. 6(a), 48 Stat. 1109). The consolidation of sections 661-667 and 671 of title 28, U.S.C., 1940 ed., permitted omission of obsolete, unnecessary and repetitive provisions in such sections. For example, the provision in section 665 of title 28, U.S.C., 1940 ed., authorizing the court to require production of documents on a plea of non est factum, was omitted. Such plea is obsolete in Federal practice. Numerous provisions with respect to authentication were omitted as covered by Rule 44 of the Federal Rules of Civil Procedure. Likewise the provision that official seals shall be judicially noticed was omitted as unnecessary. Seals of Federal agencies are judicially noticed by States and Federal courts without statutory mandate. Gardner v. Barney, 1867, 6 Wall. 499, 73 U.S.C. 499, 18 L.Ed. 890, 31 C.J.S. 599 n. 27-30 and 23 C.J.S. 99 n. 41. The same principle unquestionably will apply to seals of Government corporations. Words 'of any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly', in section 661 of title 28, U.S.C., 1940 ed., were omitted as covered by 'or agency'. The revised section was broadened to apply to 'any department or agency'. (See reviser's note under section 1345 of this title.) Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (c), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1975 - Subsec. (c). Pub. L. 93-595 added subsec. (c). -CROSS- 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 section 2116 of Title 44, Public Printing and Documents. Authentication - Copies of documents, etc., in the office of the Commissioner of Indian Affairs is made by section 6 of Title 25, Indians. Original papers on file in the Bureau of Land Management are provided for by section 13 of Title 43, Public Lands. Records by Secretary of the Interior, see section 1460 of Title 43. Records of the Postal Service, see section 207 of Title 39, Postal Service. Certified copies of schedules and tariffs of rates, etc., copies as evidence, see section 10303 of Title 49, Transportation. Judicial notice of seals - Departments of Commerce and Labor, see sections 1501 of Title 15, Commerce and Trade, and 551 of Title 29, Labor. Department of Defense, see section 112 of Title 10, Armed Forces. Departments of the Army, Air Force, and Navy, see sections 3012, 5012, and 8012 of Title 10. Provisions relating to the requisites of the certificates of national banks, and the acknowledgment and filing thereof, are made by sections 22 and 23 of Title 12, Banks and Banking. Secretary of the Interior is authorized to furnish transcripts of records in district land offices for individuals, and such transcripts, when duly certified, are made admissible as evidence by section 83 of Title 43, Public Lands. Verification of official documents by Secretary of Agriculture, see section 2203 of Title 7, Agriculture. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 31 section 704. ------DocID 36678 Document 540 of 1452------ -CITE- 28 USC Sec. 1734 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1734. Court record lost or destroyed, generally -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 946.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 681, 682, 683, and 684 (R.S. Sec. 899, 900, 901, 902; Jan. 31, 1879, ch. 39, Sec. 1, 20 Stat. 277). Sections 681, 682, and 684 of title 28, U.S.C., 1940 ed., contained repetitious language which was eliminated by the consolidation. Section 683 of title 28, U.S.C., 1940 ed., applied only to cases removed to the Supreme Court, and was revised so as to be applicable to cases transmitted to other courts not in existence in 1871 when the section was originally enacted. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Effect of rule 44 on former section 681 of this title, see note by Advisory Committee under rule 44, Appendix to this title. Proof of official records, see rule 44. 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. ------DocID 36679 Document 541 of 1452------ -CITE- 28 USC Sec. 1735 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1735. Court record lost or destroyed where United States interested -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 946.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 685, 686 (R.S. Sec. 903, 904; Jan. 31, 1879, ch. 39, Sec. 2, 3, 20 Stat. 277). A provision of section 686 of title 28, U.S.C., 1940 ed., relating to allowances to clerks and United States attorneys for their services, and disbursements incidental to restoring lost records under such section was deleted as obsolete, in view of sections 508, 509, and 604 of this title, placing such officers on a salary basis and providing for their expenses. Words 'And in all cases where any of the files, papers, or records of any court of the United States have been or shall be lost or destroyed, the files, records and papers which, pursuant to law, may have been or may be restored or supplied in place of such records, files, and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would have been entitled to,' at the end of section 685 of title 28, U.S.C., 1940 ed., were omitted as fully covered by the remainder of this section and by section 1734 of this title. Words 'or agency of the United States' were substituted for 'of the Government' so as to eliminate any possible ambiguity as to the scope of this section. See definitive section 451 of this title. The phrase 'so far as the judges of such courts respectively shall deem it essential to the interests of the United States that such records and files be restored or supplied,' was omitted as unnecessary. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44, Appendix to this title. Effect of rule 44 on former section 685 of this title, see note by Advisory Committee under rule 44. 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. ------DocID 36680 Document 542 of 1452------ -CITE- 28 USC Sec. 1736 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1736. Congressional Journals -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 947.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 676 (R.S. Sec. 895). Changes in phraseology were made. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44, Appendix to this title. Effect of rule 44 on former section 676 of this title, see note by Advisory Committee under rule 44. 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. ------DocID 36681 Document 543 of 1452------ -CITE- 28 USC Sec. 1737 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1737. Copy of officer's bond -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 947.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 326, 499, 513, and 514 (R.S. Sec. 783, 795; Feb. 22, 1875, ch. 95, Sec. 3, 18 Stat. 333; Mar. 3, 1911, ch. 231, Sec. 220, 291, 36 Stat. 1152, 1167). Sections 326, 499, 513, and 514 of title 28, U.S.C., 1940 ed., were consolidated. They related to the bonds of particular officers, namely the Clerk of the Supreme Court, the United States marshals, and the clerks of the district courts. The revised section eliminates all inconsistent provisions of such sections. The requirement that certified copies be furnished is new. The other provisions of sections 326, 499, 513, and 514 of title 28, U.S.C., 1940 ed., are now incorporated in sections 544 and 952 of this title. Changes were made in phraseology. ------DocID 36682 Document 544 of 1452------ -CITE- 28 USC Sec. 1738 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1738. State and Territorial statutes and judicial proceedings; full faith and credit -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 947.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 687 (R.S. Sec. 905). Words 'Possession of the United States' were substituted for 'of any country subject to the jurisdiction of the United States'. Words 'or copies thereof' were added in three places. Copies have always been used to prove statutes and judicial proceedings under section 687 of title 28, U.S.C., 1940 ed. The added words will cover expressly such use. Words 'and its Territories and Possessions' were added in two places so as to make this section and section 1739 of this title uniform, the basic section of the latter having provided that nonjudicial records or books of any State, Territory, or 'country subject to the jurisdiction of the United States' should be admitted in any court or office in any other State, Territory, or 'such country.' Words 'a judge of the court' were substituted for 'the judge, chief justice or presiding magistrate' without change of substance. At the beginning of the last paragraph, words 'Such Acts' were substituted for 'And the said'. This follows the language of Article IV, section 1 of the Constitution. For additional provisions as to authentication, see Rule 44 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Authentication of copy of official record, see rule 44, Appendix to this title. Effect of rule 44 on former section 687 of this title, see note by Advisory Committee under rule 44. 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, Sec. 1. ------DocID 36683 Document 545 of 1452------ -CITE- 28 USC Sec. 1738A -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1738A. Full faith and credit given to child custody determinations -STATUTE- (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. -SOURCE- (Added Pub. L. 96-611, Sec. 8(a), Dec. 28, 1980, 94 Stat. 3569.) -MISC1- CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSE Section 7 of Pub. L. 96-611 provided that: '(a) The Congress finds that - '(1) there is a large and growing number of cases annually involving disputes between persons claiming rights of custody and visitation of children under the laws, and in the courts, of different States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States; '(2) the laws and practices by which the courts of those jurisdictions determine their jurisdiction to decide such disputes, and the effect to be given the decisions of such disputes by the courts of other jurisdictions, are often inconsistent and conflicting; '(3) those characteristics of the law and practice in such cases, along with the limits imposed by a Federal system on the authority of each such jurisdiction to conduct investigations and take other actions outside its own boundaries, contribute to a tendency of parties involved in such disputes to frequently resort to the seizure, restraint, concealment, and interstate transportation of children, the disregard of court orders, excessive relitigation of cases, obtaining of conflicting orders by the courts of various jurisdictions, and interstate travel and communication that is so expensive and time consuming as to disrupt their occupations and commercial activities; and '(4) among the results of those conditions and activities are the failure of the courts of such jurisdictions to give full faith and credit to the judicial proceedings of the other jurisdictions, the deprivation of rights of liberty and property without due process of law, burdens on commerce among such jurisdictions and with foreign nations, and harm to the welfare of children and their parents and other custodians. '(b) For those reasons it is necessary to establish a national system for locating parents and children who travel from one such jurisdiction to another and are concealed in connection with such disputes, and to establish national standards under which the courts of such jurisdictions will determine their jurisdiction to decide such disputes and the effect to be given by each such jurisdiction to such decisions by the courts of other such jurisdictions. '(c) The general purposes of sections 6 to 10 of this Act (enacting this section and section 663 of Title 42, The Public Health and Welfare, amending sections 654 and 655 Title 42, and enacting provisions set out as notes under this section, sections 663 and 1305 of Title 42, and section 1073 of Title 18, Crimes and Criminal Procedure) are to - '(1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child; '(2) promote and expand the exchange of information and other forms of mutual assistance between States which are concerned with the same child; '(3) facilitate the enforcement of custody and visitation decrees of sister States; '(4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; '(5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; and '(6) deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.' STATE COURT PROCEEDINGS FOR CUSTODY DETERMINATIONS; PRIORITY TREATMENT; FEES, COSTS, AND OTHER EXPENSES Section 8(c) of Pub. L. 96-611 provided that: 'In furtherance of the purposes of section 1738A of title 28, United States Code, as added by subsection (a) of this section, State courts are encouraged to - '(1) afford priority to proceedings for custody determinations; and '(2) award to the person entitled to custody or visitation pursuant to a custody determination which is consistent with the provisions of such section 1738A, necessary travel expenses, attorneys' fees, costs of private investigations, witness fees or expenses, and other expenses incurred in connection with such custody determination in any case in which - '(A) a contestant has, without the consent of the person entitled to custody or visitation pursuant to a custody determination which is consistent with the provisions of such section 1738A, (i) wrongfully removed the child from the physical custody of such person, or (ii) wrongfully retained the child after a visit or other temporary relinquishment of physical custody; or '(B) the court determines it is appropriate.' ------DocID 36684 Document 546 of 1452------ -CITE- 28 USC Sec. 1739 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1739. State and Territorial nonjudicial records; full faith and credit -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 947.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 688 (R.S. Sec. 906). Words 'Possession of the United States' were substituted for 'or any country subject to the jurisdiction of the United States.' Words 'or copies thereof' were added in two places. Copies have always been used to prove records and books under section 688 of title 28, U.S.C., 1940 ed., and the addition of these words clarifies the former implied meaning of such section. In the first paragraph of the revised section words 'a judge of a court of record' were substituted for words 'the presiding justice of the court' and in the second paragraph 'judge' was substituted for 'presiding justice' for convenience and without change of substance. Words 'and its Territories and Possessions' were added after 'United States', near the end of the section, in view of provisions of section 688 of title 28, U.S.C., 1940 ed., for the admission of records and books in any court or office in any other State, Territory, or 'in any such country.' (Changed to 'Possession' in this section.) See also Rule 44 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Authentication of copy of official record, see rule 44, Appendix to this title. Effect of rule 44 on former section 688 of this title, see note by Advisory Committee under rule 44. FEDERAL RULES OF CRIMINAL PROCEDURE Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 36685 Document 547 of 1452------ -CITE- 28 USC Sec. 1740 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1740. Copies of consular papers -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 947.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 677 (R.S. Sec. 896; Apr. 5, 1906, ch. 1366, Sec. 3, 34 Stat. 100). Words 'authenticated by the consul or vice consul' were substituted for 'certified under the hand and seal of such officer', for clarity. Words 'in the courts of the United States', were omitted after 'admissible'. Such papers should be so admitted in all courts consistently with sections 1738 and 1739 of this title. See also Rule 44 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Authentication of copy of official record see rule 44 Appendix to this title. Effect of rule 44 on former section 677 of this title, see note by Advisory Committee under rule 44. FEDERAL RULES OF CRIMINAL PROCEDURE Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 36686 Document 548 of 1452------ -CITE- 28 USC Sec. 1741 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1741. Foreign official documents -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 948; May 24, 1949, ch. 139, Sec. 92(b), 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, Sec. 5(a) 78 Stat. 996.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 695e (June 20, 1936, ch. 640, Sec. 6, 49 Stat. 1563). Words 'Nothing contained in this section shall be deemed to alter, amend, or repeal section 689 of this title,' at the end of section 695e of title 28, U.S.C., 1940 ed., were omitted. Although significant in the original Act, such words are unnecessary in a revision wherein both sections in question, as revised, are enacted at the same time. See also Rule 44 of the Federal Rules of Civil Procedure. Section 695e-1 of title 28, U.S.C., 1940 ed., providing for certification of Vatican City Documents will be incorporated in title 22, U.S.C., Foreign Relations and Intercourse. Changes were made in phraseology. 1949 ACT This section corrects a typographical error in section 1741 of title 28, U.S.C. AMENDMENTS 1964 - Pub. L. 88-619 substituted 'An official record or document of a foreign country may be evidenced by a copy, summary, or excerpt authenticated as provided in the Federal Rules of Civil Procedure' for 'A copy of any foreign document of record or on file in a public office of a foreign country or political subdivision thereof, certified by the lawful custodian thereof, shall be admissible in evidence when authenticated by a certificate of a consular officer of the United States resident in such foreign country, under the seal of his office, that the copy has been certified by the lawful custodian' in text, and 'official documents' for 'documents, generally; copies' in section catchline. 1949 - Act May 24, 1949, corrected spelling of 'admissible'. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Authentication of copy of official record, see rule 44 Appendix to this title. Effect of rule 44 on former section 695e of this title, see note by Advisory Committee under rule 44. FEDERAL RULES OF CRIMINAL PROCEDURE Criminal cases, proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 22 sections 1204, 4222. ------DocID 36687 Document 549 of 1452------ -CITE- 28 USC Sec. 1742 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- (Sec. 1742. Repealed. Pub. L. 88-619, Sec. 6(a), Oct. 3, 1964, 78 Stat. 996) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 948, related to authentication and certification of copies of documents relating to land titles, by persons having custody of such of any foreign government or its agents, certification by an American minister or consul that they be true copies of the originals, the recording of such copies in the office of the General Counsel for the Department of the Treasury, and to the evidentiary value of such copies. ------DocID 36688 Document 550 of 1452------ -CITE- 28 USC Sec. 1743 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1743. Demand on postmaster -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 948.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 670 (R.S. Sec. 890; June 10, 1921, ch. 18, Sec. 301, 42 Stat. 23). Provisions in section 670 of title 28, U.S.C., 1940 ed., that the statement should recite that a letter has been mailed to a described post office and sufficient time has elapsed for it to have reached its destination, was omitted as superfluous. The last clause of section 670 of title 28, U.S.C., 1940 ed., was omitted as covered by the phrase 'notwithstanding any allowances or credits subsequently made' in the revised section. Changes were made in phraseology. -TRANS- 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 Pub. L. 91-375, Sec. 4(a), Aug. 12, 1970, 84 Stat. 773, set out as a note under section 201 of Title 39, Postal Service. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44, Appendix to this title. Effect of rule 44 on former section 670 of this title, see note by Advisory Committee under rule 44. 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. ------DocID 36689 Document 551 of 1452------ -CITE- 28 USC Sec. 1744 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1744. Copies of Patent Office documents, generally -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 948; May 24, 1949, ch. 139, Sec. 92(c), 63 Stat. 103.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 127 of title 15, U.S.C., 1940 ed., Commerce and Trade, and title 28, U.S.C., 1940 ed., Sec. 673 (R.S. Sec. 892; Mar. 19, 1920, ch. 104, Sec. 7, 41 Stat. 535; Mar. 4, 1925, ch. 535, Sec. 2, 43 Stat. 1269). For purposes of uniformity, words 'written or printed,' at the beginning of the section, were omitted. Similar sections in this chapter do not contain such words. Words 'or in his name attested by a chief of division duly designated by the commissioner,' after 'Commissioner of Patents,' were omitted as unnecessary. Changes in phraseology were made. 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- 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 Pub. L. 93-596, Jan. 2, 1975, 88 Stat. 1949, set out as a note under section 1 of Title 35, Patents. -TRANS- 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, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government Organization and Employees. The Patent Office (now Patent and Trademark Office), referred to in this section, is an agency of the Department of Commerce, and the Commissioner of Patents (now Commissioner of Patents and Trademarks), referred to in this section, is an officer of that Department. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official record, see rule 44, Appendix to this title. Effect of rule 44 on former section 673 of this title, see note by Advisory Committee under rule 44. 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1745 of this title. ------DocID 36690 Document 552 of 1452------ -CITE- 28 USC Sec. 1745 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1745. Copies of foreign patent documents -STATUTE- Copies of the specifications and drawings of foreign letters patent, or applications for foreign letters patent, and copies of excerpts of the official journals and other official publications of foreign patent offices belonging to the United States Patent Office, certified in the manner provided by section 1744 of this title are prima facie evidence of their contents and of the dates indicated on their face. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 948, Sec. 1746; renumbered Sec. 1745 and amended May 24, 1949, ch. 139, Sec. 92(d), (e), 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, Sec. 7(a), 78 Stat. 996.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 674 (R.S. Sec. 893). Changes were made in phraseology. AMENDMENTS 1964 - Pub. L. 88-619, among other changes, inserted 'or applications for foreign letters patent, and copies of excerpts of the official journals and other official publications of foreign patent offices belonging to the United States Patent Office' in text, and substituted 'documents' for 'specifications and drawings' in section catchline. 1949 - Act May 24, 1949, Sec. 92(d), repealed section 1745 relating to printed copies of patent specifications and drawings, and by section 92(e) of act May 24, 1949, renumbered section 1746 as 1745. -CHANGE- CHANGE OF NAME Patent Office redesignated Patent and Trademark Office, by section 3 of Pub. L. 93-596, Jan. 2, 1975, 88 Stat. 1949, set out as a note under section 1 of Title 35, Patents. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44, Appendix to this title. Effect of rule 44 on former section 675 of this title, see note by Advisory Committee under rule 44. 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. ------DocID 36691 Document 553 of 1452------ -CITE- 28 USC Sec. 1746 -EXPCITE- TITLE 28 PART V CHAPTER 115 -HEAD- Sec. 1746. Unsworn declarations under penalty of perjury -STATUTE- 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)'. -SOURCE- (Added Pub. L. 94-550, Sec. 1(a), Oct. 18, 1976, 90 Stat. 2534.) -MISC1- PRIOR PROVISIONS A prior section 1746 was renumbered section 1745 of this title by act May 24, 1949. -SECREF- 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. ------DocID 36692 Document 554 of 1452------ -CITE- 28 USC CHAPTER 117 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- CHAPTER 117 - EVIDENCE; DEPOSITIONS -MISC1- Sec. 1781. Transmittal of letter rogatory or request. 1782. Assistance to foreign and international tribunals and to litigants before such tribunals. 1783. Subpoena of person in foreign country. 1784. Contempt. (1785. Repealed.) AMENDMENTS 1964 - Pub. L. 88-619, Sec. 8(b), 9(b), 10(b), 12(b), Oct. 3, 1964, 78 Stat. 997, 998, substituted 'Transmittal of letter rogatory or request' for 'Foreign witnesses' in item 1781, 'Assistance to foreign and international tribunals and to litigants before such tribunals' for 'Testimony for use in foreign countries' in item 1782, 'person' for 'witness' in item 1783, and struck out item 1785 'Privilege against incrimination'. DEPOSITIONS IN ADMIRALTY CASES Prior to the general unification of civil and admiralty procedure and the recission of the Admiralty Rules on July 1, 1966, Revised Statutes Sec. 863 to 865, as amended, which related to depositions de bene esse, when and how taken, notice, mode of taking, and transmission to court, provided as follows: 'Sec. 863. The testimony of any witness may be taken in any civil cause depending in a district court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any clerk of a district court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court. 'Sec. 864. Every person deposing as provided in the preceding section (R.S. Sec. 863) shall be cautioned and sworn to testify the whole truth, and carefully examined. 'His testimony shall be reduced to writing or typewriting by the officer taking the deposition, or by some person under his personal supervision, or by the deponent himself in the officer's presence, and by no other person, and shall, after it has been reduced to writing or typewriting, be subscribed by the deponent. (As amended May 23, 1900, ch. 541, 31 Stat. 182.) 'Sec. 865. Every deposition taken under the two preceding sections (R.S. Sec. 863, 864) shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause.' R.S. Sec. 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. -CROSS- 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 CLAIMS COURT Subpoena to witness in foreign country, see rule 45, Appendix to this title. ------DocID 36693 Document 555 of 1452------ -CITE- 28 USC Sec. 1781 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- Sec. 1781. Transmittal of letter rogatory or request -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 948; Oct. 3, 1964, Pub. L. 88-619, Sec. 8(a), 78 Stat. 996.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 653 (R.S. Sec. 875; Feb. 27, 1877, ch. 69, Sec. 1, 19 Stat. 241; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Word 'officer' was substituted for 'commissioner' to obviate uncertainty as to the person to whom the letters or commissioned may be issued. The third sentence of section 653 of title 28, U.S.C., 1940 ed., providing for admission of testimony 'so taken and returned' without objection as to the method of return, was omitted as unnecessary. Obviously, if the method designated by Congress is followed, it cannot be objected to. The last sentence of section 653 of title 26, U.S.C., 1940 ed., relating to letters rogatory from courts of foreign countries, is incorporated in section 1782 of this title. The revised section extends the provisions of section 653 of title 28, U.S.C., 1940 ed., which applied only to cases wherein the United States was a party or was interested, so as to insure a uniform method of taking foreign depositions in all cases. Words 'courts of the United States' were inserted to make certain that the section is addressed to the Federal rather than the State courts as obviously intended by Congress. Changes were made in phraseology. AMENDMENTS 1964 - Pub. L. 88-619 substituted provisions authorizing the Department of State to transmit a letter rogatory or request by a foreign or international tribunal, or by a tribunal in the United States, to the tribunal, officer or agency in the United States or its foreign or international counterpart, to whom addressed, and to return it after execution, and providing that this section does not preclude direct transmission of letters rogatory or requests between interested tribunals, officers or agencies of foreign, international and of United States origin, for provisions authorizing United States ministers or consuls, whenever a United States court issues letters rogatory or a commission to take a deposition, to receive the executed letters or commissions from foreign courts or officers, endorse them with the place and date of receipt and any change in the deposition, and transmit it to the clerk of the issuing court in the same manner as his official dispatches, in text and 'Transmittal of letter rogatory or request' for 'Foreign witnesses' in section catchline. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Persons before whom depositions may be taken in foreign countries, see rule 28, Appendix to this title. ------DocID 36694 Document 556 of 1452------ -CITE- 28 USC Sec. 1782 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- Sec. 1782. Assistance to foreign and international tribunals and to litigants before such tribunals -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 949; May 24, 1949, ch. 139, Sec. 93, 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, Sec. 9(a), 78 Stat. 997.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 649-653, 701, 703, 704 (R.S. Sec. 871-875, 4071, 4073, 4074; Feb. 27, 1877, ch. 69, Sec. 1, 19 Stat. 241; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; June 25, 1936, ch. 804, 49 Stat. 1921). Sections 649-652 of title 28, U.S.C., 1940 ed., applied only to the District of Columbia and contained detailed provisions for issuing subpoenas, payment of witness fees and procedure for ordering and taking depositions. These matters are all covered by Federal Rules of Civil Procedure, Rules 26-32. Provisions in sections 649-652 of title 28, U.S.C., 1940 ed., relating to the taking of testimony in the District of Columbia for use in State and Territorial courts were omitted as covered by section 14-204 of the District of Columbia Code, 1940 ed., and Rules 26 et seq., and 46 of the Federal Rules of Civil Procedure. Only the last sentence of section 653 of title 28, U.S.C., 1940 ed., is included in this revised section. The remaining provisions relating to depositions of witnesses in foreign countries form the basis of section 1781 of this title. Sections 701, 703, and 704 of title 28, U.S.C., 1940 ed., were limited to 'suits for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest.' The revised section omits this limitation in view of the general application of the last sentence of section 653 of title 28, U.S.C., 1940 ed., consolidated herein. The improvement of communications and the expected growth of foreign commerce will inevitably increase litigation involving witnesses separated by wide distances. Therefore the revised section is made simple and clear to provide a flexible procedure for the taking of depositions. The ample safeguards of the Federal Rules of Civil Procedure, Rules 26-32, will prevent misuse of this section. The provisions of section 703 of title 28, U.S.C., 1940 ed., for punishment of disobedience to subpoena or refusal to answer is covered by Rule 37(b)(1) of Federal Rules or Civil Procedure. The provisions of section 704 of title 28, U.S.C., 1940 ed., with respect to fees and mileage of witnesses are covered by Rule 45(c) of Federal Rules of Civil Procedure. Changes were made in phraseology. 1949 ACT This amendment corrects restrictive language in section 1782 of title 28, U.S.C., in conformity with original law and permits depositions in any judicial proceeding without regard to whether the deponent is 'residing' in the district or only sojourning there. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1964 - Pub. L. 88-619 substituted provisions which empowered district courts to order residents to give testimony or to produce documents for use in a foreign or international tribunal, pursuant to a letter rogatory, or request, of a foreign or international tribunal or upon application of any interested person, and to direct that the evidence be presented before a person appointed by the court, provided that such person may administer oaths and take testimony, that the evidence be taken in accordance with the Federal Rules of Civil Procedure unless the order prescribes using the procedure of the foreign or international tribunal, that a person may not be compelled to give legally privileged evidence, and that this chapter doesn't preclude a person from voluntarily giving evidence for use in a foreign or international tribunal, for provisions permitting depositions of witnesses within the United States for use in any court in a foreign country with which the United States was at peace to be taken before a person authorized to administer oaths designated by the district court of the district where the witness resides or is found, and directing that the procedure used be that generally used in courts of the United States, in text, and 'Assistance to foreign and international tribunals and to litigants before such tribunals' for 'Testimony for use in foreign countries' in section catchline. 1949 - Act May 24, 1949, struck out 'residing' after 'witness', and substituted 'judicial proceeding' for 'civil action' after 'to be used in any'. -CROSS- CROSS REFERENCES Fees of witnesses in the United States courts, see section 1821 of this title. Letters rogatory from United States courts, see section 1781 of this title. ------DocID 36695 Document 557 of 1452------ -CITE- 28 USC Sec. 1783 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- Sec. 1783. Subpoena of person in foreign country -STATUTE- (a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds, that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. (b) The subpoena shall designate the time and place for the appearance or for the production of the document or other thing. Service of the subpoena and any order to show cause, rule, judgment, or decree authorized by this section or by section 1784 of this title shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 949; Oct. 3, 1964, Pub. L. 88-619, Sec. 10(a), 78 Stat. 997.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 711, 712, and 713 (July 3, 1926, ch. 762, Sec. 1-3, 44 Stat. 835). Word 'resident' was substituted for 'or domiciled therein.' (See reviser's note under section 1391 of this title.) Words 'or any assistant or district attorney acting under him,' after 'Attorney General' in section 712 of title 28, U.S.C., 1940 ed., were omitted, since, in any event, the approval of the Attorney General would be required. (See section 507 of this title.) Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1964 - Pub. L. 88-619 amended section generally, and among other changes, authorized a United States court to issue a subpoena to require the appearance of a witness before it or a person or body designated by it, and the production of documents or other tangible evidence, when necessary in the interest of justice, and in other than criminal actions or proceedings, if the court finds, in addition, that its not possible to obtain admissible evidence in any other manner, and provided that the procedure relating to the subpoena shall be in accordance with the Federal Rules of Civil Procedure, and struck out provisions which authorized the issuance of a subpoena when a personally notified individual failed to appear to testify pursuant to letter rogatory, or failed to answer any question he would have to answer in any examination before the court or if such person was beyond United States jurisdiction and the testimony was desired by the Attorney General in a criminal proceeding, provided that the subpoena issue to any United States consul, that the consul make personal service of the subpoena and of any order, rule, judgment or decree, that he make return of the subpoena and tender expenses to the witness, and substituted 'person' for 'witness' in section catchline. -CROSS- 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 CLAIMS COURT Subpoena to witness in foreign country, see rule 45, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1784 of this title. ------DocID 36696 Document 558 of 1452------ -CITE- 28 USC Sec. 1784 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- Sec. 1784. Contempt -STATUTE- (a) The court of the United States which has issued a subpoena served in a foreign country may order the person who has failed to appear or who has failed to produce a document or other thing as directed therein to show cause before it at a designated time why he should not be punished for contempt. (b) The court, in the order to show cause, may direct that any of the person's property within the United States be levied upon or seized, in the manner provided by law or court rules governing levy or seizure under execution, and held to satisfy any judgment that may be rendered against him pursuant to subsection (d) of this section if adequate security, in such amount as the court may direct in the order, be given for any damage that he might suffer should he not be found in contempt. Security under this subsection may not be required of the United States. (c) A copy of the order to show cause shall be served on the person in accordance with section 1783(b) of this title. (d) On the return day of the order to show cause or any later day to which the hearing may be continued, proof shall be taken. If the person is found in contempt, the court, notwithstanding any limitation upon its power generally to punish for contempt, may fine him not more than $100,000 and direct that the fine and costs of the proceedings be satisfied by a sale of the property levied upon or seized, conducted upon the notice required and in the manner provided for sales upon execution. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 949; Oct. 3, 1964, Pub. L. 88-619, Sec. 11, 78 Stat. 998.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 714, 715, 716, 717, and 718 (July 3, 1926, ch. 762, Sec. 4-8, 44 Stat. 836). Sections 714-718 of title 28, U.S.C., 1940 ed., were consolidated, since all relate to contempt by a witness served personally in a foreign country. The last sentence omits specific reference to section 118 of title 28, U.S.C., 1940 ed., now incorporated in section 1655 of this title, which provides for the method of opening judgments rendered on publication of process. (See also Rule 60(b) of the Federal Rules of Civil Procedure.) Changes were made in phraseology. AMENDMENTS 1964 - Pub. L. 88-619 amended section generally, and among other changes, authorized the court to order a person to show cause for failing to produce a document or other thing in subsec. (a), provided that a copy of the order to show cause shall be served in accordance with section 1783(b) of this title, and struck out provisions requiring the marshal making levy or seizure to forward to any United States consul in the country where the witness may be, a copy of the order and a request for its personal service, and to cause publication of the order in the district where the issuing court sits, in subsec. (c), and struck out provisions in subsec. (d) permitting any judgment rendered upon service by publication only to be opened for answer within one year. -CROSS- 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1783 of this title. ------DocID 36697 Document 559 of 1452------ -CITE- 28 USC Sec. 1785 -EXPCITE- TITLE 28 PART V CHAPTER 117 -HEAD- (Sec. 1785. Repealed. Pub. L. 88-619, Sec. 12(a), Oct. 3, 1964, 78 Stat. 998) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 950, provided a privilege against self-incrimination on examination under letters rogatory. See section 1782(a) of this title. ------DocID 36698 Document 560 of 1452------ -CITE- 28 USC CHAPTER 119 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- CHAPTER 119 - EVIDENCE; WITNESSES -MISC1- Sec. 1821. Per diem and mileage generally; subsistence. 1822. Competency of interested persons; share of penalties payable. (1823. Repealed.) 1824. Mileage fees under summons as both witness and juror. 1825. Payment of fees. 1826. Recalcitrant witnesses. 1827. Interpreters in courts of the United States. 1828. Special interpretation services. AMENDMENTS 1978 - Pub. L. 95-539, Sec. 2(b), Oct. 28, 1978, 92 Stat. 2042, added items 1827 and 1828. 1970 - Pub. L. 91-563, Sec. 5(b), Dec. 19, 1970, 84 Stat. 1478, struck out item 1823 'United States officers and employees'. Pub. L. 91-452, title III, Sec. 301(b), Oct. 15, 1970, 84 Stat. 932, added item 1826. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Civil cases - Evidence, see Rules of Evidence for United States Courts and Magistrates, Appendix to this title. Subpoena for attendance of witnesses, see Rule 45. 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, Title 18, Appendix, Crimes and Criminal Procedure, and Rules of Evidence for United States Courts and Magistrates, Appendix to this title. Expert witnesses, see Art. VII, Rules of Evidence for United States Courts and Magistrates. CROSS REFERENCES Criminal cases, witnesses and evidence, see sections 3481 et seq. of Title 18, Crimes and Criminal Procedure. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 11 section 503. ------DocID 36699 Document 561 of 1452------ -CITE- 28 USC Sec. 1821 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1821. Per diem and mileage generally; subsistence -STATUTE- (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. (2) As used in this section, the term 'court of the United States' includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States. (b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. (c)(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished. (2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services. (3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses. (4) All normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title. (d)(1) A subsistence allowance shall be paid to a witness (other than a witness who is incarcerated) when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day. (2) A subsistence allowance for a witness shall be paid in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government. (3) A subsistence allowance for a witness attending in an area designated by the Administrator of General Services as a high-cost area shall be paid in an amount not to exceed the maximum actual subsistence allowance prescribed by the Administrator, pursuant to section 5702(c)(B) (FOOTNOTE 1) of title 5, for official travel in such area by employees of the Federal Government. (FOOTNOTE 1) See References in Text note below. (4) When a witness is detained pursuant to section 3149 (FOOTNOTE 1) of title 18 for want of security for his appearance, he shall be entitled for each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance fee provided by subsection (b) of this section. (e) An alien who has been paroled into the United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an alien who either has admitted belonging to a class of aliens who are deportable or has been determined pursuant to section 242(b) of such Act (8 U.S.C. 1252(b)) to be deportable, shall be ineligible to receive the fees or allowances provided by this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 950; May 10, 1949, ch. 96, 63 Stat. 65; May 24, 1949, ch. 139, Sec. 94, 63 Stat. 103; Oct. 31, 1951, ch. 655, Sec. 51(a), 65 Stat. 727; Sept. 3, 1954, ch. 1263, Sec. 45, 68 Stat. 1242; Aug. 1, 1956, ch. 826, 70 Stat. 798; Mar. 27, 1968, Pub. L. 90-274, Sec. 102(b), 82 Stat. 62; Oct. 27, 1978, Pub. L. 95-535, Sec. 1, 92 Stat. 2033; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 314(a), 104 Stat. 5115.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 600c, section 1115(a) of title 26, U.S.C., 1940, Internal Revenue Code, and section 11-1514 of the D.C. Code, 1940 ed. (R.S. Sec. 823, 848; Apr. 26, 1926, ch. 183, Sec. 3, 44 Stat. 324; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; Feb. 10, 1939, ch. 2, Sec. 1115(a), 53 Stat. 160; Dec. 24, 1942, ch. 825, Sec. 1, 56 Stat. 1088. Section consolidates part of section 600c of title 28, U.S.C., 1940 ed., with section 1115(a) of title 26, U.S.C., 1940 ed., and section 11-1514 of the D.C. Code, 1940 ed. Words 'or person taking his deposition pursuant to any order of a court of the United States' were added to cover that circumstance. Reference in section 600c of title 28, U.S.C., 1940 ed., and section 11-1514 of the D.C. Code, 1940 ed., to the district courts of Hawaii, Puerto Rico and the District of Columbia, were omitted as covered by the words 'any court of the United States'. Provision of section 600c of title 28, U.S.C., 1940 ed., for payment of witnesses is incorporated in section 1825 of this title. Changes were made in phraseology. SENATE REVISION AMENDMENT By Senate amendments, all provisions relating to the Tax Court were eliminated. Therefore, as finally enacted, section 1115(a) of Title 26, U.S.C., Internal Revenue Code, was not one of the sources of this section. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559. 1949 ACT This section restores certain provisions of the original statute, R.S. Sec. 848, which were inadvertently omitted from revised title 28, U.S.C., Sec. 1821. -REFTEXT- REFERENCES IN TEXT Subsection (c) of section 5702 of title 5, referred to in subsec. (d)(3), which related to conditions under which an employee could be reimbursed for actual and necessary expenses of official travel when the maximum per diem allowance was less than these expenses, was repealed, and subsec. (e) of section 5702 of title 5, was redesignated as subsec. (c), by Pub. L. 99-234, title I, Sec. 102, Jan. 2, 1986, 99 Stat. 1756. Section 3149 of title 18, referred to in subsec. (d)(4), which related to release of material witnesses, was repealed by Pub. L. 98-473, title II, Sec. 203(a), Oct. 12, 1984, 98 Stat. 1976. Section 203(a) of Pub. L. 98-473 also enacted a new section 3149 of Title 18, Crimes and Criminal Procedure, relating to surrender of an offender by a surety and a new section 3144 of Title 18 relating to release or detention of a material witness. -MISC2- AMENDMENTS 1990 - Subsec. (b). Pub. L. 101-650 substituted '$40' for '$30'. 1978 - Pub. L. 95-535 increased the daily witness attendance fee from $20 to $30, substituted provisions relating to compensation for the actual expenses of travel based on the form of transportation used, to a travel allowance equal to the mileage allowance under section 5704 of Title 5 for a witness travelling by privately owned vehicle, and to tolls, taxi fares, and parking fees for provisions that a witness would receive 10 cents per mile and that mileage computation would be based on a uniform table of distances regardless of the mode of travel employed, provisions relating to a subsistence allowance in amounts not to exceed those which Government employees receive for official travel for provisions that such subsistence allowance would be $16 per day, provisions relating to a witness detained for want of security for his appearance being entitled to the daily attendance fee in addition to subsistence for provisions that such a witness would be entitled to $1 per day in addition to his subsistence, and inserted provisions defining 'court of the United States' and relating to travel expenses being taxable as costs and to certain aliens being ineligible to receive fees and allowances. 1968 - Pub. L. 90-274 increased the per diem allowance from $4 to $20, increased the mileage allowance from 8 cents per mile to 10 cents per mile, increased the daily subsistence allowance from $8 to $16, and directed that witnesses in the district courts for the districts of the Canal Zone, Guam, and the Virgin Islands receive the same fees and allowances provided in this section for witnesses in other district courts of the United States. 1956 - Act Aug. 1, 1956, substituted ', or before any person authorized to take his deposition pursuant to any rule or order' for 'or person taking his disposition pursuant to any order', increased the payments for mileage from 7 to 8 cents per mile and subsistence allowance from $5 to $8 per day, and authorized the computation of mileage on the basis of a uniform table of distances adopted by the Attorney General. 1954 - Act Sept. 3, 1954, struck out language which had restricted section's applicability to those depositions taken pursuant to order of the court. 1951 - Act Oct. 31, 1951, substituted 'residences' for 'residence' in that part of second sentence which precedes first proviso. 1949 - Act May 24, 1949, inserted last par. Act May 10, 1949, increased witnesses' fees from $2 to $4 per day, mileage allowance from 5 cents to 7 cents a mile, subsistence allowance from $3 to $5 per day, and inserted provisos. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1978 AMENDMENT Section 2 of Pub. L. 95-535 provided that: 'The amendments made by this Act (amending this section) shall take effect on October 1, 1978, or on the date of enactment (Oct. 27, 1978), whichever occurs later.' EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Subpoena, see rule 45, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 604 of this title. ------DocID 36700 Document 562 of 1452------ -CITE- 28 USC Sec. 1822 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1822. Competency of interested persons; share of penalties payable -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 950.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 644 of title 18, U.S.C., 1940 ed., Criminal Code and Criminal Procedure, R.S. Sec. 5295. Changes were made in phraseology. ------DocID 36701 Document 563 of 1452------ -CITE- 28 USC Sec. 1823 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- (Sec. 1823. Repealed. Pub. L. 91-563, Sec. 5(a), Dec. 19, 1970, 84 Stat. 1478) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 950; May 24, 1949, ch. 139, Sec. 95, 63 Stat. 103; Oct. 5, 1949, ch. 601, 63 Stat. 704; July 7, 1952, ch. 581, 66 Stat. 439; July 28, 1955, ch. 424, Sec. 3, 69 Stat. 394, related to payment of witnesses fees to officers and employees of the United States. See sections 5515, 5537, 5751, and 6322 of Title 5, Government Organization and Employees. ------DocID 36702 Document 564 of 1452------ -CITE- 28 USC Sec. 1824 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1824. Mileage fees under summons as both witness and juror -STATUTE- No constructive or double mileage fees shall be allowed by reason of any person being summoned both as a witness and a juror. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 951.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 602 (May 27, 1908, ch. 200, Sec. 1, 35 Stat. 377). Words 'or as a witness in two or more cases pending in the same court and triable at the same term thereof' were omitted as covered by section 1821 of this title. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Subpoena, see rule 45, Appendix to this title. ------DocID 36703 Document 565 of 1452------ -CITE- 28 USC Sec. 1825 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1825. Payment of fees -STATUTE- (a) In any case in which the United States or an officer or agency of the United States is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States attorney or assistant United States attorney, and in the proceedings before a United States magistrate, on the certificate of such magistrate, except that any fees of defense witnesses, other than experts, appearing pursuant to subpoenas issued upon approval of the court, shall be paid by the United States marshal for the district - (1) on the certificate of a Federal public defender or assistant Federal public defender, in a criminal case in which the defendant is represented by such Federal public defender or assistant Federal public defender, and (2) on the certificate of the clerk of the court upon the affidavit of such witnesses' attendance given by other counsel appointed pursuant to section 3006A of title 18, in a criminal case in which a defendant is represented by such other counsel. (b) In proceedings in forma pauperis for a writ of habeas corpus, and in proceedings in forma pauperis under section 2255 of this title, the United States marshal for the district shall pay, on the certificate of the district judge, all fees of witnesses for the party authorized to proceed in forma pauperis, except that any fees of witnesses for such party, other than experts, appearing pursuant to subpoenas issued upon approval of the court, shall be paid by the United States marshal for the district - (1) on the certificate of a Federal public defender or assistant Federal public defender, in any such proceedings in which a party is represented by such Federal public defender or assistant Federal public defender, and (2) on the certificate of the clerk of the court upon the affidavit of such witnesses' attendance given by other counsel appointed pursuant to section 3006A of title 18, in any such proceedings in which a party is represented by such other counsel. (c) Fees and mileage need not be tendered to a witness upon service of a subpoena issued on behalf of the United States or an officer or agency of the United States, upon service of a subpoena issued on behalf of a defendant represented by a Federal public defender, assistant Federal public defender, or other attorney appointed pursuant to section 3006A of title 18, or upon service of a subpoena issued on behalf of a party authorized to proceed in forma pauperis, if the payment of such fees and mileage is to be made by the United States marshal under this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 951; Sept. 2, 1965, Pub. L. 89-162, 79 Stat. 618; Nov. 14, 1986, Pub. L. 99-651, title I, Sec. 104, 100 Stat. 3645.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 600c, 608 (R.S. Sec. 236, 823, 848, 855; June 10, 1921, ch. 18, Sec. 305, 42 Stat. 24; Apr. 26, 1926, ch. 183, Sec. 3, 44 Stat. 324; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; Oct. 13, 1941, ch. 431, Sec. 2, 55 Stat. 736; Dec. 24, 1942, ch. 825, Sec. 1, 56 Stat. 1088). Section consolidates parts of sections 600c and 608 of title 28, U.S.C., 1940 ed., relating to payment of witnesses. Other provisions of such sections are incorporated in sections 1821 and 1871 of this title. Provisions in sections 600c and 608 of title 28, U.S.C., 1940 ed., for payment or certification on order of court were omitted as unnecessary and inappropriate on recommendation of the Judicial Conference Committee on Revision of the Judicial Code. Words in section 608 of title 28, U.S.C., 1940 ed., 'to which they appear to be entitled on the certificate of attendance' following the words 'all fees' and the concluding phrase 'which sum shall be allowed the marshal in the General Accounting Office in his accounts were omitted as unnecessary.' The second paragraph is new. It conforms to Rule 45(e) of the Federal Rules of Civil Procedure but is inconsistent with Rule 17(d) of the Federal Rules of Criminal Procedure and supersedes that rule as to Federal criminal cases. The Department of Justice suggests that Rule 17(d) is unworkable. To attempt compliance each deputy marshal serving process must carry, on the average, $500 in cash on trips to serve process. The marshal must advance the money from his personal funds. The Comptroller General has not been able to set up any procedure to make it feasible to advance fees to Government witnesses. If a witness is served but fails or refuses to appear, the marshal is out of pocket the money advanced and has no recourse. In the exceptional cases of real necessity, the marshal supplies transportation to an indigent witness under established regulations which protect the disbursement. Changes were made in phraseology. AMENDMENTS 1986 - Pub. L. 99-651 amended section generally. Prior to amendment, section read as follows: 'In any case wherein the United States or an officer or agency thereof, is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States Attorney or Assistant United States Attorney, and in the proceedings before a United States Commissioner, on the certificate of such commissioner. 'In all proceedings, in forma pauperis, for a writ of habeas corpus or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis, on the certificate of the district judge. 'Fees and mileage need not be tendered to the witness upon service of a subpena issued in behalf of the United States or an officer or agency thereof, or upon service of a subpena issued on behalf of a party, authorized to proceed in forma pauperis, where the payment thereof is to be made by the United States marshal as authorized in this section.' 1965 - Pub. L. 89-162 inserted provisions that, in all proceedings in forma pauperis, for a writ of habeas corpus, or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis on the certificate of the district judge and that fees and mileage need not be tendered to the witness upon service of a subpena issued on behalf of a party authorized to proceed in forma pauperis where the payment thereof is to be made by the United States marshal as authorized in this section. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-651 effective 120 days after Nov. 14, 1986, see section 105 of Pub. L. 99-651, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure. -CROSS- CROSS REFERENCES Accounts of marshal, see section 567 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 567 of this title. ------DocID 36704 Document 566 of 1452------ -CITE- 28 USC Sec. 1826 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1826. Recalcitrant witnesses -STATUTE- (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of - (1) the court proceeding, or (2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months. (b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal. (c) Whoever escapes or attempts to escape from the custody of any facility or from any place in which or to which he is confined pursuant to this section or section 4243 of title 18, or whoever rescues or attempts to rescue or instigates, aids, or assists the escape or attempt to escape of such a person, shall be subject to imprisonment for not more than three years, or a fine of not more than $10,000, or both. -SOURCE- (Added Pub. L. 91-452, title III, Sec. 301(a), Oct. 15, 1970, 84 Stat. 932, and amended Pub. L. 98-473, title II, Sec. 1013, Oct. 12, 1984, 98 Stat. 2142.) -MISC1- AMENDMENTS 1984 - Subsec. (c). Pub. L. 98-473 added subsec. (c). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1657 of this title; title 18 section 3050. ------DocID 36705 Document 567 of 1452------ -CITE- 28 USC Sec. 1827 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1827. Interpreters in courts of the United States -STATUTE- (a) The Director of the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States. (b)(1) The Director shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters, when the Director considers certification of interpreters to be merited, for the hearing impaired (whether or not also speech impaired) and persons who speak only or primarily a language other than the English language, in judicial proceedings instituted by the United States. The Director may certify interpreters for any language if the Director determines that there is a need for certified interpreters in that language. Upon the request of the Judicial Conference of the United States for certified interpreters in a language, the Director shall certify interpreters in that language. Upon such a request from the judicial council of a circuit and the approval of the Judicial Conference, the Director shall certify interpreters for that circuit in the language requested. The judicial council of a circuit shall identify and evaluate the needs of the districts within a circuit. The Director shall certify interpreters based on the results of criterion-referenced performance examinations. The Director shall issue regulations to carry out this paragraph within 1 year after the date of the enactment of the Judicial Improvements and Access to Justice Act. (2) Only in a case in which no certified interpreter is reasonably available as provided in subsection (d) of this section, including a case in which certification of interpreters is not provided under paragraph (1) in a particular language, may the services of otherwise qualified interpreters be used. The Director shall provide guidelines to the courts for the selection of otherwise qualified interpreters, in order to ensure that the highest standards of accuracy are maintained in all judicial proceedings subject to the provisions of this chapter. (3) The Director shall maintain a current master list of all certified interpreters and otherwise qualified interpreters and shall report periodically on the use and performance of both certified and otherwise qualified interpreters in judicial proceedings instituted by the United States and on the languages for which interpreters have been certified. The Director shall prescribe, subject to periodic review, a schedule of reasonable fees for services rendered by interpreters, certified or otherwise, used in proceedings instituted by the United States, and in doing so shall consider the prevailing rate of compensation for comparable service in other governmental entities. (c)(1) Each United States district court shall maintain on file in the office of the clerk, and each United States attorney shall maintain on file, a list of all persons who have been certified as interpreters by the Director in accordance with subsection (b) of this section. The clerk shall make the list of certified interpreters for judicial proceeding available upon request. (2) The clerk of the court, or other court employee designated by the chief judge, shall be responsible for securing the services of certified interpreters and otherwise qualified interpreters required for proceedings initiated by the United States, except that the United States attorney is responsible for securing the services of such interpreters for governmental witnesses. (d)(1) The presiding judicial officer, with the assistance of the Director of the Administrative Office of the United States Courts, shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise qualified interpreter, in judicial proceedings instituted by the United States, if the presiding judicial officer determines on such officer's own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony in such judicial proceedings - (A) speaks only or primarily a language other than the English language; or (B) suffers from a hearing impairment (whether or not suffering also from a speech impairment) so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness' comprehension of questions and the presentation of such testimony. (2) Upon the motion of a party, the presiding judicial officer shall determine whether to require the electronic sound recording of a judicial proceeding in which an interpreter is used under this section. In making this determination, the presiding judicial officer shall consider, among other things, the qualifications of the interpreter and prior experience in interpretation of court proceedings; whether the language to be interpreted is not one of the languages for which the Director has certified interpreters, and the complexity or length of the proceeding. In a grand jury proceeding, upon the motion of the accused, the presiding judicial officer shall require the electronic sound recording of the portion of the proceeding in which an interpreter is used. (e)(1) If any interpreter is unable to communicate effectively with the presiding judicial officer, the United States attorney, a party (including a defendant in a criminal case), or a witness, the presiding judicial officer shall dismiss such interpreter and obtain the services of another interpreter in accordance with this section. (2) In any judicial proceedings instituted by the United States, if the presiding judicial officer does not appoint an interpreter under subsection (d) of this section, an individual requiring the services of an interpreter may seek assistance of the clerk of court or the Director of the Administrative Office of the United States Courts in obtaining the assistance of a certified interpreter. (f)(1) Any individual other than a witness who is entitled to interpretation under subsection (d) of this section may waive such interpretation in whole or in part. Such a waiver shall be effective only if approved by the presiding judicial officer and made expressly by such individual on the record after opportunity to consult with counsel and after the presiding judicial officer has explained to such individual, utilizing the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise competent interpreter, the nature and effect of the waiver. (2) An individual who waives under paragraph (1) of this subsection the right to an interpreter may utilize the services of a noncertified interpreter of such individual's choice whose fees, expenses, and costs shall be paid in the manner provided for the payment of such fees, expenses, and costs of an interpreter appointed under subsection (d) of this section. (g)(1) There are authorized to be appropriated to the Federal judiciary, and to be paid by the Director of the Administrative Office of the United States Courts, such sums as may be necessary to establish a program to facilitate the use of certified and otherwise qualified interpreters, and otherwise fulfill the provisions of this section and the Judicial Improvements and Access to Justice Act, except as provided in paragraph (3). (2) Implementation of the provisions of this section is contingent upon the availability of appropriated funds to carry out the purposes of this section. (3) Such salaries, fees, expenses, and costs that are incurred with respect to Government witnesses (including for grand jury proceedings) shall, unless direction is made under paragraph (4), be paid by the Attorney General from sums appropriated to the Department of Justice. (4) Upon the request of any person in any action for which interpreting services established pursuant to subsection (d) are not otherwise provided, the clerk of the court, or other court employee designated by the chief judge, upon the request of the presiding judicial officer, shall, where possible, make such services available to that person on a cost-reimbursable basis, but the judicial officer may also require the prepayment of the estimated expenses of providing such services. (5) Any moneys collected under this subsection may be used to reimburse the appropriations obligated and disbursed in payment for such services. (h) The presiding judicial officer shall approve the compensation and expenses payable to interpreters, pursuant to the schedule of fees prescribed by the Director under subsection (b)(3). (i) The term 'presiding judicial officer' as used in this section refers to any judge of a United States district court, including a bankruptcy judge, a United States magistrate, and in the case of grand jury proceedings conducted under the auspices of the United States attorney, a United States attorney. (j) The term 'judicial proceedings instituted by the United States' as used in this section refers to all proceedings, whether criminal or civil, including pretrial and grand jury proceedings (as well as proceedings upon a petition for a writ of habeas corpus initiated in the name of the United States by a relator) conducted in, or pursuant to the lawful authority and jurisdiction of a United States district court. The term 'United States district court' as used in this subsection includes any court which is created by an Act of Congress in a territory and is invested with any jurisdiction of a district court established by chapter 5 of this title. (k) The interpretation provided by certified or otherwise qualified interpreters pursuant to this section shall be in the simultaneous mode for any party to a judicial proceeding instituted by the United States and in the consecutive mode for witnesses, except that the presiding judicial officer, sua sponte or on the motion of a party, may authorize a simultaneous, or consecutive interpretation when such officer determines after a hearing on the record that such interpretation will aid in the efficient administration of justice. The presiding judicial officer, on such officer's motion or on the motion of a party, may order that special interpretation services as authorized in section 1828 of this title be provided if such officer determines that the provision of such services will aid in the efficient administration of justice. -SOURCE- (Added Pub. L. 95-539, Sec. 2(a), Oct. 28, 1978, 92 Stat. 2040, and amended Pub. L. 100-702, title VII, Sec. 702-710, Nov. 19, 1988, 102 Stat. 4654-4657.) -REFTEXT- 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 Pub. L. 100-702, which was approved Nov. 19, 1988. The Judicial Improvements and Access to Justice Act, referred to in subsec. (g)(1), is Pub. L. 100-702, Nov. 19, 1988, 102 Stat. 4642. For complete classification of this Act to the Code, see Short Title note set out under section 1 of this title and Tables. -MISC2- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702, Sec. 702, amended subsec. (a) generally, substituting 'certified and otherwise qualified interpreters in judicial proceedings instituted by the United States' for 'interpreters in courts of the United States'. Subsec. (b). Pub. L. 100-702, Sec. 703, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: 'The Director shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters in courts of the United States in bilingual proceedings and proceedings involving the hearing impaired (whether or not also speech impaired), and in so doing, the Director shall consider the education, training, and experience of those persons. The Director shall maintain a current master list of all interpreters certified by the Director and shall report annually on the frequency of requests for, and the use and effectiveness of, interpreters. The Director shall prescribe a schedule of fees for services rendered by interpreters.' Subsec. (c). Pub. L. 100-702, Sec. 704, amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: 'Each United States district court shall maintain on file in the office of the clerk of court a list of all persons who have been certified as interpreters, including bilingual interpreters and oral or manual interpreters for the hearing impaired (whether or not also speech impaired), by the Director of the Administrative Office of the United States Courts in accordance with the certification program established pursuant to subsection (b) of this section.' Subsec. (d). Pub. L. 100-702, Sec. 705, 710(a), designated existing provisions as par. (1), in introductory provisions, substituted 'qualified interpreter' for 'competent interpreter', 'judicial proceedings instituted by the United States' for 'any criminal or civil action initiated by the United States in a United States district court (including a petition for a writ of habeas corpus initiated in the name of the United States by a relator)', and 'such judicial proceedings' for 'such action', redesignated former pars. (1) and (2) as subpars. (A) and (B), and added par. (2). Subsec. (e)(2). Pub. L. 100-702, Sec. 710(b), substituted 'judicial proceedings instituted by the United States' for 'criminal or civil action in a United States district court'. Subsec. (g)(1) to (3). Pub. L. 100-702, Sec. 706(a), amended pars. (1) to (3) generally. Prior to amendment, pars. (1) to (3) read as follows: '(1) Except as otherwise provided in this subsection or section 1828 of this title, the salaries, fees, expenses, and costs incident to providing the services of interpreters under subsection (d) of this section shall be paid by the Director of the Administrative Office of the United States Courts from sums appropriated to the Federal judiciary. '(2) Such salaries, fees, expenses, and costs that are incurred with respect to Government witnesses shall, unless direction is made under paragraph (3) of this subsection, be paid by the Attorney General from sums appropriated to the Department of Justice. '(3) The presiding judicial officer may in such officer's discretion direct that all or part of such salaries, fees, expenses, and costs shall be apportioned between or among the parties or shall be taxed as costs in a civil action.' Subsec. (g)(4), (5). Pub. L. 100-702, Sec. 706(b), added par. (4) and redesignated former par. (4) as (5). Subsec. (h). Pub. L. 100-702, Sec. 707, amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows: 'In any action in a court of the United States where the presiding judicial officer establishes, fixes, or approves the compensation and expenses payable to an interpreter from funds appropriated to the Federal judiciary, the presiding judicial officer shall not establish, fix, or approve compensation and expenses in excess of the maximum allowable under the schedule of fees for services prescribed pursuant to subsection (b) of this section.' Subsec. (i). Pub. L. 100-702, Sec. 708, amended subsec. (i) generally. Prior to amendment, subsec. (i) read as follows: 'The term 'presiding judicial officer' as used in this section and section 1828 of this title includes a judge of a United States district court, a United States magistrate, and a referee in bankruptcy.' Subsec. (j). Pub. L. 100-702, Sec. 708, amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: 'The term 'United States district court' as used in this section and section 1828 of this title includes any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States established by section 132 of this title.' Subsec. (k). Pub. L. 100-702, Sec. 709, amended subsec. (k) generally. Prior to amendment, subsec. (k) read as follows: 'The interpretation provided by certified interpreters pursuant to this section shall be in the consecutive mode except that the presiding judicial officer, with the approval of all interested parties, may authorize a simultaneous or summary interpretation when such officer determines that such interpretation will aid in the efficient administration of justice. The presiding judicial officer on such officer's motion or on the motion of a party may order that special interpretation services as authorized in section 1828 of this title be provided if such officer determines that the provision of such services will aid in the efficient administration of justice.' -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1988 AMENDMENT Section 712 of title VII of Pub. L. 100-702 provided that: 'This title (amending this section and enacting provisions set out as notes under this section and section 1 of this title) shall become effective upon the date of enactment (Nov. 19, 1988).' EFFECTIVE DATE Section effective ninety days after Oct. 28, 1978, see section 10(b) of Pub. L. 95-539, set out as an Effective Date of 1978 Amendment note under section 602 of this title. SHORT TITLE For short title of Pub. L. 95-539 as 'Court Interpreters Act', see Short Title of 1978 Amendments note set out under section 1 of this title. IMPACT ON EXISTING PROGRAMS Section 711 of title VII of Pub. L. 100-702 provided that: 'Nothing in this title (amending this section and enacting provisions set out as notes under this section and section 1 of this title) shall be construed to terminate or diminish existing programs for the certification of interpreters.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 604 of this title. ------DocID 36706 Document 568 of 1452------ -CITE- 28 USC Sec. 1828 -EXPCITE- TITLE 28 PART V CHAPTER 119 -HEAD- Sec. 1828. Special interpretation services -STATUTE- (a) The Director of the Administrative Office of the United States Courts shall establish a program for the provision of special interpretation services in criminal actions and in civil actions initiated by the United States (including petitions for writs of habeas corpus initiated in the name of the United States by relators) in a United States district court. The program shall provide a capacity for simultaneous interpretation services in multidefendant criminal actions and multidefendant civil actions. (b) Upon the request of any person in any action for which special interpretation services established pursuant to subsection (a) are not otherwise provided, the Director, with the approval of the presiding judicial officer, may make such services available to the person requesting the services on a reimbursable basis at rates established in conformity with section 9701 of title 31, but the Director may require the prepayment of the estimated expenses of providing the services by the person requesting them. (c) Except as otherwise provided in this subsection, the expenses incident to providing services under subsection (a) of this section shall be paid by the Director from sums appropriated to the Federal judiciary. A presiding judicial officer, in such officer's discretion, may order that all or part of the expenses shall be apportioned between or among the parties or shall be taxed as costs in a civil action, and any moneys collected as a result of such order may be used to reimburse the appropriations obligated and disbursed in payment for such services. (d) Appropriations available to the Director shall be available to provide services in accordance with subsection (b) of this section, and moneys collected by the Director under that subsection may be used to reimburse the appropriations charged for such services. A presiding judicial officer, in such officer's discretion, may order that all or part of the expenses shall be apportioned between or among the parties or shall be taxed as costs in the action. -SOURCE- (Added Pub. L. 95-539, Sec. 2(a), Oct. 28, 1978, 92 Stat. 2042, and amended Pub. L. 97-258, Sec. 3(g), Sept. 13, 1982, 96 Stat. 1065.) -MISC1- AMENDMENTS 1982 - Subsec. (b). Pub. L. 97-258 substituted 'section 9701 of title 31' for 'section 501 of the Act of August 31, 1951 (ch. 376, title 5, 65 Stat. 290; 31 U.S.C. 483a)'. EFFECTIVE DATE Section effective ninety days after Oct. 28, 1978, see section 10(b) of Pub. L. 95-539, set out as an Effective Date of 1978 Amendment note under section 602 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 604, 1827, 1920 of this title. ------DocID 36707 Document 569 of 1452------ -CITE- 28 USC CHAPTER 121 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- CHAPTER 121 - JURIES; TRIAL BY JURY -MISC1- Sec. 1861. Declaration of policy. 1862. Discrimination prohibited. 1863. Plan for random jury selection. 1864. Drawing of names from the master jury wheel; completion of juror qualification form. 1865. Qualifications for jury service. 1866. Selection and summoning of jury panels. 1867. Challenging compliance with selection procedures. 1868. Maintenance and inspection of records. 1869. Definitions. 1870. Challenges. 1871. Fees. 1872. Issues of fact in Supreme Court. 1873. Admiralty and maritime cases. 1874. Actions on bonds and specialties. 1875. Protection of jurors' employment. 1876. Trial by jury in the Court of International Trade. 1877. Protection of jurors. 1878. Experimental use of a one-step summoning and qualification procedure. AMENDMENTS 1988 - Pub. L. 100-702, title VIII, Sec. 805(b), Nov. 19, 1988, 102 Stat. 4659, added item 1878. 1983 - Pub. L. 97-463, Sec. 3(2), Jan. 12, 1983, 96 Stat. 2532, added item 1877. 1980 - Pub. L. 96-417, title III, Sec. 302(b), Oct. 10, 1980, 94 Stat. 1739, added item 1876. 1978 - Pub. L. 95-572, Sec. 6(a)(2), Nov. 2, 1978, 92 Stat. 2456, added item 1875. 1968 - Pub. L. 90-274, Sec. 101, Mar. 27, 1968, 82 Stat. 53, substituted 'Declaration of policy' for 'Qualifications' as item 1861, 'Discrimination prohibited' for 'Exemptions' as item 1862, 'Plan for random jury selection' for 'Exclusion or excuse from service' as item 1863, 'Drawing of names from the master jury wheel; completion of juror qualification form' for 'Manner of drawing; jury commissioners and their compensation' as item 1864, 'Qualifications for jury service' for 'Apportionment within district; additional jury commissioners' as item 1865, 'Selection and summoning of jury panels' for 'Special petit juries; talesmen from bystanders' as item 1866, 'Challenging compliance with selection procedures' for 'Summoning jurors' as item 1867, 'Maintenance and inspection of records' for 'Disqualification of marshal or deputy' as item 1868, 'Definitions' for 'Frequency of service' as item 1869, and reenacted items 1870-1874 without change. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 5 section 8101. ------DocID 36708 Document 570 of 1452------ -CITE- 28 USC Sec. 1861 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1861. Declaration of policy -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 951; Sept. 9, 1957, Pub. L. 85-315, part V, Sec. 152, 71 Stat. 638; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 54.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 411 and 415 (Mar. 3, 1911, ch. 231, Sec. 275, 278, 38 Stat. 1164, 1165). The revised section prescribes uniform standards of qualification for jurors in Federal Courts instead of making qualifications depend upon State laws. This is in accord with proposed legislation recommended by the Judicial Conference of the United States. The last paragraph is added to exclude jurors incompetent to serve as jurors in State courts. AMENDMENTS 1968 - Pub. L. 90-274 substituted provisions declaring the policy of the United States with respect to trial by jury and the opportunity to serve on such juries for provisions setting out the required qualifications of Federal jurors, including age, citizenship, residence, freedom from conviction of certain crimes, ability to read, write, speak, and understand the English language, and capability of rendering efficient jury service. 1957 - Pub. L. 85-315 substituted 'Qualifications of Federal jurors' for 'Qualifications' in section catchline. Pub. L. 85-315 substituted 'and who has resided for a period of one year within the judicial district' for 'and resides within the judicial district', and struck out provisions which prohibited service as a grand or petit juror if a person was incompetent to serve as a grand or petit juror by the law of the State in which the district court is held. EFFECTIVE DATE OF 1968 AMENDMENT Section 104 of Pub. L. 90-274 provided that: 'This Act (amending this section and sections 1821, 1862 to 1869, and 1871 of this title, repealing section 867 of Title 48, Territories and Insular Possessions, and enacting provisions set out as notes under this section) shall become effective two hundred and seventy days after the date of enactment (Mar. 27, 1968): Provided, That this Act shall not apply in any case in which an indictment has been returned or petit jury empaneled prior to such effective date.' SHORT TITLE OF 1978 AMENDMENT Pub. L. 95-572, Sec. 1, Nov. 2, 1978, 92 Stat. 2453, provided that: 'This Act (enacting sections 1363 and 1875 of this title, amending sections 1863, 1865, 1866, 1869, and 1871 of this title, renumbering section 1363 (relating to construction of references to laws of the United States or Acts of Congress) as section 1364 of this title, and enacting provisions set out as a note under section 1363 of this title) may be cited as the 'Jury System Improvements Act of 1978'.' SHORT TITLE Section 1 of Pub. L. 90-274 provided: 'That this Act (amending this section and sections 1821, 1862 to 1869, and 1871 of this title, repealing section 867 of Title 48, Territories and Insular Possessions, and enacting provisions set out as notes under this section) may be cited as the 'Jury Selection and Service Act of 1968'.' -CROSS- 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1863, 1866, 1878 of this title. ------DocID 36709 Document 571 of 1452------ -CITE- 28 USC Sec. 1862 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1862. Discrimination prohibited -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 54; Oct. 10, 1980, Pub. L. 96-417, title III, Sec. 302(c), 94 Stat. 1739.) -MISC1- 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 - Pub. L. 96-417 prohibited discrimination against service as juror in the Court of International Trade. 1968 - Pub. L. 90-274 substituted provisions prohibiting discrimination against citizens in their service as jurors because of race, color, religion, sex, national origin, or economic status for provisions identifying three groups as exempt from jury service, including members of the armed forces on active duty, members of fire or police departments, and public officers actively engaged in the performance of official duties. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1863, 1866, 1878 of this title. ------DocID 36710 Document 572 of 1452------ -CITE- 28 USC Sec. 1863 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1863. Plan for random jury selection -STATUTE- (a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title. The plan shall be placed into operation after approval by a reviewing panel consisting of the members of the judicial council of the circuit and either the chief judge of the district whose plan is being reviewed or such other active district judge of that district as the chief judge of the district may designate. The panel shall examine the plan to ascertain that it complies with the provisions of this title. If the reviewing panel finds that the plan does not comply, the panel shall state the particulars in which the plan fails to comply and direct the district court to present within a reasonable time an alternative plan remedying the defect or defects. Separate plans may be adopted for each division or combination of divisions within a judicial district. The district court may modify a plan at any time and it shall modify the plan when so directed by the reviewing panel. The district court shall promptly notify the panel, the Administrative Office of the United States Courts, and the Attorney General of the United States, of the initial adoption and future modifications of the plan by filing copies therewith. Modifications of the plan made at the instance of the district court shall become effective after approval by the panel. Each district court shall submit a report on the jury selection process within its jurisdiction to the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. The Judicial Conference of the United States may, from time to time, adopt rules and regulations governing the provisions and the operation of the plans formulated under this title. (b) Among other things, such plan shall - (1) either establish a jury commission, or authorize the clerk of the court, to manage the jury selection process. If the plan establishes a jury commission, the district court shall appoint one citizen to serve with the clerk of the court as the jury commission: Provided, however, That the plan for the District of Columbia may establish a jury commission consisting of three citizens. The citizen jury commissioner shall not belong to the same political party as the clerk serving with him. The clerk or the jury commission, as the case may be, shall act under the supervision and control of the chief judge of the district court or such other judge of the district court as the plan may provide. Each jury commissioner shall, during his tenure in office, reside in the judicial district or division for which he is appointed. Each citizen jury commissioner shall receive compensation to be fixed by the district court plan at a rate not to exceed $50 per day for each day necessarily employed in the performance of his duties, plus reimbursement for travel, subsistence, and other necessary expenses incurred by him in the performance of such duties. The Judicial Conference of the United States may establish standards for allowance of travel, subsistence, and other necessary expenses incurred by jury commissioners. (2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title. The plan for the District of Columbia may require the names of prospective jurors to be selected from the city directory rather than from voter lists. The plans for the districts of Puerto Rico and the Canal Zone may prescribe some other source or sources of names of prospective jurors in lieu of voter lists, the use of which shall be consistent with the policies declared and rights secured by sections 1861 and 1862 of this title. (3) specify detailed procedures to be followed by the jury commission or clerk in selecting names from the sources specified in paragraph (2) of this subsection. These procedures shall be designed to ensure the random selection of a fair cross section of the persons residing in the community in the district or division wherein the court convenes. They shall ensure that names of persons residing in each of the counties, parishes, or similar political subdivisions within the judicial district or division are placed in a master jury wheel; and shall ensure that each county, parish, or similar political subdivision within the district or division is substantially proportionally represented in the master jury wheel for that judicial district, division, or combination of divisions. For the purposes of determining proportional representation in the master jury wheel, either the number of actual voters at the last general election in each county, parish, or similar political subdivision, or the number of registered voters if registration of voters is uniformly required throughout the district or division, may be used. (4) provide for a master jury wheel (or a device similar in purpose and function) into which the names of those randomly selected shall be placed. The plan shall fix a minimum number of names to be placed initially on the master jury wheel, which shall be at least one-half of 1 per centum of the total number of persons on the list used as a source of names for the district or division; but if this number of names is believed to be cumbersome and unnecessary, the plan may fix a smaller number of names to be placed in the master wheel, but in no event less than one thousand. The chief judge of the district court, or such other district court judge as the plan may provide, may order additional names to be placed in the master jury wheel from time to time as necessary. The plan shall provide for periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years. (5)(A) except as provided in subparagraph (B), specify those groups of persons or occupational classes whose members shall on individual request therefor, be excused from jury service. Such groups or classes shall be excused only if the district court finds, and the plan states, that jury service by such class or group would entail undue hardship or extreme inconvenience to the members thereof, and excuse of members thereof would not be inconsistent with sections 1861 and 1862 of this title. (B) specify that volunteer safety personnel, upon individual request, shall be excused from jury service. For purposes of this subparagraph, the term 'volunteer safety personnel' means individuals serving a public agency (as defined in section 1203(6) of title I of the Omnibus Crime Control and Safe Streets Act of 1968) in an official capacity, without compensation, as firefighters or members of a rescue squad or ambulance crew. (6) specify that the following persons are barred from jury service on the ground that they are exempt: (A) members in active service in the Armed Forces of the United States; (B) members of the fire or police departments of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession; (C) public officers in the executive, legislative, or judicial branches of the Government of the United States, or of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession, who are actively engaged in the performance of official duties. (7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require. (8) specify the procedures to be followed by the clerk or jury commission in assigning persons whose names have been drawn from the qualified jury wheel to grand and petit jury panels. (c) The initial plan shall be devised by each district court and transmitted to the reviewing panel specified in subsection (a) of this section within one hundred and twenty days of the date of enactment of the Jury Selection and Service Act of 1968. The panel shall approve or direct the modification of each plan so submitted within sixty days thereafter. Each plan or modification made at the direction of the panel shall become effective after approval at such time thereafter as the panel directs, in no event to exceed ninety days from the date of approval. Modifications made at the instance of the district court under subsection (a) of this section shall be effective at such time thereafter as the panel directs, in no event to exceed ninety days from the date of modification. (d) State, local, and Federal officials having custody, possession, or control of voter registration lists, lists of actual voters, or other appropriate records shall make such lists and records available to the jury commission or clerks for inspection, reproduction, and copying at all reasonable times as the commission or clerk may deem necessary and proper for the performance of duties under this title. The district courts shall have jurisdiction upon application by the Attorney General of the United States to compel compliance with this subsection by appropriate process. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 54; Apr. 6, 1972, Pub. L. 92-269, Sec. 2, 86 Stat. 117; Nov. 2, 1978, Pub. L. 95-572, Sec. 2(a), 92 Stat. 2453; Nov. 19, 1988, Pub. L. 100-702, title VIII, Sec. 802(b), (c), 102 Stat. 4657, 4658.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940, ed., Sec. 415 (Mar. 3, 1911, ch. 231, Sec. 278, 36 Stat. 1165). Subsections (a) and (b) are new and merely declaratory of existing practice. The phrase 'or previous condition of servitude' was omitted as obsolete. Changes were made in phraseology. -REFTEXT- 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 Pub. L. 90-351, which is classified to section 3796b(6) of Title 42, The Public Health and Welfare. The date of enactment of the Jury Selection and Service Act of 1968, referred to in subsec. (c), is the date of enactment of Pub. L. 90-274, which was approved Mar. 27, 1968. -MISC2- AMENDMENTS 1988 - Subsec. (b)(5). Pub. L. 100-702, Sec. 802(b), designated existing provisions as subpar. (A), inserted 'except as provided in subparagraph (B),', and added subpar. (B). Subsec. (b)(6). Pub. L. 100-702, Sec. 802(b), amended par. (6) generally. Prior to amendment, par. (6) read as follows: 'specify those groups of persons or occupational classes whose members shall be barred from jury service on the ground that they are exempt. Such groups or classes shall be exempt only if the district court finds, and the plan states, that their exemption is in the public interest and would not be inconsistent with sections 1861 and 1862 of this title. The plan shall provide for exemption of the following persons: (i) members in active service in the Armed Forces of the United States; (ii) members of the fire or police departments of any State, district, territory, possession, or subdivision thereof; (iii) public officers in the executive, legislative, or judicial branches of the Government of the United States, or any State, district, territory, or possession or subdivision thereof, who are actively engaged in the performance of official duties.' 1978 - Subsec. (b)(7) to (9). Pub. L. 95-572 struck out par. (7) relating to random jury selection plan provision for fixing the distance, in miles or in travel time, from each place of holding court beyond which prospective jurors residing should, on individual request, be excused from jury service on the ground of undue hardship in traveling to the place where court was held, now incorporated in definition of 'undue hardship or extreme inconvenience' in section 1869(j) of this title, and redesignated pars. (8) and (9) as (7) and (8), respectively. 1972 - Subsec. (b)(4). Pub. L. 92-269 inserted provisions requiring the master jury wheel to be emptied and refilled in not greater than four years intervals. 1968 - Subsec. (a). Pub. L. 90-274 substituted provisions requiring a written plan covering the random selection of jurors by each United States District Court and the adoption, review, and modification of the plan for provisions authorizing district judges to exclude or excuse for good cause persons called as jurors. Subsec. (b). Pub. L. 90-274 substituted provisions setting out the nine required features of a plan for random jury selection, including management by commission or clerk, selection from voter registration lists, detailed procedures for selecting names, a master jury wheel, excused or exempted groups, maximum distances of travel, disclosure of names, and procedures for assigning jurors drawn from the jury wheel to particular grand and petit jury panels, for provisions authorizing the district court to excuse, for the public interests, classes or groups upon a finding that such jury service would entail undue hardship, extreme inconvenience, or serious obstruction or delay in the fair and impartial administration of justice. Subsec. (c). Pub. L. 90-274 substituted provisions covering the transmittal of the plan to a reviewing panel and the modification thereof for provisions prohibiting the exclusion of any citizen from juror service on account of race or color. Subsec. (d). Pub. L. 90-274 added subsec. (d). EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-572 applicable with respect to any grand or petit juror summoned for service or actually serving on or after Nov. 2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. 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 Pub. L. 92-269 provided that: 'Sec. 3. (a) Each judicial district and each division or combination of divisions within a judicial district, for which a separate plan for random selection of jurors has been adopted pursuant to section 1863 of title 28, United States Code, other than the District of Columbia and the districts of Puerto Rico and the Canal Zone, shall not later than September 1, 1973, refill its master jury wheel with names obtained from the voter registration lists for, or the lists of actual voters in, the 1972 general election. '(b) The District of Columbia and the judicial districts of Puerto Rico and the Canal Zone shall not later than September 1, 1973, refill their master jury wheels from sources which include the names of persons eighteen years of age or older. '(c) The qualified jury wheel in each judicial district, and in each division or combination of divisions in a judicial district for which a separate plan for random selection of jurors has been adopted, shall be refilled from the master jury wheel not later than October 1, 1973. 'Sec. 4. (a) Nothing in this Act amending this section and section 1865 of this title shall affect the composition of any master jury wheel or qualified jury wheel prior to the date on which it is first refilled in compliance with the terms of section 3. '(b) Nothing in this Act shall affect the composition or preclude the service of any jury empaneled on or before the date on which the qualified jury wheel from which the jurors' names were drawn is refilled in compliance with the provisions of section 3.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1866, 1867, 1868 of this title. ------DocID 36711 Document 573 of 1452------ -CITE- 28 USC Sec. 1864 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1864. Drawing of names from the master jury wheel; completion of juror qualification form -STATUTE- (a) From time to time as directed by the district court, the clerk or a district judge shall publicly draw at random from the master jury wheel the names of as many persons as may be required for jury service. The clerk or jury commission may, upon order of the court, prepare an alphabetical list of the names drawn from the master jury wheel. Any list so prepared shall not be disclosed to any person except pursuant to the district court plan or pursuant to section 1867 or 1868 of this title. The clerk or jury commission shall mail to every person whose name is drawn from the master wheel a juror qualification form accompanied by instructions to fill out and return the form, duly signed and sworn, to the clerk or jury commission by mail within ten days. If the person is unable to fill out the form, another shall do it for him, and shall indicate that he has done so and the reason therefor. In any case in which it appears that there is an omission, ambiguity, or error in a form, the clerk or jury commission shall return the form with instructions to the person to make such additions or corrections as may be necessary and to return the form to the clerk or jury commission within ten days. Any person who fails to return a completed juror qualification form as instructed may be summoned by the clerk or jury commission forthwith to appear before the clerk or jury commission to fill out a juror qualification form. A person summoned to appear because of failure to return a juror qualification form as instructed who personally appears and executes a juror qualification form before the clerk or jury commission may, at the discretion of the district court, except where his prior failure to execute and mail such form was willful, be entitled to receive for such appearance the same fees and travel allowances paid to jurors under section 1871 of this title. At the time of his appearance for jury service, any person may be required to fill out another juror qualification form in the presence of the jury commission or the clerk of the court, at which time, in such cases as it appears warranted, the person may be questioned, but only with regard to his responses to questions contained on the form. Any information thus acquired by the clerk or jury commission may be noted on the juror qualification form and transmitted to the chief judge or such district court judge as the plan may provide. (b) Any person summoned pursuant to subsection (a) of this section who fails to appear as directed shall be ordered by the district court forthwith to appear and show cause for his failure to comply with the summons. Any person who fails to appear pursuant to such order or who fails to show good cause for noncompliance with the summons may be fined not more than $100 or imprisoned not more than three days, or both. Any person who willfully misrepresents a material fact on a juror qualification form for the purpose of avoiding or securing service as a juror may be fined not more than $100 or imprisoned not more than three days, or both. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 57; Nov. 19, 1988, Pub. L. 100-702, title VIII, Sec. 803(a), 102 Stat. 4658.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 412, 412a (Mar. 3, 1911, ch. 231, Sec. 276, 36 Stat. 1164; Feb. 3, 1917, ch. 27, 39 Stat. 873; May 21, 1945, ch. 129, title IV, 59 Stat. 198; July 5, 1946, ch. 541, title IV, 60 Stat. 478). The words 'The district court' were substituted for the phrase 'the judge thereof, or by the judge senior in commission in districts having more than one judge' to conform to other sections authorizing appointment of court officers. See section 751 of this title relating to appointment of district court clerk. The limitation in section 412a of title 28, U.S.C., 1940 ed., that jury commissioners shall serve no more than three days in any one term of court was omitted as unnecessary. This is a matter that may safely be left to the discretion of the court. The last paragraph was added in conformity with section 11-1401 of the District of Columbia Code, 1940 ed., providing for three jury commissioners. Changes were made in phraseology. SENATE REVISION AMENDMENT As finally enacted, act July 9, 1947, ch. 211, title IV, 61 Stat. 304, which was classified to Title 28, U.S.C., 1946 ed., Sec. 412a, was also a source of this section. Accordingly such act was included by Senate amendment in the schedule of repeals. See 80th Congress Senate Report No. 1559. AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702 amended second sentence generally. Prior to amendment, second sentence read as follows: 'The clerk or jury commission shall prepare an alphabetical list of the names drawn, which list shall not be disclosed to any person except pursuant to the district court plan and to sections 1867 and 1868 of this title.' 1968 - Pub. L. 90-274 substituted provisions for the public drawing of names from the master jury wheel, the completion of the jury qualification form, and the penalties for failure to appear and for misrepresentation of material facts for provisions requiring the drawing of names from a jury box, the refilling of the box by the clerk and a jury commissioner, the requirements and compensation of the commissioner, and the alternate placement of names by the clerk and the commissioner. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -CROSS- 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1869 of this title. ------DocID 36712 Document 574 of 1452------ -CITE- 28 USC Sec. 1865 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1865. Qualifications for jury service -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 952; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 58; Apr. 6, 1972, Pub. L. 92-269, Sec. 1, 86 Stat. 117; Nov. 2, 1978, Pub. L. 95-572, Sec. 3(a), 92 Stat. 2453; Nov. 19, 1988, Pub. L. 100-702, title VIII, Sec. 803(b), 102 Stat. 4658.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 181, 413 (Mar. 3, 1911, ch. 231, Sec. 100, 277, 36 Stat. 1121, 1164). Section consolidates a part of section 181 with section 413 of title 28, U.S.C., 1940 ed. Other provisions of said section 181 are incorporated in section 115 of this title. Word 'jurors' was changed to 'grand and petit jurors' upon authority of Agnew v. United States, 1897, 17 S.Ct. 235, 165 U.S. 36, 41 L.Ed. 624, construing such term to include both types of jurors. The last sentence of subsection (a) was added to conform with existing practice in many districts. Subsection (b) extends to all districts a provision of section 181 of title 28, U.S.C., 1940 ed., which was designed for the convenience of the districts in Ohio and permitted jurors drawn for service at Cleveland, Toledo, and Columbus to serve at Youngstown, Lima, and Steubenville, respectively. Changes were made in phraseology. AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702 substituted 'in any alphabetical' for 'the alphabetical'. 1978 - Subsec. (b)(5). Pub. L. 95-572 struck out 'by pardon or amnesty' after 'civil rights have not been restored'. 1972 - Subsec. (b)(1). Pub. L. 92-269 substituted 'eighteen years old' for 'twenty-one years old'. 1968 - Subsec. (a). Pub. L. 90-274 substituted provisions for the excusing of persons from jury service by the chief judge of the district court or by other district court judge for provisions requiring the selection of jurors so as to be most favorable to an impartial trial and so as to minimize the expense and burden of jury service. Subsec. (b). Pub. L. 90-274 substituted provisions setting out the conditions of ineligibility for jury service for provisions authorizing the service of jurors in a place within the district other than the place for which the jurors were summoned. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-572 applicable with respect to any grand or petit juror summoned for service or actually serving on or after Nov. 2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1866, 1876 of this title. ------DocID 36713 Document 575 of 1452------ -CITE- 28 USC Sec. 1866 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1866. Selection and summoning of jury panels -STATUTE- (a) The jury commission, or in the absence thereof the clerk, shall maintain a qualified jury wheel and shall place in such wheel names of all persons drawn from the master jury wheel who are determined to be qualified as jurors and not exempt or excused pursuant to the district court plan. From time to time, the jury commission or the clerk shall publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels. The jury commission or the clerk shall prepare a separate list of names of persons assigned to each grand and petit jury panel. (b) When the court orders a grand or petit jury to be drawn, the clerk or jury commission or their duly designated deputies shall issue summonses for the required number of jurors. Each person drawn for jury service may be served personally, or by registered, certified, or first-class mail addressed to such person at his usual residence or business address. If such service is made personally, the summons shall be delivered by the clerk or the jury commission or their duly designated deputies to the marshal who shall make such service. If such service is made by mail, the summons may be served by the marshal or by the clerk, the jury commission or their duly designated deputies, who shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or certified summons. (c) Except as provided in section 1865 of this title or in any jury selection plan provision adopted pursuant to paragraph (5) or (6) of section 1863(b) of this title, no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors: Provided, That any person summoned for jury service may be (1) excused by the court, or by the clerk under supervision of the court if the court's jury selection plan so authorizes, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person either shall be summoned again for jury service under subsections (b) and (c) of this section or, if the court's jury selection plan so provides, the name of such person shall be reinserted into the qualified jury wheel for selection pursuant to subsection (a) of this section, or (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations. No person shall be excluded under clause (5) of this subsection unless the judge, in open court, determines that such is warranted and that exclusion of the person will not be inconsistent with sections 1861 and 1862 of this title. The number of persons excluded under clause (5) of this subsection shall not exceed one per centum of the number of persons who return executed jury qualification forms during the period, specified in the plan, between two consecutive fillings of the master jury wheel. The names of persons excluded under clause (5) of this subsection, together with detailed explanations for the exclusions, shall be forwarded immediately to the judicial council of the circuit, which shall have the power to make any appropriate order, prospective or retroactive, to redress any misapplication of clause (5) of this subsection, but otherwise exclusions effectuated under such clause shall not be subject to challenge under the provisions of this title. Any person excluded from a particular jury under clause (2), (3), or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his ability to serve on such other jury. (d) Whenever a person is disqualified, excused, exempt, or excluded from jury service, the jury commission or clerk shall note in the space provided on his juror qualification form or on the juror's card drawn from the qualified jury wheel the specific reason therefore. (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. (f) When there is an unanticipated shortage of available petit jurors drawn from the qualified jury wheel, the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title. (g) Any person summoned for jury service who fails to appear as directed shall be ordered by the district court to appear forthwith and show cause for his failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $100 or imprisoned not more than three days, or both. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 952; May 24, 1949, ch. 179, Sec. 96, 63 Stat. 103; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 58; Dec. 11, 1970, Pub. L. 91-543, 84 Stat. 1408; Nov. 2, 1978, Pub. L. 95-572, Sec. 2(b), 92 Stat. 2453; Jan. 12, 1983, Pub. L. 97-463, Sec. 2, 96 Stat. 2531; Nov. 19, 1988, Pub. L. 100-702, title VIII, Sec. 801, 102 Stat. 4657.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 417, 418 (Mar. 3, 1911, ch. 231, Sec. 280, 281, 36 Stat. 1165). Section consolidates parts of sections 417, 418 of title 28, U.S.C., 1940 ed., with necessary changes in phraseology. The requirement of section 418 of title 28, U.S.C., 1940 ed., for the summoning of a special jury in accordance with the law of the state was omitted as unnecessary and incongruous in view of other sections of this chapter making adequate provision for summoning jurors. 1949 ACT This section amends section 1866 of title 28, U.S.C., by restoring provision of original law that special juries be impaneled in accordance with laws of the respective States. AMENDMENTS 1988 - Subsec. (c)(1). Pub. L. 100-702 amended cl. (1) generally. Prior to amendment, cl. (1) read as follows: 'excused by the court, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person shall be summoned again for jury service under subsections (b) and (c) of this section, or'. 1983 - Subsec. (b). Pub. L. 97-463, Sec. 2, inserted provision in second par. authorizing service by first-class mail of persons drawn for jury service, substituted in fourth par. 'If such service is made by mail, the summons may be served by the marshal or by the clerk, the jury commission or their duly designated deputies, who shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or certified summons' for 'If such service is made by registered or certified mail, the summons may be served by the clerk or jury commission or their duly designated deputies who shall make affidavit of service and shall file with such affidavit the addressee's receipt for the registered or certified summons' and struck out provision requiring the marshal, if service was made by the marshal, to attach to his return the addressee's receipt for the registered or certified mail. 1978 - Subsec. (c). Pub. L. 95-572 struck out introductory text reference to par. (7) of section 1863(b) of this title. 1970 - Subsec. (b). Pub. L. 91-543 inserted provisions authorizing duly designated deputies of the clerk or the jury commission to issue summonses, and deliver them to the marshal for service when personal service is to be made, and provisions authorizing, if service is made by registered or certified mail, the clerk or the jury commission or their duly designated deputies to make service of the summons. 1968 - Subsec. (a). Pub. L. 90-274 substituted provisions authorizing the commission or clerk to maintain a jury wheel of qualified jurors and to draw particular panels therefrom for provisions authorizing the marshal to summon talesmen from the bystanders when there is an insufficient number of petit jurors. Subsec. (b). Pub. L. 90-274 substituted provisions directing the clerk or jury commission to deliver summonses to the marshal for service when the court orders a grand or petit jury to be drawn and setting out the details of service for provisions requiring that, when a special jury was ordered by a district court, it had to be returned by the marshal in the same manner and form as was required in such case by the law of the State in which the district court sat. Subsecs. (c) to (g). Pub. L. 90-274 added subsecs. (c) to (g). 1949 - Act May 24, 1949, divided section into subsections and restored provisions that special juries be impaneled in accordance with State law. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-572 applicable with respect to any grand or petit juror summoned for service or actually serving on or after Nov. 2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1869 of this title. ------DocID 36714 Document 576 of 1452------ -CITE- 28 USC Sec. 1867 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1867. Challenging compliance with selection procedures -STATUTE- (a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (b) In criminal cases, before the voir dire examination begins, or within seven days after the Attorney General of the United States discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dismiss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (c) In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury. (d) Upon motion filed under subsection (a), (b), or (c) of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the grand jury, the court shall stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictment, whichever is appropriate. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title. (e) The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime, the Attorney General of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title. Nothing in this section shall preclude any person or the United States from pursuing any other remedy, civil or criminal, which may be available for the vindication or enforcement of any law prohibiting discrimination on account of race, color, religion, sex, national origin or economic status in the selection of persons for service on grand or petit juries. (f) The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this section, until after the master jury wheel has been emptied and refilled pursuant to section 1863(b)(4) of this title and all persons selected to serve as jurors before the master wheel was emptied have completed such service. The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion. Any person who discloses the contents of any record or paper in violation of this subsection may be fined not more than $1,000 or imprisoned not more than one year, or both. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953; Sept. 2, 1957, Pub. L. 85-259, 71 Stat. 583; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 59.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 416 (Mar. 3, 1911, ch. 231, Sec. 279, 36 Stat. 1165; Jan. 31, 1929, ch. 126, 45 Stat. 1145). Provisions for service by a disinterested person when marshal or his deputy is disqualified is incorporated in section 1868 of this title. Provision for payment and reimbursement of postage and registry fee were omitted as covered by section 560 of this title. Word 'summons' was substituted for 'writ of venire facias' in harmony with the Federal Rules of Civil Procedure which abolished unnecessary forms. See Rule 81(b) thereof, and Rule 12 of the Federal Rules of Criminal Procedure. Provision of section 416 of title 28, U.S.C., 1940 ed., that the receipt of the person so addressed by registered mail should be regarded as personal service, was omitted. Such omission is consistent with Rule 5(b) of the Federal Rules of Civil Procedure providing that service by mail is complete upon mailing. Provision for attachment to the return of the addressee's receipt for the summons, was inserted to cover its disposition. Provision that no mileage shall be allowed for service by mail was omitted as unnecessary. Changes were made in phraseology. AMENDMENTS 1968 - Pub. L. 90-274 substituted provisions by which a defendant may assert noncompliance with the selection procedures of the jury for provisions covering the issuance of summonses for jurors and service thereof upon jurors. 1957 - Pub. L. 85-259 inserted 'or certified' in second and third sentences. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1864, 1878 of this title. ------DocID 36715 Document 577 of 1452------ -CITE- 28 USC Sec. 1868 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1868. Maintenance and inspection of records -STATUTE- After the master jury wheel is emptied and refilled pursuant to section 1863(b)(4) of this title, and after all persons selected to serve as jurors before the master wheel was emptied have completed such service, all records and papers compiled and maintained by the jury commission or clerk before the master wheel was emptied shall be preserved in the custody of the clerk for four years or for such longer period as may be ordered by a court, and shall be available for public inspection for the purpose of determining the validity of the selection of any jury. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 60.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 416, 417 (Mar. 3, 1911, ch. 231, Sec. 279, 280, 36 Stat. 1165, Jan. 31, 1929, ch. 126, 45 Stat. 1145). Section consolidates parts of sections 416, 417 of title 28, U.S.C., 1940 ed., with necessary changes in phraseology. The remaining portion of section 416 of title 28, U.S.C., 1940 ed., constitutes section 1867 of this title. The remainder of section 417 of title 28, U.S.C., 1940 ed., is incorporated in section 1866 of this title. Words, 'in the opinion of the court, disqualified' were substituted for 'not an indifferent person, or is interested in the event of the cause'. AMENDMENTS 1968 - Pub. L. 90-274 substituted provisions for the maintenance and inspection of records in the hands of the commission or clerk before the master wheel was emptied for provisions covering the disqualification of the United States marshal or his deputy and the appointment of a disinterested person by the court. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1864 of this title. ------DocID 36716 Document 578 of 1452------ -CITE- 28 USC Sec. 1869 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1869. Definitions -STATUTE- For purposes of this chapter - (a) 'clerk' and 'clerk of the court' shall mean the clerk of the district court of the United States, any authorized deputy clerk, and any other person authorized by the court to assist the clerk in the performance of functions under this chapter; (b) 'chief judge' shall mean the chief judge of any district court of the United States; (c) 'voter registration lists' shall mean the official records maintained by State or local election officials of persons registered to vote in either the most recent State or the most recent Federal general election, or, in the case of a State or political subdivision thereof that does not require registration as a prerequisite to voting, other official lists of persons qualified to vote in such election. The term shall also include the list of eligible voters maintained by any Federal examiners pursuant to the Voting Rights Act of 1965 where the names on such list have not been included on the official registration lists or other official lists maintained by the appropriate State or local officials. With respect to the districts of Guam and the Virgin Islands, 'voter registration lists' shall mean the official records maintained by territorial election officials of persons registered to vote in the most recent territorial general election; (d) 'lists of actual voters' shall mean the official lists of persons actually voting in either the most recent State or the most recent Federal general election; (e) 'division' shall mean: (1) one or more statutory divisions of a judicial district; or (2) in statutory divisions that contain more than one place of holding court, or in judicial districts where there are no statutory divisions, such counties, parishes, or similar political subdivisions surrounding the places where court is held as the district court plan shall determine: Provided, That each county, parish, or similar political subdivision shall be included in some such division; (f) 'district court of the United States', 'district court', and 'court' shall mean any district court established by chapter 5 of this title, and any court which is created by Act of Congress in a territory and is invested with any jurisdiction of a district court established by chapter 5 of this title; (g) 'jury wheel' shall include any device or system similar in purpose or function, such as a properly programed electronic data processing system or device; (h) 'juror qualification form' shall mean a form prescribed by the Administrative Office of the United States Courts and approved by the Judicial Conference of the United States, which shall elicit the name, address, age, race, occupation, education, length of residence within the judicial district, distance from residence to place of holding court, prior jury service, and citizenship of a potential juror, and whether he should be excused or exempted from jury service, has any physical or mental infirmity impairing his capacity to serve as juror, is able to read, write, speak, and understand the English language, has pending against him any charge for the commission of a State or Federal criminal offense punishable by imprisonment for more than one year, or has been convicted in any State or Federal court of record of a crime punishable by imprisonment for more than one year and has not had his civil rights restored. The form shall request, but not require, any other information not inconsistent with the provisions of this title and required by the district court plan in the interests of the sound administration of justice. The form shall also elicit the sworn statement that his responses are true to the best of his knowledge. Notarization shall not be required. The form shall contain words clearly informing the person that the furnishing of any information with respect to his religion, national origin, or economic status is not a prerequisite to his qualification for jury service, that such information need not be furnished if the person finds it objectionable to do so, and that information concerning race is required solely to enforce nondiscrimination in jury selection and has no bearing on an individual's qualification for jury service. (i) 'public officer' shall mean a person who is either elected to public office or who is directly appointed by a person elected to public office; (j) 'undue hardship or extreme inconvenience', as a basis for excuse from immediate jury service under section 1866(c)(1) of this chapter, shall mean great distance, either in miles or traveltime, from the place of holding court, grave illness in the family or any other emergency which outweighs in immediacy and urgency the obligation to serve as a juror when summoned, or any other factor which the court determines to constitute an undue hardship or to create an extreme inconvenience to the juror; and in addition, in situations where it is anticipated that a trial or grand jury proceeding may require more than thirty days of service, the court may consider, as a further basis for temporary excuse, severe economic hardship to an employer which would result from the absence of a key employee during the period of such service; (k) 'publicly draw', as referred to in sections 1864 and 1866 of this chapter, shall mean a drawing which is conducted within the district after reasonable public notice and which is open to the public at large under the supervision of the clerk or jury commission, except that when a drawing is made by means of electronic data processing, 'publicly draw' shall mean a drawing which is conducted at a data processing center located in or out of the district, after reasonable public notice given in the district for which juror names are being drawn, and which is open to the public at large under such supervision of the clerk or jury commission as the Judicial Conference of the United States shall by regulation require; and (l) 'jury summons' shall mean a summons issued by a clerk of court, jury commission, or their duly designated deputies, containing either a preprinted or stamped seal of court, and containing the name of the issuing clerk imprinted in preprinted, type, or facsimile manner on the summons or the envelopes transmitting the summons. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953; Oct. 16, 1963, Pub. L. 88-139, Sec. 2, 77 Stat. 248; Mar. 27, 1968, Pub. L. 90-274, Sec. 101, 82 Stat. 61; July 29, 1970, Pub. L. 91-358, title I, Sec. 172(b), 84 Stat. 590; Sept. 29, 1972, Pub. L. 92-437, Sec. 1, 86 Stat. 740; Nov. 2, 1978, Pub. L. 95-572, Sec. 3(b), 4, 92 Stat. 2453; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 243, 92 Stat. 2671; Nov. 14, 1986, Pub. L. 99-650, Sec. 3, 100 Stat. 3641; Nov. 19, 1988, Pub. L. 100-702, title VIII, Sec. 802(a), 804, 102 Stat. 4657, 4658.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 423 (Mar. 3, 1911, ch. 231, Sec. 286, 36 Stat. 1166). Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Voting Rights Act of 1965, referred to in subsec. (c), is Pub. L. 89-110, Aug. 6, 1965, 79 Stat. 437, as amended, which is classified generally to subchapters I-A (Sec. 1973 et seq.), I-B (Sec. 1973aa et seq.), and I-C (Sec. 1973bb et seq.) of chapter 20 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 1973 of Title 42 and Tables. -MISC2- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-702, Sec. 802(a), amended subsec. (a) generally, substituting ', any authorized deputy clerk, and any other person authorized by the court to assist the clerk in the performance of functions under this chapter' for 'or any authorized deputy clerk'. Subsec. (f). Pub. L. 100-702, Sec. 804, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: ' 'district court of the United States', 'district court', and 'court' shall mean courts constituted under chapter 5 of title 28, United States Code, section 22 of the Organic Act of Guam, as amended (64 Stat. 389; 48 U.S.C. 1424), section 21 of the Revised Organic Act of the Virgin Islands (68 Stat. 506; 48 U.S.C. 1611), and section 1 of title 3, Canal Zone Code;;'. 1986 - Subsec. (f). Pub. L. 99-650 struck out 'except that for purposes of sections 1861, 1862, 1866(c), 1866(d), and 1867 of this chapter such terms shall include the Superior Court of the District of Columbia' after 'Canal Zone Code;'. 1978 - Subsec. (f). Pub. L. 95-598 directed the amendment of subsec. (f) by inserting 'chapter 6 of title 28, United States Code,' after 'chapter 5 of title 28, United States Code,', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Subsec. (h). Pub. L. 95-572, Sec. 3(b), struck out 'by pardon or amnesty' after 'civil rights restored'. Subsecs. (j) to (l). Pub. L. 95-572, Sec. 4, added subsecs. (j) to (l). 1972 - Subsec. (h). Pub. L. 92-437 added race and occupation to the particulars to be elicited on the juror qualification form, in provisions distinguishing between information to be requested and information to be required, struck out 'race and occupation of a potential juror', and in information to be contained in the form, struck out 'race, color' and 'occupation' from the particulars, and required additional material to be contained in the form that information concerning race is required solely to enforce nondiscrimination in jury selection and that it has no bearing on an individual's qualification for jury service. 1970 - Subsec. (f). Pub. L. 91-358 substituted reference to the Superior Court of the District of Columbia for references to the District of Columbia Court of General Sessions and the Juvenile Court of the District of Columbia. 1968 - Pub. L. 90-274 substituted provisions defining 'clerk', 'clerk of the court', 'chief judge', 'voter registration lists', 'list of actual voters', 'division', 'district court', 'jury wheel', 'juror qualification form', and 'public officer' for provisions allowing the challenge of a petit juror who had been summoned and attended court as a petit juror at any session held within one year prior to the challenge. 1963 - Pub. L. 88-139 substituted 'session' for 'term'. EFFECTIVE DATE OF 1986 AMENDMENT Section 4(a) of Pub. L. 99-650 provided in part that: 'The provisions of this Act (amending this section) shall take effect 180 days after the date of enactment of this Act (Nov. 14, 1986)'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-572 applicable with respect to any grand or petit juror summoned for service or actually serving on or after Nov. 2, 1978, see section 7(a) of Pub. L. 95-572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Section 2 of Pub. L. 92-437 provided that: 'This Act (amending this section) shall take effect on the sixtieth day after the date of its enactment (Sept. 29, 1972).' EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-358 effective first day of seventh calendar month which begins after July 29, 1970, see section 199(a) of Pub. L. 91-358, set out as a note under section 1257 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. ------DocID 36717 Document 579 of 1452------ -CITE- 28 USC Sec. 1870 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1870. Challenges -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953; Sept. 16, 1959, Pub. L. 86-282, 73 Stat. 565.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 424 (Mar. 3, 1911, ch. 231, Sec. 287, 36 Stat. 1166). Provisions of section 424 of title 28, U.S.C., 1940 ed., relating to the number of peremptory challenges in criminal cases were deleted as superseded by Rule 24 of the Federal Rules of Criminal Procedure. The last sentence of the first paragraph was added to permit the same flexibility in the matter of challenges in civil cases as is permitted in criminal cases by said Rule 24. Words 'without aid of triers' at end of section 424 of title 28, U.S.C., 1940 ed., were omitted as surplusage. Changes were made in phraseology. AMENDMENTS 1959 - Pub. L. 86-282 substituted 'may' for 'shall' after 'several plaintiffs', and ', or the court may allow' for '. If there is more than one defendant the court may allow the defendants'. -CROSS- 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 394 of Title 33, Navigation and Navigable Waters. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1876 of this title. ------DocID 36718 Document 580 of 1452------ -CITE- 28 USC Sec. 1871 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1871. Fees -STATUTE- (a) Grand and petit jurors in district courts appearing pursuant to this chapter shall be paid the fees and allowances provided by this section. The requisite fees and allowances shall be disbursed on the certificate of the clerk of court in accordance with the procedure established by the Director of the Administrative Office of the United States Courts. Attendance fees for extended service under subsection (b) of this section shall be certified by the clerk only upon the order of a district judge. (b)(1) A juror shall be paid an attendance fee of $40 per day for actual attendance at the place of trial or hearing. A juror shall also be paid the attendance fee for the time necessarily occupied in going to and returning from such place at the beginning and end of such service or at any time during such service. (2) A petit juror required to attend more than thirty days in hearing one case may be paid, in the discretion of the trial judge, an additional fee, not exceeding $10 more than the attendance fee, for each day in excess of thirty days on which he is required to hear such case. (3) A grand juror required to attend more than forty-five days of actual service may be paid, in the discretion of the district judge in charge of the particular grand jury, an additional fee, not exceeding $10 more than the attendance fee, for each day in excess of forty-five days of actual service. (4) A grand or petit juror required to attend more than ten days of actual service may be paid, in the discretion of the judge, the appropriate fees at the end of the first ten days and at the end of every ten days of service thereafter. (5) Certification of additional attendance fees may be ordered by the judge to be made effective commencing on the first day of extended service, without reference to the date of such certification. (c)(1) A travel allowance not to exceed the maximum rate per mile that the Director of the Administrative Office of the United States Courts has prescribed pursuant to section 604(a)(7) of this title for payment to supporting court personnel in travel status using privately owned automobiles shall be paid to each juror, regardless of the mode of transportation actually employed. The prescribed rate shall be paid for the distance necessarily traveled to and from a juror's residence by the shortest practical route in going to and returning from the place of service. Actual mileage in full at the prescribed rate is payable at the beginning and at the end of a juror's term of service. (2) The Director shall promulgate rules regulating interim travel allowances to jurors. Distances traveled to and from court should coincide with the shortest practical route. (3) Toll charges for toll roads, bridges, tunnels, and ferries shall be paid in full to the juror incurring such charges. In the discretion of the court, reasonable parking fees may be paid to the juror incurring such fees upon presentation of a valid parking receipt. Parking fees shall not be included in any tabulation of mileage cost allowances. (4) Any juror who travels to district court pursuant to summons in an area outside of the contiguous forty-eight States of the United States shall be paid the travel expenses provided under this section, or actual reasonable transportation expenses subject to the discretion of the district judge or clerk of court as circumstances indicate, exercising due regard for the mode of transportation, the availability of alternative modes, and the shortest practical route between residence and court. (d)(1) A subsistence allowance covering meals and lodging of jurors shall be established from time to time by the Director of the Administrative Office of the United States Courts pursuant to section 604(a)(7) of this title, except that such allowance shall not exceed the allowance for supporting court personnel in travel status in the same geographical area. Claims for such allowance shall not require itemization. (2) A subsistence allowance shall be paid to a juror when an overnight stay is required at the place of holding court, and for the time necessarily spent in traveling to and from the place of attendance if an overnight stay is required. (3) A subsistence allowance for jurors serving in district courts outside of the contiguous forty-eight States of the United States shall be allowed at a rate not to exceed that per diem allowance which is paid to supporting court personnel in travel status in those areas where the Director of the Administrative Office of the United States Courts has prescribed an increased per diem fee pursuant to section 604(a)(7) of this title. (e) During any period in which a jury is ordered to be kept together and not to separate, the actual cost of subsistence shall be paid upon the order of the court in lieu of the subsistence allowances payable under subsection (d) of this section. Such allowance for the jurors ordered to be kept separate or sequestered shall include the cost of meals, lodging, and other expenditures ordered in the discretion of the court for their convenience and comfort. (f) A juror who must necessarily use public transportation in traveling to and from court, the full cost of which is not met by the transportation expenses allowable under subsection (c) of this section on account of the short distance traveled in miles, may be paid, in the discretion of the court, the actual reasonable expense of such public transportation, pursuant to the methods of payment provided by this section. Jurors who are required to remain at the court beyond the normal business closing hour for deliberation or for any other reason may be transported to their homes, or to temporary lodgings where such lodgings are ordered by the court, in a manner directed by the clerk and paid from funds authorized under this section. (g) The Director of the Administrative Office of the United States Courts shall promulgate such regulations as may be necessary to carry out his authority under this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953; May 24, 1949, ch. 139, Sec. 97, 63 Stat. 103; July 14, 1949, ch. 333, 63 Stat. 411; Sept. 7, 1957, Pub. L. 85-299, 71 Stat. 618; Sept. 2, 1965, Pub. L. 89-165, 79 Stat. 645; Mar. 27, 1968, Pub. L. 90-274, Sec. 102(a), 82 Stat. 62; Nov. 2, 1978, Pub. L. 95-572, Sec. 5, 92 Stat. 2454; Dec. 1, 1990, Pub. L. 101-650, title III, Sec. 314(b), 104 Stat. 5115.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 600, 600a, 600b, 608, and sections 11-1512 and 11-1513 of the D.C. Code, 1940 ed., (R.S. Sec. 236, 323; Apr. 26, 1926, ch. 183, Sec. 1, 2, 44 Stat. 323; May 17, 1932, ch. 190, 47 Stat. 158; Oct. 13, 1941, ch. 431, Sec. 2, 55 Stat. 736). Section consolidates section 600 of title 28, U.S.C., 1940 ed., and sections 11-1512 and 11-1513 of the D.C. Code, 1940 ed., with part of section 608 of title 28, U.S.C., 1940 ed. The remainder of such section 608, relating to payment of witnesses' compensation, is the basis of section 1825 of this title. Words 'place of service' were substituted for references to attendance at court, in view of the earlier reference to service before commissioners. The Advisory Committee to the House Committee on Revision of the Laws in revision of this title, recommends a careful study of the compensation of witnesses and jurors. Furthermore, provision should be made for the subsistence of jurors and witnesses serving at such distance from their homes as precludes daily travel to and from the court. Changes were made in phraseology. 1949 ACT This section incorporates in section 1871 of title 28, U.S.C., with changes in phraseology, the provisions of act of June 25, 1948 (ch. 652, 62 Stat. 1016), which became law subsequent to the enactment of the revision. AMENDMENTS 1990 - Subsec. (b). Pub. L. 101-650 substituted '$40' for '$30' in par. (1) and '$10' for '$5' in pars. (2) and (3). 1978 - Subsecs. (a) to (g). Pub. L. 95-572, in revising text, substituted subsecs. (a) to (g) for prior five unnumbered paragraphs, and among other changes, deleted reference to fees for service before United States commissioners, now provided for in chapter 43 (section 631 et seq.) of this title relating to United States magistrates; increased to $30 from $20 allowance for actual attendance; continued the discretionary additional fee for extended service, increasing to forty-five from thirty days the basic service requirement; generalized travel allowance provisions in place of 10 cents per mile travel allowance from residence to place of service when commencing and terminating service and any necessary daily or interim travel, not to exceed a subsistence allowance of $16 per day; and deleted provision for same fees for service in districts courts for districts of Guam and Canal Zone as provided for services in other Federal district courts as covered in definition of 'district court of the United States' in section 1869(f) of this title. 1968 - Pub. L. 90-274 increased from $10 to $20 the per diem allowance for grand and petit jurors, increased from $14 to $25 the fee for extra days in cases requiring attendance in excess of 30 days, increased from $10 to $16 the daily subsistence rate when travel appears impracticable, increased from $10 to $20 per day the limit after which payment of fees by the marshal must be on the certificate of the trial judge, provided for the allowance of amounts expended for tolls, for toll roads, for toll tunnels, and for toll bridges, and directed that grand and petit jurors in the district courts for the districts of Guam and the Canal Zone receive the same fees and allowances provided for grand and petit jurors in other district courts of the United States. 1965 - Pub. L. 89-165 increased from $7 to $10 the per diem allowance for grand and petit jurors, increased from $10 to $14 the fee for extra days in cases requiring attendance in excess of 30 days, prohibited payment for interim or daily travel at the 10-cent-per-mile rate in excess of the subsistence allowance which would have been paid if he had remained at the place of holding court overnight or during temporary recess, increased from $7 to $10 the daily subsistence rate when travel daily appears impracticable, and increased from $7 to $10 per day the limit after which payment of fees by the marshal must be on the certificate of the trial judge. 1957 - Pub. L. 85-299 increased from 7 to 10 cents per mile and $5 to $7 per day the mileage and subsistence allowances of grand and petit jurors. 1949 - Act July 14, 1949, increased the per diem fee paid jurors from $5 to $7, provided for per diem fee payments not to exceed $10 for each day in excess of thirty days, increased the mileage payment from 5 cents per mile to 7 cents, and provided for the certification of the judge in cases where the jury fee is in excess of $7 per diem. Act May 24, 1949, increased jury fees and mileage and subsistence allowances. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-572 applicable with respect to any grand or petit juror serving on or after the sixtieth day following Nov. 2, 1978, see section 7(b) of Pub. L. 95-572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90-274, set out as a note under section 1861 of this title. REFRESHMENT OF JURORS Pub. L. 101-162, title IV, Nov. 21, 1989, 103 Stat. 1012, provided: 'That for fiscal year 1990 and hereafter, funds appropriated under this heading (Courts of Appeals, District Courts and Other Judicial Services and fees of jurors and commissioners) shall be available for refreshment of jurors.' -CROSS- CROSS REFERENCES Accounts of marshal, see section 567 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 567, 1864, 1876 of this title. ------DocID 36719 Document 581 of 1452------ -CITE- 28 USC Sec. 1872 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1872. Issues of fact in Supreme Court -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 343 (Mar. 3, 1911, ch. 231, Sec. 235, 36 Stat. 1156). Changes were made in phraseology. ------DocID 36720 Document 582 of 1452------ -CITE- 28 USC Sec. 1873 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1873. Admirality and maritime cases -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 770 (R.S. Sec. 566, 648; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Words 'and Territories' following words 'in different States' were omitted as obsolete. The act of February 26, 1845, ch. 20, 5 Stat. 726, from which this language was derived was intended primarily to cover the Great Lakes regions. The first sentence of section 770 of title 28, U.S.C., 1940 ed., providing generally for the right of jury trials in district courts, was omitted as covered by Rule 38 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -CROSS- 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. ------DocID 36721 Document 583 of 1452------ -CITE- 28 USC Sec. 1874 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1874. Actions on bonds and specialties -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 953.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 785 (R.S. Sec. 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. ------DocID 36722 Document 584 of 1452------ -CITE- 28 USC Sec. 1875 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1875. Protection of jurors' employment -STATUTE- (a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States. (b) Any employer who violates the provisions of this section - (1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation; (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and (3) shall be subject to a civil penalty of not more than $1,000 for each violation as to each employee. (c) Any individual who is reinstated to a position of employment in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during his period of jury service, shall be reinstated to his position of employment without loss of seniority, and shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such individual entered upon jury service. (d)(1) An individual claiming that his employer has violated the provisions of this section may make application to the district court for the district in which such employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid to the extent provided by section 3006A of title 18, United States Code. (2) In any action or proceeding under this section, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney's fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to paragraph (1) of this subsection. The court may award a prevailing employer a reasonable attorney's fee as part of the costs only if the court finds that the action is frivolous, vexatious, or brought in bad faith. -SOURCE- (Added Pub. L. 95-572, Sec. 6(a)(1), Nov. 2, 1978, 92 Stat. 2456, and amended Pub. L. 97-463, Sec. 1, Jan. 12, 1983, 96 Stat. 2531.) -MISC1- AMENDMENTS 1983 - Subsec. (d)(1). Pub. L. 97-463, Sec. 1(1), substituted designation '(d)(1)' for '(d)' before 'An individual claiming'. Subsec. (d)(2). Pub. L. 97-463, Sec. 1(2), inserted provision empowering the court to tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to par. (1) of this subsection and, in existing provisions, substituted 'only if the court finds that the action is frivolous' for 'if the court determines that the action is frivolous'. 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 Pub. L. 95-572, set out as a note under section 1363 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1363 of this title. ------DocID 36723 Document 585 of 1452------ -CITE- 28 USC Sec. 1876 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1876. Trial by jury in the Court of International Trade -STATUTE- (a) In any civil action in the Court of International Trade which is to be tried before a jury, the jury shall be selected in accordance with the provisions of this chapter and under the procedures set forth in the jury selection plan of the district court for the judicial district in which the case is to be tried. (b) Whenever the Court of International Trade conducts a jury trial - (1) the clerk of the district court for the judicial district in which the Court of International Trade is sitting, or an authorized deputy clerk, shall act as clerk of the Court of International Trade for the purposes of selecting and summoning the jury; (2) the qualifications for jurors shall be the same as those established by section 1865(b) of this title for jurors in the district courts of the United States; (3) each party shall be entitled to challenge jurors in accordance with section 1870 of this title; and (4) jurors shall be compensated in accordance with section 1871 of this title. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 302(a), Oct. 10, 1980, 94 Stat. 1739.) -MISC1- EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(C) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. ------DocID 36724 Document 586 of 1452------ -CITE- 28 USC Sec. 1877 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1877. Protection of jurors -STATUTE- (a) Subject to the provisions of this section and title 5 of the United States Code, subchapter 1 of chapter 81, title 5, United States Code, applies to a Federal grand or petit juror, except that entitlement to disability compensation payments does not commence until the day after the date of termination of service as a juror. (b) In administering this section with respect to a juror covered by this section - (1) a juror is deemed to receive monthly pay at the minimum rate for grade GS-2 of the General Schedule unless his actual pay as a Government employee while serving on court leave is higher, in which case monthly pay is determined in accordance with section 8114 of title 5, United States Code, and (2) performance of duty as a juror includes that time when a juror is (A) in attendance at court pursuant to a summons, (B) in deliberation, (C) sequestered by order of a judge, or (D) at a site, by order of the court, for the taking of a view. -SOURCE- (Added Pub. L. 97-463, Sec. 3(1), Jan. 12, 1983, 96 Stat. 2531.) ------DocID 36725 Document 587 of 1452------ -CITE- 28 USC Sec. 1878 -EXPCITE- TITLE 28 PART V CHAPTER 121 -HEAD- Sec. 1878. Experimental use of a one-step summoning and qualification procedure -STATUTE- (a) The Judicial Conference of the United States is hereby authorized to develop and conduct an experiment in which jurors serving in a limited number of United States district courts shall be qualified and summoned in a single procedure, in lieu of the two separate procedures otherwise provided for by this chapter. The Judicial Conference shall designate the district courts to participate in this experiment, but in no event shall the number of courts participating exceed ten. An experiment may be conducted pursuant to this section for a period not to exceed 2 years. The Judicial Conference shall ensure that an experiment conducted pursuant to this section does not violate the policies and objectives set forth in sections 1861 and 1862 of this title, and shall terminate the experiment immediately if it determines that these policies and objectives are being violated or whenever in its judgment good cause for such termination exists. (b) Jury selection conducted pursuant to this section shall be subject to challenge under section 1867 of this title for substantial failure to comply with the provisions of this title in selecting the jury. However, no challenge under section 1867 of this title shall lie solely on the basis that a jury was selected in accordance with an experiment conducted pursuant to this section. -SOURCE- (Added Pub. L. 100-702, title VIII, Sec. 805(a), Nov. 19, 1988, 102 Stat. 4658.) ------DocID 36726 Document 588 of 1452------ -CITE- 28 USC CHAPTER 123 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- CHAPTER 123 - FEES AND COSTS -MISC1- Sec. 1911. Supreme Court. 1912. Damages and costs on affirmance. 1913. Courts of appeals. 1914. District court; filing and miscellaneous fees; rules of court. 1915. Proceedings in forma pauperis. 1916. Seamen's suits. 1917. District courts; fee on filing notice of or petition for appeal. 1918. District courts; fines, forfeitures and criminal proceedings. 1919. District courts; dismissal for lack of jurisdiction. 1920. Taxation of costs. 1921. United States marshal's fees. 1922. Witness fees before United States commissioners. 1923. Docket fees and costs of briefs. 1924. Verification of bill of costs. 1925. Admiralty and maritime cases. 1926. Claims Court. 1927. Counsel's liability for excessive costs. 1928. Patent infringement action; disclaimer not filed. 1929. Extraordinary expenses not expressly authorized. 1930. Bankruptcy fees. 1931. Disposition of filing fees. AMENDMENTS 1988 - Pub. L. 100-702, title X, Sec. 1020(a)(8), Nov. 19, 1988, 102 Stat. 4672, substituted 'court' for 'courts' after 'District' in item 1914. 1986 - Pub. L. 99-500, Sec. 101(b) (title IV, Sec. 407(d)), Oct. 18, 1986, 100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, Sec. 101(b) (title IV, Sec. 407(d)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64, added item 1931. 1984 - Pub. L. 98-353, title I, Sec. 111(c), July 10, 1984, 98 Stat. 343, substituted 'fees' for 'courts' in item 1930. Notwithstanding directory language that the amendment be made to the table of sections for chapter 125 of this title, the amendment was executed to the table of sections for chapter 123 of this title to reflect the probable intent of Congress. 1982 - Pub. L. 97-164, title I, Sec. 139(p)(2), Apr. 2, 1982, 96 Stat. 44, substituted 'Claims Court' for 'Court of Customs and Patent Appeals' in item 1926. 1978 - Pub. L. 95-598, title II, Sec. 246(b), Nov. 6, 1978, 92 Stat. 2672, added item 1930. -CROSS- CROSS REFERENCES Jury fees, see section 1871 of this title. Witnesses, fees and subsistence, see section 1821 et seq. of this title. -SECREF- 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. ------DocID 36727 Document 589 of 1452------ -CITE- 28 USC Sec. 1911 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1911. Supreme Court -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 954.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 330 (Mar. 3, 1911, ch. 231, Sec. 223, 36 Stat. 1153). The second paragraph was inserted to give statutory sanction to existing practice. Changes were made in phraseology. -CROSS- 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 section 671 of this title. ------DocID 36728 Document 590 of 1452------ -CITE- 28 USC Sec. 1912 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1912. Damages and costs on affirmance -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 954.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 878, and section 1141(c)(4) of title 26 U.S.C., 1940 ed., Internal Revenue Code (R.S. Sec. 1010; Mar. 3, 1911, ch. 231, Sec. 117, 289, 36 Stat. 1131, 1167; Feb. 10, 1939, ch. 2, Sec. 1141(c)(4), 53 Stat. 165). Section consolidates section 878 of title 28 with section 1141(c)(4) of title 26, both U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation. Words 'prevailing party' were substituted for 'the respondents in error,' contained in said section 878 of title 28, since writs of error have been abolished. SENATE REVISION AMENDMENT By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore, section 1141(c)(4) of Title 26, U.S.C., Internal Revenue Code, was not one of the sources of this section as finally enacted. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559. -CROSS- 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. ------DocID 36729 Document 591 of 1452------ -CITE- 28 USC Sec. 1913 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1913. Courts of appeals -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 954.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 543 (Mar. 3, 1891, ch. 517, Sec. 2, 26 Stat. 826; Feb. 19, 1897, ch. 263, 29 Stat. 536; Sept. 27, 1944, ch. 413, 58 Stat. 743). Words 'and in the United States Circuit Court of Appeals for the District of Columbia' were omitted as covered by 'each court of appeals.' Judicial Conference of Senior Circuit Judges was changed to Judicial Conference 'of the United States' in conformity with section 331 of this title. Changes were made in phraseology. COURT FEES FOR ELECTRONIC ACCESS TO INFORMATION Pub. L. 101-515, title IV, Sec. 404, Nov. 5, 1990, 104 Stat. 2132, provided that: '(a) The Judicial Conference shall prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, and 1930 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment. These fees may distinguish between classes of persons, and shall provide for exempting persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information. The Director, under the direction of the Judicial Conference of the United States, shall prescribe a schedule of reasonable fees for electronic access to information which the Director is required to maintain and make available to the public. '(b) The Judicial Conference and the Director shall transmit each schedule of fees prescribed under paragraph (a) to the Congress at least 30 days before the schedule becomes effective. All fees hereafter collected by the Judiciary under paragraph (a) as a charge for services rendered shall be deposited as offsetting collections to the Judiciary Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A) to reimburse expenses incurred in providing these services.' JUDICIAL CONFERENCE SCHEDULE OF FEES (AS AMENDED TO JANUARY 2, 1990) Fees to be charged for services performed by clerks of courts of appeals (except that no fees are to be charged for services rendered on behalf of the United States). 1. For docketing a case on appeal or review, or docketing any other proceeding, $100.00. A separate fee shall be paid by each party filing a notice of appeal in the district court, but parties filing a joint notice of appeal in the district court are required to pay only one fee. A docketing fee shall not be charged for the docketing of an application for the allowance of an interlocutory appeal under 28 U.S.C. Sec. 1292(b), unless the appeal is allowed. 2. For every search of the records of the court and certifying the results thereof, $15.00. 3. For certification or exemplification of any document or paper, whether the certification is made directly on the document, or by separate instrument, $5.00. 4. For reproducing any record or paper, 50 cents per page. This fee shall apply to paper copies made from either: (1) original documents; or (2) microfiche or microfilm reproductions of the original records. 5. For reproduction of magnetic tape recordings, either cassette or reel-to-reel, $15.00 including the cost of materials. 6. For reproduction of the record in any appeal in which the requirement of an appendix is dispensed with by any court of appeals pursuant to Rule 30(f), F.R.A.P., a flat fee of $25.00. 7. For each microfiche or microfilm copy of any court record, where available, $3.00. 8. For retrieval of a record from a Federal Records Center, National Archives, or other storage location removed from the place of business of the court, $25.00. 9. For a check paid into the court which is returned for lack of funds, $25.00. 10. Fees to be charged and collected for copies of opinions shall be fixed, from time to time, by each court, commensurate with the cost of printing. 11. The court may charge and collect fees, commensurate with the cost of printing, for copies of the local rules of court. The court may also distribute copies of the local rules without charge. 12. The clerk shall assess a charge of up to three percent for the handling of registry funds, to be assessed from interest earnings and in accordance with the detailed fee schedule issued by the Director of the Administrative Office of the United States Courts. -CROSS- CROSS REFERENCES Fees and costs, see rules of the various Courts of Appeals. Power of Judicial Conference of the United States, see section 331 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2077 of this title. ------DocID 36730 Document 592 of 1452------ -CITE- 28 USC Sec. 1914 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1914. District court; filing and miscellaneous fees; rules of court -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 954; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 244, 92 Stat. 2671; June 19, 1986, Pub. L. 99-336, Sec. 4(a), 100 Stat. 637; Oct. 18, 1986, Pub. L. 99-500, Sec. 101(b) (title IV, Sec. 407(a)), 100 Stat. 1783-39, 1783-64, and Oct. 30, 1986, Pub. L. 99-591, Sec. 101(b) (title IV, Sec. 407(a)), 100 Stat. 3341-39, 3341-64.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 549, 553 and 555 (R.S. Sec. 828; June 28, 1902, ch. 1301, Sec. 1, 32 Stat. 476; Feb. 11, 1925, ch. 204, Sec. 2, 6, 8, 43 Stat. 857, 858; Jan. 22, 1927, ch. 50, Sec. 2, 44 Stat. 1023; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Mar. 3, 1942, ch. 124, Sec. 2, 56 Stat. 122; Sept. 27, 1944, ch. 414, Sec. 1, 4, 5, 58 Stat. 743, 744). Section consolidates sections 549, 553, and 555 of title 28, U.S.C., 1940 ed., as amended with necessary changes of phraseology. The phrase 'filing fee' was substituted for the inconsistent and misleading words of sections 549 and 553 of title 28, U.S.C., 1940 ed., 'as full payment for all services to be rendered by the clerk' etc. thus removing the necessity for including exceptions and referring to other sections containing provisions for additional fees. The provision in section 549 of title 28, U.S.C., 1940 ed., for payment of fees by the parties instituting criminal proceedings by indictment or information, was omitted. Such proceedings are instituted only by the United States from which costs cannot be exacted. The provision in section 549 of title 28, U.S.C., 1940 ed., for taxation of fees as costs, was omitted as covered by section 1920 of this title. Words 'or appeal from a deportation order of a United States Commissioner' in section 553 of title 28, U.S.C., 1940 ed., were omitted as obsolete since repeal of the Chinese Exclusion Act by act Dec. 17, 1943, ch. 344, Sec. 1, 57 Stat. 600. Appeal was formerly conferred by section 282 of title 8, U.S.C., 1940 ed., Aliens and Nationality. Subsection (d) excepting the District of Columbia, was added to preserve the existing schedule of fees prescribed by section 11-1509 of the District of Columbia Code, 1940 ed. -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC3- AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591 substituted '$120' for '$60'. Subsec. (d). Pub. L. 99-336 struck out subsec. (d) which provided that section was not applicable to District of Columbia. 1978 - Subsec. (a). Pub. L. 95-598 substituted '$60' for '$15'. EFFECTIVE DATE OF 1986 AMENDMENT Section 4(c) of Pub. L. 99-336 provided that: 'The amendments made by this section (amending this section) shall apply with respect to any civil action, suit, or proceeding instituted on or after the date of the enactment of this Act (June 19, 1986).' EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 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 404 of Pub. L. 101-515, set out as a note under section 1913 of this title. JUDICIAL CONFERENCE SCHEDULE OF ADDITIONAL FEES (AS AMENDED TO JANUARY 2, 1990) Fees to be charged for services performed by clerks of the district courts (except that no fees are to be charged for services rendered on behalf of the United States). 1. For filing or indexing any paper not in a case or proceeding for which a case filing fee has been paid, $20.00. 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. Sec. 754, the filing of letters rogatory or letters of request, and the registering of a judgment from another district pursuant to 28 U.S.C. Sec. 1963. 2. For filing a requisition for and certifying the results of a search of the records of the court for judgments, decrees, other instruments, suits pending, and bankruptcy proceedings, $15.00 for each name searched. 3. For certification or exemplification of any document or paper, whether the certification is made directly on the document or by separate instrument, $5.00. 4. For reproducing any record or paper, 50 cents per page. This fee shall apply to paper copies made from either: (1) original documents; or (2) microfiche or microfilm reproductions of the original records. 5. For reproduction of magnetic tape recordings, either cassette or reel-to-reel, $15.00 including the cost of materials. 6. For transcribing a record of any proceeding by a regularly employed member of the court staff who is not entitled by statute to retain the transcript fees for his or her own account, a charge shall be made at the same rate and conditions established by the Judicial Conference for transcripts prepared and sold to parties by official court reporters. 7. For each microfiche sheet of film or microfilm jacket copy of any court record, where available, $3.00. 8. For retrieval of a record from a Federal Records Center, National Archives, or other storage location removed from the place of business of the court, $25.00. 9. For a check paid into the court which is returned for lack of funds, $25.00. 10. For an appeal to a district judge from a judgment of conviction by a magistrate in a misdemeanor case, $25.00. 11. For admission of attorneys to practice, $20.00 each, including a certificate of admission. For a duplicate certificate of admission or certificate of good standing, $5.00. 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. -CROSS- CROSS REFERENCES Advance payment of fees, see local rules of the various district courts. Appeal of certiorari, fee of $5 on filing notice of or petition, or upon receipt of order allowing, or notice of allowance of, see section 1917 of this title. Exemption of United States from payment of fees, see section 2412 of this title. Payment by clerk into Treasury of all fees, costs and other moneys collected, see section 751 of this title. Power of Judicial Conference of the United States, see section 331 of this title. Reporter's fee for copy of transcript, see section 753 of this title. Taxation of costs, see section 1920 of this title. In admiralty and maritime cases, see section 1925 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1930, 1931 of this title. ------DocID 36731 Document 593 of 1452------ -CITE- 28 USC Sec. 1915 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1915. Proceedings in forma pauperis -STATUTE- (a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress. An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. (b) Upon the filing of an affidavit in accordance with subsection (a) of this section, the court may direct payment by the United States of the expenses of (1) printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court; (2) preparing a transcript of proceedings before a United States magistrate in any civil or criminal case, if such transcript is required by the district court, in the case of proceedings conducted under section 636(b) of this title or under section 3401(b) of title 18, United States Code; and (3) printing the record on appeal if such printing is required by the appellate court, in the case of proceedings conducted pursuant to section 636(c) of this title. Such expenses shall be paid when authorized by the Director of the Administrative Office of the United States Courts. (c) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases. (d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. (e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 954; May 24, 1949, ch. 139, Sec. 98, 63 Stat. 104; Oct. 31, 1951, ch. 655, Sec. 51(b), (c), 65 Stat. 727; Sept. 21, 1959, Pub. L. 86-320, 73 Stat. 590; Oct. 10, 1979, Pub. L. 96-82, Sec. 6, 93 Stat. 645.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 9a(c)(e), 832, 833, 834, 835, and 836 (July 20, 1892, ch. 209, Sec. 1-5, 27 Stat. 252; June 25, 1910, ch. 435, 36 Stat. 866; Mar. 3, 1911, ch. 231, Sec. 5a, as added Jan. 20, 1944, ch. 3, Sec. 1, 58 Stat. 5; June 27, 1922, ch. 246, 42 Stat. 666; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Section consolidates a part of section 9a(c)(e) with sections 832-836 of title 28, U.S.C., 1940 ed. For distribution of other provisions of section 9a of title 28, U.S.C., 1940 ed., see Distribution Table. Section 832 of title 28, U.S.C., 1940 ed., was completely rewritten, and constitutes subsections (a) and (b). Words 'and willful false swearing in any affidavit provided for in this section or section 832 of this title, shall be punishable as perjury as in other cases,' in section 833 of title 28, U.S.C., 1940 ed., were omitted as covered by the general perjury statute, title 18, U.S.C., 1940 ed., Sec. 231 (H.R. 1600, 80th Cong., sec. 1621). A proviso in section 836 of title 28, U.S.C., 1940 ed., that the United States should not be liable for costs was deleted as covered by section 2412 of this title. The provision in section 9a(e) of title 28, U.S.C., 1940 ed., respecting stenographic transcripts furnished on appeals in civil cases is extended by subsection (b) of the revised section to include criminal cases. Obviously it would be inconsistent to furnish the same to a poor person in a civil case involving money only and to deny it in a criminal proceeding where life and liberty are in jeopardy. The provision of section 832 of title 28, U.S.C., 1940 ed., for payment when authorized by the Attorney General was revised to substitute the Director of the Administrative Office of the United States Courts who now disburses such items. Changes in phraseology were made. 1949 ACT This amendment clarifies the meaning of subsection (b) of section 1915 of title 28, U.S.C., and supplies, in subsection (e) of section 1915, an inadvertent omission to make possible the recovery of public funds expended in printing the record for persons successfully suing in forma pauperis. AMENDMENTS 1979 - Subsec. (b). Pub. L. 96-82 substituted 'Upon the filing of an affidavit in accordance with subsection (a) of this section, the court may direct payment by the United States of the expenses of (1) printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court; (2) preparing a transcript of proceedings before a United States magistrate in any civil or criminal case, if such transcript is required by the district court, in the case of proceedings conducted under section 636(b) of this title or under section 3401(b) of title 18, United States Code; and (3) printing the record on appeal if such printing is required by the appellate court, in the case of proceedings conducted pursuant to section 636(c) of this title' and 'Such expenses shall be paid when authorized by the Director of the Administrative Office of the United States Courts' for 'In any civil or criminal case the court may, upon the filing of a like affidavit, direct that the expense of printing the record on appeal, if such printing is required by the appellate court, be paid by the United States, and the same shall be paid when authorized by the Director of the Administrative Office of the United States Courts'. 1959 - Subsec. (a). Pub. L. 86-320 substituted 'person' for 'citizen'. 1951 - Subsec. (b). Act Oct. 31, 1951, struck out 'furnishing a stenographic transcript and' after 'expense of'. Subsec. (e). Act Oct. 31, 1951, inserted provision that the United States shall not be liable for any of the costs incurred. 1949 - Subsec. (b). Act May 24, 1949, Sec. 98(a), inserted 'such printing is' between 'if' and 'required'. Subsec. (e). Act May 24, 1949, Sec. 98(b), inserted 'or printed record' after 'stenographic transcript'. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Default judgment, see rule 55, Appendix to this title. Preservation of former section 785 of this title under rule 55, see note by Advisory Committee under rule 55. CROSS REFERENCES Fair housing, enforcement by private persons in Federal or State courts without payment of fees, costs, or security, see section 3613 of Title 42, The Public Health and Welfare. Reporters for United States District Court, see section 753 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1930 of this title; title 10 section 867a; title 18 section 3006A. ------DocID 36732 Document 594 of 1452------ -CITE- 28 USC Sec. 1916 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1916. Seamen's suits -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 837 (June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157; July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683). Changes in phraseology were made. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1921 of this title. ------DocID 36733 Document 595 of 1452------ -CITE- 28 USC Sec. 1917 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1917. District courts; fee on filing notice of or petition for appeal -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 552 (Feb. 11, 1925, ch. 204, Sec. 5, 43 Stat. 857; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Sept. 27, 1944, ch. 414, Sec. 3, 58 Stat. 744). Words 'to the clerk of the district court' were added to clarify the intent of Congress, as shown by the title of the 1944 act containing this section, and by the text of such Act in its entirety. Words 'as an additional fee in said suit or action, or proceeding in bankruptcy' were omitted. The entire text of the basic 1944 act shows that Congress intended it to apply to all actions, suits and proceedings, including bankruptcy proceedings, and nowhere else in such act is any reference made to bankruptcy proceedings. Changes were made in phraseology. ------DocID 36734 Document 596 of 1452------ -CITE- 28 USC Sec. 1918 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1918. District courts; fines, forfeitures and criminal proceedings -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 822 (R.S. Sec. 974). Changes were made in phraseology. -CROSS- CROSS REFERENCES Docket fees and costs of briefs, see notes under section 1923 of this title. Particular items taxable as costs, see section 1920 of this title and notes thereto. Witness fees, see notes under sections 1821 and 1825 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 21 section 844. ------DocID 36735 Document 597 of 1452------ -CITE- 28 USC Sec. 1919 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1919. District courts; dismissal for lack of jurisdiction -STATUTE- Whenever any action or suit is dismissed in any district court or the Court of International Trade for want of jurisdiction, such court may order the payment of just costs. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 510, 94 Stat. 1743.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 80 (Mar. 3, 1911, ch. 231, Sec. 37, 36 Stat. 1098). Words 'dismissed for want of jurisdiction' were substituted for 'it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court'. The substituted language is sufficient. (See reviser's note under section 1359 of this title.) The provisions of section 80 of title 28, U.S.C., 1940 ed., relating to dismissal for improper or collusive joinder in removal proceedings, are incorporated in section 1359 of this title. Other provisions of section 80 of title 28, U.S.C., 1940 ed., appear in section 1447 of this title. Changes were made in phraseology. AMENDMENTS 1980 - Pub. L. 96-417 included dismissals in Court of International Trade for want of jurisdiction. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(E) of Pub. L. 96-417, set out as a note under section 251 of this title. ------DocID 36736 Document 598 of 1452------ -CITE- 28 USC Sec. 1920 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1920. Taxation of costs -STATUTE- A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955; Oct. 28, 1978, Pub. L. 95-539, Sec. 7, 92 Stat. 2044.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 9a(a) and 830 (R.S. Sec. 983; Mar. 3, 1911, ch. 231, Sec. 5a, as added Jan. 20, 1944, ch. 3, Sec. 1, 58 Stat. 5). For distribution of other provisions of section 9a of title 28, U.S.C., 1940 ed., see table at end of reviser's notes. Word 'may' was substituted for 'shall' before 'tax as costs,' in view of Rule 54(d) of the Federal Rules of Civil Procedure, providing for allowance of costs to the prevailing party as of course 'unless the court otherwise directs'. Changes were made in phraseology. AMENDMENTS 1978 - Par. (6). Pub. L. 95-539 added par. (6). EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-539 effective Oct. 28, 1978, see section 10(a) of Pub. L. 95-539, set out as a note under section 602 of this title. -CROSS- 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 section 2903 of Title 5, Government Organization and Employees. Costs, denial of to plaintiff where plaintiff recovers less than $10,000, see section 1332 of this title. Definition of 'court of the United States,' see section 451 of this title. Exemption of United States for costs except where statute permits taxation, see section 2412 of this title. Fees and costs in admiralty and maritime cases, see section 1925 of this title. Marshal's fees, see section 1921 of this title. Per diem, mileage and subsistence of witnesses, see notes under section 1821 of this title. Reporter's transcript, fees for, see section 753 of this title. Taxation of costs in fine, forfeiture and criminal proceedings, see section 1918 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 654, 655, 1821, 2412 of this title; title 21 section 844. ------DocID 36737 Document 599 of 1452------ -CITE- 28 USC Sec. 1921 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1921. United States marshal's fees -STATUTE- (a)(1) The United States marshals or deputy marshals shall routinely collect, and a court may tax as costs, fees for the following: (A) Serving a writ of possession, partition, execution, attachment in rem, or libel in admiralty, warrant, attachment, summons, complaints, or any other writ, order or process in any case or proceeding. (B) Serving a subpoena or summons for a witness or appraiser. (C) Forwarding any writ, order, or process to another judicial district for service. (D) The preparation of any notice of sale, proclamation in admiralty, or other public notice or bill of sale. (E) The keeping of attached property (including boats, vessels, or other property attached or libeled), actual expenses incurred, such as storage, moving, boat hire, or other special transportation, watchmen's or keepers' fees, insurance, and an hourly rate, including overtime, for each deputy marshal required for special services, such as guarding, inventorying, and moving. (F) Copies of writs or other papers furnished at the request of any party. (G) Necessary travel in serving or endeavoring to serve any process, writ, or order, except in the District of Columbia, with mileage to be computed from the place where service is returnable to the place of service or endeavor. (H) Overtime expenses incurred by deputy marshals in the course of serving or executing civil process. (2) The marshals shall collect, in advance, a deposit to cover the initial expenses for special services required under paragraph (1)(E), and periodically thereafter such amounts as may be necessary to pay such expenses until the litigation is concluded. This paragraph applies to all private litigants, including seamen proceeding pursuant to section 1916 of this title. (3) For purposes of paragraph (1)(G), if two or more services or endeavors, or if an endeavor and a service, are made in behalf of the same party in the same case on the same trip, mileage shall be computed to the place of service or endeavor which is most remote from the place where service is returnable, adding thereto any additional mileage traveled in serving or endeavoring to serve in behalf of the party. If two or more writs of any kind, required to be served in behalf of the same party on the same person in the same case or proceeding, may be served at the same time, mileage on only one such writ shall be collected. (b) The Attorney General shall from time to time prescribe by regulation the fees to be taxed and collected under subsection (a). Such fees shall, to the extent practicable, reflect the actual and reasonable cost of the service provided. (c)(1) The United States Marshals Service shall collect a commission of 3 percent of the first $1,000 collected and 1 1/2 percent on the excess of any sum over $1,000, for seizing or levying on property (including seizures in admiralty), disposing of such property by sale, setoff, or otherwise, and receiving and paying over money, except that the amount of commission shall be within the range set by the Attorney General. if (FOOTNOTE 1) the property is not disposed of by marshal's sale, the commission shall be in such amount, within the range set by the Attorney General, as may be allowed by the court. In any case in which the vessel or other property is sold by a public auctioneer, or by some party other than a marshal or deputy marshal, the commission authorized under this subsection shall be reduced by the amount paid to such auctioneer or other party. This subsection applies to any judicially ordered sale or execution sale, without regard to whether the judicial order of sale constitutes a seizure or levy within the meaning of State law. This subsection shall not apply to any seizure, forfeiture, sale, or other disposition of property pursuant to the applicable provisions of law amended by the Comprehensive Forfeiture Act of 1984 (98 Stat. 2040). (FOOTNOTE 1) So in original. Probably should be capitalized. (2) The Attorney General shall prescribe from time to time regulations which establish a minimum and maximum amount for the commission collected under paragraph (1). (d) The United States marshals may require a deposit to cover the fees and expenses prescribed under this section. (e) Notwithstanding section 3302 of title 31, the United States Marshals Service is authorized, to the extent provided in advance in appropriations Acts - (1) to credit to such Service's appropriation all fees, commissions, and expenses collected by such Service for - (A) the service of civil process, including complaints, summonses, subpoenas, and similar process; and (B) seizures, levies, and sales associated with judicial orders of execution; and (2) to use such credited amounts for the purpose of carrying out such activities. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 955; Sept. 9, 1950, ch. 937, 64 Stat. 824; Aug. 31, 1962, Pub. L. 87-621, Sec. 1, 76 Stat. 417; Nov. 10, 1986, Pub. L. 99-646, Sec. 39(a), 100 Stat. 3600; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7608(c), 102 Stat. 4515; Nov. 29, 1990, Pub. L. 101-647, title XII, Sec. 1212, 104 Stat. 4833.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 574 (R.S. Sec. 823, 829; May 28, 1896, ch. 252, Sec. 6, 29 Stat. 179; May 29, 1930, ch. 356, 46 Stat. 486; Aug. 3, 1935, ch. 431, Sec. 2, 49 Stat. 513). Provisions for serving venires and summoning grand and petit jurors were omitted as useless since marshal's fees are now covered into the Treasury and there is no basis for apportioning the cost of summoning jurors for a term of court and taxing the same to individual cases. The marshal's fee 'for holding a court of inquiry or other proceedings before a jury, including summoning a jury, $5' is omitted as obsolete in the Federal practice. See, Black's Law Dictionary 'Court of Inquiry.' See, also, Webster's International Dictionary. A fee of 50 cents 'for each bail bond' is omitted as covered by the general provision for taxation of marshal's fees in criminal cases. The provisions for a fee of $5 for drawing and executing a deed and $1 for executing a deed prepared by a party or his attorney are omitted as unnecessary. It is the marshal's duty to execute conveyances of property which he sells on execution and his salary compensates him therefor. There is no occasion for him to draw such a deed and no beneficial purpose in taxing the parties a fee for his signature. The 2 per centum fee for disbursing moneys is omitted as an unnecessary burden upon funds belonging to litigants. The provision that a folio consists of '100 words or major fraction thereof' is inserted to conform with section 607 of title 28, U.S.C., 1940 ed., which is transferred to title 44, U.S.C., 1940 ed., Public Printing and Documents, along with section 606 of said title 28, to which said section 607 also relates. The provision for a lump sum to be determined by the court and taxed in criminal cases was added. It fixes a maximum of $25 in misdemeanor cases and $100 in felony cases. It may be questioned whether costs as such should ever be taxed against the convicted defendant in a criminal case. The acquitted defendant is not permitted to tax costs against the United States. Indeed the allowance of costs in criminal cases is not a matter of right but rests completely within the discretion of the court. Morris v. United States, 1911, 185 Fed. 73, 107 C.C.A. 293. In Alberty v. U.S., C.C.A.9, 1937, 91 F.2d 461, the defendant was fined $100 on each of 11 accounts of an indictment under the 1906 Food and Drug Act (title 21, Sec. 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. -REFTEXT- REFERENCES IN TEXT The Comprehensive Forfeiture Act of 1984, referred to in subsec. (c)(1), is chapter III of title II of Pub. L. 98-473, Oct. 12, 1984, 98 Stat. 2040, as amended. For complete classification of this Act to the Code, see Short Title of 1984 Amendment note set out under section 1961 of Title 18, Crimes and Criminal Procedure, and Tables. -MISC2- AMENDMENTS 1990 - Subsec. (c)(1). Pub. L. 101-647 substituted 'if the property is not disposed of by marshal's sale' for 'If the property is to be disposed of by marshal's sale'. 1988 - Pub. L. 100-690 added subsecs. (a) to (d), struck out former subsecs. (a) and (b), and redesignated former subsec. (c) as (e). 1986 - Pub. L. 99-646 designated existing provisions as subsec. (a) with pars. (1) to (9) and subsec. (b) with pars. (1) and (2), substituted a period for the semicolon at end of each par., and added subsec. (c). 1962 - Pub. L. 87-621 increased fees for serving an attachment in rem, or libel in admiralty, warrant, attachment, summons, capias, or any other writ from $2 to $3, for serving a subpoena or summons for a witness or appraiser from 50 cents to $2, for preparation of a proclamation in admiralty from 30 cents to $3, and for copies of writs or other papers furnished at the request of any party from 10 to 30 cents per folio of 100 words or fraction thereof, and mileage for necessary travel from 10 cents a mile to 12 cents per mile, or fraction thereof, inserted provisions authorizing a fee of $1, in addition to the prescribed fee, for forwarding any writ, order, or process to another judicial district for service, and $3 for preparation of any notice of sale or other public notice or bill of sale, permitting payment of travel expenses where there is an endeavor to serve any process, writ, or order, prohibiting collection of mileage fees for services or endeavors to serve in the District of Columbia, and empowering marshals to require a deposit to cover all fees and expenses, and substituted provisions authorizing a fee of $3 for serving a writ of possession, partition, execution, order or process, and commissions of 3 per centum on the first $1,000 collected and 1 1/2 per centum on amounts over $1,000 for seizing and levying on property (including seizures in admiralty), disposing of the same and receiving and paying over the money for provisions which permitted a marshal serving such a writ or process, and seizing and levying on property, advertising and disposing of the same and receiving and paying over the money, to receive the same fees and poundage as allowed for similar services to the sheriffs of the States in which the service is rendered, and 2 1/2 per centum on any sum under $500, and 1 1/2 per centum on amounts over $500 for sale of vessels or other property under process in admiralty, or under the order of a court of admiralty, and provisions permitting collection of actual expenses incurred, and $3 per hour for each deputy marshal required, for the keeping of property attached, and directing the marshal to collect, in advance, a deposit to cover initial expenses and periodically thereafter such amounts as necessary to pay expenses until litigation is concluded, for provisions which allowed only such compensation as the court, on petition, might allow. 1950 - Act Sept. 9, 1950, increased mileage fees from 6 to 10 cents a mile. EFFECTIVE DATE OF 1986 AMENDMENT Section 39(b) of Pub. L. 99-646 provided that: 'The amendments made by this section (amending this section) shall take effect 30 days after the date of enactment of this Act (Nov. 10, 1986).' EFFECTIVE DATE OF 1962 AMENDMENT Section 3 of Pub. L. 87-621 provided that: 'This Act (amending this section) shall become effective ninety days after enactment (Aug. 31, 1962).' SALARIES AND EXPENSES OF UNITED STATES MARSHALS SERVICE Pub. L. 101-162, title II, Nov. 21, 1989, 103 Stat. 997, provided: 'That notwithstanding the provisions of title 31 U.S.C. 3302, for fiscal year 1990 and hereafter the Director of the United States Marshals Service may collect fees and expenses for the services authorized by 28 U.S.C. 1921 as amended by Public Law 100-690, and credit such fees to this appropriation to be used for salaries and other expenses incurred in providing these services: Provided further, That not to exceed $6,000 shall be available for official reception and representation expenses.' -CROSS- 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 section 567 of this title. Execution of all lawful writs and process, see section 566 of this title. Power of State sheriff, see section 564 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 12 section 3711. ------DocID 36738 Document 600 of 1452------ -CITE- 28 USC Sec. 1922 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1922. Witness fees before United States commissioners -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 956.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 828 (R.S. Sec. 981; May 28, 1896, ch. 252, Sec. 19, 29 Stat. 184). Last clause of section 828 of title 28, U.S.C., 1940 ed., providing 'and such taxation shall be subject to revision, as in other cases' was omitted as unnecessary in view of the inherent power of the court to revise costs taxed. Changes were made in phraseology. -CHANGE- CHANGE OF NAME Reference to United States commissioners deemed to be reference to United States magistrates pursuant to Pub. L. 90-578, title IV, Sec. 402, Oct. 17, 1968, 82 Stat. 1118. See chapter 43 (Sec. 631 et seq.) of this title. Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- CROSS REFERENCES Compensation of United States magistrates, see section 634 of this title. Liability of United States for costs, see section 2412 of this title. ------DocID 36739 Document 601 of 1452------ -CITE- 28 USC Sec. 1923 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1923. Docket fees and costs of briefs -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 956; June 18, 1954, ch. 304, 68 Stat. 253; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 245, 92 Stat. 2671.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 571, 572, and 578 (R.S. Sec. 823, 824; May 28, 1896, ch. 252, Sec. 6, 24, 29 Stat. 179, 186; Feb. 26, 1919, ch. 49, Sec. 1, 40 Stat. 1182; July 19, 1919, ch. 24, Sec. 1, 41 Stat. 209; Feb. 11, 1921, ch. 46, 41 Stat. 1099; June 6, 1930, ch. 409, 46 Stat. 522; Aug. 3, 1935, ch. 431, Sec. 1, 49 Stat. 513). Section consolidates sections 571, 572, and 578 of title 28, U.S.C., 1940 ed. The phrase '$20 on trial or final hearing in civil, criminal, or admiralty cases' was substituted for the following provisions of section 572 of title 28, U.S.C., 1940 ed., 'On trial before a jury, in civil or criminal causes or before referees, or on a final hearing in equity or admiralty, a docket fee of $20', and the limitation of $10 in 'cases at law when judgment is rendered without a jury' was omitted. This simplified restatement provides for a single docket fee in each case which reaches final hearing or trial. Since the docket fee is arbitrary, any limitation or distinction between law cases tried with or without a jury is unrealistic. Word 'solicitor' was omitted as obsolete and inapplicable in civil, criminal, or admiralty practice. Words 'motion for judgment' were substituted for 'scire facias' to conform to Rules 2 and 81 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -COD- CODIFICATION Section 408(c) of Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2687, as amended by Pub. L. 98-166, title II, Sec. 200, Nov. 28, 1983, 97 Stat. 1081; Pub. L. 98-353, title III, Sec. 323, July 10, 1984, 98 Stat. 358; Pub. L. 99-429, Sept. 30, 1986, 100 Stat. 985; Pub. L. 99-500, Sec. 101(b) (title II, Sec. 200), Oct. 18, 1986, 100 Stat. 1783-39, 1783-45, and Pub. L. 99-591, Sec. 101(b) (title II, Sec. 200), Oct. 30, 1986, 100 Stat. 3341-39, 3341-45; Pub. L. 99-554, title III, Sec. 307(a), Oct. 27, 1986, 100 Stat. 3125, which provided for the deletion of any references to United States Trustees in this title at a prospective date, was repealed by Pub. L. 99-554, title III, Sec. 307(b), Oct. 27, 1986, 100 Stat. 3125. -MISC3- AMENDMENTS 1978 - Subsec. (b). Pub. L. 95-598 inserted 'and United States trustees' after 'United States attorneys'. 1954 - Subsec. (a). Act June 18, 1954, inserted in first item 'including a default judgment whether entered by the court or by the clerk' after 'final hearing'. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. -CROSS- 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 section 1925 of this title. Criminal cases, see section 1918 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1920 of this title. ------DocID 36740 Document 602 of 1452------ -CITE- 28 USC Sec. 1924 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1924. Verification of bill of costs -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 831 (R.S. Sec. 984; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Section as revised conforms to existing Federal Practice. See note to subdivision (d) of Rule 54 of the Federal Rules of Civil Procedure. For discussion as to verification of bill of costs under existing practice, see - 8 Hughes, Federal Practice, Jurisdiction and Procedure - Civil and Criminal, Sec. 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. ------DocID 36741 Document 603 of 1452------ -CITE- 28 USC Sec. 1925 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1925. Admiralty and maritime cases -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957.) -MISC1- 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, sections 818, 826, and 827 of title 28, U.S.C., 1940 ed. -CROSS- 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. ------DocID 36742 Document 604 of 1452------ -CITE- 28 USC Sec. 1926 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1926. Claims Court -STATUTE- (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 Claims Court. (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(p)(1), 96 Stat. 44.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 304 (Mar. 3, 1911, ch. 231, Sec. 191, 36 Stat. 1144). For distribution of other provisions of section 304 of title 28, U.S.C., 1940 ed., see Distribution Table. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Claims Court' for 'Court of Customs and Patent Appeals' as section catchline and, in text substituted provisions directing the Judicial Conference of the United States to prescribe from time to time the fees and costs to be charged and collected in the United States Claims Court and directing the court and its officers to collect only such fees and costs as the Judicial Conference prescribes, with the court authorized to require advance payment of fees by rule for provisions which had directed that fees and costs in the Court of Customs and Patent Appeals be fixed by a table of fees adopted by such court and approved by the Supreme Court, that the fees and costs so fixed not exceed the fees and costs charged in the Supreme Court, and that the fees be accounted for and paid over to the Treasury. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. 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 404 of Pub. L. 101-515, set out as a note under section 1913 of this title. JUDICIAL CONFERENCE SCHEDULE OF FEES (AS AMENDED TO JANUARY 2, 1990) Fees to be charged for services to be performed by the Clerk of the United States Claims Court (except that no fees are to be charged for services rendered on behalf of the United States): 1. For filing a civil action or proceeding, $120.00. 2. For reproducing any record or paper, 50 cents per page. This fee shall apply to paper copies made from either: (a) original documents; or (b) microfiche or microfilm reproductions of the original records. 3. For certification or exemplification of any document or paper, whether the certification is made directly on the document or by separate instrument, $5.00. 4. For admission of attorneys to practice, $20.00 each, including a certificate of admission. For a duplicate certificate of admission or certificate of good standing, $5.00. 5. For receipt of a monthly listing of court orders and opinions, $10.00 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. ------DocID 36743 Document 605 of 1452------ -CITE- 28 USC Sec. 1927 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1927. Counsel's liability for excessive costs -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957; Sept. 12, 1980, Pub. L. 96-349, Sec. 3, 94 Stat. 1156.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 829 (R.S. Sec. 982). Word 'personally' was inserted upon authority of Motion Picture Patents Co. v. Steiner et al., 1912, 201 F. 63, 119 C.C.A. 401. Reference to 'proctor' was omitted as covered by the revised section. See definition of 'court of the United States' in section 451 of this title. Changes were made in phraseology. AMENDMENTS 1980 - Pub. L. 96-349 substituted judicial authorization to require attorneys to satisfy excess costs, expenses, and attorneys' fees reasonably incurred because of multiplication of proceedings for such prior authority to impose liability for increased costs based on multiplication of proceedings. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Costs, see rules 11 and 54, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 19 section 1516a. ------DocID 36744 Document 606 of 1452------ -CITE- 28 USC Sec. 1928 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1928. Patent infringement action; disclaimer not filed -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 821 (R.S. Sec. 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- CHANGE OF NAME Patent Office redesignated Patent and Trademark Office, by section 3 of Pub. L. 93-596, Jan. 2, 1975, 88 Stat. 1949, set out as a note under section 1 of Title 35, Patents. -CROSS- 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 section 288 of Title 35, Patents. ------DocID 36745 Document 607 of 1452------ -CITE- 28 USC Sec. 1929 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1929. Extraordinary expenses not expressly authorized -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 577 (R.S. Sec. 846; Feb. 18, 1875, ch. 80, Sec. 1, Stat. 318; May 28, 1896, ch. 252, Sec. 13, 29 Stat. 183; May 27, 1908, ch. 200, Sec. 1, 35 Stat. 375; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Feb. 26, 1919, ch. 49, Sec. 7, 40 Stat. 1182; Oct. 13, 1941, ch. 431, Sec. 1, 55 Stat. 736). Provision for payment of expenses under section 577 of title 28, U.S.C., 1940 ed., from appropriations for expenses of the judiciary was omitted as unnecessary. Such expenses are carried in the Judiciary Appropriation Acts and will continue without this provision. The first sentence of said section 577 is incorporated in section 551 of this title. The qualifying phrase 'under the special taxation of the district court in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the Judiciary,' was omitted, and the functions of allowing extraordinary expenses was vested in the Attorney General instead of the President. Neither the President nor the district judge should be burdened with such duty since the Attorney General only has the information upon which to act. Changes were made in phraseology. ------DocID 36746 Document 608 of 1452------ -CITE- 28 USC Sec. 1930 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1930. Bankruptcy fees -STATUTE- (a) Notwithstanding section 1915 of this title, the parties commencing a case under title 11 shall pay to the clerk of the district court or the clerk of the bankruptcy court, if one has been certified pursuant to section 156(b) of this title, the following filing fees: (1) For a case commenced under chapter 7 or 13 of title 11, $120. (2) For a case commenced under chapter 9 of title 11, $300. (3) For a case commenced under chapter 11 of title 11 that does not concern a railroad, as defined in section 101 of title 11, $500. (4) For a case commenced under chapter 11 of title 11 concerning a railroad, as so defined, $1,000. (5) For a case commenced under chapter 12 of title 11, $200. (6) In addition to the filing fee paid to the clerk, a quarterly fee shall be paid to the United States trustee, for deposit in the Treasury, in each case under chapter 11 of title 11 for each quarter (including any fraction thereof) until a plan is confirmed or the case is converted or dismissed, whichever occurs first. The fee shall be $150 for each quarter in which disbursements total less than $15,000; $300 for each quarter in which disbursements total $15,000 or more but less than $150,000; $750 for each quarter in which disbursements total $150,000 or more but less than $300,000; $2,250 for each quarter in which disbursements total $300,000 or more but less than $3,000,000; $3,000 for each quarter in which disbursements total $3,000,000 or more. The fee shall be payable on the last day of the calendar month following the calendar quarter for which the fee is owed. An individual commencing a voluntary case or a joint case under title 11 may pay such fee in installments. For converting, on request of the debtor, a case under chapter 7, or 13 of title 11, to a case under chapter 11 of title 11, the debtor shall pay to the clerk of the district court or the clerk of the bankruptcy court, if one has been certified pursuant to section 156(b) of this title, a fee of $400. (b) The Judicial Conference of the United States may prescribe additional fees in cases under title 11 of the same kind as the Judicial Conference prescribes under section 1914(b) of this title. (c) Upon the filing of any separate or joint notice of appeal or application for appeal or upon the receipt of any order allowing, or notice of the allowance of, an appeal or a writ of certiorari $5 shall be paid to the clerk of the court, by the appellant or petitioner. (d) Whenever any case or proceeding is dismissed in any bankruptcy court for want of jurisdiction, such court may order the payment of just costs. (e) The clerk of the court may collect only the fees prescribed under this section. -SOURCE- (Added Pub. L. 95-598, title II, Sec. 246(a), Nov. 6, 1978, 92 Stat. 2671, and amended Pub. L. 98-353, title I, Sec. 111(a), (b), July 10, 1984, 98 Stat. 342; Pub. L. 99-500, Sec. 101(b) (title IV, Sec. 407(b)), Oct. 18, 1986, 100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, Sec. 101(b) (title IV, Sec. 407(b)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64; Pub. L. 99-554, title I, Sec. 117, 144(f), Oct. 27, 1986, 100 Stat. 3095, 3097; Pub. L. 101-162, title IV, Sec. 406(a), Nov. 21, 1989, 103 Stat. 1016.) -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC3- AMENDMENTS 1989 - Subsec. (a)(1). Pub. L. 101-162 substituted '$120' for '$90'. 1986 - Subsec. (a). Pub. L. 99-554, Sec. 117(5), 144(f), in introductory and closing provisions, substituted 'of the district court or the clerk of the bankruptcy court, if one has been certified pursuant to section 156(b) of this title' for 'of the court', and in closing provisions, inserted provision that for conversion, on request of the debtor, of a case under chapter 7 or 13 of title 11, to a case under chapter 11 of title 11, the debtor pay to the clerk of the court a fee of $400. Subsec. (a)(1). Pub. L. 99-500 and Pub. L. 99-591, Pub. L. 99-554, Sec. 117(1), amended par. (1) identically substituting '$90' for '$60'. Subsec. (a)(3). Pub. L. 99-554, Sec. 117(2), substituted '$500' for '$200'. Subsec. (a)(4). Pub. L. 99-554, Sec. 117(3), substituted '$1,000' for '$500'. Subsec. (a)(5), (6). Pub. L. 99-554, Sec. 117(4), added pars. (5) and (6). 1984 - Pub. L. 98-353, Sec. 111(b), substituted 'fees' for 'courts' in section catchline. Subsecs. (a), (c), (e). Pub. L. 98-353, Sec. 111(a), substituted 'clerk of the court' for 'clerk of the bankruptcy court'. EFFECTIVE DATE OF 1989 AMENDMENT; MISCELLANEOUS FEES Section 406(a) of Pub. L. 101-162 provided that: 'Section 1930(a)(1) of title 28, United States Code, is amended by striking out '$90' and inserting in lieu thereof '$120'. Pursuant to section 1930(b) of title 28, the Judicial Conference of the United States shall prescribe a fee of $60 on motions seeking relief from the automatic stay under 11 U.S.C. section 362(b) and motions to compel abandonment of property of the estate. The fees established pursuant to the preceding two sentences shall take effect 30 days after the enactment of this Act (Nov. 21, 1989).' EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, with effective date and applicability of enactment of subsec. (a)(6) of this section by section 117(4) of Pub. L. 99-554 dependent upon the judicial district involved, see section 302(a), (d), (e) of Pub. L. 99-554, set out as a note under section 581 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-353 effective July 10, 1984, see section 122(a) of Pub. L. 98-353, set out as an Effective Date note under section 151 of this title. EFFECTIVE DATE Section effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as a note preceding section 101 of Title 11, Bankruptcy. 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 404 of Pub. L. 101-515, set out as a note under section 1913 of this title. ISSUANCE OF NOTICES TO CREDITORS AND OTHER INTERESTED PARTIES Section 403 of Pub. L. 101-162 provided that: 'Notwithstanding any other provision of law, for fiscal year 1990 and hereafter, (a) The Administrative Office of the United States Courts, or any other agency or instrumentality of the United States, is prohibited from restricting solely to staff of the Clerks of the United States Bankruptcy Courts the issuance of notices to creditors and other interested parties. (b) The Administrative Office shall permit and encourage the preparation and mailing of such notices to be performed by or at the expense of the debtors, trustees or such other interested parties as the Court may direct and approve. (c) The Director of the Administrative Office of the United States Courts shall make appropriate provisions for the use of and accounting for any postage required pursuant to such directives.' COLLECTION OF FEES IN BANKRUPTCY CASES FOR SALARIES AND OTHER EXPENSES Section 404(a) of Pub. L. 101-162 provided that: 'For fiscal year 1990 and hereafter, such fees as shall be collected for the preparation and mailing of notices in bankruptcy cases as prescribed by the Judicial Conference of the United States pursuant to 28 U.S.C. 1930(b) shall be deposited to the 'Courts of Appeals, District Courts, and Other Judicial Services, Salaries and Expenses' appropriation to be used for salaries and other expenses incurred in providing these services.' JUDICIAL CONFERENCE SCHEDULE OF FEES (AS AMENDED TO JANUARY 2, 1990) Fees to be charged for services to be performed by clerks of the bankruptcy courts (except that no fees are to be charged for services rendered on behalf of the United States or to bankruptcy administrators appointed under Pub. L. No. 99-554, Sec. 302(d)(3)(I)). 1. For reproducing any record or paper, 50 cents per page. This fee shall apply to paper copies made from either: (1) original documents; or (2) microfiche or microfilm reproductions of the original records. 2. For certification or exemplification of any document or paper, whether the certification is made directly on the document or by separate instrument, $5.00. 3. For reproduction of magnetic tape recordings, either cassette or reel-to-reel, $15.00 including the cost of materials. 4. For amendments to a debtor's schedules of creditors or lists of creditors after notice to creditors, $20.00 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, $15.00 per name or item searched. 6. For filing a complaint, a fee should be collected in the same amount as the filing fee prescribed in 28 U.S.C. Sec. 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 in a case under Title 11 is the plaintiff, the fee shall be payable only from the estate and to the extent there is any estate realized. The exemption is not granted to a debtor in possession. 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, $20.00. 8. For all notices generated in cases filed under Title 11 of the United States Code, 50 cents each. The fee shall be payable only from the estate and only to the extent there is an estate. 9. Upon the filing of a notice of appeal with the bankruptcy court in a proceeding arising under the Bankruptcy Act, $5.00 should 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 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 any estate realized. 12. For each microfiche sheet of film or microfilm jacket copy of any court record, where available, $3.00. 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, $25.00. 14. For a check paid into the court which is returned for lack of funds, $25.00. 15. For providing mailing labels, $5.00 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. Sec. 158(a) and (b), $100.00. 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. Sec. 304, $500.00. 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 Sec. 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 Sec. 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. Sec. 157(d), $60. The fee shall be paid also upon the filing of a motion for approval of an agreement or stipulation to the termination, annulment, modification, or conditioning of the automatic stay, unless a motion requesting the relief has been filed previously and a fee paid therefor. 22. For docketing a cross appeal from a bankruptcy court determination, $100. LANGUAGE TO CLARIFY REOPENED BANKRUPTCY CODE CASES Filing fees prescribed by 28 U.S.C. Sec. 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. STATEMENT RESPECTING 1988 AMENDMENTS FROM ADMINISTRATIVE OFFICE OF UNITED STATES COURTS The Director of the Administrative Office of the United States Courts in a memorandum to the Chief Judges of the United States Courts of Appeals, United States District Courts, and United States Bankruptcy Courts, dated April 19, 1988, provided in part that: 'The amendment establishing a fee for filing a petition ancillary to a foreign proceeding under Sec. 304 of the Bankruptcy Code will become effective May 1, 1988. The amendment expanding the exemption for services rendered 'to the United States' to include services rendered to bankruptcy administrators simply expresses a policy which has been in effect since the creation of the bankruptcy administrator program by Congress in the Bankruptcy Judges, United States Trustees and Family Farmer Bankruptcy Act of 1986. (Pub. L. No. 99-554, Sec. 302(d)(3)(I).)'. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 589a of this title; title 11 sections 104, 1129. ------DocID 36747 Document 609 of 1452------ -CITE- 28 USC Sec. 1931 -EXPCITE- TITLE 28 PART V CHAPTER 123 -HEAD- Sec. 1931. Disposition of filing fees -STATUTE- 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. -SOURCE- (Added Pub. L. 99-500, Sec. 101(b) (title IV, Sec. 407(c)), Oct. 18, 1986, 100 Stat. 1783-39, 1783-64, and Pub. L. 99-591, Sec. 101(b) (title IV, Sec. 407(c)), Oct. 30, 1986, 100 Stat. 3341-39, 3341-64; Pub. L. 101-162, title IV, Sec. 406(d), Nov. 21, 1989, 103 Stat. 1016.) -COD- CODIFICATION Pub. L. 99-591 is a corrected version of Pub. L. 99-500. -MISC3- AMENDMENTS 1989 - Pub. L. 101-162, which directed that 'as provided in annual appropriation acts' be struck out before colon, was executed by striking out 'as provided in annual appropriation Acts' before colon as probable intent of Congress. COLLECTION AND DEPOSIT OF MISCELLANEOUS BANKRUPTCY FEES Section 406(b) of Pub. L. 101-162 provided that: 'All fees as shall be hereafter collected for any service enumerated after item 18 of the bankruptcy miscellaneous fee schedule prescribed by the Judicial Conference of the United States pursuant to 28 U.S.C. section 1930(b) and 25 percent of the fees hereafter collected under 28 U.S.C. section 1930(a)(1) shall be deposited as offsetting receipts to the fund established under 28 U.S.C. section 1931 and shall remain available to the Judiciary until expended to reimburse any appropriation for the amount paid out of such appropriation for expenses of the Courts of Appeals, District Courts, and other Judicial Services and the Administrative Office of the United States Courts. The Judicial Conference shall report to the Committees on Appropriations of the House of Representatives and the Senate on a quarterly basis beginning on the first day of each fiscal year regarding the sums deposited in said fund.' ------DocID 36748 Document 610 of 1452------ -CITE- 28 USC CHAPTER 125 -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- CHAPTER 125 - PENDING ACTIONS AND JUDGMENTS -MISC1- Sec. 1961. Interest. 1962. Lien. 1963. Registration of judgments of the district courts and the Court of International Trade. (1963A. Repealed.) 1964. Constructive notice of pending actions. AMENDMENTS 1988 - Pub. L. 100-702, title X, Sec. 1002(b)(3), Nov. 19, 1988, 102 Stat. 4664, substituted 'Registration of judgments of the district courts and the Court of International Trade' for 'Registration in other districts' in item 1963 and repealed item 1963A 'Registration of judgments of the Court of International Trade'. 1980 - Pub. L. 96-417, title V, Sec. 511(b), Oct. 10, 1980, 94 Stat. 1743, added item 1963A. 1958 - Pub. L. 85-689, Sec. 1(b), (c), Aug. 20, 1958, 72 Stat. 683, substituted 'CHAPTER 125 - PENDING ACTIONS AND JUDGMENTS' for 'CHAPTER 125 - JUDGMENTS' in chapter heading and added item 1964. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Judgments, see rules 54 to 58, Appendix to this title. CROSS REFERENCES Declaratory judgments, see sections 2201 and 2202 of this title. ------DocID 36749 Document 611 of 1452------ -CITE- 28 USC Sec. 1961 -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- Sec. 1961. Interest -STATUTE- (a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges. (b) Interest shall be computed daily to the date of payment except as provided in section 2516(b) of this title and section 1304(b) of title 31, and shall be compounded annually. (c)(1) This section shall not apply in any judgment of any court with respect to any internal revenue tax case. Interest shall be allowed in such cases at the underpayment rate or overpayment rate (whichever is appropriate) established under section 6621 of the Internal Revenue Code of 1986. (2) Except as otherwise provided in paragraph (1) of this subsection, interest shall be allowed on all final judgments against the United States in the United States Court of Appeals for the Federal circuit, (FOOTNOTE 1) at the rate provided in subsection (a) and as provided in subsection (b). (FOOTNOTE 1) So in original. Probably should be 'Circuit,'. (3) Interest shall be allowed, computed, and paid on judgments of the United States Claims Court 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 957; Apr. 2, 1982, Pub. L. 97-164, title III, Sec. 302(a), 96 Stat. 55; Sept. 13, 1982, Pub. L. 97-258, Sec. 2(m)(1), 96 Stat. 1062; Jan. 12, 1983, Pub. L. 97-452, Sec. 2(d)(1), 96 Stat. 2478; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, title XV, Sec. 1511(c)(17), 100 Stat. 2095, 2745.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 811 (R.S. Sec. 966; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 6621 of the Internal Revenue Code of 1986, referred to in subsec. (c)(1), is classified to section 6621 of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Subsec. (c)(1). Pub. L. 99-514, Sec. 1511(c)(17), substituted 'the underpayment rate or overpayment rate (whichever is appropriate) established' for 'a rate established'. Pub. L. 99-514, Sec. 2, substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1983 - Subsec. (b). Pub. L. 97-452 substituted 'section 1304(b) of title 31' for 'section 1302 of the Act of July 27, 1956 (31 U.S.C. 724a)'. 1982 - Subsec. (a). Pub. L. 97-164, Sec. 302(a)(1), (2), designated existing provisions as subsec. (a), substituted 'at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment' for 'at the rate allowed by State law', and inserted provision that the Director of the Administrative Office of the United States Courts distribute notice of the rate and any changes in it to all Federal judges. Subsec. (b). Pub. L. 97-258 substituted 'this title and section 1304(b)(1) of title 31' for 'title 28, United States Code, and section 1302 of the Act of July 27, 1956 (31 U.S.C. 724a)'. Subsecs. (b), (c). Pub. L. 97-164, Sec. 302(a)(3), added subsecs. (b) and (c). EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 1511(c)(17) of Pub. L. 99-514 applicable for purposes of determining interest for periods after Dec. 31, 1986, see section 1511(d) of Pub. L. 99-514, set out as a note under section 6621 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1982 AMENDMENTS Section 2(m) of Pub. L. 97-258 provided that the amendment made by that section is effective Oct. 1, 1982. Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. CROSS REFERENCES Interest on - Affirmed judgments of Claims Court, see section 2516 of this title. Judgments against United States, see section 2411 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2412 of this title; title 15 section 4303; title 21 section 844a; title 26 section 6622. ------DocID 36750 Document 612 of 1452------ -CITE- 28 USC Sec. 1962 -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- Sec. 1962. Lien -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 958; Nov. 29, 1990, Pub. L. 101-647, title XXXVI, Sec. 3627, 104 Stat. 4965.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 812 and 814 (R.S. Sec. 967; Aug. 1, 1888, ch. 729, Sec. 1, 25 Stat. 357; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Aug. 17, 1912, ch. 300, 37 Stat. 311). Section consolidates sections 812 and 814 of title 28, U.S.C., 1940 ed., with changes in phraseology necessary to effect consolidation and to clarify the meaning of such sections. Omitted words 'or decree' after 'judgments' as unnecessary inasmuch as Rule 54(a) of the Federal Rules of Civil Procedure by definition of judgment includes a decree. Words 'in the State of Louisiana' after 'or parish' were omitted as unnecessary. A reference to section 813 of title 28, U.S.C., 1940 ed., was omitted, since such section is omitted from this revision as covered by Rule 79(c) of the Federal Rules of Civil Procedure. AMENDMENTS 1990 - Pub. L. 101-647 inserted after first sentence 'This section does not apply to judgments entered in favor of the United States.' EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-647 effective 180 days after Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date note under section 3001 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Judgments, see rules 54 to 58, Appendix to this title. CROSS REFERENCES Declaratory judgments, see sections 2201 and 2202 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 3613. ------DocID 36751 Document 613 of 1452------ -CITE- 28 USC Sec. 1963 -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- Sec. 1963. Registration of judgments of the district courts and the Court of International Trade -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 958; Aug. 23, 1954, ch. 837, 68 Stat. 772; July 7, 1958, Pub. L. 85-508, Sec. 12(o), 72 Stat. 349; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1002(a), (b)(1), 102 Stat. 4664; Nov. 29, 1990, Pub. L. 101-647, title XXXVI, Sec. 3628, 104 Stat. 4965.) -MISC1- 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. Registration of judgments in other district courts. A judgment entered in any district court and which has become final through expiration of the time for appeal or by mandate on appeal may be registered in any other district court by filing therein an authenticated copy of the judgment. When so registered the judgment shall have the same effect and like proceedings for its enforcement may be taken thereon in the court in which it is registered as if the judgment had been originally entered by that court. If in the court in which the judgment was originally entered, the judgment has been satisfied in whole or in part or if an order has been made modifying or vacating it or affecting or suspending its operation, the party procuring the registration shall and any other party may file authenticated copies of the satisfaction or order with the court in which the judgment is registered. This rule shall not be construed to limit the effect of the Act of February 20, 1905, c. 592, Sec. 20 (33 Stat. 729), as amended, U.S.C., title 15, Sec. 100; or the Act of March 4, 1909, c. 320, Sec. 36 and 37 (35 Stat. 1084), U.S.C., title 17, Sec. 36 and 37; or Sec. 56 of the Judicial Code, U.S.C., title 28, Sec. 117; or to authorize the registration elsewhere of an order or a judgment rendered in a divorce action in the District of Columbia.' Section 2508 of this title provides for the registration of judgments of the Court of Claims in favor of the United States in any district. See, also, section 2413 of this title. The phrase 'for the recovery of money or property' was not in the committee's draft of Rule 77 of Federal Rules of Civil Procedure but was inserted in the revised section to exclude judgments in divorce actions, and any other actions, the registration of which would serve no useful purpose. AMENDMENTS 1990 - Pub. L. 101-647 inserted after first sentence 'Such a judgment entered in favor of the United States may be so registered any time after judgment is entered.' 1988 - Pub. L. 100-702 substituted 'Registration of judgments of the district courts and the Court of International Trade' for 'Registration in other districts' in section catchline and amended first sentence generally. Prior to amendment, first sentence read as follows: 'A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment.' 1958 - Pub. L. 85-508 struck out provisions which extended provisions of section to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1954 - Act Aug. 23, 1954, extended provisions of section to District Court for Territory of Alaska. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-647 effective 180 days after Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date note under section 3001 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Section 1002(c) of title X of Pub. L. 100-702 provided that: 'The amendments made by this section (amending this section and repealing section 1963A of this title) take effect 90 days after the date of enactment of this title (Nov. 19, 1988).' EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. ------DocID 36752 Document 614 of 1452------ -CITE- 28 USC Sec. 1963A -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- (Sec. 1963A. Repealed. Pub. L. 100-702, title X, Sec. 1002(b)(2), Nov. 19, 1988, 102 Stat. 4664) -MISC1- Section, added Pub. L. 96-417, title V, Sec. 511(a), Oct. 10, 1980, 94 Stat. 1743, provided for registration of judgments of the Court of International Trade. See section 1963 of this title. EFFECTIVE DATE OF REPEAL Repeal effective 90 days after Nov. 19, 1988, see section 1002(c) of Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note under section 1963 of this title. ------DocID 36753 Document 615 of 1452------ -CITE- 28 USC Sec. 1964 -EXPCITE- TITLE 28 PART V CHAPTER 125 -HEAD- Sec. 1964. Constructive notice of pending actions -STATUTE- 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. -SOURCE- (Added Pub. L. 85-689, Sec. 1(a), Aug. 20, 1958, 72 Stat. 683.) -MISC1- EFFECTIVE DATE Section 2 of Pub. L. 85-689 provided that: 'The amendments made by this Act (enacting this section) shall only be effective with respect to actions commenced in United States district courts more than one hundred and eighty days after the date of enactment of this Act (Aug. 20, 1958).' ------DocID 36754 Document 616 of 1452------ -CITE- 28 USC CHAPTER 127 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES -MISC1- Sec. 2001. Sale of realty generally. 2002. Notice of sale of realty. 2003. Marshal's incapacity after levy on or sale of realty. 2004. Sale of personalty generally. 2005. Appraisal of goods taken on execution. 2006. Execution against revenue officer. 2007. Imprisonment for debt. ------DocID 36755 Document 617 of 1452------ -CITE- 28 USC Sec. 2001 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2001. Sale of realty generally -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 958; May 24, 1949, ch. 139, Sec. 99, 63 Stat. 104.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 847 (Mar. 3, 1893, ch. 225, Sec. 1, 27 Stat. 751; June 19, 1934, ch. 662, 48 Stat. 1119; Apr. 24, 1935, ch. 77, Sec. 1, 49 Stat. 159; June 19, 1935, ch. 276, 49 Stat. 390). A provision making the section applicable to pending proceedings was deleted as obsolete. The term 'court of the United States' is defined in section 451 of this title. Changes were made in phraseology. 1949 ACT This section corrects a typographical error in subsection (a) of section 2001 of title 28, U.S.C. AMENDMENTS 1949 - Subsec. (a). Act May 24, 1949, corrected spelling of 'ancillary' in second par. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. CROSS REFERENCES Sale of property in bankruptcy proceedings, see section 363 of Title 11, Bankruptcy. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2004, 3201, 3202 of this title. ------DocID 36756 Document 618 of 1452------ -CITE- 28 USC Sec. 2002 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2002. Notice of sale of realty -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, Sec. 100, 63 Stat. 104.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 849 (Mar. 3, 1893, ch. 225, Sec. 3, 27 Stat. 751; Apr. 24, 1935, ch. 77, Sec. 3, 49 Stat. 160; June 19, 1935, ch. 276, 49 Stat. 390). A provision making the section applicable to pending proceedings was deleted as obsolete. Word 'under' was substituted for 'ordered pursuant to section 847 of this title by' after 'A public sale of realty or interest therein'. Sections 847 and 848, of title 28, U.S.C., 1940 ed., now sections 2001 and 2004 of this title, relate only to sales under orders or decrees, without any reference to sales under judgments. In 1921 the Supreme Court held, in Yazoo & M. V. R. Co. v. City of Clarksdale, 1921, 42 S.Ct. 27, 257 U.S. 10, 66 L.Ed. 104, that such section 847 did not apply to sales under common law executions. At that time such section 849 of title 28, U.S.C., 1940 ed., read as it has been revised above, without any reference to such section 847. However, in 1935, such sections 847, 848 and 849 were amended by one act, ch. 77, 49 Stat. 159, and, in such section 849, the words 'pursuant to the provisions of this Act' were inserted, but the word 'judgment,' though retained in such section 849, was not inserted in such sections 847 and 848. It is probable that Congress did not intend, in 1935 to make such sections 847 and 848 applicable to sales under judgments in law actions. Hence, to make all three sections consistent, the above-mentioned substitution was made. Reference to circuit was deleted from first and second paragraphs as unnecessary and inappropriate. Publication in a newspaper in a large circuit remote from the county in which the realty is situate, might be wholly insufficient to give notice to interested parties. Changes were made in phraseology. 1949 ACT This section corrects a typographical error in section 2002 of title 28, U.S.C. AMENDMENTS 1949 - Act May 24, 1949, substituted '11' for 'II' after 'Title' in third par. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3201, 3202 of this title. ------DocID 36757 Document 619 of 1452------ -CITE- 28 USC Sec. 2003 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2003. Marshal's incapacity after levy on or sale of realty -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, Sec. 101, 63 Stat. 104.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 850 (R.S. Sec. 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 section 2003 of title 28, U.S.C. AMENDMENTS 1949 - Act May 24, 1949, corrected spelling of 'realty' in first par. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. ------DocID 36758 Document 620 of 1452------ -CITE- 28 USC Sec. 2004 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2004. Sale of personalty generally -STATUTE- Any personalty sold under any order or decree of any court of the United States shall be sold in accordance with section 2001 of this title, unless the court orders otherwise. This section shall not apply to sales and proceedings under Title 11 or by receivers or conservators of banks appointed by the Comptroller of the Currency. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 959.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 848 (Mar. 3, 1893, ch. 225, Sec. 2, 27 Stat. 751; Apr. 24, 1935, ch. 77, Sec. 2, 49 Stat. 160; June 19, 1935, ch. 276, 49 Stat. 390). A provision making the section applicable to pending proceedings was deleted as obsolete. Changes were made in phraseology. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3202 of this title. ------DocID 36759 Document 621 of 1452------ -CITE- 28 USC Sec. 2005 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2005. Appraisal of goods taken on execution -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 959.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 846 (R.S. Sec. 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. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69, Appendix to this title. ------DocID 36760 Document 622 of 1452------ -CITE- 28 USC Sec. 2006 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2006. Execution against revenue officer -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 960.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 842 (R.S. Sec. 989). Changes were made in phraseology. -CROSS- 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 2413 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7422. ------DocID 36761 Document 623 of 1452------ -CITE- 28 USC Sec. 2007 -EXPCITE- TITLE 28 PART V CHAPTER 127 -HEAD- Sec. 2007. Imprisonment for debt -STATUTE- (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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 960.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 843, 844, and 845 (R.S. Sec. 990, 991, 992; May 28, 1896, ch. 252, Sec. 19, 29 Stat. 184; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167). Changes were made in phraseology. -CHANGE- CHANGE OF NAME Reference to United States commissioner deemed to be reference to United States magistrate, pursuant to Pub. L. 90-578, title IV, Sec. 402(b)(2), Oct. 17, 1968, 82 Stat. 1118. See chapter 43 (Sec. 631 et seq.) of this title. Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Execution and seizure of person or property, see rules 64 and 69, Appendix to this title. ------DocID 36762 Document 624 of 1452------ -CITE- 28 USC CHAPTER 129 -EXPCITE- TITLE 28 PART V CHAPTER 129 -HEAD- CHAPTER 129 - MONEYS PAID INTO COURT -MISC1- Sec. 2041. Deposit of moneys in pending or adjudicated cases. 2042. Withdrawal. 2043. Deposit of other moneys. 2044. Payment of fine with bond money. AMENDMENTS 1990 - Pub. L. 101-647, title XXXVI, Sec. 3629(b), Nov. 29, 1990, 104 Stat. 4966, which directed the amendment of the table of sections for chapter 29 by adding item 2044, was executed by adding item 2044 to the table of sections for chapter 129 to reflect the probable intent of Congress. 1982 - Pub. L. 97-258, Sec. 2(g)(4)(A), (B), Sept. 13, 1982, 96 Stat. 1060, substituted 'Deposit of moneys in pending or adjudicated cases' for 'Deposit' in item 2041 and added item 2043. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 11 section 347. ------DocID 36763 Document 625 of 1452------ -CITE- 28 USC Sec. 2041 -EXPCITE- TITLE 28 PART V CHAPTER 129 -HEAD- Sec. 2041. Deposit of moneys in pending or adjudicated cases -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 960; Sept. 13, 1982, Pub. L. 97-258, Sec. 2(g)(4)(C), 96 Stat. 1061.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 851 (R.S. Sec. 995; May 29, 1920, ch. 214, Sec. 1, 41 Stat. 654). Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-258 substituted 'Deposit of moneys in pending or adjudicated cases' for 'Deposit' in section catchline. REGISTRY ADMINISTRATION ACCOUNT Pub. L. 100-459, title IV, Sec. 400, Oct. 1, 1988, 102 Stat. 2211, provided: 'That any funds hereafter collected by the Judiciary as a charge for services rendered in administering accounts kept in a court's registry shall be deposited into a separate account entitled 'Registry Administration Account' in the Treasury of the United States. Such funds shall remain available to the Judiciary until expended to reimburse any appropriation for the amount paid out of such appropriation for expenses of the Courts of Appeals, District Courts and Other Judicial Services and the Administrative Office of the United States Courts'. -CROSS- 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 section 258a of Title 40, Public Buildings, Property, and Works. Court officers depositing registry moneys, see section 646 of Title 18, Crimes and Criminal Procedure. Depositaries of public moneys and financial agents of Government, see section 90 of Title 12, Banks and Banking. Limitation of liability, deposit of value of interest in court, see section 185 of Title 46, Appendix, Shipping. Powers upon designation and assignment, exception as to permanent designation of depository of funds, see section 296 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 566, 2042, 2043 of this title. ------DocID 36764 Document 626 of 1452------ -CITE- 28 USC Sec. 2042 -EXPCITE- TITLE 28 PART V CHAPTER 129 -HEAD- Sec. 2042. Withdrawal -STATUTE- No money deposited under section 2041 of this title shall be withdrawn except by order of court. In every case in which the right to withdraw money deposited in court under section 2041 has been adjudicated or is not in dispute and such money has remained so deposited for at least five years unclaimed by the person entitled thereto, such court shall cause such money to be deposited in the Treasury in the name and to the credit of the United States. Any claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 960; Sept. 13, 1982, Pub. L. 97-258, Sec. 2(g)(4)(D), 96 Stat. 1061.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 852 (R.S. Sec. 996; Feb. 19, 1897, ch. 265, Sec. 3, 29 Stat. 578; Mar. 3, 1911, ch. 224, 36 Stat. 1083). Words 'and the money deposited as aforesaid shall constitute and be a permanent appropriation for payments in obedience to such orders' were omitted, in view of section 725p(b)(14), of title 31, U.S.C., 1940 ed., which repealed permanent appropriations of unclaimed money accounts and substituted authorization for annual appropriations effective July 1, 1935. Changes were made in phraseology. In U. S. Law Week, Nov. 7, 1939, Rep. Walter Chandler (Author of Chandler Act, Bankruptcy) observed as to the Judicial Code: 'Among the major subjects needing study and revision are - Numerous procedural changes which have been brought about through adoption of the Federal Rules of Civil Procedure should be codified.' * * * AMENDMENTS 1982 - Pub. L. 97-258 inserted references to section 2041 in two places. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Deposit in court, see rule 67, Appendix to this title. CROSS REFERENCES Unclaimed moneys, see section 347 of Title 11, Bankruptcy. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 3666. ------DocID 36765 Document 627 of 1452------ -CITE- 28 USC Sec. 2043 -EXPCITE- TITLE 28 PART V CHAPTER 129 -HEAD- Sec. 2043. Deposit of other moneys -STATUTE- Except for public moneys deposited under section 2041 of this title, each clerk of the United States courts shall deposit public moneys that the clerk collects into a checking account in the Treasury, subject to disbursement by the clerk. At the end of each accounting period, the earned part of public moneys accruing to the United States shall be deposited in the Treasury to the credit of the appropriate receipt accounts. -SOURCE- (Added Pub. L. 97-258, Sec. 2(g)(4)(E), Sept. 13, 1982, 96 Stat. 1061.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Revised Section Source (U.S. Code) Source (Statutes at Large) --------------------------------------------------------------------- 28:2043 31:725v(b)(related June 26, 1934, ch. to clerks). 756, Sec. 23(b)(related to clerks), 48 Stat. 1236; restated Dec. 21, 1944, ch. 631, Sec. 1, 58 Stat. 845. ------------------------------- The words 'Except for public moneys deposited under section 2041 of this title . . . public moneys' are substituted for 'All fees and other collections other than moneys referred to in subsection (a) of this section' for consistency and because 31:725v(a) is superseded by 28:2041 and is not part of the revised title contained in section 1 of the bill. The word 'Treasury' is substituted for 'Treasurer of the United States' because of section 1 of Reorganization Plan No. 26 of 1950 (eff. July 31, 1950, 64 Stat. 1280), restated as section 321 of the revised title contained in section 1 of the bill. The text of 31:725v(b)(last sentence) is omitted as obsolete. ------DocID 36766 Document 628 of 1452------ -CITE- 28 USC Sec. 2044 -EXPCITE- TITLE 28 PART V CHAPTER 129 -HEAD- Sec. 2044. Payment of fine with bond money -STATUTE- 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. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3629(a), Nov. 29, 1990, 104 Stat. 4966.) -MISC1- 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 Pub. L. 101-647, set out as a note under section 3001 of this title. ------DocID 36767 Document 629 of 1452------ -CITE- 28 USC CHAPTER 131 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- CHAPTER 131 - RULES OF COURTS -MISC1- Sec. 2071. Rule-making power generally. 2072. Rules of procedure and evidence; power to prescribe. 2073. Rules of procedure and evidence; method of prescribing. 2074. Rules of procedure and evidence; submission to Congress; effective date. 2075. Bankruptcy rules. (2076. Repealed.) 2077. Publication of rules; advisory committees. AMENDMENTS 1988 - Pub. L. 100-702, title IV, Sec. 401(d), Nov. 19, 1988, 102 Stat. 4650, added items 2072 to 2075 and struck out former items 2072 'Rules of civil procedure', 2075 'Bankruptcy rules', and 2076 'Rules of evidence'. 1982 - Pub. L. 97-164, title II, Sec. 208(b), Apr. 2, 1982, 96 Stat. 55, added item 2077. 1975 - Pub. L. 93-595, Sec. 2(a)(2), Jan. 2, 1975, 88 Stat. 1949, added item 2076. 1966 - Pub. L. 89-773, Sec. 3, Nov. 6, 1966, 80 Stat. 1323, struck out 'for district courts' in item 2072 and struck out items 2073 and 2074. 1964 - Pub. L. 88-623, Sec. 2, Oct. 3, 1964, 78 Stat. 1001, added item 2075. 1954 - Act July 27, 1954, ch. 583, Sec. 2, 68 Stat. 567, added item 2074. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Criminal procedure rules are set out in Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 36768 Document 630 of 1452------ -CITE- 28 USC Sec. 2071 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2071. Rule-making power generally -STATUTE- (a) The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title. (b) Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment. Such rule shall take effect upon the date specified by the prescribing court and shall have such effect on pending proceedings as the prescribing court may order. (c)(1) A rule of a district court prescribed under subsection (a) shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit. (2) Any other rule prescribed by a court other than the Supreme Court under subsection (a) shall remain in effect unless modified or abrogated by the Judicial Conference. (d) Copies of rules prescribed under subsection (a) by a district court shall be furnished to the judicial council, and copies of all rules prescribed by a court other than the Supreme Court under subsection (a) shall be furnished to the Director of the Administrative Office of the United States Courts and made available to the public. (e) If the prescribing court determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment, but such court shall promptly thereafter afford such notice and opportunity for comment. (f) No rule may be prescribed by a district court other than under this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, Sec. 102, 63 Stat. 104; Nov. 19, 1988, Pub. L. 100-702, title IV, Sec. 403(a)(1), 102 Stat. 4650.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 219, 263, 296, 307, 723, 731, and 761, and section 1111 of title 26, U.S.C., 1940 ed., Internal Revenue Code (R.S. Sec. 913, 918; Mar. 3, 1887, ch. 359, Sec. 4, 24 Stat. 506; Mar. 3, 1911, ch. 231, Sec. 122, 157, 194, 291, 297, 36 Stat. 1132, 1139, 1145, 1167, 1168; Mar. 3, 1911, ch. 231, Sec. 187(a), as added Oct. 10, 1940, ch. 843, Sec. 1, 54 Stat. 1101; Feb. 13, 1925, ch. 229, Sec. 13, 43 Stat. 941; Mar. 2, 1929, ch. 488, Sec. 1, 45 Stat. 1475; Feb. 10, 1939, ch. 2, Sec. 1111, 53 Stat. 160; Oct. 21, 1942, ch. 619, title V, Sec. 504(a), (c), 56 Stat. 957). Sections 219, 263, 296, 307, 723, and 731 of title 28, U.S.C., 1940 ed., gave specified courts, other than the Supreme Court, power to make rules. Section 761 of such title related to rules established in the district courts and Court of Claims. Section 1111 of title 26, U.S.C., 1940 ed., related to Tax Court. This section consolidates all such provisions. For other provisions of such sections, see Distribution Table. Recognition by Congress of the broad rule-making power of the courts will make it possible for the courts to prescribe complete and uniform modes of procedure, and alleviate, at least in part, the necessity of searching in two places, namely in the Acts of Congress and in the rules of the courts, for procedural requisites. Former Attorney General Cummings recently said: 'Legislative bodies have neither the time to inquire objectively into the details of judicial procedure nor the opportunity to determine the necessity for amendment or change. Frequently such legislation has been enacted for the purpose of meeting particular problems or supposed difficulties, but the results have usually been confusing or otherwise unsatisfactory. Comprehensive action has been lacking for the obvious reason that the professional nature of the task would leave the legislature little time for matters of substance and statesmanship. It often happened that an admitted need for change, even in limited areas, could not be secured.' - The New Criminal Rules - Another Triumph of the Democratic Process. American Bar Association Journal, May 1945. Provisions of sections 263 and 296 of title 28, U.S.C., 1940 ed., authorizing the Court of Claims and Customs Court to punish for contempt, were omitted as covered by H. R. 1600, Sec. 401, 80th Congress, for revision of the Criminal Code. Provisions of section 1111 of title 26, U.S.C., 1940 ed., making applicable to Tax Court Proceedings 'the rules of evidence applicable in the courts of the District of Columbia in the type of proceeding which, prior to Sept. 16, 1938, were within the jurisdiction of the courts of equity of said District,' were omitted as unnecessary and inconsistent with other provisions of law relating to the Federal courts. The rules of evidence in Tax Court proceedings are the same as those which apply to civil procedure in other courts. See Dempster Mill. Mfg. Co. v. Burnet, 1931, 46 F.2d 604, 60 App.D.C. 23. For rule-making power of the Supreme Court in copyright infringement actions, see section 25(e) of title 17, U.S.C., 1940 ed., Copyrights. See, also, section 205(a) of title 11, U.S.C., 1940 ed., Bankruptcy, authorizing the Supreme Court to promulgate rules relating to service of process in railroad reorganization proceedings. SENATE REVISION AMENDMENT By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore, section 1111 of Title 26, U.S.C., Internal Revenue Code, was not one of the sources of this section as finally enacted. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559. 1949 ACT This amendment clarifies section 2071 of title 28, U.S.C., by giving express recognition to the power of the Supreme Court to prescribe its own rules and by giving a better description of its procedural rules. AMENDMENTS 1988 - Pub. L. 100-702 designated existing provisions as subsec. (a), substituted 'under section 2072 of this title' for 'by the Supreme Court', and added subsecs. (b) to (f). 1949 - Act May 24, 1949, expressed recognition to the Supreme Court's power to prescribe its own rules and give a better description of its procedural rules. EFFECTIVE DATE OF 1988 AMENDMENT Section 407 of title IV of Pub. L. 100-702 provided that: 'This title (enacting sections 2072 to 2074 of this title, amending this section, sections 331, 332, 372, 604, 636, and 2077 of this title, section 460n-8 of Title 16, Conservation, and section 3402 of Title 18, Crimes and Criminal Procedure, repealing former section 2072 and section 2076 of this title and sections 3771 and 3772 of Title 18, and enacting provisions set out as notes under section 2071 of this title) shall take effect on December 1, 1988.' EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 97-462, Sec. 4, Jan. 12, 1983, 96 Stat. 2530, provided that: 'The amendments made by this Act (enacting provisions set out as notes below, amending Rule 4 of the Federal Rules of Civil Procedure, set out in the Appendix to this title, adding Form 18-A in the Appendix of Forms, and amending section 951 of Title 18, Crimes and Criminal Procedure) shall take effect 45 days after the enactment of this Act (Jan. 12, 1983).' SHORT TITLE OF 1983 AMENDMENT Pub. L. 97-462, Sec. 1, Jan. 12, 1983, 96 Stat. 2527, provided: 'That this Act (enacting provisions set out as notes below, amending Rule 4 of the Federal Rules of Civil Procedure, set out in the Appendix to this title, adding Form 18-A in the Appendix of Forms, and amending section 951 of Title 18, Crimes and Criminal Procedure) may be cited as the 'Federal Rules of Civil Procedure Amendments Act of 1982'.' SAVINGS PROVISION Section 406 of title IV of Pub. L. 100-702 provided that: 'The rules prescribed in accordance with law before the effective date of this title (Dec. 1, 1988) and in effect on the date of such effective date shall remain in force until changed pursuant to the law as amended by this title (see Effective Date of 1988 Amendment note above).' TAX COURT RULEMAKING NOT AFFECTED Section 405 of title IV of Pub. L. 100-702 provided that: 'The amendments made by this title (see Effective Date of 1988 Amendment note above) shall not affect the authority of the Tax Court to prescribe rules under section 7453 of the Internal Revenue Code of 1986 (26 U.S.C. 7453).' 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. -CROSS- 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 section 292 of this title. Designation of places for terms or sessions of, see section 48 of this title. Participation by members of bar at judicial conference of circuit, see section 333 of this title. Court of International Trade - Assignment or reassignment of cases, see section 253 of this title. Notice of time and place of hearing before judge or division, see section 2632 of this title. District Court - Advance payment of fees, see section 1914 of this title. Division of business, see section 137 of this title. Exercise of judicial powers, see section 132 of this title. Regular terms, see section 138 of this title. Special terms, see section 141 of this title. Tax Court rules, see section 7453 of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 331, 332, 604, 2077 of this title; title 42 section 300aa-12. ------DocID 36769 Document 631 of 1452------ -CITE- 28 USC Sec. 2072 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2072. Rules of procedure and evidence; power to prescribe -STATUTE- (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. -SOURCE- (Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat. 4648, and amended Pub. L. 101-650, title III, Sec. 315, Dec. 1, 1990, 104 Stat. 5115.) -MISC1- PRIOR PROVISIONS A prior section 2072, acts June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, Sec. 103, 63 Stat. 104; July 18, 1949, ch. 343, Sec. 2, 63 Stat. 446; May 10, 1950, ch. 174, Sec. 2, 64 Stat. 158; July 7, 1958, Pub. L. 85-508, Sec. 12(m), 72 Stat. 348; Nov. 6, 1966, Pub. L. 89-773, Sec. 1, 80 Stat. 1323, which authorized the Supreme Court to prescribe rules of civil procedure, was repealed by Pub. L. 100-702, title IV, Sec. 401(a), 407, Nov. 19, 1988, 102 Stat. 4648, 4652, effective Dec. 1, 1988. AMENDMENTS 1990 - Subsec. (c). Pub. L. 101-650 added subsec. (c). -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE Section effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note under section 2071 of this title. APPLICABILITY TO VIRGIN ISLANDS Rules of civil procedure promulgated under this section as applicable to the District Court of the Virgin Islands, see section 1615 of Title 48, Territories and Insular Possessions. 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. -CROSS- 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 332, 636, 2071, 2073, 2074, 2112 of this title; title 26 section 7482; title 29 section 160; title 38 section 4092. ------DocID 36770 Document 632 of 1452------ -CITE- 28 USC Sec. 2073 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2073. Rules of procedure and evidence; method of prescribing -STATUTE- (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under section 2072 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice. (c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the transaction of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made available to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting. (2) Any meeting for the transaction of business under this chapter, by a committee appointed under this section, shall be preceded by sufficient notice to enable all interested persons to attend. (d) In making a recommendation under this section or under section 2072, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body's action, including any minority or other separate views. (e) Failure to comply with this section does not invalidate a rule prescribed under section 2072 of this title. -SOURCE- (Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat. 4649.) -MISC1- PRIOR PROVISIONS A prior section 2073, acts June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, Sec. 104, 63 Stat. 104; May 10, 1950, ch. 174, Sec. 3, 64 Stat. 158, which empowered the Supreme Court to prescribe, by general rules, the practice and procedure in admiralty and maritime cases in the district courts, was repealed by Pub. L. 89-773, Sec. 2, Nov. 6, 1966, 80 Stat. 1323. EFFECTIVE DATE Section effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note under section 2071 of this title. ------DocID 36771 Document 633 of 1452------ -CITE- 28 USC Sec. 2074 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2074. Rules of procedure and evidence; submission to Congress; effective date -STATUTE- (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. -SOURCE- (Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat. 4649.) -MISC1- PRIOR PROVISIONS A prior section 2074, act July 27, 1954, ch. 583, Sec. 1, 68 Stat. 567, which empowered the Supreme Court to prescribe rules for review of decisions of the Tax Court of the United States, was repealed by Pub. L. 89-773, Sec. 2, Nov. 6, 1966, 80 Stat. 1323. EFFECTIVE DATE Section effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note under section 2071 of this title. AMENDMENTS TO CIVIL RULES PROPOSED APRIL 28, 1982 Pub. L. 97-462, Sec. 5, Jan. 12, 1983, 96 Stat. 2530, provided that: 'The amendments to the Federal Rules of Civil Procedure (Rule 4), the effective date of which was delayed by the Act entitled 'An Act to delay the effective date of proposed amendments to rule 4 of the Federal Rules of Civil Procedure', approved August 2, 1982 (96 Stat. 246) (Pub. L. 97-227, see below), shall not take effect.' Pub. L. 97-227, Aug. 2, 1982, 96 Stat. 246, provided: 'That notwithstanding the provisions of section 2072 of title 28, United States Code, the amendments to rule 4 of the Federal Rules of Civil Procedure as proposed by the Supreme Court of the United States and transmitted to the Congress by the Chief Justice on April 28, 1982, shall take effect on October 1, 1983, unless previously approved, disapproved, or modified by Act of Congress. 'Sec. 2. This Act shall be effective as of August 1, 1982, but shall not apply to the service of process that takes place between August 1, 1982, and the date of enactment of this Act (Aug. 2, 1982).' AMENDMENTS TO CRIMINAL RULES AND RULES OF EVIDENCE PROPOSED APRIL 30, 1979; POSTPONEMENT OF EFFECTIVE DATE Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided: 'That notwithstanding any provision of section 3771 or 3772 of title 18 of the United States Code or of section 2072, 2075, or 2076 of title 28 of the United States Code to the contrary - '(1) the amendments proposed by the United States Supreme Court and transmitted by the Chief Justice on April 30, 1979, to the Federal Rules of Criminal Procedure affecting rules 11(e)(6), 17(h), 32(f), and 44(c), and adding new rules 26.2 and 32.1, and the amendment so proposed and transmitted to the Federal Rules of Evidence affecting rule 410, shall not take effect until December 1, 1980, or until and then only to the extent approved by Act of Congress, whichever is earlier; and '(2) the amendment proposed by the United States Supreme Court and transmitted by the Chief Justice on April 30, 1979, affecting rule 40 of the Federal Rules of Criminal Procedure shall take effect on August 1, 1979, with the following amendments: '(A) In the matter designated as paragraph (1) of subdivision (d), strike out 'in accordance with Rule 32.1(a)'. '(B) In the matter designated as paragraph (2) of subdivision (d), strike out 'in accordance with Rule 32.1(a)(1)'.' APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided: 'That the rules governing section 2254 cases in the United States district courts and the rules governing section 2255 proceedings for the United States district courts, as proposed by the United States Supreme Court, which were delayed by the Act entitled 'An Act to delay the effective date of certain proposed amendments to the Federal Rules of Criminal Procedure and certain other rules promulgated by the United States Supreme Court' (Public Law 94-349), are approved with the amendments set forth in section 2 of this Act and shall take effect as so amended, with respect to petitions under section 2254 and motions under section 2255 of title 28 of the United States Code filed on or after February 1, 1977.' POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES AND FORMS GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE Pub. L. 94-349, Sec. 2, July 8, 1976, 90 Stat. 822, provided: 'That, notwithstanding the provisions of section 2072 of title 28 of the United States Code, the rules and forms governing section 2254 (section 2254 of this title) cases in the United States district courts and the rules and forms governing section 2255 (section 2255 of this title) proceedings in the United States district courts which are embraced by the order entered by the United States Supreme Court on April 26, 1976, and which were transmitted to the Congress on or about April 26, 1976, shall not take effect until thirty days after the adjournment sine die of the 94th Congress, or until and to the extent approved by Act of Congress, whichever is earlier.' APPROVAL AND EFFECTIVE DATE OF AMENDMENTS PROPOSED NOVEMBER 20, 1972 AND DECEMBER 18, 1972 Pub. L. 93-595, Sec. 3, Jan. 2, 1975, 88 Stat. 1949, provided that: 'The Congress expressly approves the amendments to the Federal Rules of Civil Procedure (Rules 30(c), 32(c), 43, and 44.1) and the amendments to the Federal Rules of Criminal Procedure (Rules 26, 26.1, and 28), which are embraced by the orders entered by the Supreme Court of the United States on November 20, 1972, and December 18, 1972, and such amendments shall take effect on the one hundred and eightieth day beginning after the date of the enactment of this Act (Jan. 2, 1975).' 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 Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9, provided: 'That notwithstanding any other provisions of law, the Rules of Evidence for United States Courts and Magistrates, the Amendments to the Federal Rules of Civil Procedure, and the Amendments to the Federal Rules of Criminal Procedure, which are embraced by the orders entered by the Supreme Court of the United States on Monday, November 20, 1972, and Monday, December 18, 1972, shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by the Act of Congress.' ------DocID 36772 Document 634 of 1452------ -CITE- 28 USC Sec. 2075 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2075. Bankruptcy rules -STATUTE- The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under title 11. Such rules shall not abridge, enlarge, or modify any substantive right. Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May and until the expiration of ninety days after they have been thus reported. -SOURCE- (Added Pub. L. 88-623, Sec. 1, Oct. 3, 1964, 78 Stat. 1001, and amended Pub. L. 95-598, title II, Sec. 247, Nov. 6, 1978, 92 Stat. 2672.) -MISC1- AMENDMENTS 1978 - Pub. L. 95-598 substituted 'in cases under title 11' for 'under the Bankruptcy Act' and struck out provisions directing that all laws in conflict with bankruptcy rules be of no further force or effect after such rules have taken effect. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Nov. 6, 1978, see section 402(d) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. RULES PROMULGATED BY SUPREME COURT Pub. L. 98-353, title III, Sec. 320, July 10, 1984, 98 Stat. 357, provided that: 'The Supreme Court shall prescribe general rules implementing the practice and procedure to be followed under section 707(b) of title 11, United States Code. Section 2075 of title 28, United States Code, shall apply with respect to the general rules prescribed under this section.' APPLICABILITY OF RULES TO CASES UNDER TITLE 11 Pub. L. 95-598, title IV, Sec. 405(d), Nov. 6, 1978, 92 Stat. 2685, provided that: 'The rules prescribed under section 2075 of title 28 of the United States Code and in effect on September 30, 1979, shall apply to cases under title 11, to the extent not inconsistent with the amendments made by this Act, or with this Act (see Tables for complete classification of Pub. L. 95-598), until such rules are repealed or superseded by rules prescribed and effective under such section, as amended by section 248 of this Act.' ADDITIONAL RULEMAKING POWER Pub. L. 95-598, title IV, Sec. 410, Nov. 6, 1978, 92 Stat. 2687, provided that: 'The Supreme Court may issue such additional rules of procedure, consistent with Acts of Congress, as may be necessary for the orderly transfer of functions and records and the orderly transition to the new bankruptcy court system created by this Act (see Tables for complete classification of Pub. L. 95-598).' ------DocID 36773 Document 635 of 1452------ -CITE- 28 USC Sec. 2076 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- (Sec. 2076. Repealed. Pub. L. 100-702, title IV, Sec. 401(c), Nov. 19, 1988, 102 Stat. 4650) -MISC1- Section, added Pub. L. 93-595, Sec. 2(a)(1), Jan. 2, 1975, 88 Stat. 1948, and amended Pub. L. 94-149, Sec. 2, Dec. 12, 1975, 89 Stat. 806, authorized the Supreme Court to prescribe amendments to Federal Rules of Evidence. See sections 2072 to 2074 of this title. EFFECTIVE DATE OF REPEAL Repeal effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as an Effective Date of 1988 Amendment note under section 2071 of this title. ------DocID 36774 Document 636 of 1452------ -CITE- 28 USC Sec. 2077 -EXPCITE- TITLE 28 PART V CHAPTER 131 -HEAD- Sec. 2077. Publication of rules; advisory committees -STATUTE- (a) The rules for the conduct of the business of each court of appeals, including the operating procedures of such court, shall be published. Each court of appeals shall print or cause to be printed necessary copies of the rules. The Judicial Conference shall prescribe the fees for sales of copies under section 1913 of this title, but the Judicial Conference may provide for free distribution of copies to members of the bar of each court and to other interested persons. (b) Each court, except the Supreme Court, that is authorized to prescribe rules of the conduct of such court's business under section 2071 of this title shall appoint an advisory committee for the study of the rules of practice and internal operating procedures of such court and, in the case of an advisory committee appointed by a court of appeals, of the rules of the judicial council of the circuit. The advisory committee shall make recommendations to the court concerning such rules and procedures. Members of the committee shall serve without compensation, but the Director may pay travel and transportation expenses in accordance with section 5703 of title 5. -SOURCE- (Added Pub. L. 97-164, title II, Sec. 208(a), Apr. 2, 1982, 96 Stat. 54, and amended Pub. L. 100-702, title IV, Sec. 401(b), Nov. 19, 1988, 102 Stat. 4650; Pub. L. 101-650, title IV, Sec. 406, Dec. 1, 1990, 104 Stat. 5124.) -MISC1- AMENDMENTS 1990 - Subsec. (b). Pub. L. 101-650 inserted before period at end of first sentence 'and, in the case of an advisory committee appointed by a court of appeals, of the rules of the judicial council of the circuit'. 1988 - Subsec. (b). Pub. L. 100-702 substituted 'Each court, except the Supreme Court, that is authorized to prescribe rules of the conduct of such court's business under section 2071 of this title shall appoint' for 'Each court of appeals shall appoint' and 'such court' for 'the court of appeals'. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-650 effective 90 days after Dec. 1, 1990, see section 407 of Pub. L. 101-650, set out as a note under section 332 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-702 effective Dec. 1, 1988, see section 407 of Pub. L. 100-702, set out as a note under section 2071 of this title. EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36775 Document 637 of 1452------ -CITE- 28 USC CHAPTER 133 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS -MISC1- Sec. 2101. Supreme Court; time for appeal or certiorari; docketing; stay. 2102. Priority of criminal case on appeal from State court. (2103. Repealed.) 2104. Reviews of State court decisions. 2105. Scope of review; abatement. 2106. Determination. 2107. Time for appeal to court of appeals. 2108. Proof of amount in controversy. 2109. Quorum of Supreme Court justices absent. (2110. Repealed.) 2111. Harmless error. 2112. Record on review and enforcement of agency orders. 2113. Definition. HISTORICAL AND REVISION NOTES 1949 ACT This section inserts in the chapter analysis of chapter 133 of title 28, U.S.C., a new item '2111,' in view of the insertion in such title, by another section of this bill, of a new section 2111. AMENDMENTS 1988 - Pub. L. 100-352, Sec. 5(c), (d)(2), June 27, 1988, 102 Stat. 663, struck out item 2103 'Appeal from State court or from a United States court of appeals improvidently taken regarded as petition for writ of certiorari' and substituted 'Reviews of State court decisions' for 'Appeals from State courts' in item 2104. 1982 - Pub. L. 97-164, title I, Sec. 136, Apr. 2, 1982, 96 Stat. 41, struck out item 2110 'Time for appeal to Court of Claims in tort claims cases'. 1970 - Pub. L. 91-358, title I, Sec. 172(a)(2)(B), July 29, 1970, 84 Stat. 590, added item 2113. 1962 - Pub. L. 87-669, Sec. 2, Sept. 19, 1962, 76 Stat. 556, substituted 'or from a United States court of appeals improvidently taken regarded as petition for' for 'improvidently taken regarded as' in item 2103. 1958 - Pub. L. 85-791, Sec. 1, Aug. 28, 1958, 72 Stat. 941, added item 2112. 1949 - Act May 24, 1949, ch. 139, Sec. 105, 63 Stat. 104, added item 2111. -CROSS- 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. ------DocID 36776 Document 638 of 1452------ -CITE- 28 USC Sec. 2101 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2101. Supreme Court; time for appeal or certiorari; docketing; stay -STATUTE- (a) A direct appeal to the Supreme Court from any decision under section 1253 of this title, holding unconstitutional in whole or in part, any Act of Congress, shall be taken within thirty days after the entry of the interlocutory or final order, judgment or decree. The record shall be made up and the case docketed within sixty days from the time such appeal is taken under rules prescribed by the Supreme Court. (b) Any other direct appeal to the Supreme Court which is authorized by law, from a decision of a district court in any civil action, suit or proceeding, shall be taken within thirty days from the judgment, order or decree, appealed from, if interlocutory, and within sixty days if final. (c) Any other appeal or any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days. (d) The time for appeal or application for a writ of certiorari to review the judgment of a State court in a criminal case shall be as prescribed by rules of the Supreme Court. (e) An application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment. (f) In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court, and may be conditioned on the giving of security, approved by such judge or justice, that if the aggrieved party fails to make application for such writ within the period allotted therefor, or fails to obtain an order granting his application, or fails to make his plea good in the Supreme Court, he shall answer for all damages and costs which the other party may sustain by reason of the stay. (g) The time for application for a writ of certiorari to review a decision of the United States Court of Military Appeals shall be as prescribed by rules of the Supreme Court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, Sec. 106, 63 Stat. 104; Dec. 6, 1983, Pub. L. 98-209, Sec. 10(b), 97 Stat. 1406; June 27, 1988, Pub. L. 100-352, Sec. 5(b), 102 Stat. 663.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 47, 47a, 349a, 350, 380, 380a, section 29 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 45 of title 49, U.S.C., 1940 ed., Transportation (Feb. 11, 1903, ch. 544, Sec. 2, 32 Stat. 1167; Mar. 3, 1911, ch. 231, Sec. 210, 266, 291, 36 Stat. 1150, 1162, 1167; Mar. 4, 1913, ch. 160, 37 Stat. 1013; Oct. 22, 1913, ch. 32, 38 Stat. 220; Sept. 6, 1916, ch. 448, Sec. 6, 39 Stat. 727; Feb. 13, 1925, ch. 229, Sec. 1, 8 (a, b, d), 43 Stat. 938, 940; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; June 7, 1934, ch. 426, 48 Stat. 936; Aug. 24, 1937, ch. 754, Sec. 2, 3, 50 Stat. 752; June 9, 1944, ch. 239, 58 Stat. 272). Section consolidates section 350 of title 28, U.S.C., 1940 ed., with those portions of sections 47, 47a, 349a, 380, and 380a, of said title 28, section 29, of title 15, U.S.C., 1940 ed., and section 45 of title 49, U.S.C., 1940 ed., respective time for taking direct appeal. (For disposition of other provisions of said sections, see Distribution Table.) Subsection (a) of the revised section is derived from sections 349a and 380a of title 28, U.S.C., 1940 ed. The phrase 'under rules prescribed by the Supreme Court' was substituted for the phrase 'under such rules as may be prescribed by the proper courts' which appeared in both such sections. The Supreme Court by its revised rules 10-13 has made adequate provision for filing record and docketing case. (See Revised Rules of the Supreme Court following section 354 of title 28, U.S.C., 1940 ed.) Subsection (b) is in accord with sections 47 and 47a of title 28, U.S.C., 1940 ed., and section 29 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 45 of title 49, U.S.C., 1940 ed., Transportation. Subsection (c), with respect to the time for taking other appeals or petitioning for a writ of certiorari, substitutes, as more specific, the words 'ninety days' for the words 'three months' contained in section 350 of title 28, U.S.C., 1940 ed. The provision in said section 350 for allowance of additional time was retained, notwithstanding the language of the Supreme Court in Comm'r v. Bedford's Estate, 1945, 65 S.Ct. 1157, 1159, 325 U.S. 283, 89 L.Ed. 1611, to the effect that the 3 months' period is 'more than ample * * * to determine whether to seek further review'. In subsection (c), words 'in a civil action, suit, or proceeding' were added because section 350 of title 28, U.S.C., 1940 ed., was superseded as to criminal cases by Federal Rules of Criminal Procedure, Rule 39(a)(2), (b)(2). Words 'or the United States Court of Appeals for the District of Columbia' in section 350 of title 28, U.S.C., 1940 ed., were omitted as covered by 'court of appeals' in subsection (d) of this revised section. Words in section 350 of title 28, U.S.C., 1940 ed., 'excepting that writs of certiorari to the Supreme Court of the Philippine Islands may be granted where application therefor is made within six months', were omitted as obsolete, in view of the independence of the Philippines recognized by section 1240 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions. Subsection (e) relates only to supersedeas or stay of execution of judgments sought to be reviewed in the Supreme Court on writ of certiorari. Supersedeas or stay of proceedings taken to the Supreme Court by appeal from courts of appeals, or direct appeals from a district court or three-judge courts, is governed by Rule 62 of the Federal Rules of Civil Procedure. Changes were made in phraseology. 1949 ACT This section clarifies the meaning of subsection (c) of section 2101 of title 28, U.S.C. At present, such subsection, after the words, 'ninety days after entry of such judgment or decree', reads, 'unless, upon application for writ of certiorari, for good cause, the Supreme Court or a justice thereof allows an additional time not exceeding sixty days.' The new subsection (d) of section 2101 supplies an omission in revised title 28, U.S.C., and confirms the authority of the Supreme Court to regulate the time for seeking review of State criminal cases. The other amendment merely renumbers subsections (d) and (e) of such section 2101 as subsections (e) and (f), respectively. AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-352 substituted 'section 1253' for 'sections 1252, 1253, and 2282'. 1983 - Subsec. (g). Pub. L. 98-209 added subsec. (g). 1949 - Subsec. (c). Act May 24, 1949, Sec. 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, Sec. 106(b), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Surpreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100-352, set out as a note under section 1254 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98-209 effective on first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98-209, set out as a note under section 801 of Title 10, Armed Forces. -CROSS- FEDERAL RULES OF APPELLATE PROCEDURE Criminal cases, time for appeal, see rule 4, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2350 of this title. ------DocID 36777 Document 639 of 1452------ -CITE- 28 USC Sec. 2102 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2102. Priority of criminal case on appeal from State court -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 962.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 351 (Mar. 3, 1911, ch. 231, Sec. 253, 36 Stat. 1160; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Changes were made in phraseology. ------DocID 36778 Document 640 of 1452------ -CITE- 28 USC Sec. 2103 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- (Sec. 2103. Repealed. Pub. L. 100-352, Sec. 5(c), June 27, 1988, 102 Stat. 663) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 962; Sept. 19, 1962, Pub. L. 87-669, Sec. 1, 76 Stat. 556, provided that appeal from State court or from a United States court of appeals improvidently taken be regarded as petition for writ of certiorari. 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 Pub. L. 100-352, set out as a note under section 1254 of this title. ------DocID 36779 Document 641 of 1452------ -CITE- 28 USC Sec. 2104 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2104. Reviews of State court decisions -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 962; June 27, 1988, Pub. L. 100-352, Sec. 5(d)(1), 102 Stat. 663.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 871 (R.S., Sec. 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 - Pub. L. 100-352 substituted 'Reviews of State court decisions' for 'Appeals from State courts' in section catchline and amended text generally. Prior to amendment, text read as follows: 'An appeal to the Supreme Court from a State court shall be taken in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree appealed from had been rendered in a court of the United States.' EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Supreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100-352, set out as a note under section 1254 of this title. ------DocID 36780 Document 642 of 1452------ -CITE- 28 USC Sec. 2105 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2105. Scope of review; abatement -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 963.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 879 (R.S. Sec. 1011; Feb. 18, 1875, ch. 80, Sec. 1, 18 Stat. 318). The revised language is substituted for the provisions of section 879 of title 28, U.S.C., 1940 ed., to avoid any construction that matters of fact are not reviewable in nonjury cases. Such section 879 related to review upon a writ of error which applied only to actions at law. (See Rule 52(a) of the Federal Rules of Civil Procedure limiting the review of questions of fact which renders unnecessary any statutory limitation.) Rule 7(c) of the Federal Rules of Civil Procedure abolished all pleas, and the rules adopted the motion as a substitute therefor. Words 'matters in abatement' were, therefore, substituted for the abolished 'plea in abatement' and 'plea to the jurisdiction.' Changes were made in phraseology. ------DocID 36781 Document 643 of 1452------ -CITE- 28 USC Sec. 2106 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2106. Determination -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 963.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 344, 876, 877 (R.S. Sec. 701; Mar. 3, 1891, ch. 517, Sec. 10, 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, Sec. 231, 236, 237, 291, 36 Stat. 1156, 1167; Dec. 23, 1914, ch. 2, 38 Stat. 790; Sept. 16, 1916, ch. 448, Sec. 2, 39 Stat. 726; Feb. 17, 1922, ch. 54, 42 Stat. 366; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 937; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54). Section consolidates part of section 344 of title 28, U.S.C., 1940 ed., with sections 876 and 877 of said title. Other provisions of said section 344 are incorporated in sections 1257 and 2103 of this title. Words 'or a court of appeals' were inserted after 'Supreme Court' upon authority of United States v. Illinois Surety Co., C.C.A. 1915, 226 F. 653, affirmed 37 S.Ct. 614, 244 U.S. 376, 61 L.Ed. 1206, wherein it was held that this section also applied to the courts of appeals in view of section 11 of the Circuit Court of Appeals Act of Mar. 3, 1891, ch. 517, 28 Stat. 829. The revised section will cover instances where the Supreme Court remands a case to the highest court of a State and to the United States Tax Court. It will also cover a remand of a case to the Court of Claims or the Court of Customs and Patent Appeals. For authority to remand a case to The Tax Court, see Equitable Life Assurance Society of U.S. v. Commissioner of Internal Revenue, 1944, 64 S.Ct. 722, 321 U.S. 560, 88 L.Ed. 927. Revised section will also permit a remand by the Supreme Court to a court of appeals inasmuch as such latter court then would be a lower court. The revised section is in conformity with numerous holdings of the Supreme Court to the effect that such a remand may be made. See especially, Maryland Casualty Co. v. United States, 1929, 49 S.Ct. 484, 279 U.S. 792, 73 L.Ed. 960; Krauss Bros. Co. v. Mellon, 1928, 48 S.Ct. 358, 276 U.S. 386, 72 L.Ed. 620 and Buzyuski v. Luckenbach S. S. Co., 1928, 48 S.Ct. 440, 277 U.S. 226, 72 L.Ed. 860. The last sentence of section 876 of title 28, U.S.C., 1940 ed., providing that the Supreme Court should not issue execution but should send a special mandate to the inferior court to award execution, was omitted. See rule 34 of the revised rules of the Supreme Court relating to Mandates, and section 1651 of this title authorizing the Supreme Court to issue all writs necessary in aid of its jurisdiction. Changes were made in phraseology. ------DocID 36782 Document 644 of 1452------ -CITE- 28 USC Sec. 2107 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2107. Time for appeal to court of appeals -STATUTE- 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. 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. 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. This section shall not apply to bankruptcy matters or other proceedings under Title 11. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 963; May 24, 1949, ch. 139, Sec. 107, 108, 63 Stat. 104; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 248, 92 Stat. 2672.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 227a, 230, and section 1142 of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1891, ch. 517, Sec. 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, Sec. 129, 36 Stat. 1134; Feb. 13, 1925, ch. 229, Sec. 8(c), 43 Stat. 940; Feb. 28, 1927, ch. 228, 44 Stat. 1261; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Feb. 10, 1939, ch. 2, Sec. 1142, 53 Stat. 165; Oct. 21, 1942, ch. 619, title V, Sec. 504(a), (c), 56 Stat. 957). Section consolidates sections 227a and 230 of title 28, U.S.C., 1940 ed., with section 1142 of title 26, U.S.C., 1940 ed., Internal Revenue Code. Other provisions of such section 227a are incorporated in section 1292 of this title. Section 227a of title 28, U.S.C., 1940 ed., provided a time limit of 30 days for appeals from patent-infringement decisions, and section 230 of title 28, U.S.C., 1940 ed., permitted 3 months for appeals generally. The revised section adopts the 30-day limit in conformity with recommendations of members of the Judicial Conference of the United States and proposed amendment to Rule 73 of the Federal Rules of Civil Procedure. Section 1142 of title 26, U.S.C., 1940 ed., provided for 3 months within which to petition for appeal from a decision of The Tax Court. The second paragraph of the revised section reduces this to 60 days for reasons explained above. Other provisions of said section 1142 making a distinction between decisions before and after June 6, 1932, were omitted as executed. Words 'in an action, suit, or proceeding of a civil nature' were added in view of Rule 37 of the Federal Rules of Criminal Procedure prescribing a different limitation for criminal appeals. Words 'notice of appeal is filed' were substituted for provisions of sections 230 of title 28, U.S.C., 1940 ed., and 1142 of title 26, U.S.C., 1940 ed., for petition and allowance of appeal in order to eliminate the useless paper work involved in a pro forma application for appeal and perfunctory allowance of the same. The effect of the section is to require appeals to the courts of appeals in all cases to be taken by filing notice of appeal. See Rule 73(b) of Federal Rules of Civil Procedure. The case of Mosier v. Federal Reserve Bank of New York, C.C.A. 1942, 132 F.2d 710, holds that the Federal Rules of Civil Procedure changing the method of 'taking' an appeal, do not affect the time limitation prescribed by section 230 of title 28, U.S.C., 1940 ed. Word 'order' was added, in two places, after 'judgment' so as to make the section cover all appeals of which the courts of appeals have jurisdiction, as set forth in section 1291 et seq. of this title. The last paragraph was added in conformity with section 48 of title 11, U.S.C., 1940 ed., Bankruptcy, and other sections of that title regulating appellate procedure in bankruptcy matters. The third paragraph was inserted to conform to the existing practice in Admiralty upon the recommendation of the Committee on the Federal Courts of the New York County Lawyers Association. The time for appeal to the Court of Customs and Patent Appeals in patent and trade-mark cases is governed by section 89 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 60 of title 35, U.S.C., 1940 ed., Patents, and Rule 25 of the Rules of such court, and, in customs cases, by section 2601 of this title. Changes were made in phraseology. SENATE REVISION AMENDMENT By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore, section 1142 of title 26, U.S.C., Internal Revenue Code, was not one of the sources of this section as finally enacted. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559. 1949 ACT This amendment to section 2107 of title 28, U.S.C., restores the former 15-day limitation of time within which to appeal from an interlocutory order in admiralty. This amendment eliminates as surplusage the words 'in any such action, suit or proceeding,' from the fourth paragraph of section 2107 of title 28, U.S.C., and corrects a typographical error in the same paragraph. AMENDMENTS 1978 - Pub. L. 95-598 directed the amendment of section by inserting 'or the bankruptcy court' after 'district court' and by striking out the final paragraph, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1949 - Act May 24, 1949, restored, in third par., the 15-day limitation of time within which to appeal from an interlocutory order in admiralty, and in fourth par., substituted 'The district court may' for 'The district court, in any such action, suit, or proceeding, may' and corrected spelling of 'excusable'. -CROSS- FEDERAL RULES OF APPELLATE PROCEDURE Criminal cases, time for appeal, see rule 4, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 15 section 29; title 21 section 848; title 49 App. section 45. ------DocID 36783 Document 645 of 1452------ -CITE- 28 USC Sec. 2108 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2108. Proof of amount in controversy -STATUTE- 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. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 963.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 231 (Feb. 13, 1925, ch. 229, Sec. 9, 43 Stat. 941). Words 'or in the Supreme Court' were omitted. Section 7 of the 1925 act containing such words related to review by the Supreme Court of the United States of decisions of the Supreme Court of the Philippine Islands and designated a certain jurisdictional amount. Such section 7 has now become obsolete, in view of the recognition of the independence of the Philippines, title 48 U.S.C., 1940 ed., Sec. 1240, Territories and Insular Possessions, and there is no other case wherein the power of the Supreme Court to review depends on the amount or value in controversy. ------DocID 36784 Document 646 of 1452------ -CITE- 28 USC Sec. 2109 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2109. Quorum of Supreme Court justices absent -STATUTE- If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title. In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 963.) -MISC1- HISTORICAL AND REVISION NOTES Based on portions of section 29 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 45 of title 49, U.S.C., 1940 ed., Transportation (Feb. 11, 1903, ch. 544, Sec. 2, 32 Stat. 823; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; June 9, 1944, ch. 239, 58 Stat. 272). Section consolidates portions of section 29 of title 15, U.S.C., 1940 ed., and section 45 of title 49, U.S.C., 1940 ed., with changes of substance and phraseology. The revised section includes the principal provisions of sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed., respectively, in case of the absence of a quorum of qualified Justices of the Supreme Court. Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed., respectively, were identical and were applicable only to decisions of three-judge courts in antitrust cases under section 107 of said title 15 and Interstate Commerce cases under sections 1, 8, and 12 of said title 49, 'or any other acts having a like purpose that may hereinafter be enacted.' The revised section broadens and extends the application of such provisions to include 'any case involving a direct appeal to the Supreme Court from the decision of a district court or a district court of three judges which cannot be heard and determined because of the absence of a quorum of qualified justices.' It includes direct appeals in criminal cases under section 3731 of title 18 (H.R. 1600, 80th Cong.). Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed., respectively provided that the Supreme Court certify the case to the Circuit Court of Appeals and that the Senior Circuit Judge, qualified to participate should designate himself and two other circuit judges next in order of seniority. Other provisions were made for designation of circuit judges from other circuits in case of insufficient circuit judges being available in the circuit. The revised section permits the Chief Justice of the United States to designate the 'court of appeals' to hear the case in banc or by means of a specially constituted court of appeals composed of the three circuit judges senior in commission who are able to sit. In case of disqualification or disability, the court shall be filled by designation and assignment as provided in chapter 15 of this title. The provisions of section 29 of title 15, U.S.C., 1940 ed., and section 45 of title 49, U.S.C., 1940 ed., relating to time for appeal are incorporated in section 2101 of this title. The provisions of said sections for direct appeal to the Supreme Court are retained in said titles 15 and 49. The second paragraph of the revised section is new. It recognizes the necessity of final disposition of litigation in which appellate review has been had and further review by the Supreme Court is impossible for lack of a quorum of qualified justices. ------DocID 36785 Document 647 of 1452------ -CITE- 28 USC Sec. 2110 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- (Sec. 2110. Repealed. Pub. L. 97-164, title I, Sec. 136, Apr. 2, 1982, 96 Stat. 41) -MISC1- Section, acts June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, Sec. 109, 63 Stat. 105, provided that appeals to the Court of Claims in tort claims cases, as provided in section 1504 of this title, be taken within 90 days after the entry of the final judgment of the district court. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36786 Document 648 of 1452------ -CITE- 28 USC Sec. 2111 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2111. Harmless error -STATUTE- 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. -SOURCE- (Added May 24, 1949, ch. 139, Sec. 110, 63 Stat. 105.) -MISC1- 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. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Harmless error, see rule 61, Appendix to this title. ------DocID 36787 Document 649 of 1452------ -CITE- 28 USC Sec. 2112 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2112. Record on review and enforcement of agency orders -STATUTE- (a) The rules prescribed under the authority of section 2072 of this title may provide for the time and manner of filing and the contents of the record in all proceedings instituted in the courts of appeals to enjoin, set aside, suspend, modify, or otherwise review or enforce orders of administrative agencies, boards, commissions, and officers. Such rules may authorize the agency, board, commission, or officer to file in the court a certified list of the materials comprising the record and retain and hold for the court all such materials and transmit the same or any part thereof to the court, when and as required by it, at any time prior to the final determination of the proceeding, and such filing of such certified list of the materials comprising the record and such subsequent transmittal of any such materials when and as required shall be deemed full compliance with any provision of law requiring the filing of the record in the court. The record in such proceedings shall be certified and filed in or held for and transmitted to the court of appeals by the agency, board, commission, or officer concerned within the time and in the manner prescribed by such rules. If proceedings are instituted in two or more courts of appeals with respect to the same order, the following shall apply: (1) If within ten days after issuance of the order the agency, board, commission, or officer concerned receives, from the persons instituting the proceedings, the petition for review with respect to proceedings in at least two courts of appeals, the agency, board, commission, or officer shall proceed in accordance with paragraph (3) of this subsection. If within ten days after the issuance of the order the agency, board, commission, or officer concerned receives, from the persons instituting the proceedings, the petition for review with respect to proceedings in only one court of appeals, the agency, board, commission, or officer shall file the record in that court notwithstanding the institution in any other court of appeals of proceedings for review of that order. In all other cases in which proceedings have been instituted in two or more courts of appeals with respect to the same order, the agency, board, commission, or officer concerned shall file the record in the court in which proceedings with respect to the order were first instituted. (2) For purposes of paragraph (1) of this subsection, a copy of the petition or other pleading which institutes proceedings in a court of appeals and which is stamped by the court with the date of filing shall constitute the petition for review. Each agency, board, commission, or officer, as the case may be, shall designate by rule the office and the officer who must receive petitions for review under paragraph (1). (3) If an agency, board, commission, or officer receives two or more petitions for review of an order in accordance with the first sentence of paragraph (1) of this subsection, the agency, board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify the judicial panel on multidistrict litigation authorized by section 1407 of this title, in such form as that panel shall prescribe. The judicial panel on multidistrict litigation shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed and received within the ten-day period specified in the first sentence of paragraph (1), in which the record is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals. The judicial panel on multidistrict litigation shall, after providing notice to the public and an opportunity for the submission of comments, prescribe rules with respect to the consolidation of proceedings under this paragraph. The agency, board, commission, or officer concerned shall file the record in the court of appeals designated pursuant to this paragraph. (4) Any court of appeals in which proceedings with respect to an order of an agency, board, commission, or officer have been instituted may, to the extent authorized by law, stay the effective date of the order. Any such stay may thereafter be modified, revoked, or extended by a court of appeals designated pursuant to paragraph (3) with respect to that order or by any other court of appeals to which the proceedings are transferred. (5) All courts in which proceedings are instituted with respect to the same order, other than the court in which the record is filed pursuant to this subsection, shall transfer those proceedings to the court in which the record is so filed. For the convenience of the parties in the interest of justice, the court in which the record is filed may thereafter transfer all the proceedings with respect to that order to any other court of appeals. (b) The record to be filed in the court of appeals in such a proceeding shall consist of the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and proceedings before the agency, board, commission, or officer concerned, or such portions thereof (1) as the rules prescribed under the authority of section 2072 of this title may require to be included therein, or (2) as the agency, board, commission, or officer concerned, the petitioner for review or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commission, or officer concerned or in the court in any such proceeding may consistently with the rules prescribed under the authority of section 2072 of this title designate to be included therein, or (3) as the court upon motion of a party or, after a prehearing conference, upon its own motion may by order in any such proceeding designate to be included therein. Such a stipulation or order may provide in an appropriate case that no record need be filed in the court of appeals. If, however, the correctness of a finding of fact by the agency, board, commission, or officer is in question all of the evidence before the agency, board, commission, or officer shall be included in the record except such as the agency, board, commission, or officer concerned, the petitioner for review or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commission, or officer concerned or in the court agree to omit as wholly immaterial to the questioned finding. If there is omitted from the record any portion of the proceedings before the agency, board, commission, or officer which the court subsequently determines to be proper for it to consider to enable it to review or enforce the order in question the court may direct that such additional portion of the proceedings be filed as a supplement to the record. The agency, board, commission, or officer concerned may, at its option and without regard to the foregoing provisions of this subsection, and if so requested by the petitioner for review or respondent in enforcement shall, file in the court the entire record of the proceedings before it without abbreviation. (c) The agency, board, commission, or officer concerned may transmit to the court of appeals the original papers comprising the whole or any part of the record or any supplemental record, otherwise true copies of such papers certified by an authorized officer or deputy of the agency, board, commission, or officer concerned shall be transmitted. Any original papers thus transmitted to the court of appeals shall be returned to the agency, board, commission, or officer concerned upon the final determination of the review or enforcement proceeding. Pending such final determination any such papers may be returned by the court temporarily to the custody of the agency, board, commission, or officer concerned if needed for the transaction of the public business. Certified copies of any papers included in the record or any supplemental record may also be returned to the agency, board, commission, or officer concerned upon the final determination of review or enforcement proceedings. (d) The provisions of this section are not applicable to proceedings to review decisions of the Tax Court of the United States or to proceedings to review or enforce those orders of administrative agencies, boards, commissions, or officers which are by law reviewable or enforceable by the district courts. -SOURCE- (Added Pub. L. 85-791, Sec. 2, Aug. 28, 1958, 72 Stat. 941, and amended Pub. L. 89-773, Sec. 5(a), (b), Nov. 6, 1966, 80 Stat. 1323; Pub. L. 100-236, Sec. 1, Jan. 8, 1988, 101 Stat. 1731.) -MISC1- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-236 substituted 'If proceedings are instituted in two or more courts of appeals with respect to the same order, the following shall apply:' and pars. (1) to (5) for 'If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.' 1966 - Subsec. (a). Pub. L. 89-773, Sec. 5(a), substituted 'The rules prescribed under the authority of section 2072 of this title may provide for the time and manner of filing' for 'The several courts of appeal shall have power to adopt, with the approval of the Judicial Conference of the United States, rules, which so far as practicable shall be uniform in all such courts prescribing the time and manner of filing.' See section 2072 of this title. Subsec. (b). Pub. L. 89-773, Sec. 5(b), substituted 'the rules prescribed under the authority of section 2072 of this title' for 'the said rules of the court of appeals' and for 'the rules of such court'. EFFECTIVE DATE OF 1988 AMENDMENT Section 3 of Pub. L. 100-236 provided that: 'The amendments made by this Act (amending this section and section 1369 of Title 33, Navigation and Navigable Waters) take effect 180 days after the date of the enactment of this Act (Jan 8, 1988), except that the judicial panel on multidistrict litigation may issue rules pursuant to subsection (a)(3) of section 2112 of title 28, United States Code (as added by section 1), on or after such date of enactment.' SAVINGS PROVISION Section 5(c) of Pub. L. 89-773 provided that: 'The amendments of section 2112 of title 28 of the United States Code made by this Act shall not operate to invalidate or repeal rules adopted under the authority of that section prior to the enactment of this Act (Nov. 6, 1966), which rules shall remain in effect until superseded by rules prescribed under the authority of section 2072 of title 28 of the United States Code as amended by this Act.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2346 of this title; title 5 section 7123; title 7 sections 8, 9, 136n, 194, 228b-3, 1115, 1600, 1601; title 12 sections 1467a, 1786, 1818, 1848, 2266, 2268; title 15 sections 21, 45, 57a, 78y, 79x, 80a-42, 80b-13, 687e, 717r, 1193, 1262, 1394, 1474, 1710, 1825, 1913, 2008, 2060, 2618, 3416; title 16 sections 773f, 825l, 1030, 1536, 1858, 2437, 3142, 3373; title 19 sections 81r, 1677f; title 20 sections 351d, 1234g, 1413, 1416, 2727, 2834, 2972; title 21 sections 346a, 348, 355, 360g, 360kk, 371; title 22 section 1631f; title 26 section 3310; title 27 section 204; title 29 sections 160, 210, 660, 667, 721, 1578; title 30 sections 816, 1462; title 31 section 1263; title 33 section 921; title 39 section 3628; title 40 section 333; title 42 sections 263a, 291h, 504, 1316, 1320a-7a, 2022, 3027, 3785, 5311, 5405, 6029, 6306, 6869, 7525, 8412, 9152; title 43 sections 355, 1349; title 46 App. section 1181; title 47 section 402; title 49 App. sections 1486, 1674b. ------DocID 36788 Document 650 of 1452------ -CITE- 28 USC Sec. 2113 -EXPCITE- TITLE 28 PART V CHAPTER 133 -HEAD- Sec. 2113. Definition -STATUTE- 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. -SOURCE- (Added Pub. L. 91-358, title I, Sec. 172(a)(2)(A), July 29, 1970, 84 Stat. 590.) -MISC1- EFFECTIVE DATE Section effective the first day of the seventh calendar month which begins after July 29, 1970, see section 199(a) of Pub. L. 91-358, set out as an Effective Date of 1970 Amendment note under section 1257 of this title. ------DocID 36789 Document 651 of 1452------ -CITE- 28 USC PART VI -EXPCITE- TITLE 28 PART VI -HEAD- PART VI - PARTICULAR PROCEEDINGS -MISC1- Chap. Sec. 151. Declaratory Judgments 2201 153. Habeas Corpus 2241 155. Injunctions; Three-Judge Courts 2281 157. Interstate Commerce Commission Orders; Enforcement and Review 2321 158. Orders of Federal Agencies; Review 2341 159. Interpleader 2361 161. United States as Party Generally 2401 163. Fines, Penalties and Forfeitures 2461 165. United States Claims Court Procedure 2501 (167. Repealed.) 169. Court of International Trade Procedure 2631 171. Tort Claims Procedure 2671 173. Attachment in Postal Suits 2710 175. Civil Commitment and Rehabilitation of Narcotic Addicts 2901 176. Federal Debt Collection Procedures (FOOTNOTE 1) (FOOTNOTE 2) 3001 (FOOTNOTE 1) So in original. Does not conform to chapter heading. (FOOTNOTE 2) Section number editorially supplied. SENATE REVISION AMENDMENT Chapters 169, 171 and 173 were renumbered '167', '169' and '171', respectively, without change in their section numbers, by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1990 - Pub. L. 101-647, title XXXVI, Sec. 3302 (3612), Nov. 29, 1990, 104 Stat. 4964, added item for chapter 176. 1982 - Pub. L. 97-164, title I, Sec. 139(o)(1), 140, Apr. 2, 1982, 96 Stat. 44, substituted 'United States Claims Court Procedure' for 'Court of Claims Procedure' in item 165 and struck out item 167 'Court of Customs and Patent Appeals Procedure'. 1980 - Pub. L. 96-417, title V, Sec. 501(25), Oct. 10, 1980, 94 Stat. 1742, substituted 'Court of International Trade Procedure' for 'Customs Court Procedure' in item 169. 1966 - Pub. L. 89-793, title VI, Sec. 603, Nov. 8, 1966, 80 Stat. 1450, added item for chapter 175. Pub. L. 89-554, Sec. 4(d), Sept. 6, 1966, 80 Stat. 621, added item for chapter 158. 1960 - Pub. L. 86-682, Sec. 10, Sept. 2, 1960, 74 Stat. 708, added item for chapter 173. -CROSS- CROSS REFERENCES Arbitration proceedings, see section 3 et seq. of Title 9, Arbitration. Bankruptcy proceedings, see Bankruptcy Rules and Official Bankruptcy Forms, Appendix to Title 11, Bankruptcy. Labor disputes, procedure, see sections 159 and 160 of Title 29, Labor. Railway labor disputes, court procedure after arbitration, see section 159 of Title 45, Railroads. See, also, rule 81 of the Federal Rules of Civil Procedure, Appendix to this title. ------DocID 36790 Document 652 of 1452------ -CITE- 28 USC CHAPTER 151 -EXPCITE- TITLE 28 PART VI CHAPTER 151 -HEAD- CHAPTER 151 - DECLARATORY JUDGMENTS -MISC1- Sec. 2201. Creation of remedy. 2202. Further relief. ------DocID 36791 Document 653 of 1452------ -CITE- 28 USC Sec. 2201 -EXPCITE- TITLE 28 PART VI CHAPTER 151 -HEAD- Sec. 2201. Creation of remedy -STATUTE- (a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, Sec. 111, 63 Stat. 105; Aug. 28, 1954, ch. 1033, 68 Stat. 890; July 7, 1958, Pub. L. 85-508, Sec. 12(p), 72 Stat. 349; Oct. 4, 1976, Pub. L. 94-455, title XIII, Sec. 1306(b)(8), 90 Stat. 1719; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 249, 92 Stat. 2672; Sept. 24, 1984, Pub. L. 98-417, title I, Sec. 106, 98 Stat. 1597; Sept. 28, 1988, Pub. L. 100-449, title IV, Sec. 402(c), 102 Stat. 1884; Nov. 16, 1988, Pub. L. 100-670, title I, Sec. 107(b), 102 Stat. 3984.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 400 (Mar. 3, 1911, ch. 231, Sec. 274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch. 829, Sec. 405, 49 Stat. 1027). This section is based on the first paragraph of section 400 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in section 2202 of this title. While this section does not exclude declaratory judgments with respect to State taxes, such suits will not ordinarily be entertained in the courts of the United States where State law makes provision for payment under protest and recovery back or otherwise affords adequate remedy in the State courts. See Great Lakes Dredge & Dock Co. v. Huffman, La. 1943, 63 S.Ct. 1070, 319 U.S. 293, 87 L.Ed. 1407. See also Spector Motor Service v. McLaughlin, Conn. 1944, 65 S.Ct. 152, 323 U.S. 101, 89 L.Ed. 101. See also section 1341 of this title forbidding district courts to restrain enforcements of State taxes where State courts afford plain, speedy, and efficient remedy. Changes were made in phraseology. 1949 ACT Section corrects a typographical error in section 2201 of title 28, U.S.C. -REFTEXT- REFERENCES IN TEXT Section 7428 of the Internal Revenue Code of 1986, referred to in subsec. (a), is classified to section 7428 of Title 26, Internal Revenue Code. Sections 505 and 512 of the Federal Food, Drug, and Cosmetic Act, referred to in subsec. (b), are classified to sections 355 and 360b, respectively, of Title 21, Food and Drugs. -MISC2- AMENDMENTS 1988 - Subsec. (a). Pub. L. 100-449 substituted '1986,' for '1954 or' and inserted 'or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority,' after 'title 11,'. Subsec. (b). Pub. L. 100-670 inserted 'or 512' after '505'. 1984 - Pub. L. 98-417 designated existing provisions as subsec. (a) and added subsec. (b). 1978 - Pub. L. 95-598 inserted reference to proceedings under section 505 or 1146 of title 11. 1976 - Pub. L. 94-455 substituted 'taxes other than actions brought under section 7428 of the Internal Revenue Code of 1954' for 'taxes'. 1958 - Pub. L. 85-508 struck out provisions which related to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1954 - Act Aug. 28, 1954, extended provisions to Alaska. 1949 - Act May 24, 1949, corrected spelling of 'or' in second sentence. EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100-449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100-449, set out in a note under section 2112 of Title 19, Customs Duties. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-455 applicable with respect to pleadings filed with the United States Tax Court, the District Court of the United States for the District of Columbia, or the United States Court of Claims more than 6 months after Oct. 4, 1976, but only with respect to determinations (or requests for determinations) made after Jan. 1, 1976, see section 1306(c) of Pub. L. 94-455, set out as an Effective Date note under section 7428 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. AMOUNT IN CONTROVERSY Jurisdictional amount in diversity of citizenship cases, see section 1332 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 section 623; title 8 sections 1105a, 1503; title 21 sections 355, 360b. ------DocID 36792 Document 654 of 1452------ -CITE- 28 USC Sec. 2202 -EXPCITE- TITLE 28 PART VI CHAPTER 151 -HEAD- Sec. 2202. Further relief -STATUTE- Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 964.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 400 (Mar. 3, 1911, ch. 231, Sec. 274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch. 829, Sec. 405, 49 Stat. 1027). This section is based on the second paragraph of section 400 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in section 2201 of this title. Provision in said section 400 that the court shall require adverse parties whose rights are adjudicated to show cause why further relief should not be granted forthwith, were omitted as unnecessary and covered by the revised section. Provisions relating to submission of interrogatories to a jury were omitted as covered by rule 49 of the Federal Rules of Civil Procedure. Changes were made in phraseology. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 section 623. ------DocID 36793 Document 655 of 1452------ -CITE- 28 USC CHAPTER 153 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- CHAPTER 153 - HABEAS CORPUS -MISC1- Sec. 2241. Power to grant writ. 2242. Application. 2243. Issuance of writ; return; hearing; decision. 2244. Finality of determination. 2245. Certificate of trial judge admissible in evidence. 2246. Evidence; depositions; affidavits. 2247. Documentary evidence. 2248. Return or answer; conclusiveness. 2249. Certified copies of indictment, plea and judgment; duty of respondent. 2250. Indigent petitioner entitled to documents without cost. 2251. Stay of State court proceedings. 2252. Notice. 2253. Appeal. 2254. State custody; remedies in Federal courts. 2255. Federal custody; remedies on motion attacking sentence. (2256. Omitted.) SENATE REVISION AMENDMENT Chapter catchline was changed by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1978 - Pub. L. 95-598, title II, Sec. 250(b), Nov. 6, 1978, 92 Stat. 2672, directed the addition of item 2256 'Habeas corpus from bankruptcy courts', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1966 - Pub. L. 89-711, Sec. 3, Nov. 2, 1966, 80 Stat. 1106, substituted 'Federal courts' for 'State Courts' in item 2254. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 1657 of this title. ------DocID 36794 Document 656 of 1452------ -CITE- 28 USC Sec. 2241 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2241. Power to grant writ -STATUTE- (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it. (c) The writ of habeas corpus shall not extend to a prisoner unless - (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the Constitution or laws or treaties of the United States; or (4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or (5) It is necessary to bring him into court to testify or for trial. (d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, Sec. 112, 63 Stat. 105; Sept. 19, 1966, Pub. L. 89-590, 80 Stat. 811.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 451, 452, 453 (R.S. Sec. 751, 752, 753; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Feb. 13, 1925, ch. 229, Sec. 6, 43 Stat. 940). Section consolidates sections 451, 452 and 453 of title 28, U.S.C., 1940 ed., with changes in phraseology necessary to effect the consolidation. Words 'for the purpose of an inquiry into the cause of restraint of liberty' in section 452 of title 28, U.S.C., 1940 ed., were omitted as merely descriptive of the writ. Subsection (b) was added to give statutory sanction to orderly and appropriate procedure. A circuit judge who unnecessarily entertains applications which should be addressed to the district court, thereby disqualifies himself to hear such matters on appeal and to that extent limits his usefulness as a judge of the court of appeals. The Supreme Court and Supreme Court Justices should not be burdened with applications for writs cognizable in the district courts. 1949 ACT This section inserts commas in certain parts of the text of subsection (b) of section 2241 of title 28, U.S.C., for the purpose of proper punctuation. AMENDMENTS 1966 - Subsec. (d). Pub. L. 89-590 added subsec. (d). 1949 - Subsec. (b). Act May 24, 1949, inserted commas after 'Supreme Court' and 'any justice thereof'. -CROSS- RULES OF THE SUPREME COURT Procedure on petitions for writ, see rule 20, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 3006A. ------DocID 36795 Document 657 of 1452------ -CITE- 28 USC Sec. 2242 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2242. Application -STATUTE- Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf. It shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known. It may be amended or supplemented as provided in the rules of procedure applicable to civil actions. If addressed to the Supreme Court, a justice thereof or a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 965.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 454 (R.S. Sec. 754). Words 'or by someone acting in his behalf' were added. This follows the actual practice of the courts, as set forth in United States ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins v. Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited. The third paragraph is new. It was added to conform to existing practice as approved by judicial decisions. See Dorsey v. Gill (App.D.C.) 148 F.2d 857, 865, 866. See also Holiday v. Johnston, 61 S.Ct. 1015, 313 U.S. 342, 85 L.Ed. 1392. Changes were made in phraseology. ------DocID 36796 Document 658 of 1452------ -CITE- 28 USC Sec. 2243 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2243. Issuance of writ; return; hearing; decision -STATUTE- A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed. The person to whom the writ or order is directed shall make a return certifying the true cause of the detention. When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed. Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained. The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts. The return and all suggestions made against it may be amended, by leave of court, before or after being filed. The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 965.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 455, 456, 457, 458, 459, 460, and 461 (R.S. Sec. 755-761). Section consolidates sections 455-461 of title 28, U.S.C., 1940 ed. The requirement for return within 3 days 'unless for good cause additional time, not exceeding 20 days is allowed' in the second paragraph, was substituted for the provision of such section 455 which allowed 3 days for return if within 20 miles, 10 days if more than 20 but not more than 100 miles, and 20 days if more than 100 miles distant. Words 'unless for good cause additional time is allowed' in the fourth paragraph, were substituted for words 'unless the party petitioning requests a longer time' in section 459 of title 28, U.S.C., 1940 ed. The fifth paragraph providing for production of the body of the detained person at the hearing is in conformity with Walker v. Johnston, 1941, 61 S.Ct. 574, 312 U.S. 275, 85 L.Ed. 830. Changes were made in phraseology. ------DocID 36797 Document 659 of 1452------ -CITE- 28 USC Sec. 2244 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2244. Finality of determination -STATUTE- (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not heretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry. (b) When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ. (c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein, unless the applicant for the writ of habeas corpus shall plead and the court shall find the existence of a material and controlling fact which did not appear in the record of the proceeding in the Supreme Court and the court shall further find that the applicant for the writ of habeas corpus could not have caused such fact to appear in such record by the exercise of reasonable diligence. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 965; Nov. 2, 1966, Pub. L. 89-711, Sec. 1, 80 Stat. 1104.) -MISC1- HISTORICAL AND REVISION NOTES This section makes no material change in existing practice. Notwithstanding the opportunity open to litigants to abuse the writ, the courts have consistently refused to entertain successive 'nuisance' applications for habeas corpus. It is derived from H.R. 4232 introduced in the first session of the Seventy-ninth Congress by Chairman Hatton Sumners of the Committee on the Judiciary and referred to that Committee. The practice of suing out successive, repetitious, and unfounded writs of habeas corpus imposes an unnecessary burden on the courts. See Dorsey v. Gill, 1945, 148 F.2d 857, 862, in which Miller, J., notes that 'petitions for the writ are used not only as they should be to protect unfortunate persons against miscarriages of justice, but also as a device for harassing court, custodial, and enforcement officers with a multiplicity of repetitious, meritless requests for relief. The most extreme example is that of a person who, between July 1, 1939, and April 1944 presented in the District Court 50 petitions for writs of habeas corpus; another person has presented 27 petitions; a third, 24; a fourth, 22; a fifth, 20. One hundred nineteen persons have presented 597 petitions - an average of 5.' SENATE REVISION AMENDMENTS Section amended to modify original language which denied Federal judges power to entertain application for writ where legality of detention had been determined on prior application and later application presented no new grounds, and to omit reference to rehearing in section catch line and original provision authorizing hearing judge to grant rehearing. 80th Congress, Senate Report No. 1559, Amendment No. 45. AMENDMENTS 1966 - Pub. L. 89-711 designated existing provisions as subsec. (a), struck out provision making the subsection's terms applicable to applications seeking inquiry into detention of persons detained pursuant to judgments of State courts, and added subsecs. (b) and (c). ------DocID 36798 Document 660 of 1452------ -CITE- 28 USC Sec. 2245 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2245. Certificate of trial judge admissible in evidence -STATUTE- On the hearing of an application for a writ of habeas corpus to inquire into the legality of the detention of a person pursuant to a judgment the certificate of the judge who presided at the trial resulting in the judgment, setting forth the facts occurring at the trial, shall be admissible in evidence. Copies of the certificate shall be filed with the court in which the application is pending and in the court in which the trial took place. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES This section makes no substantive change in existing law. It is derived from H.R. 4232 introduced in the first session of the Seventy-ninth Congress by Chairman Sumners of the House Committee on the Judiciary. It clarifies existing law and promotes uniform procedure. ------DocID 36799 Document 661 of 1452------ -CITE- 28 USC Sec. 2246 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2246. Evidence; depositions; affidavits -STATUTE- On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES This section is derived from H.R. 4232 introduced in the first session of the Seventy-ninth Congress by Chairman Sumners of the House Committee on the Judiciary. It clarifies existing practice without substantial change. ------DocID 36800 Document 662 of 1452------ -CITE- 28 USC Sec. 2247 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2247. Documentary evidence -STATUTE- On application for a writ of habeas corpus documentary evidence, transcripts of proceedings upon arraignment, plea and sentence and a transcript of the oral testimony introduced on any previous similar application by or in behalf of the same petitioner, shall be admissible in evidence. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It is declaratory of existing law and practice. ------DocID 36801 Document 663 of 1452------ -CITE- 28 USC Sec. 2248 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2248. Return or answer; conclusiveness -STATUTE- The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. At common law the return was conclusive and could not be controverted but it is now almost universally held that the return is not conclusive of the facts alleged therein. 39 C.J.S. pp. 664-666, Sec. 98, 99. ------DocID 36802 Document 664 of 1452------ -CITE- 28 USC Sec. 2249 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2249. Certified copies of indictment, plea and judgment; duty of respondent -STATUTE- On application for a writ of habeas corpus to inquire into the detention of any person pursuant to a judgment of a court of the United States, the respondent shall promptly file with the court certified copies of the indictment, plea of petitioner and the judgment, or such of them as may be material to the questions raised, if the petitioner fails to attach them to his petition, and same shall be attached to the return to the writ, or to the answer to the order to show cause. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It conforms to the prevailing practice in habeas corpus proceedings. ------DocID 36803 Document 665 of 1452------ -CITE- 28 USC Sec. 2250 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2250. Indigent petitioner entitled to documents without cost -STATUTE- If on any application for a writ of habeas corpus an order has been made permitting the petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office as may be required by order of the judge before whom the application is pending. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It conforms to the prevailing practice. ------DocID 36804 Document 666 of 1452------ -CITE- 28 USC Sec. 2251 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2251. Stay of State court proceedings -STATUTE- A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding. After the granting of such a stay, any such proceeding in any State court or by or under the authority of any State shall be void. If no stay is granted, any such proceeding shall be as valid as if no habeas corpus proceedings or appeal were pending. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 966.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 465 (R.S. Sec. 766; Mar. 3, 1893, ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, Sec. 8(c), 43 Stat. 940; June 19, 1934, ch. 673, 48 Stat. 1177). Provisions relating to proceedings pending in 1934 were deleted as obsolete. A provision requiring an appeal to be taken within 3 months was omitted as covered by sections 2101 and 2107 of this title. Changes were made in phraseology. ------DocID 36805 Document 667 of 1452------ -CITE- 28 USC Sec. 2252 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2252. Notice -STATUTE- Prior to the hearing of a habeas corpus proceeding in behalf of a person in custody of State officers or by virtue of State laws notice shall be served on the attorney general or other appropriate officer of such State as the justice or judge at the time of issuing the writ shall direct. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 967.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 462 (R.S. Sec. 762). Section 462 of title 28, U.S.C., 1940 ed., was limited to alien prisoners described in section 453 of title 28, U.S.C., 1940 ed. The revised section extends to all cases of all prisoners under State custody or authority, leaving it to the justice or judge to prescribe the notice to State officers, to specify the officer served, and to satisfy himself that such notice has been given. Provision for making due proof of such service was omitted as unnecessary. The sheriff's or marshal's return is sufficient. Changes were made in phraseology. ------DocID 36806 Document 668 of 1452------ -CITE- 28 USC Sec. 2253 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2253. Appeal -STATUTE- In a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had. There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to remove, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of his detention pending removal proceedings. An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec. 113, 63 Stat. 105; Oct. 31, 1951, ch. 655, Sec. 52, 65 Stat. 727.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 463(a) and 466 (Mar. 10, 1908, ch. 76, 36 Stat. 40; Feb. 13, 1925, ch. 229, Sec. 6, 13, 43 Stat. 940, 942; June 29, 1938, ch. 806, 52 Stat. 1232). This section consolidates paragraph (a) of section 463, and section 466 of title 28, U.S.C., 1940 ed. The last two sentences of section 463(a) of title 28, U.S.C., 1940 ed., were omitted. They were repeated in section 452 of title 28, U.S.C., 1940 ed. (See reviser's note under section 2241 of this title.) Changes were made in phraseology. 1949 ACT This section corrects a typographical error in the second paragraph of section 2253 of title 28. AMENDMENTS 1951 - Act Oct. 31, 1951, substituted 'to remove, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of his' for 'of removal issued pursuant to section 3042 of Title 18 or the' in second par. 1949 - Act May 24, 1949, substituted '3042' for '3041' in second par. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Commitment to another district; removal, see Rule 40, Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 36807 Document 669 of 1452------ -CITE- 28 USC Sec. 2254 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2254. State custody; remedies in Federal courts -STATUTE- (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit - (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous. (e) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination. (f) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 967; Nov. 2, 1966, Pub. L. 89-711, Sec. 2, 80 Stat. 1105.) -MISC1- HISTORICAL AND REVISION NOTES This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321, U.S. 114, 88L. Ed. 572.) SENATE REVISION AMENDMENTS Senate amendment to this section, Senate Report No. 1559, amendment No. 47, has three declared purposes, set forth as follows: 'The first is to eliminate from the prohibition of the section applications in behalf of prisoners in custody under authority of a State officer but whose custody has not been directed by the judgment of a State court. If the section were applied to applications by persons detained solely under authority of a State officer it would unduly hamper Federal courts in the protection of Federal officers prosecuted for acts committed in the course of official duty. 'The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a 'fair adjudication of the legality of his detention under the Constitution and laws of the United States.' The Judicial Conference believes that this would be an undesirable ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies. This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy. 'The third purpose is to substitute detailed and specific language for the phrase 'no adequate remedy available.' That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.' AMENDMENTS 1966 - Pub. L. 89-711 substituted 'Federal courts' for 'State Courts' in section catchline, added subsec. (a), designated existing paragraphs as subsecs. (b) and (c), and added subsecs. (d) to (f). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 3006A. -MISC8- APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided: 'That the rules governing section 2254 cases in the United States district courts and the rules governing section 2255 proceedings for the United States district courts, as proposed by the United States Supreme Court, which were delayed by the Act entitled 'An Act to delay the effective date of certain proposed amendments to the Federal Rules of Criminal Procedure and certain other rules promulgated by the United States Supreme Court' (Public Law 94-349), are approved with the amendments set forth in section 2 of this Act and shall take effect as so amended, with respect to petitions under section 2254 and motions under section 2255 of title 28 of the United States Code filed on or after February 1, 1977.' POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE Rules and forms governing proceedings under sections 2254 and 2255 of this title proposed by Supreme Court order of Apr. 26, 1976, effective 30 days after adjournment sine die of 94th Congress, or until and to the extent approved by Act of Congress, whichever is earlier, see section 2 of Pub. L. 94-349, set out as a note under section 2074 of this title. RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS (EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 2, 1991) Rule 1. Scope of rules. 2. Petition. 3. Filing petition. 4. Preliminary consideration by judge. 5. Answer; contents. 6. Discovery. 7. Expansion of record. 8. Evidentiary hearing. 9. Delayed or successive petitions. 10. Powers of magistrates. 11. Federal Rules of Civil Procedure; extent of applicability. APPENDIX OF FORMS Model form for use in applications for habeas corpus under 28 U.S.C. Sec. 2254. Model form for use in 28 U.S.C. Sec. 2254 cases involving a Rule 9 issue. EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT Rules governing Section 2254 cases, and the amendments thereto by Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with respect to petitions under section 2254 of this title and motions under section 2255 of this title filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-426, set out as a note above. RULE 1. SCOPE OF RULES (a) Applicable to cases involving custody pursuant to a judgment of a state court. These rules govern the procedure in the United States district courts on applications under 28 U.S.C. Sec. 2254: (1) by a person in custody pursuant to a judgment of a state court, for a determination that such custody is in violation of the Constitution, laws, or treaties of the United States; and (2) by a person in custody pursuant to a judgment of either a state or a federal court, who makes application for a determination that custody to which he may be subject in the future under a judgment of a state court will be in violation of the Constitution, laws, or treaties of the United States. (b) Other situations. In applications for habeas corpus in cases not covered by subdivision (a), these rules may be applied at the discretion of the United States district court. ADVISORY COMMITTEE NOTE Rule 1 provides that the habeas corpus rules are applicable to petitions by persons in custody pursuant to a judgment of a state court. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether the rules ought to apply to other situations (e.g., person in active military service, Glazier v. Hackel, 440 F.2d 592 (9th Cir. 1971); or a reservist called to active duty but not reported, Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968)) is left to the discretion of the court. The basic scope of habeas corpus is prescribed by statute. 28 U.S.C. Sec. 2241(c) provides that the 'writ of habeas corpus shall not extend to a prisoner unless * * * (h)e is in custody in violation of the Constitution.' 28 U.S.C. Sec. 2254 deals specifically with state custody, providing that habeas corpus shall apply only 'in behalf of a person in custody pursuant to a judgment of a state court * * *.' In Preiser v. Rodriguez, supra, the court said: 'It is clear . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.' 411 U.S. at 484. Initially the Supreme Court held that habeas corpus was appropriate only in those situations in which petitioner's claim would, if upheld, result in an immediate release from a present custody. McNally v. Hill, 293 U.S. 131 (1934). This was changed in Peyton v. Rowe, 391 U.S. 54 (1968), in which the court held that habeas corpus was a proper way to attack a consecutive sentence to be served in the future, expressing the view that consecutive sentences resulted in present custody under both judgments, not merely the one imposing the first sentence. This view was expanded in Carafas v. LaVallee, 391 U.S. 234 (1968), to recognize the propriety of habeas corpus in a case in which petitioner was in custody when the petition had been originally filed but had since been unconditionally released from custody. See also Preiser v. Rodriguez, 411 U.S. at 486 et seq. Since Carafas, custody has been construed more liberally by the courts so as to make a Sec. 2255 motion or habeas corpus petition proper in more situations. 'In custody' now includes a person who is: on parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large on his own recognizance but subject to several conditions pending execution of his sentence, Hensley v. Municipal Court, 411 U.S. 345 (1973); or released on bail after conviction pending final disposition of his case, Lefkowitz v. Newsome, 95 S.Ct. 886 (1975). See also United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied, 388 U.S. 912 (1967) (on probation); Walker v. North Carolina, 262 F.Supp. 102 (W.D.N.C. 1966), aff'd per curiam, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917 (1967) (recipient of a conditionally suspended sentence); Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969) (free on bail); United States ex rel. Smith v. Dibella, 314 F.Supp. 446 (D.Conn. 1970) (release on own recognizance); Choung v. California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state court sentence); United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971) (subject to parole detainer warrant); Capler v. City of Greenville, 422 F.2d 299 (5th Cir. 1970) (released on appeal bond); Glover v. North Carolina, 301 F.Supp. 364 (E.D.N.C. 1969) (sentence served, but as convicted felon disqualified from engaging in several activities). The courts are not unanimous in dealing with the above situations, and the boundaries of custody remain somewhat unclear. In Morgan v. Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court noted: It is axiomatic that actual physical custody or restraint is not required to confer habeas jurisdiction. Rather, the term is synonymous with restraint of liberty. The real question is how much restraint of one's liberty is necessary before the right to apply for the writ comes into play. * * * It is clear however, that something more than moral restraint is necessary to make a case for habeas corpus. 321 F.SUPP. AT 573 Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior 'custody' doctrine and reaffirmed a generalized flexible approach to the issue. In speaking about 28 U.S.C. Sec. 2241, the first section in the habeas corpus statutes, the court said: While the language of the Act indicates that a writ of habeas corpus is appropriate only when a petitioner is 'in custody,' * * * the Act 'does not attempt to mark the boundaries of 'custody' nor in any way other than by use of that word attempt to limit the situations in which the writ can be used.' * * * And, recent Supreme Court decisions have made clear that '(i)t (habeas corpus) is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.' * * * '(B)esides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.' 398 F.2D AT 710-711 There is, as of now, no final list of the situations which are appropriate for habeas corpus relief. It is not the intent of these rules or notes to define or limit 'custody.' It is, however, the view of the Advisory Committee that claims of improper conditions of custody or confinement (not related to the propriety of the custody itself), can better be handled by other means such as 42 U.S.C. Sec. 1983 and other related statutes. In Wilwording v. Swanson, 404 U.S. 249 (1971), the court treated a habeas corpus petition by a state prisoner challenging the conditions of confinement as a claim for relief under 42 U.S.C. Sec. 1983, the Civil Rights Act. Compare Johnson v. Avery, 393 U.S. 483 (1969). The distinction between duration of confinement and conditions of confinement may be difficult to draw. Compare Preiser v. Rodriguez, 411 U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809 (9th Cir. 1974), modified, 510 F.2d 613 (1975). RULE 2. PETITION (a) Applicants in present custody. If the applicant is presently in custody pursuant to the state judgment in question, the application shall be in the form of a petition for a writ of habeas corpus in which the state officer having custody of the applicant shall be named as respondent. (b) Applicants subject to future custody. If the applicant is not presently in custody pursuant to the state judgment against which he seeks relief but may be subject to such custody in the future, the application shall be in the form of a petition for a writ of habeas corpus with an added prayer for appropriate relief against the judgment which he seeks to attack. In such a case the officer having present custody of the applicant and the attorney general of the state in which the judgment which he seeks to attack was entered shall each be named as respondents. (c) Form of petition. The petition shall be in substantially the form annexed to these rules, except that any district court may by local rule require that petitions filed with it shall be in a form prescribed by the local rule. Blank petitions in the prescribed form shall be made available without charge by the clerk of the district court to applicants upon their request. It shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified. It shall also state the relief requested. The petition shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner. (d) Petition to be directed to judgments of one court only. A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other appropriate political subdivision). If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate petitions. (e) Return of insufficient petition. If a petition received by the clerk of a district court does not substantially comply with the requirements of rule 2 or rule 3, it may be returned to the petitioner, if a judge of the court so directs, together with a statement of the reason for its return. The clerk shall retain a copy of the petition. (As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90 Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.) ADVISORY COMMITTEE NOTE Rule 2 describes the requirements of the actual petition, including matters relating to its form, contents, scope, and sufficiency. The rule provides more specific guidance for a petitioner and the court than 28 U.S.C. Sec. 2242, after which it is patterned. Subdivision (a) provides that an applicant challenging a state judgment, pursuant to which he is presently in custody, must make his application in the form of a petition for a writ of habeas corpus. It also requires that the state officer having custody of the applicant be named as respondent. This is consistent with 28 U.S.C. Sec. 2242, which says in part, '(Application for a writ of habeas corpus) shall allege * * * the name of the person who has custody over (the applicant) * * *.' The proper person to be served in the usual case is either the warden of the institution in which the petitioner is incarcerated (Sanders v. Bennett, 148 F.2d 19 (D.C.Cir. 1945)) or the chief officer in charge of state penal institutions. Subdivision (b) prescribes the procedure to be used for a petition challenging a judgment under which the petitioner will be subject to custody in the future. In this event the relief sought will usually not be released from present custody, but rather for a declaration that the judgment being attacked is invalid. Subdivision (b) thus provides for a prayer for 'appropriate relief.' It is also provided that the attorney general of the state of the judgment as well as the state officer having actual custody of the petitioner shall be named as respondents. This is appropriate because no one will have custody of the petitioner in the state of the judgment being attacked, and the habeas corpus action will usually be defended by the attorney general. The attorney general is in the best position to inform the court as to who the proper party respondent is. If it is not the attorney general, he can move for a substitution of party. Since the concept of 'custody' requisite to the consideration of a petition for habeas corpus has been enlarged significantly in recent years, it may be worthwhile to spell out the various situations which might arise and who should be named as respondent(s) for each situation. (1) The applicant is in jail, prison, or other actual physical restraint due to the state action he is attacking. The named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison). (2) The applicant is on probation or parole due to the state judgment he is attacking. The named respondents shall be the particular probation or parole officer responsible for supervising the applicant, and the official in charge of the parole or probation agency, or the state correctional agency, as appropriate. (3) The applicant is in custody in any other manner differing from (1) and (2) above due to the effects of the state action he seeks relief from. The named respondent should be the attorney general of the state wherein such action was taken. (4) The applicant is in jail, prison, or other actual physical restraint but is attacking a state action which will cause him to be kept in custody in the future rather than the government action under which he is presently confined. The named respondents shall be the state or federal officer who has official custody of him at the time the petition is filed and the attorney general of the state whose action subjects the petitioner to future custody. (5) The applicant is in custody, although not physically restrained, and is attacking a state action which will result in his future custody rather than the government action out of which his present custody arises. The named respondent(s) shall be the attorney general of the state whose action subjects the petitioner to future custody, as well as the government officer who has present official custody of the petitioner if there is such an officer and his identity is ascertainable. In any of the above situations the judge may require or allow the petitioner to join an additional or different party as a respondent if to do so would serve the ends of justice. As seen in rule 1 and paragraphs (4) and (5) above, these rules contemplate that a petitioner currently in federal custody will be permitted to apply for habeas relief from a state restraint which is to go into effect in the future. There has been disagreement in the courts as to whether they have jurisdiction of the habeas application under these circumstances (compare Piper v. United States, 306 F.Supp. 1259 (D.Conn. 1969), with United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)). This rule seeks to make clear that they do have such jurisdiction. Subdivision (c) provides that unless a district court requires otherwise by local rule, the petition must be in the form annexed to these rules. Having a standard prescribed form has several advantages. In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. Since it is the relationship of the facts to the claim asserted that is important, these petitions were obviously deficient. In addition, lengthy and often illegible petitions, arranged in no logical order, were submitted to judges who have had to spend hours deciphering them. For example, in Passic v. Michigan, 98 F.Supp. 1015, 1016 (E.D.Mich. 1951), the court dismissed a petition for habeas corpus, describing it as 'two thousand pages of irrational, prolix and redundant pleadings * * *.' Administrative convenience, of benefit to both the court and the petitioner, results from the use of a prescribed form. Judge Hubert L. Will briefly described the experience with the use of a standard form in the Northern District of Illinois: Our own experience, though somewhat limited, has been quite satisfactory. * * * In addition, (petitions) almost always contain the necessary basic information * * *. Very rarely do we get the kind of hybrid federal-state habeas corpus petition with civil rights allegations thrown in which were not uncommon in the past. * * * (W)hen a real constitutional issue is raised it is quickly apparent * * *. 33 F.R.D. 363, 384 Approximately 65 to 70% of all districts have adopted forms or local rules which require answers to essentially the same questions as contained in the standard form annexed to these rules. All courts using forms have indicated the petitions are time-saving and more legible. The form is particularly helpful in getting information about whether there has been an exhaustion of state remedies or, at least, where that information can be obtained. The requirement of a standard form benefits the petitioner as well. His assertions are more readily apparent, and a meritorious claim is more likely to be properly raised and supported. The inclusion in the form of the ten most frequently raised grounds in habeas corpus petitions is intended to encourage the applicant to raise all his asserted grounds in one petition. It may better enable him to recognize if an issue he seeks to raise is cognizable under habeas corpus and hopefully inform him of those issues as to which he must first exhaust his state remedies. Some commentators have suggested that the use of forms is of little help because the questions usually are too general, amounting to little more than a restatement of the statute. They contend the blanks permit a prisoner to fill in the same ambiguous answers he would have offered without the aid of a form. See Comment, Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1177-1178 (1970). Certainly, as long as the statute requires factual pleading, the adequacy of a petition will continue to be affected largely by the petitioner's intelligence and the legal advice available to him. On balance, however, the use of forms has contributed enough to warrant mandating their use. Giving the petitioner a list of often-raised grounds may, it is said, encourage perjury. See Comment, Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most inmates are aware of, or have access to, some common constitutional grounds for relief. Thus, the risk of perjury is not likely to be substantially increased and the benefit of the list for some inmates seems sufficient to outweigh any slight risk that perjury will increase. There is a penalty for perjury, and this would seem the most appropriate way to try to discourage it. Legal assistance is increasingly available to inmates either through paraprofessional programs involving law students or special programs staffed by members of the bar. See Jacob and Sharma, Justice After Trial: Prisoners' Need for Legal Services in the Criminal-Correctional Process, 18 Kan.L.Rev. 493 (1970). In these situations, the prescribed form can be filled out more competently, and it does serve to ensure a degree of uniformity in the manner in which habeas corpus claims are presented. Subdivision (c) directs the clerk of the district court to make available to applicants upon request, without charge, blank petitions in the prescribed form. Subdivision (c) also requires that all available grounds for relief be presented in the petition, including those grounds of which, by the exercise of reasonable diligence, the petitioner should be aware. This is reinforced by rule 9(b), which allows dismissal of a second petition which fails to allege new grounds or, if new grounds are alleged, the judge finds an inexcusable failure to assert the ground in the prior petition. Both subdivision (c) and the annexed form require a legibly handwritten or typewritten petition. As required by 28 U.S.C. Sec. 2242, the petition must be signed and sworn to by the petitioner (or someone acting in his behalf). Subdivision (d) provides that a single petition may assert a claim only against the judgment or judgments of a single state court (i.e., a court of the same county or judicial district or circuit). This permits, but does not require, an attack in a single petition on judgments based upon separate indictments or on separate counts even though sentences were imposed on separate days by the same court. A claim against a judgment of a court of a different political subdivision must be raised by means of a separate petition. Subdivision (e) allows the clerk to return an insufficient petition to the petitioner, and it must be returned if the clerk is so directed by a judge of the court. Any failure to comply with the requirements of rule 2 or 3 is grounds for insufficiency. In situations where there may be arguable noncompliance with another rule, such as rule 9, the judge, not the clerk, must make the decision. If the petition is returned it must be accompanied by a statement of the reason for its return. No petitioner should be left to speculate as to why or in what manner his petition failed to conform to these rules. Subdivision (e) also provides that the clerk shall retain one copy of the insufficient petition. If the prisoner files another petition, the clerk will be in a better position to determine the sufficiency of the new petition. If the new petition is insufficient, comparison with the prior petition may indicate whether the prisoner has failed to understand the clerk's prior explanation for its insufficiency, so that the clerk can make another, hopefully successful, attempt at transmitting this information to the petitioner. If the petitioner insists that the original petition was in compliance with the rules, a copy of the original petition is available for the consideration of the judge. It is probably better practice to make a photocopy of a petition which can be corrected by the petitioner, thus saving the petitioner the task of completing an additional copy. 1982 AMENDMENT Subdivision (c). The amendment takes into account 28 U.S.C. Sec. 1746, enacted after adoption of the Sec. 2254 rules. Section 1746 provides that in lieu of an affidavit an unsworn statement may be given under penalty of perjury in substantially the following form if executed within the United States, its territories, possessions or commonwealths: 'I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).' The statute is 'intended to encompass prisoner litigation,' and the statutory alternative is especially appropriate in such cases because a notary might not be readily available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec. 2254 forms have been revised accordingly. AMENDMENTS 1976 - Subd. (c). Pub. L. 94-426, Sec. 2(1), inserted 'substantially' after 'The petition shall be in', and struck out requirement that the petition follow the prescribed form. Subd. (e). Pub. L. 94-426, Sec. 2(2), inserted 'substantially' after 'district court does not', and struck out provision which permitted the clerk to return a petition for noncompliance without a judge so directing. RULE 3. FILING PETITION (a) Place of filing; copies; filing fee. A petition shall be filed in the office of the clerk of the district court. It shall be accompanied by two conformed copies thereof. It shall also be accompanied by the filing fee prescribed by law unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he shall file the affidavit required by 28 U.S.C. Sec. 1915. In all such cases the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit in any account in the institution, which certificate may be considered by the court in acting upon his application for leave to proceed in forma pauperis. (b) Filing and service. Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, and having ascertained that the petition appears on its face to comply with rules 2 and 3, the clerk of the district court shall file the petition and enter it on the docket in his office. The filing of the petition shall not require the respondent to answer the petition or otherwise move with respect to it unless so ordered by the court. ADVISORY COMMITTEE NOTE Rule 3 sets out the procedures to be followed by the petitioner and the court in filing the petition. Some of its provisions are currently dealt with by local rule or practice, while others are innovations. Subdivision (a) specifies the petitioner's responsibilities. It requires that the petition, which must be accompanied by two conformed copies thereof, be filed in the office of the clerk of the district court. The petition must be accompanied by the filing fee prescribed by law (presently $5; see 28 U.S.C. Sec. 1914(a)), unless leave to prosecute the petition in forma pauperis is applied for and granted. In the event the petitioner desires to prosecute the petition in forma pauperis, he must file the affidavit required by 28 U.S.C. Sec. 1915, together with a certificate showing the amount of funds in his institutional account. Requiring that the petition be filed in the office of the clerk of the district court provides an efficient and uniform system of filing habeas corpus petitions. Subdivision (b) requires the clerk to file the petition. If the filing fee accompanies the petition, it may be filed immediately, and, if not, it is contemplated that prompt attention will be given to the request to proceed in forma pauperis. The court may delegate the issuance of the order to the clerk in those cases in which it is clear from the petition that there is full compliance with the requirements to proceed in forma pauperis. Requiring the copies of the petition to be filed with the clerk will have an impact not only upon administrative matters, but upon more basic problems as well. In districts with more than one judge, a petitioner under present circumstances may send a petition to more than one judge. If no central filing system exists for each district, two judges may independently take different action on the same petition. Even if the action taken is consistent, there may be needless duplication of effort. The requirement of an additional two copies of the form of the petition is a current practice in many courts. An efficient filing system requires one copy for use by the court (central file), one for the respondent (under 3(b), the respondent receives a copy of the petition whether an answer is required or not), and one for petitioner's counsel, if appointed. Since rule 2 provides that blank copies of the petition in the prescribed form are to be furnished to the applicant free of charge, there should be no undue burden created by this requirement. Attached to copies of the petition supplied in accordance with rule 2 is an affidavit form for the use of petitioners desiring to proceed in forma pauperis. The form requires information concerning the petitioner's financial resources. In forma pauperis cases, the petition must also be accompanied by a certificate indicating the amount of funds in the petitioner's institution account. Usually the certificate will be from the warden. If the petitioner is on probation or parole, the court might want to require a certificate from the supervising officer. Petitions by persons on probation or parole are not numerous enough, however, to justify making special provision for this situation in the text of the rule. The certificate will verify the amount of funds credited to the petitioner in an institution account. The district court may by local rule require that any amount credited to the petitioner, in excess of a stated maximum, must be used for the payment of the filing fee. Since prosecuting an action in forma pauperis is a privilege (see Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)), it is not to be granted when the petitioner has sufficient resources. Subdivision (b) details the clerk's duties with regard to filing the petition. If the petition does not appear on its face to comply with the requirements of rules 2 and 3, it may be returned in accordance with rule 2(e). If it appears to comply, it must be filed and entered on the docket in the clerk's office. However, under this subdivision the respondent is not required to answer or otherwise move with respect to the petition unless so ordered by the court. RULE 4. PRELIMINARY CONSIDERATION BY JUDGE The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. In every case a copy of the petition and any order shall be served by certified mail on the respondent and the attorney general of the state involved. ADVISORY COMMITTEE NOTE Rule 4 outlines the options available to the court after the petition is properly filed. The petition must be promptly presented to and examined by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits attached thereto that the petitioner is not entitled to relief in the district court, the judge must enter an order summarily dismissing the petition and cause the petitioner to be notified. If summary dismissal is not ordered, the judge must order the respondent to file an answer or to otherwise plead to the petition within a time period to be fixed in the order. 28 U.S.C. Sec. 2243 requires that the writ shall be awarded, or an order to show cause issued, 'unless it appears from the application that the applicant or person detained is not entitled thereto.' Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition. See 28 U.S.C. Sec. 753(f) which authorizes payment for transcripts in habeas corpus cases. It has been suggested that an answer should be required in every habeas proceeding, taking into account the usual petitioner's lack of legal expertise and the important functions served by the return. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). However, under Sec. 2243 it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer. Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). In addition, 'notice' pleading is not sufficient, for the petition is expected to state facts that point to a 'real possibility of constitutional error.' See Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970). In the event an answer is ordered under rule 4, the court is accorded greater flexibility than under Sec. 2243 in determining within what time period an answer must be made. Under Sec. 2243, the respondent must make a return within three days after being so ordered, with additional time of up to forty days allowed under the Federal Rules of Civil Procedure, Rule 81(a)(2), for good cause. In view of the widespread state of work overload in prosecutors' offices (see, e.g., Allen, 424 F.2d at 141), additional time is granted in some jurisdictions as a matter of course. Rule 4, which contains no fixed time requirement, gives the court the discretion to take into account various factors such as the respondent's workload and the availability of transcripts before determining a time within which an answer must be made. Rule 4 authorizes the judge to 'take such other action as the judge deems appropriate.' This is designed to afford the judge flexibility in a case where either dismissal or an order to answer may be inappropriate. For example, the judge may want to authorize the respondent to make a motion to dismiss based upon information furnished by respondent, which may show that petitioner's claims have already been decided on the merits in a federal court; that petitioner has failed to exhaust state remedies; that the petitioner is not in custody within the meaning of 28 U.S.C. Sec. 2254; or that a decision in the matter is pending in state court. In these situations, a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition. In other situations, the judge may want to consider a motion from respondent to make the petition more certain. Or the judge may want to dismiss some allegations in the petition, requiring the respondent to answer only those claims which appear to have some arguable merit. Rule 4 requires that a copy of the petition and any order be served by certified mail on the respondent and the attorney general of the state involved. See 28 U.S.C. Sec. 2252. Presently, the respondent often does not receive a copy of the petition unless the court directs an answer under 28 U.S.C. Sec. 2243. Although the attorney general is served, he is not required to answer if it is more appropriate for some other agency to do so. Although the rule does not specifically so provide, it is assumed that copies of the court orders to respondent will be mailed to petitioner by the court. RULE 5. ANSWER; CONTENTS The answer shall respond to the allegations of the petition. In addition it shall state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him under the statutes or procedural rules of the state and including also his right of appeal both from the judgment of conviction and from any adverse judgment or order in the post-conviction proceeding. The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner's brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer. ADVISORY COMMITTEE NOTE Rule 5 details the contents of the 'answer'. (This is a change in terminology from 'return,' which is still used below when referring to prior practice.) The answer plays an obviously important rule in a habeas proceeding: The return serves several important functions: it permits the court and the parties to uncover quickly the disputed issues; it may reveal to the petitioner's attorney grounds for release that the petitioner did not know; and it may demonstrate that the petitioner's claim is wholly without merit. Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1083, 1178 (1970). The answer must respond to the allegations of the petition. While some districts require this by local rule (see, e.g., E.D.N.C.R. 17(B)), under 28 U.S.C. Sec. 2243 little specificity is demanded. As a result, courts occasionally receive answers which contain only a statement certifying the true cause of detention, or a series of delaying motions such as motions to dismiss. The requirement of the proposed rule that the 'answer shall respond to the allegations of the petition' is intended to ensure that a responsive pleading will be filed and thus the functions of the answer fully served. The answer must also state whether the petitioner has exhausted his state remedies. This is a prerequisite to eligibility for the writ under 28 U.S.C. Sec. 2254(b) and applies to every ground the petitioner raises. Most form petitions now in use contain questions requiring information relevant to whether the petitioner has exhausted his remedies. However, the exhaustion requirement is often not understood by the unrepresented petitioner. The attorney general has both the legal expertise and access to the record and thus is in a much better position to inform the court on the matter of exhaustion of state remedies. An alleged failure to exhaust state remedies as to any ground in the petition may be raised by a motion by the attorney general, thus avoiding the necessity of a formal answer as to that ground. The rule requires the answer to indicate what transcripts are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. This will serve to inform the court and petitioner as to what factual allegations can be checked against the actual transcripts. The transcripts include pretrial transcripts relating, for example, to pretrial motions to suppress; transcripts of the trial or guilty plea proceeding; and transcripts of any post-conviction proceedings which may have taken place. The respondent is required to furnish those portions of the transcripts which he believes relevant. The court may order the furnishing of additional portions of the transcripts upon the request of petitioner or upon the court's own motion. Where transcripts are unavailable, the rule provides that a narrative summary of the evidence may be submitted. Rule 5 (and the general procedure set up by this entire set of rules) does not contemplate a traverse to the answer, except under special circumstances. See advisory committee note to rule 9. Therefore, the old common law assumption of verity of the allegations of a return until impeached, as codified in 28 U.S.C. Sec. 2248, is no longer applicable. The meaning of the section, with its exception to the assumption 'to the extent that the judge finds from the evidence that they (the allegations) are not true,' has given attorneys and courts a great deal of difficulty. It seems that when the petition and return pose an issue of fact, no traverse is required; Stewart v. Overholser, 186 F.2d 339 (D.C. Cir. 1950). We read Sec. 2248 of the Judicial Code as not requiring a traverse when a factual issue has been clearly framed by the petition and the return or answer. This section provides that the allegations of a return or answer to an order to show cause shall be accepted as true if not traversed, except to the extent the judge finds from the evidence that they are not true. This contemplates that where the petition and return or answer do present an issue of fact material to the legality of detention, evidence is required to resolve that issue despite the absence of a traverse. This reference to evidence assumes a hearing on issues raised by the allegations of the petition and the return or answer to the order to show cause. 186 F.2D AT 342, N. 5 In actual practice, the traverse tends to be a mere pro forma refutation of the return, serving little if any expository function. In the interests of a more streamlined and manageable habeas corpus procedure, it is not required except in those instances where it will serve a truly useful purpose. Also, under rule 11 the court is given the discretion to incorporate Federal Rules of Civil Procedure when appropriate, so civil rule 15(a) may be used to allow the petitioner to amend his petition when the court feels this is called for by the contents of the answer. Rule 5 does not indicate who the answer is to be served upon, but it necessarily implies that it will be mailed to the petitioner (or to his attorney if he has one). The number of copies of the answer required is left to the court's discretion. Although the rule requires only a copy of petitioner's brief on appeal, respondent is free also to file a copy of respondent's brief. In practice, courts have found it helpful to have a copy of respondent's brief. RULE 6. DISCOVERY (a) Leave of court required. A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a petitioner who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g). (b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced. (c) Expenses. If the respondent is granted leave to take the deposition of the petitioner or any other person the judge may as a condition of taking it direct that the respondent pay the expenses of travel and subsistence and fees of counsel for the petitioner to attend the taking of the deposition. ADVISORY COMMITTEE NOTE This rule prescribes the procedures governing discovery in habeas corpus cases. Subdivision (a) provides that any party may utilize the processes of discovery available under the Federal Rules of Civil Procedure (rules 26-37) if, and to the extent that, the judge allows. It also provides for the appointment of counsel for a petitioner who qualifies for this when counsel is necessary for effective utilization of discovery procedures permitted by the judge. Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286 (1969). In that case the court noted, (I)t is clear that there was no intention to extend to habeas corpus, as a matter of right, the broad discovery provisions * * * of the new (Federal Rules of Civil Procedure). 394 U.S. AT 295 However, citing the lack of methods for securing information in habeas proceedings, the court pointed to an alternative. Clearly, in these circumstances * * * the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. * * * Their authority is expressly confirmed in the All Writs Act, 28 U.S.C. Sec. 1651. 394 U.S. AT 299 The court concluded that the issue of discovery in habeas corpus cases could best be dealt with as part of an effort to provide general rules of practice for habeas corpus cases: In fact, it is our view that the rulemaking machinery should be invoked to formulate rules of practice with respect to federal habeas corpus and Sec. 2255 proceedings, on a comprehensive basis and not merely one confined to discovery. The problems presented by these proceedings are materially different from those dealt with in the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, and reliance upon usage and the opaque language of Civil Rule 81(a)(2) is transparently inadequate. In our view the results of a meticulous formulation and adoption of special rules for federal habeas corpus and Sec. 2255 proceedings would promise much benefit. 394 U.S. AT 301 N. 7 Discovery may, in appropriate cases, aid in developing facts necessary to decide whether to order an evidentiary hearing or to grant the writ following an evidentiary hearing: We are aware that confinement sometimes induces fantasy which has its basis in the paranoia of prison rather than in fact. But where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry. Obviously, in exercising this power, the court may utilize familiar procedures, as appropriate, whether these are found in the civil or criminal rules or elsewhere in the 'usages and principles.' Granting discovery is left to the discretion of the court, discretion to be exercised where there is a showing of good cause why discovery should be allowed. Several commentators have suggested that at least some discovery should be permitted without leave of court. It is argued that the courts will be burdened with weighing the propriety of requests to which the discovered party has no objection. Additionally, the availability of protective orders under Fed.R.Civ.R., Rules 30(b) and 31(d) will provide the necessary safeguards. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970); Civil Discovery in Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967). Nonetheless, it is felt the requirement of prior court approval of all discovery is necessary to prevent abuse, so this requirement is specifically mandated in the rule. While requests for discovery in habeas proceedings normally follow the granting of an evidentiary hearing, there may be instances in which discovery would be appropriate beforehand. Such an approach was advocated in Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969), where the opinion stated the trial court could permit interrogatories, provide for deposing witnesses, 'and take such other prehearing steps as may be appropriate.' While this was an action under Sec. 2255, the reasoning would apply equally well to petitions by state prisoners. Such pre-hearing discovery may show an evidentiary hearing to be unnecessary, as when there are 'no disputed issues of law or fact.' 83 Harv. L.Rev. 1038, 1181 (1970). The court in Harris alluded to such a possibility when it said 'the court may * * * authorize such proceedings with respect to development, before or in conjunction with the hearing of the facts * * *.' (emphasis added) 394 U.S. at 300. Such pre-hearing discovery, like all discovery under rule 6, requires leave of court. In addition, the provisions in rule 7 for the use of an expanded record may eliminate much of the need for this type of discovery. While probably not as frequently sought or granted as discovery in conjunction with a hearing, it may nonetheless serve a valuable function. In order to make pre-hearing discovery meaningful, subdivision (a) provides that the judge should appoint counsel for a petitioner who is without counsel and qualifies for appointment when this is necessary for the proper utilization of discovery procedures. Rule 8 provides for the appointment of counsel at the evidentiary hearing stage (see rule 8(b) and advisory committee note), but this would not assist the petitioner who seeks to utilize discovery to stave off dismissal of his petition (see rule 9 and advisory committee note) or to demonstrate that an evidentiary hearing is necessary. Thus, if the judge grants a petitioner's request for discovery prior to making a decision as to the necessity for an evidentiary hearing, he should determine whether counsel is necessary for the effective utilization of such discovery and, if so, appoint counsel for the petitioner if the petitioner qualifies for such appointment. This rule contains very little specificity as to what types and methods of discovery should be made available to the parties in a habeas proceeding, or how, once made available, these discovery procedures should be administered. The purpose of this rule is to get some experience in how discovery would work in actual practice by letting district court judges fashion their own rules in the context of individual cases. When the results of such experience are available it would be desirable to consider whether further, more specific codification should take place. Subdivision (b) provides for judicial consideration of all matters subject to discovery. A statement of the interrogatories, or requests for admission sought to be answered, and a list of any documents sought to be produced, must accompany a request for discovery. This is to advise the judge of the necessity for discovery and enable him to make certain that the inquiry is relevant and appropriately narrow. Subdivision (c) refers to the situation where the respondent is granted leave to take the deposition of the petitioner or any other person. In such a case the judge may direct the respondent to pay the expenses and fees of counsel for the petitioner to attend the taking of the deposition, as a condition granting the respondent such leave. While the judge is not required to impose this condition subdivision (c) will give the court the means to do so. Such a provision affords some protection to the indigent petitioner who may be prejudiced by his inability to have counsel, often court-appointed, present at the taking of a deposition. It is recognized that under 18 U.S.C. Sec. 3006A(g), court-appointed counsel in a Sec. 2254 proceeding is entitled to receive up to $250 and reimbursement for expenses reasonably incurred. (Compare Fed.R. Crim.P. 15(c).) Typically, however, this does not adequately reimburse counsel if he must attend the taking of depositions or be involved in other pre-hearing proceedings. Subdivision (c) is intended to provide additional funds, if necessary, to be paid by the state government (respondent) to petitioner's counsel. Although the rule does not specifically so provide, it is assumed that a petitioner who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) and is granted leave to take a deposition will be allowed witness costs. This will include recording and transcription of the witness's statement. Such costs are payable pursuant to 28 U.S.C. Sec. 1825. See Opinion of Comptroller General, February 28, 1974. Subdivision (c) specifically recognizes the right of the respondent to take the deposition of the petitioner. Although the petitioner could not be called to testify against his will in a criminal trial, it is felt the nature of the habeas proceeding, along with the safeguards accorded by the Fifth Amendment and the presence of counsel, justify this provision. See 83 Harv.L.Rev. 1038, 1183-84 (1970). RULE 7. EXPANSION OF RECORD (a) Direction for expansion. If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition. (b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record. (c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness. (d) Authentication. The court may require the authentication of any material under subdivision (b) or (c). ADVISORY COMMITTEE NOTE This rule provides that the judge may direct that the record be expanded. The purpose is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing. An expanded record may also be helpful when an evidentiary hearing is ordered. The record may be expanded to include additional material relevant to the merits of the petition. While most petitions are dismissed either summarily or after a response has been made, of those that remain, by far the majority require an evidentiary hearing. In the fiscal year ending June 30, 1970, for example, of 8,423 Sec. 2254 cases terminated, 8,231 required court action. Of these, 7,812 were dismissed before a prehearing conference and 469 merited further court action (e.g., expansion of the record, prehearing conference, or an evidentiary hearing). Of the remaining 469 cases, 403 required an evidentiary hearing, often time-consuming, costly, and, at least occasionally, unnecessary. See Director of the Administrative Office of the United States Courts, Annual Report, 245a-245c (table C4) (1970). In some instances these hearings were necessitated by slight omissions in the state record which might have been cured by the use of an expanded record. Authorizing expansion of the record will, hopefully, eliminate some unnecessary hearings. The value of this approach was articulated in Raines v. United States, 423 F.2d 526, 529-530 (4th Cir. 1970): Unless it is clear from the pleadings and the files and records that the prisoner is entitled to no relief, the statute makes a hearing mandatory. We think there is a permissible intermediate step that may avoid the necessity for an expensive and time consuming evidentiary hearing in every Section 2255 case. It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and, in an appropriate case, even affidavits. United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967). When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful. In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said: At any time in the proceedings * * * either on (the court's) own motion or upon cause shown by the petitioner, it may issue such writs and take or authorize such proceedings * * * before or in conjunction with the hearing of the facts * * * (emphasis added) Subdivision (b) specifies the materials which may be added to the record. These include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath directed to written interrogatories propounded by the judge. Under this subdivision affidavits may be submitted and considered part of the record. Subdivision (b) is consistent with 28 U.S.C. Sec. 2246 and 2247 and the decision in Raines with regard to types of material that may be considered upon application for a writ of habeas corpus. See United States v. Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and Machibroda v. United States, 368 U.S. 487 (1962). Under subdivision (c) all materials proposed to be included in the record must be submitted to the party against whom they are to be offered. Under subdivision (d) the judge can require authentication if he believes it desirable to do so. RULE 8. EVIDENTIARY HEARING (a) Determination by court. If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require. (b) Function of the magistrate. (1) When designated to do so in accordance with 28 U.S.C. Sec. 636(b), a magistrate may conduct hearings, including evidentiary hearings, on the petition, and submit to a judge of the court proposed findings of fact and recommendations for disposition. (2) The magistrate shall file proposed findings and recommendations with the court and a copy shall forthwith be mailed to all parties. (3) Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. (4) A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate. (c) Appointment of counsel; time for hearing. If an evidentiary hearing is required the judge shall appoint counsel for a petitioner who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation. These rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the interest of justice so requires. (As amended Pub. L. 94-426, Sec. 2(5), Sept. 28, 1976, 90 Stat. 1334; Pub. L. 94-577, Sec. 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat. 2730, 2731.) ADVISORY COMMITTEE NOTE This rule outlines the procedure to be followed by the court immediately prior to and after the determination of whether to hold an evidentiary hearing. The provisions are applicable if the petition has not been dismissed at a previous stage in the proceeding (including a summary dismissal under rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record). If dismissal has not been ordered, the court must determine whether an evidentiary hearing is required. This determination is to be made upon a review of the answer, the transcript and record of state court proceedings, and if there is one, the expanded record. As the United States Supreme Court noted in Townsend v. Sam, 372 U.S. 293, 319 (1963): Ordinarily (the complete state-court) record - including the transcript of testimony (or if unavailable some adequate substitute, such as a narrative record), the pleadings, court opinions, and other pertinent documents - is indispensable to determining whether the habeas applicant received a full and fair state-court evidentiary hearing resulting in reliable findings. Subdivision (a) contemplates that all of these materials, if available, will be taken into account. This is especially important in view of the standard set down in Townsend for determining when a hearing in the federal habeas proceeding is mandatory. The appropriate standard * * * is this: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. 372 U.S. AT 312 The circumstances under which a federal hearing is mandatory are now specified in 28 U.S.C. Sec. 2254(d). The 1966 amendment clearly places the burden on the petitioner, when there has already been a state hearing, to show that it was not a fair or adequate hearing for one or more of the specifically enumerated reasons, in order to force a federal evidentiary hearing. Since the function of an evidentiary hearing is to try issues of fact (372 U.S. at 309), such a hearing is unnecessary when only issues of law are raised. See, e.g., Yeaman v. United States, 326 F.2d 293 (9th Cir. 1963). In situations in which an evidentiary hearing is not mandatory, the judge may nonetheless decide that an evidentiary hearing is desirable: The purpose of the test is to indicate the situations in which the holding of an evidentiary hearing is mandatory. In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge. 372 U.S. AT 318 If the judge decides that an evidentiary hearing is neither required nor desirable, he shall make such a disposition of the petition 'as justice shall require.' Most habeas petitions are dismissed before the prehearing conference stage (see Director of the Administrative Office of the United States Courts, Annual Report 245a-245c (table C4) (1970)) and of those not dismissed, the majority raise factual issues that necessitate an evidentiary hearing. If no hearing is required, most petitions are dismissed, but in unusual cases the court may grant the relief sought without a hearing. This includes immediate release from custody or nullification of a judgment under which the sentence is to be served in the future. Subdivision (b) provides that a magistrate, when so empowered by rule of the district court, may recommend to the district judge that an evidentiary hearing be held or that the petition be dismissed, provided he gives the district judge a sufficiently detailed description of the facts so that the judge may decide whether or not to hold an evidentiary hearing. This provision is not inconsistent with the holding in Wingo v. Wedding, 418 U.S. 461 (1974), that the Federal Magistrates Act did not change the requirement of the habeas corpus statute that federal judges personally conduct habeas evidentiary hearings, and that consequently a local district court rule was invalid insofar as it authorized a magistrate to hold such hearings. 28 U.S.C. Sec. 636(b) provides that a district court may by rule authorize any magistrate to perform certain additional duties, including preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing. As noted in Wingo, review 'by Magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, evidentiary hearings.' Utilization of the magistrate as specified in subdivision (b) will aid in the expeditious and fair handling of habeas petitions. A qualified, experienced magistrate will, it is hoped, acquire an expertise in examining these (postconviction review) applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications. S. REP. NO. 371, 90TH CONG., 1ST SESS., 26 (1967) Under subdivision (c) there are two provisions that differ from the procedure set forth in 28 U.S.C. Sec. 2243. These are the appointment of counsel and standard for determining how soon the hearing will be held. If an evidentiary hearing is required the judge must appoint counsel for a petitioner who qualified for appointment under the Criminal Justice Act. Currently, the appointment of counsel is not recognized as a right at any stage of a habeas proceeding. See, e.g., United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964). Some district courts have, however, by local rule, required that counsel must be provided for indigent petitioners in cases requiring a hearing. See, e.g., D.N.M.R. 21(f), E.D. N.Y.R. 26(d). Appointment of counsel at this stage is mandatory under subdivision (c). This requirement will not limit the authority of the court to provide counsel at an earlier stage if it is thought desirable to do so as is done in some courts under current practice. At the evidentiary hearing stage, however, an indigent petitioner's access to counsel should not depend on local practice and, for this reason, the furnishing of counsel is made mandatory. Counsel can perform a valuable function benefiting both the court and the petitioner. The issues raised can be more clearly identified if both sides have the benefit of trained legal personnel. The presence of counsel at the prehearing conference may help to expedite the evidentiary hearing or make it unnecessary, and counsel will be able to make better use of available prehearing discovery procedures. Compare ABA Project on Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies Sec. 4.4, p. 66 (Approved Draft 1968). At a hearing, the petitioner's claims are more likely to be effectively and properly presented by counsel. Under 18 U.S.C. Sec. 3006A(g), payment is allowed counsel up to $250, plus reimbursement for expenses reasonably incurred. The standards of indigency under this section are less strict than those regarding eligibility to prosecute a petition in forma pauperis, and thus many who cannot qualify to proceed under 28 U.S.C. Sec. 1915 will be entitled to the benefits of counsel under 18 U.S.C. Sec. 3006A(g). Under rule 6(c), the court may order the respondent to reimburse counsel from state funds for fees and expenses incurred as the result of the utilization of discovery procedures by the respondent. Subdivision (c) provides that the hearing shall be conducted as promptly as possible, taking into account 'the need of counsel for both parties for adequate time for investigation and preparation.' This differs from the language of 28 U.S.C. Sec. 2243, which requires that the day for the hearing be set 'not more than five days after the return unless for good cause additional time is allowed.' This time limit fails to take into account the function that may be served by a prehearing conference and the time required to prepare adequately for an evidentiary hearing. Although 'additional time' is often allowed under Sec. 2243, subdivision (c) provides more flexibility to take account of the complexity of the case, the availability of important materials, the workload of the attorney general, and the time required by appointed counsel to prepare. While the rule does not make specific provision for a prehearing conference, the omission is not intended to cast doubt upon the value of such a conference: The conference may limit the questions to be resolved, identify areas of agreement and dispute, and explore evidentiary problems that may be expected to arise. * * * (S)uch conferences may also disclose that a hearing is unnecessary * * *. ABA Project on Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies Sec. 4.6, commentary pp. 74-75. (Approved Draft, 1968.) See also Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1188 (1970). The rule does not contain a specific provision on the subpoenaing of witnesses. It is left to local practice to determine the method for doing this. The implementation of 28 U.S.C. Sec. 1825 on the payment of witness fees is dealt with in an opinion of the Comptroller General, February 28, 1974. AMENDMENTS 1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(1), substituted provisions which authorized magistrates, when designated to do so in accordance with section 636(b) of this title, to conduct hearings, including evidentiary hearings, on the petition and to submit to a judge of the court proposed findings of fact and recommendations for disposition, which directed the magistrate to file proposed findings and recommendations with the court with copies furnished to all parties, which allowed parties thus served 10 days to file written objections thereto, and which directed a judge of the court to make de novo determinations of the objected-to portions and to accept, reject, or modify the findings or recommendations for provisions under which the magistrate had been empowered only to recommend to the district judge that an evidentiary hearing be held or that the petition be dismissed. Subd. (c). Pub. L. 94-577, Sec. 2(b)(1), substituted 'and the hearing shall be conducted' for 'and shall conduct the hearing'. Pub. L. 94-426 provided that these rules not limit the appointment of counsel under section 3006A of title 18, if the interest of justice so require. EFFECTIVE DATE OF 1976 AMENDMENT Section 2(c) of Pub. L. 94-577 provided that: 'The amendments made by this section (amending subdivs. (b) and (c) of this rule and Rule 8(b), (c) of the Rules Governing Proceedings Under Section 2255 of this title) shall take effect with respect to petitions under section 2254 and motions under section 2255 of title 28 of the United States Code filed on or after February 1, 1977.' RULE 9. DELAYED OR SUCCESSIVE PETITIONS (a) Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. (b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. (As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90 Stat. 1335.) ADVISORY COMMITTEE NOTE This rule is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions. Subdivision (a) deals with the delayed petition. Subdivision (b) deals with the second or successive petition. Subdivision (a) provides that a petition attacking the judgment of a state court may be dismissed on the grounds of delay if the petitioner knew or should have known of the existence of the grounds he is presently asserting in the petition and the delay has resulted in the state being prejudiced in its ability to respond to the petition. If the delay is more than five years after the judgment of conviction, prejudice is presumed, although this presumption is rebuttable by the petitioner. Otherwise, the state has the burden of showing such prejudice. The assertion of stale claims is a problem which is not likely to decrease in frequency. Following the decisions in Jones v. Cunningham, 371 U.S. 236 (1963), and Benson v. California, 328 F.2d 159 (9th Cir. 1964), the concept of custody expanded greatly, lengthening the time period during which a habeas corpus petition may be filed. The petitioner who is not unconditionally discharged may be on parole or probation for many years. He may at some date, perhaps ten or fifteen years after conviction, decide to challenge the state court judgment. The grounds most often troublesome to the courts are ineffective counsel, denial of right of appeal, plea of guilty unlawfully induced, use of a coerced confession, and illegally constituted jury. The latter four grounds are often interlocked with the allegation of ineffective counsel. When they are asserted after the passage of many years, both the attorney for the defendant and the state have difficulty in ascertaining what the facts are. It often develops that the defense attorney has little or no recollection as to what took place and that many of the participants in the trial are dead or their whereabouts unknown. The court reporter's notes may have been lost or destroyed, thus eliminating any exact record of what transpired. If the case was decided on a guilty plea, even if the record is intact, it may not satisfactorily reveal the extent of the defense attorney's efforts in behalf of the petitioner. As a consequence, there is obvious difficulty in investigating petitioner's allegations. The interest of both the petitioner and the government can best be served if claims are raised while the evidence is still fresh. The American Bar Association has recognized the interest of the state in protecting itself against stale claims by limiting the right to raise such claims after completion of service of a sentence imposed pursuant to a challenged judgment. See ABA Standards Relating to Post-Conviction Remedies Sec. 2.4 (c), p. 45 (Approved Draft, 1968). Subdivision (a) is not limited to those who have completed their sentence. Its reach is broader, extending to all instances where delay by the petitioner has prejudiced the state, subject to the qualifications and conditions contained in the subdivision. In McMann v. Richardson, 397 U.S. 759 (1970), the court made reference to the issue of the stale claim: What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof. (Emphasis added.) 397 U.S. AT 773 The court refused to allow this, intimating its dislike of collateral attacks on sentences long since imposed which disrupt the state's interest in finality of convictions which were constitutionally valid when obtained. Subdivision (a) is not a statute of limitations. Rather, the limitation is based on the equitable doctrine of laches. 'Laches is such delay in enforcing one's rights as works disadvantage to another.' 30A C.J.S. Equity Sec. 112, p. 19. Also, the language of the subdivision, 'a petition may be dismissed' (emphasis added), is permissive rather than mandatory. This clearly allows the court which is considering the petition to use discretion in assessing the equities of the particular situation. The use of a flexible rule analogous to laches to bar the assertion of stale claims is suggested in ABA Standards Relating to Post-Conviction Remedies Sec. 2.4, commentary at 48 (Approved Draft, 1968). Additionally, in Fay v. Noia, 372 U.S. 391 (1963), the Supreme Court noted: Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. 372 U.S. AT 438 Finally, the doctrine of laches has been applied with reference to another postconviction remedy, the writ of coram nobis. See 24 C.J.S. Criminal Law Sec. 1606(25), p. 779. The standard used for determining if the petitioner shall be barred from asserting his claim is consistent with that used in laches provisions generally. The petitioner is held to a standard of reasonable diligence. Any inference or presumption arising by reason of the failure to attack collaterally a conviction may be disregarded where (1) there has been a change of law or fact (new evidence) or (2) where the court, in the interest of justice, feels that the collateral attack should be entertained and the prisoner makes a proper showing as to why he has not asserted a particular ground for relief. Subdivision (a) establishes the presumption that the passage of more than five years from the time of the judgment of conviction to the time of filing a habeas petition is prejudicial to the state. 'Presumption' has the meaning given it by Fed.R.Evid. 301. The prisoner has 'the burden of going forward with evidence to rebut or meet the presumption' that the state has not been prejudiced by the passage of a substantial period of time. This does not impose too heavy a burden on the petitioner. He usually knows what persons are important to the issue of whether the state has been prejudiced. Rule 6 can be used by the court to allow petitioner liberal discovery to learn whether witnesses have died or whether other circumstances prejudicial to the state have occurred. Even if the petitioner should fail to overcome the presumption of prejudice to the state, he is not automatically barred from asserting his claim. As discussed previously, he may proceed if he neither knew nor, by the exercise of reasonable diligence, could have known of the grounds for relief. The presumption of prejudice does not come into play if the time lag is not more than five years. The time limitation should have a positive effect in encouraging petitioners who have knowledge of it to assert all their claims as soon after conviction as possible. The implementation of this rule can be substantially furthered by the development of greater legal resources for prisoners. See ABA Standards Relating to Post-Conviction Remedies Sec. 3.1, pp. 49-50 (Approved Draft, 1968). Subdivision (a) does not constitute an abridgement or modification of a substantive right under 28 U.S.C. Sec. 2072. There are safeguards for the hardship case. The rule provides a flexible standard for determining when a petition will be barred. Subdivision (b) deals with the problem of successive habeas petitions. It provides that the judge may dismiss a second or successive petition (1) if it fails to allege new or different grounds for relief or (2) if new or different grounds for relief are alleged and the judge finds the failure of the petitioner to assert those grounds in a prior petition is inexcusable. In Sanders v. United States, 373 U.S. 1 (1963), the court, in dealing with the problem of successive applications, stated: Controlling weight may be given to denial of a prior application for federal habeas corpus or Sec. 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. (Emphasis added.) 373 U.S. AT 15 The requirement is that the prior determination of the same ground has been on the merits. This requirement is in 28 U.S.C. Sec. 2244(b) and has been reiterated in many cases since Sanders. See Gains v. Allgood, 391 F.2d 692 (5th Cir. 1968); Hutchinson v. Craven, 415 F.2d 278 (9th Cir. 1969); Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970). With reference to a successive application asserting a new ground or one not previously decided on the merits, the court in Sanders noted: In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ * * * and this the Government has the burden of pleading. * * * Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, * * * he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. 373 U.S. AT 17-18 Subdivision (b) has incorporated this principle and requires that the judge find petitioner's failure to have asserted the new grounds in the prior petition to be inexcusable. Sanders, 18 U.S.C. Sec. 2244, and subdivision (b) make it clear that the court has discretion to entertain a successive application. The burden is on the government to plead abuse of the writ. See Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs, 427 F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969). Once the government has done this, the petitioner has the burden of proving that he has not abused the writ. In Price v. Johnston, 334 U.S. 266, 292 (1948), the court said: (I)f the Government chooses * * * to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make that claim with clarity and particularity in its return to the order to show cause. That is not an intolerable burden. The Government is usually well acquainted with the facts that are necessary to make such a claim. Once a particular abuse has been alleged, the prisoner has the burden of answering that allegation and of proving that he has not abused the writ. Subdivision (b) is consistent with the important and well established purpose of habeas corpus. It does not eliminate a remedy to which the petitioner is rightfully entitled. However, in Sanders, the court pointed out: Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. 373 U.S. AT 18 There are instances in which petitioner's failure to assert a ground in a prior petition is excusable. A retroactive change in the law and newly discovered evidence are examples. In rare instances, the court may feel a need to entertain a petition alleging grounds that have already been decided on the merits. Sanders, 373 U.S. at 1, 16. However, abusive use of the writ should be discouraged, and instances of abuse are frequent enough to require a means of dealing with them. For example, a successive application, already decided on the merits, may be submitted in the hope of getting before a different judge in multijudge courts. A known ground may be deliberately withheld in the hope of getting two or more hearings or in the hope that delay will result in witnesses and records being lost. There are instances in which a petitioner will have three or four petitions pending at the same time in the same court. There are many hundreds of cases where the application is at least the second one by the petitioner. This subdivision is aimed at screening out the abusive petitions from this large volume, so that the more meritorious petitions can get quicker and fuller consideration. The form petition, supplied in accordance with rule 2(c), encourages the petitioner to raise all of his available grounds in one petition. It sets out the most common grounds asserted so that these may be brought to his attention. Some commentators contend that the problem of abuse of the writ of habeas corpus is greatly overstated: Most prisoners, of course, are interested in being released as soon as possible; only rarely will one inexcusably neglect to raise all available issues in his first federal application. The purpose of the 'abuse' bar is apparently to deter repetitious applications from those few bored or vindictive prisoners * * *. 83 HARV.L.REV. AT 1153-1154 See also ABA Standards Relating to Post-Conviction Remedies Sec. 6.2, commentary at 92 (Approved Draft, 1968), which states: 'The occasional, highly litigious prisoner stands out as the rarest exception.' While no recent systematic study of repetitious applications exists, there is no reason to believe that the problem has decreased in significance in relation to the total number of Sec. 2254 petitions filed. That number has increased from 584 in 1949 to 12,088 in 1971. See Director of the Administrative Office of the United States Courts, Annual Report, table 16 (1971). It is appropriate that action be taken by rule to allow the courts to deal with this problem, whatever its specific magnitude. The bar set up by subdivision (b) is not one of rigid application, but rather is within the discretion of the courts on a case-by-case basis. If it appears to the court after examining the petition and answer (where appropriate) that there is a high probability that the petition will be barred under either subdivision of rule 9, the court ought to afford petitioner an opportunity to explain his apparent abuse. One way of doing this is by the use of the form annexed hereto. The use of a form will ensure a full airing of the issue so that the court is in a better position to decide whether the petition should be barred. This conforms with Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969), where the court stated: (T)he petitioner is obligated to present facts demonstrating that his earlier failure to raise his claims is excusable and does not amount to an abuse of the writ. However, it is inherent in this obligation placed upon the petitioner that he must be given an opportunity to make his explanation, if he has one. If he is not afforded such an opportunity, the requirement that he satisfy the court that he has not abused the writ is meaningless. Nor do we think that a procedure which allows the imposition of a forfeiture for abuse of the writ, without allowing the petitioner an opportunity to be heard on the issue, comports with the minimum requirements of fairness. 420 F.2D AT 399 Use of the recommended form will contribute to an orderly handling of habeas petitions and will contribute to the ability of the court to distinguish the excusable from the inexcusable delay or failure to assert a ground for relief in a prior petition. AMENDMENTS 1976 - Subd. (a). Pub. L. 94-426, Sec. 2(7), struck out provision which established a rebuttable presumption of prejudice to the state if the petition was filed more than five years after conviction and started the running of the five year period, where a petition challenged the validity of an action after conviction, from the time of the order of such action. Subd. (b). Pub. L. 94-426, Sec. 2(8), substituted 'constituted an abuse of the writ' for 'is not excusable'. RULE 10. POWERS OF MAGISTRATES The duties imposed upon the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. Sec. 636. (As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat. 1335; Apr. 30, 1979, eff. Aug. 1, 1979.) ADVISORY COMMITTEE NOTE Under this rule the duties imposed upon the judge of the district court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate if and to the extent he is empowered to do so by a rule of the district court. However, when such duties involve the making of an order under rule 4 disposing of the petition, that order must be made by the court. The magistrate in such instances must submit to the court his report as to the facts and his recommendation with respect to the order. The Federal Magistrates Act allows magistrates, when empowered by local rule, to perform certain functions in proceedings for post-trial relief. See 28 U.S.C. Sec. 636(b)(3). The performance of such functions, when authorized, is intended to 'afford some degree of relief to district judges and their law clerks, who are presently burdened with burgeoning numbers of habeas corpus petitions and applications under 28 U.S.C. Sec. 2255.' Committee on the Judiciary, The Federal Magistrates Act, S.Rep. No. 371, 90th Cong., 1st sess., 26 (1967). Under 28 U.S.C. Sec. 636(b), any district court, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate * * * may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The proposed rule recognizes the limitations imposed by 28 U.S.C. Sec. 636(b) upon the powers of magistrates to act in federal postconviction proceedings. These limitations are: (1) that the magistrate may act only pursuant to a rule passed by the majority of the judges in the district court in which the magistrate serves, and (2) that the duties performed by the magistrate pursuant to such rule be consistent with the Constitution and laws of the United States. It has been suggested that magistrates be empowered by law to hold hearings and make final decisions in habeas proceedings. See Proposed Reformation of Federal Habeas Corpus Procedure: Use of Federal Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the Federal Magistrates Act does not authorize such use of magistrates. Wingo v. Wedding, 418 U.S. 461 (1974). See advisory committee note to rule 8. While the use of magistrates can help alleviate the strain imposed on the district courts by the large number of unmeritorious habeas petitions, neither 28 U.S.C. Sec. 636(b) nor this rule contemplate the abdication by the court of its decision-making responsibility. See also Developments in the Law - Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1188 (1970) Where a full-time magistrate is not available, the duties contemplated by this rule may be assigned to a part-time magistrate. 1979 AMENDMENT This amendment conforms the rule to subsequently enacted legislation clarifying and further defining the duties which may be assigned to a magistrate, 18 U.S.C. Sec. 636, as amended in 1976 by Pub. L. 94-577. To the extent that rule 10 is more restrictive than Sec. 636, the limitations are of no effect, for the statute expressly governs '(n)otwithstanding any provision of law to the contrary.' The reference to particular rules is stricken, as under Sec. 636(b)(1)(A) a judge may designate a magistrate to perform duties under other rules as well (e.g., order that further transcripts be furnished under rule 5; appoint counsel under rule 8). The reference to 'established standards and criteria' is stricken, as Sec. 636(4) requires each district court to 'establish rules pursuant to which the magistrates shall discharge their duties.' The exception with respect to a rule 4 order dismissing a petition is stricken, as that limitation appears in Sec. 636(b)(1)(B) and is thereby applicable to certain other actions under these rules as well (e.g., determination of a need for an evidentiary hearing under rule 8; dismissal of a delayed or successive petition under rule 9). AMENDMENTS 1976 - Pub. L. 94-426 inserted ', and to the extent the district court has established standards and criteria for the performance of such duties' after 'rule of the district court'. CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. RULE 11. FEDERAL RULES OF CIVIL PROCEDURE; EXTENT OF APPLICABILITY The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules. ADVISORY COMMITTEE NOTE Habeas corpus proceedings are characterized as civil in nature. See e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to habeas corpus actions has been limited, although the various courts which have considered this problem have had difficulty in setting out the boundaries of this limitation. See Harris v. Nelson, 394 U.S. 286 (1969) at 289, footnote 1. Rule 11 is intended to conform with the Supreme Court's approach in the Harris case. There the court was dealing with the petitioner's contention that Civil Rule 33 granting the right to discovery via written interrogatories is wholly applicable to habeas corpus proceedings. The court held: We agree with the Ninth Circuit that Rule 33 of the Federal Rules of Civil Procedure is not applicable to habeas corpus proceedings and that 28 U.S.C. Sec. 2246 does not authorize interrogatories except in limited circumstances not applicable to this case; but we conclude that, in appropriate circumstances, a district court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery procedures, including interrogatories, reasonably fashioned to elicit facts necessary to help the court to 'dispose of the matter as law and justice require' 28 U.S.C. Sec. 2243. 394 U.S. AT 290 The court then went on to consider the contention that the 'conformity' provision of Rule 81(a)(2) should be rigidly applied so that the civil rules would be applicable only to the extent that habeas corpus practice had conformed to the practice in civil actions at the time of the adoption of the Federal Rules of Civil Procedure on September 16, 1938. The court said: Although there is little direct evidence, relevant to the present problem, of the purpose of the 'conformity' provision of Rule 81(a)(2), the concern of the draftsmen, as a general matter, seems to have been to provide for the continuing applicability of the 'civil' rules in their new form to those areas of practice in habeas corpus and other enumerated proceedings in which the 'specified' proceedings had theretofore utilized the modes of civil practice. Otherwise, those proceedings were to be considered outside of the scope of the rules without prejudice, of course, to the use of particular rules by analogy or otherwise, where appropriate. 394 U.S. AT 294 The court then reiterated its commitment to judicial discretion in formulating rules and procedures for habeas corpus proceedings by stating: (T)he habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. Where their duties require it, this is the inescapable obligation of the courts. Their authority is expressly confirmed in the All Writs Act, 28 U.S.C. Sec. 1651. 394 U.S. AT 299 Rule 6 of these proposed rules deals specifically with the issue of discovery in habeas actions in a manner consistent with Harris. Rule 11 extends this approach to allow the court considering the petition to use any of the rules of civil procedure (unless inconsistent with these rules of habeas corpus) when in its discretion the court decides they are appropriate under the circumstances of the particular case. The court does not have to rigidly apply rules which would be inconsistent or inequitable in the overall framework of habeas corpus. Rule 11 merely recognizes and affirms their discretionary power to use their judgment in promoting the ends of justice. Rule 11 permits application of the civil rules only when it would be appropriate to do so. Illustrative of an inappropriate application is that rejected by the Supreme Court in Pitchess v. Davis, 95 S.Ct. 1748 (1975), holding that Fed.R.Civ.P. 60(b) should not be applied in a habeas case when it would have the effect of altering the statutory exhaustion requirement of 28 U.S.C. Sec. 2254. APPENDIX OF FORMS MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28 U.S.C. SEC. 2254 Name XXXXXXXXXXXXXXXXXXXXXXXXXX Prison number XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Place of confinement XXXXXXXXXXXXXXXXX United States District Court XXXXX District of XXXXX Case No. XXXXXXXXXXXXXXXXXXXXXXXX (To be supplied by Clerk of U.S. District Court) XXXXXXXXXXXXXXXXXXX, PETITIONER (Full name) V. XXXXXXXXXXXXXXXXXX, RESPONDENT (Name of Warden, Superintendent, Jailor, or authorized person having custody of petitioner) AND THE ATTORNEY GENERAL OF THE STATE OF XXXXXXXXXXX, ADDITIONAL RESPONDENT. (If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. Sec. 2255, in the federal court which entered the judgment.) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY INSTRUCTIONS - READ CAREFULLY (1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. (2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum. (3) Upon receipt of a fee of $5 your petition will be filed if it is in proper order. (4) If you do not have the necessary filing fee, you may request permission to proceed in forma pauperis, in which event you must execute the declaration on the last page, setting forth information establishing your inability to prepay the fees and costs or give security therefor. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. If your prison account exceeds $XXX, you must pay the filing fee as required by the rule of the district court. (5) Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state or in different states, you must file separate petitions as to each court. (6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction. (7) When the petition is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court whose address is XX XXXXXXXXXXXXXXXXXXXXXXXXXXX (8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency. PETITION 1. Name and location of court which entered the judgment of conviction under attackXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 2. Date of judgment of conviction XXXXXXXXXXX 3. Length of sentence XXXXXXXXXXXXXXXXX 4. Nature of offense involved (all counts) XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 6. Kind of trial: (Check one) (a) Jury (b) Judge only 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court XXXXXXXXXXXXXXXX (b) Result XXXXXXXXXXXXXXXXXXXX (c) Date of result XXXXXXXXXXXXXXXXX 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal? Yes No 11. If your answer to 10 was 'yes,' give the following information: (a) (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX (b) As to any second petition, application or motion give the same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX (c) As to any third petition, application or motion, give the same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) ResultXXXXXXXXXXXXXXXXXXX (6) Date of resultXXXXXXXXXXXXXXX (d) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or motion? (1) First petition, etc. Yes No (2) Second petition, etc. Yes No (3) Third petition, etc. Yes No (e) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not: XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX 12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. Caution: In order to proceed in the federal court, you must ordinarily first exhaust your state court remedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, you should raise in this petition all available grounds (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX B. Ground two: XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX C. Ground three: XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX D. Ground four: XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX 13. If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state briefly what grounds were not so presented, and give your reasons for not presenting them: XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes No 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (b) At arraignment and plea XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (c) At trial XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (d) At sentencing XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (e) On appeal XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (f) In any post-conviction proceeding XXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (g) On appeal from any adverse ruling in a postconviction proceeding XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes No 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (b) And give date and length of sentence to be served in the future: XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No Wherefore, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding. XXXXXXXXXXXXXXXXX Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Petitioner IN FORMA PAUPERIS DECLARATION XXXXXXXXXXXXXXXXXXXXXXXXXX (Insert appropriate court) XXXXXXXXXXXXXX DECLARATION IN (Petitioner) SUPPORT OF REQUEST v. TO PROCEED XXXXXXXXXXXXXX IN FORMA (Respondent(s)) PAUPERIS I, XXXXXXXXXXXXXX, declare that I am the petitioner in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief. 1. Are you presently employed? Yes No a. If the answer is 'yes,' state the amount of your salary or wages per month, and give the name and address of your employer. XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX b. If the answer is 'no,' state the date of last employment and the amount of the salary and wages per month which you received. XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX 2. Have you received within the past twelve months any money from any of the following sources? a. Business, profession or form of self-employment? Yes No b. Rent payments, interest or dividends? Yes No c. Pensions, annuities or life insurance payments? Yes No d. Gifts or inheritances? Yes No e. Any other sources? Yes No If the answer to any of the above is 'yes,' describe each source of money and state the amount received from each during the past twelve months. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 3. Do you own cash, or do you have money in a checking or savings account? Yes No (Include any funds in prison accounts.) If the answer is 'yes,' state the total value of the items owned. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Yes No If the answer is 'yes,' describe the property and state its approximate value. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Petitioner CERTIFICATE I hereby certify that the petitioner herein has the sum of $XXXX on account to his credit at the XXXX institution where he is confined. I further certify that petitioner likewise has the following securities to his credit according to the records of said XXXX institution: XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX Authorized Officer of Institution (As amended Apr. 28, 1982, eff. Aug. 1, 1982.) MODEL FORM FOR USE IN 28 U.S.C. SEC. 2254 CASES INVOLVING A RULE 9 ISSUE FORM NO. 9 UNITED STATES DISTRICT COURT, XXXXXXXXXX DISTRICT OF XXXXXXXXXX CASE NO. - - - - XXXXXXXXXX, PETITIONER V. XXXXXXXXXX, RESPONDENT AND XXXXXX, ADDITIONAL RESPONDENT PETITIONER'S RESPONSE AS TO WHY HIS PETITION SHOULD NOT BE BARRED UNDER RULE 9 EXPLANATION AND INSTRUCTIONS - READ CAREFULLY (I) Rule 9. Delayed or successive petitions. (a) Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred. (b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. (II) Your petition for habeas corpus has been found to be subject to dismissal under rule 9( ) for the following reason(s): XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX (III) This form has been sent so that you may explain why your petition contains the defect(s) noted in (II) above. It is required that you fill out this form and send it back to the court within XXXX days. Failure to do so will result in the automatic dismissal of your petition. (IV) When you have fully completed this form, the original and two copies must be mailed to the Clerk of the United States District Court whose address is XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX (V) This response must be legibly handwritten or typewritten, and signed by the petitioner, under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. (VI) Additional pages are not permitted except with respect to the facts which you rely upon in item 4 or 5 in the response. Any citation of authorities should be kept to an absolute minimum and is only appropriate if there has been a change in the law since the judgment you are attacking was rendered. (VII) Respond to 4 or 5 below, not to both, unless (II) above indicates that you must answer both sections. RESPONSE 1. Have you had the assistance of an attorney, other law-trained personnel, or writ writers since the conviction your petition is attacking was entered? Yes No 2. If you checked 'yes' above, specify as precisely as you can the period(s) of time during which you received such assistance, up to and including the present. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 3. Describe the nature of the assistance, including the names of those who rendered it to you. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 4. If your petition is in jeopardy because of delay prejudicial to the state under rule 9(a), explain why you feel the delay has not been prejudicial and/or why the delay is excusable under the terms of 9(a). This should be done by relying upon FACTS, not your opinions or conclusions. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. If your petition is in jeopardy under rule 9(b) because it asserts the same grounds as a previous petition, explain why you feel it deserves a reconsideration. If its fault under rule 9(b) is that it asserts new grounds which should have been included in a prior petition, explain why you are raising these grounds now rather than previously. Your explanation should rely on FACTS, not your opinions or conclusions. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Petitioner (As amended Apr. 28, 1982, eff. Aug. 1, 1982.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 21 section 848. ------DocID 36808 Document 670 of 1452------ -CITE- 28 USC Sec. 2255 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- Sec. 2255. Federal custody; remedies on motion attacking sentence -STATUTE- A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec. 114, 63 Stat. 105.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. It has the approval of the Judicial Conference of the United States. Its principal provisions are incorporated in H.R. 4233, Seventy-ninth Congress. 1949 ACT This amendment conforms language of section 2255 of title 28, U.S.C., with that of section 1651 of such title and makes it clear that the section is applicable in the district courts in the Territories and possessions. AMENDMENTS 1949 - Act May 24, 1949, substituted 'court established by Act of Congress' for 'court of the United States' in first par. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 753, 1825 of this title; title 18 section 3006A. -MISC8- APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided: 'That the rules governing section 2254 cases in the United States district courts and the rules governing section 2255 proceedings for the United States district courts, as proposed by the United States Supreme Court, which were delayed by the Act entitled 'An Act to delay the effective date of certain proposed amendments to the Federal Rules of Criminal Procedure and certain other rules promulgated by the United States Supreme Court' (Public Law 94-349), are approved with the amendments set forth in section 2 of this Act and shall take effect as so amended, with respect to petitions under section 2254 and motions under section 2255 of title 28 of the United States Code filed on or after February 1, 1977.' POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES AND FORMS GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE Rules and forms governing proceedings under sections 2254 and 2255 of this title proposed by Supreme Court order of Apr. 26, 1976, effective 30 days after adjournment sine die of 94th Congress, or until and to the extent approved by Act of Congress, whichever is earlier, see section 2 of Pub. L. 94-349, set out as a note under section 2074 of this title. RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS (EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 2, 1991) Rule 1. Scope of rules. 2. Motion. 3. Filing motion. 4. Preliminary consideration by judge. 5. Answers; contents. 6. Discovery. 7. Expansion of record. 8. Evidentiary hearing. 9. Delayed or successive motions. 10. Powers of magistrates. 11. Time for appeal. 12. Federal Rules of Criminal and Civil Procedure; extent of applicability. APPENDIX OF FORMS Model form for motions under 28 U.S.C. Sec. 2255. Model form for use in 28 U.S.C. Sec. 2255 cases involving a Rule 9 issue. EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT Rules, and the amendments thereto by Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with respect to petitions under section 2254 of this title and motions under section 2255 of this title filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-426, set out as a note above. RULE 1. SCOPE OF RULES These rules govern the procedure in the district court on a motion under 28 U.S.C. Sec. 2255: (1) by a person in custody pursuant to a judgment of that court for a determination that the judgment was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such judgment, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack; and (2) by a person in custody pursuant to a judgment of a state or other federal court and subject to future custody under a judgment of the district court for a determination that such future custody will be in violation of the Constitution or laws of the United States, or that the district court was without jurisdiction to impose such judgment, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. ADVISORY COMMITTEE NOTE The basic scope of this postconviction remedy is prescribed by 28 U.S.C. Sec. 2255. Under these rules the person seeking relief from federal custody files a motion to vacate, set aside, or correct sentence, rather than a petition for habeas corpus. This is consistent with the terminology used in section 2255 and indicates the difference between this remedy and federal habeas for a state prisoner. Also, habeas corpus is available to the person in federal custody if his 'remedy by motion is inadequate or ineffective to test the legality of his detention.' Whereas sections 2241-2254 (dealing with federal habeas corpus for those in state custody) speak of the district court judge 'issuing the writ' as the operative remedy, section 2255 provides that, if the judge finds the movant's assertions to be meritorious, he 'shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.' This is possible because a motion under Sec. 2255 is a further step in the movant's criminal case and not a separate civil action, as appears from the legislative history of section 2 of S. 20, 80th Congress, the provisions of which were incorporated by the same Congress in title 28 U.S.C. as Sec. 2255. In reporting S. 20 favorably the Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d Sess., p. 2): The two main advantages of such motion remedy over the present habeas corpus are as follows: First, habeas corpus is a separate civil action and not a further step in the criminal case in which petitioner is sentenced (Ex parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a determination of guilt or innocence of the charge upon which petitioner was sentenced. Where a prisoner sustains his right to discharge in habeas corpus, it is usually because some right - such as lack of counsel - has been denied which reflects no determination of his guilt or innocence but affects solely the fairness of his earlier criminal trial. Even under the broad power in the statute 'to dispose of the party as law and justice require' (28 U.S.C.A., sec. 461), the court or judge is by no means in the same advantageous position in habeas corpus to do justice as would be so if the matter were determined in the criminal proceeding (see Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the judge (by habeas corpus) cannot grant a new trial in the criminal case. Since the motion remedy is in the criminal proceeding, this section 2 affords the opportunity and expressly gives the broad powers to set aside the judgment and to 'discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.' The fact that a motion under Sec. 2255 is a further step in the movant's criminal case rather than a separate civil action has significance at several points in these rules. See, e.g., advisory committee note to rule 3 (re no filing fee), advisory committee note to rule 4 (re availability of files, etc., relating to the judgment), advisory committee note to rule 6 (re availability of discovery under criminal procedure rules), advisory committee note to rule 11 (re no extension of time for appeal), and advisory committee not to rule 12 (re applicability of federal criminal rules). However, the fact that Congress has characterized the motion as a further step in the criminal proceedings does not mean that proceedings upon such a motion are of necessity governed by the legal principles which are applicable at a criminal trial regarding such matters as counsel, presence, confrontation, self-incrimination, and burden of proof. The challenge of decisions such as the revocation of probation or parole are not appropriately dealt with under 28 U.S.C. Sec. 2255, which is a continuation of the original criminal action. Other remedies, such as habeas corpus, are available in such situations. Although rule 1 indicates that these rules apply to a motion for a determination that the judgment was imposed 'in violation of the . . . laws of the United States,' the language of 28 U.S.C. Sec. 2255, it is not the intent of these rules to define or limit what is encompassed within that phrase. See Davis v. United States, 417 U.S. 333 (1974), holding that it is not true 'that every asserted error of law can be raised on a Sec. 2255 motion,' and that the appropriate inquiry is 'whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice,' and whether (i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' ' For a discussion of the 'custody' requirement and the intended limited scope of this remedy, see advisory committee note to Sec. 2254 rule 1. RULE 2. MOTION (a) Nature of application for relief. If the person is presently in custody pursuant to the federal judgment in question, or if not presently in custody may be subject to such custody in the future pursuant to such judgment, the application for relief shall be in the form of a motion to vacate, set aside, or correct the sentence. (b) Form of motion. The motion shall be in substantially the form annexed to these rules, except that any district court may by local rule require that motions filed with it shall be in a form prescribed by the local rule. Blank motions in the prescribed form shall be made available without charge by the clerk of the district court to applicants upon their request. It shall specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified. It shall also state the relief requested. The motion shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner. (c) Motion to be directed to one judgment only. A motion shall be limited to the assertion of a claim for relief against one judgment only of the district court. If a movant desires to attack the validity of other judgments of that or any other district court under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate motions. (d) Return of insufficient motion. If a motion received by the clerk of a district court does not substantially comply with the requirements of rule 2 or rule 3, it may be returned to the movant, if a judge of the court so directs, together with a statement of the reason for its return. The clerk shall retain a copy of the motion. (As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90 Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.) ADVISORY COMMITTEE NOTE Under these rules the application for relief is in the form of a motion rather than a petition (see rule 1 and advisory committee note). Therefore, there is no requirement that the movant name a respondent. This is consistent with 28 U.S.C. Sec. 2255. The United States Attorney for the district in which the judgment under attack was entered is the proper party to oppose the motion since the federal government is the movant's adversary of record. If the movant is attacking a federal judgment which will subject him to future custody, he must be in present custody (see rule 1 and advisory committee note) as the result of a state or federal governmental action. He need not alter the nature of the motion by trying to include the government officer who presently has official custody of him as a psuedo-respondent, or third-party plaintiff, or other fabrication. The court hearing his motion attacking the future custody can exercise jurisdiction over those having him in present custody without the use of artificial pleading devices. There is presently a split among the courts as to whether a person currently in state custody may use a Sec. 2255 motion to obtain relief from a federal judgment under which he will be subjected to custody in the future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968); and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules settle the matter in favor of the prisoner's being able to file a Sec. 2255 motion for relief under those circumstances. The proper district in which to file such a motion is the one in which is situated the court which rendered the sentence under attack. Under rule 35, Federal Rules of Criminal Procedure, the court may correct an illegal sentence or a sentence imposed in an illegal manner, or may reduce the sentence. This remedy should be used, rather than a motion under these Sec. 2255 rules, whenever applicable, but there is some overlap between the two proceedings which has caused the courts difficulty. The movant should not be barred from an appropriate remedy because he has misstyled his motion. See United States v. Morgan, 346 U.S. 502, 505 (1954). The court should construe it as whichever one is proper under the circumstances and decide it on its merits. For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v. United States, 358 U.S. 415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970). One area of difference between Sec. 2255 and rule 35 motions is that for the latter there is no requirement that the movant be 'in custody.' Heflin v. United States, 358 U.S. 415, 418, 422 (1959); Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare with rule 1 and advisory committee note for Sec. 2255 motions. The importance of this distinction has decreased since Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a difference in particular situations. A rule 35 motion is used to attack the sentence imposed, not the basis for the sentence. The court in Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964), stated, 'a Rule 35 motion presupposes a valid conviction. * * * (C)ollateral attack on errors alledgedly committed at trial is not permissible under Rule 35.' By illustration the court noted at page 917: 'a Rule 35 proceeding contemplates the correction of a sentence of a court having jurisdiction. * * * (J)urisdictional defects * * * involve a collateral attack, they must ordinarily be presented under 28 U.S.C. Sec. 2255.' In United States v. Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255 to invalidate the sentence he was serving on the grounds of his failure to understand the charge to which he pleaded guilty. The court said: As regards Defendant's Motion under Rule 35, said Motion must be denied as its presupposes a valid conviction of the offense with which he was charged and may be used only to attack the sentence. It may not be used to examine errors occurring prior to the imposition of sentence. 295 F.SUPP. AT 1085 See also: Moss v. United States, 263 F.2d at 616; Duggins v. United States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513, 514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894; United States v. Coke, 404 F.2d at 847; and United States v. Brown, 413 F.2d at 879. A major difficulty in deciding whether rule 35 or Sec. 2255 is the proper remedy is the uncertainty as to what is meant by an 'illegal sentence.' The Supreme Court dealt with this issue in Hill v. United States, 368 U.S. 424 (1962). The prisoner brought a Sec. 2255 motion to vacate sentence on the ground that he had not been given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his own behalf at the time of sentencing. The majority held this was not an error subject to collateral attack under Sec. 2255. The five-member majority considered the motion as one brought pursuant to rule 35, but denied relief, stating: (T)he narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect. 368 U.S. AT 430 The four dissenters felt the majority definition of 'illegal' was too narrow. (Rule 35) provides for the correction of an 'illegal sentence' without regard to the reasons why that sentence is illegal and contains not a single word to support the Court's conclusion that only a sentence illegal by reason of the punishment it imposes is 'illegal' within the meaning of the Rule. I would have thought that a sentence imposed in an illegal manner - whether the amount or form of the punishment meted out constitutes an additional violation of law or not - would be recognized as an 'illegal sentence' under any normal reading of the English language. 368 U.S. AT 431-432 The 1966 amendment of rule 35 added language permitting correction of a sentence imposed in an 'illegal manner.' However, there is a 120-day time limit on a motion to do this, and the added language does not clarify the intent of the rule or its relation to Sec. 2255. The courts have been flexible in considering motions under circumstances in which relief might appear to be precluded by Hill v. United States. In Peterson v. United States, 432 F.2d 545 (8th Cir. 1970), the court was confronted with a motion for reduction of sentence by a prisoner claiming to have received a harsher sentence than his codefendants because he stood trial rather than plead guilty. He alleged that this violated his constitutional right to a jury trial. The court ruled that, even though it was past the 120-day time period for a motion to reduce sentence, the claim was still cognizable under rule 35 as a motion to correct an illegal sentence. The courts have made even greater use of Sec. 2255 in these types of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the prisoner moved under Sec. 2255 and rule 35 for relief from a sentence he claimed was the result of the judge's misunderstanding of the relevant sentencing law. The court held that he could not get relief under rule 35 because it was past the 120 days for correction of a sentence imposed in an illegal manner and under Hill v. United States it was not an illegal sentence. However, Sec. 2255 was applicable because of its 'otherwise subject to collateral attack' language. The flaw was not a mere trial error relating to the finding of guilt, but a rare and unusual error which amounted to 'exceptional circumstances' embraced in Sec. 2255's words 'collateral attack.' See 368 U.S. at 444 for discussion of other cases allowing use of Sec. 2255 to attack the sentence itself in similar circumstances, especially where the judge has sentenced out of a misapprehension of the law. In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the court allowed a prisoner who was past the time limit for a proper rule 35 motion to use Sec. 2255 to attack the sentence which he received upon a plea of guilty on the ground that it was induced by an unfulfilled promise of the prosecutor to recommend leniency. The court specifically noted that under Sec. 2255 this was a proper collateral attack on the sentence and there was no need to attack the conviction as well. The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d Cir. 1970), allowed a prisoner to challenge his sentence under Sec. 2255 without attacking the conviction. It held rule 35 inapplicable because the sentence was not illegal on its face, but the manner in which the sentence was imposed raised a question of the denial of due process in the sentencing itself which was cognizable under Sec. 2255. The flexible approach taken by the courts in the above cases seems to be the reasonable way to handle these situations in which rule 35 and Sec. 2255 appear to overlap. For a further discussion of this problem, see C. Wright, Federal Practice and Procedure; Criminal Sec. 581-587 (1969, Supp. 1975). See the advisory committee note to rule 2 of the Sec. 2254 rules for further discussion of the purposes and intent of rule 2 of these Sec. 2255 rules. 1982 AMENDMENT Subdivision (b). The amendment takes into account 28 U.S.C. Sec. 1746, enacted after adoption of the Sec. 2255 rules. Section 1746 provides that in lieu of an affidavit an unsworn statement may be given under penalty of perjury in substantially the following form if executed within the United States, its territories, possessions or commonwealths: 'I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).' The statute is 'intended to encompass prisoner litigation,' and the statutory alternative is especially appropriate in such cases because a notary might not be readily available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec. 2255 forms have been revised accordingly. AMENDMENTS 1976 - Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted 'substantially' after 'The motion shall be in', and struck out requirement that the motion follow the prescribed form. Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted 'substantially' after 'district court does not', and struck out provision which permitted the clerk to return a motion for noncompliance without a judge so directing. RULE 3. FILING MOTION (a) Place of filing; copies. A motion under these rules shall be filed in the office of the clerk of the district court. It shall be accompanied by two conformed copies thereof. (b) Filing and service. Upon receipt of the motion and having ascertained that it appears on its face to comply with rules 2 and 3, the clerk of the district court shall file the motion and enter it on the docket in his office in the criminal action in which was entered the judgment to which it is directed. He shall thereupon deliver or serve a copy of the motion together with a notice of its filing on the United States Attorney of the district in which the judgment under attack was entered. The filing of the motion shall not require said United States Attorney to answer the motion or otherwise move with respect to it unless so ordered by the court. ADVISORY COMMITTEE NOTE There is no filing fee required of a movant under these rules. This is a change from the practice of charging $15 and is done to recognize specifically the nature of a Sec. 2255 motion as being a continuation of the criminal case whose judgment is under attack. The long-standing practice of requiring a $15 filing fee has followed from 28 U.S.C. Sec. 1914(a) whereby 'parties instituting any civil action * * * pay a filing fee of $15, except that on an application for a writ of habeas corpus the filing fee shall be $5.' This has been held to apply to a proceeding under Sec. 2255 despite the rationale that such a proceeding is a motion and thus a continuation of the criminal action. (See note to rule 1.) A motion under Section 2255 is a civil action and the clerk has no choice but to charge a $15.00 filing fee unless by leave of court it is filed in forma pauperis. McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969). Although the motion has been considered to be a new civil action in the nature of habeas corpus for filing purposes, the reduced fee for habeas has been held not applicable. The Tenth Circuit considered the specific issue in Martin v. United States, 273 F.2d 775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee was exclusive to habeas petitions. Counsel for Martin insists that, if a docket fee must be paid, the amount is $5 rather than $15 and bases his contention on the exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus the fee is $5. This reads into Sec. 1914 language which is not there. While an application under Sec. 2255 may afford the same relief as that previously obtainable by habeas corpus, it is not a petition for a writ of habeas corpus. A change in Sec. 1914 must come from Congress. 273 F.2D AT 778 Although for most situations Sec. 2255 is intended to provide to the federal prisoner a remedy equivalent to habeas corpus as used by state prisoners, there is a major distinction between the two. Calling a Sec. 2255 request for relief a motion rather than a petition militates toward charging no new filing fee, not an increased one. In the absence of convincing evidence to the contrary, there is no reason to suppose that Congress did not mean what it said in making a Sec. 2255 action a motion. Therefore, as in other motions filed in a criminal action, there is no requirement of a filing fee. It is appropriate that the present situation of docketing a Sec. 2255 motion as a new action and charging a $15 filing fee be remedied by the rule when the whole question of Sec. 2255 motions is thoroughly thought through and organized. Even though there is no need to have a forma pauperis affidavit to proceed with the action since there is no requirement of a fee for filing the motion the affidavit remains attached to the form to be supplied potential movants. Most such movants are indigent, and this is a convenient way of getting this into the official record so that the judge may appoint counsel, order the government to pay witness fees, allow docketing of an appeal, and grant any other rights to which an indigent is entitled in the course of a Sec. 2255 motion, when appropriate to the particular situation, without the need for an indigency petition and adjudication at such later point in the proceeding. This should result in a streamlining of the process to allow quicker disposition of these motions. For further discussion of this rule, see the advisory committee note to rule 3 of the Sec. 2254 rules. RULE 4. PRELIMINARY CONSIDERATION BY JUDGE (a) Reference to judge; dismissal or order to answer. The original motion shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district in accordance with the procedure of the court for the assignment of its business. (b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. ADVISORY COMMITTEE NOTE Rule 4 outlines the procedure for assigning the motion to a specific judge of the district court and the options available to the judge and the government after the motion is properly filed. The long-standing majority practice in assigning motions made pursuant to Sec. 2255 has been for the trial judge to determine the merits of the motion. In cases where the Sec. 2255 motion is directed against the sentence, the merits have traditionally been decided by the judge who imposed sentence. The reasoning for this was first noted in Currell v. United States, 173 F.2d 348, 348-349 (4th Cir. 1949): Complaint is made that the judge who tried the case passed upon the motion. Not only was there no impropriety in this, but it is highly desirable in such cases that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred. This case, and its reasoning, has been almost unanimously endorsed by other courts dealing with the issue. Commentators have been critical of having the motion decided by the trial judge. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970). (T)he trial judge may have become so involved with the decision that it will be difficult for him to review it objectively. Nothing in the legislative history suggests that 'court' refers to a specific judge, and the procedural advantages of section 2255 are available whether or not the trial judge presides at the hearing. The theory that Congress intended the trial judge to preside at a section 2255 hearing apparently originated in Carvell v. United States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel of judges included Chief Judge Parker of the Fourth Circuit, chairman of the Judicial Conference committee which drafted section 2255. But the legislative history does not indicate that Congress wanted the trial judge to preside. Indeed the advantages of section 2255 can all be achieved if the case is heard in the sentencing district, regardless of which judge hears it. According to the Senate committee report the purpose of the bill was to make the proceeding a part of the criminal action so the court could resentence the applicant, or grant him a new trial. (A judge presiding over a habeas corpus action does not have these powers.) In addition, Congress did not want the cases heard in the district of confinement because that tended to concentrate the burden on a few districts, and made it difficult for witnesses and records to be produced. 83 HARV.L.REV. AT 1207-1208 The Court of Appeals for the First Circuit has held that a judge other than the trial judge should rule on the 2255 motion. See Halliday v. United States, 380 F.2d 270 (1st Cir. 1967). There is a procedure by which the movant can have a judge other than the trial judge decide his motion in courts adhering to the majority rule. He can file an affidavit alleging bias in order to disqualify the trial judge. And there are circumstances in which the trial judge will, on his own, disqualify himself. See, e.g., Webster v. United States, 330 F.Supp. 1080 (1972). However, there has been some questioning of the effectiveness of this procedure. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1200-1207 (1970). Subdivision (a) adopts the majority rule and provides that the trial judge, or sentencing judge if different and appropriate for the particular motion, will decide the motion made pursuant to these rules, recognizing that, under some circumstances, he may want to disqualify himself. A movant is not without remedy if he feels this is unfair to him. He can file an affidavit of bias. And there is the right to appellate review if the trial judge refuses to grant his motion. Because the trial judge is thoroughly familiar with the case, there is obvious administrative advantage in giving him the first opportunity to decide whether there are grounds for granting the motion. Since the motion is part of the criminal action in which was entered the judgment to which it is directed, the files, records, transcripts, and correspondence relating to that judgment are automatically available to the judge in his consideration of the motion. He no longer need order them incorporated for that purpose. Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec. 2243 in the corresponding habeas corpus rule) which does not have a specific time limitation as to when the answer must be made. Also, under Sec. 2255, the United States Attorney for the district is the party served with the notice and a copy of the motion and required to answer (when appropriate). Subdivision (b) continues this practice since there is no respondent involved in the motion (unlike habeas) and the United States Attorney, as prosecutor in the case in question, is the most appropriate one to defend the judgment and oppose the motion. The judge has discretion to require an answer or other appropriate response from the United States Attorney. See advisory committee note to rule 4 of the Sec. 2254 rules. RULE 5. ANSWER; CONTENTS (a) Contents of answer. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available federal remedies including any prior post-conviction motions under these rules or those existing previous to the adoption of the present rules. The answer shall also state whether an evidentiary hearing was accorded the movant in a federal court. (b) Supplementing the answer. The court shall examine its files and records to determine whether it has available copies of transcripts and briefs whose existence the answer has indicated. If any of these items should be absent, the government shall be ordered to supplement its answer by filing the needed records. The court shall allow the government an appropriate period of time in which to do so, without unduly delaying the consideration of the motion. ADVISORY COMMITTEE NOTE Unlike the habeas corpus statutes (see 28 U.S.C. Sec. 2243, 2248) Sec. 2255 does not specifically call for a return or answer by the United States Attorney or set any time limits as to when one must be submitted. The general practice, however, if the motion is not summarily dismissed, is for the government to file an answer to the motion as well as counter-affidavits, when appropriate. Rule 4 provides for an answer to the motion by the United States Attorney, and rule 5 indicates what its contents should be. There is no requirement that the movant exhaust his remedies prior to seeking relief under Sec. 2255. However, the courts have held that such a motion is inappropriate if the movant is simultaneously appealing the decision. We are of the view that there is no jurisdictional bar to the District Court's entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances. WOMACK V. UNITED STATES, 395 F.2D 630, 631 (D.C.CIR. 1968) Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer may thus cut short consideration of the motion if it discloses the taking of an appeal which was omitted from the form motion filed by the movant. There is nothing in Sec. 2255 which corresponds to the Sec. 2248 requirement of a traverse to the answer. Numerous cases have held that the government's answer and affidavits are not conclusive against the movant, and if they raise disputed issues of fact a hearing must be held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d Cir. 1966). None of these cases make any mention of a traverse by the movant to the government's answer. As under rule 5 of the Sec. 2254 rules, there is no intention here that such a traverse be required, except under special circumstances. See advisory committee note to rule 9. Subdivision (b) provides for the government to supplement its answers with appropriate copies of transcripts or briefs if for some reason the judge does not already have them under his control. This is because the government will in all probability have easier access to such papers than the movant, and it will conserve the court's time to have the government produce them rather than the movant, who would in most instances have to apply in forma pauperis for the government to supply them for him anyway. For further discussion, see the advisory committee note to rule 5 of the Sec. 2254 rules. RULE 6. DISCOVERY (a) Leave of court required. A party may invoke the processes of discovery available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a movant who qualifies for appointment of counsel under 18 U.S.C. Sec. 3006A(g). (b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced. (c) Expenses. If the government is granted leave to take the deposition of the movant or any other person, the judge may as a condition of taking it direct that the government pay the expenses of travel and subsistence and fees of counsel for the movant to attend the taking of the deposition. ADVISORY COMMITTEE NOTE This rule differs from the corresponding discovery rule under the Sec. 2254 rules in that it includes the processes of discovery available under the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a Sec. 2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners. See the advisory committee note to rule 6 of the Sec. 2254 rules. The discussion there is fully applicable to discovery under these rules for Sec. 2255 motions. RULE 7. EXPANSION OF RECORD (a) Direction for expansion. If the motion is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the motion. (b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the motion in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record. (c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness. (d) Authentication. The court may require the authentication of any material under subdivision (b) or (c). ADVISORY COMMITTEE NOTE It is less likely that the court will feel the need to expand the record in a Sec. 2255 proceeding than in a habeas corpus proceeding, because the trial (or sentencing) judge is the one hearing the motion (see rule 4) and should already have a complete file on the case in his possession. However, rule 7 provides a convenient method for supplementing his file if the case warrants it. See the advisory committee note to rule 7 of the Sec. 2254 rules for a full discussion of reasons and procedures for expanding the record. RULE 8. EVIDENTIARY HEARING (a) Determination by court. If the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates. (b) Function of the magistrate. (1) When designated to do so in accordance with 28 U.S.C. Sec. 636(b), a magistrate may conduct hearings, including evidentiary hearings, on the motion, and submit to a judge of the court proposed findings and recommendations for disposition. (2) The magistrate shall file proposed findings and recommendations with the court and a copy shall forthwith be mailed to all parties. (3) Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. (4) A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate. (c) Appointment of counsel; time for hearing. If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation. These rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the proceeding if the interest of justice so requires. (As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat. 1335; Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat. 2730, 2731.) ADVISORY COMMITTEE NOTE The standards for Sec. 2255 hearings are essentially the same as for evidentiary hearings under a habeas petition, except that the previous federal fact-finding proceeding is in issue rather than the state's. Also Sec. 2255 does not set specific time limits for holding the hearing, as does Sec. 2243 for a habeas action. With these minor differences in mind, see the advisory committee note to rule 8 of Sec. 2254 rules, which is applicable to rule 8 of these Sec. 2255 rules. AMENDMENTS 1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), substituted provisions which authorized magistrates, when designated to do so in accordance with section 636(b) of this title, to conduct hearings, including evidentiary hearings, on the petition and to submit to a judge of the court proposed findings of fact and recommendations for disposition, which directed the magistrate to file proposed findings and recommendations with the court with copies furnished to all parties, which allowed parties thus served 10 days to file written objections thereto, and which directed a judge of the court to make de novo determinations of the objected-to portions and to accept, reject, or modify the findings or recommendations for provisions under which the magistrate had been empowered only to recommend to the district judge that an evidentiary hearing be held or that the petition be dismissed. Subd. (c). Pub. L. 94-577, Sec. 2(b)(2), substituted 'and the hearing shall be conducted' for 'and shall conduct the hearing.' Pub. L. 94-426 provided that these rules not limit the appointment of counsel under section 3006A of title 18, if the interest of justice so require. EFFECTIVE DATE OF 1976 AMENDMENT Amendments made by Pub. L. 94-577 effective with respect to motions under section 2255 of this title filed on or after Feb. 1, 1977, see section 2(c) of Pub. L. 94-577, set out as a note under Rule 8 of the Rules Governing Cases Under Section 2254 of this title. RULE 9. DELAYED OR SUCCESSIVE MOTIONS (a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred. (b) Successive motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. (As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90 Stat. 1335.) ADVISORY COMMITTEE NOTE Unlike the statutory provisions on habeas corpus (28 U.S.C. Sec. 2241-2254), Sec. 2255 specifically provides that 'a motion for such relief may be made at any time.' (Emphasis added.) Subdivision (a) provides that delayed motions may be barred from consideration if the government has been prejudiced in its ability to respond to the motion by the delay and the movant's failure to seek relief earlier is not excusable within the terms of the rule. Case law, dealing with this issue, is in conflict. Some courts have held that the literal language of Sec. 2255 precludes any possible time bar to a motion brought under it. In Heflin v. United States, 358 U.S. 415 (1959), the concurring opinion noted: The statute (28 U.S.C. Sec. 2255) further provides; 'A motion * * * may be made at any time.' This * * * simply means that, as in habeas corpus, there is no statute of limitations, no res judicata, and that the doctrine of laches is inapplicable. 358 U.S. AT 420 McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the district court's dismissal of a Sec. 2255 motion for being too late, the court stating: McKinney's present application for relief comes late in the day: he has served some fifteen years in prison. But tardiness is irrelevant where a constitutional issue is raised and where the prisoner is still confined. 208 F.2D AT 846, 847 In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir. 1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car. 1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y. 1970). It has also been held that delay in filing a Sec. 2255 motion does not bar the movant because of lack of reasonable diligence in pressing the claim. The statute (28 U.S.C. Sec. 2255), when it states that the motion may be made at any time, excludes the addition of a showing of diligence in delayed filings. A number of courts have considered contentions similar to those made here and have concluded that there are no time limitations. This result excludes the requirement of diligence which is in reality a time limitation. HAIER V. UNITED STATES, 334 F.2D 441, 442 (10TH CIR. 1964) Other courts have recognized that delay may have a negative effect on the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970), the court stated: (B)oth petitioners' silence for extended periods, one for 28 months and the other for nine years, serves to render their allegations less believable. 'Although a delay in filing a section 2255 motion is not a controlling element * * * it may merit some consideration * * *.' 423 F.2D AT 531 In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961), aff'd 296 F.2d 604 (4th Cir. 1961), the court said: 'While motions under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of time affects the good faith and credibility of the moving party.' For similar conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United States, 299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863 (1962); Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971); and United States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960). There have been holdings by some courts that a delay in filing a Sec. 2255 motion operates to increase the burden of proof which the movant must meet to obtain relief. The reasons for this, as expressed in United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable in nature. Obviously, the burden of proof on a motion to vacate a sentence under 28 U.S.C. Sec. 2255 is on the moving party. . . . The burden is particularly heavy if the issue is one of fact and a long time has elapsed since the trial of the case. While neither the statute of limitations nor laches can bar the assertion of a constitutional right, nevertheless, the passage of time may make it impracticable to retry a case if the motion is granted and a new trial is ordered. No doubt, at times such a motion is a product of an afterthought. Long delay may raise a question of good faith. 206 F.SUPP. AT 856-857 See also United States v. Wiggins, 184 F.Supp. at 676. A requirement that the movant display reasonable diligence in filing a Sec. 2255 motion has been adopted by some courts dealing with delayed motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir. 1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable reasons. (W)e agree with the District Court that the petitioner has too long slept upon his rights. * * * (A)pparently there is no limitation of time within which * * * a motion to vacate may be filed, except that an applicant must show reasonable diligence in presenting his claim. * * * The reasons which support the rule requiring diligence seem obvious. * * * Law enforcement officials change, witnesses die, memories grow dim. The prosecuting tribunal is put to a disadvantage if an unexpected retrial should be necessary after long passage of time. 166 F.2D AT 105 In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir. 1964), on remand, 345 F.2d 225 (1st Cir. 1965). One of the major arguments advanced by the courts which would penalize a movant who waits an unduly long time before filing a Sec. 2255 motion is that such delay is highly prejudicial to the prosecution. In Desmond v. United States, writing of a Sec. 2255 motion alleging denial of effective appeal because of deception by movant's own counsel, the court said: (A)pplications for relief such as this must be made promptly. It will not do for a prisoner to wait until government witnesses have become unavailable as by death, serious illness or absence from the country, or until the memory of available government witnesses has faded. It will not even do for a prisoner to wait any longer than is reasonably necessary to prepare appropriate moving papers, however inartistic, after discovery of the deception practiced upon him by his attorney. 333 F.2D AT 381 In a similar vein are United States v. Moore and United States v. Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676. Subdivision (a) provides a flexible, equitable time limitation based on laches to prevent movants from withholding their claims so as to prejudice the government both in meeting the allegations of the motion and in any possible retrial. It includes a reasonable dilligence requirement for ascertaining possible grounds for relief. If the delay is found to be excusable, or nonprejudicial to the government, the time bar is inoperative. Subdivision (b) is consistent with the language of Sec. 2255 and relevant case law. The annexed form is intended to serve the same purpose as the comparable one included in the Sec. 2254 rules. For further discussion applicable to this rule, see the advisory committee note to rule 9 of the Sec. 2254 rules. AMENDMENTS 1976 - Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision which established a rebuttable presumption of prejudice to government if the petition was filed more than five years after conviction. Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted 'constituted an abuse of the procedure governed by these rules' for 'is not excusable'. RULE 10. POWERS OF MAGISTRATES The duties imposed upon the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. Sec. 636. (As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat. 1335; Apr. 30, 1979, eff. Aug. 1, 1979.) ADVISORY COMMITTEE NOTE See the advisory committee note to rule 10 of the Sec. 2254 rules for a discussion fully applicable here as well. 1979 AMENDMENT This amendment conforms the rule to 18 U.S.C. Sec. 636. See Advisory Committee Note to rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts. AMENDMENTS 1976 - Pub. L. 94-426 inserted ', and to the extent the district court has established standards and criteria for the performance of such duties,' after 'rule of the district court'. CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. RULE 11. TIME FOR APPEAL The time for appeal from an order entered on a motion for relief made pursuant to these rules is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure. Nothing in these rules shall be construed as extending the time to appeal from the original judgment of conviction in the district court. (As amended Apr. 30, 1979, eff. Aug. 1, 1979.) ADVISORY COMMITTEE NOTE Rule 11 is intended to make clear that, although a Sec. 2255 action is a continuation of the criminal case, the bringing of a Sec. 2255 action does not extend the time. 1979 AMENDMENT Prior to the promulgation of the Rules Governing Section 2255 Proceedings, the courts consistently held that the time for appeal in a section 2255 case is as provided in Fed.R.App.P. 4(a), that is, 60 days when the government is a party, rather than as provided in appellate rule 4(b), which says that the time is 10 days in criminal cases. This result has often been explained on the ground that rule 4(a) has to do with civil cases and that 'proceedings under section 2255 are civil in nature.' E.g., Rothman v. United States, 508 F.2d 648 (3d Cir. 1975). Because the new section 2255 rules are based upon the premise 'that a motion under Sec. 2255 is a further step in the movant's criminal case rather than a separate civil action,' see Advisory Committee Note to rule 1, the question has arisen whether the new rules have the effect of shortening the time for appeal to that provided in appellate rule 4(b). A sentence has been added to rule 11 in order to make it clear that this is not the case. Even though section 2255 proceedings are a further step in the criminal case, the added sentence correctly states current law. In United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court noted that such appeals 'are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions.' In support, the Court cited Mercado v. United States, 183 F.2d 486 (1st Cir. 1950), a case rejecting the argument that because Sec. 2255 proceedings are criminal in nature the time for appeal is only 10 days. The Mercado court concluded that the situation was governed by that part of 28 U.S.C. Sec. 2255 which reads: 'An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.' Thus, because appellate rule 4(a) is applicable in habeas cases, it likewise governs in Sec. 2255 cases even though they are criminal in nature. RULE 12. FEDERAL RULES OF CRIMINAL AND CIVIL PROCEDURE; EXTENT OF APPLICABILITY If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules. ADVISORY COMMITTEE NOTE This rule differs from rule 11 of the Sec. 2254 rules in that it includes the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a Sec. 2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners. Since Sec. 2255 has been considered analogous to habeas as respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed. For discussion, see the advisory committee note to rule 11 of the Sec. 2254 rules. REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in text, are classified generally to the Appendix to Title 18, Crimes and Criminal Procedure. The Federal Rules of Civil Procedure, referred to in text, are classified generally to the Appendix to this title. APPENDIX OF FORMS MODEL FORM FOR MOTIONS UNDER 28 U.S.C. SEC. 2255 Name XXXXXXXXXXXXXXXXXXXXXXXXXX Prison Number XXXXXXXXXXXXXXXXXXXXX Place of Confinement XXXXXXXXXXXXXXXXX United States District Court XXX District of XXXX Case No. XXXX (to be supplied by Clerk of U.S. District Court) United States, V. XXXXXXXXXXXXXXXXXXXXXXXXXX (FULL NAME OF MOVANT) (If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.) MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (1) This motion must be legibly handwritten or typewritten, and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. (2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum. (3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion. (4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the declaration on the last page, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. (5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions either in the same district or in different districts, you must file separate motions as to each such judgment. (6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction. (7) When the motion is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court whose address isXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX (8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency. MOTION 1. Name and location of court which entered the judgment of conviction under attack XXXXXXX 2. Date of judgment of conviction XXXXXXXXXX 3. Length of sentence XXXXXXXXXXXXXXXXX 4. Nature of offense involved (all counts) XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 6. Kind of trial: (Check one) (a) Jury (b) Judge only 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court XXXXXXXXXXXXXXXX (b) Result XXXXXXXXXXXXXXXXXXXX (c) Date of result XXXXXXXXXXXXXXXXX 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications or motions with respect to this judgment in any federal court? Yes No 11. If your answer to 10 was 'yes,' give the following information: (a) (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result XXXXXXXXXXXXXXXXXX (6) Date of result XXXXXXXXXXXXXX (b) As to any second petition, application or motion give the same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result XXXXXXXXXXXXXXXXXX (6) Date of result XXXXXXXXXXXXXX (c) As to any third petition, application or motion, give the same information: (1) Name of court XXXXXXXXXXXXXX (2) Nature of proceeding XXXXXXXXXX (3) Grounds raised XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or motion? (1) First petition, etc. Yes No (2) Second petition, etc. Yes No (3) Third petition, etc. Yes No (e) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not: XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX 12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. Caution: If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date. For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you based your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The motion will be returned to you if you merely check (a) through (j) or any one of the grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impanelled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX B. Ground two: XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX C. Ground three: XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX D. Ground four: XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Supporting FACTS (tell your story briefly without citing cases or law): XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX 13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them: XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 14. Do you have any petition or appeal now pending in any court as to the judgment under attack? Yes No 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (b) At arraignment and plea XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (c) At trial XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (d) At sentencing XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (e) On appeal XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (f) In any post-conviction proceeding XXXXXX XXXXXXXXXXXXXXXXXXXXXXXX (g) On appeal from any adverse ruling in a post- conviction proceeding XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time? Yes No 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX (b) And give date and length of sentence to be served in the future: XXXXXXXXXXXXXXXXXXXXXXX (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No Wherefore, movant prays that the Court grant him all relief to which he may be entitled in this proceeding. XXXXXXXXXXXXXX Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Movant IN FORMA PAUPERIS DECLARATION XXXXXXXXXXXXXXXXXXXXXXXXXX (INSERT APPROPRIATE COURT) United States DECLARATION IN SUPPORT v. OF REQUEST XXXXXXXXXXXXXX TO PROCEED (Movant) IN FORMA PAUPERIS I, XXXXXXXXXXXXXX, declare that I am the movant in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty, I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief. 1. Are you presently employed? Yes No a. If the answer is 'yes,' state the amount of your salary or wages per month, and give the name and address of your employer. XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX b. If the answer is 'no,' state the date of last employment and the amount of the salary and wages per month which you received. XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX 2. Have you received within the past twelve months any money from any of the following sources? a. Business, profession or form of self-employment? Yes No b. Rent payments, interest or dividends? Yes No c. Pensions, annuities or life insurance payments? Yes No d. Gifts or inheritances? Yes No e. Any other sources? Yes No If the answer to any of the above is 'yes,' describe each source of money and state the amount received from each during the past twelve months. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 3. Do you own any cash, or do you have money in a checking or savings account? Yes No (Include any funds in prison accounts) If the answer is 'yes,' state the total value of the items owned. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 4. Do you own real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Yes No If the answer is 'yes,' describe the property and state its approximate value. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Movant CERTIFICATE I hereby certify that the movant herein has the sum of $XXXX on account to his credit at the XXXX institution where he is confined. I further certify that movant likewise has the following securities to his credit according to the records of said XXXX institution: XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX Authorized Officer of Institution (As amended Apr. 28, 1982, eff. Aug. 1, 1982.) MODEL FORM FOR USE IN 28 U.S.C. SEC. 2255 CASES INVOLVING A RULE 9 ISSUE FORM NO. 9 UNITED STATES DISTRICT COURT XXXXXXXXXX DISTRICT OF XXXXXXXXXX CASE NO. XXXX UNITED STATES V. XXXXXXXXXXXXXX (NAME OF MOVANT) MOVANT'S RESPONSE AS TO WHY HIS MOTION SHOULD NOT BE BARRED UNDER RULE 9 EXPLANATION AND INSTRUCTIONS - READ CAREFULLY (I) Rule 9. Delayed or Successive Motions. (a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred. (b) Successive motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. (II) Your motion to vacate, set aside, or correct sentence has been found to be subject to dismissal under rule 9( ) for the following reason(s): XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX (III) This form has been sent so that you may explain why your motion contains the defect(s) noted in (II) above. It is required that you fill out this form and send it back to the court within XXXX days. Failure to do so will result in the automatic dismissal of your motion. (IV) When you have fully completed this form, the original and two copies must be mailed to the Clerk of the United States District Court whose address is XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX (V) This response must be legibly handwritten or typewritten, and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. (VI) Additional pages are not permitted except with respect to the facts which you rely upon in item 4 or 5 in the response. Any citation of authorities should be kept to an absolute minimum and is only appropriate if there has been a change in the law since the judgment you are attacking was rendered. (VII) Respond to 4 or 5, not to both, unless (II) above indicates that you must answer both sections. RESPONSE 1. Have you had the assistance of an attorney, other law-trained personnel, or writ writers since the conviction your motion is attacking was entered? Yes No 2. If you checked 'Yes' above, specify as precisely as you can the period(s) of time during which you received such assistance, up to and including the present. XXXXXXXXXXXXXXXXXXXXXXXXXXX 3. Describe the nature of the assistance, including the names of those who rendered it to you. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 4. If your motion is in jeopardy because of delay prejudicial to the government under rule 9(a), explain why you feel the delay has not been prejudicial and/or why the delay is excusable under the terms of 9(a). This should be done by relying upon FACTS, not your opinions or conclusions. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX 5. If your motion is in jeopardy under rule 9(b) because it asserts the same grounds as a previous motion, explain why you feel it deserves a reconsideration. If its fault under rule 9(b) is that it asserts new grounds which should have been included in a prior motion, explain why you are raising these grounds now rather than previously. Your explanation should rely on FACTS, not your opinions or conclusions. XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on XXXXX. (date) XXXXXXXXXXXXXX Signature of Movant (As amended Apr. 28, 1982, eff. Aug. 1, 1982.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 21 section 848. ------DocID 36809 Document 671 of 1452------ -CITE- 28 USC Sec. 2256 -EXPCITE- TITLE 28 PART VI CHAPTER 153 -HEAD- (Sec. 2256. Omitted) -COD- CODIFICATION Section, added Pub. L. 95-598, title II, Sec. 250(a), Nov. 6, 1978, 92 Stat. 2672, did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Section read as follows: Sec. 2256. Habeas corpus from bankruptcy courts A bankruptcy court may issue a writ of habeas corpus - (1) when appropriate to bring a person before the court - (A) for examination; (B) to testify; or (C) to perform a duty imposed on such person under this title; or (2) ordering the release of a debtor in a case under title 11 in custody under the judgment of a Federal or State court if - (A) such debtor was arrested or imprisoned on process in any civil action; (B) such process was issued for the collection of a debt - (i) dischargeable under title 11; or (ii) that is or will be provided for in a plan under chapter 11 or 13 of title 11; and (C) before the issuance of such writ, notice and a hearing have been afforded the adverse party of such debtor in custody to contest the issuance of such writ. -MISC3- PRIOR PROVISIONS A prior section 2256, added Pub. L. 95-144, Sec. 3, Oct. 28, 1977, 91 Stat. 1220, which related to jurisdiction of proceedings relating to transferred offenders, was transferred to section 3244 of Title 18, Crimes and Criminal Procedure, by Pub. L. 95-598, title III, Sec. 314(j), Nov. 6, 1978, 92 Stat. 2677. ------DocID 36810 Document 672 of 1452------ -CITE- 28 USC CHAPTER 155 -EXPCITE- TITLE 28 PART VI CHAPTER 155 -HEAD- CHAPTER 155 - INJUNCTIONS; THREE-JUDGE COURTS -MISC1- Sec. (2281. Repealed.) (2282. Repealed.) 2283. Stay of State court proceedings. 2284. Three-judge district court; when required; composition; procedure. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. AMENDMENTS 1976 - Pub. L. 94-381, Sec. 4, Aug. 12, 1976, 90 Stat. 1119, struck out item 2281 'Injunction against enforcement of State statute; three-judge court required', item 2282 'Injunction against enforcement of Federal statute; three-judge court required', and inserted 'when required' after 'district court' in item 2284. ------DocID 36811 Document 673 of 1452------ -CITE- 28 USC Sec. 2281, 2282 -EXPCITE- TITLE 28 PART VI CHAPTER 155 -HEAD- (Sec. 2281, 2282. Repealed. Pub. L. 94-381, Sec. 1, 2, Aug. 12, 1976, 90 Stat. 1119) -MISC1- Section 2281, act June 25, 1948, ch. 646, 62 Stat. 968, provided that an interlocutory or permanent injunction restraining the enforcement, operation or execution of a State statute on grounds of unconstitutionality should not be granted unless the application has been heard and determined by a three-judge district court. Section 2282, act June 25, 1948, ch. 646, 62 Stat. 968, provided that an interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress on grounds of unconstitutionality should not be granted unless the application therefor has been heard and determined by a three-judge district court. EFFECTIVE DATE OF REPEAL Repeal not applicable to any action commenced on or before Aug. 12, 1976, see section 7 of Pub. L. 94-381 set out as an Effective Date of 1976 Amendment note under section 2284 of this title. ------DocID 36812 Document 674 of 1452------ -CITE- 28 USC Sec. 2283 -EXPCITE- TITLE 28 PART VI CHAPTER 155 -HEAD- Sec. 2283. Stay of State court proceedings -STATUTE- A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 968.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 379 (Mar. 3, 1911, ch. 231, Sec. 265, 36 Stat. 1162). An exception as to acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions. The phrase 'in aid of its jurisdiction' was added to conform to section 1651 of this title and to make clear the recognized power of the Federal courts to stay proceedings in State cases removed to the district courts. The exceptions specifically include the words 'to protect or 'effectuate its judgments,' for lack of which the Supreme Court held that the Federal courts are without power to enjoin relitigation of cases and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co., 62 S.Ct. 139, 314 U.S. 118, 86 L.Ed. 100. A vigorous dissenting opinion (62 S.Ct. 148) notes that at the time of the 1911 revision of the Judicial Code, the power of the courts, of the United States to protect their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change). Therefore the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision. Changes were made in phraseology. ------DocID 36813 Document 675 of 1452------ -CITE- 28 USC Sec. 2284 -EXPCITE- TITLE 28 PART VI CHAPTER 155 -HEAD- Sec. 2284. Three-judge court; when required; composition; procedure -STATUTE- (a) A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body. (b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and procedure of the court shall be as follows: (1) Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. The judges so designated, and the judge to whom the request was presented, shall serve as members of the court to hear and determine the action or proceeding. (2) If the action is against a State, or officer or agency thereof, at least five days' notice of hearing of the action shall be given by registered or certified mail to the Governor and attorney general of the State. (3) A single judge may conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as provided in this subsection. He may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damage will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction. A single judge shall not appoint a master, or order a reference, or hear and determine any application for a preliminary or permanent injunction or motion to vacate such an injunction, or enter judgment on the merits. Any action of a single judge may be reviewed by the full court at any time before final judgment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 968; June 11, 1960, Pub. L. 86-507, Sec. 1(19), 74 Stat. 201; Aug. 12, 1976, Pub. L. 94-381, Sec. 3, 90 Stat. 1119; Nov. 8, 1984, Pub. L. 98-620, title IV, Sec. 402(29)(E), 98 Stat. 3359.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 47, 47a, 380, 380a, and 792 (Mar. 3, 1911, ch. 231, Sec. 210, 266, 36 Stat. 1150, 1162; Mar. 4, 1943, ch. 160, 37 Stat. 1013; Oct. 22, 1913, ch. 32, 38 Stat. 220; Feb. 13, 1925, ch. 229, Sec. 1, 43 Stat. 938; Aug. 24, 1937, ch. 754, Sec. 3, 50 Stat. 752; Apr. 6, 1942, ch. 210, Sec. 3, 56 Stat. 199). Provisions of sections 47, 47a, 380, and 380a of title 28, U.S.C., 1940 ed., relating to the Supreme Court's jurisdiction of direct appeals appear in section 1253 of this title. Provisions of sections 47, 380, and 380a of title 28, U.S.C., 1940 ed., requiring applications for injunctions restraining the enforcement, operation or execution of Federal or State statutes or orders of the Interstate Commerce Commission to be heard and determined by three-judge district courts appear in sections 2281, 2282, and 2325 of this title. The provision for notice to the United States attorney for the district where the action is pending was added because of the necessity of the United States attorney's preparation for hearing as soon as possible, to expedite such a case. Provisions of sections 47, 47a, 380, and 380a of title 28, U.S.C., 1940 ed., respecting time for direct appeal appear in section 2101 of this title. This revised section represents an effort to provide a uniform method of convoking three-judge district courts, and for procedure therein. It follows recommendations of a committee appointed by the Judicial Conference of the United States, composed of Circuit Judges Evan A. Evans, Kimbrough Stone, Orie L. Phillips, and Albert B. Maris. The committee pointed out that section 380a of title 28, U.S.C., 1940 ed., is the latest and 'most carefully drawn expression by Congress on the subject.' Consequently, this section follows closely such section 380a and eliminates the discrepancies between sections 47, 47a, 380, and 380a of such title. This section governs only the composition and procedure of three-judge district courts. The requirement that applications for injunctions be heard and determined by such courts will appear in other sections of this and other titles of the United States Code as Congress may enact from time to time. For example, see sections 2281, 2282, and 2325 of this title, sections 1213, 1215, 1255 of title 11, U.S.C., 1940 ed., Bankruptcy, section 28 of title 15, U.S.C., 1940 ed., Commerce and Trade, and section 44 of title 49, U.S.C., 1940 ed., Transportation. United States District Judge W. Calvin Chestnut, has referred to the provisions relating to enforcement or setting aside or orders of the Interstate Commerce Commission as unfortunately lengthy and prolix. He has urged revision to insure uniform procedure in the several classes of so-called three-judge cases. The provision that such notice shall be given by the clerk by registered mail, and shall be complete on the mailing thereof follows, substantially, rules 4(d)(4) and 5(b) of the Federal Rules of Civil Procedure. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The rules of civil procedure, referred to in subsec. (b)(3), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1984 - Subsec. (b)(2). Pub. L. 98-620 struck out provision that the hearing had to be given precedence and held at the earliest practicable day. 1976 - Pub. L. 94-381 substituted 'Three-judge court; when required' for 'Three-judge district court' in section catchline, and generally revised section to alter the method by which three-judge courts are composed, the procedure used by such courts, and to conform its requirements to the repeal of sections 2281 and 2282 of this title. 1960 - Pub. L. 86-507 substituted 'by registered mail or by certified mail by the clerk and' for 'by registered mail by the clerk, and'. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Section 7 of Pub. L. 94-381 provided that: 'This Act (amending this section and section 2403 of this title and repealing sections 2281 and 2282 of this title) shall not apply to any action commenced on or before the date of enactment (Aug. 12, 1976).' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 2 section 922; title 19 section 1516a; title 26 sections 9010, 9011; title 42 sections 1973b, 1973c, 1973h, 1973aa-2, 1973bb. ------DocID 36814 Document 676 of 1452------ -CITE- 28 USC CHAPTER 157 -EXPCITE- TITLE 28 PART VI CHAPTER 157 -HEAD- CHAPTER 157 - INTERSTATE COMMERCE COMMISSION ORDERS; ENFORCEMENT AND REVIEW -MISC1- Sec. 2321. Judicial review of Commission's orders and decisions; procedure generally; process. 2322. United States as party 2323. Duties of Attorney General; intervenors. (2324, 2325. Repealed.) AMENDMENTS 1975 - Pub. L. 93-584, Sec. 8, Jan. 2, 1975, 88 Stat. 1918, substituted 'Judicial Review of Commission's orders and decisions; procedure generally; process' for 'Procedure generally; process' in item 2321 and struck out item 2324 'Stay of Commission's order' and item 2325 'Injunction; three-judge court required'. -CROSS- CROSS REFERENCES Review of orders of Federal agencies, see section 701 et seq. of Title 5, Government Organization and Employees. ------DocID 36815 Document 677 of 1452------ -CITE- 28 USC Sec. 2321 -EXPCITE- TITLE 28 PART VI CHAPTER 157 -HEAD- Sec. 2321. Judicial review of Commission's orders and decisions; procedure generally; process -STATUTE- (a) Except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the Interstate Commerce Commission shall be brought in the court of appeals as provided by and in the manner prescribed in chapter 158 of this title. (b) The procedure in the district courts in actions to enforce, in whole or in part, any order of the Interstate Commerce Commission other than for payment of money or the collection of fines, penalties, and forfeitures, shall be as provided in this chapter. (c) The orders, writs, and process of the district courts may, in the cases specified in subsection (b) and in enforcement actions and actions to collect civil penalties under subtitle IV of title 49, run, be served and be returnable anywhere in the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 969; May 24, 1949, ch. 139, Sec. 115, 63 Stat. 105; Jan. 2, 1975, Pub. L. 93-584, Sec. 5, 88 Stat. 1917; Oct. 17, 1978, Pub. L. 95-473, Sec. 2(a)(3)(B), 92 Stat. 1465.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 44 (Oct. 22, 1913, ch. 32, 38 Stat. 220.) Word 'actions' was substituted for 'cases,' in view of rule 2 of the Federal Rules of Civil Procedure. The exception as to procedure in the infliction of criminal punishment was omitted as unnecessary, as Title 18, U.S.C., Crimes and Criminal Procedure, and the Federal Rules of Criminal Procedure govern procedure in criminal matters. Changes were made in phraseology. 1949 ACT This section corrects, in section 2321 of title 28, U.S.C., the reference to certain sections in title 49, U.S.C. The provisions which were formerly set out as section 49 of such title 49, are now set out as section 23 of such title. AMENDMENTS 1978 - Subsec. (c). Pub. L. 95-473 substituted 'enforcement actions and actions to collect civil penalties under subtitle IV of title 49' for 'actions under section 20 of the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19, 1903, as amended (32 Stat. 848; 49 U.S.C. 43)'. 1975 - Subsec. (a). Pub. L. 93-584 designated existing provisions as subsecs. (b) and (c) and added subsec. (a). Subsec. (b). Pub. L. 93-584 designated existing first par. as subsec. (b) and substituted 'in whole or in part, any order of the Interstate Commerce Commission other than for', for 'suspend, enjoin, annual or set aside in whole or in part any order of the Interstate Commerce Commission other than for the'. Subsec. (c). Pub. L. 93-584 designated existing second par. as subsec. (c), substituted reference to subsec. (b) of this section for reference to this section, and inserted references to the dates of enactment, statute citations and code references of sections 20, 23 and 43 of Title 49. 1949 - Act May 24, 1949, substituted '20, 23, and 43' for '20, 43, and 49' in second par. EFFECTIVE DATE OF 1975 AMENDMENT Section 10 of Pub. L. 93-584 provided that: 'This Act (amending this section, sections 1336, 1398, 2323, 2341, and 2342 of this title, and section 305 of former Title 49, Transportation, and repealing sections 2324 and 2325 of this title) shall not apply to any action commenced on or before the last day of the first month beginning after the date of enactment (Jan. 2, 1975). However, actions to enjoin or suspend orders of the Interstate Commerce Commission which are pending when this Act becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2322, 2323, 2342 of this title. ------DocID 36816 Document 678 of 1452------ -CITE- 28 USC Sec. 2322 -EXPCITE- TITLE 28 PART VI CHAPTER 157 -HEAD- Sec. 2322. United States as party -STATUTE- All actions specified in section 2321 of this title shall be brought by or against the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 969.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 48 (Mar. 3, 1911, ch. 231, Sec. 211, 36 Stat. 1150; Oct. 22, 1913, ch. 32, 38 Stat. 219). Word 'actions' was substituted for 'cases and proceedings', in view of Rule 2 of the Federal Rules of Civil Procedure. A provision authorizing intervention by the United States was omitted. The United States, under the provisions of this section, is a necessary and indispensable original party, and hence intervention is unnecessary. (See Lambert Run Coal Co. v. Baltimore & O. R. Co., 1922, 42 S.Ct. 349, 258 U.S. 377, 66 L.Ed. 671.) ------DocID 36817 Document 679 of 1452------ -CITE- 28 USC Sec. 2323 -EXPCITE- TITLE 28 PART VI CHAPTER 157 -HEAD- Sec. 2323. Duties of Attorney General; intervenors -STATUTE- The Attorney General shall represent the Government in the actions specified in section 2321 of this title and in enforcement actions and actions to collect civil penalties under subtitle IV of title 49. The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party. Communities, associations, corporations, firms, and individuals interested in the controversy or question before the Commission, or in any action commenced under the aforesaid sections may intervene in said action at any time after commencement thereof. The Attorney General shall not dispose of or discontinue said action or proceeding over the objection of such party or intervenor, who may prosecute, defend, or continue said action or proceeding unaffected by the action or nonaction of the Attorney General therein. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 970; May 24, 1949, ch. 139, Sec. 116, 63 Stat. 105; Jan. 2, 1975, Pub. L. 93-584, Sec. 6, 88 Stat. 1917; Oct. 17, 1978, Pub. L. 95-473, Sec. 2(a)(3)(C), 92 Stat. 1465.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 45a (Mar. 3, 1911, ch. 231, Sec. 212, 213, 36 Stat. 1150, 1151; Oct. 22, 1913, ch. 32, 38 Stat. 220). The provision in the second sentence of section 45a of title 28, U.S.C., 1940 ed., authorizing the Attorney General to employ and compensate special attorneys was omitted as covered by sections 503 and 508 (now 543 and 548) of this title. The provision in the same sentence authorizing the court to make rules for the conduct and procedure of actions under this section were omitted as covered by the Federal Rules of Civil Procedure and section 2071 of this title relating to authority of district courts to promulgate local rules of procedure. The last paragraph of section 45a of title 28, U.S.C., 1940 ed., was omitted as merely repetitive of the language immediately following the first proviso. Word 'action' was substituted for 'suit' in conformity with Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. 1949 ACT This section corrects, in section 2323 of title 28, U.S.C., the reference to certain sections in title 49, U.S.C. The provisions which were formerly set out as section 49 of such title 49 are now set out as section 23 of such title. AMENDMENTS 1978 - Pub. L. 95-473 substituted 'enforcement actions and actions to collect civil penalties under subtitle IV of title 49' for 'actions under section 20 of the Act of February 4, 1887, as amended (24 Stat. 386; 49 U.S.C. 20), section 23 of the Act of May 16, 1942, as amended (56 Stat. 301; 49 U.S.C. 23), and section 3 of the Act of February 19, 1903, as amended (32 Stat. 848; 49 U.S.C. 43)' in first par. 1975 - Pub. L. 93-584 struck out reference to the district courts and the Supreme Court of the United States upon appeal from the district courts as the courts in which the Attorney General can represent the United States in first par. 1949 - Act May 24, 1949, substituted '20, 23, and 43' for '20, 43, and 49' in first par. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93-584 not applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as a note under section 2321 of this title. ------DocID 36818 Document 680 of 1452------ -CITE- 28 USC Sec. 2324, 2325 -EXPCITE- TITLE 28 PART VI CHAPTER 157 -HEAD- (Sec. 2324, 2325. Repealed. Pub. L. 93-584, Sec. 7, Jan. 2, 1975, 88 Stat. 1918) -MISC1- Section 2324, act June 25, 1948, ch. 646, 62 Stat. 970, related to power of court to restrain or suspend operation of orders of Interstate Commerce Commission pending final hearing and determination of action. Section 2325, act June 25, 1948, ch. 646, 62 Stat. 970, related to requirement of a three judge district court to hear and determine interlocutory or permanent injunctions restraining enforcement, operation or execution of orders of Interstate Commerce Commission. EFFECTIVE DATE OF REPEAL Repeal applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this repeal becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as an Effective Date of 1975 Amendment note under section 2321 of this title. ------DocID 36819 Document 681 of 1452------ -CITE- 28 USC CHAPTER 158 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- CHAPTER 158 - ORDERS OF FEDERAL AGENCIES; REVIEW -MISC1- Sec. 2341. Definitions. 2342. Jurisdiction of court of appeals. 2343. Venue. 2344. Review of orders; time; notice; contents of petitions; service. 2345. Prehearing conference. 2346. Certification of record on review. 2347. Petitions to review; proceedings. 2348. Representation in proceeding; intervention. 2349. Jurisdiction of the proceeding. 2350. Review in Supreme Court on certiorari or certification. 2351. Enforcement of orders by district courts. (2352, 2353. Repealed.) AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 138, Apr. 2, 1982, 96 Stat. 42, struck out item 2353 'Decision of the Plant Variety Protection Office'. 1966 - Pub. L. 89-773, Sec. 4, Nov. 6, 1966, 80 Stat. 1323, struck out item 2352 'Rules'. Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 621, added chapter 158 and items 2341 to 2352. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in section 2321 of this title; title 7 sections 149, 150gg, 163; title 8 section 1105a; title 21 sections 104, 117, 122, 127, 134e, 135a; title 31 section 755; title 39 section 3628; title 42 sections 2239, 2242, 3612; title 46 App. section 1712; title 47 section 402; title 49 sections 10934, 11901; title 50 section 167h. ------DocID 36820 Document 682 of 1452------ -CITE- 28 USC Sec. 2341 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2341. Definitions -STATUTE- As used in this chapter - (1) 'clerk' means the clerk of the court in which the petition for the review of an order, reviewable under this chapter, is filed; (2) 'petitioner' means the party or parties by whom a petition to review an order, reviewable under this chapter, is filed; and (3) 'agency' means - (A) the Commission, when the order sought to be reviewed was entered by the Federal Communications Commission, the Federal Maritime Commission, the Interstate Commerce Commission, or the Atomic Energy Commission, as the case may be; (B) the Secretary, when the order was entered by the Secretary of Agriculture; (C) the Administration, when the order was entered by the Maritime Administration; and (D) the Secretary, when the order is under section 812 of the Fair Housing Act. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622, and amended Pub. L. 93-584, Sec. 3, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 100-430, Sec. 11(b), Sept. 13, 1988, 102 Stat. 1635.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1031. Dec. 29, 1950, ch. 1189, Sec. 1, 64 Stat. 1129. Aug. 30, 1954, ch. 1073, Sec. 2(a), 68 Stat. 961. ------------------------------- Subsection (a) of former section 1031 of title 5 is omitted as unnecessary because the term 'court of appeals' as used in title 28 means a United States Court of Appeals and no additional definition is necessary. In paragraph (3), reference to the United States Maritime Commission is omitted because that Commission was abolished by 1950 Reorg. Plan No. 21, Sec. 306, eff. May 24, 1950, 64 Stat. 1277. Reference to 'Federal Maritime Commission' is substituted for 'Federal Maritime Board' on authority of 1961 Reorg. Plan No. 7, eff. Aug. 12, 1961, 75 Stat. 840. -REFTEXT- REFERENCES IN TEXT Section 812 of the Fair Housing Act, referred to in par. (3)(D), is classified to section 3612 of Title 42, The Public Health and Welfare. -MISC2- AMENDMENTS 1988 - Par. (3)(D). Pub. L. 100-430 added subpar. (D). 1975 - Par. (3)(A). Pub. L. 93-584 inserted reference to the Interstate Commerce Commission. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-430 effective on the 180th day beginning after Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out as a note under section 3601 of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93-584 not applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as a note under section 2321 of this title. -TRANS- TRANSFER OF FUNCTIONS Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See, also, Transfer of Functions notes set out under those sections. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36821 Document 683 of 1452------ -CITE- 28 USC Sec. 2342 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2342. Jurisdiction of court of appeals -STATUTE- The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of - (1) all final orders of the Federal Communication Commission made reviewable by section 402(a) of title 47; (2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except orders issued under sections 210(e), 217a, and 499g(a) of title 7; (3) all rules, regulations, or final orders of - (A) the Secretary of Transportation issued pursuant to section 2, 9, 37, 41, or 43 of the Shipping Act, 1916 (46 U.S.C. App. 802, 803, 808, 835, 839, and 841a); and (B) the Federal Maritime Commission issued pursuant to - (i) section 23, 25, or 43 of the Shipping Act, 1916 (46 U.S.C. App. 822, 824, or 841a); (ii) section 19 of the Merchant Marine Act, 1920 (46 U.S.C. App. 876); (iii) section 2, 3, 4, or 5 of the Intercoastal Shipping Act, 1933 (46 U.S.C. App. 844, 845, 845a, or 845b); (iv) section 14 or 17 of the Shipping Act of 1984 (46 U.S.C. App. 1713 or 1716); or (v) section 2(d) or 3(d) of the Act of November 6, 1966 (46 U.S.C. App. 817d(d) or 817e(d); (4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42; (5) all rules, regulations, or final orders of the Interstate Commerce Commission made reviewable by section 2321 of this title and all final orders of such Commission made reviewable under section 11901(j)(2) of title 49, United States Code; and (6) all final orders under section 812 of the Fair Housing Act. Jurisdiction is invoked by filing a petition as provided by section 2344 of this title. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622, and amended Pub. L. 93-584, Sec. 4, Jan. 2, 1975, 88 Stat. 1917; Pub. L. 95-454, title II, Sec. 206, Oct. 13, 1978, 92 Stat. 1144; Pub. L. 96-454, Sec. 8(b)(2), Oct. 15, 1980, 94 Stat. 2021; Pub. L. 97-164, title I, Sec. 137, Apr. 2, 1982, 96 Stat. 41; Pub. L. 98-554, title II, Sec. 227(a)(4), Oct. 30, 1984, 98 Stat. 2852; Pub. L. 99-336, Sec. 5(a), June 19, 1986, 100 Stat. 638; Pub. L. 100-430, Sec. 11(a), Sept. 13, 1988, 102 Stat. 1635.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1032. Dec. 29, 1950, ch. 1189, Sec. 2, 64 Stat. 1129. Aug. 30, 1954, ch. 1073, Sec. 2(b), 68 Stat. 961. ------------------------------- The words 'have exclusive jurisdiction' are substituted for 'shall have exclusive jurisdiction'. In paragraph (1), the word 'by' is substituted for 'in accordance with'. In paragraph (3), the word 'now' is omitted as unnecessary. The word 'under' is substituted for 'pursuant to the provisions of'. Reference to 'Federal Maritime Commission' is substituted for 'Federal Maritime Board' on authority of 1961 Reorg. Plan No. 7, eff. Aug. 12, 1961, 75 Stat. 840. Reference to the United States Maritime Commission is omitted because that Commission was abolished by 1950 Reorg. Plan No. 21, Sec. 306, eff. May 24, 1951, 64 Stat. 1277, and any existing rights are preserved by technical sections 7 and 8. -REFTEXT- REFERENCES IN TEXT Section 812 of the Fair Housing Act, referred to in par. (6), is classified to section 3612 of Title 42, The Public Health and Welfare. -MISC2- AMENDMENTS 1988 - Par. (6). Pub. L. 100-430 added par. (6). 1986 - Par. (3). Pub. L. 99-336 amended par. (3) generally. Prior to amendment, par. (3) read as follows: 'such final orders of the Federal Maritime Commission or the Maritime Administration entered under chapters 23 and 23A of title 46 as are subject to judicial review under section 830 of title 46;'. 1984 - Par. (5). Pub. L. 98-554 substituted '11901(j)(2)' for '11901(i)(2)'. 1982 - Pub. L. 97-164 inserted '(other than the United States Court of Appeals for the Federal Circuit)' after 'court of appeals' in provisions preceding par. (1), and struck out par. (6) which had given the court of appeals jurisdiction in cases involving all final orders of the Merit Systems Protection Board except as provided for in section 7703(b) of title 5. See section 1295(a)(9) of this title. 1980 - Par. (5). Pub. L. 96-454 inserted 'and all final orders of such Commission made reviewable under section 11901(i)(2) of title 49, United States Code' after 'section 2321 of this title'. 1978 - Par. (6). Pub. L. 95-454 added par. (6). 1975 - Par. (5). Pub. L. 93-584 added par. (5). EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-430 effective on 180th day beginning after Sept. 13, 1988, see section 13(a) of Pub. L. 100-430, set out as a note under section 3601 of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1986 AMENDMENT Section 5(b) of Pub. L. 99-336 provided that: 'The amendment made by this section (amending this section) shall apply with respect to any rule, regulation, or final order described in such amendment which is issued on or after the date of the enactment of this Act (June 19, 1986).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93-584 not applicable to actions commenced on or before last day of first month beginning after Jan. 2, 1975, and actions to enjoin or suspend orders of Interstate Commerce Commission which are pending when this amendment becomes effective shall not be affected thereby, but shall proceed to final disposition under the law existing on the date they were commenced, see section 10 of Pub. L. 93-584, set out as a note under section 2321 of this title. -TRANS- TRANSFER OF FUNCTIONS Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See, also, Transfer of Functions notes set out under those sections. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 46 App. section 1710a. ------DocID 36822 Document 684 of 1452------ -CITE- 28 USC Sec. 2343 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2343. Venue -STATUTE- The venue of a proceeding under this chapter is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1033. Dec. 29, 1950, ch. 1189, Sec. 3, 64 Stat. 1130. ------------------------------- The section is reorganized for clarity and conciseness. The word 'is' is substituted for 'shall be'. The word 'petitioner' is substituted for 'party or any of the parties filing the petition for review' in view of the definition of 'petitioner' in section 2341 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36823 Document 685 of 1452------ -CITE- 28 USC Sec. 2344 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2344. Review of orders; time; notice; contents of petition; service -STATUTE- On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of - (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1034. Dec. 29, 1950, ch. 1189, Sec. 4, 64 Stat. 1130. ------------------------------- The section is reorganized, with minor changes in phraseology. The words 'as prescribed by section 1033 of this title' are omitted as surplusage. The words 'of the United States' following 'Attorney General' are omitted as unnecessary. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2342 of this title; title 7 sections 2149, 3804, 3805. ------DocID 36824 Document 686 of 1452------ -CITE- 28 USC Sec. 2345 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2345. Prehearing conference -STATUTE- The court of appeals may hold a prehearing conference or direct a judge of the court to hold a prehearing conference. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 622.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1035. Dec. 29, 1950, ch. 1189, Sec. 5, 64 Stat. 1130. ------------------------------- -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36825 Document 687 of 1452------ -CITE- 28 USC Sec. 2346 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2346. Certification of record on review -STATUTE- Unless the proceeding has been terminated on a motion to dismiss the petition, the agency shall file in the office of the clerk the record on review as provided by section 2112 of this title. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1036. Dec. 29, 1950, ch. 1189, Sec. 6, 64 Stat. 1130. Aug. 28, 1958, Pub. L. 85-791, Sec. 31(a), 72 Stat. 951. ------------------------------- The words 'of the court of appeals in which the proceeding is pending' are omitted as unnecessary in view of the definition of 'clerk' in section 2341 of this title, and by reason of the exclusive jurisdiction of the court of appeals set forth in section 2342 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36826 Document 688 of 1452------ -CITE- 28 USC Sec. 2347 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2347. Petitions to review; proceedings -STATUTE- (a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law. (b) When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall - (1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law; (2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is governed by the Federal Rules of Civil Procedure. (c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that - (1) the additional evidence is material; and (2) there were reasonable grounds for failure to adduce the evidence before the agency; the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or the order setting aside the original order. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1037. Dec. 29, 1950, ch. 1189, Sec. 7, 64 Stat. 1130. Aug. 28, 1958, Pub. L. 85-791, Sec. 31(b), 72 Stat. 951. ------------------------------- The headnotes of the subsections are omitted as unnecessary and to conform to the style of title 28. In subsection (a), the words 'the petition' following 'on a motion to dismiss' are omitted as unnecessary. The word 'are' is substituted for 'shall be'. The words 'in fact' following 'when the agency has' are omitted as unnecessary. In subsection (b)(3), the words 'United States' preceding 'district court' are omitted as unnecessary because the term 'district court' as used in title 28 means a United States district court. See section 451 of title 28, United States Code. The words 'or any petitioner' are omitted as unnecessary in view of the definition of 'petitioner' in section 2341 of this title. In the last sentence, the word 'is' is substituted for 'shall be'. In subsection (c), the words 'applies' and 'shows' are substituted for 'shall apply' and 'shall show', respectively. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(3), are set out in the Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36827 Document 689 of 1452------ -CITE- 28 USC Sec. 2348 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2348. Representation in proceeding; intervention -STATUTE- The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order. The Attorney General may not dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute, defend, or continue the proceeding unaffected by the action or inaction of the Attorney General. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 623.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1038. Dec. 29, 1950, ch. 1189, Sec. 8, 64 Stat. 1131. ------------------------------- In the first sentence, the words 'is responsible for and has control' are substituted for 'shall be responsible for and have charge and control'. In the last sentence, the word 'may' is substituted for 'shall'. The word 'aforesaid' following 'any party or intervenor' is omitted as unnecessary. The words 'any intervenor' and 'inaction' are substituted for 'said intervenor or intervenors' and 'nonaction', respectively. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36828 Document 690 of 1452------ -CITE- 28 USC Sec. 2349 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2349. Jurisdiction of the proceeding -STATUTE- (a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency. (b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days' notice of the hearing thereon shall be given to the agency and to the Attorney General. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the application for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evidence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and specifying the nature of the damage. The court of appeals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the application. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624, and amended Pub. L. 98-620, title IV, Sec. 402(29)(F), Nov. 8, 1984, 98 Stat. 3359.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1039. Dec. 29, 1950, ch. 1189, Sec. 9, 64 Stat. 1131. Sept. 13, 1961, Pub. L. 87-225, Sec. 1, 75 Stat. 497. ------------------------------- The headnotes of the subsections are omitted as unnecessary and to conform to the style of title 28. In subsection (a), the words 'has jurisdiction' and 'has exclusive jurisdiction' are substituted for 'shall have jurisdiction' and 'shall have exclusive jurisdiction', respectively. The words 'previously granted' are substituted for 'theretofore granted' as the preferred expression. In subsection (b), the words 'does not' are substituted for 'shall not'. The words 'of the United States' following 'Attorney General' are omitted as unnecessary. The words 'In a case in which' are substituted for 'In cases where'. The word 'result' is substituted for 'ensue'. In the fourth sentence, the words 'provided for above' following the last word 'application' are omitted as unnecessary. In the last sentence, the word 'applies' is substituted for 'shall apply'. AMENDMENTS 1984 - Subsec. (b). Pub. L. 98-620 struck out provisions that the hearing on an application for an interlocutory injunction be given preference and expedited and heard at the earliest practicable date after the expiration of the notice of hearing on the application, and that on the final hearing of any proceeding to review any order under this chapter, the same requirements as to precedence and expedition was to apply. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620 set out as an Effective Date note under section 1657 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2350 of this title; title 7 sections 2149, 3804, 3805. ------DocID 36829 Document 691 of 1452------ -CITE- 28 USC Sec. 2350 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2350. Review in Supreme Court on certiorari or certification -STATUTE- (a) An order granting or denying an interlocutory injunction under section 2349(b) of this title and a final judgment of the court of appeals in a proceeding to review under this chapter are subject to review by the Supreme Court on a writ of certiorari as provided by section 1254(1) of this title. Application for the writ shall be made within 45 days after entry of the order and within 90 days after entry of the judgment, as the case may be. The United States, the agency, or an aggrieved party may file a petition for a writ of certiorari. (b) The provisions of section 1254(2) of this title, regarding certification, and of section 2101(f) of this title, regarding stays, also apply to proceedings under this chapter. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624, and amended Pub. L. 100-352, Sec. 5(e), June 27, 1988, 102 Stat. 663.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1040. Dec. 29, 1950, ch. 1189, Sec. 10, 64 Stat. 1132. ------------------------------- The words 'of the United States' following 'Supreme Court' are omitted as unnecessary because the term 'Supreme Court' as used in title 28 means the Supreme Court of the United States. The words 'section 2101(f) of this title' are substituted for 'section 2101(e) of Title 28' on authority of the Act of May 24, 1949, ch. 139, Sec. 106(b), 63 Stat. 104, which redesignated subsection (e) of section 2101 as subsection (f). AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-352 substituted '1254(2)' for '1254(3)'. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Supreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100-352, set out as a note under section 1254 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 7 sections 2149, 3804, 3805. ------DocID 36830 Document 692 of 1452------ -CITE- 28 USC Sec. 2351 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- Sec. 2351. Enforcement of orders by district courts -STATUTE- The several district courts have jurisdiction specifically to enforce, and to enjoin and restrain any person from violating any order issued under section 193 of title 7. -SOURCE- (Added Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624.) -MISC1- Historical and Revision Notes --------------------------------------------------------------------- Derivation U.S. Code Revised Statutes and Statutes at Large --------------------------------------------------------------------- 5 U.S.C. 1042. Dec. 29, 1950, ch. 1189, Sec. 12, 64 Stat. 1132. ------------------------------- The words 'United States' preceding 'district court' are omitted as unnecessary because the term 'district court' as used in title 28 means a United States district court. See section 451 of title 28, United States Code. The words 'have jurisdiction' are substituted for 'are vested with jurisdiction'. The words 'heretofore or hereafter' following 'order' are omitted as unnecessary and any existing rights and liabilities are preserved by technical sections 7 and 8. ------DocID 36831 Document 693 of 1452------ -CITE- 28 USC Sec. 2352 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- (Sec. 2352. Repealed. Pub. L. 89-773, Sec. 4, Nov. 6, 1966, 80 Stat. 1323) -MISC1- Section, Pub. L. 89-554, Sec. 4(e), Sept. 6, 1966, 80 Stat. 624, directed the several courts of appeals to adopt and promulgate rules, subject to the approval of the Judicial Conference of the United States, governing the practice and procedure, including prehearing conference procedure, in proceedings to review orders under this chapter. See section 2072 of this title. SAVINGS PROVISION Section 4 of Pub. L. 89-773 provided in part that the repeal of this section shall not operate to invalidate or repeal rules adopted under the authority of this section prior to the enactment of Pub. L. 89-773, which rules shall remain in effect until superseded by rules prescribed under authority of section 2072 of this title as amended by Pub. L. 89-773. ------DocID 36832 Document 694 of 1452------ -CITE- 28 USC Sec. 2353 -EXPCITE- TITLE 28 PART VI CHAPTER 158 -HEAD- (Sec. 2353. Repealed. Pub. L. 97-164, title I, Sec. 138, Apr. 2, 1982, 96 Stat. 42) -MISC1- Section, added Pub. L. 91-577, title III, Sec. 143(c), Dec. 24, 1970, 84 Stat. 1559, gave the court of appeals nonexclusive jurisdiction to hear appeals under section 71 of the Plant Variety Protection Act (7 U.S.C. 2461). See section 1295(a)(8) of this title. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36833 Document 695 of 1452------ -CITE- 28 USC CHAPTER 159 -EXPCITE- TITLE 28 PART VI CHAPTER 159 -HEAD- CHAPTER 159 - INTERPLEADER -MISC1- Sec. 2361. Process and procedure. ------DocID 36834 Document 696 of 1452------ -CITE- 28 USC Sec. 2361 -EXPCITE- TITLE 28 PART VI CHAPTER 159 -HEAD- Sec. 2361. Process and procedure -STATUTE- In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court. Such process and order shall be returnable at such time as the court or judge thereof directs, and shall be addressed to and served by the United States marshals for the respective districts where the claimants reside or may be found. Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 970; May 24, 1949, ch. 139, Sec. 117, 63 Stat. 105.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 41(26) (Mar. 3, 1911, ch. 231, Sec. 24, par. 26, as added Jan. 20, 1936, ch. 13, Sec. 1, 49 Stat. 1096). Jurisdiction and venue provisions of section 41(26) of title 28, U.S.C., 1940 ed., appear in sections 1335 and 1397 of this title. Subsection (e) of section 41(26) of title 28, U.S.C., 1940 ed., relating to defense in nature of interpleader and joinder of additional parties, was omitted as unnecessary, such matters being governed by the Federal Rules of Civil Procedure. Words, 'Notwithstanding any provision of part I of this title to the contrary' were omitted as unnecessary, since the revised title contains no 'contrary provisions.' Changes were made in phraseology. 1949 ACT This section makes clear that section 2361 of title 28, U.S.C., applies only to statutory actions and not to general equity interpleader suits in which the jurisdictional amount and diversity of citizenship requirements are the same as in other diversity cases. AMENDMENTS 1949 - Act May 24, 1949, substituted 'In any civil action of interpleader or in the nature of interpleader under section 1335 under this title' for 'In any interpleader action,', and inserted 'or prosecuting' between 'instituting' and 'any proceeding'. ------DocID 36835 Document 697 of 1452------ -CITE- 28 USC CHAPTER 161 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- CHAPTER 161 - UNITED STATES AS PARTY GENERALLY -MISC1- Sec. 2401. Time for commencing action against United States. 2402. Jury trial in actions against United States. 2403. Intervention by United States or a State; constitutional question. 2404. Death of defendant in damage action. 2405. Garnishment. 2406. Credits in actions by United States; prior disallowance. 2407. Delinquents for public money; judgment at return term; continuance. 2408. Security not required of United States. 2409. Partition actions involving United States. 2409a. Real property quiet title actions. 2410. Actions affecting property on which United States has lien. 2411. Interest. 2412. Costs and fees. 2413. Executions in favor of United States. 2414. Payment of judgments and compromise settlements. 2415. Time for commencing actions brought by the United States. 2416. Time for commencing actions brought by the United States - Exclusions. HISTORICAL AND REVISION NOTES 1949 ACT This section amends the analysis of chapter 161 of title 28, U.S.C., to conform item 2411 therein with the catch line of section 2411 of such title as amended by another section of this bill. AMENDMENTS 1980 - Pub. L. 96-481, title II, Sec. 204(b), Oct. 21, 1980, 94 Stat. 2329, substituted 'Costs and fees' for 'Costs' in item 2412. 1976 - Pub. L. 94-381, Sec. 6, Aug. 12, 1976, 90 Stat. 1120, inserted 'or a State' after 'United States' in item 2403. 1972 - Pub. L. 92-562, Sec. 3(b), Oct. 25, 1972, 86 Stat. 1177, added item 2409a. 1966 - Pub. L. 89-505, Sec. 2, July 18, 1966, 80 Stat. 305, added items 2415 and 2416. 1961 - Pub. L. 87-187, Sec. 2, Aug. 30, 1961, 75 Stat. 416, substituted 'and compromise settlements' for 'against the United States' in item 2414. 1954 - Act July 30, 1954, ch. 648, Sec. 2(b), 68 Stat. 589, struck out 'denied' in item 2402. 1949 - Act May 24, 1949, ch. 139, Sec. 118, 63 Stat. 105, substituted 'Interest' for 'Interest on judgments against United States' in item 2411. -CROSS- CROSS REFERENCES Third party tort liability to United States for hospital and medical care, see section 2651 et seq. of Title 42, The Public Health and Welfare. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 12 section 209. ------DocID 36836 Document 698 of 1452------ -CITE- 28 USC Sec. 2401 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2401. Time for commencing action against United States -STATUTE- (a) Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 971; Apr. 25, 1949, ch. 92, Sec. 1, 63 Stat. 62; Sept. 8, 1959, Pub. L. 86-238, Sec. 1(3), 73 Stat. 472; July 18, 1966, Pub. L. 89-506, Sec. 7, 80 Stat. 307; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(b), 92 Stat. 2389.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(20), 942 (Mar. 3, 1911, ch. 231, Sec. 24, part 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, Sec. 1310(c), 42 Stat. 311; June 2, 1924, 4:01 p.m., ch. 234, Sec. 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, Sec. 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, Sec. 420, 60 Stat. 845). Section consolidates provision in section 41(20) of title 28, U.S.C., 1940 ed., as to time limitation for bringing actions against the United States under section 1346(a) of this title, with section 942 of said title 28. Words 'or within one year after the date of enactment of this Act whichever is later', in section 942 of title 28, U.S.C., 1940 ed., were omitted as executed. Provisions of section 41(20) of title 28, U.S.C., 1940 ed., relating to jurisdiction of district courts and trial by the court of actions against the United States are the basis of sections 1346(a) and 2402 of this title. Words in subsec. (a) of this revised section, 'person under legal disability or beyond the seas at the time the claim accrues' were substituted for 'claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim.' (See reviser's note under section 2501 of this title.) Words in section 41(20) of title 28, U.S.C., 1940 ed., 'nor shall any of the said disabilities operate cumulatively' were omitted. (See reviser's note under section 2501 of this title.) A provision in section 41(20) of title 28, U.S.C., 1940 ed., that disabilities other than those specifically mentioned should not prevent any action from being barred was omitted as superfluous. Subsection (b) of the revised section simplifies and restates said section 942 of title 28, U.S.C., 1940 ed., without change of substance. Changes were made in phraseology. SENATE REVISION AMENDMENT Subsection (b) amended in the Senate to insert the 1 year limitation on the bringing of tort actions and to include the limitation upon the time in which tort claims not exceeding $1000 must be presented to the appropriate Federal agencies for administrative disposition. 80th Congress Senate Report No. 1559, Amendment No. 48. -REFTEXT- REFERENCES IN TEXT The Contract Disputes Act of 1978, referred to in subsec. (a), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is classified principally to chapter 9 (Sec. 601 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 41 and Tables. -MISC2- AMENDMENTS 1978 - Subsec. (a). Pub. L. 95-563 inserted Contract Disputes Act of 1978 exception. 1966 - Subsec. (b). Pub. L. 89-506 struck out provisions dealing with a tort claim of $2,500 or under as a special category of tort claim requiring preliminary administrative action and substituted provisions requiring presentation of all tort claims to the appropriate Federal agency in writing within two years after the claim accrues and commencement of an action within six months of the date of mailing of notice of final denial of the claim by the agency to which it was presented for provisions requiring commencement of an action within two years after the claim accrues. 1959 - Subsec. (b). Pub. L. 86-238 substituted '$2,500' for '$1,000' in two places. 1949 - Subsec. (b). Act Apr. 25, 1949, the time limitation on bringing tort actions from 1 year to 2 years. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2671, 2679 of this title; title 41 section 113; title 42 section 2212; title 45 section 1203; title 49 App. section 1540. ------DocID 36837 Document 699 of 1452------ -CITE- 28 USC Sec. 2402 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2402. Jury trial in actions against United States -STATUTE- Any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a)(1) shall, at the request of either party to such action, be tried by the court with a jury. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 971; July 30, 1954, ch. 648, Sec. 2(a), 68 Stat. 589.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 41(20), 931(a) (Mar. 3, 1911, ch. 231, Sec. 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, Sec. 1310(c), 42 Stat. 311; June 2, 1924, 4:01 p.m., ch. 234, Sec. 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, Sec. 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, Sec. 410(a), 60 Stat. 843). Section consolidates non-jury provisions of sections 41(20) and 931(a) of title 28, U.S.C., 1940 ed. For other provisions of said section 931(a) relating to tort claims, see Distribution Table. Word 'actions' was substituted for 'suits', in view of Rule 2 of the Federal Rules of Civil Procedure. Provisions of title 28, U.S.C., 1940 ed., Sec. 41(20) relating to jurisdiction of district courts and time for bringing actions against the United States are the basis of sections 1346 and 2401 of this title. AMENDMENTS 1954 - Act July 30, 1954, permitted a jury trial at the request of either party in actions under section 1346(a)(1) of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 section 113; title 42 section 2212. ------DocID 36838 Document 700 of 1452------ -CITE- 28 USC Sec. 2403 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2403. Intervention by United States or a State; constitutional question -STATUTE- (a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. (b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 971; Aug. 12, 1976, Pub. L. 94-381, Sec. 5, 90 Stat. 1120.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 401 (Aug. 24, 1937, ch. 754, Sec. 1, 50 Stat. 751). Word 'action' was added before 'suit or proceeding', in view of Rule 2 of the Federal Rules of Civil Procedure. Since this section applies to all Federal courts, the word 'suit' was not required to be deleted by such rule. 'Court of the United States' is defined in section 451 of this title. Direct appeal from decisions invalidating Acts of Congress is provided by section 1252 of this title. Changes were made in phraseology. AMENDMENTS 1976 - Pub. L. 94-381, Sec. 5(b), inserted 'or a State' after 'United States' in section catchline. Subsecs. (a), (b). Pub. L. 94-381, Sec. 5(a), designated existing provisions as subsec. (a) and added subsec. (b). EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-381 not applicable to any action commenced on or before Aug. 12, 1976, see section 7 of Pub. L. 94-381, set out as a note under section 2284 of this title. ------DocID 36839 Document 701 of 1452------ -CITE- 28 USC Sec. 2404 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2404. Death of defendant in damage action -STATUTE- A civil action for damages commenced by or on behalf of the United States or in which it is interested shall not abate on the death of a defendant but shall survive and be enforceable against his estate as well as against surviving defendants. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 971.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 780a (June 16, 1933, ch. 103, 48 Stat. 311). Substitution of parties, see rule 25(a) of the Federal Rules of Civil Procedure. Changes in phraseology were made. ------DocID 36840 Document 702 of 1452------ -CITE- 28 USC Sec. 2405 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2405. Garnishment -STATUTE- In any action or suit commenced by the United States against a corporation for the recovery of money upon a bill, note, or other security, the debtors of the corporation may be summoned as garnishees. Any person so summoned shall appear in open court and depose in writing to the amount of his indebtedness to the corporation at the time of the service of the summons and at the time of making the deposition, and judgment may be entered in favor of the United States for the sum admitted by the garnishee to be due the corporation as if it had been due the United States. A judgment shall not be entered against any garnishee until after judgment has been rendered against the corporation, nor until the sum in which the garnishee is indebted is actually due. When any garnishee deposes in open court that he is not and was not at the time of the service of the summons indebted to the corporation, an issue may be tendered by the United States upon such deposition. If, upon the trial of that issue, a verdict is rendered against the garnishee, judgment shall be entered in favor of the United States, pursuant to such verdict, with costs. Any garnishee who fails to appear at the term to which he is summoned shall be subject to attachment for contempt. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 971.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 748, 749, and 750 (R.S. Sec. 935, 936, 937). Changes were made in phraseology. ------DocID 36841 Document 703 of 1452------ -CITE- 28 USC Sec. 2406 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2406. Credits in actions by United States; prior disallowance -STATUTE- In an action by the United States against an individual, evidence supporting the defendant's claim for a credit shall not be admitted unless he first proves that such claim has been disallowed, in whole or in part, by the General Accounting Office, or that he has, at the time of the trial, obtained possession of vouchers not previously procurable and has been prevented from presenting such claim to the General Accounting Office by absence from the United States or unavoidable accident. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 972.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 774 (R.S., Sec. 236, 951; June 10, 1921, ch. 18, Sec. 304, 305, 42 Stat. 24). Word 'action' was substituted for 'suits', in view of Rule 2 of the Federal Rules of Civil Procedure. Section 774 of title 28, U.S.C., 1940 ed., provided that 'no claim for a credit shall be admitted, upon trial', etc. This was changed to 'evidence supporting the defendant's claim for a credit shall not be admitted', to clarify the meaning of the section. The case of U.S. v. Heard, D.C.Va. 1940, 32 F.Supp. 39, reviews the conflicting decisions on the question whether compliance with the section must be pleaded, and offers persuasive argument that it need not be, and that the section was designed as a rule of evidence. The wording of the remainder of the section also supports this conclusion, as pointed out by Judge Learned Hand in U.S. v. Standard Aircraft Corp., D.C.N.Y. 1926, 16 F.2d 307, followed in the Heard case. Changes in phraseology were made. -CROSS- CROSS REFERENCES Third party tort liability for hospital and medical care, see section 2651 et seq. of Title 42, The Public Health and Welfare. ------DocID 36842 Document 704 of 1452------ -CITE- 28 USC Sec. 2407 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2407. Delinquents for public money; judgment at return term; continuance -STATUTE- In an action by the United States against any person accountable for public money who fails to pay into the Treasury the sum reported due the United States, upon the adjustment of his account the court shall grant judgment upon motion unless a continuance is granted as specified in this section. A continuance may be granted if the defendant, in open court and in the presence of the United States attorney, states under oath that he is equitably entitled to credits which have been disallowed by the General Accounting Office prior to the commencement of the action, specifying each particular claim so rejected, and stating that he cannot safely come to trial. A continuance may also be granted if such an action is commenced on a bond or other sealed instrument and the court requires the original instrument to be produced. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 972.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 781 (R.S. Sec. 957; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Word 'action' was substituted for 'suit', in view of Rule 2 of the Federal Rules of Civil Procedure. Words 'court requires the original instrument to be produced' were substituted for 'defendant pleads non est factum, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, contract, or other paper certified in the affidavit'. The plea of non est factum is obsolete under Rule 7(c) of the Federal Rules of Civil Procedure. Furthermore, the words deleted are superfluous, since a court would not require the production of an original instrument unless the proper procedure were taken to require such production. Changes were made in phraseology. ------DocID 36843 Document 705 of 1452------ -CITE- 28 USC Sec. 2408 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2408. Security not required of United States -STATUTE- Security for damages or costs shall not be required of the United States, any department or agency thereof or any party acting under the direction of any such department or agency on the issuance of process or the institution or prosecution of any proceeding. Costs taxable, under other Acts of Congress, against the United States or any such department, agency or party shall be paid out of the contingent fund of the department or agency which directed the proceedings to be instituted. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 972.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 870 (R.S. Sec. 1001; Mar. 3, 1911, ch. 231, Sec. 117, 289, 36 Stat. 1131, 1167; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; June 19, 1934, ch. 653, Sec. 7, 48 Stat. 1109). Section 870 of title 28, U.S.C., 1940 ed., applied only to the Supreme Court and district courts. The revised section applies to all courts. Words 'process or the institution or prosecution of any proceeding' were substituted for 'appeal, or other process in law, admiralty, or equity.' Word 'agency' was substituted for 'any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly', in view of the creation of many independent governmental agencies since the enactment of the original law on which this section is based. Changes were made in phraseology. ------DocID 36844 Document 706 of 1452------ -CITE- 28 USC Sec. 2409 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2409. Partition actions involving United States -STATUTE- Any civil action by any tenant in common or joint tenant owning an undivided interest in lands, where the United States is one of such tenants in common or joint tenants, against the United States alone or against the United States and any other of such owners, shall proceed, and be determined, in the same manner as would a similar action between private persons. Whenever in such action the court orders a sale of the property or any part thereof the Attorney General may bid for the same in behalf of the United States. If the United States is the purchaser, the amount of the purchase money shall be paid from the Treasury upon a warrant drawn by the Secretary of the Treasury on the requisition of the Attorney General. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 972.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 766 (May 17, 1898, ch. 339, Sec. 1, 2, 30 Stat. 416). Provisions relating to service or commencement of the action and duty of United States attorneys to appear, defend, and file answer were omitted as surplusage and covered by Rules 2, 3, and 4 of the Federal Rules of Civil Procedure and section 507 of this title. Words 'shall proceed, and be determined, in the same manner as would a similar action between private persons' were substituted for 'shall proceed as other cases for partition by courts of equity, and in making such partition the court shall be governed by the same principles of equity that control courts of equity, in partition proceedings between private persons,' in view of Rule 2 of the Federal Rules of Civil Procedure. Changes were made in phraseology. ------DocID 36845 Document 707 of 1452------ -CITE- 28 USC Sec. 2409a -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2409a. Real property quiet title actions -STATUTE- (a) The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under sections 1346, 1347, 1491, or 2410 of this title, sections 7424, 7425, or 7426 of the Internal Revenue Code of 1986, as amended (26 U.S.C. 7424, 7425, and 7426), or section 208 of the Act of July 10, 1952 (43 U.S.C. 666). (b) The United States shall not be disturbed in possession or control of any real property involved in any action under this section pending a final judgment or decree, the conclusion of any appeal therefrom, and sixty days; and if the final determination shall be adverse to the United States, the United States nevertheless may retain such possession or control of the real property or of any part thereof as it may elect, upon payment to the person determined to be entitled thereto of an amount which upon such election the district court in the same action shall determine to be just compensation for such possession or control. (c) No preliminary injunction shall issue in any action brought under this section. (d) The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States. (e) If the United States disclaims all interest in the real property or interest therein adverse to the plaintiff at any time prior to the actual commencement of the trial, which disclaimer is confirmed by order of the court, the jurisdiction of the district court shall cease unless it has jurisdiction of the civil action or suit on ground other than and independent of the authority conferred by section 1346(f) of this title. (f) A civil action against the United States under this section shall be tried by the court without a jury. (g) Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. (h) No civil action may be maintained under this section by a State with respect to defense facilities (including land) of the United States so long as the lands at issue are being used or required by the United States for national defense purposes as determined by the head of the Federal agency with jurisdiction over the lands involved, if it is determined that the State action was brought more than twelve years after the State knew or should have known of the claims of the United States. Upon cessation of such use or requirement, the State may dispute title to such lands pursuant to the provisions of this section. The decision of the head of the Federal agency is not subject to judicial review. (i) Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands. (j) If a final determination in an action brought by a State under this section involving submerged or tide lands on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments is adverse to the United States and it is determined that the State's action was brought more than twelve years after the State received notice of the Federal claim to the lands, the State shall take title to the lands subject to any existing lease, easement, or right-of-way. Any compensation due with respect to such lease, easement, or right-of-way shall be determined under existing law. (k) Notice for the purposes of the accrual of an action brought by a State under this section shall be - (1) by public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands, or (2) by the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious. (l) For purposes of this section, the term 'tide or submerged lands' means 'lands beneath navigable waters' as defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301). (m) Not less than one hundred and eighty days before bringing any action under this section, a State shall notify the head of the Federal agency with jurisdiction over the lands in question of the State's intention to file suit, the basis therefor, and a description of the lands included in the suit. (n) Nothing in this section shall be construed to permit suits against the United States based upon adverse possession. -SOURCE- (Added Pub. L. 92-562, Sec. 3(a), Oct. 25, 1972, 86 Stat. 1176, and amended Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-598, Nov. 4, 1986, 100 Stat. 3351.) -REFTEXT- REFERENCES IN TEXT Section 208 of the Act of July 10, 1952, referred to in subsec. (a), is section 208(a) to (d) of act July 10, 1952, ch. 651, 66 Stat. 560. Section 208(a) to (c) is classified to section 666 of Title 43, Public Lands. Section 208(d) is not classified to the Code. -MISC2- AMENDMENTS 1986 - Subsec. (a). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. Subsecs. (c) to (n). Pub. L. 99-598 added subsecs. (c) and (h) to (m), redesignated former subsecs. (c), (d), (e), (f), and (g) as (d), (e), (f), (g), and (n), respectively, and inserted ', except for an action brought by a State,' in subsec. (g). -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1346, 1402 of this title. ------DocID 36846 Document 708 of 1452------ -CITE- 28 USC Sec. 2410 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2410. Actions affecting property on which United States has lien -STATUTE- (a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter - (1) to quiet title to, (2) to foreclose a mortgage or other lien upon, (3) to partition, (4) to condemn, or (5) of interpleader or in the nature of interpleader with respect to, real or personal property on which the United States has or claims a mortgage or other lien. (b) The complaint or pleading shall set forth with particularity the nature of the interest or lien of the United States. In actions or suits involving liens arising under the internal revenue laws, the complaint or pleading shall include the name and address of the taxpayer whose liability created the lien and, if a notice of the tax lien was filed, the identity of the internal revenue office which filed the notice, and the date and place such notice of lien was filed. In actions in the State courts service upon the United States shall be made by serving the process of the court with a copy of the complaint upon the United States attorney for the district in which the action is brought or upon an assistant United States attorney or clerical employee designated by the United States attorney in writing filed with the clerk of the court in which the action is brought and by sending copies of the process and complaint, by registered mail, or by certified mail, to the Attorney General of the United States at Washington, District of Columbia. In such actions the United States may appear and answer, plead or demur within sixty days after such service or such further time as the court may allow. (c) A judgment or decree in such action or suit shall have the same effect respecting the discharge of the property from the mortgage or other lien held by the United States as may be provided with respect to such matters by the local law of the place where the court is situated. However, an action to foreclose a mortgage or other lien, naming the United States as a party under this section, must seek judicial sale. A sale to satisfy a lien inferior to one of the United States shall be made subject to and without disturbing the lien of the United States, unless the United States consents that the property may be sold free of its lien and the proceeds divided as the parties may be entitled. Where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem, except that with respect to a lien arising under the internal revenue laws the period shall be 120 days or the period allowable for redemption under State law, whichever is longer, and in any case in which, under the provisions of section 505 of the Housing Act of 1950, as amended (12 U.S.C. 1701k), and subsection (d) of section 1820 of title 38 of the United States Code, the right to redeem does not arise, there shall be no right of redemption. In any case where the debt owing the United States is due, the United States may ask, by way of affirmative relief, for the foreclosure of its own lien and where property is sold to satisfy a first lien held by the United States, the United States may bid at the sale such sum, not exceeding the amount of its claim with expenses of sale, as may be directed by the head (or his delegate) of the department or agency of the United States which has charge of the administration of the laws in respect to which the claim of the United States arises. In any case where the United States is a bidder at the judicial sale, it may credit the amount determined to be due it against the amount it bids at such sales. (d) In any case in which the United States redeems real property under this section or section 7425 of the Internal Revenue Code of 1986, the amount to be paid for such property shall be the sum of - (1) the actual amount paid by the purchaser at such sale (which, in the case of a purchaser who is the holder of the lien being foreclosed, shall include the amount of the obligation secured by such lien to the extent satisfied by reason of such sale), (2) interest on the amount paid (as determined under paragraph (1)) at 6 percent per annum from the date of such sale, and (3) the amount (if any) equal to the excess of (A) the expenses necessarily incurred in connection with such property, over (B) the income from such property plus (to the extent such property is used by the purchaser) a reasonable rental value of such property. (e) Whenever any person has a lien upon any real or personal property, duly recorded in the jurisdiction in which the property is located, and a junior lien, other than a tax lien, in favor of the United States attaches to such property, such person may make a written request to the officer charged with the administration of the laws in respect of which the lien of the United States arises, to have the same extinguished. If after appropriate investigation, it appears to such officer that the proceeds from the sale of the property would be insufficient to wholly or partly satisfy the lien of the United States, or that the claim of the United States has been satisfied or by lapse of time or otherwise has become unenforceable, such officer shall so report to the Comptroller General who may issue a certificate releasing the property from such lien. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 972; May 24, 1949, ch. 139, Sec. 119, 63 Stat. 105; July 7, 1958, Pub. L. 85-508, Sec. 12(h), 72 Stat. 348; June 11, 1960, Pub. L. 86-507, Sec. 1(20), 74 Stat. 201; Nov. 2, 1966, Pub. L. 89-719, title II, Sec. 201, 80 Stat. 1147; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, 100 Stat. 2095; Nov. 29, 1990, Pub. L. 101-647, title XXXVI, Sec. 3630, 104 Stat. 4966.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 901, 902, 904, 905 (Mar. 4, 1931, ch. 515, Sec. 1, 2, 4, 5, 46 Stat. 1528, 1529; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; June 6, 1940, ch. 242, 54 Stat. 234; Dec. 2, 1942, ch. 656, Sec. 1-3, 56 Stat. 1026). Provisions including the districts of Hawaii and Puerto Rico, and the District Court of the United States for the District of Columbia, in section 901 of title 28, U.S.C., 1940 ed., were omitted as covered by 'any district court.' See section 451 of this title. Provisions in section 902 of title 28, U.S.C., 1940 ed., relating to process, were omitted as covered by Rule 4 of the Federal Rules of Civil Procedure. Changes were made in phraseology. 1949 ACT This amendment conforms the language of section 2410(b) of title 28, U.S.C., with that of the prior law with respect to service of process and complaint upon the United States in suits brought in State courts. This is provided for by rule 4(d)(4) of the Federal Rules of Civil Procedure with respect to such suits in United States district courts. -REFTEXT- REFERENCES IN TEXT The internal revenue laws, referred to in subsec. (b), are classified generally to Title 26, Internal Revenue Code. Section 7425 of the Internal Revenue Code of 1986, referred to in subsec. (d), is classified to section 7425 of Title 26. -MISC2- AMENDMENTS 1990 - Subsec. (c). Pub. L. 101-647 inserted at end 'In any case where the United States is a bidder at the judicial sale, it may credit the amount determined to be due it against the amount it bids at such sales.' 1986 - Subsec. (d). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1966 - Subsec. (a). Pub. L. 89-719 substituted 'subject matter - '(1) to quiet title to, '(2) to foreclose a mortgage or other lien upon, '(3) to partition, '(4) to condemn, or '(5) of interpleader or in the nature of interpleader with respect to,' for 'subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon'. Subsec. (b). Pub. L. 89-719 substituted 'complaint or pleading shall set forth' for 'complaint shall set forth', and inserted sentence requiring the complaint or pleading, in actions or suits involving liens arising under the internal revenue laws, to include the name and address of the taxpayer whose liability created the lien and, if a notice of the tax lien was filed, the identity of the internal revenue office which filed the notice, and the date and place such notice of lien was filed. Subsec. (c). Pub. L. 89-719 substituted 'judgment or decree in such action' for 'judicial sale in such action', 'discharge of the property from the mortgage or other lien' for 'discharge of the property from liens and encumbrances', and 'place where the court is situated' for 'place where the property is situated', and inserted provisions requiring an action to foreclose a mortgage or other lien, in which the United States is named as a party under this section, to seek a judicial sale, providing that the period of redemption where a sale is made with respect to a lien arising under the internal revenue laws is 120 days or the period allowable for redemption under State law, whichever is longer, and prohibiting the right of redemption in any case which, under the provisions of section 1701k of Title 12 and section 1820(d) of Title 38, the right to redeem does not arise. Subsecs. (d), (e). Pub. L. 89-719 added subsec. (d) and redesignated former subsec. (d) as (e). 1960 - Subsec. (b). Pub. L. 86-507 inserted 'or by certified mail,' after 'registered mail,'. 1958 - Subsec. (a). Pub. L. 85-508 struck out provisions which extended section to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska. 1949 - Subsec. (b). Act May 24, 1949, conformed section with that of prior law with respect to service of process and complaint upon the United States in suits brought in State courts. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-647 effective 180 days after Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out as an Effective Date note under section 3001 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-719 applicable after Nov. 2, 1966, see section 203 of Pub. L. 89-719, set out as a note under section 1346 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Pleas and demurrers abolished, see rule 7, Appendix to this title. CROSS REFERENCES Right of redemption under subsec. (c), exclusion where subordinate lien of United States derives from insurance under National Housing Act or Servicemen's Readjustment Act of 1944, see section 1701k of Title 12, Banks and Banking. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1444, 2409a of this title; title 12 section 1017k; title 26 sections 6327, 7424, 7425, 7434, 7810; title 38 section 1820. ------DocID 36847 Document 709 of 1452------ -CITE- 28 USC Sec. 2411 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2411. Interest -STATUTE- In any judgment of any court rendered (whether against the United States, a collector or deputy collector of internal revenue, a former collector or deputy collector, or the personal representative in case of death) for any overpayment in respect of any internal-revenue tax, interest shall be allowed at the overpayment rate established under section 6621 of the Internal Revenue Code of 1986 upon the amount of the overpayment, from the date of the payment or collection thereof to a date preceding the date of the refund check by not more than thirty days, such date to be determined by the Commissioner of Internal Revenue. The Commissioner is authorized to tender by check payment of any such judgment, with interest as herein provided, at any time after such judgment becomes final, whether or not a claim for such payment has been duly filed, and such tender shall stop the running of interest, whether or not such refund check is accepted by the judgment creditor. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 973; May 24, 1949, ch. 139, Sec. 120, 63 Stat. 106; Jan. 3, 1975, Pub. L. 93-625, Sec. 7(a)(2), 88 Stat. 2115; Apr. 2, 1982, Pub. L. 97-164, title III, Sec. 302(b), 96 Stat. 56; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, title XV, Sec. 1511(c)(18), 100 Stat. 2095, 2746.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 765, 931(a), 932, Mar. 3, 1877, ch. 359, Sec. 10, 24 Stat. 507; Feb. 13, 1925, ch. 229, Sec. 8, 43 Stat. 940; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; Aug. 2, 1946, ch. 753, Sec. 410(a), 411, 60 Stat. 843, 844). Section consolidates section 765 with provisions of sections 931(a) and 932, all of title 28, U.S.C., 1940 ed., relating to interest on judgments, the latter two sections being applicable to judgments in tort claims cases. For other provisions of said sections 931(a) and 932, see Distribution Table. Said section 932 made the provisions of said section 765 applicable to such judgments, therefore the provisions of said section 931(a) that 'the United States shall not be liable for interest prior to judgment' was omitted as covered by the language of said section 765 providing that interest shall be computed from the date of the judgment. Provisions of section 765 of title 28, U.S.C., 1940 ed., that when the findings of fact and the law applicable thereto have been filed in any case as provided in 'section 763' (764) of title 28, U.S.C., 1940 ed., and the judgment or decree is adverse to the Government, it shall be the duty of the district attorney to transmit to the Attorney General of the United States certified copies of all the papers filed in the cause, with a transcript of the testimony taken, the written findings of the court, and his written opinion as to the same, that, whereupon, the Attorney General shall determine and direct whether an appeal shall be taken or not, and that, when so directed, the district attorney shall cause an appeal to be perfected in accordance with the terms of the statutes and rules of practice governing the same were omitted as unnecessary and covered by section 507 of this title which provides for supervision of United States attorneys by the Attorney General. Words of section 765 of title 28, U.S.C., 1940 ed., 'Until the time when an appropriation is made for the payment of the judgment or decree' were omitted and words 'up to, but not exceeding, thirty days after the date of approval of any appropriation act providing for payment of the judgment' were substituted. Substituted words clarify meaning and are in accord with congressional procedure in annual deficiency appropriation acts for payment of judgments against the United States. The substituted words will obviate necessity of repeating such provisions in appropriation acts. Changes were made in phraseology. 1949 ACT This section amends section 2411 of title 28, U.S.C., by restoring the provisions of section 177 of the former Judicial Code for the payment of interest on tax refunds. -REFTEXT- REFERENCES IN TEXT Section 6621 of the Internal Revenue Code of 1986, referred to in text, is classified to section 6621 of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Pub. L. 99-514, Sec. 1511(c)(18), substituted 'the overpayment rate established under section 6621' for 'an annual rate established under section 6621'. Pub. L. 99-514, Sec. 2, substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1982 - Pub. L. 97-164 struck out '(a)' before 'In any judgment' and struck out subsec. (b) which provided that, except as otherwise provided in subsection (a) of this section, on all final judgments rendered against the United States in actions instituted under section 1346 of this title, interest was to be computed at the rate of 4 per centum per annum from the date of the judgment up to, but not exceeding, thirty days after the date of approval of any appropriation Act providing for payment of the judgment. 1975 - Subsec. (a). Pub. L. 93-625 substituted 'an annual rate established under section 6621 of the Internal Revenue Code of 1954' for 'the rate of 6 per centum per annum'. 1949 - Act May 24, 1949, restored provisions relating to payment of interest on tax refunds. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-514 applicable for purposes of determining interest for periods after Dec. 31, 1986, see section 1511(d) of Pub. L. 99-514, set out as a note under section 6621 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 sections 6612, 6622, 7434; title 31 section 1304. ------DocID 36848 Document 710 of 1452------ -CITE- 28 USC Sec. 2412 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2412. Costs and fees -STATUTE- (a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation. (b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. (c)(1) Any judgment against the United States or any agency and any official of the United States acting in his or her official capacity for costs pursuant to subsection (a) shall be paid as provided in sections 2414 and 2517 of this title and shall be in addition to any relief provided in the judgment. (2) Any judgment against the United States or any agency and any official of the United States acting in his or her official capacity for fees and expenses of attorneys pursuant to subsection (b) shall be paid as provided in sections 2414 and 2517 of this title, except that if the basis for the award is a finding that the United States acted in bad faith, then the award shall be paid by any agency found to have acted in bad faith and shall be in addition to any relief provided in the judgment. (d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. (C) The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. (2) For the purposes of this subsection - (A) 'fees and other expenses' includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.); (B) 'party' means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association; (C) 'United States' includes any agency and any official of the United States acting in his or her official capacity; (D) 'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings; (E) 'civil action brought by or against the United States' includes an appeal by a party, other than the United States, from a decision of a contracting officer rendered pursuant to a disputes clause in a contract with the Government or pursuant to the Contract Disputes Act of 1978; (F) 'court' includes the United States Claims Court; (G) 'final judgment' means a judgment that is final and not appealable, and includes an order of settlement; and (H) 'prevailing party', in the case of eminent domain proceedings, means a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government. (3) In awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code, or an adversary adjudication subject to the Contract Disputes Act of 1978, the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust. (4) Fees and other expenses awarded under this subsection to a party shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise. (5) The Director of the Administrative Office of the United States Courts shall include in the annual report prepared pursuant to section 604 of this title, the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this subsection. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. (e) The provisions of this section shall not apply to any costs, fees, and other expenses in connection with any proceeding to which section 7430 of the Internal Revenue Code of 1986 applies (determined without regard to subsections (b) and (f) of such section). Nothing in the preceding sentence shall prevent the awarding under subsection (a) of section 2412 of title 28, United States Code, of costs enumerated in section 1920 of such title (as in effect on October 1, 1981). (f) If the United States appeals an award of costs or fees and other expenses made against the United States under this section and the award is affirmed in whole or in part, interest shall be paid on the amount of the award as affirmed. Such interest shall be computed at the rate determined under section 1961(a) of this title, and shall run from the date of the award through the day before the date of the mandate of affirmance. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 973; July 18, 1966, Pub. L. 89-507, Sec. 1, 80 Stat. 308; Oct. 21, 1980, Pub. L. 96-481, title II, Sec. 204(a), (c), 94 Stat. 2327, 2329; Sept. 3, 1982, Pub. L. 97-248, title II, Sec. 292(c), 96 Stat. 574; Aug. 5, 1985, Pub. L. 99-80, Sec. 2, 6, 99 Stat. 184, 186; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, 100 Stat. 2095.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 258, 931(a) (Mar. 3, 1911, ch. 231, Sec. 152, 36 Stat. 1138; Aug. 2, 1946, ch. 753, Sec. 410(a), 60 Stat. 843). Section consolidates the last sentence of section 931(a) of title 28, U.S.C., 1940 ed., with section 258 of said title 28. For other provisions of said section 931(a), see Distribution Table. Subsection (a) is new. It follows the well-known common-law rule that a sovereign is not liable for costs unless specific provision for such liability is made by law. This is a corollary to the rule that a sovereign cannot be sued without its consent. Many enactments of Congress relating to fees and costs contain specific exceptions as to the liability of the United States. (See, for example, section 548 of title 28, U.S.C., 1940 ed.) A uniform rule, embodied in this section, will make such specific exceptions unnecessary. Subsection (b) incorporates section 258 of title 28, U.S.C., 1940 ed. Subsection (c) incorporates the costs provisions of section 931(a) of title 28, U.S.C., 1940 ed. Words 'and for summoning the same,' after 'witnesses,' were omitted from subsection (b) as covered by 'those actually incurred for witnesses.' Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Contract Disputes Act of 1978, referred to in subsec. (d)(2)(E), (3), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is classified principally to chapter 9 (Sec. 601 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 41 and Tables. Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (e), is classified to section 7430 of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Subsecs. (d)(2)(B), (e). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1985 - Subsecs. (a), (b). Pub. L. 99-80, Sec. 2(a)(1), substituted 'or any agency or any official of the United States' for 'or any agency and any official of the United States'. Subsec. (d). Pub. L. 99-80, Sec. 6, repealed amendment made by Pub. L. 96-481, Sec. 204(c), and provided that subsec. (d) was effective on or after Aug. 5, 1985, as if it had not been repealed by section 204(c). See 1980 Amendment note and Revival of Previously Repealed Provisions note below. Subsec. (d)(1)(A). Pub. L. 99-80, Sec. 2(a)(2), inserted ', including proceedings for judicial review of agency actions,' after 'in tort)'. Subsec. (d)(1)(B). Pub. L. 99-80, Sec. 2(b), inserted provisions directing that whether or not the position of the United States was substantially justified must be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action was based) which is made in the civil action for which fees and other expenses are sought. Subsec. (d)(2)(B). Pub. L. 99-80, Sec. 2(c)(1), substituted '$2,000,000' for '$1,000,000' in cl. (i), and substituted 'or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association;' for '(ii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed $5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, or (iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization, having not more than 500 employees at the time the civil action was filed; and'. Subsec. (d)(2)(D) to (H). Pub. L. 99-80, Sec. 2(c)(2), added subpars. (D) to (H). Subsec. (d)(4). Pub. L. 99-80, Sec. 2(d), amended par. (4) generally. Prior to amendment, par. (4) read as follows: '(A) Fees and other expenses awarded under this subsection may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made in accordance with sections 2414 and 2517 of this title. '(B) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded pursuant to this subsection in such fiscal years.' Subsec. (f). Pub. L. 99-80, Sec. 2(e), added subsec. (f). 1982 - Subsec. (e). Pub. L. 97-248 added subsec. (e). 1980 - Pub. L. 96-481, Sec. 204(a), designated existing provisions as subsec. (a), struck out provision that payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States, and added subsecs. (b) to (d). Pub. L. 96-481, Sec. 204(c), repealed subsec. (d) eff. Oct. 1, 1984. See Effective Date of 1980 Amendment note below. 1966 - Pub. L. 89-507 empowered a court having jurisdiction to award judgment for costs, except as otherwise specifically provided by statute, to the prevailing party in any action brought by or against the United States or any agency or official of the United States acting in his official capacity, limited the judgment for costs when taxed against the Government to reimbursing in whole or in part the prevailing party for costs incurred by him in the litigation, required the payment of a judgment for costs to be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States and eliminated provisions which limited the liability of the United States for fees and costs to those cases in which liability was expressed provided for by Act of Congress, permitted the district court or the Court of Claims, in an action under section 1346(a) or 1491 of this title if the United States put in issue plaintiff's right to recover, to allow costs to the prevailing party from the time of joining such issue, and which authorized the allowance of costs to the successful claimant in an action under section 1346(b) of this title. EFFECTIVE DATE OF 1985 AMENDMENT Amendment by Pub. L. 99-80 applicable to cases pending on or commenced on or after Aug. 5, 1985, but with provision for additional applicability to certain prior cases and to prior board of contracts appeals cases, see section 7 of Pub. L. 99-80, set out as a note under section 504 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-248 applicable to civil actions or proceedings commenced after Feb. 28, 1983, see section 292(e)(1) of Pub. L. 97-248, set out as an Effective Date note under section 7430 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by section 204(a) of Pub. L. 96-481 effective Oct. 1, 1981, and applicable to any adversary adjudication, as defined in section 504(b)(1)(C) of Title 5, Government Organization and Employees, and any civil action or adversary adjudication described in this section which is pending on, or commenced on or after, such date, see section 208 of Pub. L. 96-481, set out as an Effective Date note under section 504 of Title 5. Section 204(c) of Pub. L. 96-481 which provided in part that effective Oct. 1, 1984, subsec. (d) of this section is repealed, except that the provisions of subsec. (d) shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was repealed by Pub. L. 99-80, Sec. 6(b)(2), Aug. 5, 1985, 99 Stat. 186. EFFECTIVE DATE OF 1966 AMENDMENT Section 3 of Pub. L. 89-507 provided that: 'These amendments (amending this section and section 2520 of this title) shall apply only to judgments entered in actions filed subsequent to the date of enactment of this Act (July 18, 1966). These amendments shall not authorize the reopening or modification of judgments entered prior to the enactment of this Act (July 18, 1966).' REVIVAL OF PREVIOUSLY REPEALED PROVISIONS For revival of subsec. (d) of this section effective on or after Aug. 5, 1985, as if it had not been repealed by section 204(c) of Pub. L. 96-481, and repeal of section 204(c) of Pub. L. 96-481, see section 6 of Pub. L. 99-80, set out as a note under section 504 of Title 5, Government Organization and Employees. SAVINGS PROVISION Section 206 of Pub. L. 96-481, as amended by Pub. L. 99-80, Sec. 3, Aug. 5, 1985, 99 Stat. 186, provided that: '(a) Except as provided in subsection (b), nothing in section 2412(d) of title 28, United States Code, as added by section 204(a) of this title, alters, modifies, repeals, invalidates, or supersedes any other provision of Federal law which authorizes an award of such fees and other expenses to any party other than the United States that prevails in any civil action brought by or against the United States. '(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code. Section 206(b)(2) of the Social Security Act shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 206(b) of that Act and section 2412(d) of title 28, United States Code, the claimant's attorney refunds to the claimant the amount of the smaller fee.' -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Liability of United States for costs, see rule 54, Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 7430 of this title; title 5 section 504; title 10 section 2321; title 15 section 2060; title 18 section 293; title 25 section 450m-1; title 31 section 3730; title 41 section 253d; title 42 sections 3612, 3614, 9606. ------DocID 36849 Document 711 of 1452------ -CITE- 28 USC Sec. 2413 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2413. Executions in favor of United States -STATUTE- A writ of execution on a judgment obtained for the use of the United States in any court thereof shall be issued from and made returnable to the court which rendered the judgment, but may be executed in any other State, in any Territory, or in the District of Columbia. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 839 (R.S. Sec. 986). Words 'or in the District of Columbia' were added on the authority of 14 Op. Atty. Gen. 384, declaring that, under this section, a writ of execution in favor of the United States, obtained from a Federal court in any State, could be executed in the District of Columbia. (See, also, section 1963 of this title.) Changes in phraseology were made. ------DocID 36850 Document 712 of 1452------ -CITE- 28 USC Sec. 2414 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2414. Payment of judgments and compromise settlements -STATUTE- Except as provided by the Contract Disputes Act of 1978, payment of final judgments rendered by a district court or the Court of International Trade against the United States shall be made on settlements by the General Accounting Office. Payment of final judgments rendered by a State or foreign court or tribunal against the United States, or against its agencies or officials upon obligations or liabilities of the United States, shall be made on settlements by the General Accounting Office after certification by the Attorney General that it is in the interest of the United States to pay the same. Whenever the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be sought from a decision affirming the same, he shall so certify and the judgment shall be deemed final. Except as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974; Aug. 30, 1961, Pub. L. 87-187, Sec. 1, 75 Stat. 415; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(d), 92 Stat. 2390; Oct. 10, 1980, Pub. L. 96-417, title V, Sec. 512, 94 Stat. 1744.) -MISC1- HISTORICAL AND REVISION NOTES Based on section 228 of title 31, U.S.C., 1940 ed., Money and Finance (Feb. 18, 1904, ch. 160, Sec. 1, 33 Stat. 41; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Similar provisions of section 228 of title 31, U.S.C., 1940 ed., relating to judgments of the court of claims are incorporated in section 2517 of this title. The second paragraph was added to make clear that the payment of judgments not appealed may be expedited by certificate to that effect. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Contract Disputes Act of 1978, referred to in first paragraph, is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is classified principally to chapter 9 (Sec. 601 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 41 and Tables. -MISC2- AMENDMENTS 1980 - Pub. L. 96-417 provided for payment of final judgments rendered by the Court of International Trade against the United States on settlements by the General Accounting Office. 1978 - Pub. L. 95-563 inserted Contract Disputes Act of 1978 exception. 1961 - Pub. L. 87-187 provided for payment of final judgments rendered by a State or foreign court against the United States, its agencies or officials and compromise settlements and substituted 'and compromise settlements' for 'against the United States' in section catchline. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. -CROSS- CROSS REFERENCES Appropriations for payments of judgments against the United States, computation of interest time, see section 1304 of Title 31, Money and Finance. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2412 of this title; title 7 section 136m; title 16 sections 79g, 460bb-2; title 23 section 307; title 31 section 1304. ------DocID 36851 Document 713 of 1452------ -CITE- 28 USC Sec. 2415 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2415. Time for commencing actions brought by the United States -STATUTE- (a) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later: Provided, That in the event of later partial payment or written acknowledgment of debt, the right of action shall be deemed to accrue again at the time of each such payment or acknowledgment: Provided further, That an action for money damages brought by the United States for or on behalf of a recognized tribe, band or group of American Indians shall not be barred unless the complaint is filed more than six years and ninety days after the right of action accrued: Provided further, That an action for money damages which accrued on the date of enactment of this Act in accordance with subsection (g) brought by the United States for or on behalf of a recognized tribe, band, or group of American Indians, or on behalf of an individual Indian whose land is held in trust or restricted status, shall not be barred unless the complaint is filed sixty days after the date of publication of the list required by section 4(c) of the Indian Claims Limitation Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Limitation Act of 1982, any right of action shall be barred unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim or (2) three years after the date the Secretary of the Interior has submitted legislation or legislative report to Congress to resolve such claim or more than two years after a final decision has been rendered in applicable administrative proceedings required by contract or by law, whichever is later. (b) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues: Provided, That an action to recover damages resulting from a trespass on lands of the United States; an action to recover damages resulting from fire to such lands; an action to recover for diversion of money paid under a grant program; and an action for conversion of property of the United States may be brought within six years after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band or group of American Indians, including actions relating to allotted trust or restricted Indian lands, may be brought within six years and ninety days after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band, or group of American Indians, including actions relating to allotted trust or restricted Indian lands, or on behalf of an individual Indian whose land is held in trust or restricted status which accrued on the date of enactment of this Act in accordance with subsection (g) may be brought on or before sixty days after the date of the publication of the list required by section 4(c) of the Indian Claims Limitation Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Limitation Act of 1982, any right of action shall be barred unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim or (2) three years after the Secretary of the Interior has submitted legislation or legislative report to Congress to resolve such claim. (c) Nothing herein shall be deemed to limit the time for bringing an action to establish the title to, or right of possession of, real or personal property. (d) Subject to the provisions of section 2416 of this title and except as otherwise provided by Congress, every action for the recovery of money erroneously paid to or on behalf of any civilian employee of any agency of the United States or to or on behalf of any member or dependent of any member of the uniformed services of the United States, incident to the employment or services of such employee or member, shall be barred unless the complaint is filed within six years after the right of action accrues: Provided, That in the event of later partial payment or written acknowledgment of debt, the right of action shall be deemed to accrue again at the time of each such payment or acknowledgment. (e) In the event that any action to which this section applies is timely brought and is thereafter dismissed without prejudice, the action may be recommenced within one year after such dismissal, regardless of whether the action would otherwise then be barred by this section. In any action so recommenced the defendant shall not be barred from interposing any claim which would not have been barred in the original action. (f) The provisions of this section shall not prevent the assertion, in an action against the United States or an officer or agency thereof, of any claim of the United States or an officer or agency thereof against an opposing party, a co-party, or a third party that arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. A claim of the United States or an officer or agency thereof that does not arise out of the transaction or occurrence that is the subject matter of the opposing party's claim may, if time-barred, be asserted only by way of offset and may be allowed in an amount not to exceed the amount of the opposing party's recovery. (g) Any right of action subject to the provisions of this section which accrued prior to the date of enactment of this Act shall, for purposes of this section, be deemed to have accrued on the date of enactment of this Act. (h) Nothing in this Act shall apply to actions brought under the Internal Revenue Code or incidental to the collection of taxes imposed by the United States. (i) The provisions of this section shall not prevent the United States or an officer or agency thereof from collecting any claim of the United States by means of administrative offset, in accordance with section 3716 of title 31. -SOURCE- (Added Pub. L. 89-505, Sec. 1, July 18, 1966, 80 Stat. 304, and amended Pub. L. 92-353, July 18, 1972, 86 Stat. 499; Pub. L. 92-485, Oct. 13, 1972, 86 Stat. 803; Pub. L. 95-64, July 11, 1977, 91 Stat. 268; Pub. L. 95-103, Aug. 15, 1977, 91 Stat. 842; Pub. L. 96-217, Sec. 1, Mar. 27, 1980, 94 Stat. 126; Pub. L. 97-365, Sec. 9, Oct. 25, 1982, 96 Stat. 1754; Pub. L. 97-394, title I, Sec. 2, Dec. 30, 1982, 96 Stat. 1976; Pub. L. 97-452, Sec. 2(d)(2), Jan. 12, 1983, 96 Stat. 2478; Pub. L. 98-250, Sec. 4(a), Apr. 3, 1984, 98 Stat. 118.) -REFTEXT- REFERENCES IN TEXT The date of enactment of this Act, referred to in subsecs. (a), (b), and (g), means the date of enactment of Pub. L. 89-505, which was approved July 18, 1966. The Indian Claims Limitation Act of 1982, referred to in subsecs. (a) and (b), is Pub. L. 97-394, title I, Sec. 2-6, Dec. 30, 1982, 96 Stat. 1976-1978, which amended this section and enacted provisions set out as notes below. For complete classification of this Act to the Code, see Short Title of 1982 Amendment note set out below and Tables. This Act, referred to in subsec. (h), probably means Pub. L. 89-505, July 18, 1966, 80 Stat. 304, which enacted this section and section 2416 of this title. For complete classification of this Act to the Code, see Tables. -MISC2- AMENDMENTS 1984 - Subsecs. (a), (b). Pub. L. 98-250 substituted 'Indian Claims Limitation Act of 1982' for 'Indian Claims Act of 1982' wherever appearing. 1983 - Subsec. (i). Pub. L. 97-452 substituted 'section 3716 of title 31' for 'section 5 of the Federal Claims Collection Act of 1966'. 1982 - Subsec. (a). Pub. L. 97-394, Sec. 2(a), substituted 'sixty days after the date of publication of the list required by section 4(c) of the Indian Claims Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Act of 1982, any right of action shall be barred unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim or (2) three years after the date the Secretary of the Interior has submitted legislation or legislative report to Congress to resolve such claim' for 'after December 31, 1982' in third proviso. Subsec. (b). Pub. L. 97-394, Sec. 2(b), substituted 'sixty days after the date of the publication of the list required by section 4(c) of the Indian Claims Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Act of 1982, any right of action shall be barred unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim or (2) three years after the Secretary of the Interior has submitted legislation or legislative report to Congress to resolve such claim' for 'December 31, 1982' at end of proviso. Subsec. (i). Pub. L. 97-365 added subsec. (i). 1980 - Subsec. (a). Pub. L. 96-217, Sec. 1(a), substituted 'December 31, 1982' for 'April 30, 1980'. Subsec. (b). Pub. L. 96-217, Sec. 1(b), substituted 'December 31, 1982' for 'April 1, 1980'. 1977 - Subsec. (a). Pub. L. 95-103, Sec. 1(a), substituted 'after April 1, 1980' for 'after August 18, 1977'. Pub. L. 95-64, Sec. 1(a), substituted 'unless the complaint is filed after August 18, 1977' for 'unless the complaint is filed more than eleven years after the right of action accrued' in proviso covering actions for money damages brought by the United States for or on behalf of a recognized tribe, band, or group of American Indians, or on behalf of an individual Indian whose land is held in trust or restricted status based upon rights of action which accrued on July 18, 1966, in accordance with subsec. (g). Subsec. (b). Pub. L. 95-103, Sec. 1(b), substituted 'on or before April 1, 1980' for 'on or before August 18, 1977'. Pub. L. 95-64, Sec. 1(b), substituted 'may be brought on or before August 18, 1977' for 'may be brought within eleven years after the right of action accrues' in proviso covering actions for or on behalf of recognized tribes, bands, or groups of American Indians, including actions related to allotted trust or restricted Indian lands, or on behalf of an individual Indian whose land is held in trust or restricted status based upon rights of action which accrued on July 18, 1966, in accordance with subsec. (g). 1972 - Subsec. (a). Pub. L. 92-485, Sec. 1(a), inserted proviso relating to actions for money damages brought by the United States for or on behalf of a recognized tribe, band, or group of American Indians, or on behalf of an individual Indian whose land is held in trust or restricted status. Pub. L. 92-353, Sec. 1(a), inserted proviso that an action for money damages brought by the United States on behalf of American Indians shall not be barred unless the complaint is filed more than six years and ninety days after the right of action accrued. Subsec. (b). Pub. L. 92-485, Sec. 1(b), inserted exception relating to actions for or on behalf of a recognized tribe, band, or group of American Indians, including actions relating to allotted trust or restricted Indian lands, or on behalf of an individual Indian whose land is held in trust or restricted status. Pub. L. 92-353, Sec. 1(b), increased the period of limitation to six years and ninety days for actions brought by the United States under the subsection for or on behalf of American Indians. SHORT TITLE OF 1982 AMENDMENT Section 1 of Pub. L. 97-394, as amended by Pub. L. 98-250, Sec. 4(b), Apr. 3, 1984, 98 Stat. 119, provided that: 'Sections 2 through 6 of this Act (amending this section and enacting provisions set out below) may be cited as the 'Indian Claims Limitation Act of 1982'.' PUBLICATION OF LIST OF INDIAN CLAIMS; ADDITIONAL CLAIMS; TIME TO COMMENCE ACTION; REJECTION OF CLAIMS; CLAIMS RESOLVED BY LEGISLATION Sections 3 to 6 of Pub. L. 97-394 provided that: 'Sec. 3. (a) Within ninety days after the enactment of this Act (Dec. 30, 1982), the Secretary of the Interior (hereinafter referred to as the 'Secretary') shall publish in the Federal Register a list of all claims accruing to any tribe, band or group of Indians or individual Indian on or before July 18, 1966, which have at any time been identified by or submitted to the Secretary under the 'Statute of Limitation Project' undertaken by the Department of the Interior and which, but for the provisions of this Act (see Short Title of 1982 Amendment note above), would be barred by the provisions of section 2415 of title 28, United States Code: Provided, That the Secretary shall have the discretion to exclude from such list any matter which was erroneously identified as a claim and which has no legal merit whatsoever. '(b) Such list shall group the claims on a reservation-by-reservation, tribe-by-tribe, or State-by-State basis, as appropriate, and shall state the nature and geographic location of each claim and only such other additional information as may be needed to identify specifically such claims. '(c) Within thirty days after the publication of this list, the Secretary shall provide a copy of the Indian Claims Limitation Act of 1982 (see Short Title of 1982 Amendment note above) and a copy of the Federal Register containing this list, or such parts as may be pertinent, to each Indian tribe, band or group whose rights or the rights of whose members could be affected by the provisions of section 2415 of title 28, United States Code. 'Sec. 4. (a) Any tribe, band or group of Indians or any individual Indian shall have one hundred and eighty days after the date of the publication in the Federal Register of the list provided for in section 3 of this Act to submit to the Secretary any additional specific claim or claims which such tribe, band or group of Indians or individual Indian believes may be affected by section 2415 of title 28, United States Code, and desires to have considered for litigation or legislation by the United States. '(b) Any such claim submitted to the Secretary shall be accompanied by a statement identifying the nature of the claim, the date when the right of action allegedly accrued, the names of the potential plaintiffs and defendants, if known, and such other information needed to identify and evaluate such claim. '(c) Not more than thirty days after the expiration of the one hundred and eighty day period provided for in subsection (a) of this section, the Secretary shall publish in the Federal Register a list containing the additional claims submitted during such period: Provided, That the Secretary shall have the discretion to exclude from such list any matter which has not been sufficiently identified as a claim. 'Sec. 5. (a) Any right of action shall be barred sixty days after the date of the publication of the list required by section 4(c) of this Act for those pre-1966 claims which, but for the provisions of this Act (see Short Title of 1982 Amendment note above), would have been barred by section 2415 of title 28, United States Code, unless such claims are included on either of the lists required by section 3 or 4(c) of this Act. '(b) If the Secretary decides to reject for litigation any of the claims or groups or categories of claims contained on either of the lists required by section 3 or 4(c) of this Act, he shall send a report to the appropriate tribe, band, or group of Indians, whose rights or the rights of whose members could be affected by such rejection, advising them of his decision. The report shall identify the nature and geographic location of each rejected claim and the name of the potential plaintiffs and defendants if they are known or can be reasonably ascertained and shall, briefly, state the reasons why such claim or claims were rejected for litigation. Where the Secretary knows or can reasonably ascertain the identity of any of the potential individual Indian plaintiffs and their present addresses, he shall provide them with written notice of such rejection. Upon the request of any Indian claimant, the Secretary shall, without undue delay, provide to such claimant any nonprivileged research materials or evidence gathered by the United States in the documentation of such claim. '(c) The Secretary, as soon as possible after providing the report required by subsection (b) of this section, shall publish a notice in the Federal Register identifying the claims covered in such report. With respect to any claim covered by such report, any right of action shall be barred unless the complaint is filed within one year after the date of publication in the Federal Register. 'Sec. 6. (a) If the Secretary determines that any claim or claims contained in either of the lists as provided in sections 3 or 4(c) of this Act is not appropriate for litigation, but determines that such claims may be appropriately resolved by legislation, he shall submit to the Congress legislation to resolve such claims or shall submit to Congress a report setting out options for legislative resolution of such claims. '(b) Any right of action on claims covered by such legislation or report shall be barred unless the complaint is filed within 3 years after the date of submission of such legislation or legislative report to Congress.' LEGISLATIVE PROPOSALS RESPECTING APPROPRIATENESS OF RESOLUTION BY LITIGATION OF UNRESOLVED INDIAN CLAIMS Section 2 of Pub. L. 96-217 provided that: 'Not later than June 30, 1981, the Secretary of the Interior, after consultation with the Attorney General, shall submit to the Congress legislative proposals to resolve those Indian claims subject to the amendments made by the first section of this Act (amending this section) that the Secretary of the Interior or the Attorney General believes are not appropriate to resolve by litigation.' -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2416 of this title; title 31 section 3716. ------DocID 36852 Document 714 of 1452------ -CITE- 28 USC Sec. 2416 -EXPCITE- TITLE 28 PART VI CHAPTER 161 -HEAD- Sec. 2416. Time for commencing actions brought by the United States - Exclusions -STATUTE- For the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which - (a) the defendant or the res is outside the United States, its territories and possessions, the District of Columbia, or the Commonwealth of Puerto Rico; or (b) the defendant is exempt from legal process because of infancy, mental incompetence, diplomatic immunity, or for any other reason; or (c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances; or (d) the United States is in a state of war declared pursuant to article I, section 8, of the Constitution of the United States. -SOURCE- (Added Pub. L. 89-505, Sec. 1, July 18, 1966, 80 Stat. 305.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2415 of this title; title 20 section 1091a. ------DocID 36853 Document 715 of 1452------ -CITE- 28 USC CHAPTER 163 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- CHAPTER 163 - FINES, PENALTIES AND FORFEITURES -MISC1- Sec. 2461. Mode of recovery. 2462. Time for commencing proceedings. 2463. Property taken under revenue law not repleviable. 2464. Security; special bond. 2465. Return of property to claimant; certificate of reasonable cause; liability for wrongful seizure. ------DocID 36854 Document 716 of 1452------ -CITE- 28 USC Sec. 2461 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- Sec. 2461. Mode of recovery -STATUTE- (a) Whenever a civil fine, penalty or pecuniary forfeiture is prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof, it may be recovered in a civil action. (b) Unless otherwise provided by Act of Congress, whenever a forfeiture of property is prescribed as a penalty for violation of an Act of Congress and the seizure takes place on the high seas or on navigable waters within the admiralty and maritime jurisdiction of the United States, such forfeiture may be enforced by libel in admiralty but in cases of seizures on land the forfeiture may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974.) -MISC1- HISTORICAL AND REVISION NOTES Subsection (a) was drafted to clarify a serious ambiguity in existing law and is based upon rulings of the Supreme Court. Numerous sections in the United States Code prescribe civil fines, penalties, and pecuniary forfeitures for violation of certain sections without specifying the mode of recovery or enforcement thereof. See, for example, section 567 of title 12, U.S.C., 1940 ed., Banks and Banking, section 64 of title 14, U.S.C., 1940 ed., Coast Guard, and section 180 of title 25, U.S.C., 1940 ed., Indians. Compare section 1 (21) of title 49, U.S.C., 1940 ed., Transportation. A civil fine, penalty, or precuniary forfeiture is recoverable in a civil action. United States ex rel. Marcus v. Hess et al., 1943, 63 S.Ct. 379, 317 U.S. 537, 87 L.Ed. 433, rehearing denied 63 S.Ct. 756, 318 U.S. 799, 87 L.Ed. 1163; Hepner v. United States, 1909, 29 S.Ct. 474, 213 U.S. 103, 53 L.Ed. 720, and cases cited therein. Forfeiture of bail bonds in criminal cases are enforceable by procedure set out in Rule 46 of the Federal Rules of Criminal Procedure. If the statute contemplates a criminal fine, it can only be recovered in a criminal proceeding under the Federal Rules of Criminal Procedure, after a conviction. The collection of civil fines and penalties, however, may not be had under the Federal Rules of Criminal Procedure, Rule 54(b)(5), but enforcement of a criminal fine imposed in a criminal case may be had by execution on the judgment rendered in such case, as in civil actions. (See section 569 of title 18, U.S.C., 1940 ed., Crimes and Criminal Procedure, incorporated in section 3565 of H.R. 1600, 80th Congress, for revision of the Criminal Code. See also Rule 69 of Federal Rules of Civil Procedure and Advisory Committee Note thereunder, as to execution in civil actions.) Subsection (b) was drafted to cover the subject of forfeiture of property generally. Sections in the United States Code specifically providing a mode of enforcement of forfeiture of property for their violation and other procedural matters will, of course, govern and subsection (b) will not affect them. It will only cover cases where no mode of recovery is prescribed. Words 'Unless otherwise provided by enactment of Congress' were inserted at the beginning of subsection (b) to exclude from its application instances where a libel in admiralty is not required. For example, under sections 1607, 1609, and 1610 of title 19, U.S.C., 1940 ed., Customs Duties, the collector of customs may, by summary procedure, sell at public auction, without previous declaration of forfeiture or libel proceedings, any vessel, etc., under $1,000 in value in cases where no claim for the same is filed or bond given as required by customs laws. Rule 81 of the Federal Rules of Civil Procedure makes such rules applicable to the appeals in cases of seizures on land. (See also 443 Cans of Frozen Egg Product v. United States, 1912, 33 S.Ct. 50, 226 U.S. 172, 57 L.Ed. 174, and Eureka Productions v. Mulligan, C.C.A. 1940, 108 F.2d 760.) The proceeding, which resembles a suit in admiralty in that it is begun by a libel, is, strictly speaking, an 'action at law' (The Sarah, 1823, 8 Wheat. 391, 21 U.S. 391, 5 L.Ed. 644; Morris's Cotton, 1869, 8 Wall. 507, 75 U.S. 507, 19 L.Ed. 481; Confiscation cases, 1873, 20 Wall. 92, 87 U.S. 92, 22 L.Ed. 320; Eureka Productions v. Mulligan, supra), even though the statute may direct that the proceedings conform to admiralty as near as may be. In re Graham, 1870, 10 Wall. 541, 19 L.Ed. 981, and 443 Cans of Frozen Egg Product v. United States, supra. Subsection (b) is in conformity with Rule 21 of the Supreme Court Admiralty Rules, which recognizes that a libel may be filed upon seizure for any breach of any enactment of Congress, whether on land or on the high seas or on navigable waters within the admiralty and maritime jurisdiction of the United States. Such rule also permits an information to be filed, but is rarely, if ever, used at present. Consequently, 'information' has been omitted from the text and only 'libel' is incorporated. FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, provided that: 'SHORT TITLE 'Section 1. This Act may be cited as the 'Federal Civil Penalties Inflation Adjustment Act of 1990'. 'FINDINGS AND PURPOSE 'Sec. 2. (a) Findings. - The Congress finds that - '(1) the power of Federal agencies to impose civil monetary penalties for violations of Federal law and regulations plays an important role in deterring violations and furthering the policy goals embodied in such laws and regulations; '(2) the impact of many civil monetary penalties has been and is diminished due to the effect of inflation; '(3) by reducing the impact of civil monetary penalties, inflation has weakened the deterrent effect of such penalties; and '(4) the Federal Government does not maintain comprehensive, detailed accounting of the efforts of Federal agencies to assess and collect civil monetary penalties. '(b) Purpose. - The purpose of this Act is to establish a mechanism that shall - '(1) allow for regular adjustment for inflation of civil monetary penalties; '(2) maintain the deterrent effect of civil monetary penalties and promote compliance with the law; and '(3) improve the collection by the Federal Government of civil monetary penalties. 'DEFINITIONS 'Sec. 3. For purposes of this Act, the term - '(1) 'agency' means an Executive agency as defined under section 105 of title 5, United States Code, and includes the United States Postal Service; '(2) 'civil monetary penalty' means any penalty, fine, or other sanction that - '(A)(i) is for a specific monetary amount as provided by Federal law; or '(ii) has a maximum amount provided for by Federal law; and '(B) is assessed or enforced by an agency pursuant to Federal law; and '(C) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts; and '(3) 'Consumer Price Index' means the Consumer Price Index for all-urban consumers published by the Department of Labor. 'CIVIL MONETARY PENALTY INFLATION ADJUSTMENT REPORTS 'Sec. 4. Within 6 months after the date of the enactment of this Act (Oct. 5, 1990), and on January 1 of each fifth calendar year thereafter, the President shall submit a report on civil monetary penalty inflation adjustment to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives. Such report shall include - '(1) each civil monetary penalty as defined under section 3(2); '(2) the date each civil monetary penalty was most recently set pursuant to law; '(3) the maximum amount of each civil monetary penalty or, if applicable, the range of the minimum and maximum amounts of each civil monetary penalty in effect on the date of the submission of such report; '(4) the amount of each civil monetary penalty described under paragraph (3) other than any such penalty for which inflation adjustment is provided by law, if each such penalty is increased by the adjustment described under section 5; and '(5) a listing of the modifications to Federal law that would be required to - '(A) increase each penalty described in paragraph (1) by the adjustments described under section 5, excluding any penalty for which inflation adjustment is provided by law or that has been increased within the 5-year period immediately preceding the date of the submission of such report; and '(B) provide that any increase in any civil monetary penalty shall apply only to violations which occur after the date any such increase takes effect. 'COST-OF-LIVING ADJUSTMENTS OF CIVIL MONETARY PENALTIES 'Sec. 5. (a) Adjustment. - The adjustment described under paragraphs (4) and (5)(A) of section 4 shall be determined by increasing the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment. Any increase determined under this subsection shall be rounded to the nearest - '(1) multiple of $10 in the case of penalties less than or equal to $100; '(2) multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000; '(3) multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000; '(4) multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000; '(5) multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and '(6) multiple of $25,000 in the case of penalties greater than $200,000. '(b) Definition. - For purposes of subsection (a), the term 'cost-of-living adjustment' means the percentage (if any) for each civil monetary penalty by which - '(1) the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds '(2) the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law. 'ANNUAL REPORT 'Sec. 6. No later than January 1 of each year, the President shall submit a report on civil monetary penalties to the Congress which shall include - '(1) to the extent possible, the number and amount of civil monetary penalties imposed pursuant to each provision of law providing for such civil monetary penalties, during the complete fiscal year preceding the submission of such report; '(2) to the extent possible, the number and amount of such civil penalties collected during such fiscal year; and '(3) any recommendations that the President determines appropriate to - '(A) eliminate obsolete civil monetary penalties; '(B) modify the amount of any civil monetary penalty; or '(C) make any other legislative modifications concerning civil monetary penalties.' -CROSS- 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. ------DocID 36855 Document 717 of 1452------ -CITE- 28 USC Sec. 2462 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- Sec. 2462. Time for commencing proceedings -STATUTE- Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 791 (R.S. Sec. 1047). Changes were made in phraseology. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 6533; title 45 section 64a. ------DocID 36856 Document 718 of 1452------ -CITE- 28 USC Sec. 2463 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- Sec. 2463. Property taken under revenue law not repleviable -STATUTE- All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 747 (R.S. Sec. 934). Changes were made in phraseology. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7434. ------DocID 36857 Document 719 of 1452------ -CITE- 28 USC Sec. 2464 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- Sec. 2464. Security; special bond -STATUTE- (a) Except in cases of seizures for forfeiture under any law of the United States, whenever a warrant of arrest or other process in rem is issued in any admiralty case, the United States marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiving from the respondent or claimant of the property a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge of the district court where the case is pending, or, in his absence, by the collector of the port, conditioned to answer the decree of the court in such case. Such bond or stipulation shall be returned to the court, and judgment or decree thereon, against both the principal and sureties, may be secured at the time of rendering the decree in the original case. The owner of any vessel may deliver to the marshal a bond or stipulation, with sufficient surety, to be approved by the judge of the district court, conditioned to answer the decree of such court in all or any cases that are brought thereafter in such court against the vessel. Thereupon the execution of all such process against such vessel shall be stayed so long as the amount secured by such bond or stipulation is at least double the aggregate amount claimed by libellants in such suits which are begun and pending against such vessel. Similar judgments or decrees and remedies may be had on such bond or stipulation as if a special bond or stipulation had been filed in each of such suits. (b) The court may make necessary orders to carry this section into effect, particularly in giving proper notice of any such suit. Such bond or stipulation shall be indorsed by the clerk with a minute of the suits wherein process is so stayed. Further security may be required by the court at any time. (c) If a special bond or stipulation in the particular case is given under this section, the liability as to said case on the general bond or stipulation shall cease. The parties may stipulate the amount of the bond or stipulation for the release of a vessel or other property to be not more than the amount claimed in the libel, with interest, plus an allowance for libellant's costs. In the event of the inability or refusal of the parties to so stipulate, the court shall fix the amount, but if not so fixed then a bond shall be required in the amount prescribed in this section. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 974.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 754 (R.S. Sec. 941; Mar. 3, 1899, ch. 441, 30 Stat. 1354; Aug. 3, 1935, ch. 431, Sec. 3, 49 Stat. 513). Changes were made in phraseology. -TRANS- TRANSFER OF FUNCTIONS All offices of collector of customs, comptroller of customs, surveyor of customs, and appraiser of merchandise of Bureau of Customs of Department of the Treasury to which appointments were required to be made by the President with the advice and consent of the Senate were ordered abolished, with such offices to be terminated not later than Dec. 31, 1966, by Reorg. Plan No. 1, of 1965, eff. May 25, 1965, 30 F.R. 7035, 79 Stat. 1317, set out in the Appendix to Title 5, Government Organization and Employees. All functions of the offices eliminated were already vested in the Secretary of the Treasury by Reorg. Plan No. 26 of 1950, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to Title 5. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Admirality 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. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 16 sections 916g, 958, 959, 971f, 972g. ------DocID 36858 Document 720 of 1452------ -CITE- 28 USC Sec. 2465 -EXPCITE- TITLE 28 PART VI CHAPTER 163 -HEAD- Sec. 2465. Return of property to claimant; certificate of reasonable cause; liability for wrongful seizure -STATUTE- Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 975.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 818, 827 (R.S. Sec. 970, 979). Section consolidates sections 818 and 827 of title 28, U.S.C., 1940 ed., with changes of phraseology necessary to effect the consolidation. The words 'in any proceeding to condemn or forfeit property' were inserted in conformity with the uniform course of judicial decisions. See Hammel v. Little, App.D.C. 1936, 87 F.2d 907, and cases there cited. The qualifying language of section 827 of title 28, U.S.C., 1940 ed., requiring the claimant to pay his own costs before the return of his property was omitted as unnecessary and involving a matter more properly for regulation by rule of court. (See sections 1913, 1914, and 1925 of this title.) (See also section 2006 of this title with respect to actions against internal revenue officers and their liability for acts in the performance of official duties.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7328. ------DocID 36859 Document 721 of 1452------ -CITE- 28 USC CHAPTER 165 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- CHAPTER 165 - UNITED STATES CLAIMS COURT PROCEDURE -MISC1- Sec. 2501. Time for filing suit. 2502. Aliens' privilege to sue. 2503. Proceedings generally. 2504. Plaintiff's testimony. 2505. Trial before judges. 2506. Interest of witness. 2507. Calls and discovery. 2508. Counterclaim or set-off. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 2509. Congressional reference cases. 2510. Referral of cases by Comptroller General. 2511. Accounts of officers, agents or contractors. 2512. Disbursing officers; relief. 2513. Unjust conviction and imprisonment. 2514. Forfeiture of fraudulent claims. 2515. New trial, stay of judgment. 2516. Interest on claims and judgments. 2517. Payment of judgments. (2518. Repealed.) 2519. Conclusiveness of judgment. 2520. Fees. 2521. Subpoenas. 2522. Notice of appeal. AMENDMENTS 1982 - Pub. L. 97-164, title I, Sec. 139(b)(2), (i)(2), (l), (n)(4), (o)(2), (q)(2), Apr. 2, 1982, 96 Stat. 42-44, substituted 'UNITED STATES CLAIMS COURT' for 'COURT OF CLAIMS' in chapter heading, substituted 'Proceedings generally' for 'Proceedings before commissioners generally' in item 2503, substituted 'Referral of cases by Comptroller General' for 'Referral of cases by the Comptroller General or the head of an executive department or agency' in item 2510, struck out item 2518 'Certification of judgments for appropriation', substituted 'Fees' for 'Fees; cost of printing record' in item 2520, and added item 2522. 1978 - Pub. L. 95-563, Sec. 14(h)(2)(B), Nov. 1, 1978, 92 Stat. 2390, inserted 'or the head of an executive department or agency' after 'Comptroller General' in item 2510. 1954 - Act Sept. 3, 1954, ch. 1263, Sec. 46, 54(c), 55(d), 59(b), 68 Stat. 1243, 1247, 1248, substituted 'Trial before judges' for 'Place of taking evidence' in item 2505, and 'Calls and discovery,' for 'Calls on departments for information' in item 2507, rephrased item 2510, and added item 2521. ------DocID 36860 Document 722 of 1452------ -CITE- 28 USC Sec. 2501 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2501. Time for filing suit -STATUTE- Every claim of which the United States Claims Court has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues. Every claim under section 1497 of this title shall be barred unless the petition thereon is filed within two years after the termination of the river and harbor improvements operations on which the claim is based. A petition on the claim of a person under legal disability or beyond the seas at the time the claim accrues may be filed within three years after the disability ceases. A suit for the fees of an officer of the United States shall not be filed until his account for such fees has been finally acted upon, unless the General Accounting Office fails to act within six months after receiving the account. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263, Sec. 52, 68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(a), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 250(2), 250a, and 262 (Mar. 3, 1911, ch. 231, Sec. 145, 156, 36 Stat. 1136, 1139; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24; Aug. 30, 1935, ch. 831, Sec. 13, 49 Stat. 1049; July 13, 1943, ch. 231, 57 Stat. 553). Section consolidates limitation provisions of sections 250(2), 250a, and 262 of title 28, U.S.C., 1940 ed. Words 'a person under legal disability or beyond the seas at the time the claim accrues' were substituted for 'married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued; entitled to the claim,'. The revised language will cover all legal disabilities actually barring suit. For example, the particular reference to married women is archaic, and is eliminated by use of the general language substituted. Words 'nor shall any of the said disabilities operate cumulatively' were omitted, in view of the elimination of the reference to specific disabilities. Also, persons under legal disability could not sue, and their suits should not be barred until they become able to sue. Similar sections of the U.S. Code do not contain any such provision. (For example, see section 502 of title 28, U.S.C., 1940 ed., incorporated in section 544 of this title.) The section was extended to include claims referred by the head of an executive department in conformity with section 2510 of this title. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1954 - Act Sept. 3, 1954, struck out ', or the claim is referred by the Senate or House of Representatives, or by the head of an executive department' in first par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -CROSS- CROSS REFERENCES Use or manufacture by United States of design relating to aircraft or aircraft component, time for filing action, see section 2273 of Title 10, Armed Forces. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 41 section 114. ------DocID 36861 Document 723 of 1452------ -CITE- 28 USC Sec. 2502 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2502. Aliens' privilege to sue -STATUTE- (a) Citizens or subjects of any foreign government which accords to citizens of the United States the right to prosecute claims against their government in its courts may sue the United States in the United States Claims Court if the subject matter of the suit is otherwise within such court's jurisdiction. (b) See section 7422(f) of the Internal Revenue Code of 1986 for exception with respect to suits involving internal revenue taxes. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 976; Nov. 2, 1966, Pub. L. 89-713, Sec. 3(b), 80 Stat. 1108; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(a), 96 Stat. 42; Oct. 22, 1986, Pub. L. 99-514, Sec. 2, 100 Stat. 2095.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 261 (Mar. 3, 1911, ch. 231, Sec. 155, 36 Stat. 1139). Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT Section 7422(f) of the Internal Revenue Code of 1986, referred to in subsec. (b), is classified to section 7422(f) of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Subsec. (b). Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. 1982 - Subsec. (a). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1966 - Pub. L. 89-713 designated existing provisions as subsec. (a) and added subsec. (b). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-713 applicable to suits brought against officers, employees, or personal representatives instituted 90 days or more after Nov. 2, 1966, see section 3(d) of Pub. L. 89-713, set out as a note under section 7422 of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7422. ------DocID 36862 Document 724 of 1452------ -CITE- 28 USC Sec. 2503 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2503. Proceedings generally -STATUTE- (a) Parties to any suit in the United States Claims Court may appear before a judge of that court in person or by attorney, produce evidence, and examine witnesses. (b) The proceedings of the Claims Court shall be in accordance with such rules of practice and procedure (other than the rules of evidence) as the Claims Court may prescribe and in accordance with the Federal Rules of Evidence. (c) The judges of the Claims Court shall fix times for trials, administer oaths or affirmations, examine witnesses, receive evidence, and enter dispositive judgments. Hearings shall, if convenient, be held in the counties where the witnesses reside. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263, Sec. 53, 68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(b)(1), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 269, 276, and 278 (Mar. 3, 1911, ch. 231, Sec. 168, 170, 36 Stat. 1140; Feb. 24, 1925, ch. 301, Sec. 1, 43 Stat. 964; June 23, 1930, ch. 573, Sec. 2, 46 Stat. 799). Section consolidates provisions relating to proceedings before commissioners and reporter-commissioners contained in sections 269, 276, and 278 of title 28, U.S.C., 1940 ed. Provisions of section 269 of title 28, U.S.C., 1940 ed., relating to appointment and compensation of commissioners are incorporated in section 792 of this title. Words 'including reporter-commissioners' after 'commissioners' were inserted to clarify meaning and conform to Rule 54(a) of the Court of Claims authorizing oaths before reporter-commissioners. Changes were made in phraseology. SENATE REVISION AMENDMENT The Senate amended this section by inserting 'and when directed by the court his recommendations for conclusions of law' following 'commissioner' in the second paragraph. This amendment authorizes the Court to direct its commissioners to report recommendations for conclusions of law as well as findings of fact in cases assigned to them. 80th Congress Senate Report No. 1559, Amendment No. 50. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (b), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Proceedings generally' for 'Proceedings before commissioners generally' in section catchline. Subsec. (a). Pub. L. 97-164 substituted 'Parties to any suit in the United States Claims Court may appear before a judge of that court in person or by attorney, produce evidence, and examine witnesses' for 'Parties to any suit in the Court of Claims may appear before a commissioner in person or by attorney, produce evidence and examine witnesses' and redesignated as subsec. (c) provisions that, in accordance with rules and orders of the court, commissioners would fix times for trials, administer oaths or affirmations to and examine witnesses, receive evidence and report findings of fact, that when directed by the court, commissioners would report their recommendations for conclusions of law in cases assigned to them, and that hearings would, if convenient, be held in the counties where the witnesses resided. Subsec. (b). Pub. L. 97-164 substituted 'The proceedings of the Claims Court shall be in accordance with such rules of practice and procedure (other than the rules of evidence) as the Claims Court may prescribe and in accordance with the Federal Rules of Evidence' for 'The rules of the court shall provide for the filing in court of the commissioner's report of facts and recommendations for conclusions of law, and for opportunity for the parties to file exceptions thereto, and a hearing thereon before the court within a reasonable time' and struck out provision that this section did not prevent the court from passing upon all questions and findings regardless of whether exceptions were taken before a commissioner. Subsec. (c). Pub. L. 97-164 redesignated provisions in second and third sentences of former subsec. (a) as (c) and substituted 'The judges of the Claims Court' for 'In accordance with rules and orders of the court, commissioners' and 'enter dispositive judgments' for 'report findings of fact and, when directed by the court, their recommendations for conclusions of law in cases assigned to them'. 1954 - Act Sept. 3, 1954, designated former first par. subsec. (a), and former second par. subsec. (b), and incorporated in one place provisions relating to function of Commissioners. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36863 Document 725 of 1452------ -CITE- 28 USC Sec. 2504 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2504. Plaintiff's testimony -STATUTE- The United States Claims Court may, at the instance of the Attorney General, order any plaintiff to appear, upon reasonable notice, before any judge of the court and be examined on oath as to all matters pertaining to his claim. Such examination shall be reduced to writing by the judge, and shall be returned to and filed in the court, and may, at the discretion of the attorneys for the United States, be read and used as evidence on the trial. If any plaintiff, after such order is made and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all material matters within his knowledge, the court may order that the case shall not be tried until he fully complies with such order. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 976; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(c), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 274 (Mar. 3, 1911, ch. 231, Sec. 166, 36 Stat. 1140). Words 'Attorney General' were substituted for 'attorney or solicitor appearing in behalf of the United States,' in view of section 309 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims', and 'judge' for 'commissioner' wherever appearing. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36864 Document 726 of 1452------ -CITE- 28 USC Sec. 2505 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2505. Trial before judges -STATUTE- Any judge of the United States Claims Court may sit at any place within the United States to take evidence and enter judgment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 976; Sept. 3, 1954, ch. 1263, Sec. 54(a), (b), 68 Stat. 1246; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(d), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 275 and 275a (Mar. 3, 1911, ch. 231, Sec. 167, 36 Stat. 1140; Feb. 24, 1925, ch. 301, Sec. 2, 43 Stat. 965; June 23, 1930, ch. 573, Sec. 1, 46 Stat. 799; Oct. 16, 1941, ch. 443, 55 Stat. 741). Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims' and 'enter judgment' for 'report findings'. 1954 - Act Sept. 3, 1954, substituted 'Trial before judges' for 'Place of taking evidence' in section catchline and repealed second par. relating to taking of testimony. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36865 Document 727 of 1452------ -CITE- 28 USC Sec. 2506 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2506. Interest of witness -STATUTE- A witness in a suit in the United States Claims Court shall not be exempt or disqualified because he is a party to or interested in such suit. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(e), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 274 (Mar. 3, 1911, ch. 231, Sec. 186, 36 Stat. 1143; Feb. 5, 1912, ch. 28, 37 Stat. 61). A provision that a witness should not be disqualified by color was omitted as obsolete and unnecessary, since no such disqualification could be invoked in absence of statutory authority. A provision that the United States could examine any plaintiff or party interested is covered by the word 'exempt' in the revised section, and by section 2504 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36866 Document 728 of 1452------ -CITE- 28 USC Sec. 2507 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2507. Calls and discovery -STATUTE- (a) The United States Claims Court may call upon any department or agency of the United States or upon any party for any information or papers, not privileged, for purposes of discovery or for use as evidence. The head of any department or agency may refuse to comply with a call issued pursuant to this subsection when, in his opinion, compliance will be injurious to the public interest. (b) Without limitation on account of anything contained in subsection (a) of this section, the court may, in accordance with its rules, provide additional means for the discovery of any relevant facts, books, papers, documents or tangible things, not privileged. (c) The Claims Court may use all recorded and printed reports made by the committees of the Senate or House of Representatives. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; Sept. 3, 1954, ch. 1263, Sec. 55(a)-(c), 68 Stat. 1247; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(f), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 272 (Mar. 3, 1911, ch. 231, Sec. 164, 36 Stat. 1140). Words 'or agency' were added. (See reviser's note under section 1345 of this title.) Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 139(f)(1), substituted 'United States Claims Court' for 'Court of Claims'. Subsec. (c). Pub. L. 97-164, Sec. 139(f)(2), substituted 'Claims Court' for 'Court of Claims'. 1954 - Act Sept. 3, 1954, substituted 'Calls and discovery' for 'Calls on departments for information' in section catchline, designated existing provisions as subsec. (a), and added subsecs. (b) and (c). EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36867 Document 729 of 1452------ -CITE- 28 USC Sec. 2508 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2508. Counterclaim or set-off; registration of judgment -STATUTE- Upon the trial of any suit in the United States Claims Court in which any setoff, counterclaim, claim for damages, or other demand is set up on the part of the United States against any plaintiff making claim against the United States in said court, the court shall hear and determine such claim or demand both for and against the United States and plaintiff. If upon the whole case it finds that the plaintiff is indebted to the United States it shall render judgment to that effect, and such judgment shall be final and reviewable. The transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records and shall be enforceable as other judgments. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, Sec. 10, 67 Stat. 227; Sept. 3, 1954, ch. 1263, Sec. 47(a), 68 Stat. 1243; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(g), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 252 (Mar. 3, 1911, ch. 231, Sec. 146, 36 Stat. 1137). Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1954 - Act Sept. 3, 1954, struck out 'United States' from name of Court of Claims in first par. 1953 - Act July 28, 1953, substituted 'United States Court of Claims' for 'Court of Claims' in first par., and substituted 'shall be enforceable as other judgments' for 'be a judgment of such district court and enforceable as such' in third par. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36868 Document 730 of 1452------ -CITE- 28 USC Sec. 2509 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2509. Congressional reference cases -STATUTE- (a) Whenever a bill, except a bill for a pension, is referred by either House of Congress to the chief judge of the United States Claims Court pursuant to section 1492 of this title, the chief judge shall designate a judge as hearing officer for the case and a panel of three judges of the court to serve as a reviewing body. One member of the review panel shall be designated as presiding officer of the panel. (b) Proceedings in a congressional reference case shall be under rules and regulations prescribed for the purpose by the chief judge who is hereby authorized and directed to require the application of the pertinent rules of practice of the Claims Court insofar as feasible. Each hearing officer and each review panel shall have authority to do and perform any acts which may be necessary or proper for the efficient performance of their duties, including the power of subpoena and the power to administer oaths and affirmations. None of the rules, rulings, findings, or conclusions authorized by this section shall be subject to judicial review. (c) The hearing officer to whom a congressional reference case is assigned by the chief judge shall proceed in accordance with the applicable rules to determine the facts, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. He shall append to his findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitable due from the United States to the claimant. (d) The findings and conclusions of the hearing officer shall be submitted by him, together with the record in the case, to the review panel for review by it pursuant to such rules as may be provided for the purpose, which shall include provision for submitted the report of the hearing officer to the parties for consideration, exception, and argument before the panel. The panel, by majority vote, shall adopt or modify the findings or the conclusions of the hearing officer. (e) The panel shall submit its report to the chief judge for transmission to the appropriate House of Congress. (f) Any act or failure to act or other conduct by a party, a witness, or an attorney which would call for the imposition of sanctions under the rules of practice of the Claims Court shall be noted by the panel or the hearing officer at the time of occurrence thereof and upon failure of the delinquent or offending party, witness, or attorney to make prompt compliance with the order of the panel or the hearing officer a full statement of the circumstances shall be incorporated in the report of the panel. (g) The Claims Court is hereby authorized and directed, under such regulations as it may prescribe, to provide the facilities and services of the office of the clerk of the court for the filing, processing, hearing, and dispatch of congressional reference cases and to include within its annual appropriations the costs thereof and other costs of administration, including (but without limitation to the items herein listed) the salaries and traveling expenses of the judges serving as hearing officers and panel members, mailing and service of process, necessary physical facilities, equipment, and supplies, and personnel (including secretaries and law clerks). -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; Oct. 15, 1966, Pub. L. 89-681, Sec. 2, 80 Stat. 958; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(h), 96 Stat. 42.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 257 (Mar. 3, 1911, ch. 231, Sec. 151, 36 Stat. 1138). Jurisdiction provisions of section 257 of title 28, U.S.C., 1940 ed., appear in section 1492 of this title. A provision as to the court's power to render judgment on a referred claim and its duty to report thereon to Congress, was omitted from this section as covered by sections 791(c) and 1492 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 139(h)(1), substituted 'chief judge' for 'chief commissioner' wherever appearing, 'United States Claims Court' for 'Court of Claims', 'judge as hearing officer' for 'trial commissioner', 'judges' for 'commissioners', and 'presiding officer' for 'presiding commissioner'. Subsec. (b). Pub. L. 97-164, Sec. 139(h)(2)(A)-(C), substituted 'chief judge' for 'chief commissioner', 'Claims Court' for 'Court of Claims', and 'hearing officer' for 'trial commissioner'. Subsec. (c). Pub. L. 97-164, Sec. 139(h)(2)(A), (B), substituted 'hearing officer' for 'trial commissioner' and 'chief judge' for 'chief commissioner'. Subsec. (d). Pub. L. 97-164, Sec. 139(h)(2)(A), (D), substituted 'hearing officer' for 'trial commissioner' wherever appearing and struck out 'of commissioners' after 'review panel'. Subsec. (e). Pub. L. 97-164, Sec. 139(h)(2)(B), substituted 'chief judge' for 'chief commissioner'. Subsec. (f). Pub. L. 97-164, Sec. 139(h)(2)(A), (C), substituted 'Claims Court' for 'Court of Claims', and 'hearing officer' for 'trial commissioner' wherever appearing. Subsec. (g). Pub. L. 97-164, Sec. 139(h)(2)(C), (E), substituted 'Claims Court' for 'Court of Claims' and 'judges serving as hearing officers' for 'commissioners serving as trial commissioners'. 1966 - Pub. L. 89-681 substituted provisions for reference of bills to the chief commissioner of the Court of Claims pursuant to section 1492 of this title for provisions calling simply for reference to the Court of Claims, substituted provisions naming the trial commissioner to whom a reference case is assigned by the chief commissioner for provisions simply naming the Court of Claims as the agency by which findings and conclusions are made, and inserted provisions for the designation of a trial commissioner and reviewing body consisting of three other commissioners, the promulgation of rules and regulations for Congressional reference cases by the chief commissioner, the procedure to be followed, and the supplying of facilities and personnel for the dispatch of Congressional reference cases. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1492 of this title. ------DocID 36869 Document 731 of 1452------ -CITE- 28 USC Sec. 2510 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2510. Referral of cases by Comptroller General -STATUTE- (a) The Comptroller General may transmit to the United States Claims Court for trial and adjudication any claim or matter of which the Claims Court might take jurisdiction on the voluntary action of the claimant, together with all vouchers, papers, documents, and proofs pertaining thereto. (b) The Claims Court shall proceed with the claims or matters so referred as in other cases pending in such Court and shall render judgment thereon. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, Sec. 11, 67 Stat. 227; Sept. 3, 1954, ch. 1263, Sec. 47(b), 68 Stat. 1243; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(h)(1), (2)(A), 92 Stat. 2390; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(i)(1), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 254 and 255 (Mar. 3, 1911, ch. 231, Sec. 148, 149, 36 Stat. 1137, 1138; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Section consolidates procedural provisions of sections 254 and 255 of title 28, U.S.C., 1940 ed., relating to departmental reference cases. Jurisdiction provisions of such section 254 appear in section 1493 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'Referral of cases by Comptroller General' for 'Referral of cases by the Comptroller General or the head of an executive department or agency' in section catchline. Subsec. (a). Pub. L. 97-164 substituted 'transmit to the United States Claims Court for trial and adjudication any claim or matter of which the Claims Court might take jurisdiction' for 'transmit to the Court of Claims for trial and adjudication any claim or matter of which the Court of Claims might take jurisdiction' in first sentence of subsec. (a). The second sentence of subsec. (a) was redesignated (b). Subsec. (b). Pub. L. 97-164 designated as subsec. (b) the former second sentence of subsec. (a) and substituted 'The Claims Court' for 'The Court of Claims' and 'Court' for 'court'. Former subsec. (b), which provided that the head of any executive department or agency could, with the prior approval of the Attorney General, refer to the Court of Claims for judicial review any final decision rendered by a board of contract appeals pursuant to the terms of any contract with the United States awarded by that department or agency which such head of such department or agency had concluded was not entitled to finality pursuant to the review standards specified in section 10(b) of the Contracts Disputes Act of 1978, with the head of each executive department or agency to make any referral under this section within 120 days of the receipt of a copy of the final appeal decision, that the Court of Claims was to review the matter referred in accordance with the standards specified in section 10(b) of the Contracts Disputes Act of 1978, and that the court was to proceed with judicial review on the administrative record made before the board of contract appeals on matters so referred as in other cases pending in such court, determine the issue of finality of the appeal decision, and render judgment thereon, take additional evidence, or remand the matter pursuant to the authority specified in section 1491 of this title was struck out. 1978 - Pub. L. 95-563, inserted 'or the head of an executive department or agency' in section catchline, designated existing provisions as subsec. (a), and added subsec. (b). 1954 - Act Sept. 3, 1954, substituted 'Referral of cases by Comptroller General' for 'Departmental reference cases' in section catchline. 1953 - Act July 28, 1953, struck out provisions relating to procedure in connection with departmental reference cases provided for by former section 1493 of this title; and, in connection with trial and adjudication of cases referred by the Comptroller General, inserted provision for rendering judgment, and struck out requirement that such cases be transmitted through the Secretary of the Treasury. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. ------DocID 36870 Document 732 of 1452------ -CITE- 28 USC Sec. 2511 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2511. Accounts of officers, agents or contractors -STATUTE- Notice of suit under section 1494 of this title shall be given to the Attorney General, to the Comptroller General, and to the head of the department requested to settle the account in question. The judgment of the United States Claims Court in such suit shall be conclusive upon the parties, and payment of the amount found due shall discharge the obligation. The transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records, and shall be enforceable as other judgments. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 977; July 28, 1953, ch. 253, Sec. 12, 67 Stat. 227; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 287 (Mar. 3, 1911, ch. 231, Sec. 180, 36 Stat. 1141; Feb. 13, 1925, ch. 229, Sec. 3, 43 Stat. 939). Words 'The Attorney General shall represent the United States at the hearing of said cause' were omitted as covered by sections 309 and 310 of title 5, U.S.C., 1940 ed., Executive Departments and Government Officers and Employees. Jurisdiction provisions of section 287 of title 28, U.S.C., 1940 ed., appear in section 1494 of this title. A provision for continuances was omitted as unnecessary, in view of the inherent power of the court to grant continuances in any suit. A provision in section 287 of title 28, U.S.C., 1940 ed., that section 274 of title 28, U.S.C., 1940 ed., should apply to cases under such section 287 was omitted as covered by section 2504 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'The judgment of the United States Claims Court in such suit shall be conclusive' for 'The judgment of the Court of Claims in such suit, or of the Supreme Court upon review, shall be conclusive'. 1953 - Act July 28, 1953, inserted 'to the Comptroller General,' in first par., struck out third par. which provided for accrual to the United States of a right of action upon the judgment, with a limitation period extending to three years after judgment, and inserted provisions for filing and recording the transcript of such judgment in the clerk's office of any district court and for enforcement thereof. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36871 Document 733 of 1452------ -CITE- 28 USC Sec. 2512 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2512. Disbursing officers; relief -STATUTE- Whenever the United States Claims Court finds that any loss by a disbursing officer of the United States was without his fault or negligence, it shall render a judgment setting forth the amount thereof, and the General Accounting Office shall allow the officer such amount as a credit in the settlement of his accounts. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j)(2), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 253 (Mar. 3, 1911, ch. 231, Sec. 147, 36 Stat. 1137; June 10, 1921, ch. 18, Sec. 304, 42 Stat. 24). Words 'paymaster, quartermaster, commissary of subsistence, or other' were omitted as covered by words 'disbursing officer of the United States'. (See reviser's note under section 1496 of this title.) Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36872 Document 734 of 1452------ -CITE- 28 USC Sec. 2513 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2513. Unjust conviction and imprisonment -STATUTE- (a) Any person suing under section 1495 of this title must allege and prove that: (1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and (2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution. (b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received. (c) No pardon or certified copy of a pardon shall be considered by the United States Claims Court unless it contains recitals that the pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired. (d) The Court may permit the plaintiff to prosecute such action in forma pauperis. (e) The amount of damages awarded shall not exceed the sum of $5,000. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 978; Sept. 3, 1954, ch. 1263, Sec. 56, 68 Stat. 1247; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j)(2), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on sections 729-732 of title 18, U.S.C., 1940 ed., Crimes and Criminal Procedure (May 24, 1938, ch. 266, Sec. 1-4, 52 Stat. 438.) Sections 729-732 of title 18, U.S.C., 1940 ed., were consolidated and completely rewritten in order to clarify ambiguities which made the statute unworkable as enacted originally. Jurisdictional provisions of section 729 of title 18, U.S.C., 1940 ed., are incorporated in section 1495 of this title. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (c). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. 1954 - Subsec. (c). Act Sept. 3, 1954, substituted 'considered by' for 'filed with'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36873 Document 735 of 1452------ -CITE- 28 USC Sec. 2514 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2514. Forfeiture of fraudulent claims -STATUTE- A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof. In such cases the United States Claims Court shall specifically find such fraud or attempt and render judgment of forfeiture. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j)(2), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 279 and 280 (Mar. 3, 1911, ch. 231, Sec. 172, 173, 36 Stat. 1141). A provision of section 279 of title 28, U.S.C., 1940 ed., that a judgment of forfeiture shall forever bar the prosecution of the claim was omitted as covered by section 2518 of this title. A provision of section 280 of title 28, U.S.C., 1940 ed., barring allowance by accounting officers of fraudulent claims under Act June 16, 1874, 18 Stat. 75, was omitted as obsolete. A provision of section 280 of title 28, U.S.C., 1940 ed., barring allowance of fraudulent claims by Congress was omitted as unnecessary and superfluous. Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36874 Document 736 of 1452------ -CITE- 28 USC Sec. 2515 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2515. New trial; stay of judgment -STATUTE- (a) The United States Claims Court may grant a plaintiff a new trial on any ground established by rules of common law or equity applicable as between private parties. (b) Such court, at any time while any suit is pending before it, or after proceedings for review have been instituted, or within two years after the final disposition of the suit, may grant the United States a new trial and stay the payment of any judgment upon satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done the United States. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 978; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j)(2), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 281 and 282 (Mar. 3, 1911, ch. 231, Sec. 174, 175, 36 Stat. 1141). Words 'but until an order is made staying the payment of a judgment, the same shall be payable and paid as on March 3, 1911, was provided by law,' in section 282 of title 28, U.S.C., 1940 ed., were omitted as surplusage. Changes were made in phraseology. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36875 Document 737 of 1452------ -CITE- 28 USC Sec. 2516 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2516. Interest on claims and judgments -STATUTE- (a) Interest on a claim against the United States shall be allowed in a judgment of the United States Claims Court only under a contract or Act of Congress expressly providing for payment thereof. (b) Interest on a judgment against the United States affirmed by the Supreme Court after review on petition of the United States is paid at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately before the date of the judgment. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 978; Sept. 3, 1954, ch. 1263, Sec. 57, 68 Stat. 1248; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(j)(2), title III, Sec. 302(d), 96 Stat. 43, 56; Sept. 13, 1982, Pub. L. 97-258, Sec. 2(g)(5), (m)(3), 96 Stat. 1061, 1062.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 284 and section 226 of title 31, U.S.C., 1940 ed., Money and Finance (Sept. 30, 1890, ch. 1126, Sec. 1, 26 Stat. 537; Mar. 3, 1911, ch. 231, Sec. 177, 36 Stat. 1141; Nov. 23, 1921, ch. 136, Sec. 1324(b), 42 Stat. 316; June 2, 1924, ch. 234, Sec. 1020, 43 Stat. 346; Feb. 13, 1925, ch. 229, Sec. 3(c), 43 Stat. 939; Feb. 26, 1926, ch. 27, Sec. 1117, 1200, 44 Stat. 119, 125; May 29, 1928, ch. 852, Sec. 615(a), 45 Stat. 877; June 22, 1936, ch. 690, Sec. 808, 49 Stat. 1746). Subdivision (b) of section 284 of title 28, U.S.C., 1940 ed., was omitted as covered by section 3771 of title 26, U.S.C., 1940 ed., Internal Revenue Code. Such omission required the exception in subdivision (a) of such section 284, reading: 'except as provided in subdivision (b)', to be changed to read: 'or Act of Congress expressly providing for payment thereof.' Subsection (b) of this section is based on the last sentence of section 226 of title 31, U.S.C., 1940 ed., Money and Finance. Changes were made in phraseology. 1982 Act --------------------------------------------------------------------- Revised Section Source (U.S. Code) Source (Statutes at Large) --------------------------------------------------------------------- 28:2516(b) 28:2516(b)(1st sentence words before 'from the date'). ------------------------------- Section 2(g)(5) of the bill restates 28:2516(b) because the provisions in 28:2516(b) on the periods for computing interest were superseded by the source provisions restated in section 1304 of the revised title 31. AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 139(j)(2), substituted 'United States Claims Court' for 'Court of Claims'. Subsec. (b). Pub. L. 97-258 substituted provisions that interest on a judgment against the United States is paid at a rate equal to the coupon issue yield equivalent of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately before the date of judgment for provisions that such interest would be paid at the rate of four percent per annum from the date of the filing of the transcript of the judgment in the Treasury Department to the date of mandate of affirmance by the Supreme Court and that the interest would not be allowed for any period after the term of the Supreme Court at which the judgment was affirmed, and repealed the amendment made by Pub. L. 97-164, Sec. 302(d), eff. Oct. 1, 1982. See, also, section 1304(b) of Title 31, Money and Finance. Pub. L. 97-164, Sec. 302(d), 402, eff. Oct. 1, 1982, struck out 'at the rate of four percent per annum' and all that follows through 'affirmance' and inserted in lieu thereof ', from the date of the filing of the transcript of the judgment in the General Accounting Office to the date of the mandate of the affirmance, at a rate of interest equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment'. 1954 - Subsec. (b). Act Sept. 3, 1954, inserted 'for any period' after 'allowed' in last sentence. EFFECTIVE DATE OF 1982 AMENDMENT Section 2(g)(5) of Pub. L. 97-258 provided that the amendment made by that section is effective Oct. 1, 1982. REPEAL Section 302(d) of Pub. L. 97-164, cited as a credit to this section, was repealed by Pub. L. 97-258, Sec. 2(m)(3), Sept. 13, 1982, 96 Stat. 1062, eff. Oct. 1, 1982. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1961 of this title; title 31 section 1304. ------DocID 36876 Document 738 of 1452------ -CITE- 28 USC Sec. 2517 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2517. Payment of judgments -STATUTE- (a) Except as provided by the Contract Disputes Act of 1978, every final judgment rendered by the United States Claims Court against the United States shall be paid out of any general appropriation therefor, on presentation to the General Accounting Office of a certification of the judgment by the clerk and chief judge of the court. (b) Payment of any such judgment and of interest thereon shall be a full discharge to the United States of all claims and demands arising out of the matters involved in the case or controversy, unless the judgment is designated a partial judgment, in which event only the matters described therein shall be discharged. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 979; Nov. 1, 1978, Pub. L. 95-563, Sec. 14(e), (f), 92 Stat. 2390; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(k), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 285, and sections 225, 228, of title 31, U.S.C., 1940 ed., Money and Finance, (R.S. Sec. 236, 1089; Feb. 18, 1904, ch. 160, Sec. 1, 33 Stat. 41; Mar. 3, 1911, ch. 231, Sec. 178, 36 Stat. 1141; June 10, 1921, ch. 18, Sec. 304, 305, 42 Stat. 24; Feb. 13, 1925, ch. 229, Sec. 3(c), 43 Stat. 939). Section consolidates section 285 of title 28, U.S.C., 1940 ed., and sections 225 and 228 of title 31, U.S.C., 1940 ed., Money and Finance. Words 'chief judge' were substituted for 'the chief justice, or, in his absence, by the presiding judge of said court' in section 225 of title 31, U.S.C., 1940 ed., Money and Finance, in conformity with chapter 7 of this title. Words 'or, on review, by the Supreme Court, where the same are affirmed in favor of the claimant' in section 225 of title 31, U.S.C., 1940 ed., were omitted as unnecessary. Provisions of section 228 of title 31, U.S.C., 1940 ed., for payment of district court judgments are incorporated in section 2414 of this title. Changes were made in phraseology. -REFTEXT- REFERENCES IN TEXT The Contract Disputes Act of 1978, referred to in subsec. (a), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is classified principally to chapter 9 (Sec. 601 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 41 and Tables. -MISC2- AMENDMENTS 1982 - Subsec. (a). Pub. L. 97-164, Sec. 139(k)(1), substituted 'United States Claims Court' for 'Court of Claims'. Subsec. (b). Pub. L. 97-164, Sec. 139(k)(2), struck out the comma after 'shall be discharged' thereby correcting a technical error in the directory language in Pub. L. 95-563 which placed both a comma and a period after 'shall be discharged'. 1978 - Subsec. (a). Pub. L. 95-563, Sec. 14(e), inserted Contract Disputes Act of 1978 exception. Subsec. (b). Pub. L. 95-563, Sec. 14(f), inserted provision relating to discharge of partial judgments. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-563 effective with respect to contracts entered into 120 days after Nov. 1, 1978, and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95-563, set out as an Effective Date note under section 601 of Title 41, Public Contracts. -CROSS- CROSS REFERENCES Appropriations for payments of judgments against the United States, computation of interest time, see section 1304 of Title 31, Money and Finance. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2412 of this title; title 16 section 460bb-2; title 25 sections 640d-27, 1300i-11; title 31 section 1304. ------DocID 36877 Document 739 of 1452------ -CITE- 28 USC Sec. 2518 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- (Sec. 2518. Repealed. Pub. L. 97-164, title I, Sec. 139(l), Apr. 2, 1982, 96 Stat. 43) -MISC1- Section, act June 25, 1948, ch. 646, 62 Stat. 979, related to certification of Court of Claims judgments for appropriation. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36878 Document 740 of 1452------ -CITE- 28 USC Sec. 2519 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2519. Conclusiveness of judgment -STATUTE- A final judgment of the United States Claims Court against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 979; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(m), 96 Stat. 43.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 286 (Mar. 3, 1911, ch. 231, Sec. 179, 36 Stat. 1141). Changes were made in phraseology. AMENDMENTS 1982 - Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36879 Document 741 of 1452------ -CITE- 28 USC Sec. 2520 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2520. Fees -STATUTE- The United States Claims Court shall by rules impose a fee not exceeding $120, for the filing of any petition. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 979; Sept. 3, 1954, ch. 1263, Sec. 58, 68 Stat. 1248; July 18, 1966, Pub. L. 89-507, Sec. 2, 80 Stat. 308; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 139(n)(1)-(3), 96 Stat. 43, 44; Nov. 19, 1988, Pub. L. 100-702, title X, Sec. 1012(a)(1), 102 Stat. 4668.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 283 and 283a (Mar. 3, 1911, ch. 231, Sec. 176, 36 Stat. 1141; Mar. 3, 1933, ch. 212, title II, Sec. 19, 47 Stat. 1519). This section consolidates section 283, with a part of section 283a, of title 28, U.S.C., 1940 ed. The last subsection of section 283a of title 28, U.S.C., 1940 ed., appears in section 793 of this title. Language in section 283a of title 28, U.S.C., 1940 ed., referring to cases instituted after March 3, 1933, was omitted as executed. For liability of the United States for costs, both in actions in district courts and in suits in the Court of Claims, see section 2412 of this title. Changes were made in phraseology. AMENDMENTS 1988 - Pub. L. 100-702 substituted '$120' for '$60'. 1982 - Pub. L. 97-164 substituted 'Fees' for 'Fees; cost of printing record' as section catchline, struck out designation '(a)' at beginning of section, in the resulting undesignated first sentence substituted 'United States Claims Court' for 'Court of Claims' and '$60' for '$10', and struck out subsecs. (b) and (c) which directed the clerk to collect a fee of 10 cents a folio for preparing and certifying a transcript of the record for the purpose of a writ of certiorari sought by the plaintiff and for furnishing certified copies of judgments or other documents, with not less than $5 to be charged for each certified copy of findings of fact and opinion of the court to be filed in the Supreme Court, and which also directed the clerk to collect for each certified copy of the court's findings of fact and opinion a fee of 25 cents for five pages or less, 35 cents for those over five and not more than ten pages, 45 cents for those over ten and not more than twenty pages, and 50 cents for those of more than twenty pages. 1966 - Subsec. (d). Pub. L. 89-507 repealed subsec. (d) which required the cost of printing the record in every pending case to be taxed against the losing party except when the judgment is against the United States. See section 2412 of this title. 1954 - Subsec. (a). Act Sept. 3, 1954, struck out 'and the hearing of any case before the court, a judge, or a commissioner' after 'petition'. EFFECTIVE DATE OF 1988 AMENDMENT Section 1012(a)(2) of Pub. L. 100-702 provided that: 'The amendment made by this subsection (amending this section) shall take effect 30 days after the date of enactment of this title (Nov. 19, 1988).' EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-507 applicable only to judgments in actions filed subsequent to July 18, 1966, and such amendment not to authorize the reopening or modification of judgments entered prior to July 18, 1966, see section 3 of Pub. L. 89-507, set out as a note under section 2412 of this title. ------DocID 36880 Document 742 of 1452------ -CITE- 28 USC Sec. 2521 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2521. Subpoenas -STATUTE- Subpoenas requiring the attendance of parties or witnesses and subpoenas requiring the production of books, papers, documents or tangible things by any party or witness having custody or control thereof, may be issued for purposes of discovery or for use of the things produced as evidence in accordance with the rules and orders of the court. Such subpoenas shall be issued and served and compliance therewith shall be compelled as provided in the rules and orders of the court. -SOURCE- (Added Sept. 3, 1954, ch. 1263, Sec. 59(a), 68 Stat. 1248.) ------DocID 36881 Document 743 of 1452------ -CITE- 28 USC Sec. 2522 -EXPCITE- TITLE 28 PART VI CHAPTER 165 -HEAD- Sec. 2522. Notice of appeal -STATUTE- Review of a decision of the United States Claims Court shall be obtained by filing a notice of appeal with the clerk of the Claims Court within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts. -SOURCE- (Added Pub. L. 97-164, title I, Sec. 139(q)(1), Apr. 2, 1982, 96 Stat. 44.) -MISC1- EFFECTIVE DATE Section effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36882 Document 744 of 1452------ -CITE- 28 USC (CHAPTER 167 -EXPCITE- TITLE 28 PART VI (CHAPTER 167 -HEAD- (CHAPTER 167 - REPEALED) ------DocID 36883 Document 745 of 1452------ -CITE- 28 USC Sec. 2601 to 2604 -EXPCITE- TITLE 28 PART VI (CHAPTER 167 -HEAD- (Sec. 2601 to 2604. Repealed. Pub. L. 97-164, title I, Sec. 140, Apr. 2, 1982, 96 Stat. 44) -MISC1- Section 2601, acts June 25, 1948, ch. 646, 62 Stat. 979; June 2, 1970, Pub. L. 91-271, title I, Sec. 103, 84 Stat. 275; Oct. 10, 1980, Pub. L. 96-417, title IV, Sec. 403(a)-(d), title V, Sec. 501(27), (28), 94 Stat. 1740-1742, provided for appeals to the Court of Customs and Patent Appeals from final judgments or orders of the Court of International Trade and for the procedures to be followed in such appeals. See section 1295(a)(5) of this title. Section 2602, acts June 25, 1948, ch. 646, 62 Stat. 980; Oct. 14, 1966, Pub. L. 89-651, Sec. 8(c)(3), 80 Stat. 902; June 2, 1970, Pub. L. 91-271, title I, Sec. 104, 84 Stat. 276; Oct. 10, 1980, Pub. L. 96-417, title IV, Sec. 403(e)(1), 94 Stat. 1741, provided for the precedence of enumerated civil actions in the Court of Customs and Patent Appeals. See section 1296 of this title. Section 2603, added Pub. L. 96-417, title IV, Sec. 404(a), Oct. 10, 1980, 94 Stat. 1741, provided that, except as provided in section 2639 or 2641(b) of this title or in the rules prescribed by the court, the Federal Rules of Evidence would apply in the Court of Customs and Patent Appeals in any appeal from the Court of International Trade. Section 2604, added Pub. L. 96-417, title IV, Sec. 405(a), Oct. 10, 1980, 94 Stat. 1741, authorized the chief judge of the Court of Customs and Patent Appeals to summon annually the judges of the court to a judicial conference for the purpose of considering the business of the court and improvements in the administration of justice of the court. EFFECTIVE DATE OF REPEAL Repeal effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as an Effective Date of 1982 Amendment note under section 171 of this title. ------DocID 36884 Document 746 of 1452------ -CITE- 28 USC CHAPTER 169 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- CHAPTER 169 - COURT OF INTERNATIONAL TRADE PROCEDURE -MISC1- Sec. 2631. Persons entitled to commence a civil action. 2632. Commencement of a civil action. 2633. Procedure and fees. 2634. Notice. 2635. Filing of official documents. 2636. Time for commencement of action. 2637. Exhaustion of administrative remedies. 2638. New grounds in support of a civil action. 2639. Burden of proof; evidence of value. 2640. Scope and standard of review. 2641. Witnesses; inspection of documents. 2642. Analysis of imported merchandise. 2643. Relief. 2644. Interest. 2645. Decisions. 2646. Retrial or rehearing. (2647. Repealed.) AMENDMENTS 1984 - Pub. L. 98-620 title IV, Sec. 402(29)(G), Nov. 8, 1984, 98 Stat. 3359, struck out item 2647 'Precedence of cases'. 1980 - Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1730, substituted 'COURT OF INTERNATIONAL TRADE PROCEDURE' for 'CUSTOMS COURT PROCEDURE' in chapter heading, 'Persons entitled to commence a civil action' for 'Time for commencement of action' in item 2631, 'Commencement of a civil action' for 'Customs Court procedures and fees' in item 2632, 'Procedure and fees' for 'Precedence of cases' in item 2633, 'Filing of official documents' for 'Burden of proof; evidence of value' in item 2635, 'Time for commencement of action' for 'Analysis of imported merchandise' in item 2636, 'Exhaustion of administrative remedies' for 'Witnesses; inspection of documents' in item 2637, 'New grounds in support of a civil action' for 'Decisions; findings of fact and conclusions of law; effect of opinions' in item 2638, 'Burden of proof; evidence of value' for 'Retrial or rehearing' in item 2639, and added items 2640 to 2647. 1979 - Pub. L. 96-39, title X, Sec. 1001(b)(4)(F), July 26, 1979, 93 Stat. 306, substituted 'Precedence of cases' for 'Precedence of American manufacturer, producer, or wholesaler cases' in item 2633. 1970 - Pub. L. 91-271, title I, Sec. 123(e), June 2, 1970, 84 Stat. 282, substituted 'Time for commencement of action' for 'Appeal for reappraisement; assignment to single judge; hearing' in item 2631, 'Customs Court procedures and fees' for 'Notice' in item 2632, 'Precedence of American manufacturer, producer, or wholesaler cases' for 'Evidence of value, upon reappraisement; burden of proof' in item 2633, 'Notice' for 'Witnesses; inspection of documents' in item 2634, 'Burden of proof; evidence of value' for 'Decision of single judge in reappraisement appeal' in item 2635, 'Analysis of imported merchandise' for 'Review of single judge's decision; disqualification of judges; remand; presumption' in item 2636, 'Witnesses; inspection of documents' for 'Review of decisions of divisions' in item 2637, 'Decisions; findings of fact and conclusions of law; effect of opinions' for 'Precedence of classification cases' in item 2638, and 'Retrial or rehearing' for 'Analysis of imported merchandise' in item 2639, and struck out item 2640 'Rehearing or retrial', item 2641 'Frivolous protest or appeal', and item 2642 'Amendment of protests, appeals, and pleadings'. 1949 - Act May 24, 1949, ch. 139, Sec. 121, 63 Stat. 106, substituted 'Amendment of protests, appeals, and pleadings' for 'Disqualification of judge' in item 2642. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 19 sections 1514, 1516, 1516a. ------DocID 36885 Document 747 of 1452------ -CITE- 28 USC Sec. 2631 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2631. Persons entitled to commence a civil action -STATUTE- (a) A civil action contesting the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 may be commenced in the Court of International Trade by the person who filed the protest pursuant to section 514 of such Act, or by a surety on the transaction which is the subject of the protest. (b) A civil action contesting the denial of a petition under section 516 of the Tariff Act of 1930 may be commenced in the Court of International Trade by the person who filed such petition. (c) A civil action contesting a determination listed in section 516A of the Tariff Act of 1930 may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in connection with which the matter arose. (d)(1) A civil action to review any final determination of the Secretary of Labor under section 223 of the Trade Act of 1974 with respect to the eligibility of workers for adjustment assistance under such Act may be commenced in the Court of International Trade by a worker, group of workers, certified or recognized union, or authorized representative of such worker or group that applies for assistance under such Act and is aggrieved by such final determination. (2) A civil action to review any final determination of the Secretary of Commerce under section 251 of the Trade Act of 1974 with respect to the eligibility of a firm for adjustment assistance under such Act may be commenced in the Court of International Trade by a firm or its representative that applies for assistance under such Act and is aggrieved by such final determination, or by any other interested domestic party that is aggrieved by such final determination. (3) A civil action to review any final determination of the Secretary of Commerce under section 271 of the Trade Act of 1974 with respect to the eligibility of a community for adjustment assistance under such Act may be commenced in the Court of International Trade by a community that applies for assistance under such Act and is aggrieved by such final determination, or by any other interested domestic party that is aggrieved by such final determination. (e) A civil action to review a final determination made under section 305(b)(1) of the Trade Agreements Act of 1979 may be commenced in the Court of International Trade by any person who was a party-at-interest with respect to such determination. (f) A civil action involving an application for the issuance of an order directing the administering authority or the International Trade Commission to make confidential information available under section 777(c)(2) of the Tariff Act of 1930 may be commenced in the Court of International Trade by any interested party whose application for disclosure of such confidential information was denied under section 777(c)(1) of such Act. (g)(1) A civil action to review any decision of the Secretary of the Treasury to deny a customs broker's license under section 641(b)(2) or (3) of the Tariff Act of 1930, or to deny a customs broker's permit under section 641(c)(1) of such Act, or to revoke such license or permit under section 641(b)(5) or (c)(2) of such Act, may be commenced in the Court of International Trade by the person whose license or permit was denied or revoked. (2) A civil action to review any decision of the Secretary of the Treasury to revoke or suspend a customs broker's license or permit or impose a monetary penalty in lieu thereof under section 641(d)(2)(B) of the Tariff Act of 1930 may be commenced in the Court of International Trade by the person against whom the decision was issued. (h) A civil action described in section 1581(h) of this title may be commenced in the Court of International Trade by the person who would have standing to bring a civil action under section 1581(a) of this title if he imported the goods involved and filed a protest which was denied, in whole or in part, under section 515 of the Tariff Act of 1930. (i) Any civil action of which the Court of International Trade has jurisdiction, other than an action specified in subsections (a)-(h) of this section, may be commenced in the court by any person adversely affected or aggrieved by agency action within the meaning of section 702 of title 5. (j)(1) Any person who would be adversely affected or aggrieved by a decision in a civil action pending in the Court of International Trade may, by leave of court, intervene in such action, except that - (A) no person may intervene in a civil action under section 515 or 516 of the Tariff Act of 1930; (B) in a civil action under section 516A of the Tariff Act of 1930, only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right; and (C) in a civil action under section 777(c)(2) of the Tariff Act of 1930, only a person who was a party to the investigation may intervene, and such person may intervene as a matter of right. (2) In those civil actions in which intervention is by leave of court, the Court of International Trade shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (k) In this section - (1) 'interested party' has the meaning given such term in section 771(9) of the Tariff Act of 1930; and (2) 'party-at-interest' means - (A) a foreign manufacturer, producer, or exporter, or a United States importer, of merchandise which is the subject of a final determination under section 305(b)(1) of the Trade Agreements Act of 1979; (B) a manufacturer, producer, or wholesaler in the United States of a like product; (C) United States members of a labor organization or other association of workers whose members are employed in the manufacture, production, or wholesale in the United States of a like product; (D) a trade or business association a majority of whose members manufacture, produce, or wholesale a like product in the United States, (FOOTNOTE 1) and (FOOTNOTE 1) So in original. The comma probably should be a semicolon. (E) an association composed of members who represent parties-at-interest described in subparagraph (B), (C), or (D). -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1730, and amended Pub. L. 98-573, title II, Sec. 212(b)(3), title VI, Sec. 612(b)(3), Oct. 30, 1984, 98 Stat. 2983, 3034.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsecs. (a), (h), (j)(1)(A), is classified to section 1515 of Title 19, Customs Duties. Section 514 of the Tariff Act of 1930, referred to in subsec. (a), is classified to section 1514 of Title 19. Section 516 of the Tariff Act of 1930, referred to in subsecs. (b), (j)(1)(A), is classified to section 1516 of Title 19. Section 516A of the Tariff Act of 1930, referred to in subsecs. (c), (j)(1)(B), is classified to section 1516a of Title 19. The Trade Act of 1974, referred to in subsec. (d)(1) to (3), is Pub. L. 93-618, Jan. 3, 1975, 88 Stat. 1978, as amended, which is classified principally to chapter 12 (Sec. 2101 et seq.) of Title 19. Sections 223, 251, and 271 of the Trade Act of 1974 are classified to sections 2273, 2341, and 2371, respectively, of Title 19. For complete classification of this Act to the Code, see References in Text note set out under section 2101 of Title 19 and Tables. Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in subsecs. (e), (k)(2)(A), is classified to section 2515(b)(1) of Title 19. Section 777 of the Tariff Act of 1930, referred to in subsecs. (f), (j)(1)(C), is classified to section 1677f of Title 19. Section 641 of the Tariff Act of 1930, referred to in subsec. (g), is classified to section 1641 of Title 19. Section 771(9) of the Tariff Act of 1930, referred to in subsec. (k)(1), is classified to section 1677(9) of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2631, acts June 25, 1948, ch. 646, 62 Stat. 980; May 24, 1949, ch. 139, Sec. 122, 63 Stat. 106; June 2, 1970, Pub. L. 91-271, title I, Sec. 112, 84 Stat. 278; Jan. 3, 1975, Pub. L. 93-618, title III, Sec. 321(f)(2), 88 Stat. 2048, related to time for commencement of action, prior to the general revision of this chapter by Pub. L. 96-417. See section 2636 of this title. AMENDMENTS 1984 - Subsec. (g). Pub. L. 98-573, Sec. 212(b)(3), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: '(1) A civil action to review any decision of the Secretary of the Treasury to deny or revoke a customhouse broker's license under section 641(a) of the Tariff Act of 1930 may be commenced in the Court of International Trade by the person whose license was denied or revoked. '(2) A civil action to review any order of the Secretary of the Treasury to revoke or suspend a customhouse broker's license under section 641(b) of the Tariff Act of 1930 may be commenced in the Court of International Trade by the person whose license was revoked or suspended.' Subsec. (k)(2)(E). Pub. L. 98-573, Sec. 612(b)(3), added subpar. (E). EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 212(b)(3) of Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. Amendment by section 612(b)(3) of Pub. L. 98-573 applicable with respect to investigations initiated by petition or by the administering authority under subtitle A or B of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq., 1673 et seq.), and to reviews begun under section 751 of that Act (19 U.S.C. 1675), on or after Oct. 30, 1984, see section 626(b)(1) of Pub. L. 98-573, as amended, set out as a note under section 1671 of Title 19. EFFECTIVE DATE Chapter effective Nov. 1, 1980, unless otherwise provided, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. Subsecs. (d) and (g) to (j) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417. ------DocID 36886 Document 748 of 1452------ -CITE- 28 USC Sec. 2632 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2632. Commencement of a civil action -STATUTE- (a) Except for civil actions specified in subsections (b) and (c) of this section, a civil action in the Court of International Trade shall be commenced by filing concurrently with the clerk of the court a summons and complaint, with the content and in the form, manner, and style prescribed by the rules of the court. (b) A civil action in the Court of International Trade under section 515 or section 516 of the Tariff Act of 1930 shall be commenced by filing with the clerk of the court a summons, with the content and in the form, manner, and style prescribed by the rules of the court. (c) A civil action in the Court of International Trade under section 516A of the Tariff Act of 1930 shall be commenced by filing with the clerk of the court a summons or a summons and a complaint, as prescribed in such section, with the content and in the form, manner, and style prescribed by the rules of the court. (d) The Court of International Trade may prescribe by rule that any summons, pleading, or other paper mailed by registered or certified mail properly addressed to the clerk of the court with the proper postage affixed and return receipt requested shall be deemed filed as of the date of mailing. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1732.) -REFTEXT- REFERENCES IN TEXT Sections 515 and 516 of the Tariff Act of 1930, referred to in subsec. (b), are classified to sections 1515 and 1516, respectively, of Title 19, Customs Duties. Section 516A of the Tariff Act of 1930, referred to in subsec. (c), is classified to section 1516a of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2632, acts June 25, 1948, ch. 646, 62 Stat. 980; June 2, 1970, Pub. L. 91-271, title I, Sec. 113, 84 Stat. 279; Jan. 3, 1975, Pub. L. 93-618, title III, Sec. 321(f)(3), 88 Stat. 2048; July 26, 1979, Pub. L. 96-39, title X, Sec. 1001(b)(4)(C), 93 Stat. 306, related to Customs Court procedure and fees, prior to the general revision of this chapter by Pub. L. 96-417. See section 2633 of this title. EFFECTIVE DATE Subsec. (a) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 19 section 1520. ------DocID 36887 Document 749 of 1452------ -CITE- 28 USC Sec. 2633 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2633. Procedure and fees -STATUTE- (a) A filing fee shall be payable to the clerk of the Court of International Trade upon the commencement of a civil action in such court. The amount of the fee shall be prescribed by the rules of the court, but shall be not less than $5 nor more than the filing fee for commencing a civil action in a district court of the United States. The court may fix all other fees to be charged by the clerk of the court. (b) The Court of International Trade shall prescribe rules governing the summons, pleadings, and other papers, for their amendment, service, and filing, for consolidations, severances, suspensions of cases, and for other procedural matters. (c) All summons, pleadings, and other papers filed in the Court of International Trade shall be served on all parties in accordance with rules prescribed by the court. When the United States, its agencies, or its officers are adverse parties, service of the summons shall be made upon the Attorney General and the head of the Government agency whose action is being contested. When injunctive relief is sought, the summons, pleadings, and other papers shall also be served upon the named officials sought to be enjoined. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1732.) -MISC1- PRIOR PROVISIONS A prior section 2633, acts June 25, 1948, ch. 646, 62 Stat. 980; June 2, 1970, Pub. L. 91-271, title I, Sec. 114, 84 Stat. 279; July 26, 1979, Pub. L. 96-39, title X, Sec. 1001(b)(4)(D), 93 Stat. 306, related to precedence of cases, prior to the general revision of this chapter by Pub. L. 96-417. See section 2647 of this title. SCHEDULE OF FEES (EFFECTIVE NOVEMBER 1, 1988, AS AMENDED MARCH 1991) As provided by 28 U.S.C. Sec. 2633(a) and the Rules of the United States Court of International Trade, the clerk of the court shall collect the following fees: Filing Fees - USCIT R. 3(b) 1. For filing an action other than one commenced under 28 U.S.C. Sec. 1581(d)(1), $120.00. 2. For filing an action commenced under 28 U.S.C. Sec. 1581(d)(1), $25.00. 3. For filing a complaint in an action commenced under 28 U.S.C. Sec. 1581(a) or (b) prior to March 1, 1987, $25.00. Attorney Admission Fees - USCIT R. 74(b)(3) For admission of an attorney to practice, including a certificate of admission, $25.00. Additional Fees - USCIT R. 80(g) The clerk shall collect in advance from the parties fees for miscellaneous services as are consistent with the 'Judicial Conference Schedule of Additional Fees for the United States District Courts.' The additional fees that are applicable to this court are as follows: 1. For filing or indexing any paper not in a case or proceeding for which a case filing fee has been paid (e.g., filing a petition to perpetuate testimony, the filing of letters rogatory or letters of request, and the registering of a judgment pursuant to 28 U.S.C. Sec. 1963), $20.00. 2. For filing a requisition for and certifying the results of a search of the records of the court for judgments, decrees, other instruments, and suits pending (for each case searched), $15.00. 3. For certification or exemplification of any document or paper, whether the certification is made directly on the document or by separate instrument, $5.00. 4. For reproducing any record or paper, including paper copies made from either original documents; or microfilm reproductions of the original records, $.50. 5. For reproduction of magnetic tape recordings, either cassette or reel-to-reel (including the cost of materials), $15.00. 6. For transcribing a record of any proceeding by a regularly employed member of the court staff who is not entitled by statute to retain the transcript fees for his or her own account, a charge shall be made at the same rate and conditions established by the Judicial Conference for transcripts prepared and sold to parties by official court reporters: --------------------------------------------------------------------- :Original :First Copy to :Each Add'l Copy : : Each Party : to the Same : : : Party --------------------------------------------------------------------- Ordinary :$3.00 :$ .75 :$ .50 Expedited :4.00 :.75 :.50 Daily :5.00 :1.00 :.75 Hourly :6.00 :1.00 :.75 ------------------------------- 7. For each microfiche sheet of film or microfilm jacket copy of any court record, where available, $3.00. 8. For retrieval of a record from a Federal Records Center, National Archives, or other storage location removed from the place of business of the court, $25.00. 9. For a check paid into the court which is returned for lack of funds, $25.00. 10. For a duplicate certificate of admission or certificate of good standing, $5.00. 11. For handling registry fund, a charge shall be assessed from interest earnings and in accordance with the detailed fee schedule issued by the Director of the Administrative Office of the United States Courts, 10%. ------DocID 36888 Document 750 of 1452------ -CITE- 28 USC Sec. 2634 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2634. Notice -STATUTE- Reasonable notice of the time and place of trial or hearing before the Court of International Trade shall be given to all parties to any civil action, as prescribed by the rules of the court. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1733.) -MISC1- PRIOR PROVISIONS A prior section 2634, acts June 25, 1948, ch. 646, 62 Stat. 981; June 2, 1970, Pub. L. 91-271, title I, Sec. 115, 84 Stat. 280, related to notice, prior to the general revision of this chapter by Pub. L. 96-417. See section 2634 of this title. ------DocID 36889 Document 751 of 1452------ -CITE- 28 USC Sec. 2635 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2635. Filing of official documents -STATUTE- (a)(1) Upon service of the summons on the Secretary of the Treasury in any civil action contesting the denial of a protest under section 515 of the Tariff Act of 1930 or the denial of a petition under section 516 of such Act, the appropriate customs officer shall forthwith transmit to the clerk of the Court of International Trade, as prescribed by its rules, and as a part of the official record - (A) the consumption or other entry and the entry summary; (B) the commercial invoice; (C) the special customs invoice; (D) a copy of the protest or petition; (E) a copy of the denial, in whole or in part, of the protest or petition; (F) the importer's exhibits; (G) the official and other representative samples; (H) any official laboratory reports; and (I) a copy of any bond relating to the entry. (2) If any of the items listed in paragraph (1) of this subsection do not exist in a particular civil action, an affirmative statement to that effect shall be transmitted to the clerk of the court. (b)(1) In any civil action commenced in the Court of International Trade under section 516A of the Tariff Act of 1930, within forty days or within such other period of time as the court may specify, after the date of service of a complaint on the administering authority established to administer title VII of the Tariff Act of 1930 or the United States International Trade Commission, the administering authority or the Commission shall transmit to the clerk of the court the record of such action, as prescribed by the rules of the court. The record shall, unless otherwise stipulated by the parties, consist of - (A) a copy of all information presented to or obtained by the administering authority or the Commission during the course of the administrative proceedings, including all governmental memoranda pertaining to the case and the record of ex parte meetings required to be maintained by section 777(a)(3) of the Tariff Act of 1930; and (B)(i) a copy of the determination and the facts and conclusions of law upon which such determination was based, (ii) all transcripts or records of conferences or hearings, and (iii) all notices published in the Federal Register. (2) The administering authority or the Commission shall identify and transmit under seal to the clerk of the court any document, comment, or information that is accorded confidential or privileged status by the Government agency whose action is being contested and that is required to be transmitted to the clerk under paragraph (1) of this subsection. Any such document, comment, or information shall be accompanied by a nonconfidential description of the nature of the material being transmitted. The confidential or privileged status of such material shall be preserved in the civil action, but the court may examine the confidential or privileged material in camera and may make such material available under such terms and conditions as the court may order. (c) Within fifteen days, or within such other period of time as the Court of International Trade may specify, after service of a summons and complaint in a civil action involving an application for an order directing the administering authority or the International Trade Commission to make confidential information available under section 777(c)(2) of the Tariff Act of 1930, the administering authority or the Commission shall transmit under seal to the clerk of the Court of International Trade, as prescribed by its rules, the confidential information involved, together with pertinent parts of the record. Such information shall be accompanied by a nonconfidential description of the nature of the information being transmitted. The confidential status of such information shall be preserved in the civil action, but the court may examine the confidential information in camera and may make such information available under a protective order consistent with section 777(c)(2) of the Tariff Act of 1930. (d)(1) In any other civil action in the Court of International Trade in which judicial review is to proceed upon the basis of the record made before an agency, the agency shall, within forty days or within such other period of time as the court may specify, after the date of service of the summons and complaint upon the agency, transmit to the clerk of the court, as prescribed by its rules - (A) a copy of the contested determination and the findings or report upon which such determination was based; (B) a copy of any reported hearings or conferences conducted by the agency; and (C) any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency's action. (2) The agency shall identify and transmit under seal to the clerk of the court any document, comment, or other information that was obtained on a confidential basis and that is required to be transmitted to the clerk under paragraph (1) of this subsection. Any such document, comment, or information shall include a nonconfidential description of the nature of the material being transmitted. The confidential or privileged status of such material shall be preserved in the civil action, but the court may examine such material in camera and may make such material available under such terms and conditions as the court may order. (3) The parties may stipulate that fewer documents, comments, or other information than those specified in paragraph (1) of this subsection shall be transmitted to the clerk of the court. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1733.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsec. (a)(1), is classified to section 1515 of Title 19, Customs Duties. Section 516 of the Tariff Act of 1930, referred to in subsec. (a)(1), is classified to section 1516 of Title 19. The Tariff Act of 1930, referred to in subsec. (b)(1), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended. Title VII of the Tariff Act of 1930 is classified generally to subtitle IV (Sec. 1671 et seq.) of chapter 4 of Title 19. Section 516A of the Tariff Act of 1930 is classified to section 1516a of Title 19. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. Section 777 of the Tariff Act of 1930, referred to in subsecs. (b)(1)(A) and (c), is classified to section 1677f of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2635, acts June 25, 1948, ch. 646, 62 Stat. 981; June 2, 1970, Pub. L. 91-271, title I, Sec. 116, 84 Stat. 280, related to burden of proof and evidence of value, prior to the general revision of this chapter by Pub. L. 96-417. See section 2639 of this title. EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701 (b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 19 section 1641. ------DocID 36890 Document 752 of 1452------ -CITE- 28 USC Sec. 2636 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2636. Time for commencement of action -STATUTE- (a) A civil action contesting the denial, in whole or in part, of a protest under section 515 of the Tariff Act of 1930 is barred unless commenced in accordance with the rules of the Court of International Trade - (1) within one hundred and eighty days after the date of mailing of notice of denial of a protest under section 515(a) of such Act; or (2) within one hundred and eighty days after the date of denial of a protest by operation of law under the provisions of section 515(b) of such Act. (b) A civil action contesting the denial of a petition under section 516 of the Tariff Act of 1930 is barred unless commenced in accordance with the rules of the Court of International Trade within thirty days after the date of mailing of a notice pursuant to section 516(c) of such Act. (c) A civil action contesting a reviewable determination listed in section 516A of the Tariff Act of 1930 is barred unless commenced in accordance with the rules of the Court of International Trade within the time specified in such section. (d) A civil action contesting a final determination of the Secretary of Labor under section 223 of the Trade Act of 1974 or a final determination of the Secretary of Commerce under section 251 or section 271 of such Act is barred unless commenced in accordance with the rules of the Court of International Trade within sixty days after the date of notice of such determination. (e) A civil action contesting a final determination made under section 305(b)(1) of the Trade Agreements Act of 1979 is barred unless commenced in accordance with the rules of the Court of International Trade within thirty days after the date of the publication of such determination in the Federal Register. (f) A civil action involving an application for the issuance of an order making confidential information available under section 777(c)(2) of the Tariff Act of 1930 is barred unless commenced in accordance with the rules of the Court of International Trade within ten days after the date of the denial of the request for such confidential information. (g) A civil action contesting the denial or revocation by the Secretary of the Treasury of a customs broker's license or permit under subsection (b) or (c) of section 641 of the Tariff Act of 1930, or the revocation or suspension of such license or permit or the imposition of a monetary penalty in lieu thereof by such Secretary under section 641(d) of such Act, is barred unless commenced in accordance with the rules of the Court of International Trade within sixty days after the date of the entry of the decision or order of such Secretary. (h) A civil action of which the Court of International Trade has jurisdiction under section 1581 of this title, other than an action specified in subsections (a)-(h) of this section, is barred unless commenced in accordance with the rules of the court within two years after the cause of action first accrues. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1734, and amended Pub. L. 98-573, title II, Sec. 212(b)(4), title VI, Sec. 623(b)(1), Oct. 30, 1984, 98 Stat. 2984, 3041.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsec. (a), is classified to section 1515 of Title 19, Customs Duties. Section 516 of the Tariff Act of 1930, referred to in subsec. (b), is classified to section 1516 of Title 19. Section 516A of the Tariff Act of 1930, referred to in subsec. (c), is classified to section 1516a of Title 19. Sections 223, 251, and 271 of the Trade Act of 1974, referred to in subsec. (d), are classified to sections 2273, 2341, and 2371, respectively, of Title 19. Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in subsec. (e), is classified to section 2515(b)(1) of Title 19. Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec. (f), is classified to section 1677f(c)(2) of Title 19. Section 641 of the Tariff Act of 1930, referred to in subsec. (g), is classified to section 1641 of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2636, acts June 25, 1948, ch. 646, 62 Stat. 981; June 2, 1970, Pub. L. 91-271, title I, Sec. 117, 84 Stat. 280, related to analysis of imported merchandise, prior to the general revision of this chapter by Pub. L. 96-417. See section 2642 of this title. AMENDMENTS 1984 - Subsec. (c). Pub. L. 98-573, Sec. 623(b)(1)(A), amended subsec. (c) generally, striking out ', other than a determination under section 703(b), 703(c), 733(b), or 733(c) of such Act,' and substituting 'within the time specified in such section' for 'within thirty days after the date of the publication of such determination in the Federal Register'. Subsec. (d). Pub. L. 98-573, Sec. 623(b)(1)(B), redesignated subsec. (e) as (d). Former subsec. (d), which provided that civil actions contesting certain determinations by the administering authority under sections 703(b), (c), and 733(b), (c), of the Tariff Act of 1930 were barred unless commenced in accordance with the rules of the Court of International Trade within 10 days after publication of the determination in the Federal Register, was struck out. Subsecs. (e) to (g). Pub. L. 98-573, Sec. 623(b)(1)(B), redesignated subsecs. (f) to (h) as (e) to (g), respectively. Former subsec. (e) redesigntaed (d). Subsec. (h). Pub. L. 98-573, Sec. 623(b)(1)(B), redesignated subsec. (i) as (h). Former subsec. (h) redesignated (g). Pub. L. 98-573, Sec. 212(b)(4), amended subsec. (h) generally, substituting 'customs broker's license or permit under subsection (b) or (c) of section 641 of the Tariff Act of 1930, or the revocation or suspension of such license or permit or the imposition of a monetary penalty in lieu thereof by such Secretary under section 641(d) of such Act,' for 'customhouse broker's license under section 641(a) of the Tariff Act of 1930 or the revocation or suspension by such Secretary of a customhouse broker's license under section 641(b) of such Act'. Subsec. (i). Pub. L. 98-573, Sec. 623(b)(1)(B), redesignated subsec. (i) as (h). EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 212(b)(4) of Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. Amendment by section 623(b)(1) of Pub. L. 98-573 applicable with respect to civil actions pending on, or filed on or after, Oct. 30, 1984, see section 626(b)(2) of Pub. L. 98-573, set out as a note under section 1671 of Title 19. EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 19 section 1514. ------DocID 36891 Document 753 of 1452------ -CITE- 28 USC Sec. 2637 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2637. Exhaustion of administrative remedies -STATUTE- (a) A civil action contesting the denial of a protest under section 515 of the Tariff Act of 1930 may be commenced in the Court of International Trade only if all liquidated duties, charges, or exactions have been paid at the time the action is commenced, except that a surety's obligation to pay such liquidated duties, charges, or exactions is limited to the sum of any bond related to each entry included in the denied protest. (b) A civil action contesting the denial of a petition under section 516 of the Tariff Act of 1930 may be commenced in the Court of International Trade only by a person who has first exhausted the procedures set forth in such section. (c) A civil action described in section 1581(h) of this title may be commenced in the Court of International Trade prior to the exhaustion of administrative remedies if the person commencing the action makes the demonstration required by such section. (d) In any civil action not specified in this section, the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1735.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsec. (a), is classified to section 1515 of Title 19, Customs Duties. Section 516 of the Tariff Act of 1930, referred to in subsec. (b), is classified to section 1516 of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2637, acts June 25, 1948, ch. 646, 62 Stat. 982; June 2, 1970, Pub. L. 91-271, title I, Sec. 118, 84 Stat. 280; July 26, 1979, Pub. L. 96-39, title X, Sec. 1001(b)(4)(E), 93 Stat. 306, related to witnesses and inspection of documents, prior to the general revision of this chapter by Pub. L. 96-417. See section 2641 of this title. EFFECTIVE DATE Subsec. (c) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. ------DocID 36892 Document 754 of 1452------ -CITE- 28 USC Sec. 2638 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2638. New grounds in support of a civil action -STATUTE- In any civil action under section 515 of the Tariff Act of 1930 in which the denial, in whole or in part, of a protest is a precondition to the commencement of a civil action in the Court of International Trade, the court, by rule, may consider any new ground in support of the civil action if such new ground - (1) applies to the same merchandise that was the subject of the protest; and (2) is related to the same administrative decision listed in section 514 of the Tariff Act of 1930 that was contested in the protest. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1736.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in text, is classified to section 1515 of Title 19, Customs Duties. Section 514 of the Tariff Act of 1930, referred to in par. (2), is classified to section 1514 of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2638, acts June 25, 1948, ch. 646, 62 Stat. 982; June 2, 1970, Pub. L. 91-271, title I, Sec. 119, 84 Stat. 281, related to decisions, findings of fact and conclusions of law, and effect of opinions, prior to the general revision of this chapter by Pub. L. 96-417. See section 2645 (a) and (c) of this title. ------DocID 36893 Document 755 of 1452------ -CITE- 28 USC Sec. 2639 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2639. Burden of proof; evidence of value -STATUTE- (a)(1) Except as provided in paragraph (2) of this subsection, in any civil action commenced in the Court of International Trade under section 515, 516, or 516A of the Tariff Act of 1930, the decision of the Secretary of the Treasury, the administering authority, or the International Trade Commission is presumed to be correct. The burden of proving otherwise shall rest upon the party challenging such decision. (2) The provisions of paragraph (1) of this subsection shall not apply to any civil action commenced in the Court of International Trade under section 1582 of this title. (b) In any civil action described in section 1581(h) of this title, the person commencing the action shall have the burden of making the demonstration required by such section by clear and convincing evidence. (c) Where the value of merchandise or any of its components is in issue in any civil action in the Court of International Trade - (1) reports or depositions of consuls, customs officers, and other officers of the United States, and depositions and affidavits of other persons whose attendance cannot reasonably be had, may be admitted into evidence when served upon the opposing party as prescribed by the rules of the court; and (2) price lists and catalogs may be admitted in evidence when duly authenticated, relevant, and material. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1736.) -REFTEXT- REFERENCES IN TEXT Sections 515, 516, and 516A of the Tariff Act of 1930, referred to in subsec. (a)(1), are classified to sections 1515, 1516, and 1516a, respectively, of Title 19, Customs Duties. -MISC2- PRIOR PROVISIONS A prior section 2639, acts June 25, 1948, ch. 646, 62 Stat. 982; June 2, 1970, Pub. L. 91-271, title I, Sec. 120, 84 Stat. 281, provided for retrial or rehearing, prior to the general revision of this chapter by Pub. L. 96-417. See section 2646 of this title. EFFECTIVE DATE Subsec. (a)(2) of this section applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(A) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. Subsec. (b) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2641 of this title. ------DocID 36894 Document 756 of 1452------ -CITE- 28 USC Sec. 2640 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2640. Scope and standard of review -STATUTE- (a) The Court of International Trade shall make its determinations upon the basis of the record made before the court in the following categories of civil actions: (1) Civil actions contesting the denial of a protest under section 515 of the Tariff Act of 1930. (2) Civil actions commenced under section 516 of the Tariff Act of 1930. (3) Civil actions commenced to review a final determination made under section 305(b)(1) of the Trade Agreements Act of 1979. (4) Civil actions commenced under section 777(c)(2) of the Tariff Act of 1930. (5) Civil actions commenced to review any decision of the Secretary of the Treasury under section 641 of the Tariff Act of 1930, with the exception of decisions under section 641(d)(2)(B), which shall be governed by subdivision (d) of this section. (6) Civil actions commenced under section 1582 of this title. (b) In any civil action commenced in the Court of International Trade under section 516A of the Tariff Act of 1930, the court shall review the matter as specified in subsection (b) of such section. (c) In any civil action commenced in the Court of International Trade to review any final determination of the Secretary of Labor under section 223 of the Trade Act of 1974 or any final determination of the Secretary of Commerce under section 251 or section 271 of such Act, the court shall review the matter as specified in section 284 of such Act. (d) In any civil action not specified in this section, the Court of International Trade shall review the matter as provided in section 706 of title 5. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1736, and amended Pub. L. 98-573, title II, Sec. 212(b)(5), Oct. 30, 1984, 98 Stat. 2984.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in subsec. (a)(1), is classified to section 1515 of Title 19, Customs Duties. Section 516 of the Tariff Act of 1930, referred to in subsec. (a)(2), is classified to section 1516 of Title 19. Section 305(b)(1) of the Trade Agreements Act of 1979, referred to in subsec. (a)(3), is classified to section 2515(b)(1) of Title 19. Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec. (a)(4), is classified to section 1677f(c)(2) of Title 19. Section 641 of the Tariff Act of 1930, referred to in subsec. (a)(5), is classified to section 1641 of Title 19. Section 516A of the Tariff Act of 1930, referred to in subsec. (b), is classified to section 1516a of Title 19. Sections 223, 251, 271, and 284 of the Trade Act of 1974, referred to in subsec. (c), are classified to sections 2273, 2341, 2371, and 2395, respectively, of Title 19. -MISC2- PRIOR PROVISIONS A prior section 2640, act June 25, 1948, ch. 646, 62 Stat. 982, authorized the division which had decided a case or the single judge who had decided an appeal for a reappraisement to grant a rehearing or retrial and was repealed by Pub. L. 91-271, title I, Sec. 121, June 2, 1970, 84 Stat. 281. See section 2646 of this title. AMENDMENTS 1984 - Subsec. (a)(5). Pub. L. 98-573 amended par. (5) generally, substituting 'under section 641 of the Tariff Act of 1930, with the exception of decisions under section 641(d)(2)(B), which shall be governed by subdivision (d) of this section' for 'to deny or revoke a customhouse broker's license under section 641(a) of the Tariff Act of 1930'. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. EFFECTIVE DATE Subsecs. (a)(5), (c), and (d) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. Subsec. (a)(6) of this section applicable with respect to civil actions commenced on or after the 90th day after Nov. 1, 1980, see section 701(c)(1)(A) of Pub. L. 96-417. ------DocID 36895 Document 757 of 1452------ -CITE- 28 USC Sec. 2641 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2641. Witnesses; inspection of documents -STATUTE- (a) Except as otherwise provided by law, in any civil action in the Court of International Trade, each party and its counsel shall have an opportunity to introduce evidence, to hear and cross-examaine the witnesses of the other party, and to inspect all samples and papers admitted or offered as evidence, as prescribed by the rules of the court. Except as provided in section 2639 of this title, subsection (b) of this section, or the rules of the court, the Federal Rules of Evidence shall apply to all civil actions in the Court of International Trade. (b) The Court of International Trade may order that trade secrets and commercial or financial information which is privileged and confidential, or any information provided to the United States by any foreign government or foreign person, may be disclosed to a party, its counsel, or any other person under such terms and conditions as the court may order. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1737.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (a), are set out in the Appendix to this title. -MISC2- PRIOR PROVISIONS A prior section 2641, act June 25, 1948, ch. 646, 62 Stat. 982, authorized the Customs Court to assess a penalty of not less than $5 nor more than $250 against any person filing a frivolous protest or appeal and was repealed by Pub. L. 91-271, title I, Sec. 121, June 2, 1970, 84 Stat. 281. ------DocID 36896 Document 758 of 1452------ -CITE- 28 USC Sec. 2642 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2642. Analysis of imported merchandise -STATUTE- The Court of International Trade may order an analysis of imported merchandise and reports thereon by laboratories or agencies of the United States. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1737.) -MISC1- PRIOR PROVISIONS A prior section 2642, act May 24, 1949, ch. 139, Sec. 123, 63 Stat. 106, authorized the Customs Court under its rules and in its discretion to permit the amendment of protests, appeals and pleadings and was repealed by Pub. L. 91-271, title I, Sec. 121, June 2, 1970, 84 Stat. 281. See section 2633(b) of this title. ------DocID 36897 Document 759 of 1452------ -CITE- 28 USC Sec. 2643 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2643. Relief -STATUTE- (a) The Court of International Trade may enter a money judgment - (1) for or against the United States in any civil action commenced under section 1581 or 1582 of this title; and (2) for or against the United States or any other party in any counterclaim, cross-claim, or third-party action under section 1583 of this title. (b) If the Court of International Trade is unable to determine the correct decision on the basis of the evidence presented in any civil action, the court may order a retrial or rehearing for all purposes, or may order such further administrative or adjudicative procedures as the court considers necessary to enable it to reach the correct decision. (c)(1) Except as provided in paragraphs (2), (3), (4), and (5) of this subsection, the Court of International Trade may, in addition to the orders specified in subsections (a) and (b) of this section, order any other form of relief that is appropriate in a civil action, including, but not limited to, declaratory judgments, orders of remand, injunctions, and writs of mandamus and prohibition. (2) The Court of International Trade may not grant an injunction or issue a writ of mandamus in any civil action commenced to review any final determination of the Secretary of Labor under section 223 of the Trade Act of 1974, or any final determination of the Secretary of Commerce under section 251 or section 271 of such Act. (3) In any civil action involving an application for the issuance of an order directing the administering authority or the International Trade Commission to make confidential information available under section 777(c)(2) of the Tariff Act of 1930, the Court of International Trade may issue an order of disclosure only with respect to the information specified in such section. (4) In any civil action described in section 1581(h) of this title, the Court of International Trade may only order the appropriate declaratory relief. (5) In any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority, the Court of International Trade may not order declaratory relief. (d) If a surety commences a civil action in the Court of International Trade, such surety shall recover only the amount of the liquidated duties, charges, or exactions paid on the entries included in such action. The excess amount of any recovery shall be paid to the importer of record. (e) In any proceeding involving assessment or collection of a monetary penalty under section 641(b)(6) or 641(d)(2)(A) of the Tariff Act of 1930, the court may not render judgment in an amount greater than that sought in the initial pleading of the United States, and may render judgment in such lesser amount as shall seem proper and just to the court. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1737, and amended Pub. L. 98-573, title II, Sec. 212(b)(6), Oct. 30, 1984, 98 Stat. 2984; Pub. L. 100-449, title IV, Sec. 402(b), Sept. 28, 1988, 102 Stat. 1884.) -REFTEXT- REFERENCES IN TEXT Sections 223, 251, and 271 of the Trade Act of 1974, referred to in subsec. (c)(2), are classified to sections 2273, 2341, and 2371, respectively, of Title 19, Customs Duties. Section 777(c)(2) of the Tariff Act of 1930, referred to in subsec. (c)(3), is classified to section 1677f(c)(2) of Title 19. Section 641 of the Tariff Act of 1930, referred to in subsec. (e), is classified to section 1641 of Title 19. -MISC2- AMENDMENTS 1988 - Subsec. (c). Pub. L. 100-449 substituted '(4), and (5)' for 'and (4)' in par. (1) and added par. (5). 1984 - Subsec. (e). Pub. L. 98-573 added subsec. (e). EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100-449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100-449, set out in a note under section 2112 of Title 19, Customs Duties. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98-573 effective on close of 180th day after Oct. 30, 1984, see section 214(d) of Pub. L. 98-573, set out as a note under section 1304 of Title 19, Customs Duties. EFFECTIVE DATE Subsecs. (a) and (c)(2), (4) of this section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. ------DocID 36898 Document 760 of 1452------ -CITE- 28 USC Sec. 2644 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2644. Interest -STATUTE- If, in a civil action in the Court of International Trade under section 515 of the Tariff Act of 1930, the plaintiff obtains monetary relief by a judgment or under a stipulation agreement, interest shall be allowed at an annual rate established under section 6621 of the Internal Revenue Code of 1986. Such interest shall be calculated from the date of the filing of the summons in such action to the date of the refund. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1738, and amended Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.) -REFTEXT- REFERENCES IN TEXT Section 515 of the Tariff Act of 1930, referred to in text, is classified to section 1515 of Title 19, Customs Duties. Section 6621 of the Internal Revenue Code of 1986, referred to in text, is classified to section 6621 of Title 26, Internal Revenue Code. -MISC2- AMENDMENTS 1986 - Pub. L. 99-514 substituted 'Internal Revenue Code of 1986' for 'Internal Revenue Code of 1954'. EFFECTIVE DATE Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(B) of Pub. L. 96-417, set out as an Effective Date of 1980 Amendment note under section 251 of this title. ------DocID 36899 Document 761 of 1452------ -CITE- 28 USC Sec. 2645 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2645. Decisions -STATUTE- (a) A final decision of the Court of International Trade in a contested civil action or a decision granting or refusing a preliminary injunction shall be supported by - (1) a statement of findings of fact and conclusions of law; or (2) an opinion stating the reasons and facts upon which the decision is based. (b) After the Court of International Trade has rendered a judgment, the court may, upon the motion of a party or upon its own motion, amend its findings or make additional findings and may amend the decision and judgment accordingly. A motion of a party or the court shall be made not later than thirty days after the date of entry of the judgment. (c) A decision of the Court of International Trade is final and conclusive, unless a retrial or rehearing is granted pursuant to section 2646 of this title or an appeal is taken to the Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Court of International Trade within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1738, and amended Pub. L. 97-164, title I, Sec. 141, Apr. 2, 1982, 96 Stat. 45.) -MISC1- AMENDMENTS 1982 - Subsec. (c). Pub. L. 97-164 substituted 'is taken to the Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Court of International Trade within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts' for 'is taken to the Court of Customs and Patent Appeals within the time and in the manner provided in section 2601 of this title'. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. ------DocID 36900 Document 762 of 1452------ -CITE- 28 USC Sec. 2646 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- Sec. 2646. Retrial or rehearing -STATUTE- After the Court of International Trade has rendered a judgment or order, the court may, upon the motion of a party or upon its own motion, grant a retrial or rehearing, as the case may be. A motion of a party or the court shall be made not later than thirty days after the date of entry of the judgment or order. -SOURCE- (Added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1739.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2645 of this title. ------DocID 36901 Document 763 of 1452------ -CITE- 28 USC Sec. 2647 -EXPCITE- TITLE 28 PART VI CHAPTER 169 -HEAD- (Sec. 2647. Repealed. Pub. L. 98-620, title IV, Sec. 402(29)(G), Nov. 8, 1984, 98 Stat. 3359) -MISC1- Section, added Pub. L. 96-417, title III, Sec. 301, Oct. 10, 1980, 94 Stat. 1739, and amended Pub. L. 98-573, title VI, Sec. 623(b)(2), Oct. 30, 1984, 98 Stat. 3041, related to precedence of cases. EFFECTIVE DATE OF REPEAL Repeal not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of this title. ------DocID 36902 Document 764 of 1452------ -CITE- 28 USC CHAPTER 171 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- CHAPTER 171 - TORT CLAIMS PROCEDURE -MISC1- Sec. 2671. Definitions. 2672. Administrative adjustment of claims. 2673. Reports to Congress. 2674. Liability of United States. 2675. Disposition by federal agency as prerequisite; evidence. 2676. Judgment as bar. 2677. Compromise. 2678. Attorney fees; penalty. 2679. Exclusiveness of remedy. 2680. Exceptions. SENATE REVISION AMENDMENT As printed in this report, this chapter should have read '173' and not '171'. It was properly numbered '173' in the bill. However, the chapter was renumbered '171', without change in its section numbers, by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1966 - Pub. L. 89-506, Sec. 9(b), July 18, 1966, 80 Stat. 308, substituted 'claims' for 'claims of $2,500 or less' in item 2672. 1959 - Pub. L. 86-238, Sec. 1(2), Sept. 8, 1959, 73 Stat. 472, substituted '$2,500' for '$1,000' in item 2672. -CROSS- CROSS REFERENCES Costs in tort claims cases, see section 2412 of this title. Interest on judgments against the United States, computation, see section 2411 of this title. Jurisdiction of district courts in tort claims cases, see section 1346 of this title. Jury trial denied in action against the United States, see section 2402 of this title. Review of tort claims cases, see section 1291 of this title. Time for commencing tort action against the United States, see section 2401 of this title. Venue in tort claims actions, see section 1402 of this title. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 995, 1346 of this title; title 2 section 190g; title 5 sections 3102, 3111, 3373, 3374, 5564; title 7 section 2272; title 10 sections 1588, 2113, 2360, 2904; title 12 section 209; title 15 sections 637, 4102, 4105; title 16 sections 565a-2, 742f, 742l, 773a, 1703, 3602, 3640, 4604; title 20 section 4420; title 22 sections 2504, 3508, 3761, 4606; title 23 section 307; title 25 sections 1680c, 2020, 3115; title 29 section 1706; title 31 sections 3723, 3724; title 33 section 569c; title 37 section 554; title 39 section 409; title 42 sections 2021d, 2212, 3788, 5055, 12555; title 43 section 1737; title 45 section 437; title 46 App. section 740. ------DocID 36903 Document 765 of 1452------ -CITE- 28 USC Sec. 2671 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2671. Definitions -STATUTE- As used in this chapter and sections 1346(b) and 2401(b) of this title, the term 'Federal agency' includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. 'Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. 'Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 982; May 24, 1949, ch. 139, Sec. 124, 63 Stat. 106; July 18, 1966, Pub. L. 89-506, Sec. 8, 80 Stat. 307; Dec. 29, 1981, Pub. L. 97-124, Sec. 1, 95 Stat. 1666; Nov. 18, 1988, Pub. L. 100-694, Sec. 3, 102 Stat. 4564.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 941 (Aug. 2, 1946, ch. 753, Sec. 402, 60 Stat. 842). Changes were made in phraseology. 1949 ACT This section corrects a typographical error in section 2671 of title 28, U.S.C. AMENDMENTS 1988 - Pub. L. 100-694 inserted 'the judicial and legislative branches,' after 'departments,' in first par. 1981 - Pub. L. 97-124 inserted 'members of the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32,' in definition of 'Employee of the government' and 'or a member of the National Guard as defined in section 101(3) of title 32' in definition of 'Acting within the scope of his office or employment'. 1966 - Pub. L. 89-506 expanded definition of 'Federal agency' to include military departments. 1949 - Act May 24, 1949, corrected spelling of 'office'. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-694 effective Nov. 18, 1988, and applicable to all claims, civil actions, and proceedings pending on, or filed on or after, Nov. 18, 1988, see section 8 of Pub. L. 100-694, set out as a note under section 2679 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97-124 applicable only with respect to claims arising on or after Dec. 29, 1981, see section 4 of Pub. L. 97-124, set out as a note under section 1089 of Title 10, Armed Forces. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. SEVERABILITY Section 7 of Pub. L. 100-694 provided that: 'If any provision of this Act (see Short Title of 1988 Amendment note under section 1 of this title) or the amendments made by this Act or the application of the provision to any person or circumstance is held invalid, the remainder of this Act and such amendments and the application of the provision to any other person or circumstance shall not be affected by that invalidation.' CONGRESSIONAL FINDINGS AND PURPOSES Section 2 of Pub. L. 100-694 provided that: '(a) Findings. - The Congress finds and declares the following: '(1) For more than 40 years the Federal Tort Claims Act (28 U.S.C. 1346(b), 2671 et seq.) has been the legal mechanism for compensating persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment. '(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment. '(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for compensating persons injured by the tortious conduct of Federal employees. '(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees. '(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce. '(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts. '(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated that the Congress is in the best position to determine the extent to which Federal employees should be personally liable for common law torts, and that legislative consideration of this matter would be useful. '(b) Purpose. - It is the purpose of this Act (see Short Title of 1988 Amendment note under section 1 of this title) to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States.' -CROSS- CROSS REFERENCES Peace Corps volunteers deemed employees of the United States for purposes of this chapter, see section 2504 of Title 22, Foreign Relations and Intercourse. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to title 5 section 8477; title 16 section 4604; title 20 section 4420; title 23 section 307; title 25 section 450f; title 42 section 12555. ------DocID 36904 Document 766 of 1452------ -CITE- 28 USC Sec. 2672 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2672. Administrative adjustment of claims -STATUTE- The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided, That any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement. Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle any tort claim against the United States, to the extent of the agency's authority to award, compromise, or settle such claim without the prior written approval of the Attorney General or his or her designee. Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award, compromise, settlement, or determination shall be final and conclusive on all offices of the Government, except when procured by means of fraud. Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of the Federal agency concerned out of appropriations available to that agency. Payment of any award, compromise, or settlement in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or funds available for the payment of such judgments and compromises are hereby made available for the payment of awards, compromises, or settlements under this chapter. The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the government whose act or omission gave rise to the claim, by reason of the same subject matter. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 983; Apr. 25, 1949, ch. 92, Sec. 2(b), 63 Stat. 62; May 24, 1949, ch. 139, Sec. 125, 63 Stat. 106; Sept. 23, 1950, ch. 1010, Sec. 9, 64 Stat. 987; Sept. 8, 1959, Pub. L. 86-238, Sec. 1(1), 73 Stat. 471; July 18, 1966, Pub. L. 89-506, Sec. 1, 9(a), 80 Stat. 306, 308; Nov. 15, 1990, Pub. L. 101-552, Sec. 8(a), 104 Stat. 2746.) -STATAMEND- AMENDMENT OF SECTION For termination of amendment by section 11 of Pub. L. 101-552, see Termination Date of 1990 Amendment; Savings Provision note below. -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 921 (Aug. 2, 1946, ch. 753, Sec. 403, 60 Stat. 843). The phrase 'accruing on and after January 1, 1945' was omitted because executed as of the date of the enactment of this revised title. Changes were made in phraseology. 1949 ACT This section corrects a typographical error in section 2672 of title 28, U.S.C. -REFTEXT- REFERENCES IN TEXT Subchapter IV of chapter 5 of title 5, referred to in first par., is subchapter IV (Sec. 581 et seq.) of chapter 5 of Title 5, Government Organization and Employees, as added by Pub. L. 101-552, Sec. 4(b), Nov. 15, 1990, 104 Stat. 2738. Another subchapter IV of chapter 5 of Title 5 was added by Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4969. -MISC2- AMENDMENTS 1990 - Pub. L. 101-552 temporarily inserted at end of first par. 'Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement. Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle any tort claim against the United States, to the extent of the agency's authority to award, compromise, or settle such claim without the prior written approval of the Attorney General or his or her designee.' See Termination Date of 1990 Amendment; Savings Provision note below. 1966 - Pub. L. 89-506 substituted 'claims' for 'claims of $2,500 or less' in section catchline, authorized administrative settlement of tort claims, in accordance with regulations prescribed by the Attorney General, of up to $25,000 and, with the prior written approval of the Attorney General or his designee, in excess of $25,000, inserted 'compromise' and 'settlement' to list of administrative acts that would be final and conclusive on all officers of the government, authorized the payment of administrative settlements in excess of $2,500 in the manner similar to judgments and compromises in like causes, and made appropriations and funds which were available for the payment of such judgments and compromises available for the payment of awards, compromises, or settlements under this chapter. 1959 - Pub. L. 86-238 substituted '$2,500' for '$1,000' in section catchline and text. 1950 - Act Sept. 23, 1950, struck out requirement for specific authorization for payment of tort claims in appropriation acts. 1949 - Act Apr. 25, 1949, inserted 'accruing on or after January 1, 1945' after 'United States' in first par. Act May 24, 1949, substituted '2677' for '2678' in third par. TERMINATION DATE OF 1990 AMENDMENT; SAVINGS PROVISION For termination of amendments by Pub. L. 101-552 and authority to use dispute resolution proceedings on Oct. 1, 1995, except with respect to certain pending proceedings, see section 11 of Pub. L. 101-552, set out as a Termination Date; Savings Provision note under section 581 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1966 AMENDMENT Section 10 of Pub. L. 89-506 provided that: 'This Act (amending this section, sections 2401, 2671, 2675, 2677, 2678, and 2679 of this title, section 724a of former Title 31, Money and Finance, and section 4116 of Title 38, Veterans' Benefits), shall apply to claims accruing six months or more after the date of its enactment (July 18, 1966).' -CROSS- DEFINITIONS Definitions of 'agency', 'administrative program', and 'alternative means of dispute resolution' in section 581 of Title 5, Government Organization and Employees are applicable to this section, see section 10 of Pub. L. 101-552, set out as a note under section 581 of Title 5. -MISC7- LAWS UNAFFECTED Section 424(b) of act Aug. 2, 1946, ch. 753, title IV, 60 Stat. 856, provided that: 'Nothing contained herein shall be deemed to repeal any provision of law authorizing any Federal agency to consider, ascertain, adjust, settle, determine, or pay any claim on account of damage to or loss of property or on account of personal injury or death, in cases in which such damage, loss, injury, or death was not caused by any negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment, or any other claim not cognizable under part 2 of this title.' CROSS REFERENCES Allowance of claims for property loss, personal injury, or death incident to noncombat activities of Army, Navy, or Air Force, see section 2733 of Title 10, Armed Forces. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2678, 2679 of this title; title 5 section 8477; title 10 sections 1054, 1089, 2733; title 15 section 2081; title 21 section 904; title 22 sections 1474, 2669, 2702; title 23 section 307; title 29 section 1706; title 31 section 1304; title 32 section 715; title 38 sections 224, 236, 351, 4116; title 39 section 2603; title 42 sections 233, 2212, 2458a, 5055. ------DocID 36905 Document 767 of 1452------ -CITE- 28 USC Sec. 2673 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2673. Reports to Congress -STATUTE- The head of each federal agency shall report annually to Congress all claims paid by it under section 2672 of this title, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 983.) -STATAMEND- REPEAL Section 1(1) of Pub. L. 89-348, Nov. 8, 1965, 79 Stat. 1310, repealed the requirement that an annual report to Congress be made of the administrative adjustment of tort claims of $2,500 or less, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim. -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 922 (Aug. 2, 1946, ch. 753, Sec. 404, 60 Stat. 843). Changes were made in phraseology. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477. ------DocID 36906 Document 768 of 1452------ -CITE- 28 USC Sec. 2674 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2674. Liability of United States -STATUTE- The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof. With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled. With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 983; Nov. 18, 1988, Pub. L. 100-694, Sec. 4, 9(c), 102 Stat. 4564, 4567.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 931(a) (Aug. 2, 1946, ch. 753, Sec. 410(a), 60 Stat. 843). Section constitutes the liability provisions in the second sentence of section 931(a) of title 28, U.S.C., 1940 ed. Other provisions of section 931(a) of title 28, U.S.C., 1940 ed., are incorporated in sections 1346(b), 1402, 2402, 2411, and 2412 of this title, but the provision of such section 931(a) that the United States shall not be liable for interest prior to judgment was omitted as unnecessary in view of section 2411 of this title, which provides that interest on judgments against the United States shall be computed from the date of judgment. Such section 2411 is made applicable to tort-claim actions by section 932 of title 28, U.S.C., 1940 ed. Changes were made in phraseology. SENATE REVISION AMENDMENT For Senate amendment to this section, see 80th Congress Senate Report No. 1559, amendment No. 60. AMENDMENTS 1988 - Pub. L. 100-694 inserted two pars. at end entitling the United States and the Tennessee Valley Authority to assert any defense based upon judicial or legislative immunity. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-694 effective Nov. 18, 1988, and applicable to all claims, civil actions, and proceedings pending on, or filed on or after, Nov. 18, 1988, see section 8 of Pub. L. 100-694 set out as a note under section 2679 of this title. -CROSS- CROSS REFERENCES Interest on judgments, computation, see section 2411 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477. ------DocID 36907 Document 769 of 1452------ -CITE- 28 USC Sec. 2675 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2675. Disposition by federal agency as prerequisite; evidence -STATUTE- (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time or presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. (c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 983; May 24, 1949, ch. 139, Sec. 126, 63 Stat. 107; July 18, 1966, Pub. L. 89-506, Sec. 2, 80 Stat. 306.) -MISC1- HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., Sec. 931(b) (Aug. 2, 1946, ch. 753, Sec. 410(b), 60 Stat. 844). Section constitutes all of section 931(b), except the first sentence, of title 28, U.S.C., 1940 ed. The remainder of such section 931(b) is incorporated in section 2677 of this title. Changes were made in phraseology. 1949 ACT This section corrects a typographical error in section 2675(b) of title 28, U.S.C. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1966 - Subsec. (a). Pub. L. 89-506, Sec. 2(a), required that all administrative claims be filed with the agency or department and finally denied by the agency and sent by certified or registered mail prior to the filing of a court action against the United States, provided that the claimant be given the option of considering the claim to have been denied if the agency fails to make final disposition of the claim within six months of presentation of the claim to the agency, and provided that the requirements of the subsection would not apply to claims asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. Subsec. (b). Pub. L. 89-506, Sec. 2(b), struck out provisions under which a claimant could, upon 15 days written notice, withdraw a claim from the agency and institute an action thereon. 1949 - Subsec. (b). Act May 24, 1949, substituted 'section' for 'subsection'. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. -CROSS- CROSS REFERENCES District courts, jurisdiction of tort claims cases, see section 1346 of this title. Jury trial denied in actions against the United States, see section 2402 of this title. Time for commencing tort action against the United States, see section 2401 of this title. Venue in tort claims actions, see section 1402 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2679 of this title; title 5 section 8477; title 23 section 307. ------DocID 36908 Document 770 of 1452------ -CITE- 28 USC Sec. 2676 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2676. Judgment as bar -STATUTE- The judgment in an action under section 1346 (b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 984.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 931(b) (Aug. 2, 1946, ch. 753, Sec. 410(b), 60 Stat. 844). Section constitutes the first sentence of section 931(b) of title 28, U.S.C., 1940 ed. Other provisions of such section 931(b) are incorporated in section 2675 of this title. Changes were made in phraseology. SENATE REVISION AMENDMENT This section was eliminated by Senate amendment. See 80th Congress Senate Report No. 1559. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477. ------DocID 36909 Document 771 of 1452------ -CITE- 28 USC Sec. 2677 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2677. Compromise -STATUTE- The Attorney General or his designee may arbitrate, compromise, or settle any claim cognizable under section 1346(b) of this title, after the commencement of an action thereon. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 984; July 18, 1966, Pub. L. 89-506, Sec. 3, 80 Stat. 307.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 934 (Aug. 2, 1946, ch. 753, Sec. 413, 60 Stat. 845). Changes were made in phraseology. SENATE REVISION AMENDMENT This section was renumbered '2676' by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1966 - Pub. L. 89-506 struck out provision requiring that approval of court be obtained before Attorney General could arbitrate, compromise, or settle a claim after commencement of an action thereon. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2672, 2678 of this title; title 5 section 8477; title 10 sections 1054, 1089; title 22 section 2702; title 31 section 1304; title 38 sections 351, 4116; title 42 sections 233, 2458a, 5055. ------DocID 36910 Document 772 of 1452------ -CITE- 28 USC Sec. 2678 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2678. Attorney fees; penalty -STATUTE- No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title or any settlement made pursuant to section 2677 of this title, or in excess of 20 per centum of any award, compromise, or settlement made pursuant to section 2672 of this title. Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 984; July 18, 1966, Pub. L. 89-506, Sec. 4, 80 Stat. 307.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 944 (Aug. 2, 1946, ch. 753, Sec. 422, 60 Stat. 846). Words 'shall be guilty of a misdemeanor' and 'shall, upon conviction thereof', in the second sentence, were omitted in conformity with revised title 18, U.S.C., Crimes and Criminal Procedure (H.R. 1600, 80th Cong.). See sections 1 and 2 of said revised title 18. Changes were made in phraseology. SENATE REVISION AMENDMENT This section was renumbered '2677' by Senate amendment. See 80th Congress Senate Report No. 1559. AMENDMENTS 1966 - Pub. L. 89-506 raised the limitations on allowable attorneys fees from 10 to 20 percent for administrative settlements and from 20 to 25 percent for fees in cases after suit is filed and removed the requirement of agency or court allowance of the amount of attorneys fees. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477. ------DocID 36911 Document 773 of 1452------ -CITE- 28 USC Sec. 2679 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2679. Exclusiveness of remedy -STATUTE- (a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive. (b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred. (2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government - (A) which is brought for a violation of the Constitution of the United States, or (B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized. (c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency. (d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. (2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. (3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court. (4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions. (5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if - (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. (e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 984; Sept. 21, 1961, Pub. L. 87-258, Sec. 1, 75 Stat. 539; July 18, 1966, Pub. L. 89-506, Sec. 5(a), 80 Stat. 307; Nov. 18, 1988, Pub. L. 100-694, Sec. 5, 6, 102 Stat. 4564.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 945 (Aug. 2, 1946, ch. 753, Sec. 423, 60 Stat. 846). Changes were made in phraseology. SENATE REVISION AMENDMENT The catchline and text of this section were changed and the section was renumbered '2678' by Senate amendment. See 80th Congress Senate Report No. 1559. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (d)(3), are set out in the Appendix to this title. -MISC2- AMENDMENTS 1988 - Subsec. (b). Pub. L. 100-694, Sec. 5, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: 'The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.' Subsec. (d). Pub. L. 100-694, Sec. 6, amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: 'Upon a certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to the State court.' 1966 - Subsec. (b). Pub. L. 89-506 inserted reference to section 2672 of this title and substituted 'remedy' for 'remedy by suit'. 1961 - Pub. L. 87-258 designated existing provisions as subsec. (a) and added subsecs. (b) to (e). EFFECTIVE DATE OF 1988 AMENDMENT Section 8 of Pub. L. 100-694 provided that: '(a) General Rule. - This Act and the amendments made by this Act (enacting section 831c-2 of Title 16, Conservation, amending this section and sections 2671 and 2674 of this title, and enacting provisions set out as notes under this section and section 2671 of this title) shall take effect on the date of the enactment of this Act (Nov. 18, 1988). '(b) Applicability to Proceedings. - The amendments made by this Act (amending this section and sections 2671 and 2674 of this title) shall apply to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this Act. '(c) Pending State Proceedings. - With respect to any civil action or proceeding pending in a State court to which the amendments made by this Act apply, and as to which the period for removal under section 2679(d) of title 28, United States Code (as amended by section 6 of this Act), has expired, the Attorney General shall have 60 days after the date of the enactment of this Act during which to seek removal under such section 2679(d). '(d) Claims Accruing Before Enactment. - With respect to any civil action or proceeding to which the amendments made by this Act apply in which the claim accrued before the date of the enactment of this Act, the period during which the claim shall be deemed to be timely presented under section 2679(d)(5) of title 28, United States Code (as amended by section 6 of this Act) shall be that period within which the claim could have been timely filed under applicable State law, but in no event shall such period exceed two years from the date of the enactment of this Act.' EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89-506 applicable to claims accruing six months or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out as a note under section 2672 of this title. EFFECTIVE DATE OF 1961 AMENDMENT Section 2 of Pub. L. 87-258 provided that: 'The amendments made by this Act (amending this section) shall be deemed to be in effect six months after the enactment hereof (Sept. 21, 1961) but any rights or liabilities then existing shall not be affected.' -CROSS- CROSS REFERENCES For civil actions for injury or loss of property or personal injury or death against the Tennessee Valley Authority, see section 831c-2 of Title 16, Conservation. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477; title 7 section 943; title 19 sections 1920, 2350; title 20 sections 1082, 1132d-1; title 25 section 450f; title 33 section 2718; title 42 sections 233, 2458a, 3211. ------DocID 36912 Document 774 of 1452------ -CITE- 28 USC Sec. 2680 -EXPCITE- TITLE 28 PART VI CHAPTER 171 -HEAD- Sec. 2680. Exceptions -STATUTE- The provisions of this chapter and section 1346(b) of this title shall not apply to - (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. (b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. (c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer. (d) Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States. (e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1-31 of Title 50, Appendix. (f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States. ((g) Repealed. Sept. 26, 1950, ch. 1049, Sec. 13 (5), 64 Stat. 1043.) (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, 'investigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. (i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system. (j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. (k) Any claim arising in a foreign country. (l) Any claim arising from the activities of the Tennessee Valley Authority. (m) Any claim arising from the activities of the Panama Canal Company. (n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives. -SOURCE- (June 25, 1948, ch. 646, 62 Stat. 984; July 16, 1949, ch. 340, 63 Stat. 444; Sept. 26, 1950, ch. 1049, Sec. 2(a)(2), 13(5), 64 Stat. 1038, 1043; Aug. 18, 1959, Pub. L. 86-168, title II, Sec. 202(b), 73 Stat. 389; Mar. 16, 1974, Pub. L. 93-253, Sec. 2, 88 Stat. 50.) -MISC1- HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., Sec. 943 (Aug. 2, 1946, ch. 753, Sec. 421, 60 Stat. 845). Changes were made in phraseology. Section 946 of title 28, U.S.C., 1940 ed., which was derived from section 424(b) of the Federal Tort Claims Act, was omitted from this revised title. It preserved the existing authority of federal agencies to settle tort claims not cognizable under section 2672 of this title. Certain enumerated laws granting such authority were specifically repealed by section 424(a) of the Federal Tort Claims Act, which section was also omitted from this revised title. These provisions were not included in this revised title as they are not properly a part of a code of general and permanent law. SENATE REVISION AMENDMENT Sections 2680 and 2681 were renumbered '2679' and '2680', respectively, by Senate amendment. See 80th Congress Senate Report No. 1559. -REFTEXT- REFERENCES IN TEXT Sections 741-752 of title 46, referred to in subsec. (d), are popularly known as the 'Suits in Admiralty Act' and are classified to Title 46, Appendix, Shipping. Sections 781-790 of title 46, referred to in subsec. (d), are popularly known as the 'Public Vessels Act' and are classified to Title 46, Appendix. Sections 1-31 of Title 50, Appendix, referred to in subsec. (e), was in the original source of this section (section 943 of act Aug. 2, 1946) a reference to the Trading with the Enemy Act, as amended. The Trading with the Enemy Act is now comprised of sections 1 to 43, which are classified to sections 1 to 6, 7 to 39, and 41 to 44 of Title 50, Appendix, War and National Defense. The date of the enactment of this proviso, referred to in subsec. (h), means Mar. 16, 1974, the date on which Pub. L. 93-253, which enacted the proviso, was approved. Panama Canal Company, referred to in subsec. (m), deemed to refer to Panama Canal Commission, see section 3602(b)(5) of Title 22, Foreign Relations and Intercourse. -MISC2- AMENDMENTS 1974 - Subsec. (h). Pub. L. 93-253 inserted proviso. 1959 - Subsec. (n). Pub. L. 86-168 added subsec. (n). 1950 - Subsec. (g). Act Sept. 26, 1950, Sec. 13(5), repealed subsec. (g). Subsec. (m). Act Sept. 26, 1950, Sec. 2, substituted 'Panama Canal Company' for 'Panama Railroad Company'. 1949 - Subsec. (m). Act July 16, 1949, added subsec. (m). EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86-168 effective Jan. 1, 1960, see section 203(c) of Pub. L. 86-168. EFFECTIVE DATE OF 1950 AMENDMENT Amendment by act Sept. 26, 1950, to take effect upon effective date of transfer to the Panama Canal Company, pursuant to the provisions of section 256 of the Canal Zone Code, as added by section 10 of that act, of the Panama Canal together with the facilities and appurtenances related thereto, see section 14 of act Sept. 26, 1950. -TRANS- TRANSFER OF FUNCTIONS Coast Guard transferred to Department of Transportation and all functions, powers, and duties, relating to Coast Guard, of Secretary of the Treasury and of all other offices and officers of Department of the Treasury transferred to Secretary of Transportation by Pub. L. 89-670, Sec. 6(b)(1), Oct. 15, 1966, 80 Stat. 938. Section 6(b)(2) of Pub. L. 89-670, however, provided that notwithstanding such transfer of functions, Coast Guard shall operate as part of Navy in time of war or when President directs as provided in section 3 of Title 14, Coast Guard. See section 108 of Title 49, Transportation. For transfer of certain functions relating to claims and litigation, insofar as they pertain to the Air Force, from Secretary of the Army to Secretary of the Air Force, see Secretary of Defense Transfer Order No. 34 (Sec. 1a(2)(4)), eff. July 1, 1949. -MISC5- NORTHERN MARIANA ISLANDS - APPLICABILITY OF SUBSEC. (K) Pub. L. 97-357, title II, Sec. 204, Oct. 19, 1982, 96 Stat. 1708, provided: 'That the Northern Mariana Islands shall not be considered a foreign country for purposes of subsection (k) of section 2680 of title 28, United States Code, with respect to claims which accrued no more than two years prior to the effective date of this Act (Oct. 19, 1982).' TERMINATION OF NATIONAL EMERGENCY Declaration of national emergency in effect on Sept. 14, 1976, was terminated two years from that date by section 1601 of Title 50, War and National Defense. APPLICABILITY OF SUBSEC. (J) Joint Res. July 3, 1952, ch. 570, Sec. 1(a)(32), 66 Stat. 333, as amended by Joint Res. Mar. 31, 1953, ch. 13, Sec. 1, 67 Stat. 18, and Joint Res. June 30, 1953, ch. 172, 67 Stat. 132, provided that subsec. (j) of this section, in addition to coming into full force and effect in time of war, should continue in force until six months after the termination of the national emergency proclaimed by the President on Dec. 16, 1950 by 1950 Proc. No. 2914, 15 F.R. 9029, set out as a note preceding section 1 of Title 50 Appendix, War and National Defense, or such earlier date or dates as may be provided for by Congress, but in no event beyond Aug. 1, 1953. Section 7 of Joint Res. July 3, 1952, provided that it should become effective June 16, 1952. Joint Res. July 3, 1952, ch. 570, Sec. 6, 66 Stat. 334, repealed Joint Res. Apr. 14, 1952, ch. 204, 66 Stat. 54 as amended by Joint Res. May 28, 1952, ch. 339, 66 Stat. 96; Joint Res. June 14, 1952, ch. 437, 66 Stat. 137; Joint Res. June 30, 1952, ch. 526, 66 Stat. 296, which continued provisions of subsec. (j) of this section until July 3, 1952. This repeal was made effective June 16, 1952, by section 7 of Joint Res. July 3, 1952. -CROSS- CROSS REFERENCES For civil actions for injury or loss of property or personal injury or death against the Tennessee Valley Authority, see section 831c-2 of Title 16, Conservation. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 5 section 8477; title 10 sections 1054, 1089; title 15 section 2053; title 21 section 904; title 22 sections 1474, 2702; title 31 section 3724; title 38 section 4116; title 42 sections 233, 2458a. ------DocID 36913 Document 775 of 1452------ -CITE- 28 USC CHAPTER 173 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- CHAPTER 173 - ATTACHMENT IN POSTAL SUITS -MISC1- Sec. 2710. Right of attachment. 2711. Application for warrant. 2712. Issue of warrant. 2713. Trial of ownership of property. 2714. Investment of proceeds of attached property. 2715. Publication. 2716. Personal notice. 2717. Discharge. 2718. Interest on balances due department. ------DocID 36914 Document 776 of 1452------ -CITE- 28 USC Sec. 2710 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2710. Right of attachment -STATUTE- (a) Where debts are due from a defaulting or delinquent postmaster, contractor, or other officer, agent or employee of the Post Office Department, a warrant of attachment may issue against all property and legal and equitable rights belonging to him, and his sureties, or either of them, where he - (1) is a nonresident of the district where he was appointed, or has departed from that district for the purpose of permanently residing outside thereof, or of avoiding the service of civil process; and (2) has conveyed away, or is about to convey away any of his property, or has removed or is about to remove the same from the district wherein it is situated, with intent to defraud the United States. (b) When the property has been removed, the marshal of the district into which it has been removed, upon receipt of certified copies of the warrant, may seize the property and convey it to a convenient place within the jurisdiction of the court which issued the warrant. Alias warrants may be issued upon due application. The warrant first issued remains valid until the return day thereof. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 706.) -COD- CODIFICATION Section was derived from R.S. Sec. 924, which was originally classified to section 737 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 924 was reclassified to section 837 of Title 39. R.S. Sec. 924 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2710 this title. -CHANGE- CHANGE OF NAME References to Post Office Department, Postal Service, Postal Field Service, Field Postal Service, or Departmental Service or Departmental Headquarters of Post Office Department to be considered references to United States Postal Service pursuant to Pub. L. 91-375, Sec. 6(o), Aug. 12, 1970, 84 Stat. 783, set out as a Cross Reference note preceding section 101 of Title 39, Postal Service. -MISC4- EFFECTIVE DATE Chapter effective Sept. 1, 1960, see section 11 of Pub. L. 86-682. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2711 of this title. ------DocID 36915 Document 777 of 1452------ -CITE- 28 USC Sec. 2711 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2711. Application for warrant -STATUTE- A United States attorney or assistant United States attorney or a person authorized by the Attorney General - (1) upon his own affidavit or that of another credible person, stating the existence of either of the grounds of attachments enumerated in section 2710 of this title and (2) upon production of legal evidence of the debt may apply for a warrant of attachment to a judge, or, in his absence, to the clerk of any court of the United States having original jurisdiction of the cause of action. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 925, which was originally classified to section 738 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 925 was reclassified to section 838 of Title 39. R.S. Sec. 925 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2711 this title. ------DocID 36916 Document 778 of 1452------ -CITE- 28 USC Sec. 2712 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2712. Issue of warrant -STATUTE- Upon an order of a judge of a court, or, in his absence and upon the clerk's own initiative, the clerk shall issue a warrant for the attachment of the property belonging to the person specified in the affidavit. The marshal shall execute the warrant forthwith and take the property attached, if personal, in his custody, subject to the interlocutory or final orders of the court. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 926, which was originally classified to section 739 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 926 was reclassified to section 839 of Title 39. R.S. Sec. 926 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2712 this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2713 of this title. ------DocID 36917 Document 779 of 1452------ -CITE- 28 USC Sec. 2713 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2713. Trial of ownership of property -STATUTE- Not later than twenty days before the return day of a warrant issued under section 2712 of this title, the party whose property is attached, on notice to the United States Attorney, may file a plea in abatement, denying the allegations of the affidavit, or denying ownership in the defendant of the property attached. The court, upon application of either party, shall order a trial by jury of the issues. Where the parties, by consent, waive a trial by jury, the court shall decide the issues. A party claiming ownership of the property attached and seeking its return is limited to the remedy afforded by this section, but his right to an action of trespass, or other action for damages, is not impaired. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 927, which was originally classified to section 740 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 927 was reclassified to section 840 of Title 39. R.S. Sec. 927 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2713 this title. -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Pleas abolished, see rule 7, Appendix to this title. ------DocID 36918 Document 780 of 1452------ -CITE- 28 USC Sec. 2714 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2714. Investment of proceeds of attached property -STATUTE- When the property attached is sold on an interlocutory order or is producing revenue, the money arising from the sale or revenue shall be invested, under the order of the court, in securities of the United States. The accretions therefrom are subject to the order of the court. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 928, which was originally classified to section 741 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 928 was reclassified to section 841 of Title 39. R.S. Sec. 928 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2714 this title. ------DocID 36919 Document 781 of 1452------ -CITE- 28 USC Sec. 2715 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2715. Publication -STATUTE- The marshal shall cause publication of an executed warrant of attachment - (1) for two months in case of an absconding debtor, and (2) for four months in case of a nonresident debtor in a newspaper published in the district where the property is situated pursuant to the details of the order under which the warrant is issued. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 929, which was originally classified to section 742 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 929 was reclassified to section 842 of Title 39. R.S. Sec. 929 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2715 this title. ------DocID 36920 Document 782 of 1452------ -CITE- 28 USC Sec. 2716 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2716. Personal notice -STATUTE- After the first publication of the notice of attachment, a person indebted to, or having possession of property of a defendant and having knowledge of the notice, shall answer for the amount of his debt or the value of the property. Any disposal or attempted disposal of the property, to the injury of the United States, is unlawful. When the person indebted to, or having possession of the property of a defendant, is known to the United States attorney or marshal, the officer shall cause a personal notice of the attachment to be served upon him, but the lack of the notice does not invalidate the attachment. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 707.) -COD- CODIFICATION Section was derived from R.S. Sec. 930, which was originally classified to section 743 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 930 was reclassified to section 843 of Title 39. R.S. Sec. 930 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2716 this title. ------DocID 36921 Document 783 of 1452------ -CITE- 28 USC Sec. 2717 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2717. Discharge -STATUTE- The court, or a judge thereof, upon - (1) application of the party when property has been attached and (2) execution to the United States of a penal bond, approved by a judge, in double the value of the property attached and conditioned upon the return of the property or the payment of any judgment rendered by the court may discharge the warrant of attachment as to the property of the applicant. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 708.) -COD- CODIFICATION Section was derived from R.S. Sec. 931, which was originally classified to section 744 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 931 was reclassified to section 844 of Title 39. R.S. Sec. 931 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2717 this title. ------DocID 36922 Document 784 of 1452------ -CITE- 28 USC Sec. 2718 -EXPCITE- TITLE 28 PART VI CHAPTER 173 -HEAD- Sec. 2718. Interest on balances due department -STATUTE- In suits for balances due the Post Office Department may recover interest at the rate of 6 per centum per year from the time of default. -SOURCE- (Added Pub. L. 86-682, Sec. 9, Sept. 2, 1960, 74 Stat. 708.) -COD- CODIFICATION Section was derived from R.S. Sec. 964, which was originally classified to section 788 of former Title 28. Following the general revision and enactment of Title 28 by act June 25, 1948, R.S. Sec. 964 was reclassified to section 846 of Title 39. R.S. Sec. 964 was repealed by section 12(c) of Pub. L. 86-682 (section 1 of which revised and enacted Title 39), and reenacted by section 9 thereof as section 2718 this title. -CHANGE- CHANGE OF NAME References to Post Office Department, Postal Service, Postal Field Service, Field Postal Service, or Departmental Service or Departmental Headquarters of Post Office Department to be considered references to United States Postal Service pursuant to Pub. L. 91-375, Sec. 6(o), Aug. 12, 1970, 84 Stat. 783, set out as a Cross References note preceding section 101 of Title 39, Postal Service. ------DocID 36923 Document 785 of 1452------ -CITE- 28 USC CHAPTER 175 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- CHAPTER 175 - CIVIL COMMITMENT AND REHABILITATION OF NARCOTIC ADDICTS -MISC1- Sec. 2901. Definitions. 2902. Discretionary authority of court; examination, report, and determination by court; termination of civil commitment. 2903. Authority and responsibilities of the Surgeon General; institutional custody; aftercare; maximum period of civil commitment; credit toward sentence. 2904. Civil commitment not a conviction; use of test results. 2905. Delegation of functions by Surgeon General; use of Federal, State, and private facilities. 2906. Absence of offer by the court to a defendant of an election under section 2902(a) or any determination as to civil commitment, not reviewable on appeal or otherwise. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 42 section 257. ------DocID 36924 Document 786 of 1452------ -CITE- 28 USC Sec. 2901 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2901. Definitions -STATUTE- As used in this chapter - (a) 'Addict' means any individual who habitually uses any narcotic drug as defined by section 102(16) (FOOTNOTE 1) of the Controlled Substances Act so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of such narcotic drugs as to have lost the power of self-control with reference to his addiction. (FOOTNOTE 1) See References in Text note below. (b) 'Surgeon General' means the Surgeon General of the Public Health Service. (c) 'Crime of violence' includes voluntary manslaughter, murder, rape, mayhem, kidnaping, robbery, burglary or housebreaking in the nighttime, extortion accompanied by threats of violence, assault with a dangerous weapon or assault with intent to commit any offense punishable by imprisonment for more than one year, arson punishable as a felony, or an attempt or conspiracy to commit any of the foregoing offenses. (d) 'Treatment' includes confinement and treatment in an institution and under supervised aftercare in the community and includes, but not limited to, medical, educational, social, psychological, and vocational services, corrective and preventive guidance and training, and other rehabilitative services designed to protect the public and benefit the addict by eliminating his dependence on addicting drugs, or by controlling his dependence, and his susceptibility to addiction. (e) 'Felony' includes any offense in violation of a law of the United States classified as a felony under section 3581 of title 18 of the United States Code, and further includes any offense in violation of a law of any State, any possession or territory of the United States, the District of Columbia, the Canal Zone, or the Commonwealth of Puerto Rico, which at the time of the offense was classified as a felony by the law of the place where that offense was committed. (f) 'Conviction' and 'convicted' mean the final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere, but do not include a final judgment which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory. (g) 'Eligible individual' means any individual who is charged with an offense against the United States, but does not include - (1) an individual charged with a crime of violence. (2) an individual charged with unlawfully importing, selling, or conspiring to import or sell, a narcotic drug. (3) an individual against whom there is pending a prior charge of a felony which has not been finally determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole, supervised release, or mandatory release, has not been fully served: Provided, That an individual on probation, parole, supervised release, or mandatory release shall be included if the authority authorized to require his return to custody consents to his commitment. (4) an individual who has been convicted of a felony on two or more occasions. (5) an individual who has been civilly committed under this Act, under the District of Columbia Code, or any State proceeding because of narcotic addiction on three or more occasions. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1438, and amended Pub. L. 91-513, title III, Sec. 1102(l), Oct. 27, 1970, 84 Stat. 1293; Pub. L. 92-420, Sec. 2, Sept. 16, 1972, 86 Stat. 677; Pub. L. 98-473, title II, Sec. 228(c), Oct. 12, 1984, 98 Stat. 2030.) -REFTEXT- REFERENCES IN TEXT Section 102(16) of the Controlled Substances Act, referred to in subsec. (a), was redesignated section 102(17) of the Controlled Substances Act by Pub. L. 98-473, title II, Sec. 507(a), Oct. 12, 1984, 98 Stat. 2071, and is classified to section 802(17) of Title 21, Food and Drugs. For definition of Canal Zone, referred to in subsec. (e), see section 3602(b) of Title 22, Foreign Relations and Intercourse. This Act, referred to in subsec. (g)(5), probably means Pub. L. 89-793, which enacted this chapter, section 4251 et seq. of Title 18, Crimes and Criminal Procedure, sections 3402 and 3411 et seq. of Title 42, The Public Health and Welfare, amended section 7237 of Title 26, Internal Revenue Code, and section 257 of Title 42, and enacted provisions set out as notes under sections 4202 of Title 18 and 3401 of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 3401 of Title 42 and Tables. -MISC2- AMENDMENTS 1984 - Subsec. (e). Pub. L. 98-473, Sec. 228(c)(1), substituted 'section 3581' for 'section 1'. Subsec. (g)(3). Pub. L. 98-473, Sec. 228(c)(2), inserted references to supervised release. 1972 - Subsec. (d). Pub. L. 92-420 substituted 'by eliminating his dependence on addicting drugs, or by controlling his dependence,' for 'by correcting his antisocial tendencies and ending his dependence on addicting drugs'. 1970 - Subsec. (a). Pub. L. 91-513 substituted 'as defined by section 102(16) of the Controlled Substances Act' for 'as defined by section 4731 of the Internal Revenue Code of 1954, as amended,'. EFFECTIVE DATE OF 1984 AMENDMENT Section 235(a)(1)(B)(ii)(IV) of Pub. L. 98-473 provided that the amendment made by Pub. L. 98-473 is effective Oct. 12, 1984. EFFECTIVE DATE OF 1972 AMENDMENT Section 5 of Pub. L. 92-420 provided that: 'This Act (amending this section, section 4251 of Title 18, Crimes and Criminal Procedure, and section 3411 of Title 42, The Public Health and Welfare, and enacting provisions set out as a note under this section) shall take effect immediately upon enactment (Sept. 16, 1972). Sections 2 and 3 (amending section 4251 of Title 18 and section 3411 of Title 42, respectively) shall apply to any case pending in a district court of the United States in which an appearance has not been made prior to the effective date (Sept. 16, 1972).' EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-513 effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 1105(a) of Pub. L. 91-513, set out as an Effective Date note under section 951 of Title 21, Food and Drugs. EFFECTIVE DATE Chapter effective three months after Nov. 8, 1966, and applicable to any case pending in a district court of the United States in which an appearance has not been made prior to such effective date, see section 605 of Pub. L. 89-793, title VI, Nov. 8, 1966, 80 Stat. 1450, set out as a note under section 3401 of Title 42, The Public Health and Welfare. SAVINGS PROVISION Prosecutions for any violation of law occurring, and civil seizures or forfeitures and injunctive proceedings commenced, prior to the effective date of amendment of this section by section 1102 of Pub. L. 91-513 not to be affected or abated by reason thereof, see section 1103 of Pub. L. 91-513, set out as a note under section 171 of Title 21, Food and Drugs. ------DocID 36925 Document 787 of 1452------ -CITE- 28 USC Sec. 2902 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2902. Discretionary authority of court; examination, report, and determination by court; termination of civil commitment -STATUTE- (a) If the United States district court believes that an eligible individual is an addict, the court may advise him at his first appearance or thereafter at the sole discretion of the court that the prosecution of the criminal charge will be held in abeyance if he elects to submit to an immediate examination to determine whether he is an addict and is likely to be rehabilitated through treatment. In offering an individual an election, the court shall advise him that if he elects to be examined, he will be confined during the examination for a period not to exceed sixty days; that if he is determined to be an addict who is likely to be rehabilitated, he will be civilly committed to the Surgeon General for treatment; that he may not voluntarily withdraw from the examination or any treatment which may follow; that the treatment may last for thirty-six months; that during treatment, he will be confined in an institution and, at the discretion of the Surgeon General, he may be conditionally released for supervised aftercare treatment in the community; and that if he successfully completes treatment the charge will be dismissed, but if he does not, prosecution on the charge will be resumed. An individual upon being advised that he may elect to submit to an examination shall be permitted a maximum of five days within which to make his election. Except on a showing that a timely election could not have been made, an individual shall be barred from an election after the prescribed period. An individual who elects civil commitment shall be placed in the custody of the Attorney General or the Surgeon General, as the court directs, for an examination by the Surgeon General during a period not to exceed thirty days. This period may, upon notice to the court and the appropriate United States attorney, be extended by the Surgeon General for an additional thirty days. (b) The Surgeon General shall report to the court the results of the examination and recommend whether the individual should be civilly committed. A copy of the report shall be made available to the individual and the United States attorney. If the court, acting on the report and other information coming to its attention, determines that the individual is not an addict or is an addict not likely to be rehabilitated through treatment, the individual shall be held to answer the abeyant charge. If the court determines that the individual is an addict and is likely to be rehabilitated through treatment, the court shall commit him to the custody of the Surgeon General for treatment, except that no individual shall be committed under this chapter if the Surgeon General certifies that adequate facilities or personnel for treatment are unavailable. (c) Whenever an individual is committed to the custody of the Surgeon General for treatment under this chapter the criminal charge against him shall be continued without final disposition and shall be dismissed if the Surgeon General certifies to the court that the individual has successfully completed the treatment program. On receipt of such certification, the court shall discharge the individual from custody and dismiss the charge against him. If prior to such certification the Surgeon General determines that the individual cannot be further treated as a medical problem, he shall advise the court. The court shall thereupon terminate the commitment, and the pending criminal proceeding shall be resumed. (d) An individual committed for examination or treatment shall not be released on bail or on his own recognizance. (e) Whoever escapes or attempts to escape while committed to institutional custody for examination or treatment, or whoever rescues or attempts to rescue or instigates, aids, or assists the escape or attempt to escape of such a person, shall be subject to the penalties provided in sections 751 and 752 of title 18, United States Code. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1439.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2906 of this title; title 18 section 3161. ------DocID 36926 Document 788 of 1452------ -CITE- 28 USC Sec. 2903 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2903. Authority and responsibilities of the Surgeon General; institutional custody; aftercare; maximum period of civil commitment; credit toward sentence -STATUTE- (a) An individual who is committed to the custody of the Surgeon General for treatment under this chapter shall not be conditionally released from institutional custody until the Surgeon General determines that he has made sufficient progress to warrant release to a supervisory aftercare authority. If the Surgeon General is unable to make such a determination at the expiration of twenty-four months after the commencement of institutional custody, he shall advise the court and the appropriate United States attorney whether treatment should be continued. The court may affirm the commitment or terminate it and resume the pending criminal proceeding. (b) An individual who is conditionally released from institutional custody shall, while on release, remain in the legal custody of the Surgeon General and shall report for such supervised aftercare treatment as the Surgeon General directs. He shall be subject to home visits and to such physical examination and reasonable regulation of his conduct as the supervisory aftercare authority establishes, subject to the approval of the Surgeon General. The Surgeon General may, at any time, order a conditionally released individual to return for institutional treatment. The Surgeon General's order shall be a sufficient warrant for the supervisory aftercare authority, a probation officer, or any Federal officer authorized to serve criminal process within the United States to apprehend and return the individual to institutional custody as directed. If it is determined that an individual has returned to the use of narcotics, the Surgeon General shall inform the court of the conditions under which the return occurred and make a recommendation as to whether treatment should be continued. The court may affirm the commitment or terminate it and resume the pending criminal proceeding. (c) The total period of treatment for any individual committed to the custody of the Surgeon General shall not exceed thirty-six months. If, at the expiration of such maximum period, the Surgeon General is unable to certify that the individual has successfully completed his treatment program the pending criminal proceeding shall be resumed. (d) Whenever a pending criminal proceeding against an individual is resumed under this chapter, he shall receive full credit toward the service of any sentence which may be imposed for any time spent in the institutional custody of the Surgeon General or the Attorney General or any other time spent in institutional custody in connection with the matter for which sentence is imposed. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1440.) ------DocID 36927 Document 789 of 1452------ -CITE- 28 USC Sec. 2904 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2904. Civil commitment not a conviction; use of test results -STATUTE- The determination of narcotic addiction and the subsequent civil commitment under this chapter shall not be deemed a criminal conviction. The results of any tests or procedures conducted by the Surgeon General or the supervisory aftercare authority to determine narcotic addiction may only be used in a further proceeding under this chapter. They shall not be used against the examined individual in any criminal proceeding except that the fact that he is a narcotic addict may be elicited on his cross-examination as bearing on his credibility as a witness. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1441.) ------DocID 36928 Document 790 of 1452------ -CITE- 28 USC Sec. 2905 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2905. Delegation of functions by Surgeon General; use of Federal, State, and private facilities -STATUTE- (a) The Surgeon General may from time to time make such provision as he deems appropriate authorizing the performance of any of his functions under this chapter by any other officer or employee of the Public Health Service, or with the consent of the head of the Department or Agency concerned, by any Federal or other public or private agency or officer or employee thereof. (b) The Surgeon General is authorized to enter into arrangements with any public or private agency or any person under which appropriate facilities or services of such agency or person, will be made available, on a reimbursable basis or otherwise, for the examination or treatment of individuals who elect civil commitment under this chapter. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1441.) ------DocID 36929 Document 791 of 1452------ -CITE- 28 USC Sec. 2906 -EXPCITE- TITLE 28 PART VI CHAPTER 175 -HEAD- Sec. 2906. Absence of offer by the court to a defendant of an election under section 2902(a) or any determination as to civil commitment, not reviewable on appeal or otherwise -STATUTE- The failure of a court to offer a defendant an election under section 2902(a) of this chapter, or a determination relative to civil commitment under this chapter shall not be reviewable on appeal or otherwise. -SOURCE- (Added Pub. L. 89-793, title I, Sec. 101, Nov. 8, 1966, 80 Stat. 1441.) ------DocID 36930 Document 792 of 1452------ -CITE- 28 USC CHAPTER 176 -EXPCITE- TITLE 28 PART VI CHAPTER 176 -HEAD- CHAPTER 176 - FEDERAL DEBT COLLECTION PROCEDURE -MISC1- Subchapter Sec. (FOOTNOTE 1) (FOOTNOTE 1) Editorially supplied. A. Definitions and general provisions 3001 B. Prejudgment remedies 3101 C. Postjudgments (FOOTNOTE 2) remedies 3201 (FOOTNOTE 2) So in original. Does not conform to subchapter heading. D. Fraudulent transfers (FOOTNOTE 2) 3301 ------DocID 36931 Document 793 of 1452------ -CITE- 28 USC SUBCHAPTER A -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- SUBCHAPTER A - DEFINITIONS AND GENERAL PROVISIONS -MISC1- Sec. 3001. Applicability of chapter. 3002. Definitions. 3003. Rules of construction. 3004. Service of process; enforcement; notice. 3005. Application of chapter to judgments. 3006. Affidavit requirements. 3007. Perishable personal property. 3008. Proceedings before United States magistrates. 3009. United States marshals' authority to designate keeper. 3010. Co-owned property. 3011. Assessment of surcharge on a debt. 3012. Joinder of additional defendant. 3013. Modification or protective order; supervision of enforcement. 3014. Exempt property. 3015. Discovery as to debtor's financial condition. ------DocID 36932 Document 794 of 1452------ -CITE- 28 USC Sec. 3001 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3001. Applicability of chapter -STATUTE- (a) In General. - Except as provided in subsection (b), the (FOOTNOTE 1) chapter provides the exclusive civil procedures for the United States - (FOOTNOTE 1) So in original. Probably should be 'this'. (1) to recover a judgment on a debt; or (2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim. (b) Limitation. - To the extent that another Federal law specifies procedures for recovering on a claim or a judgment for a debt arising under such law, those procedures shall apply to such claim or judgment to the extent those procedures are inconsistent with this chapter. (c) Amounts Owing Other Than Debts. - This chapter shall not apply with respect to an amount owing that is not a debt or to a claim for an amount owing that is not a debt. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4933.) -MISC1- EFFECTIVE DATE Section 3631 of title XXXVI of Pub. L. 101-647 provided that: '(a) Except as provided in subsection (b), this Act (probably should be 'title', meaning title XXXVI of Pub. L. 101-647, which enacted this chapter and section 2044 of this title, amended sections 550, 1962, 1963, and 2410 of this title, section 523 of Title 11, Bankruptcy, and sections 3142 and 3552 of Title 18, Crimes and Criminal Procedure, and enacted provisions set out as a note under section 1 of this title) and the amendments made by this Act (title) shall take effect 180 days after the date of the enactment of this Act (Nov. 29, 1990). '(b)(1) The amendments made by title I of this Act (probably should be 'subtitle A of this title', meaning subtitle A (Sec. 3611, 3302 (3612)) of title XXXVI of Pub. L. 101-647, which enacted this chapter) shall apply with respect to actions pending on the effective date of this Act (probably should be title XXXVI of Pub. L. 101-647) in any court on - '(A) a claim for a debt; or '(B) a judgment for a debt. '(2) All notices, writs, orders, and judgments in effect in such actions shall continue in effect until superseded or modified in an action under chapter 176 of title 28 of the United States Code, as added by title I of this Act (subtitle A of this title). '(3) For purposes of this subsection - '(A) the term 'court' means a Federal, State, or local court, and '(B) the term 'debt' has the meaning given such term in section and (sic) 3002(3) of such chapter.' ------DocID 36933 Document 795 of 1452------ -CITE- 28 USC Sec. 3002 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3002. Definitions -STATUTE- As used in this chapter: (1) 'Counsel for the United States' means - (A) a United States attorney, an assistant United States attorney designated to act on behalf of the United States attorney, or an attorney with the United States Department of Justice or with a Federal agency who has litigation authority; and (B) any private attorney authorized by contract made in accordance with section 3718 of title 31 to conduct litigation for collection of debts on behalf of the United States. (2) 'Court' means any court created by the Congress of the United States, excluding the United States Tax Court. (3) 'Debt' means - (A) an amount that is owing to the United States on account of a direct loan, or loan insured or guaranteed, by the United States; or (B) an amount that is owing to the United States on account of a fee, duty, lease, rent, service, sale of real or personal property, overpayment, fine, assessment, penalty, restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United States, or other source of indebtedness to the United States, but that is not owing under the terms of a contract originally entered into by only persons other than the United States; and includes any amount owing to the United States for the benefit of an Indian tribe or individual Indian, but excludes any amount to which the United States is entitled under section 3011(a). (4) 'Debtor' means a person who is liable for a debt or against whom there is a claim for a debt. (5) 'Disposable earnings' means that part of earnings remaining after all deductions required by law have been withheld. (6) 'Earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. (7) 'Garnishee' means a person (other than the debtor) who has, or is reasonably thought to have, possession, custody, or control of any property in which the debtor has a substantial nonexempt interest, including any obligation due the debtor or to become due the debtor, and against whom a garnishment under section 3104 or 3205 is issued by a court. (8) 'Judgment' means a judgment, order, or decree entered in favor of the United States in a court and arising from a civil or criminal proceeding regarding a debt. (9) 'Nonexempt disposable earnings' means 25 percent of disposable earnings, subject to section 303 of the Consumer Credit Protection Act. (10) 'Person' includes a natural person (including an individual Indian), a corporation, a partnership, an unincorporated association, a trust, or an estate, or any other public or private entity, including a State or local government or an Indian tribe. (11) 'Prejudgment remedy' means the remedy of attachment, receivership, garnishment, or sequestration authorized by this chapter to be granted before judgment on the merits of a claim for a debt. (12) 'Property' includes any present or future interest, whether legal or equitable, in real, personal (including choses in action), or mixed property, tangible or intangible, vested or contingent, wherever located and however held (including community property and property held in trust (including spendthrift and pension trusts)), but excludes - (A) property held in trust by the United States for the benefit of an Indian tribe or individual Indian; and (B) Indian lands subject to restrictions against alienation imposed by the United States. (13) 'Security agreement' means an agreement that creates or provides for a lien. (14) 'State' means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, or any territory or possession of the United States. (15) 'United States' means - (A) a Federal corporation; (B) an agency, department, commission, board, or other entity of the United States; or (C) an instrumentality of the United States. (16) 'United States marshal' means a United States marshal, a deputy marshal, or an official of the United States Marshals Service designated under section 564. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4933.) -REFTEXT- REFERENCES IN TEXT Section 303 of the Consumer Credit Protection Act, referred to in par. (9), is classified to section 1673 of Title 15, Commerce and Trade. ------DocID 36934 Document 796 of 1452------ -CITE- 28 USC Sec. 3003 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3003. Rules of construction -STATUTE- (a) Terms. - For purposes of this chapter - (1) the terms 'includes' and 'including' are not limiting; (2) the term 'or' is not exclusive; and (3) the singular includes the plural. (b) Effect on Rights of the United States. - This chapter shall not be construed to curtail or limit the right of the United States under any other Federal law or any State law - (1) to collect taxes or to collect any other amount collectible in the same manner as a tax; (2) to collect any fine, penalty, assessment, restitution, or forfeiture arising in a criminal case; (3) to appoint or seek the appointment of a receiver; or (4) to enforce a security agreement. (c) Effect on Other Laws. - This chapter shall not be construed to supersede or modify the operation of - (1) title 11; (2) admiralty law; (3) section 3713 of title 31; (4) section 303 of the Consumer Credit Protection Act (15 U.S.C. 1673); (5) a statute of limitation applicable to a criminal proceeding; (6) the common law or statutory rights to set-off or recoupment; (7) any Federal law authorizing, or any inherent authority of a court to provide, injunctive relief; (8) the authority of a court - (A) to impose a sanction under the Federal Rules of Civil Procedure; (B) to appoint a receiver to effectuate its order; or (C) to exercise the power of contempt under any Federal law; (9) any law authorizing the United States to obtain partition, or to recover possession, of property in which the United States holds title; or (10) any provision of any other chapter of this title, except to the extent such provision is inconsistent with this chapter. (d) Preemption. - This chapter shall preempt State law to the extent such law is inconsistent with a provision of this chapter. (e) Effect on Rights of the United States Under Foreign and International Law. - This chapter shall not be construed to curtail or limit the rights of the United States under foreign law, under a treaty or an international agreement, or otherwise under international law. (f) Applicability of Federal Rules of Civil Procedure. - Except as provided otherwise in this chapter, the Federal Rules of Civil Procedure shall apply with respect to actions and proceedings under this chapter. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4935.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsecs. (c)(8)(A) and (f), are set out in the Appendix to this title. ------DocID 36935 Document 797 of 1452------ -CITE- 28 USC Sec. 3004 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3004. Service of process; enforcement; notice -STATUTE- (a) Manner of Service. - A complaint, notice, writ, or other process required to be served in an action or proceeding under this chapter shall be served in accordance with the Federal Rules of Civil Procedure unless otherwise provided in this chapter. (b) Nationwide Enforcement. - (1) Except as provided in paragraph (2) - (A) any writ, order, judgment, or other process, including a summons and complaint, filed under this chapter may be served in any State; and (B) such writ, order, or judgment may be enforced by the court issuing the writ, order, or process, regardless of where the person is served with the writ, order, or process. (2) If the debtor so requests, within 20 days after receiving the notice described in section 3101(d) or 3202(b), the action or proceeding in which the writ, order, or judgment was issued shall be transferred to the district court for the district in which the debtor resides. (c) Notice and Other Process. - At such time as counsel for the United States considers appropriate, but not later than the time a prejudgment or postjudgment remedy is put into effect under this chapter, counsel for the United States shall exercise reasonable diligence to serve on the debtor and any person who the United States believes, after exercising due diligence, has possession, custody, or control of the property, a copy of the application for such remedy, the order granting such remedy, and the notice required by section 3101(d) or 3202(b). -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4936.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. ------DocID 36936 Document 798 of 1452------ -CITE- 28 USC Sec. 3005 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3005. Application of chapter to judgments -STATUTE- This chapter shall not apply with respect to a judgment on a debt if such judgment is entered more than 10 years before the effective date of this chapter. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4936.) -REFTEXT- REFERENCES IN TEXT For effective date of this chapter, referred to in text, see section 3631 of Pub. L. 101-647, set out as an Effective Date note under section 3001 of this title. ------DocID 36937 Document 799 of 1452------ -CITE- 28 USC Sec. 3006 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3006. Affidavit requirements -STATUTE- Any affidavit required of the United States by this chapter may be made on information and belief, if reliable and reasonably necessary, establishing with particularity, to the court's satisfaction, facts supporting the claim of the United States. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4936.) ------DocID 36938 Document 800 of 1452------ -CITE- 28 USC Sec. 3007 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3007. Perishable personal property -STATUTE- (a) Authority To Sell. - If at any time during any action or proceeding under this chapter the court determines on its own initiative or upon motion of any party, that any seized or detained personal property is likely to perish, waste, or be destroyed, or otherwise substantially depreciate in value during the pendency of the proceeding, the court shall order a commercially reasonable sale of such property. (b) Deposit of Sale Proceeds. - Within 5 days after such sale, the proceeds shall be deposited with the clerk of the court, accompanied by a statement in writing and signed by the United States marshal, to be filed in the action or proceeding, stating the time and place of sale, the name of the purchaser, the amount received, and an itemized account of expenses. (c) Presumption. - For purposes of liability on the part of the United States, there shall be a presumption that the price paid at a sale under subsection (a) is the fair market value of the property or portion. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4937.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3102, 3103 of this title. ------DocID 36939 Document 801 of 1452------ -CITE- 28 USC Sec. 3008 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3008. Proceedings before United States magistrates -STATUTE- A district court of the United States may assign its duties in proceedings under this chapter to a United States magistrate to the extent not inconsistent with the Constitution and laws of the United States. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4937.) -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 36940 Document 802 of 1452------ -CITE- 28 USC Sec. 3009 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3009. United States marshals' authority to designate keeper -STATUTE- Whenever a United States marshal is authorized to seize property pursuant to this chapter, the United States marshal may designate another person or Federal agency to hold for safekeeping such property seized. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4937.) ------DocID 36941 Document 803 of 1452------ -CITE- 28 USC Sec. 3010 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3010. Co-owned property -STATUTE- (a) Limitation. - The remedies available to the United States under this chapter may be enforced against property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located. This section shall not be construed to limit any right or interest of a debtor or co-owner in a retirement system for Federal military or civilian personnel established by the United States or any agency thereof or in a qualified retirement arrangement. (b) Definitions. - For purposes of subsection (a) - (1) the term 'retirement system for Federal military or civilian personnel' means a pension or annuity system for Federal military or civilian personnel of more than one agency, or for some or all of such personnel of a single agency, established by statute or by regulation pursuant to statutory authority; and (2) the term 'qualified retirement arrangement' means a plan qualified under section 401(a), 403(a), or 409 of the Internal Revenue Code of 1986 or a plan that is subject to the requirements of section 205 of the Employee Retirement Income Security Act of 1974. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4937.) -REFTEXT- REFERENCES IN TEXT Sections 401(a), 403(a), and 409 of the Internal Revenue Code of 1986, referred to in subsec. (b)(2), are classified to sections 401(a), 403(a), and 409, respectively, of Title 26, Internal Revenue Code. Section 205 of the Employee Retirement Income Security Act of 1974, referred to in subsec. (b)(2), is classified to section 1055 of Title 29, Labor. ------DocID 36942 Document 804 of 1452------ -CITE- 28 USC Sec. 3011 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3011. Assessment of surcharge on a debt -STATUTE- (a) Surcharge Authorized. - In an action or proceeding under subchapter B or C, and subject to subsection (b), the United States is entitled to recover a surcharge of 10 percent of the amount of the debt in connection with the recovery of the debt, to cover the cost of processing and handling the litigation and enforcement under this chapter of the claim for such debt. (b) Limitation. - Subsection (a) shall not apply if - (1) the United States receives an attorney's fee in connection with the enforcement of the claim; or (2) the law pursuant to which the action on the claim is based provides any other amount to cover such costs. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4937.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3002 of this title. ------DocID 36943 Document 805 of 1452------ -CITE- 28 USC Sec. 3012 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3012. Joinder of additional defendant -STATUTE- The United States or the debtor may join as an additional defendant in an action or proceeding under this chapter any person reasonably believed to owe money (including money owed on account of a requirement to provide goods or services pursuant to a loan or loan guarantee extended under Federal law) to the debtor arising out of the transaction or occurrence giving rise to a debt. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4938.) ------DocID 36944 Document 806 of 1452------ -CITE- 28 USC Sec. 3013 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3013. Modification or protective order; supervision of enforcement -STATUTE- The court may at any time on its own initiative or the motion of any interested person, and after such notice as it may require, make an order denying, limiting, conditioning, regulating, extending, or modifying the use of any enforcement procedure under this chapter. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4938.) ------DocID 36945 Document 807 of 1452------ -CITE- 28 USC Sec. 3014 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3014. Exempt property -STATUTE- (a) Election To Exempt Property. - An individual debtor may, in an action or proceeding under this chapter, elect to exempt property listed in either paragraph (1) or, in the alternative, paragraph (2). If such action or proceeding is against debtors who are husband and wife, one debtor may not elect to exempt property listed in paragraph (1) and the other debtor elect to exempt property listed in paragraph (2). If the debtors cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (1). Such property is either - (1) property that is specified in section 522(d) of title 11, as amended from time to time; or (2)(A) any property that is exempt under Federal law, other than paragraph (1), or State or local law that is applicable on the date of the filing of the application for a remedy under this chapter at the place in which the debtor's domicile has been located for the 180 days immediately preceding the date of the filing of such application, or for a longer portion of such 180-day period than in any other place; and (B) any interest in property in which the debtor had, immediately before the filing of such application, an interest as a tenant by the entirety or joint tenant, or an interest in a community estate, to the extent that such interest is exempt from process under applicable nonbankruptcy law. (b) Effect on Assertion and Manner of Determination. - (1) Statement. - A court may order the debtor to file a statement with regard to any claimed exemption. A copy of such statement shall be served on counsel for the United States. Such statement shall be under oath and shall describe each item of property for which exemption is claimed, the value and the basis for such valuation, and the nature of the debtor's ownership interest. (2) Hearing. - The United States or the debtor, by application to the court in which an action or proceeding under this chapter is pending, may request a hearing on the applicability of any exemption claimed by the debtor. The court shall determine the extent (if any) to which the exemption applies. Unless it is reasonably evident that the exemption applies, the debtor shall bear the burden of persuasion. (3) Stay of Disposition. - Assertion of an exemption shall prevent the United States from selling or otherwise disposing of the property for which such exemption is claimed until the court determines whether the debtor has a substantial nonexempt interest in such property. The United States may not take possession of, dispose of, sell, or otherwise interfere with the debtor's normal use and enjoyment of an interest in property the United States knows or has reason to know is exempt. (c) Debtors in Joint Cases. - Subject to the limitation in subsection (a), this section shall apply separately with respect to each debtor in a joint case. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4938.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3101, 3202 of this title. ------DocID 36946 Document 808 of 1452------ -CITE- 28 USC Sec. 3015 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A -HEAD- Sec. 3015. Discovery as to debtor's financial condition -STATUTE- (a) In General. - Except as provided in subsection (b), in an action or proceeding under subchapter B or C, the United States may have discovery regarding the financial condition of the debtor in the manner in which discovery is authorized by the Federal Rules of Civil Procedure in an action on a claim for a debt. (b) Limitation. - Subsection (a) shall not apply with respect to an action or proceeding under subchapter B unless there is a reasonable likelihood that the debt involved exceeds $50,000. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4939.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. ------DocID 36947 Document 809 of 1452------ -CITE- 28 USC SUBCHAPTER B -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- SUBCHAPTER B - PREJUDGMENT REMEDIES -MISC1- Sec. 3101. Prejudgment remedies. 3102. Attachment. 3103. Receivership. 3104. Garnishment. 3105. Sequestration. -SECREF- SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in sections 3011, 3015 of this title. ------DocID 36948 Document 810 of 1452------ -CITE- 28 USC Sec. 3101 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- Sec. 3101. Prejudgment remedies -STATUTE- (a) Application. - (1) The United States may, in a proceeding in conjunction with the complaint or at any time after the filing of a civil action on a claim for a debt, make application under oath to a court to issue any prejudgment remedy. (2) Such application shall be filed with the court and shall set forth the factual and legal basis for each prejudgment remedy sought. (3) Such application shall - (A) state that the debtor against whom the prejudgment remedy is sought shall be afforded an opportunity for a hearing; and (B) set forth with particularity that all statutory requirements under this chapter for the issuance of the prejudgment remedy sought have been satisfied. (b) Grounds. - Subject to section 3102, 3103, 3104, or 3105, a prejudgment remedy may be granted by any court if the United States shows reasonable cause to believe that - (1) the debtor - (A) is about to leave the jurisdiction of the United States with the effect of hindering, delaying, or defrauding the United States in its effort to recover a debt; (B) has or is about to assign, dispose, remove, conceal, ill treat, waste, or destroy property with the effect of hindering, delaying, or defrauding the United States; (C) has or is about to convert the debtor's property into money, securities, or evidence of debt in a manner prejudicial to the United States with the effect of hindering, delaying, or defrauding the United States; or (D) has evaded service of process by concealing himself or has temporarily withdrawn from the jurisdiction of the United States with the effect of hindering, delaying, or defrauding the United States; or (2) a prejudgment remedy is required to obtain jurisdiction within the United States and the prejudgment remedy sought will result in obtaining such jurisdiction. (c) Affidavit. - (1) The application under subsection (a) shall include an affidavit establishing with particularity to the court's satisfaction facts supporting the probable validity of the claim for a debt and the right of the United States to recover what is demanded in the application. (2) The affidavit shall state - (A) specifically the amount of the debt claimed by the United States and any interest or costs attributable to such debt; (B) one or more of the grounds specified in subsection (b); and (C) the requirements of section 3102(b), 3103(a), 3104(a), or 3105(b), as the case may be. (3) No bond is required of the United States. (d) Notice and Hearing. - (1) On filing an application by the United States as provided in this section, the counsel for the United States shall prepare, and the clerk shall issue, a notice for service on the debtor against whom the prejudgment remedy is sought and on any other person whom the United States reasonably believes, after exercising due diligence, has possession, custody, or control of property affected by such remedy. Three copies of the notice shall be served on each such person. The form and content of such notice shall be approved jointly by a majority of the chief judges of the Federal districts in the State in which the court is located and shall be in substantially the following form: 'NOTICE 'You are hereby notified that this (property) is being taken by the United States Government ('the Government'), which says that (name of debtor) owes it a debt of $ (amount) for (reason for debt) and has filed a lawsuit to collect this debt. The Government says it must take this property at this time because (recite the pertinent ground or grounds from section 3101(b)). The Government wants to make sure (name of debtor) will pay if the court determines that this money is owed. 'In addition, you are hereby notified that there are exemptions under the law which may protect some of this property from being taken by the Government if (name of debtor) can show that the exemptions apply. Below is a summary of the major exemptions which apply in most situations in the State of (State where property is located): '(A statement summarizing in plain and understandable English the election available with respect to such State under section 3014 and the types of property that may be exempted under each of the alternatives specified in paragraphs (1) and (2) of section 3014(a), and a statement that different property may be so exempted with respect to the State in which the debtor resides.) 'If you are (name of debtor) and you disagree with the reason the Government gives for taking your property now, or if you think you do not owe the money to the Government that it says you do, or if you think the property the Government is taking qualifies under one of the above exemptions, you have a right to ask the court to return your property to you. 'If you want a hearing, you must promptly notify the court. You must make your request in writing, and either mail it or deliver it in person to the clerk of the court at (address). If you wish, you may use this notice to request the hearing by checking the box below and mailing this notice to the court clerk. You must also send a copy of your request to the Government at (address), so the Government will know you want a hearing. The hearing will take place within 5 days after the clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. 'At the hearing you may explain to the judge why you think you do not owe the money to the Government, why you disagree with the reason the Government says it must take your property at this time, or why you believe the property the Government has taken is exempt or belongs to someone else. You may make any or all of these explanations as you see fit. 'If you think you live outside the Federal judicial district in which the court is located, you may request, not later than 20 days after you receive this notice, that this proceeding to take your property be transferred by the court to the Federal judicial district in which you reside. You must make your request in writing, and either mail it or deliver it in person to the clerk of the court at (address). You must also send a copy of your request to the Government at (address), so the Government will know you want the proceeding to be transferred. 'Be sure to keep a copy of this notice for your own records. If you have any questions about your rights or about this procedure, you should contact a lawyer, an office of public legal assistance, or the clerk of the court. The clerk is not permitted to give legal advice, but can refer you to other sources of information.' (2) By requesting, at any time before judgment on the claim for a debt, the court to hold a hearing, the debtor may move to quash the order granting such remedy. The court shall hold a hearing on such motion as soon as practicable, or, if requested by the debtor, within 5 days after receiving the request for a hearing or as soon thereafter as possible. The issues at such hearing shall be limited to - (A) the probable validity of the claim for the debt for which such remedy was granted and of any defense or claim of exemption asserted by such person; (B) compliance with any statutory requirement for the issuance of the prejudgment remedy granted; (C) the existence of any ground set forth in subsection (b); and (D) the inadequacy of alternative remedies (if any) to protect the interests of the United States. (e) Issuance of Writ. - On the court's determination that the requirements of subsections (a), (b), and (c) have been met, the court shall issue all process sufficient to put into effect the prejudgment remedy sought. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4939.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3004, 3102, 3103, 3104, 3105 of this title. ------DocID 36949 Document 811 of 1452------ -CITE- 28 USC Sec. 3102 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- Sec. 3102. Attachment -STATUTE- (a) Property Subject to Attachment. - (1) Any property in the possession, custody, or control of the debtor and in which the debtor has a substantial nonexempt interest, except earnings, may be attached pursuant to a writ of attachment in an action or proceeding against a debtor on a claim for a debt and may be held as security to satisfy such judgment, and interest and costs, as the United States may recover on such claim. (2) The value of property attached shall not exceed the amount by which the sum of the amount of the debt claimed by the United States and the amount of interest and costs reasonably likely to be assessed against the debtor by the court exceeds the aggregate value of the nonexempt interest of the debtor in any - (A) property securing the debt; and (B) property garnished or in receivership, or income sequestered, under this subchapter. (b) Availability of Attachment. - If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the United States to attach property in which the debtor has a substantial nonexempt interest, as security for such judgment (and interest and costs) as the United States may recover on a claim for a debt - (1) in an action on a contract, express or implied, against the debtor for payment of money, only if the United States shows reasonable cause to believe that - (A) the contract is not fully secured by real or personal property; or (B) the value of the original security is substantially diminished, without any act of the United States or the person to whom the security was given, below the amount of the debt; (2) in an action against the debtor for damages in tort; (3) if the debtor resides outside the jurisdiction of the United States; or (4) in an action to recover a fine, penalty, or tax. (c) Issuance of Writ; Contents. - (1) Subject to subsections (a) and (b), a writ of attachment shall be issued by the court directing the United States marshal of the district where property described in subsection (a) is located to attach the property. (2) Several writs of attachment may be issued at the same time, or in succession, and sent to different judicial districts until sufficient property is attached. (3) The writ of attachment shall contain - (A) the date of the issuance of the writ; (B) the identity of the court, the docket number of the action, and the identity of the cause of action; (C) the name and last known address of the debtor; (D) the amount to be secured by the attachment; and (E) a reasonable description of the property to be attached. (d) Levy of Attachment. - (1) The United States marshal receiving the writ shall proceed without delay to levy upon the property specified for attachment if found within the district. The marshal may not sell property unless ordered by the court. (2) In performing the levy, the United States marshal may enter any property owned, occupied, or controlled by the debtor, except that the marshal may not enter a residence or other building unless the writ expressly authorizes the marshal to do so or upon specific order of the court. (3) Levy on real property is made by entering the property and posting the writ and notice of levy in a conspicuous place upon the property. (4) Levy on personal property is made by taking possession of it. Levy on personal property not easily taken into possession or which cannot be taken into possession without great inconvenience or expense may be made by affixing a copy of the writ and notice of levy on it or in a conspicuous place in the vicinity of it describing in the notice of levy the property by quantity and with sufficient detail to identify the property levied on. (5) The United States marshal shall file a copy of the notice of levy in the same manner as provided for judgments in section 3201(a)(1). The United States marshal shall serve a copy of the writ and notice of levy on - (A) the debtor against whom the writ is issued; and (B) the person who has possession of the property subject to the writ; in the same manner that a summons is served in a civil action and make the return thereof. (e) Return of Writ; Duties of Marshal; Further Return. - (1) A United States marshal executing a writ of attachment shall return the writ with the marshal's action endorsed thereon or attached thereto and signed by the marshal, to the court from which it was issued, within 5 days after the date of the levy. (2) The return shall describe the property attached with sufficient certainty to identify it and shall state the location where it was attached, the date and time it was attached, and the disposition made of the property. If no property was attached, the return shall so state. (3) If the property levied on is claimed, replevied under subsection (j)(2), or sold under section 3007 after the return, the United States marshal shall immediately make a further return to the clerk of the court showing the disposition of the property. (4) If personal property is replevied, the United States marshal shall deliver the replevin bond to the clerk of the court to be filed in the action. (f) Levy of Attachment as Lien on Property; Satisfaction of Lien. - (1) A levy on property under a writ of attachment under this section creates a lien in favor of the United States on the property or, in the case of perishable property sold under section 3007, on the proceeds of the sale. (2) Such lien shall be ranked ahead of any other security interests perfected after the later of the time of levy and the time a copy of the notice of levy is filed under subsection (d)(5). (3) Such lien shall arise from the time of levy and shall continue until a judgment in the action is obtained or denied, or the action is otherwise dismissed. The death of the debtor whose property is attached does not terminate the attachment lien. Upon issuance of a judgment in the action and registration under this chapter, the judgment lien so created relates back to the time of levy. (g) Reduction or Dissolution of Attachment. - (1) If an excessive or unreasonable attachment is made, the debtor may submit a motion to the court for a reduction of the amount of the attachment or its dissolution. Notice of such motion shall be served on the United States. (2) The court shall order a part of the property to be released, if after a hearing the court finds that the amount of the attachment is excessive or unreasonable or if the attachment is for an amount larger than the sum of the liquidated or ascertainable amount of the debt and the amount of interest and costs likely to be taxed. (3) The court shall dissolve the attachment if the amount of the debt is unliquidated and unascertainable by calculation. (4) If any property claimed to be exempt is levied on, the debtor may, at any time after such levy, request that the court vacate such levy. If it appears to the court that the property so levied upon is exempt, the court shall order the levy vacated and the property returned to the debtor. (h) Replevin of Attached Property by Debtor; Bond. - If attached property is not sold before judgment, the debtor may replevy such property or any part thereof by giving a bond approved by counsel for the United States or the court and payable to the United States in double the reasonable value of the property to be replevied or double the value of the claim, whichever is less. (i) Preservation of Personal Property Under Attachment. - If personal property in custody of the United States marshal under a writ of attachment is not replevied, claimed, or sold, the court may make such order for its preservation or use as appears to be in the interest of the parties. (j) Judgment and Disposition of Attached Property. - (1) Judgment for the united states. - On entry of judgment for the United States, the court shall order the proceeds of personal property sold pursuant to section 3007 to be applied to the satisfaction of the judgment, and shall order the sale of any remaining personal property and any real property levied on to the extent necessary to satisfy the judgment. (2) Judgment for the united states when personal property replevied. - With respect to personal property under attachment that is replevied, the judgment which may be entered shall be against the debtor against whom the writ of attachment is issued and also against the sureties on the debtor's replevin bond for the value of the property. (3) Restoration of property and exoneration of replevin bond. - If the attachment is vacated or if the judgment on the claim for the debt is for the person against whom the writ attachment is issued, the court shall order the property, or proceeds of perishable property sold under section 3007, restored to the debtor and shall exonerate any replevin bond. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4942.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3101, 3203 of this title. ------DocID 36950 Document 812 of 1452------ -CITE- 28 USC Sec. 3103 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- Sec. 3103. Receivership -STATUTE- (a) Appointment of a Receiver. - If the requirements of section 3101 are satisfied, a court may appoint a receiver for property in which the debtor has a substantial nonexempt interest if the United States shows reasonable cause to believe that there is a substantial danger that the property will be removed from the jurisdiction of the court, lost, concealed, materially injured or damaged, or mismanaged. (b) Powers of Receiver. - (1) The appointing court may authorize a receiver - (A) to take possession of real and personal property and sue for, collect, and sell obligations upon such conditions and for such purposes as the court shall direct; and (B) to administer, collect, improve, lease, repair or sell pursuant to section 3007 such real and personal property as the court shall direct. A receiver appointed to manage residential or commercial property shall have demonstrable expertise in the management of these types of property. (2) Unless expressly authorized by order of the court, a receiver shall have no power to employ attorneys, accountants, appraisers, auctioneers, or other professional persons. (c) Duration of Receivership. - A receivership shall not continue past the entry of judgment, or the conclusion of an appeal of such judgment, unless the court orders it continued under section 3203(e) or unless the court otherwise directs its continuation. (d) Accounts; Requirement to Report. - A receiver shall keep written accounts itemizing receipts and expenditures, describing the property and naming the depository of receivership funds. The receiver's accounts shall be open to inspection by any person having an apparent interest in the property. The receiver shall file reports at regular intervals as directed by the court and shall serve the debtor and the United States with a copy thereof. (e) Modification of Powers; Removal. - On motion of the receiver or on its own initiative, the court which appointed the receiver may remove the receiver or modify the receiver's powers at any time. (f) Priority. - If more than one court appoints a receiver for particular property, the receiver first qualifying under law shall be entitled to take possession, control, or custody of the property. (g) Compensation of Receivers. - (1) A receiver is entitled to such commissions, not exceeding 5 percent of the sums received and disbursed by him, as the court allows unless the court otherwise directs. (2) If, at the termination of a receivership, there are no funds in the hands of a receiver, the court may fix the compensation of the receiver in accordance with the services rendered and may direct the party who moved for the appointment of the receiver to pay such compensation in addition to the necessary expenditures incurred by the receiver which remain unpaid. (3) At the termination of a receivership, the receiver shall file a final accounting of the receipts and disbursements and apply for compensation setting forth the amount sought and the services rendered by the receiver. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4944.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3101 of this title. ------DocID 36951 Document 813 of 1452------ -CITE- 28 USC Sec. 3104 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- Sec. 3104. Garnishment -STATUTE- (a) In General. - If the requirements of section 3101 are satisfied, a court may issue a writ of garnishment against property (excluding earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor in order to satisfy a claim for a debt. Co-owned property shall be subject to garnishment to the same extent as co-owned property is subject to garnishment under the law of the State in which such property is located. A court may issue simultaneous separate writs of garnishment to several garnishees. A writ of garnishment issued under this subsection shall be continuing and shall terminate only as provided in section 3205(c)(10). (b) Writ. - (1) Subsections (b)(2) and (c) of section 3205 shall apply with respect to garnishment under this section, except that for purposes of this section - (A) earnings of the debtor shall not be subject to garnishment; and (B) a reference in such subsections to a judgment debtor shall be deemed to be a reference to a debtor. (2) The United States shall include in its application for a writ of garnishment - (A) the amount of the claim asserted by the United States for a debt; and (B) the date the writ is issued. (c) Limitation. - The value of property garnished shall not exceed the amount by which the sum of the amount of the debt claimed by the United States and the amount of interest and costs reasonably likely to be assessed against the debtor by the court exceeds the aggregate value of the nonexempt interest of the debtor in any - (1) property securing the debt; and (2) property attached or in receivership, or income sequestered, under this subchapter. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4945.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3002, 3101 of this title. ------DocID 36952 Document 814 of 1452------ -CITE- 28 USC Sec. 3105 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER B -HEAD- Sec. 3105. Sequestration -STATUTE- (a) Property Subject to Sequestration. - (1) Any income from property in which the debtor has a substantial nonexempt interest may be sequestered pursuant to a writ of sequestration in an action or proceeding against a debtor on a claim for a debt and may be held as security to satisfy such judgment, and interest and costs, as the United States may recover on such claim. (2) The amount of income sequestered shall not exceed the amount by which the sum of the amount of the debt claimed by the United States and the amount of interest and costs reasonably likely to be assessed against the debtor by the court exceeds the aggregate value of the nonexempt interest of the debtor in any - (A) property securing the debt; and (B) property attached, garnished, or in receivership under this subchapter. (b) Availability of Sequestration. - If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the United States to sequester income from property in which the debtor has a substantial nonexempt interest, as security for such judgment (and interest and costs) as the United States may recover on a claim for a debt - (1) in an action on a contract, express or implied, against the debtor for payment of money, only if the United States shows reasonable cause to believe that - (A) the contract is not fully secured by real or personal property; or (B) the value of the original security is substantially diminished, without any act of the United States or the person to whom the security was given, below the amount of the debt; (2) in an action against the debtor for damages in tort; (3) if the debtor resides outside the jurisdiction of the United States; or (4) in an action to recover a fine, penalty, or tax. (c) Issuance of Writ; Contents. - (1) Subject to subsections (a) and (b), a writ of sequestration shall be issued by the court directing the United States marshal of the district where income described in subsection (a) is located to sequester the income. (2) Several writs of sequestration may be issued at the same time, or in succession, and sent to different judicial districts until sufficient income is sequestered. (3) The writ of sequestration shall contain - (A) the date of the issuance of the writ; (B) the identity of the court, the docket number of the action, and the identity of the cause of action; (C) the name and last known address of the debtor; (D) the amount to be secured by the sequestration; and (E) a reasonable description of the income to be sequestered. (d) Execution of Writ. - (1) The United States marshal receiving the writ shall proceed without delay to execute the writ. (2) The United States marshal shall file a copy of the notice of sequestration in the same manner as provided for judgments in section 3201(a)(1). The United States marshal shall serve a copy of the writ and notice of sequestration on - (A) the debtor against whom the writ is issued; and (B) the person who has possession of the income subject to the writ; in the same manner that a summons is served in a civil action and make the return thereof. (e) Deposit of Sequestered Income. - A person who has possession of the income subject to a writ of sequestration shall deposit such income with the clerk of the court, accompanied by a statement in writing stating the person's name, the name of the debtor, the amount of such income, the property from which such income is produced, and the period during which such income is produced. (f) Return of Writ; Duties of Marshal; Further Return. - (1) A United States marshal executing a writ of sequestration shall return the writ with the marshal's action endorsed thereon or attached thereto and signed by the marshal, to the court from which it was issued, within 5 days after the date of the execution. (2) The return shall describe the income sequestered with sufficient certainty to identify it and shall state the location where it was sequestered, and the date and time it was sequestered. If no income was sequestered, the return shall so state. (3) If sequestered income is claimed after the return, the United States marshal shall immediately make a further return to the clerk of the court showing the disposition of the income. (g) Reduction or Dissolution of Sequestration. - (1) If an excessive or unreasonable sequestration is made, the debtor may submit a motion to the court for a reduction of the amount of the sequestration or its dissolution. Notice of such motion shall be served on the United States. (2) The court shall order a part of the income to be released, if after a hearing the court finds that the amount of the sequestration is excessive or unreasonable or if the sequestration is for an amount larger than the sum of the liquidated or ascertainable amount of the debt and the amount of interest and costs likely to be taxed. (3) The court shall dissolve the sequestration if the amount of the debt is unliquidated and unascertainable by calculation. (h) Preservation of Income Under Sequester. - If personal property in custody of the United States marshal under a writ of sequestration is not claimed, the court may make such order for its preservation or use as appears to be in the interest of the parties. (i) Judgment and Disposition of Sequestered Income. - (1) Judgment for the united states. - On entry of judgment for the United States, the court shall order the sequestered income to be applied to the satisfaction of the judgment. (2) Restoration of income. - If the sequestration is vacated or if the judgment on the claim for the debt is for the person against whom the writ of sequestration is issued, the court shall order the income restored to the debtor. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4946.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3101 of this title. ------DocID 36953 Document 815 of 1452------ -CITE- 28 USC SUBCHAPTER C -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- SUBCHAPTER C - POSTJUDGMENT REMEDIES -MISC1- Sec. 3201. Judgment liens. 3202. Enforcement of judgments. 3203. Execution. 3204. Installment payment order. 3205. Garnishment. 3206. Discharge. -SECREF- SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in sections 3011, 3015 of this title. ------DocID 36954 Document 816 of 1452------ -CITE- 28 USC Sec. 3201 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3201. Judgment liens -STATUTE- (a) Creation. - A judgment in a civil action shall create a lien on all real property of a judgment debtor on filing a certified copy of the abstract of the judgment in the manner in which a notice of tax lien would be filed under paragraphs (1) and (2) of section 6323(f) of the Internal Revenue Code of 1986. A lien created under this paragraph is for the amount necessary to satisfy the judgment, including costs and interest. (b) Priority of Lien. - A lien created under subsection (a) shall have priority over any other lien or encumbrance which is perfected later in time. (c) Duration of Lien; Renewal. - (1) Except as provided in paragraph (2), a lien created under subsection (a) is effective, unless satisfied, for a period of 20 years. (2) Such lien may be renewed for one additional period of 20 years upon filing a notice of renewal in the same manner as the judgment is filed and shall relate back to the date the judgment is filed if - (A) the notice of renewal is filed before the expiration of the 20-year period to prevent the expiration of the lien; and (B) the court approves the renewal of such lien under this paragraph. (d) Release of Judgment Lien. - A judgment lien shall be released on the filing of a satisfaction of judgment or release of lien in the same manner as the judgment is filed to obtain the lien. (e) Effect of Lien on Eligibility for Federal Grants, Loans or Programs. - A debtor who has a judgment lien against the debtor's property for a debt to the United States shall not be eligible to receive any grant or loan which is made, insured, guaranteed, or financed directly or indirectly by the United States or to receive funds directly from the Federal Government in any program, except funds to which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise satisfied. The agency of the United States that is responsible for such grants and loans may promulgate regulations to allow for waiver of this restriction on eligibility for such grants, loans, and funds. (f) Sale of Property Subject to Judgment Lien. - (1) On proper application to a court, the court may order the United States to sell, in accordance with sections 2001 and 2002, any real property subject to a judgment lien in effect under this section. (2) This subsection shall not preclude the United States from using an execution sale pursuant to section 3203(g) to sell real property subject to a judgment lien. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4948.) -REFTEXT- REFERENCES IN TEXT Section 6323(f) of the Internal Revenue Code of 1986, referred to in subsec. (a), is classified to section 6323(f) of Title 26, Internal Revenue Code. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3102, 3105 of this title. ------DocID 36955 Document 817 of 1452------ -CITE- 28 USC Sec. 3202 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3202. Enforcement of judgments -STATUTE- (a) Enforcement Remedies. - A judgment may be enforced by any of the remedies set forth in this subchapter. A court may issue other writs pursuant to section 1651 of title 28, United States Code, as necessary to support such remedies, subject to rule 81(b) of the Federal Rules of Civil Procedure. (b) Notice. - On the commencement by the United States of an action or proceeding under this subchapter to obtain a remedy, the counsel for the United States shall prepare, and clerk of the court shall issue, a notice in substantially the following form: 'NOTICE 'You are hereby notified that this (property) is being taken by the United States Government, which has a court judgment in (case docket number and jurisdiction of court) of $(amount) for (reason of debt). 'In addition, you are hereby notified that there are exemptions under the law which may protect some of this property from being taken by the United States Government if (name of judgment debtor) can show that the exemptions apply. Below is a summary of the major exemptions which apply in most situations in the State of (State where property is located): '(A statement summarizing in plain and understandable English the election available with respect to such State under section 3014 and the types of property that may be exempted under each of the alternatives specified in paragraphs (1) and (2) of section 3014(a) and a statement that different property may be so exempted with respect to the State in which the debtor resides.) 'If you are (name of judgment debtor), you have a right to ask the court to return your property to you if you think the property the Government is taking qualifies under one of the above exemptions (For a default judgment:) or if you think you do not owe the money to the United States Government that it says you do. 'If you want a hearing, you must notify the court within 20 days after you receive this notice. You must make your request in writing, and either mail it or deliver it in person to the clerk of the court at (address). If you wish, you may use this notice to request the hearing by checking the box below and mailing this notice to the court clerk. You must also send a copy of your request to the Government at (address), so the Government will know you want a hearing. The hearing will take place within 5 days after the clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. 'At the hearing you may explain to the judge why you believe the property the Government has taken is exempt (For a default judgment:) or why you think you do not owe the money to the Government. (For a writ of execution:) If you do not request a hearing within 20 days of receiving this notice, your (property) may be sold at public auction and the payment used toward the money you owe the Government. 'If you think you live outside the Federal judicial district in which the court is located, you may request, not later than 20 days after your (FOOTNOTE 1) receive this notice, that this proceeding to take your property be transferred by the court to the Federal judicial district in which you reside. You must make your request in writing, and either mail it or deliver it in person to the clerk of the court at (address). You must also send a copy of your request to the Government at (address), so the Government will know you want the proceeding to be transferred. (FOOTNOTE 1) So in original. Probably should be 'you'. 'Be sure to keep a copy of this notice for your own records. If you have any questions about your rights or about this procedure, you should contact a lawyer, an office of public legal assistance, or the clerk of the court. The clerk is not permitted to give legal advice, but can refer you to other sources of information.' (c) Service. - A copy of the notice and a copy of the application for granting a remedy under this subchapter shall be served by counsel for the United States on the judgment debtor against whom such remedy is sought and on each person whom the United States, after diligent inquiry, has reasonable cause to believe has an interest in property to which the remedy is directed. (d) Hearing. - By requesting, within 20 days after receiving the notice described in section 3202(b), the court to hold a hearing, the judgment debtor may move to quash the order granting such remedy. The court that issued such order shall hold a hearing on such motion as soon as practicable, or, if so requested by the judgment debtor, within 5 days after receiving the request or as soon thereafter as possible. The issues at such hearing shall be limited - (1) to the probable validity of any claim of exemption by the judgment debtor; (2) to compliance with any statutory requirement for the issuance of the postjudgment remedy granted; and (3) if the judgment is by default and only to the extent that the Constitution or another law of the United States provides a right to a hearing on the issue, to - (A) the probable validity of the claim for the debt which is merged in the judgment; and (B) the existence of good cause for setting aside such judgment. This subparagraph shall not be construed to afford the judgment debtor the right to more than one such hearing except to the extent that the Constitution or another law of the United States provides a right to more than one such hearing. (e) Sale of Property. - The property of a judgment debtor which is subject to sale to satisfy the judgment may be sold by judicial sale, pursuant to sections 2001, 2002, and 2004 or by execution sale pursuant to section 3203(g). If a hearing is requested pursuant to subsection (d), property with respect to which the request relates shall not be sold before such hearing. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4949.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3004 of this title. ------DocID 36956 Document 818 of 1452------ -CITE- 28 USC Sec. 3203 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3203. Execution -STATUTE- (a) Property Subject to Execution. - All property in which the judgment debtor has a substantial nonexempt interest shall be subject to levy pursuant to a writ of execution. The debtor's earnings shall not be subject to execution while in the possession, custody, or control of the debtor's employer. Co-owned property shall be subject to execution to the extent such property is subject to execution under the law of the State in which it is located. (b) Creation of Execution Lien. - A lien shall be created in favor of the United States on all property levied on under a writ of execution and shall date from the time of the levy. Such lien shall have priority over all subsequent liens and shall be for the aggregate amount of the judgment, costs, and interest. The execution lien on any real property as to which the United States has a judgment lien shall relate back to the judgment lien date. (c) Writ of Execution. - (1) Issuance. - On written application of counsel for the United States, the court may issue a writ of execution. Multiple writs may issue simultaneously, and successive writs may issue before the return date of a writ previously issued. (2) Form of writ. - (A) General contents. - A writ of execution shall specify the date that the judgment is entered, the court in which it is entered, the amount of the judgment if for money, the amount of the costs, the amount of interest due, the sum due as of the date the writ is issued, the rate of postjudgment interest, the name of the judgment debtor, and the judgment debtor's last known address. (B) Additional contents. - (i) Except as provided in clauses (ii) and (iii), the writ shall direct the United States marshal to satisfy the judgment by levying on and selling property in which the judgment debtor has a substantial nonexempt interest, but not to exceed property reasonably equivalent in value to the aggregate amount of the judgment, costs, and interest. (ii) A writ of execution issued on a judgment for the delivery to the United States of the possession of personal property, or for the delivery of the possession of real property, shall particularly describe the property, and shall require the marshal to deliver the possession of the property to the United States. (iii) A writ of execution on a judgment for the recovery of personal property or its value shall direct the marshal, in case a delivery of the specific property cannot be had, to levy and collect such value out of any property in which the judgment debtor has a substantial nonexempt interest. (d) Levy of Execution. - (1) In general. - Levy on property pursuant to a writ of execution issued under this section shall be made in the same manner as levy on property is made pursuant to a writ of attachment issued under section 3102(d). (2) Death of judgment debtor. - The death of the judgment debtor after a writ of execution is issued stays the execution proceedings, but any lien acquired by levy of the writ shall be recognized and enforced by the court for the district in which the estate of the deceased is located. The execution lien may be enforced - (A) against the executor, administrator, or personal representative of the estate of the deceased; or (B) if there be none, against the deceased's property coming to the heirs or devisees or at their option against cash in their possession, but only to the extent of the value of the property coming to them. (3) Records of united states marshal. - (A) A United States marshal receiving a writ of execution shall endorse thereon the exact hour and date of receipt. (B) The United States marshal shall make a written record of every levy, specify the property on which levy is made, the date on which levy is made, and the marshal's costs, expenses, and fees. (C) The United States marshal shall make a written return to the court on each writ of execution stating concisely what is done pursuant to the writ and shall deliver a copy to counsel for the United States who requests the writ. The writ shall be returned not more than - (i) 90 days after the date of issuance if levy is not made; or (ii) 10 days after the date of sale of property on which levy is made. (e) Appointment of Receiver. - Pending the levy of execution, the court may appoint a receiver to manage property described in such writ if there is a substantial danger that the property will be removed from the jurisdiction of the court, lost, materially injured or damaged, or mismanaged. (f) Replevy; Redemption. - (1) Before execution sale. - (A) Before execution sale, the United States marshal may return property (FOOTNOTE 1) to the judgment debtor any personal property taken in execution, on - (FOOTNOTE 1) So in original. The word 'property' probably should not appear. (i) satisfaction of the judgment, interest, and costs, and any costs incurred in connection with scheduling the sale; or (ii) receipt from the judgment debtor of a bond - (I) payable to the United States, with 2 or more good and sufficient sureties to be approved by the marshal, conditioned on the delivery of the property to the marshal at the time and place named in the bond to be sold under subsection (g); or (II) for the payment to the marshal of a fair value thereof which shall be stated in the bond. (B) A judgment debtor who sells or disposes of property replevied under subparagraph (A) shall pay the United States marshal the stipulated value of such property. (C) If the judgment debtor fails to deliver such property to the United States marshal pursuant to the terms of the delivery described in subparagraph (A)(ii)(I) and fails to pay the United States marshal the stipulated value of such property, the United States marshal shall endorse the bond 'forfeited' and return it to the court from which the writ of execution issued. If the judgment is not fully satisfied, the court shall issue a writ of execution against the judgment debtor and the sureties on the bond for the amount due, not exceeding the stipulated value of the property, on which execution no delivery bond shall be taken, which instruction shall be endorsed on the writ. (2) After execution sale. - The judgment debtor shall not be entitled to redeem the property after the execution sale. (g) Execution Sale. - (1) General procedures. - An execution sale under this section shall be conducted in a commercially reasonable manner - (A) Sale of real property. - (i) In general. - (I) Except as provided in clause (ii), real property, or any interest therein, shall be sold, after the expiration of the 90-day period beginning on the date of levy under subsection (d), for cash at public auction at the courthouse of the county, parish, or city in which the greater part of the property is located or on the premises or some parcel thereof. (II) The court may order the sale of any real property after the expiration of the 30-day period beginning on the date of levy under subsection (d) if the court determines that such property is likely to perish, waste, be destroyed, or otherwise substantially depreciate in value during the 90-day period beginning on the date of levy. (III) The time and place of sale of real property, or any interest therein, under execution shall be advertised by the United States marshal, by publication of notice, once a week for at least 3 weeks prior to the sale, in at least one newspaper of general circulation in the county or parish where the property is located. The first publication shall appear not less than 25 days preceding the day of sale. The notice shall contain a statement of the authority by which the sale is to be made, the time of levy, the time and place of sale, and a brief description of the property to be sold, sufficient to identify the property (such as a street address for urban property and the survey identification and location for rural property), but it shall not be necessary for the notice to contain field notes. Such property shall be open for inspection and appraisal, subject to the judgment debtor's reasonable objections, for a reasonable period before the day of sale. (IV) The United States marshal shall serve written notice of public sale by personal delivery, or certified or registered mail, to each person whom the marshal has reasonable cause to believe, after a title search is conducted by the United States, has an interest in property under execution, including lienholders, co-owners, and tenants, at least 25 days before the day of sale, to the last known address of each such person. (ii) Sale of city lots. - If the real property consists of several lots, tracts, or parcels in a city or town, each lot, tract, or parcel shall be offered for sale separately, unless not susceptible to separate sale because of the character of improvements. (iii) Sale of rural property. - If the real property is not located in a city or town, the judgment debtor may - (I) divide the property into lots of not less than 50 acres or in such greater or lesser amounts as ordered by the court; (II) furnish a survey of such prepared by a registered surveyor; and (III) designate the order in which those lots shall be sold. When a sufficient number of lots are sold to satisfy the amount of the execution and costs of sale, the marshal shall stop the sale. (B) Sale of personal property. - (i) Personal property levied on shall be offered for sale on the premises where it is located at the time of levy, at the courthouse of the county, parish or city wherein it is located, or at another location if ordered by the court. Personal property susceptible of being exhibited shall not be sold unless it is present and subject to the view of those attending the sale unless - (I) the property consists of shares of stock in corporations; (II) by reason of the nature of the property, it is impractical to exhibit it; or (III) the debtor's interest in the property does not include the right to the exclusive possession. (ii)(I) Except as provided in subclause (II), personal property, or any interest therein, shall be sold after the expiration of the 30-day period beginning on the date of levy under subsection (d). (II) The court may order the sale of any personal property before the expiration of such 30-day period if the court determines that such property is likely to perish, waste, be destroyed, or otherwise substantially depreciate in value during such 30-day period. (iii) Notice of the time and place of the sale of personal property shall be given by the United States marshal by posting notice thereof for not less than 10 days successively immediately before the day of sale at the courthouse of any county, parish, or city, and at the place where the sale is to be made. (iv) The United States marshal shall serve written notice of public sale by personal delivery, or registered or certified mail at their last known addresses, on the judgment debtor and other persons who the marshal has reasonable cause to believe, after diligent inquiry, have a substantial interest in the property. (2) Postponement of sale. - The United States marshal may postpone an execution sale from time to time by continuing the required posting or publication of notice until the date to which the sale is postponed, and appending, at the foot of each such notice of a current copy of the following: 'The above sale is postponed until the day of , 19 , at o'clock .M., , United States Marshal for the District of , by (3) Sale procedures. - (A) Bidding requirements. - A bidder at an execution sale of property, may be required by the United States marshal to make a cash deposit of as much as 20 percent of the sale price proposed before the bid is accepted. (B) Resale of property. - If the terms of the sale are not complied with by the successful bidder, the United States marshal shall proceed to sell the property again on the same day if there is sufficient time. If there is insufficient time, the marshal shall schedule and notice a subsequent sale of the property as provided in paragraphs (1) and (2). (4) Rights and liabilities of purchasers. - (A) Transfer of title after sale. - (i) If property is sold under this subsection and the successful bidder complies with the terms of the sale, the United States marshal shall execute and deliver all documents necessary to transfer to the successful bidder, without warranty, all the rights, titles, interests, and claims of the judgment debtor in the property. (ii) If the successful bidder dies before execution and delivery of the documents needed to transfer ownership, the United States marshal shall execute and deliver them to the successful bidder's estate. Such delivery to the estate shall have the same effect as if accomplished during the lifetime of the purchaser. (B) Purchaser considered innocent purchaser without notice. - The purchaser of property sold under execution shall be deemed to be an innocent purchaser without notice if the purchaser would have been considered an innocent purchaser without notice had the sale been made voluntarily and in person by the judgment debtor. (C) Liability of successful bidder who fails to comply. - A successful bidder at an execution sale who fails to comply with the terms of the sale shall forfeit to the United States the cash deposit or, at the election of the United States, shall be liable to the United States, on a subsequent sale of the property, for all net losses incurred by the United States as a result of such failure. (h) Disposition of Proceeds; Further Levy. - (1) Distribution of sale proceeds. - (A) The United States marshal shall first deliver to the judgment debtor such amounts to which the judgment debtor is entitled from the sale of partially exempt property. (B) The United States marshal shall next deduct from the proceeds of an execution sale of property an amount equal to the reasonable expenses incurred in making the levy of execution and in keeping and maintaining the property. (C) Except as provided in subparagraph (D), the United States marshal shall deliver the balance of the proceeds to the counsel for the United States as soon as practicable. (D) If more proceeds are received from the execution sale than is necessary to satisfy the executions held by the United States marshal, the marshal shall pay the surplus to the judgment debtor. (2) Further levy if execution not satisfied. - If the proceeds of the execution sale of the property levied on are insufficient to satisfy the execution, the United States marshal shall proceed on the same writ of execution to levy other property of the judgment debtor. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4950.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3103, 3201, 3202 of this title. ------DocID 36957 Document 819 of 1452------ -CITE- 28 USC Sec. 3204 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3204. Installment payment order -STATUTE- (a) Authority To Issue Order. - Subject to subsection (c), if it is shown that the judgment debtor - (1) is receiving or will receive substantial nonexempt disposable earnings from self employment that are not subject to garnishment; or (2) is diverting or concealing substantial earnings from any source, or property received in lieu of earnings; then upon motion of the United States and notice to the judgment debtor, the court may, if appropriate, order that the judgment debtor make specified installment payments to the United States. Notice of the motion shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. In fixing the amount of the payments, the court shall take into consideration after a hearing, the income, resources, and reasonable requirements of the judgment debtor and the judgment debtor's dependents, any other payments to be made in satisfaction of judgments against the judgment debtor, and the amount due on the judgment in favor of the United States. (b) Modification of Order. - On motion of the United States or the judgment debtor, and upon a showing that the judgment debtor's financial circumstances have changed or that assets not previously disclosed by the judgment debtor have been discovered, the court may modify the amount of payments, alter their frequency, or require full payment. (c) Limitation. - (1) An order may not be issued under subsection (a), and if so issued shall have no force or effect, against a judgment debtor with respect to whom there is in effect a writ of garnishment of earnings issued under this chapter and based on the same debt. (2) An order may not be issued under subsection (a) with respect to any earnings of the debtor except nonexempt disposable earnings. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4955.) ------DocID 36958 Document 820 of 1452------ -CITE- 28 USC Sec. 3205 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3205. Garnishment -STATUTE- (a) In General. - A court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor. Co-owned property shall be subject to garnishment to the same extent as co-owned property is subject to garnishment under the law of the State in which such property is located. A court may issue simultaneous separate writs of garnishment to several garnishees. A writ of garnishment issued under this subsection shall be continuing and shall terminate only as provided in subsection (c)(10). (b) Writ. - (1) General requirements. - The United States shall include in its application for a writ of garnishment - (A) the judgment debtor's name, social security number (if known), and last known address; (B) the nature and amount of the debt owed and the facts that not less than 30 days has elapsed since demand on the debtor for payment of the debt was made and the judgment debtor has not paid the amount due; and (C) that the garnishee is believed to have possession of property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest. (2) Proper garnishee for particular property. - (A) If the property consists of a right to or share in the stock of an association or corporation, or interests or profits therein, for which a certificate of stock or other negotiable instrument is not outstanding, the corporation, or the president or treasurer of the association shall be the garnishee. (B) If the property consists of an interest in a partnership interest, any partner other than the debtor shall be the garnishee on behalf of the partnership. (C) If the property or a debt is evidenced by a negotiable instrument for the payment of money, a negotiable document of title or a certificate of stock of an association or corporation, the instrument, document, or certificate shall be treated as property capable of delivery and the person holding it shall be the garnishee, except that - (i) subject to clause (ii), in the case of a security which is transferable in the manner set forth in State law, the entity that carries on its books an account in the name of the debtor in which is reflected such security shall be the garnishee; and (ii) notwithstanding clause (i), the pledgee shall be the garnishee if such security is pledged. (c) Procedures Applicable to Writ. - (1) Court determination. - If the court determines that the requirements of this section are satisfied, the court shall issue an appropriate writ of garnishment. (2) Form of writ. - The writ shall state - (A) The nature and amount of the debt, and any cost and interest owed with respect to the debt. (B) The name and address of the garnishee. (C) The name and address of counsel for the United States. (D) The last known address of the judgment debtor. (E) That the garnishee shall answer the writ within 10 days of service of the writ. (F) That the garnishee shall withhold and retain any property in which the debtor has a substantial nonexempt interest and for which the garnishee is or may become indebted to the judgment debtor pending further order of the court. (3) Service of writ. - The United States shall serve the garnishee and the judgment debtor with a copy of the writ of garnishment and shall certify to the court that this service was made. The writ shall be accompanied by - (A) an instruction explaining the requirement that the garnishee submit a written answer to the writ; and (B) instructions to the judgment debtor for objecting to the answer of the garnishee and for obtaining a hearing on the objections. (4) Answer of the garnishee. - In its written answer to the writ of garnishment, the garnishee shall state under oath - (A) whether the garnishee has custody, control or possession of such property; (B) a description of such property and the value of such interest; (C) a description of any previous garnishments to which such property is subject and the extent to which any remaining property is not exempt; and (D) the amount of the debt the garnishee anticipates owing to the judgment debtor in the future and whether the period for payment will be weekly or another specified period. The garnishee shall file the original answer with the court issuing the writ and serve a copy on the debtor and counsel for the United States. (5) Objections to answer. - Within 20 days after receipt of the answer, the judgment debtor or the United States may file a written objection to the answer and request a hearing. The party objecting shall state the grounds for the objection and bear the burden of proving such grounds. A copy of the objection and request for a hearing shall be served on the garnishee and all other parties. The court shall hold a hearing within 10 days after the date the request is received by the court, or as soon thereafter as is practicable, and give notice of the hearing date to all the parties. (6) Garnishee's failure to answer or pay. - If a garnishee fails to answer the writ of garnishment or to withhold property in accordance with the writ, the United States may petition the court for an order requiring the garnishee to appear before the court to answer the writ and to so withhold property before the appearance date. If the garnishee fails to appear, or appears and fails to show good cause why the garnishee failed to comply with the writ, the court shall enter judgment against the garnishee for the value of the judgment debtor's nonexempt interest in such property (including nonexempt disposable earnings). The court may award a reasonable attorney's fee to the United States and against the garnishee if the writ is not answered within the time specified therein and a petition requiring the garnishee to appear is filed as provided in this section. (7) Disposition order. - After the garnishee files an answer and if no hearing is requested within the required time period, the court shall promptly enter an order directing the garnishee as to the disposition of the judgment debtor's nonexempt interest in such property. If a hearing is timely requested, the order shall be entered within 5 days after the hearing, or as soon thereafter as is practicable. (8) Priorities. - Judicial orders and garnishments for the support of a person shall have priority over a writ of garnishment issued under this section. As to any other writ of garnishment or levy, a garnishment issued under this section shall have priority over writs which are issued later in time. (9) Accounting. - (A) While a writ of garnishment is in effect under this section, the United States shall give an annual accounting on the garnishment to the judgment debtor and the garnishee. (B) Within 10 days after the garnishment terminates, the United States shall give a cumulative written accounting to the judgment debtor and garnishee of all property it receives under a writ of garnishment. Within 10 days after such accounting is received, the judgment debtor or garnishee may file a written objection to the accounting and a request for hearing. The party objecting shall state grounds for the objection. The court shall hold a hearing on the objection within 10 days after the court receives the request for a hearing, or as soon thereafter as is practicable. (10) Termination of garnishment. - A garnishment under this chapter is terminated only by - (A) a court order quashing the writ of garnishment; (B) exhaustion of property in the possesion, (FOOTNOTE 1) custody, or control of the garnishee in which the debtor has a substantial nonexempt interest (including nonexempt disposable earnings), unless the garnishee reinstates or reemploys the judgment debtor within 90 days after the judgment debtor's dismissal or resignation; or (FOOTNOTE 1) So in original. Probably should be 'possession,'. (C) satisfaction of the debt with respect to which the writ is issued. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4956.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3002, 3104 of this title. ------DocID 36959 Document 821 of 1452------ -CITE- 28 USC Sec. 3206 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER C -HEAD- Sec. 3206. Discharge -STATUTE- A person who pursuant to an execution or order issued under this chapter by a court pays or delivers to the United States, a United States marshal, or a receiver, money or other personal property in which a judgment debtor has or will have an interest, or so pays a debt such person owes the judgment debtor, is discharged from such debt to the judgment debtor to the extent of the payment or delivery. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4959.) ------DocID 36960 Document 822 of 1452------ -CITE- 28 USC SUBCHAPTER D -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- SUBCHAPTER D - FRAUDULENT TRANSFERS INVOLVING DEBTS -MISC1- Sec. 3301. Definitions. 3302. Insolvency. 3303. Value for a transfer or obligation. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to section catchline. 3304. Transfer fraudulent as to a debt to the United States. 3305. When transfer is made or obligation is incurred. 3306. Remedies of the United States. 3307. Defenses, liability and protection of transferee. (FOOTNOTE 1) 3308. Supplementary provision. ------DocID 36961 Document 823 of 1452------ -CITE- 28 USC Sec. 3301 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3301. Definitions -STATUTE- As used in this subchapter: (1) 'Affiliate' means - (A) a person who directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities - (i) as a fiduciary or agent without sole discretionary power to vote the securities; or (ii) solely to secure a debt, if the person has not exercised the power to vote; (B) a corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person who directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than the person who holds securities - (i) as a fiduciary or agent without sole power to vote the securities; or (ii) solely to secure a debt, if the person has not in fact exercised the power to vote; (C) a person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or (D) a person who operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets. (2) 'Asset' means property of a debtor, but does not include - (A) property to the extent it is encumbered by a valid lien; (B) property to the extent it is generally exempt under nonbankruptcy law; or (C) an interest in real property held in tenancy by the entirety, or as part of a community estate, to extent such interest is not subject to process by the United States holding a claim against only one tenant or co-owner. (3) 'Claim' means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. (4) 'Creditor' means a person who has a claim. (5) 'Insider' includes - (A) if the debtor is an individual - (i) a relative of the debtor or of a general partner of the debtor; (ii) a partnership in which the debtor is a general partner; (iii) a general partner in a partnership described in clause (ii); or (iv) a corporation of which the debtor is a director, officer, or person in control; (B) if the debtor is a corporation - (i) a director of the debtor; (ii) an officer of the debtor; (iii) a person in control of the debtor; (iv) a partnership in which the debtor is a general partner; (v) a general partner in a partnership described in clause (iv); or (vi) a relative of a general partner, director, officer, or person in control of the debtor; (C) if the debtor is a partnership - (i) a general partner in the debtor; (ii) a relative of a general partner in, a general partner of, or a person in control of the debtor; (iii) another partnership in which the debtor is a general partner; (iv) a general partner in a partnership described in clause (iii); or (v) a person in control of the debtor. (FOOTNOTE 1) (FOOTNOTE 1) So in original. The period probably should be a semicolon. (D) an affiliate, or an insider of an affiliate as if the affiliate were the debtor; and (E) a managing agent of the debtor. (4) (FOOTNOTE 2) 'Lien' means a charge against or an interest in property to secure payment of a debt and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common law lien, or a statutory lien. (FOOTNOTE 2) So in original. Probably should be '(6)'. (5) (FOOTNOTE 3) 'Relative' means an individual related, by consanguinity or adoption, within the third degree as determined by the common law, a spouse, or an individual so related to a spouse within the third degree as so determined. (FOOTNOTE 3) So in original. Probably should be '(7)'. (6) (FOOTNOTE 4) 'Transfer' means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance. (FOOTNOTE 4) So in original. Probably should be '(8)'. (7) (FOOTNOTE 5) 'Valid lien' means a lien that is effective against the holder of a judicial lien subsequently obtained in legal or equitable proceeding. (FOOTNOTE 5) So in original. Probably should be '(9)'. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4959.) ------DocID 36962 Document 824 of 1452------ -CITE- 28 USC Sec. 3302 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3302. Insolvency -STATUTE- (a) In General. - Except as provided in subsection (c), a debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair valuation. (b) Presumption. - A debtor who is generally not paying debts as they become due is presumed to be insolvent. (c) Calculation. - A partnership is insolvent under subsection (a) if the sum of the partnership's debts is greater than the aggregate, at a fair valuation, of - (1) all of the partnership's assets; and (2) the sum of the excess of the value of each general partner's non-partnership assets over the partner's non-partnership debts. (d) Assets. - For purposes of this section, assets do not include property that is transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under this subchapter. (e) Debts. - For purposes of this section, debts do not include an obligation to the extent such obligation is secured by a valid lien on property of the debtor not included as an asset. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4961.) ------DocID 36963 Document 825 of 1452------ -CITE- 28 USC Sec. 3303 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3303. Value for transfer or obligation -STATUTE- (a) Transaction. - Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor's business to furnish support to the debtor or another person. (b) Reasonably Equivalent Value. - For the purposes of sections 3304 and 3307, a person gives a reasonably equivalent value if the person acquires an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure sale or execution of a power of sale for the acquisition or disposition of such interest upon default under a mortgage, deed of trust, or security agreement. (c) Present Value. - A transfer is made for present value if the exchange between the debtor and the transferee is intended by them to be contemporaneous and is in fact substantially contemporaneous. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4961.) ------DocID 36964 Document 826 of 1452------ -CITE- 28 USC Sec. 3304 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3304. Transfer fraudulent as to a debt to the United States -STATUTE- (a) Debt Arising Before Transfer. - Except as provided in section 3307, a transfer made or obligation incurred by a debtor is fraudulent as to a debt to the United States which arises before the transfer is made or the obligation is incurred if - (1)(A) the debtor makes the transfer or incurs the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation; and (B) the debtor is insolvent at that time or the debtor becomes insolvent as a result of the transfer or obligation; or (2)(A) the transfer was made to an insider for an antecedent debt, the debtor was insolvent at the time; and (B) the insider had reasonable cause to believe that the debtor was insolvent. (b) Transfers Without Regard to Date of Judgment. - (1) Except as provided in section 3307, a transfer made or obligation incurred by a debtor is fraudulent as to a debt to the United States, whether such debt arises before or after the transfer is made or the obligation is incurred, if the debtor makes the transfer or incurs the obligation - (A) with actual intent to hinder, delay, or defraud a creditor; or (B) without receiving a reasonably equivalent value in exchange for the transfer or obligation if the debtor - (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (ii) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. (2) In determining actual intent under paragraph (1), consideration may be given, among other factors, to whether - (A) the transfer or obligation was to an insider; (B) the debtor retained possession or control of the property transferred after the transfer; (C) the transfer or obligation was disclosed or concealed; (D) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (E) the transfer was of substantially all the debtor's assets; (F) the debtor absconded; (G) the debtor removed or concealed assets; (H) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (I) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (J) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (K) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4961.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3303, 3306, 3307 of this title. ------DocID 36965 Document 827 of 1452------ -CITE- 28 USC Sec. 3305 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3305. When transfer is made or obligation is incurred -STATUTE- For the purposes of this subchapter: (1) A transfer is made - (A) with respect to an asset that is real property (other than a fixture, but including the interest of a seller or purchaser under a contract for the sale of the asset), when the transfer is so far perfected that a good-faith purchaser of the asset from the debtor against whom applicable law permits the transfer to be perfected cannot acquire an interest in the asset that is superior to the interest of the transferee; and (B) with respect to an asset that is not real property or that is a fixture, when the transfer is so far perfected that a creditor on a simple contract cannot acquire, otherwise than under this subchapter, a judicial lien that is superior to the interest of the transferee. (2) If applicable law permits the transfer to be perfected as approved in paragraph (1) and the transfer is not so perfected before the commencement of an action or proceeding for relief under this subchapter, the transfer is deemed made immediately before the commencement of the action or proceeding. (3) If applicable law does not permit the transfer to be perfected as provided in paragraph (1), the transfer is made when it becomes effective between the debtor and the transferee. (4) A transfer is not made until the debtor has acquired rights in the asset transferred. (5) An obligation is incurred - (A) if oral, when it becomes effective between the parties; or (B) if evidenced by a writing executed by the obligor, when such writing is delivered to or for the benefit of the obligee. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4962.) ------DocID 36966 Document 828 of 1452------ -CITE- 28 USC Sec. 3306 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3306. Remedies of the United States -STATUTE- (a) In General. - In an action or proceeding under this subchapter for relief against a transfer or obligation, the United States, subject to section 3307 and to applicable principles of equity and in accordance with the Federal Rules of Civil Procedure, may obtain - (1) avoidance of the transfer or obligation to the extent necessary to satisfy the debt to the United States; (2) a remedy under this chapter against the asset transferred or other property of the transferee; or (3) any other relief the circumstances may require. (b) Limitation. - A claim for relief with respect to a fraudulent transfer or obligation under this subchapter is extinguished unless action is brought - (1) under section 3304(b)(1)(A) within 6 years after the transfer was made or the obligation was incurred or, if later, within 2 years after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) under subsection (a)(1) or (b)(1)(B) of section 3304 within 6 years after the transfer was made or the obligation was incurred; or (3) under section 3304(a)(2) within 2 years after the transfer was made or the obligation was incurred. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4963.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3307 of this title. ------DocID 36967 Document 829 of 1452------ -CITE- 28 USC Sec. 3307 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3307. Defenses, liability, and protection of transferee -STATUTE- (a) Good Faith Transfer. - A transfer or obligation is not voidable under section 3304(b) with respect to a person who took in good faith and for a reasonably equivalent value or against any transferee or obligee subsequent to such person. (b) Limitation. - Except as provided in subsection (d), to the extent a transfer is voidable in an action or proceeding by the United States under section 3306(a)(1), the United States may recover judgment for the value of the asset transferred, but not to exceed the judgment on a debt. The judgment may be entered against - (1) the first transferee of the asset or the person for whose benefit the transfer was made; or (2) any subsequent transferee, other than a good faith transferee who took for value or any subsequent transferee of such good-faith transferee. (c) Value of Asset. - For purposes of subsection (b), the value of the asset is the value of the asset at the time of the transfer, subject to adjustment as the equities may require. (d) Rights of Good Faith Transferees and Obligees. - Notwithstanding voidability of a transfer or an obligation under this subchapter, a good-faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to - (1) a lien on or a right to retain any interest in the asset transferred; (2) enforcement of any obligation incurred; or (3) a reduction in the amount of the liability on the judgment. (e) Exceptions. - A transfer is not voidable under section 3304(a) or section 3304(b)(2) if the transfer results from - (1) termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law; or (2) enforcement of a security interest in compliance with article 9 of the Uniform Commercial Code or its equivalent in effect in the State where the property is located. (f) Limitation of Voidability. - A transfer is not voidable under section 3304(a)(2) - (1) to the extent the insider gives new value to or for the benefit of the debtor after the transfer is made unless the new value is secured by a valid lien; (2) if made in the ordinary course of business or financial affairs of the debtor and the insider; or (3) if made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured both present value given for that purpose and an antecedent debt of the debtor. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4963.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3303, 3304, 3306 of this title. ------DocID 36968 Document 830 of 1452------ -CITE- 28 USC Sec. 3308 -EXPCITE- TITLE 28 PART VI CHAPTER 176 SUBCHAPTER D -HEAD- Sec. 3308. Supplementary provision -STATUTE- Except as provided in this subchapter, the principles of law and equity, including the law merchant and the law relating to principal and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause shall apply to actions and proceedings under this subchapter. -SOURCE- (Added Pub. L. 101-647, title XXXVI, Sec. 3611, Nov. 29, 1990, 104 Stat. 4964.) ------DocID 36969 Document 831 of 1452------ -CITE- 28 USC APPENDIX - JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS -EXPCITE- TITLE 28 APPENDIX -HEAD- TITLE 28 - APPENDIX -MISC1- Item Page Judicial Personnel Financial Disclosure Requirements (Repealed) 533 Development of Mechanisms for Resolving Minor Disputes (Omitted) 1062 Federal Rules of Appellate Procedure 534 Federal Rules of Civil Procedure 538 Federal Rules of Evidence 539 Rules of the Supreme Court of the United States 541 Rules of the United States Claims Court 561 Rules of the United States Court of International Trade 624 JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS (Title III (Sec. 301-309) of Pub. L. 95-521, Oct. 26, 1978, 92 Stat. 1851-1861, as amended by Pub. L. 96-19, Sec. 2(a)(3), (c)(3), 3(a)(3), (b), 4(c), 6, 7(a)-(c), (d)(2), (e), (f), 8(c), 9(c)(3), (d), (j), (p)-(r), June 13, 1979, 93 Stat. 37-43; Pub. L. 96-417, title VI, Sec. 601(9), Oct. 10, 1980, 94 Stat. 1744; Pub. L. 96-579, Sec. 12(c), Dec. 23, 1980, 94 Stat. 3369; Pub. L. 97-164, title I, Sec. 163(a)(6), Apr. 2, 1982, 96 Stat. 49; Pub. L. 98-150, Sec. 10, Nov. 11, 1983, 97 Stat. 962; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-573, Sec. 6, Oct. 28, 1986, 100 Stat. 3231; Pub. L. 101-237, title VI, Sec. 602(a)(1), Dec. 18, 1989, 103 Stat. 2094, which related to judicial personnel financial disclosure requirements, was repealed by Pub. L. 101-194, title II, Sec. 201, Nov. 30, 1989, 103 Stat. 1724. See title I of the Ethics in Government Act of 1978, Pub. L. 95-521, as amended, relating to financial disclosure requirements of Federal personnel, set out in the Appendix to Title 5, Government Organization and Employees.) EFFECTIVE DATE OF REPEAL Repeal effective Jan. 1, 1991, see section 204 of Pub. L. 101-194, set out as an Effective Date of 1989 Amendment note under section 101 of Pub. L. 95-521 in the Appendix to Title 5, Government Organization and Employees. Provisions of title III of Pub. L. 95-521, as in effect prior to Nov. 30, 1989, effective until Jan. 1, 1991, as if Pub. L. 101-194 had not been enacted, and nothing in title II of Pub. L. 101-194 to be construed to prevent prosecution of civil actions against individuals for violations of title III of Pub. L. 95-521 before Jan. 1, 1991, see section 3(10)(C), (D) of Pub. L. 101-280, set out as an Effective Date of 1989 Amendment note under section 101 of Pub. L. 95-521 in the Appendix to Title 5. ------DocID 36970 Document 832 of 1452------ -CITE- 28 USC APPENDIX - DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES -EXPCITE- TITLE 28 APPENDIX DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES -HEAD- DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES -COD- CODIFICATION Pub. L. 96-190, Feb. 12, 1980, 94 Stat. 17, known as the Dispute Resolution Act, provided for the establishment and maintenance of mechanisms for resolving minor disputes, established the Dispute Resolution Resource Center and Dispute Resolution Advisory Board, prescribed duties for the Center and Board, authorized appropriations for the Center and Board of $1,000,000 for each of the fiscal years 1980, 1981, 1982, 1983, and 1984, directed that financial assistance to eligible applicants be in the form of grants, prescribed conditions for such grants, authorized appropriations for such grants of $10,000,000 for each of the fiscal years 1981, 1982, 1983, and 1984, and required an annual report by the Attorney General to the President and Congress relating to the administration of Pub. L. 96-190. ------DocID 36971 Document 833 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE -HEAD- FEDERAL RULES OF APPELLATE PROCEDURE -MISC1- (AS AMENDED TO JANUARY 2, 1991) HISTORICAL NOTE The Federal Rules of Appellate Procedure were adopted by order of the Supreme Court on Dec. 4, 1967, transmitted to Congress by the Chief Justice on Jan. 15, 1968, and became effective on July 1, 1968. The Rules have been amended Mar. 30, 1970, eff. July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Oct. 12, 1984, Pub. L. 98-473, title II, Sec. 210, 98 Stat 1987; Mar. 10, 1986, eff. July 1, 1986; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7111, 102 Stat. 4419; Apr. 25, 1989, eff. Dec. 1, 1989. TITLE I. APPLICABILITY OF RULES Rule 1. Scope of rules. 2. Suspension of rules. TITLE II. APPEALS FROM JUDGMENTS AND ORDERS OF DISTRICT COURTS 3. Appeal as of right - How taken. 3.1. Appeals from judgments entered by magistrates in civil cases. 4. Appeal as of right - When taken. 5. Appeals by permission under 28 U.S.C. Sec. 1292(b). 5.1. Appeals by permission under 28 U.S.C. Sec. 636(c)(5). 6. Appeals in bankruptcy cases from final judgements and orders of district courts or of bankruptcy appellate panels. 7. Bond for costs on appeal in civil cases. 8. Stay or injunction pending appeal. 9. Release in criminal cases. 10. The record on appeal. 11. Transmission of the record. 12. Docketing the appeal; filing of the record. TITLE III. REVIEW OF DECISIONS OF THE UNITED STATES TAX COURT 13. Review of decisions of the Tax Court. 14. Applicability of other rules to review of decisions of the Tax Court. TITLE IV. REVIEW AND ENFORCEMENT OF ORDERS OF ADMINISTRATIVE AGENCIES, BOARDS, COMMISSIONS AND OFFICERS 15. Review or enforcement of agency orders - How obtained; intervention. 15.1. Briefs and oral argument in National Labor Relations Board proceedings. 16. The record on review or enforcement. 17. Filing of the record. 18. Stay pending review. 19. Settlement of judgments enforcing orders. 20. Applicability of other rules to review or enforcement of agency orders. TITLE V. EXTRAORDINARY WRITS 21. Writs of mandamus and prohibition directed to a judge or judges and other extraordinary writs. TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS 22. Habeas corpus proceedings. 23. Custody of prisoners in habeas corpus proceedings. 24. Proceedings in forma pauperis. TITLE VII. GENERAL PROVISIONS 25. Filing and service. 26. Computation and extension of time. 26.1. Corporate disclosure statement. 27. Motions. 28. Briefs. 29. Brief of an amicus curiae. 30. Appendix to the briefs. 31. Filing and service of briefs. 32. Form of briefs, the appendix and other papers. 33. Prehearing conference. 34. Oral argument. 35. Determination of causes by the court in banc. 36. Entry of judgment. 37. Interest on judgments. 38. Damages for delay. 39. Costs. 40. Petition for rehearing. 41. Issuance of mandate; stay of mandate. 42. Voluntary dismissal. 43. Substitution of parties. 44. Cases involving constitutional questions where United States is not a party. 45. Duties of clerks. 46. Attorneys. 47. Rules by courts of appeals. 48. Title. FORMS Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court. 2. Notice of Appeal to a Court of Appeals From a Decision of the Tax Court. 3. Petition for Review of Order of an Agency, Board, Commission or Officer. 4. Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis. 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or a Bankruptcy Appellate Panel. EFFECTIVE DATE AND APPLICATION OF RULES Section 2 of the Order of the Supreme Court, dated Dec. 4, 1967, provided: 'That the foregoing rules shall take effect on July 1, 1968, and shall govern all proceedings in appeals and petitions for review or enforcement of orders thereafter brought in and in all such proceedings then pending, except to the extent that in the opinion of the court of appeals their application in a particular proceeding then pending would not be feasible or would work injustice, in which case the former procedure may be followed.' EFFECTIVE DATE OF 1970 AMENDMENT; TRANSMISSION TO CONGRESS Sections 2 and 3 of the Order of the Supreme Court, dated Mar. 30, 1970, provided: '2. That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on July 1, 1970, and shall govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies. '3. That the Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments to existing rules, in accordance with the provisions of Title 18, U.S.C. Sec. 3372, and Title 28, U.S.C. Sec. 2072 and 2075.' ------DocID 36972 Document 834 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE I -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE I -HEAD- TITLE I. APPLICABILITY OF RULES ------DocID 36973 Document 835 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE I -HEAD- Rule 1. Scope of rules -STATUTE- (a) Scope of rules. - These rules govern procedure in appeals to United States courts of appeals from the United States district courts and the United States Tax Court; in appeals from bankruptcy appellate panels; in proceedings in the courts of appeals for review or enforcement of orders of administrative agencies, boards, commissions and officers of the United States; and in applications for writs or other relief which a court of appeals or a judge thereof is competent to give. When these rules provide for the making of a motion or application in the district court, the procedure for making such motion or application shall be in accordance with the practice of the district court. (b) Rules not to affect jurisdiction. - These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES These rules are drawn under the authority of 28 U.S.C. Sec. 2072, as amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1966)) (Rules of Civil Procedure); 28 U.S.C. Sec. 2075 (Bankruptcy Rules); and 18 U.S.C. Sec. 3771 (Procedure to and including verdict) and 3772 (Procedure after verdict). Those statutes combine to give to the Supreme Court power to make rules of practice and procedure for all cases within the jurisdiction of the courts of appeals. By the terms of the statutes, after the rules have taken effect all laws in conflict with them are of no further force or effect. Practice and procedure in the eleven courts of appeals are now regulated by rules promulgated by each court under the authority of 28 U.S.C. Sec. 2071. Rule 47 expressly authorizes the courts of appeals to make rules of practice not inconsistent with these rules. As indicated by the titles under which they are found, the following rules are of special application: Rules 3 through 12 apply to appeals from judgments and orders of the district courts; Rules 13 and 14 apply to appeals from decisions of the Tax Court (Rule 13 establishes an appeal as the mode of review of decisions of the Tax Court in place of the present petition for review); Rules 15 through 20 apply to proceedings for review or enforcement of orders of administrative agencies, boards, commissions and officers. Rules 22 through 24 regulate habeas corpus proceedings and appeals in forma pauperis. All other rules apply to all proceedings in the courts of appeals. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The Federal Rules of Appellate Procedure were designed as an integrated set of rules to be followed in appeals to the courts of appeals, covering all steps in the appellate process, whether they take place in the district court or in the court of appeals, and with their adoption Rules 72-76 of the F.R.C.P. were abrogated. In some instances, however, the F.R.A.P. provide that a motion or application for relief may, or must, be made in the district court. See Rules 4(a), 10(b), and 24. The proposed amendment would make it clear that when this is so the motion or application is to be made in the form and manner prescribed by the F.R.C.P. or F.R.Cr.P. and local rules relating to the form and presentation of motions and is not governed by Rule 27 of the F.R.A.P. See Rule 7(b) of the F.R.C.P. and Rule 47 of the F.R.Cr.P. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Authority to create courts inferior to Supreme Court, see Const. Art. 3, Sec. 1. 'Courts of the United States' as including courts of appeals, see section 451 of this title. Creation and composition of courts, see section 43 of this title. Forging or counterfeiting seals of courts, penalties, see section 505 of Title 18, Crimes and Criminal Procedure. Number and composition of circuits, see section 41 of this title. Power of Supreme Court to prescribe rules of procedure and evidence, see section 2072 of this title. Writs and process issued by court to be under seal, see section 1691 of this title. ------DocID 36974 Document 836 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 2 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE I -HEAD- Rule 2. Suspension of rules -STATUTE- In the interest of expediting decision, or for other good cause shown, a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The primary purpose of this rule is to make clear the power of the courts of appeals to expedite the determination of cases of pressing concern to the public or to the litigants by prescribing a time schedule other than that provided by the rules. The rule also contains a general authorization to the courts to relieve litigants of the consequences of default where manifest injustice would otherwise result. Rule 26(b) prohibits a court of appeals from extending the time for taking appeal or seeking review. -CROSS- CROSS REFERENCES Injunction, power of appellate court to suspend, modify or grant pending appeal, see Rule 62, Federal Rules of Civil Procedure, this Appendix. ------DocID 36975 Document 837 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE II -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- TITLE II. APPEALS FROM JUDGMENTS AND ORDERS OF DISTRICT COURTS ------DocID 36976 Document 838 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 3 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 3. Appeal as of right - How taken -STATUTE- (a) Filing the notice of appeal. - An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by permission under 28 U.S.C. Sec. 1292(b) and appeals in bankruptcy shall be taken in the manner prescribed by Rule 5 and Rule 6 respectively. (b) Joint or consolidated appeals. - If two or more persons are entitled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals. (c) Content of the notice of appeal. - The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal. An appeal shall not be dismissed for informality of form or title of the notice of appeal. (d) Service of the notice of appeal. - The clerk of the district court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, or, if a party is not represented by counsel, to the last known address of that party; and the clerk shall transmit forthwith a copy of the notice of appeal and of the docket entries to the clerk of the court of appeals named in the notice. When an appeal is taken by a defendant in a criminal case, the clerk shall also serve a copy of the notice of appeal upon the defendant, either by personal service or by mail addressed to the defendant. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or the party's counsel. The clerk shall note in the docket the names of the parties to whom the clerk mails copies, with the date of mailing. (e) Payment of fees. - Upon the filing of any separate or joint notice of appeal from the district court, the appellant shall pay to the clerk of the district court such fees as are established by statute, and also the docket fee prescribed by the Judicial Conference of the United States, the latter to be received by the clerk of the district court on behalf of the court of appeals. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES General Note. Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is 'mandatory and jurisdictional,' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), compliance with the provisions of those rules is of the utmost importance. But the proposed rules merely restate, in modified form, provisions now found in the civil and criminal rules (FRCP 5(e), 73; FRCrP 37), and decisions under the present rules which dispense with literal compliance in cases in which it cannot fairly be exacted should control interpretation of these rules. Illustrative decisions are: Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (notice of appeal by a prisoner, in the form of a letter delivered, well within the time fixed for appeal, to prison authorities for mailing to the clerk of the district court held timely filed notwithstanding that it was received by the clerk after expiration of the time for appeal; the appellant 'did all he could' to effect timely filing); Richey v. Wilkins, 335 F.2d 1 (2d Cir. 1964) (notice filed in the court of appeals by a prisoner without assistance of counsel held sufficient); Halfen v. United States, 324 F.2d 52 (10th Cir. 1963) (notice mailed to district judge in time to have been received by him in normal course held sufficient); Riffle v. United States, 299 F.2d 802 (5th Cir. 1962) (letter of prisoner to judge of court of appeals held sufficient). Earlier cases evidencing 'a liberal view of papers filed by indigent and incarcerated defendants' are listed in Coppedge v. United States, 369 U.S. 438, 442, n. 5, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Subdivision (a). The substance of this subdivision is derived from FRCP 73(a) and FRCrP 37(a)(1). The proposed rule follows those rules in requiring nothing other than the filing of a notice of appeal in the district court for the perfection of the appeal. The petition for allowance (except for appeals governed by Rules 5 and 6), citations, assignments of error, summons and severance - all specifically abolished by earlier modern rules - are assumed to be sufficiently obsolete as no longer to require pointed abolition. Subdivision (b). The first sentence is derived from FRCP 74. The second sentence is added to encourage consolidation of appeals whenever feasible. Subdivision (c). This subdivision is identical with corresponding provisions in FRCP 73(b) and FRCrP 37(a)(1). Subdivision (d). This subdivision is derived from FRCP 73(b) and FRCrP 37(a)(1). The duty of the clerk to forward a copy of the notice of appeal and of the docket entries to the court of appeals in a criminal case extended to habeas corpus and 28 U.S.C. Sec. 2255 proceedings. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (c). The proposed amendment would add the last sentence. Because of the fact that the timely filing of the notice of appeal has been characterized as jurisdictional (See, e.g., Brainerd v. Beal (C.A. 7th, 1974) 498 F.2d 901, in which the filing of a notice of appeal one day late was fatal), it is important that the right to appeal not be lost by mistakes of mere form. In a number of decided cases it has been held that so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with. See, e.g., Cobb v. Lewis (C.A. 5th, 1974) 488 F.2d 41; Holley v. Capps (C.A. 5th, 1972) 468 F.2d 1366. The proposed amendment would give recognition to this practice. When a notice of appeal is filed, the clerk should ascertain whether any judgment designated therein has been entered in compliance with Rules 58 and 79(a) of the F.R.C.P. See Note to Rule 4(a)(6), infra. Subdivision (d). The proposed amendment would extend to civil cases the present provision applicable to criminal cases, habeas corpus cases, and proceedings under 28 U.S.C. Sec. 2255, requiring the clerk of the district court to transmit to the clerk of the court of appeals a copy of the notice of appeal and of the docket entries, which should include reference to compliance with the requirements for payment of fees. See Note to (e), infra. This requirement is the initial step in proposed changes in the rules to place in the court of appeals an increased practical control over the early steps in the appeal. Subdivision (e). Proposed new Rule 3(e) represents the second step in shifting to the court of appeals the control of the early stages of an appeal. See Note to Rule 3(d) above. Under the present rules the payment of the fee prescribed by 28 U.S.C. 1917 is not covered. Under the statute, however, this fee is paid to the clerk of the district court at the time the notice of appeal is filed. Under present Rule 12, the 'docket fee' fixed by the Judicial Conference of the United States under 28 U.S.C. Sec. 1913 must be paid to the clerk of the court of appeals within the time fixed for transmission of the record, '. . . and the clerk shall thereupon enter the appeal upon the docket.' Under the proposed new Rule 3(e) both fees would be paid to the clerk of the district court at the time the notice of appeal is filed, the clerk of the district court receiving the docket fee on behalf of the court of appeals. In view of the provision in Rule 3(a) that '(f)ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal,' the case law indicates that the failure to prepay the statutory filing fee does not constitute a jurisdictional defect. See Parissi v. Telechron, 349 U.S. 46 (1955); Gould v. Members of N. J. Division of Water Policy & Supply, 555 F.2d 340 (3d Cir. 1977). Similarly, under present Rule 12, failure to pay the docket fee within the time prescribed may be excused by the court of appeals. See, e. g., Walker v. Mathews, 546 F.2d 814 (9th Cir. 1976). Proposed new Rule 3(e) adopts the view of these cases, requiring that both fees be paid at the time the notice of appeal is filed, but subject to the provisions of Rule 26(b) preserving the authority of the court of appeals to permit late payment. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rule 3(d) are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Circuits to which decisions reviewable, see section 1294 of this title. Final decisions of Federal district courts, jurisdiction of courts of appeals, see section 1291 of this title. Interlocutory decisions, jurisdiction of appeal from, see section 1292 of this title. ------DocID 36977 Document 839 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 3.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 3.1. Appeals from Judgments Entered by Magistrates in Civil Cases -STATUTE- When the parties consent to a trial before a magistrate pursuant to 28 U.S.C. Sec. 636(c)(1), an appeal from a judgment entered upon the direction of a magistrate shall be heard by the court of appeals pursuant to 28 U.S.C. Sec. 636(c)(3), unless the parties, in accordance with 28 U.S.C. Sec. 636(c)(4), consent to an appeal on the record to a judge of the district court and thereafter, by petition only, to the court of appeals. Appeals to the court of appeals pursuant to 28 U.S.C. Sec. 636(c)(3) shall be taken in identical fashion as appeals from other judgments of the district court. -SOURCE- (As added Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Under the governing statute, 28 U.S.C. Sec. 636(c)(3), the judgment of a magistrate becomes a judgment of the district court and is appealable to the court of appeals 'as an appeal from any other judgment of a district court.' This provision is designed to make this point explicit for the convenience of practitioners. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 36978 Document 840 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 4 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 4. Appeal as of right - When taken -STATUTE- (a) Appeals in civil cases. - (1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry. If a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted. (2) Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof. (3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. (4) If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. (5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. (6) A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. (b) Appeals in criminal cases. - In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the Government. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7111, 102 Stat. 4419.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). This subdivision is derived from FRCP 73(a) without any change of substance. The requirement that a request for an extension of time for filing the notice of appeal made after expiration of the time be made by motion and on notice codifies the result reached under the present provisions of FRCP 73(a) and 6(b). North Umberland Mining Co. v. Standard Accident Ins. Co., 193 F.2d 951 (9th Cir., 1952); Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir., 1962); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d Cir., 1962). Since this subdivision governs appeals in all civil cases, it supersedes the provisions of section 25 of the Bankruptcy Act (11 U.S.C. Sec. 48). Except in cases to which the United States or an officer or agency thereof is a party, the change is a minor one, since a successful litigant in a bankruptcy proceeding may, under section 25, oblige an aggrieved party to appeal within 30 days after entry of judgment - the time fixed by this subdivision in cases involving private parties only - by serving him with notice of entry on the day thereof, and by the terms of section 25 an aggrieved party must in any event appeal within 40 days after entry of judgment. No reason appears why the time for appeal in bankruptcy should not be the same as that in civil cases generally. Furthermore, section 25 is a potential trap for the uninitiated. The time for appeal which it provides is not applicable to all appeals which may fairly be termed appeals in bankruptcy. Section 25 governs only those cases referred to in section 24 as 'proceedings in bankruptcy' and 'controversies arising in proceedings in bankruptcy.' Lowenstein v. Reikes, 54 F.2d 481 (2d Cir., 1931), cert. den., 285 U.S. 539, 52 S.Ct. 311, 76 L.Ed. 932 (1932). The distinction between such cases and other cases which arise out of bankruptcy is often difficult to determine. See 2 Moore's Collier on Bankruptcy 24.12 through 24.36 (1962). As a result it is not always clear whether an appeal is governed by section 25 or by FRCP 73(a), which is applicable to such appeals in bankruptcy as are not governed by section 25. In view of the unification of the civil and admiralty procedure accomplished by the amendments of the Federal Rules of Civil Procedure effective July 1, 1966, this subdivision governs appeals in those civil actions which involve admiralty or maritime claims and which prior to that date were known as suits in admiralty. The only other change possibly effected by this subdivision is in the time for appeal from a decision of a district court on a petition for impeachment of an award of a board of arbitration under the Act of May 20, 1926, c. 347, Sec. 9 (44 Stat. 585), 45 U.S.C. Sec. 159. The act provides that a notice of appeal from such a decision shall be filed within 10 days of the decision. This singular provision was apparently repealed by the enactment in 1948 of 28 U.S.C. Sec. 2107, which fixed 30 days from the date of entry of judgment as the time for appeal in all actions of a civil nature except actions in admiralty or bankruptcy matters or those in which the United States is a party. But it was not expressly repealed, and its status is in doubt. See 7 Moore's Federal Practice 73.09(2) (1966). The doubt should be resolved, and no reason appears why appeals in such cases should not be taken within the time provided for civil cases generally. Subdivision (b). This subdivision is derived from FRCrP 37(a)(2) without change of substance. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (a)(1). The words '(including a civil action which involves an admiralty or maritime claim and a proceeding in bankruptcy or a controversy arising therein),' which appear in the present rule are struck out as unnecessary and perhaps misleading in suggesting that there may be other categories that are not either civil or criminal within the meaning of Rule 4(a) and (b). The phrases 'within 30 days of such entry' and 'within 60 days of such entry' have been changed to read 'after' instead of 'or.' The change is for clarity only, since the word 'of' in the present rule appears to be used to mean 'after.' Since the proposed amended rule deals directly with the premature filing of a notice of appeal, it was thought useful to emphasize the fact that except as provided, the period during which a notice of appeal may be filed is the 30 days, or 60 days as the case may be, following the entry of the judgment or order appealed from. See Notes to Rule 4(a)(2) and (4), below. Subdivision (a)(2). The proposed amendment to Rule 4(a)(2) would extend to civil cases the provisions of Rule 4(b), dealing with criminal cases, designed to avoid the loss of the right to appeal by filing the notice of appeal prematurely. Despite the absence of such a provision in Rule 4(a) the courts of appeals quite generally have held premature appeals effective. See, e. g., Matter of Grand Jury Empanelled Jan. 21, 1975, 541 F.2d 373 (3d Cir. 1976); Hodge v. Hodge, 507 F.2d 87 (3d Cir. 1976); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Ruby v. Secretary of the Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond Nat'l Corp., 345 F.2d 469 (9th Cir. 1965). The proposed amended rule would recognize this practice but make an exception in cases in which a post trial motion has destroyed the finality of the judgment. See Note to Rule 4(a)(4) below. Subdivision (a)(4). The proposed amendment would make it clear that after the filing of the specified post trial motions, a notice of appeal should await disposition of the motion. Since the proposed amendments to Rules 3, 10, and 12 contemplate that immediately upon the filing of the notice of appeal the fees will be paid and the case docketed in the court of appeals, and the steps toward its disposition set in motion, it would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from. See, e. g., Kieth v. Newcourt, 530 F.2d 826 (8th Cir. 1976). Under the present rule, since docketing may not take place until the record is transmitted, premature filing is much less likely to involve waste effort. See, e. g., Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir. 1975). Further, since a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of. The present rule, since it provides for the 'termination' of the 'running' of the appeal time, is ambiguous in its application to a notice of appeal filed prior to a post trial motion filed within the 10 day limit. The amendment would make it clear that in such circumstances the appellant should not proceed with the appeal during pendency of the motion but should file a new notice of appeal after the motion is disposed of. Subdivision (a)(5). Under the present rule it is provided that upon a showing of excusable neglect the district court at any time may extend the time for the filing of a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by the rule, but that if the application is made after the original time has run, the order may be made only on motion with such notice as the court deems appropriate. A literal reading of this provision would require that the extension be ordered and the notice of appeal filed within the 30 day period, but despite the surface clarity of the rule, it has produced considerable confusion. See the discussion by Judge Friendly in In re Orbitek, 520 F.2d 358 (2d Cir. 1975). The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time, and that if the motion is timely filed the district court may act upon the motion at a later date, and may extend the time not in excess of 10 days measured from the date on which the order granting the motion is entered. Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F.R.C.P. and local rules of the district court. See Note to proposed amended Rule 1, supra. And see Rules 6(d), 7(b) of the F.R.C.P. The proposed amended rule expands to some extent the standard for the grant of an extension of time. The present rule requires a 'showing of excusable neglect.' While this was an appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, and remains so, it has never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time. In such a case 'good cause,' which is the standard that is applied in the granting of other extensions of time under Rule 26(b) seems to be more appropriate. Subdivision (a)(6). The proposed amendment would call attention to the requirement of Rule 58 of the F.R.C.P. that the judgment constitute a separate document. See United States v. Indrelunas, 411 U.S. 216 (1973). When a notice of appeal is filed, the clerk should ascertain whether any judgment designated therein has been entered in compliance with Rules 58 and 79(a) and if not, so advise all parties and the district judge. While the requirement of Rule 48 is not jurisdictional (see Bankers Trust Co. v. Mallis, 431 U.S. 928 (1977)), compliance is important since the time for the filing of a notice of appeal by other parties is measured by the time at which the judgment is properly entered. 1988 AMENDMENT Subd. (b). Pub. L. 100-690 inserted '(i)' and 'or (ii) a notice of appeal by the Government' in first sentence, and '(i)' and 'or (ii) a notice of appeal by any defendant' in fifth sentence. -CROSS- CROSS REFERENCES Abatement, reviewing of rulings, see section 2105 of this title. Amount or value in controversy affecting right to review, see section 2108 of this title. Circuits in which decisions reviewable generally, see section 1294 of this title. Determination of appeal generally, see section 2106 of this title. Final decisions of district courts reviewable by courts of appeals, see section 1291 of this title. Rule-making power of courts generally, see section 2071 of this title. Time for appeal to court of appeals, see section 2107 of this title. ------DocID 36979 Document 841 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 5 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 5. Appeals by permission under 28 U.S.C. Sec. 1292(b) -STATUTE- (a) Petition for permission to appeal. - An appeal from an interlocutory order containing the statement prescribed by 28 U.S.C. Sec. 1292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within 10 days after the entry of such order in the district court with proof of service on all other parties to the action in the district court. An order may be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended. (b) Content of petition; answer. - The petition shall contain a statement of the facts necessary to an understanding of the controlling question of law determined by the order of the district court; a statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation. The petition shall include or have annexed thereto a copy of the order from which appeal is sought and of any findings of fact, conclusions of law and opinion relating thereto. Within 7 days after service of the petition an adverse party may file an answer in opposition. The application and answer shall be submitted without oral argument unless otherwise ordered. (c) Form of papers; number of copies. - All papers may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. (d) Grant of permission; cost bond; filing of record. - Within 10 days after the entry of an order granting permission to appeal the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the Judicial Conference of the United States and (2) file a bond for costs if required pursuant to Rule 7. The clerk of the district court shall notify the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 11 and 12(b). A notice of appeal need not be filed. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is derived in the main from Third Circuit Rule 11(2), which is similar to the rule governing appeals under 28 U.S.C. Sec. 1292(b) in a majority of the circuits. The second sentence of subdivision (a) resolves a conflict over the question of whether the district court can amend an order by supplying the statement required by Sec. 1292(b) at any time after entry of the order, with the result that the time fixed by the statute commences to run on the date of entry of the order as amended. Compare Milbert v. Bison Laboratories, 260 F.2d 431 (3d Cir., 1958) with Sperry Rand Corporation v. Bell Telephone Laboratories, 272 F.2d (2d Cir., 1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir., 1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91 (10th Cir., 1962). The view taken by the Second, Fifth and Tenth Circuits seems theoretically and practically sound, and the rule adopts it. Although a majority of the circuits now require the filing of a notice of appeal following the grant of permission to appeal, filing of the notice serves no function other than to provide a time from which the time for transmitting the record and docketing the appeal begins to run. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment adapts to the practice in appeals from interlocutory orders under 28 U.S.C. Sec. 1292(b) the provisions of proposed Rule 3(e) above, requiring payment of all fees in the district court upon the filing of the notice of appeal. See Note to proposed amended Rule 3(e), supra. -CROSS- CROSS REFERENCES Circuits to which decisions reviewable, see section 1294 of this title. ------DocID 36980 Document 842 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 5.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 5.1. Appeals by Permission Under 28 U.S.C. Sec. 636(c)(5) -STATUTE- (a) Petition for Leave to Appeal; Answer or Cross Petition. - An appeal from a district court judgment, entered after an appeal pursuant to 28 U.S.C. Sec. 636(c)(4) to a judge of the district court from a judgment entered upon direction of a magistrate in a civil case, may be sought by filing a petition for leave to appeal. An appeal on petition for leave to appeal is not a matter of right, but its allowance is a matter of sound judicial discretion. The petition shall be filed with the clerk of the court of appeals within the time provided by Rule 4(a) for filing a notice of appeal, with proof of service on all parties to the action in the district court. A notice of appeal need not be filed. Within 14 days after service of the petition, a party may file an answer in opposition or a cross petition. (b) Content of Petition; Answer. - The petition for leave to appeal shall contain a statement of the facts necessary to an understanding of the questions to be presented by the appeal; a statement of those questions and of the relief sought; a statement of the reasons why in the opinion of the petitioner the appeal should be allowed; and a copy of the order, decree or judgment complained of and any opinion or memorandum relating thereto. The petition and answer shall be submitted to a panel of judges of the court of appeals without oral argument unless otherwise ordered. (c) Form of Papers; Number of Copies. - All papers may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. (d) Allowance of the Appeal; Fees; Cost Bond; Filing of Record. - Within 10 days after the entry of an order granting the appeal, the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the Judicial Conference of the United States and (2) file a bond for costs if required pursuant to Rule 7. The clerk of the district court shall notify the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice, the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 11 and 12(b). -SOURCE- (As added Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES When the initial appeal of a magistrate's decision is taken to the district court, the statute provides for a second discretionary appeal to the court of appeals. This rule provides the procedure for taking such an appeal. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 36981 Document 843 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 6 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 6. Appeals in bankruptcy cases from final judgements and orders of district courts or of bankruptcy appellate panels -STATUTE- (a) Appeal from a judgment, order or decree of a district court exercising original jurisdiction in a bankruptcy case. - An appeal to a court of appeals from a final judgment, order or decree of a district court exercising jurisdiction pursuant to 28 U.S.C. Sec. 1334 shall be taken in identical fashion as appeals from other judgments, orders or decrees of district courts in civil actions. (b) Appeal from a judgment, order or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction in a bankruptcy case. - (1) Applicability of other rules. All provisions of these rules are applicable to an appeal to a court of appeals pursuant to 28 U.S.C. Sec. 158(d) from a final judgment, order or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction pursuant to 28 U.S.C. Sec. 158(a) or (b), except that: (i) Rules 3.1, 4(a)(4), 4(b), 5.1, 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) are not applicable; (ii) the reference in Rule 3(c) to 'Form 1 in the Appendix of Forms' shall be read as a reference to Form 5; and (iii) when the appeal is from a bankruptcy appellate panel, the term 'district court' as used in any applicable rule, means 'appellate panel'. (2) Additional rules. In addition to the rules made applicable by subsection (b)(1) of this rule, the following rules shall apply to an appeal to a court of appeals pursuant to 28 U.S.C. Sec. 158(d) from a final judgment, order or decree of a district court or of a bankruptcy appellate panel exercising appellate jurisdiction pursuant to 28 U.S.C. Sec. 158(a) or (b): (i) Effect of motion for rehearing on time for appeal. If a timely motion for rehearing under Bankruptcy Rule 8015 is filed in the district court or the bankruptcy appellate panel, the time for appeal to the court of appeals for all parties shall run from the entry of the order denying the rehearing or the entry of the subsequent judgment. (ii) The record on appeal. Within 10 days after filing the notice of appeal, the appellant shall file with the clerk possessed of the record assembled pursuant to Bankruptcy Rule 8006, and serve on the appellee, a statement of the issues to be presented on appeal and a designation of the record to be certified and transmitted to the clerk of the court of appeals. If the appellee deems other parts of the record necessary, the appellee shall, within 10 days after service of the appellant's designation, file with the clerk and serve on the appellant a designation of additional parts to be included. The record, redesignated as provided above, plus the proceedings in the district court or bankruptcy appellate panel and a certified copy of the docket entries prepared by the clerk pursuant to Rule 3(d) shall constitute the record on appeal. (iii) Transmission of the record. When the record is complete for purpose of the appeal, the clerk of the district court or the appellate panel, shall transmit it forthwith to the clerk of the court of appeals. The clerk of the district court or of the appellate panel shall number the documents comprising the record and shall transmit with the record a list of documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight, physical exhibits other than documents, and such other parts of the record as the court of appeals may designate by local rule, shall not be transmitted by the clerk unless the clerk is directed to do so by a party or by the clerk of the court of appeals. A party must make advance arrangements with the clerk for the transportation and receipt of exhibits of unusual bulk or weight. All parties shall take any other action necessary to enable the clerk to assemble and transmit the record. The court of appeals may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the redesignated record, subject to the right of any party to request at any time during the pendency of the appeal that the redesignated record be transmitted. (iv) Filing of the record. Upon receipt of the record, the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed. Upon receipt of a certified copy of the docket entries transmitted in lieu of the redesignated record pursuant to rule or order, the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is substantially a restatement of present procedure. See D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir. Rule 10(d); 10th Cir. Rule 13. Present circuit rules commonly provide that the petition for allowance of an appeal shall be filed within the time allowed by Section 25 of the Bankruptcy Act for taking appeals of right. For the reasons explained in the Note accompanying Rule 4, that rule makes the time for appeal in bankruptcy cases the same as that which obtains in other civil cases and thus supersedes Section 25. Thus the present rule simply continues the former practice of making the time for filing the petition in appeals by allowance the same as that provided for filing the notice of appeal in appeals of right. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment adapts to the practice in appeals by allowance in bankruptcy proceedings the provisions of proposed Rule 3(e) above, requiring payment of all fees in the district court at the time of the filing of the notice of appeal. See Note to Rule 3(e), supra. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT A new Rule 6 is proposed. The Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549, the Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), and the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333, have made the existing Rule 6 obsolete. Subdivision (a). Subdivision (a) provides that when a district court exercises original jurisdiction in a bankruptcy matter, rather than referring it to a bankruptcy judge for a final determination, the appeal should be taken in identical fashion as appeals from district court decisions in other civil actions. A district court exercises original jurisdiction and this subdivision applies when the district court enters a final order or judgment upon consideration of a bankruptcy judge's proposed findings of fact and conclusions of law in a non-core proceeding pursuant to 28 U.S.C. Sec. 157(c)(1) or when a district court withdraws a proceeding pursuant to 28 U.S.C. Sec. 157(d). This subdivision is included to avoid uncertainty arising from the question of whether a bankruptcy case is a civil case. The rules refer at various points to the procedure 'in a civil case', see, e.g. Rule 4(a)(1). Subdivision (a) makes it clear that such rules apply to an appeal from a district court bankruptcy decision. Subdivision (b). Subdivision (b) governs appeals that follow intermediate review of a bankruptcy judge's decision by a district court or a bankruptcy appellate panel. Subdivision (b)(1). Subdivision (b)(1) provides for the general applicability of the Federal Rules of Appellate Procedure, with specified exceptions, to appeals covered by subdivision (b) and makes necessary word adjustments. Subdivision (b)(2). Paragraph (i) provides that the time for filing a notice of appeal shall begin to run anew from the entry of an order denying a rehearing or from the entry of a subsequent judgment. The Committee deliberately omitted from the rule any provision governing the validity of a notice of appeal filed prior to the entry of an order denying a rehearing; the Committee intended to leave undisturbed the current state of the law on that issue. Paragraph (ii) calls for a redesignation of the appellate record assembled in the bankruptcy court pursuant to Rule 8006 of the Rules of Bankruptcy Procedure. After an intermediate appeal, a party may well narrow the focus of its efforts on the second appeal and a redesignation of the record may eliminate unnecessary material. The proceedings during the first appeal are included to cover the possibility that independent error in the intermediate appeal, for example failure to follow appropriate procedures, may be assigned in the court of appeals. Paragraph (iii) provides for the transmission of the record and tracks the appropriate subsections of Rule 11. Paragraph (iv) provides for the filing of the record and notices to the parties. Paragraph (ii) and Paragraph (iv) both refer to 'a certified copy of the docket entries'. The 'docket entries' referred to are the docket entries in the district court or the bankruptcy appellate panel, not the entire docket in the bankruptcy court. -CROSS- CROSS REFERENCES Final decisions of the district court appealable to courts of appeals, see section 1291 of this title. Interlocutory decisions of district courts appealable to courts of appeals, see section 1292 of this title. ------DocID 36982 Document 844 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 7 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 7. Bond for costs on appeal in civil cases -STATUTE- The district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case. The provisions of Rule 8(b) apply to a surety upon a bond given pursuant to this rule. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is derived from FRCP 73(c) without change in substance. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The amendment would eliminate the provision of the present rule that requires the appellant to file a $250 bond for costs on appeal at the time of filing his notice of appeal. The $250 provision was carried forward in the F.R.App.P. from former Rule 73(c) of the F.R.Civ.P., and the $250 figure has remained unchanged since the adoption of that rule in 1937. Today it bears no relationship to actual costs. The amended rule would leave the question of the need for a bond for costs and its amount in the discretion of the court. -CROSS- CROSS REFERENCES Deposit of bonds or notes of United States in lieu of surety, see section 9303 of Title 31, Money and Finance. Security for damages or costs not required of the United States, see section 2408 of this title. ------DocID 36983 Document 845 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 8 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 8. Stay or injunction pending appeal -STATUTE- (a) Stay must ordinarily be sought in the first instance in district court; motion for stay in court of appeals. - Application for a stay of the judgment or order of a district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the district court. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court. (b) Stay may be conditioned upon giving of bond; proceedings against sureties. - Relief available in the court of appeals under this rule may be conditioned upon the filing of a bond or other appropriate security in the district court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the clerk of the district court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. A surety's liability may be enforced on motion in the district court without the necessity of an independent action. The motion and such notice of the motion as the district court prescribes may be served on the clerk of the district court, who shall forthwith mail copies to the sureties if their addresses are known. (c) Stays in criminal cases. - Stays in criminal cases shall be had in accordance with the provisions of Rule 38(a) of the Federal Rules of Criminal Procedure. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). While the power of a court of appeals to stay proceedings in the district court during the pendency of an appeal is not explicitly conferred by statute, it exists by virtue of the all writs statute, 28 U.S.C. Sec. 1651. Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (6th Cir., 1962); United States v. Lynd, 301 F.2d 818 (5th Cir., 1962); Public Utilities Commission of Dist. of Col. v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954). And the Supreme Court has termed the power 'inherent' (In re McKenzie, 180 U.S. 536, 551, 21 S.Ct. 468, 45 L.Ed. 657 (1901)) and 'part of its (the court of appeals) traditional equipment for the administration of justice.' (Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 9-10, 62 S.Ct. 875, 86 L.Ed. 1229 (1942)). The power of a single judge of the court of appeals to grant a stay pending appeal was recognized in In re McKenzie, supra. Alexander v. United States, 173 F.2d 865 (9th Cir., 1949) held that a single judge could not stay the judgment of a district court, but it noted the absence of a rule of court authorizing the practice. FRCP 62(g) adverts to the grant of a stay by a single judge of the appellate court. The requirement that application be first made to the district court is the case law rule. Cumberland Tel. & Tel. Co. v. Louisiana Public Service Commission, 260 U.S. 212, 219, 43 S.Ct. 75, 67 L.Ed. 217 (1922); United States v. El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir., 1951); United States v. Hansell, 109 F.2d 613 (2d Cir., 1940). The requirement is explicitly stated in FRCrP 38(c) and in the rules of the First, Third, Fourth and Tenth Circuits. See also Supreme Court Rules 18 and 27. The statement of the requirement in the proposed rule would work a minor change in present practice. FRCP 73(e) requires that if a bond for costs on appeal or a supersedeas bond is offered after the appeal is docketed, leave to file the bond must be obtained from the court of appeals. There appears to be no reason why matters relating to supersedeas and cost bonds should not be initially presented to the district court whenever they arise prior to the disposition of the appeal. The requirement of FRCP 73(e) appears to be a concession to the view that once an appeal is perfected, the district court loses all power over its judgment. See In re Federal Facilities Trust, 227 F.2d 651 (7th Cir., 1955) and cases - cited at 654-655. No reason appears why all questions related to supersedeas or the bond for costs on appeal should not be presented in the first instance to the district court in the ordinary case. Subdivision (b). The provisions respecting a surety upon a bond or other undertaking are based upon FRCP 65.1. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rule 8(b) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Deposit of bonds or notes of the United States in lieu of surety, see section 9303 of Title 31, Money and Finance. Security for damages or costs not required of United States, see section 2408 of this title. ------DocID 36984 Document 846 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 9 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 9. Release in criminal cases -STATUTE- (a) Appeals from orders respecting release entered prior to a judgment of conviction. - An appeal authorized by law from an order refusing or imposing conditions of release shall be determined promptly. Upon entry of an order refusing or imposing conditions of release, the district court shall state in writing the reasons for the action taken. The appeal shall be heard without the necessity of briefs after reasonable notice to the appellee upon such papers, affidavits, and portions of the record as the parties shall present. The court of appeals or a judge thereof may order the release of the appellant pending the appeal. (b) Release pending appeal from a judgment of conviction. - Application for release after a judgment of conviction shall be made in the first instance in the district court. If the district court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the court of appeals or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The court of appeals or a judge thereof may order the release of the appellant pending disposition of the motion. (c) Criteria for release. - The decision as to release pending appeal shall be made in accordance with Title 18, U.S.C. Sec. 3143. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community and that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or in an order for a new trial rests with the defendant. -SOURCE- (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984, Pub. L. 98-473, title II, Sec. 210, 98 Stat. 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). The appealability of release orders entered prior to a judgment of conviction is determined by the provisions of 18 U.S.C. Sec. 3147, as qualified by 18 U.S.C. Sec. 3148, and by the rule announced in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), holding certain orders respecting release appealable as final orders under 28 U.S.C. Sec. 1291. The language of the rule, '(an)n appeal authorized by law from an order refusing or imposing conditions of release,' is intentionally broader than that used in 18 U.S.C. Sec. 3147 in describing orders made appealable by that section. The summary procedure ordained by the rule is intended to apply to all appeals from orders respecting release, and it would appear that at least some orders not made appealable by 18 U.S.C. Sec. 3147 are nevertheless appealable under the Stack v. Boyle rationale. See, for example, United States v. Foster, 278 F.2d 567 (2d Cir., 1960), holding appealable an order refusing to extend bail limits. Note also the provisions of 18 U.S.C. Sec. 3148, which after withdrawing from persons charged with an offense punishable by death and from those who have been convicted of an offense the right of appeal granted by 18 U.S.C. Sec. 3147, expressly preserves 'other rights to judicial review of conditions of release or orders of detention.' The purpose of the subdivision is to insure the expeditious determination of appeals respecting release orders, an expedition commanded by 18 U.S.C. Sec. 3147 and by the Court in Stack v. Boyle, supra. It permits such appeals to be heard on an informal record without the necessity of briefs and on reasonable notice. Equally important to the just and speedy disposition of these appeals is the requirement that the district court state the reasons for its decision. See Jones v. United States, 358 F.2d 543 (D.C. Cir., 1966); Rhodes v. United States, 275 F.2d 78 (4th Cir., 1960); United States v. Williams, 253 F.2d 144 (7th Cir., 1958). Subdivision (b). This subdivision regulates procedure for review of an order respecting release at a time when the jurisdiction of the court of appeals has already attached by virtue of an appeal from the judgment of conviction. Notwithstanding the fact that jurisdiction has passed to the court of appeals, both 18 U.S.C. Sec. 3148 and FRCrP 38(c) contemplate that the initial determination of whether a convicted defendant is to be released pending the appeal is to be made by the district court. But at this point there is obviously no need for a separate appeal from the order of the district court respecting release. The court of appeals or a judge thereof has power to effect release on motion as an incident to the pending appeal. See FRCrP 38(c) and 46(a)(2). But the motion is functionally identical with the appeal regulated by subdivision (a) and requires the same speedy determination if relief is to be effective. Hence the similarity of the procedure outlined in the two subdivisions. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1972 AMENDMENT Subdivision (c) is intended to bring the rule into conformity with 18 U.S.C. Sec. 3148 and to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. Release pending appeal may also be denied if 'it appears that an appeal is frivolous or taken for delay.' 18 U.S.C. Sec. 3148. The burden of establishing the existence of these criteria remains with the government. 1984 AMENDMENT Subd. (c). Pub. L. 98-473 substituted '3143' for '3148' and inserted 'and that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or in an order for a new trial' after 'community'. -CROSS- CROSS REFERENCES Release and detention pending judicial proceedings, see section 3141 et seq. of Title 18, Crimes and Criminal Procedure. ------DocID 36985 Document 847 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 10 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 10. The record on appeal -STATUTE- (a) Composition of the record on appeal. - The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases. (b) The transcript of proceedings; duty of appellant to order; notice to appellee if partial transcript is ordered. - (1) Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as the appellant deems necessary, subject to local rules of the courts of appeals. The order shall be in writing and within the same period a copy shall be filed with the clerk of the district court. If funding is to come from the United States under the Criminal Justice Act, the order shall so state. If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect. (2) If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. (3) Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript or other parts of the proceedings to be necessary, the appellee shall, within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. Unless within 10 days after service of such designation the appellant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so. (4) At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the cost of the transcript. (c) Statement on the evidence or proceedings when no report was made or when the transcript is unavailable. - If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal. (d) Agreed statement as the record on appeal. - In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the district court and shall then be certified to the court of appeals as the record on appeal and transmitted thereto by the clerk of the district court within the time provided by Rule 11. Copies of the agreed statement may be filed as the appendix required by Rule 30. (e) Correction or modification of the record. - If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is derived from FRCP 75(a), (b), (c) and (d) and FRCP 76, without change in substance. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendments to Rule 10(b) would require the appellant to place with the reporter a written order for the transcript of proceedings and file a copy with the clerk, and to indicate on the order if the transcript is to be provided under the Criminal Justice Act. If the appellant does not plan to order a transcript of any of the proceedings, he must file a certificate to that effect. These requirements make the appellant's steps in readying the appeal a matter of record and give the district court notice of requests for transcripts at the expense of the United States under the Criminal Justice Act. They are also the third step in giving the court of appeals some control over the production and transmission of the record. See Note to Rules 3(d)(e) above and Rule 11 below. In the event the appellant orders no transcript, or orders a transcript of less than all the proceedings, the procedure under the proposed amended rule remains substantially as before. The appellant must serve on the appellee a copy of his order or in the event no order is placed, of the certificate to that effect, and a statement of the issues he intends to present on appeal, and the appellee may thereupon designate additional parts of the transcript to be included, and upon appellant's refusal to order the additional parts, may either order them himself or seek an order requiring the appellant to order them. The only change proposed in this procedure is to place a 10 day time limit on motions to require the appellant to order the additional portions. Rule 10(b) is made subject to local rules of the courts of appeals in recognition of the practice in some circuits in some classes of cases, e. g., appeals by indigents in criminal cases after a short trial, of ordering immediate preparation of a complete transcript, thus making compliance with the rule unnecessary. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 10(b) and (c) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Records; obsolete papers, see section 457 of this title. Reporters' transcript of proceedings, see section 753 of this title. ------DocID 36986 Document 848 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 11 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 11. Transmission of the record -STATUTE- (a) Duty of appellant. - After filing the notice of appeal the appellant, or in the event that more than one appeal is taken, each appellant, shall comply with the provisions of Rule 10(b) and shall take any other action necessary to enable the clerk to assemble and transmit the record. A single record shall be transmitted. (b) Duty of reporter to prepare and file transcript; notice to court of appeals; duty of clerk to transmit the record. - Upon receipt of an order for a transcript, the reporter shall acknowledge at the foot of the order the fact that the reporter has received it and the date on which the reporter expects to have the transcript completed and shall transmit the order, so endorsed, to the clerk of the court of appeals. If the transcript cannot be completed within 30 days of receipt of the order the reporter shall request an extension of time from the clerk of the court of appeals and the action of the clerk of the court of appeals shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of the court of appeals shall notify the district judge and take such other steps as may be directed by the court of appeals. Upon completion of the transcript the reporter shall file it with the clerk of the district court and shall notify the clerk of the court of appeals that the reporter has done so. When the record is complete for purposes of the appeal, the clerk of the district court shall transmit it forthwith to the clerk of the court of appeals. The clerk of the district court shall number the documents comprising the record and shall transmit with the record a list of documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight, physical exhibits other than documents, and such other parts of the record as the court of appeals may designate by local rule, shall not be transmitted by the clerk unless the clerk is directed to do so by a party or by the clerk of the court of appeals. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual bulk or weight. (c) Temporary retention of record in district court for use in preparing appellate papers. - Notwithstanding the provisions of (a) and (b) of this Rule 11, the parties may stipulate, or the district court on motion of any party may order, that the clerk of the district court shall temporarily retain the record for use by the parties in preparing appellate papers. In that event the clerk of the district court shall certify to the clerk of the court of appeals that the record, including the transcript or parts thereof designated for inclusion and all necessary exhibits, is complete for purposes of the appeal. Upon receipt of the brief of the appellee, or at such earlier time as the parties may agree or the court may order, the appellant shall request the clerk of the district court to transmit the record. (d) (Extension of time for transmission of the record; reduction of time) (Abrogated) (e) Retention of the record in the district court by order of court. - The court of appeals may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted. If the record or any part thereof is required in the district court for use there pending the appeal, the district court may make an order to that effect, and the clerk of the district court shall retain the record or parts thereof subject to the request of the court of appeals, and shall transmit a copy of the order and of the docket entries together with such parts of the original record as the district court shall allow and copies of such parts as the parties may designate. (f) Stipulation of parties that parts of the record be retained in the district court. - The parties may agree by written stipulation filed in the district court that designated parts of the record shall be retained in the district court unless thereafter the court of appeals shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes. (g) Record for preliminary hearing in the court of appeals. - If prior to the time the record is transmitted a party desires to make in the court of appeals a motion for dismissal, for release, for a stay pending appeal, for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the district court at the request of any party shall transmit to the court of appeals such parts of the original record as any party shall designate. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivisions (a) and (b). These subdivisions are derived from FRCP 73(g) and FRCP 75(e). FRCP 75(e) presently directs the clerk of the district court to transmit the record within the time allowed or fixed for its filing, which, under the provisions of FRCP 73(g) is within 40 days from the date of filing the notice of appeal, unless an extension is obtained from the district court. The precise time at which the record must be transmitted thus depends upon the time required for delivery of the record from the district court to the court of appeals, since, to permit its timely filing, it must reach the court of appeals before expiration of the 40-day period of an extension thereof. Subdivision (a) of this rule provides that the record is to be transmitted within the 40-day period, or any extension thereof; subdivision (b) provides that transmission is effected when the clerk of the district court mails or otherwise forwards the record to the clerk of the court of appeals; Rule 12(b) directs the clerk of the court of appeals to file the record upon its receipt following timely docketing and transmittal. It can thus be determined with certainty precisely when the clerk of the district court must forward the record to the clerk of the court of appeals in order to effect timely filing: the final day of the 40-day period or of any extension thereof. Subdivision (c). This subdivision is derived from FRCP 75(e) without change of substance. Subdivision (d). This subdivision is derived from FRCP 73(g) and FRCrP 39(c). Under present rules the district court is empowered to extend the time for filing the record and docketing the appeal. Since under the proposed rule timely transmission now insures timely filing (see note to subdivisions (a) and (b) above) the power of the district court is expressed in terms of its power to extend the time for transmitting the record. Restriction of that power to a period of 90 days after the filing of the notice of appeal represents a change in the rule with respect to appeals in criminal cases. FRCrP 39(c) now permits the district court to extend the time for filing and docketing without restriction. No good reason appears for a difference between the civil and criminal rule in this regard, and subdivision (d) limits the power of the district court to extend the time for transmitting the record in all cases to 90 days from the date of filing the notice of appeal, just as its power is now limited with respect to docketing and filing in civil cases. Subdivision (d) makes explicit the power of the court of appeals to permit the record to be filed at any time. See Pyramid Motor Freight Corporation v. Ispass, 330, U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184 (1947). Subdivisions (e), (f) and (g). These subdivisions are derived from FRCP 75(f), (a) and (g), respectively, without change of substance. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Under present Rule 11(a) it is provided that the record shall be transmitted to the court of appeals within 40 days after the filing of the notice of appeal. Under present Rule 11(d) the district court, on request made during the initial time or any extension thereof, and cause shown, may extend the time for the transmission of the record to a point not more than 90 days after the filing of the first notice of appeal. If the district court is without authority to grant a request to extend the time, or denies a request for extension, the appellant may make a motion for extension of time in the court of appeals. Thus the duty to see that the record is transmitted is placed on the appellant. Aside from ordering the transcript within the time prescribed the appellant has no control over the time at which the record is transmitted, since all steps beyond this point are in the hands of the reporter and the clerk. The proposed amendments recognize this fact and place the duty directly on the reporter and the clerk. After receiving the written order for the transcript (See Note to Rule 10(b) above), the reporter must acknowledge its receipt, indicate when he expects to have it completed, and mail the order so endorsed to the clerk of the court of appeals. Requests for extensions of time must be made by the reporter to the clerk of the court of appeals and action on such requests is entered on the docket. Thus from the point at which the transcript is ordered the clerk of the court of appeals is made aware of any delays. If the transcript is not filed on time, the clerk of the court of appeals will notify the district judge. Present Rule 11(b) provides that the record shall be transmitted when it is 'complete for the purposes of the appeal.' The proposed amended rule continues this requirement. The record is complete for the purposes of the appeal when it contains the original papers on file in the clerk's office, all necessary exhibits, and the transcript, if one is to be included. Cf. present Rule 11(c). The original papers will be in the custody of the clerk of the district court at the time the notice of appeal is filed. See Rule 5(e) of the F.R.C.P. The custody of exhibits is often the subject of local rules. Some of them require that documentary exhibits must be deposited with the clerk. See Local Rule 13 of the Eastern District of Virginia. Others leave exhibits with counsel, subject to order of the court. See Local Rule 33 of the Northern District of Illinois. If under local rules the custody of exhibits is left with counsel, the district court should make adequate provision for their preservation during the time during which an appeal may be taken, the prompt deposit with the clerk of such as under Rule 11(b) are to be transmitted to the court of appeals, and the availability of others in the event that the court of appeals should require their transmission. Cf. Local Rule 11 of the Second Circuit. Usually the record will be complete with the filing of the transcript. While the proposed amendment requires transmission 'forthwith' when the record is complete, it was not designed to preclude a local requirement by the court of appeals that the original papers and exhibits be transmitted when complete without awaiting the filing of the transcript. The proposed amendments continue the provision in the present rule that documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted without direction by the parties or by the court of appeals, and the requirement that the parties make special arrangements for transmission and receipt of exhibits of unusual bulk or weight. In addition, they give recognition to local rules that make transmission of other record items subject to order of the court of appeals. See Local Rule 4 of the Seventh Circuit. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rule 11(b) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Records: obsolete papers, see section 457 of this title. Reporters' transcript of proceedings, see section 753 of this title. ------DocID 36987 Document 849 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 12 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE II -HEAD- Rule 12. Docketing the appeal; filing of the record -STATUTE- (a) Docketing the appeal. - Upon receipt of the copy of the notice of appeal and of the docket entries, transmitted by the clerk of the district court pursuant to Rule 3(d), the clerk of the court of appeals shall thereupon enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the district court, with the appellant identified as such, but if such title does not contain the name of the appellant, the appellant's name, identified as appellant, shall be added to the title. (b) Filing the record, partial record, or certificate. - Upon receipt of the record transmitted pursuant to Rule 11(b), or the partial record transmitted pursuant to Rule 11(e), (f), or (g), or the clerk's certificate under Rule 11(c), the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed. (c) (Dismissal for failure of appellant to cause timely transmission or to docket appeal) (Abrogated) -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). All that is involved in the docketing of an appeal is the payment of the docket fee. In practice, after the clerk of the court of appeals receives the record from the clerk of the district court he notifies the appellant of its receipt and requests payment of the fee. Upon receipt of the fee, the clerk enters the appeal upon the docket and files the record. The appellant is allowed to pay the fee at any time within the time allowed or fixed for transmission of the record and thereby to discharge his responsibility for docketing. The final sentence is added in the interest of facilitating future reference and citation and location of cases in indexes. Compare 3d Cir. Rule 10(2); 4th Cir. Rule 9(8); 6th Cir. Rule 14(1). Subdivision (c). The rules of the circuits generally permit the appellee to move for dismissal in the event the appellant fails to effect timely filing of the record. See 1st Cir. Rule 21(3); 3d Cir. Rule 21(4); 5th Cir. Rule 16(1); 8th Cir. Rule 7(d). NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (a). Under present Rule 12(a) the appellant must pay the docket fee within the time fixed for the transmission of the record, and upon timely payment of the fee, the appeal is docketed. The proposed amendment takes the docketing out of the hands of the appellant. The fee is paid at the time the notice of appeal is filed and the appeal is entered on the docket upon receipt of a copy of the notice of appeal and of the docket entries, which are sent to the court of appeals under the provisions of Rule 3(d). This is designed to give the court of appeals control of its docket at the earliest possible time so that within the limits of its facilities and personnel it can screen cases for appropriately different treatment, expedite the proceedings through prehearing conferences or otherwise, and in general plan more effectively for the prompt disposition of cases. Subdivision (b). The proposed amendment conforms the provision to the changes in Rule 11. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendment to Rule 12(a) is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Power of the courts to issue writs, see section 1651 of this title. Rule-making power generally, see section 2071 of this title. Seal and teste of process, see section 1691 of this title. ------DocID 36988 Document 850 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE III -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE III -HEAD- TITLE III. REVIEW OF DECISIONS OF THE UNITED STATES TAX COURT ------DocID 36989 Document 851 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 13 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE III -HEAD- Rule 13. Review of decisions of the Tax Court -STATUTE- (a) How obtained; time for filing notice of appeal. - Review of a decision of the United States Tax Court shall be obtained by filing a notice of appeal with the clerk of the Tax Court within 90 days after the decision of the Tax Court is entered. If a timely notice of appeal is filed by one party, any other party may take an appeal by filing a notice of appeal within 120 days after the decision of the Tax Court is entered. The running of the time for appeal is terminated as to all parties by a timely motion to vacate or revise a decision made pursuant to the Rules of Practice of the Tax Court. The full time for appeal commences to run and is to be computed from the entry of an order disposing of such motion, or from the entry of decision, whichever is later. (b) Notice of appeal - How filed. - The notice of appeal may be filed by deposit in the office of the clerk of the Tax Court in the District of Columbia or by mail addressed to the clerk. If a notice is delivered to the clerk by mail and is received after expiration of the last day allowed for filing, the postmark date shall be deemed to be the date of delivery, subject to the provisions of Sec. 7502 of the Internal Revenue Code of 1954, as amended, and the regulations promulgated pursuant thereto. (c) Content of the notice of appeal; service of the notice; effect of filing and service of the notice. - The content of the notice of appeal, the manner of its service, and the effect of the filing of the notice and of its service shall be as prescribed by Rule 3. Form 2 in the Appendix of Forms is a suggested form of the notice of appeal. (d) The record on appeal; transmission of the record; filing of the record. - The provisions of Rules 10, 11 and 12 respecting the record and the time and manner of its transmission and filing and the docketing of the appeal in the court of appeals in cases on appeal from the district courts shall govern in cases on appeal from the Tax Court. Each reference in those rules and in Rule 3 to the district court and to the clerk of the district court shall be read as a reference to the Tax Court and to the clerk of the Tax Court respectively. If appeals are taken from a decision of the Tax Court to more than one court of appeals, the original record shall be transmitted to the court of appeals named in the first notice of appeal filed. Provision for the record in any other appeal shall be made upon appropriate application by the appellant to the court of appeals to which such other appeal is taken. -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). This subdivision effects two changes in practice respecting review of Tax Court decisions: (1) Section 7483 of the Internal Revenue Code, 68A Stat. 891, 26 U.S.C. Sec. 7483, provides that review of a Tax Court decision may be obtained by filing a petition for review. The subdivision provides for review by the filing of the simple and familiar notice of appeal used to obtain review of district court judgments; (2) Section 7483, supra, requires that a petition for review be filed within 3 months after a decision is rendered, and provides that if a petition is so filed by one party, any other party may file a petition for review within 4 months after the decision is rendered. In the interest of fixing the time for review with precision, the proposed rule substitutes '90 days' and '120 days' for the statutory '3 months' and '4 months', respectively. The power of the Court to regulate these details of practice is clear. Title 28 U.S.C. Sec. 2072, as amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1966)), authorizes the Court to regulate '. . . practice and procedure in proceedings for the review by the courts of appeals of decisions of the Tax Court of the United States. . . .' The second paragraph states the settled teaching of the case law. See Robert Louis Stevenson Apartments, Inc. v. C.I.R., 337 F.2d 681, 10 A.L.R.3d 112 (8th Cir., 1964); Denholm & McKay Co. v. C.I.R., 132 F.2d 243 (1st Cir., 1942); Helvering v. Continental Oil Co., 63 App.D.C. 5, 68 F.2d 750 (1934); Burnet v. Lexington Ice & Coal Co., 62 F.2d 906 (4th Cir., 1933); Griffiths v. C.I.R., 50 F.2d 782 (7th Cir., 1931). Subdivision (b). The subdivision incorporates the statutory provision (Title 26, U.S.C. Sec. 7502) that timely mailing is to be treated as timely filing. The statute contains special provisions respecting other than ordinary mailing. If the notice of appeal is sent by registered mail, registration is deemed prima facie evidence that the notice was delivered to the clerk of the Tax Court, and the date of registration is deemed the postmark date. If the notice of appeal is sent by certified mail, the effect of certification with respect to prima facie evidence of delivery and the postmark date depends upon regulations of the Secretary of the Treasury. The effect of a postmark made other than by the United States Post Office likewise depends upon regulations of the Secretary. Current regulations are found in 26 CFR Sec. 301.7502-1. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment reflects the change in the title of the Tax Court to 'United States Tax Court.' See 26 U.S.C. Sec. 7441. -CROSS- CROSS REFERENCES Courts of review; jurisdiction and venue, see section 7482 of Title 26, Internal Revenue Code. Finality of decision on mandate of Court of Appeals, see section 7481 of Title 26. Notice of appeal, see section 7483 of Title 26. ------DocID 36990 Document 852 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 14 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE III -HEAD- Rule 14. Applicability of other rules to review of decisions of the Tax Court -STATUTE- All provisions of these rules are applicable to review of a decision of the Tax Court, except that Rules 4-9, Rules 15-20, and Rules 22 and 23 are not applicable. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The proposed rule continues the present uniform practice of the circuits of regulating review of decisions of the Tax Court by the general rules applicable to appeals from judgments of the district courts. -CROSS- CROSS REFERENCES Courts of review; jurisdiction and venue, see section 7482 of Title 26, Internal Revenue Code. Finality of decision on mandate of court of appeals, see section 7481 of Title 26. Notice of appeal, see section 7483 of Title 26. Rules of practice before the United States Tax Court, see provisions following section 7453 of Title 26. ------DocID 36991 Document 853 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE IV -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- TITLE IV. REVIEW AND ENFORCEMENT OF ORDERS OF ADMINISTRATIVE AGENCIES, BOARDS, COMMISSIONS AND OFFICERS ------DocID 36992 Document 854 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 15 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 15. Review or enforcement of agency orders - How obtained; intervention -STATUTE- (a) Petition for review of order; joint petition. - Review of an order of an administrative agency, board, commission or officer (hereinafter, the term 'agency' shall include agency, board, commission or officer) shall be obtained by filing with the clerk of a court of appeals which is authorized to review such order, within the time prescribed by law, a petition to enjoin, set aside, suspend, modify or otherwise review, or a notice of appeal, whichever form is indicated by the applicable statute (hereinafter, the term 'petition for review' shall include a petition to enjoin, set aside, suspend, modify or otherwise review, or a notice of appeal). The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. Form 3 in the Appendix of Forms is a suggested form of a petition for review. In each case the agency shall be named respondent. The United States shall also be deemed a respondent if so required by statute, even though not so designated in the petition. If two or more persons are entitled to petition the same court for review of the same order and their interests are such as to make joinder practicable, they may file a joint petition for review and may thereafter proceed as a single petitioner. (b) Application for enforcement of order; answer; default; cross-application for enforcement. - An application for enforcement of an order of an agency shall be filed with the clerk of a court of appeals which is authorized to enforce the order. The application shall contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief prayed. Within 20 days after the application is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the application. If the respondent fails to file an answer within such time, judgment will be awarded for the relief prayed. If a petition is filed for review of an order which the court has jurisdiction to enforce, the respondent may file a cross-application for enforcement. (c) Service of petition or application. - A copy of a petition for review or of an application or cross-application for enforcement of an order shall be served by the clerk of the court of appeals on each respondent in the manner prescribed by Rule 3(d), unless a different manner of service is prescribed by an applicable statute. At the time of filing, the petitioner shall furnish the clerk with a copy of the petition or application for each respondent. At or before the time of filing a petition for review, the petitioner shall serve a copy thereof on all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk, and shall file with the clerk a list of those so served. (d) Intervention. - Unless an applicable statute provides a different method of intervention, a person who desires to intervene in a proceeding under this rule shall serve upon all parties to the proceeding and file with the clerk of the court of appeals a motion for leave to intervene. The motion shall contain a concise statement of the interest of the moving party and the grounds upon which intervention is sought. A motion for leave to intervene or other notice of intervention authorized by an applicable statute shall be filed within 30 days of the date on which the petition for review is filed. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES General Note. The power of the Supreme Court to prescribe rules of practice and procedure for the judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers is conferred by 28 U.S.C. Sec. 2072, as amended by the Act of November 6, 1966, Sec. 1, 80 Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1966)). Section 11 of the Hobbs Administrative Orders Review Act of 1950, 64 Stat. 1132, reenacted as 28 U.S.C. Sec. 2352 (28 U.S.C.A. Sec. 2352 (Suppl. 1966)), repealed by the Act of November 6, 1966, Sec. 4, supra, directed the courts of appeals to adopt and promulgate, subject to approval by the Judicial Conference rules governing practice and procedure in proceedings to review the orders of boards, commissions and officers whose orders were made reviewable in the courts of appeals by the Act. Thereafter, the Judicial Conference approved a uniform rule, and that rule, with minor variations, is now in effect in all circuits. Third Circuit Rule 18 is a typical circuit rule, and for convenience it is referred to as the uniform rule in the notes which accompany rules under this Title. Subdivision (a). The uniform rule (see General Note above) requires that the petition for review contain 'a concise statement, in barest outline, of the nature of the proceedings as to which relief is sought, the facts upon which venue is based, the grounds upon which relief is sought, and the relief prayed.' That language is derived from Section 4 of the Hobbs Administrative Orders Review Act of 1950, 64 Stat. 1130, reenacted as 28 U.S.C. Sec. 2344 (28 U.S.C.A. Sec. 2344 (Suppl. 1966)). A few other statutes also prescribe the content of the petition, but the great majority are silent on the point. The proposed rule supersedes 28 U.S.C. Sec. 2344 and other statutory provisions prescribing the form of the petition for review and permits review to be initiated by the filing of a simple petition similar in form to the notice of appeal used in appeals from judgments of district courts. The more elaborate form of petition for review now required is rarely useful either to the litigants or to the courts. There is no effective, reasonable way of obliging petitioners to come to the real issues before those issues are formulated in the briefs. Other provisions of this subdivision are derived from sections 1 and 2 of the uniform rule. Subdivision (b). This subdivision is derived from sections 3, 4 and 5 of the uniform rule. Subdivision (c). This subdivision is derived from section 1 of the uniform rule. Subdivision (d). This subdivision is based upon section 6 of the uniform rule. Statutes occasionally permit intervention by the filing of a notice of intention to intervene. The uniform rule does not fix a time limit for intervention, and the only time limits fixed by statute are the 30-day periods found in the Communications Act Amendments, 1952, Sec. 402(e), 66 Stat. 719, 47 U.S.C. Sec. 402(e), and the Sugar Act of 1948, Sec. 205(d), 61 Stat. 927, 7 U.S.C. Sec. 1115(d). -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see section 825l of Title 16, Conservation. Federal Trade Commission, review of order, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title. and section 21 of Title 15. Review of orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36993 Document 855 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 15.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 15.1. Briefs and Oral Argument in National Labor Relations Board Proceedings -STATUTE- Each party adverse to the National Labor Relations Board in an enforcement or a review proceeding shall proceed first on briefing and at oral argument unless the court orders otherwise. -SOURCE- (As added Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule simply confirms the existing practice in most circuits. ------DocID 36994 Document 856 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 16 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 16. The record on review or enforcement -STATUTE- (a) Composition of the record. - The order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency shall constitute the record on review in proceedings to review or enforce the order of an agency. (b) Omissions from or misstatements in the record. - If anything material to any party is omitted from the record or is misstated therein, the parties may at any time supply the omission or correct the misstatement by stipulation, or the court may at any time direct that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a) is based upon 28 U.S.C. Sec. 2112(b). There is no distinction between the record compiled in the agency proceeding and the record on review; they are one and the same. The record in agency cases is thus the same as that in appeals from the district court - the original papers, transcripts and exhibits in the proceeding below. Subdivision (b) is based upon section 8 of the uniform rule (see General Note following Rule 15). -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see section 825l of Title 16, Conservation. Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title. and section 21 of Title 15. Orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36995 Document 857 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 17 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 17. Filing of the record -STATUTE- (a) Agency to file; time for filing; notice of filing. - The agency shall file the record with the clerk of the court of appeals within 40 days after service upon it of the petition for review unless a different time is provided by the statute authorizing review. In enforcement proceedings the agency shall file the record within 40 days after filing an application for enforcement, but the record need not be filed unless the respondent has filed an answer contesting enforcement of the order, or unless the court otherwise orders. The court may shorten or extend the time above prescribed. The clerk shall give notice to all parties of the date on which the record is filed. (b) Filing - What constitutes. - The agency may file the entire record or such parts thereof as the parties may designate by stipulation filed with the agency. The original papers in the agency proceeding or certified copies thereof may be filed. Instead of filing the record or designated parts thereof, the agency may file a certified list of all documents, transcripts of testimony, exhibits and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of the certified list shall constitute filing of the record. The parties may stipulate that neither the record nor a certified list be filed with the court. The stipulation shall be filed with the clerk of the court of appeals and the date of its filing shall be deemed the date on which the record is filed. If a certified list is filed, or if the parties designate only parts of the record for filing or stipulate that neither the record nor a certified list be filed, the agency shall retain the record or parts thereof. Upon request of the court or the request of a party, the record or any part thereof thus retained shall be transmitted to the court notwithstanding any prior stipulation. All parts of the record retained by the agency shall be a part of the record on review for all purposes. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). This subdivision is based upon section 7 of the uniform rule (see General Note following Rule 15). That rule does not prescribe a time for filing the record in enforcement cases. Forty days are allowed in order to avoid useless preparation of the record or certified list in cases where the application for enforcement is not contested. Subdivision (b). This subdivision is based upon 28 U.S.C. Sec. 2112 and section 7 of the uniform rule. It permits the agency to file either the record itself or a certified list of its contents. It also permits the parties to stipulate against transmission of designated parts of the record without the fear that an inadvertent stipulation may 'diminish' the record. Finally, the parties may, in cases where consultation of the record is unnecessary, stipulate that neither the record nor a certified list of its contents be filed. -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see section 825l of Title 16, Conservation. Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title and section 21 of Title 15. Orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36996 Document 858 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 18 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 18. Stay pending review -STATUTE- Application for a stay of a decision or order of an agency pending direct review in the court of appeals shall ordinarily be made in the first instance to the agency. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the applicant had requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant to the relief sought. Reasonable notice of the motion shall be given to all parties to the proceeding in the court of appeals. The court may condition relief under this rule upon the filing of a bond or other appropriate security. The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES While this rule has no counterpart in present rules regulating review of agency proceedings, it merely assimilates the procedure for obtaining stays in agency proceedings with that for obtaining stays in appeals from the district courts. The same considerations which justify the requirement of an initial application to the district court for a stay pending appeal support the requirement of an initial application to the agency pending review. See Note accompanying Rule 8. Title 5, U.S.C. Sec. 705 (5 U.S.C.A. Sec. 705 (1966 Pamphlet)) confers general authority on both agencies and reviewing courts to stay agency action pending review. Many of the statutes authorizing review of agency action by the courts of appeals deal with the question of stays, and at least one, the Act of June 15, 1936, 49 Stat. 1499 (7 U.S.C. Sec. 10a), prohibits a stay pending review. The proposed rule in nowise affects such statutory provisions respecting stays. By its terms, it simply indicates the procedure to be followed when a stay is sought. -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see section 825l of Title 16, Conservation. Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title and section 21 of Title 15. Orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36997 Document 859 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 19 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 19. Settlement of judgments enforcing orders -STATUTE- When an opinion of the court is filed directing the entry of a judgment enforcing in part the order of an agency, the agency shall within 14 days thereafter serve upon the respondent and file with the clerk a proposed judgment in conformity with the opinion. If the respondent objects to the proposed judgment as not in conformity with the opinion, the respondent shall within 7 days thereafter serve upon the agency and file with the clerk a proposed judgment which the respondent deems to be in conformity with the opinion. The court will thereupon settle the judgment and direct its entry without further hearing or argument. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This is section 12 of the uniform rule (see General Note following Rule 15) with changes in phraseology. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The deletion of the words 'in whole or' is designed to eliminate delay in the issuance of a judgment when the court of appeals has either enforced completely the order of an agency or denied completely such enforcement. In such a clear-cut situation, it serves no useful purpose to delay the issuance of the judgment until a proposed judgment is submitted by the agency and reviewed by the respondent. This change conforms the Rule to the existing practice in most circuits. Other amendments are technical and no substantive change is intended. -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see section 825l of Title 16, Conservation. Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title, and section 21 of Title 15. Orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36998 Document 860 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 20 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE IV -HEAD- Rule 20. Applicability of other rules to review or enforcement of agency orders -STATUTE- All provisions of these rules are applicable to review or enforcement of orders of agencies, except that Rules 3-14 and Rules 22 and 23 are not applicable. As used in any applicable rule, the term 'appellant' includes a petitioner and the term 'appellee' includes a respondent in proceedings to review or enforce agency orders. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The proposed rule continues the present uniform practice of the circuits of regulating agency review or enforcement proceedings by the general rules applicable to appeals from judgments of the district courts. -CROSS- CROSS REFERENCES Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees. Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade. Federal Power Act, review of orders under, see sections 825l of Title 16, Conservation. Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade. Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title, and section 21 of Title 15. Orders of Federal agencies, see section 2341 et seq. of this title. ------DocID 36999 Document 861 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE V -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE V -HEAD- TITLE V. EXTRAORDINARY WRITS ------DocID 37000 Document 862 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 21 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE V -HEAD- Rule 21. Writs of mandamus and prohibition directed to a judge or judges and other extraordinary writs -STATUTE- (a) Mandamus or prohibition to a judge or judges; petition for writ; service and filing. - Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition therefor with the clerk of the court of appeals with proof of service on the respondent judge or judges and on all parties to the action in the trial court. The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue; and copies of any order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. Upon receipt of the prescribed docket fee, the clerk shall docket the petition and submit it to the court. (b) Denial; order directing answer. - If the court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order. The order shall be served by the clerk on the judge or judges named respondents and on all other parties to the action in the trial court. All parties below other than the petitioner shall also be deemed respondents for all purposes. Two or more respondents may answer jointly. If the judge or judges named respondents do not desire to appear in the proceeding, they may so advise the clerk and all parties by letter, but the petition shall not thereby be taken as admitted. The clerk shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding shall be given preference over ordinary civil cases. (c) Other extraordinary writs. - Application for extraordinary writs other than those provided for in subdivisions (a) and (b) of this rule shall be made by petition filed with the clerk of the court of appeals with proof of service on the parties named as respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule. (d) Form of papers; number of copies. - All papers may be typewritten. Three copies shall be filed with the original, but the court may direct that additional copies be furnished. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The authority of courts of appeals to issue extraordinary writs is derived from 28 U.S.C. Sec. 1651. Subdivisions (a) and (b) regulate in detail the procedure surrounding the writs most commonly sought - mandamus or prohibition directed to a judge or judges. Those subdivisions are based upon Supreme Court Rule 31, with certain changes which reflect the uniform practice among the circuits (Seventh Circuit Rule 19 is a typical circuit rule). Subdivision (c) sets out a very general procedure to be followed in applications for the variety of other writs which may be issued under the authority of 28 U.S.C. Sec. 1651. -CROSS- CROSS REFERENCES All Writs Act, see section 1651 of this title. ------DocID 37001 Document 863 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE VI -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VI -HEAD- TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS ------DocID 37002 Document 864 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 22 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VI -HEAD- Rule 22. Habeas corpus proceedings -STATUTE- (a) Application for the original writ. - An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application will ordinarily be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge is not favored; the proper remedy is by appeal to the court of appeals from the order of the district court denying the writ. (b) Necessity of certificate of probable cause for appeal. - In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). Title 28 U.S.C. Sec. 2241(a) authorizes circuit judges to issue the writ of habeas corpus. Section 2241(b), however, authorizes a circuit judge to decline to entertain an application and to transfer it to the appropriate district court, and this is the usual practice. The first two sentences merely make present practice explicit. Title 28 U.S.C. Sec. 2253 seems clearly to contemplate that once an application is presented to a district judge and is denied by him, the remedy is an appeal from the order of denial. But the language of 28 U.S.C. Sec. 2241 seems to authorize a second original application to a circuit judge following a denial by a district judge. In re Gersing, 79 U.S.App.D.C. 245, 145 F.2d 481 (D.C. Cir., 1944) and Chapman v. Teets, 241 F.2d 186 (9th Cir., 1957) acknowledge the availability of such a procedure. But the procedure is ordinarily a waste of time for all involved, and the final sentence attempts to discourage it. A court of appeals has no jurisdiction as a court to grant an original writ of habeas corpus, and courts of appeals have dismissed applications addressed to them. Loum v. Alvis, 263 F.2d 836 (6th Cir., 1959); In re Berry, 221 F.2d 798 (9th Cir., 1955); Posey v. Dowd, 134 F.2d 613 (7th Cir., 1943). The fairer and more expeditious practice is for the court of appeals to regard an application addressed to it as being addressed to one of its members, and to transfer the application to the appropriate district court in accordance with the provisions of this rule. Perhaps such a disposition is required by the rationale of In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956). Subdivision (b). Title 28 U.S.C. Sec. 2253 provides that an appeal may not be taken in a habeas corpus proceeding where confinement is under a judgment of a state court unless the judge who rendered the order in the habeas corpus proceeding, or a circuit justice or judge, issues a certificate of probable cause. In the interest of insuring that the matter of the certificate will not be overlooked and that, if the certificate is denied, the reasons for denial in the first instance will be available on any subsequent application, the proposed rule requires the district judge to issue the certificate or to state reasons for its denial. While 28 U.S.C. Sec. 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause, In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956) makes it clear that a court of appeals may not decline to consider a request for the certificate addressed to it as a court but must regard the request as made to the judges thereof. The fourth sentence incorporates the Burwell rule. Although 28 U.S.C. Sec. 2253 appears to require a certificate of probable cause even when an appeal is taken by a state or its representative, the legislative history strongly suggests that the intention of Congress was to require a certificate only in the case in which an appeal is taken by an applicant for the writ. See United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d Cir., 1960). Four of the five circuits which have ruled on the point have so interpreted section 2253. United States ex rel. Tillery v. Cavell, supra; Buder v. Bell, 306 F.2d 71 (6th Cir., 1962); United States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th Cir., 1965); State of Texas v. Graves, 352 F.2d 514 (5th Cir., 1965). Cf. United States ex rel. Carrol v. LaVallee, 342 F.2d 641 (2d Cir., 1965). The final sentence makes it clear that a certificate of probable cause is not required of a state or its representative. -CROSS- CROSS REFERENCES Habeas corpus generally, see section 2241 et seq. of this title. Suspension of habeas corpus, see Const. Art. 1, Sec. 9, cl. 2. ------DocID 37003 Document 865 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 23 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VI -HEAD- Rule 23. Custody of prisoners in habeas corpus proceedings -STATUTE- (a) Transfer of custody pending review. - Pending review of a decision in a habeas corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefor, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party. (b) Detention or release of prisoner pending review of decision failing to release. - Pending review of a decision failing or refusing to release a prisoner in such a proceeding, the prisoner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarged upon the prisoner's recognizance, with or without surety, as may appear fitting to the court or justice or judge rendering the decision, or to the court of appeals or to the Supreme Court, or to a judge or justice of either court. (c) Release of prisoner pending review of decision ordering release. - Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon the prisoner's recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order. (d) Modification of initial order respecting custody. - An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The rule is the same as Supreme Court Rule 49, as amended on June 12, 1967, effective October 2, 1967. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 23(b) and (c) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Habeas corpus generally, see section 2241 et seq. of this title. Suspension of habeas corpus, see Const. Art. 1, Sec. 9, cl. 2. ------DocID 37004 Document 866 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 24 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VI -HEAD- Rule 24. Proceedings in forma pauperis -STATUTE- (a) Leave to proceed on appeal in forma pauperis from district court to court of appeals. - A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial. Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding. If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action. (b) Leave to proceed on appeal or review in forma pauperis in administrative agency proceedings. - A party to a proceeding before an administrative agency, board, commission or officer (including, for the purpose of this rule, the United States Tax Court) who desires to proceed on appeal or review in a court of appeals in forma pauperis, when such appeal or review may be had directly in a court of appeals, shall file in the court of appeals a motion for leave so to proceed, together with the affidavit prescribed by the first paragraph of (a) of this Rule 24. (c) Form of briefs, appendices and other papers. - Parties allowed to proceed in forma pauperis may file briefs, appendices and other papers in typewritten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form. -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). Authority to allow prosecution of an appeal in forma pauperis is vested in '(a)ny court of the United States' by 28 U.S.C. Sec. 1915(a). The second paragraph of section 1915(a) seems to contemplate initial application to the district court for permission to proceed in forma pauperis, and although the circuit rules are generally silent on the question, the case law requires initial application to the district court. Hayes v. United States, 258 F.2d 400 (5th Cir., 1958), cert. den. 358 U.S. 856, 79 S.Ct. 87, 3 L.Ed.2d 89 (1958); Elkins v. United States, 250 F.2d 145 (9th Cir., 1957) see 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Farley, 238 F.2d 575 (2d Cir., 1956) see 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). D.C. Cir. Rule 41(a) requires initial application to the district court. The content of the affidavit follows the language of the statute; the requirement of a statement of the issues comprehends the statutory requirement of a statement of 'the nature of the . . . appeal. . . .' The second sentence is in accord with the decision in McGann v. United States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960). The requirement contained in the third sentence has no counterpart in present circuit rules, but it has been imposed by decision in at least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962); United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir., 1959). The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C. Sec. 1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit Rule 26. The final paragraph establishes a subsequent motion in the court of appeals, rather than an appeal from the order of denial or from the certification of lack of good faith, as the proper procedure for calling in question the correctness of the action of the district court. The simple and expeditious motion procedure seems clearly preferable to an appeal. This paragraph applies only to applications for leave to appeal in forma pauperis. The order of a district court refusing leave to initiate an action in the district court in forma pauperis is reviewable on appeal. See Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950). Subdivision (b). Authority to allow prosecution in forma pauperis is vested only in a 'court of the United States' (see Note to subdivision (a), above). Thus in proceedings brought directly in a court of appeals to review decisions of agencies or of the Tax Court, authority to proceed in forma pauperis should be sought in the court of appeals. If initial review of agency action is had in a district court, an application to appeal to a court of appeals in forma pauperis from the judgment of the district court is governed by the provisions of subdivision (a). NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment reflects the change in the title of the Tax Court to 'United States Tax Court.' See 26 U.S.C. Sec. 7441. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rule 24(a) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Affidavit of inability to pay fees and expenses of consuls, counsel, interpreters and witnesses, see section 3495 of Title 18, Crimes and Criminal Procedure. Extradition by foreign government, witnesses for indigent fugitives, see section 3191 of Title 18. Fees for transcripts in criminal or habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, payment by United States, see section 753 of this title. Habeas corpus proceeding, indigent petitioner entitled to documents without cost, see section 2250 of this title. ------DocID 37005 Document 867 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE TITLE VII -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- TITLE VII. GENERAL PROVISIONS ------DocID 37006 Document 868 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 25 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 25. Filing and service -STATUTE- (a) Filing. - Papers required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which may be granted by a single judge, the judge may permit the motion to be filed with the judge, in which event the judge shall note thereon the date of filing and shall thereafter transmit it to the clerk. (b) Service of all papers required. - Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for that party on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel. (c) Manner of service. - Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing. (d) Proof of service. - Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the person served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The rule that filing is not timely unless the papers filed are received within the time allowed is the familiar one. Ward v. Atlantic Coast Line R.R. Co., 265 F.2d 75 (5th Cir., 1959), rev'd on other grounds 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Kahler-Ellis Co. v. Ohio Turnpike Commission, 225 F.2d 922 (6th Cir., 1955). An exception is made in the case of briefs and appendices in order to afford the parties the maximum time for their preparation. By the terms of the exception, air mail delivery must be used whenever it is the most expeditious manner of delivery. A majority of the circuits now require service of all papers filed with the clerk. The usual provision in present rules is for service on 'adverse' parties. In view of the extreme simplicity of service by mail, there seems to be no reason why a party who files a paper should not be required to serve all parties to the proceeding in the court of appeals, whether or not they may be deemed adverse. The common requirement of proof of service is retained, but the rule permits it to be made by simple certification, which may be endorsed on the copy which is filed. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 25(a) and (b) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Notice of motions, see rule 27. ------DocID 37007 Document 869 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 26 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 26. Computation and extension of time -STATUTE- (a) Computation of time. - In computing any period of time prescribed or allowed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of the (FOOTNOTE 1) time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule 'legal holiday' includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located. (FOOTNOTE 1) So in original. Word 'the' probably should not appear. (b) Enlargement of time. - The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the court enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review, or a notice of appeal from, an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law. (c) Additional time after service by mail. - Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party and the paper is served by mail, 3 days shall be added to the prescribed period. -SOURCE- (As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The provisions of this rule are based upon FRCP 6(a), (b) and (e). See also Supreme Court Rule 34 and FRCrP 45. Unlike FRCP 6(b), this rule, read with Rule 27, requires that every request for enlargement of time be made by motion, with proof of service on all parties. This is the simplest, most convenient way of keeping all parties advised of developments. By the terms of Rule 27(b) a motion for enlargement of time under Rule 26(b) may be entertained and acted upon immediately, subject to the right of any party to seek reconsideration. Thus the requirement of motion and notice will not delay the granting of relief of a kind which a court is inclined to grant as of course. Specifically, if a court is of the view that an extension of time sought before expiration of the period originally prescribed or as extended by a previous order ought to be granted in effect ex parte, as FRCP 6(b) permits, it may grant motions seeking such relief without delay. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1971 AMENDMENT The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968, 82 Stat. 250, which constituted Columbus Day a legal holiday effective after January 1, 1971. The Act, which amended Title 5, U.S.C. Sec. 6103(a), changes the day on which certain holidays are to be observed. Washington's Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Year's Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The Birthday of Martin Luther King, Jr., is added to the list of national holidays in Rule 26(a). The amendment to Rule 26(c) is technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT The proposed amendment brings Rule 26(a) into conformity with the provisions of Rule 6(a) of the Rules of Civil Procedure, Rule 45(a) of the Rules of Criminal Procedure, and Rule 9006(a) of the Rules of Bankruptcy Procedure which allow additional time for filing whenever a clerk's office is inaccessible on the last day for filing due to weather or other conditions. -CROSS- CROSS REFERENCES Time to appeal to courts of appeal, see section 2107 of this title. ------DocID 37008 Document 870 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 26.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 26.1. Corporate disclosure statement -STATUTE- Any non-governmental corporate body party to a civil or bankruptcy case or agency review proceeding and any non-governmental corporate defendant in a criminal case shall file a statement identifying all parent companies, subsidiaries (except wholly-owned subsidiaries), and affiliates that have issued shares to the public. The statement shall be filed with a party's principal brief or upon filing a motion, response, petition or answer in the court of appeals, whichever first occurs, unless a local rule requires earlier filing. The statement shall be included in front of the table of contents in a party's principal brief even if the statement was previously filed. -SOURCE- (As added Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The purpose of this rule is to assist judges in making a determination of whether they have any interests in any of a party's related corporate entities that would disqualify the judges from hearing the appeal. The committee believes that this rule represents minimum disclosure requirements. If a Court of Appeals wishes to require additional information, a court is free to do so by local rule. However, the committee requests the courts to consider the desirability of uniformity and the burden that varying circuit rules creates on attorneys who practice in many circuits. ------DocID 37009 Document 871 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 27 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 27. Motions -STATUTE- (a) Content of motions; response. - Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order (for which see subdivision (b)) within 7 days after service of the motion, but motions authorized by Rules 8, 9, 18 and 41 may be acted upon after reasonable notice, and the court may shorten or extend the time for responding to any motion. (b) Determination of motions for procedural orders. - Notwithstanding the provisions of (a) of this Rule 27 as to motions generally, motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response thereto, and pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk. Any party adversely affected by such action may by application to the court request consideration, vacation or modification of such action. (c) Power of a single judge to entertain motions. - In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court. (d) Form of papers; number of copies. - All papers relating to motions may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivisions (a) and (b). Many motions seek relief of a sort which is ordinarily unopposed or which is granted as of course. The provision of subdivision (a) which permits any party to file a response in opposition to a motion within 7 days after its service upon him assumes that the motion is one of substance which ought not be acted upon without affording affected parties an opportunity to reply. A motion to dismiss or otherwise determine an appeal is clearly such a motion. Motions authorized by Rules 8, 9, 18 and 41 are likewise motions of substance; but in the nature of the relief sought, to afford an adversary an automatic delay of at least 7 days is undesirable, thus such motions may be acted upon after notice which is reasonable under the circumstances. The term 'motions for procedural orders' is used in subdivision (b) to describe motions which do not substantially affect the rights of the parties or the ultimate disposition of the appeal. To prevent delay in the disposition of such motions, subdivision (b) provides that they may be acted upon immediately without awaiting a response, subject to the right of any party who is adversely affected by the action to seek reconsideration. Subdivision (c). Within the general consideration of procedure on motions is the problem of the power of a single circuit judge. Certain powers are granted to a single judge of a court of appeals by statute. Thus, under 28 U.S.C. Sec. 2101(f) a single judge may stay execution and enforcement of a judgment to enable a party aggrieved to obtain certiorari; under 28 U.S.C. Sec. 2251 a judge before whom a habeas corpus proceeding involving a person detained by state authority is pending may stay any proceeding against the person; under 28 U.S.C. Sec. 2253 a single judge may issue a certificate of probable cause. In addition, certain of these rules expressly grant power to a single judge. See Rules 8, 9 and 18. This subdivision empowers a single circuit judge to act upon virtually all requests for intermediate relief which may be made during the course of an appeal or other proceeding. By its terms he may entertain and act upon any motion other than a motion to dismiss or otherwise determine an appeal or other proceeding. But the relief sought must be 'relief which under these rules may properly be sought by motion.' Examples of the power conferred on a single judge by this subdivision are: to extend the time for transmitting the record or docketing the appeal (Rules 11 and 12); to permit intervention in agency cases (Rule 15), or substitution in any case (Rule 43); to permit an appeal in forma pauperis (Rule 24); to enlarge any time period fixed by the rules other than that for initiating a proceeding in the court of appeals (Rule 26(b)); to permit the filing of a brief by amicus curiae (Rule 29); to authorize the filing of a deferred appendix (Rule 30(c)), or dispense with the requirement of an appendix in a specific case (Rule 30(f)), or permit carbon copies of briefs or appendices to be used (Rule 32(a)); to permit the filing of additional briefs (Rule 28(c)), or the filing of briefs of extraordinary length (Rule 28(g)); to postpone oral argument (Rule 34(a)), or grant additional time therefor (Rule 34(b)). Certain rules require that application for the relief or orders which they authorize be made by petition. Since relief under those rules may not properly be sought by motion, a single judge may not entertain requests for such relief. Thus a single judge may not act upon requests for permission to appeal (see Rules 5 and 6); or for mandamus or other extraordinary writs (see Rule 21), other than for stays or injunctions pendente lite, authority to grant which is 'expressly conferred by these rules' on a single judge under certain circumstances (see Rules 8 and 18); or upon petitions for rehearing (see Rule 40). A court of appeals may by order or rule abridge the power of a single judge if it is of the view that a motion or a class of motions should be disposed of by a panel. Exercise of any power granted a single judge is discretionary with the judge. The final sentence in this subdivision makes the disposition of any matter by a single judge subject to review by the court. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment would give sanction to local rules in a number of circuits permitting the clerk to dispose of specified types of procedural motions. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1989 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Admission of attorneys to bar, see rule 46. Dismissal of appeal on motion, see rule 42. Postponement of argument, see rule 34. ------DocID 9765 Document 872 of 1452------ -CITE- 7 USC CHAPTER 28 -EXPCITE- TITLE 7 CHAPTER 28 -HEAD- CHAPTER 28 - TOBACCO INDUSTRY ------DocID 37011 Document 873 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 29 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 29. Brief of an amicus curiae -STATUTE- A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Only five circuits presently regulate the filing of the brief of an amicus curiae. See D.C. Cir. Rule 18(j); 1st Cir. Rule 23(10); 6th Cir. Rule 17(4); 9th Cir. Rule 18(9); 10th Cir. Rule 20. This rule follows the practice of a majority of circuits in requiring leave of court to file an amicus brief except under the circumstances stated therein. Compare Supreme Court Rule 42. -CROSS- CROSS REFERENCES Rule-making power generally, see section 2071 of this title. ------DocID 37012 Document 874 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 30 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 30. Appendix to the briefs -STATUTE- (a) Duty of appellant to prepare and file; content of appendix; time for filing; number of copies. - The appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings or opinion; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the district court should not be included in the appendix. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts. Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, the appellant shall serve and file the appendix with the brief. Ten copies of the appendix shall be filed with the clerk, and one copy shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number. (b) Determination of contents of appendix; cost of producing. - The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 10 days after the date on which the record is filed, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellee shall, within 10 days after receipt of the designation, serve upon the appellant a designation of those parts. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation. Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party. Each circuit shall provide by local rule for the imposition of sanctions against attorneys who unreasonably and vexatiously increase the costs of litigation through the inclusion of unnecessary material in the appendix. (c) Alternative method of designating contents of the appendix; how references to the record may be made in the briefs when alternative method is used. - If the court shall so provide by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed 21 days after service of the brief of the appellee. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 30 shall apply, except that the designations referred to therein shall be made by each party at the time each brief is served, and a statement of the issues presented shall be unnecessary. If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in a brief directly to pages of the appendix, that party may serve and file typewritten or page proof copies of the brief within the time required by Rule 31(a), with appropriate references to the pages of the parts of the record involved. In that event, within 14 days after the appendix is filed the party shall serve and file copies of the brief in the form prescribed by Rule 32(a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected. (d) Arrangement of the appendix. - At the beginning of the appendix there shall be inserted a list of the parts of the record which it contains, in the order in which the parts are set out therein, with references to the pages of the appendix at which each part begins. The relevant docket entries shall be set out following the list of contents. Thereafter, other parts of the record shall be set out in chronological order. When matter contained in the reporter's transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted. A question and its answer may be contained in a single paragraph. (e) Reproduction of exhibits. - Exhibits designated for inclusion in the appendix may be contained in a separate volume, or volumes, suitably indexed. Four copies thereof shall be filed with the appendix and one copy shall be served on counsel for each party separately represented. The transcript of a proceeding before an administrative agency, board, commission or officer used in an action in the district court shall be regarded as an exhibit for the purpose of this subdivision. (f) Hearing of appeals on the original record without the necessity of an appendix. - A court of appeals may by rule applicable to all cases, or to classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court may require. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). Only two circuits presently require a printed record (5th Cir. Rule 23(a); 8th Cir. Rule 10 (in civil appeals only)), and the rules and practice in those circuits combine to make the difference between a printed record and the appendix, which is now used in eight circuits and in the Supreme Court in lieu of the printed record, largely nominal. The essential characteristics of the appendix method are: (1) the entire record may not be reproduced; (2) instead, the parties are to set out in an appendix to the briefs those parts of the record which in their judgment the judges must consult in order to determine the issues presented by the appeal; (3) the appendix is not the record but merely a selection therefrom for the convenience of the judges of the court of appeals; the record is the actual trial court record, and the record itself is always available to supply inadvertent omissions from the appendix. These essentials are incorporated, either by rule or by practice, in the circuits that continue to require the printed record rather than the appendix. See 5th Cir. Rule 23(a)(9) and 8th Cir. Rule 10(a)-(d). Subdivision (b). Under the practice in six of the eight circuits which now use the appendix method, unless the parties agree to use a single appendix, the appellant files with his brief an appendix containing the parts of the record which he deems it essential that the court read in order to determine the questions presented. If the appellee deems additional parts of the record necessary he must include such parts as an appendix to his brief. The proposed rules differ from that practice. By the new rule a single appendix is to be filed. It is to be prepared by the appellant, who must include therein those parts which he deems essential and those which the appellee designates as essential. Under the practice by which each party files his own appendix the resulting reproduction of essential parts of the record is often fragmentary; it is not infrequently necessary to piece several appendices together to arrive at a usable reproduction. Too, there seems to be a tendency on the part of some appellants to reproduce less than what is necessary for a determination of the issues presented (see Moran Towing Corp. v. M. A. Gammino Construction Co., 363 F.2d 108 (1st Cir. 1966); Walters v. Shari Music Publishing Corp., 298 F.2d 206 (2d Cir. 1962) and cases cited therein; Morrison v. Texas Co., 289 F.2d 382 (7th Cir. 1961) and cases cited therein), a tendency which is doubtless encouraged by the requirement in present rules that the appellee reproduce in his separately prepared appendix such necessary parts of the record as are not included by the appellant. Under the proposed rule responsibility for the preparation of the appendix is placed on the appellant. If the appellee feels that the appellant has omitted essential portions of the record, he may require the appellant to include such portions in the appendix. The appellant is protected against a demand that he reproduce parts which he considers unnecessary by the provisions entitling him to require the appellee to advance the costs of reproducing such parts and authorizing denial of costs for matter unnecessarily reproduced. Subdivision (c). This subdivision permits the appellant to elect to defer the production of the appendix to the briefs until the briefs of both sides are written, and authorizes a court of appeals to require such deferred filing by rule or order. The advantage of this method of preparing the appendix is that it permits the parties to determine what parts of the record need to be reproduced in the light of the issues actually presented by the briefs. Often neither side is in a position to say precisely what is needed until the briefs are completed. Once the argument on both sides is known, it should be possible to confine the matter reproduced in the appendix to that which is essential to a determination of the appeal or review. This method of preparing the appendix is presently in use in the Tenth Circuit (Rule 17) and in other circuits in review of agency proceedings, and it has proven its value in reducing the volume required to be reproduced. When the record is long, use of this method is likely to result in substantial economy to the parties. Subdivision (e). The purpose of this subdivision is to reduce the cost of reproducing exhibits. While subdivision (a) requires that 10 copies of the appendix be filed, unless the court requires a lesser number, subdivision (e) permits exhibits necessary for the determination of an appeal to be bound separately, and requires only 4 copies of such a separate volume or volumes to be filed and a single copy to be served on counsel. Subdivision (f). This subdivision authorizes a court of appeals to dispense with the appendix method of reproducing parts of the record and to hear appeals on the original record and such copies of it as the court may require. Since 1962 the Ninth Circuit has permitted all appeals to be heard on the original record and a very limited number of copies. Under the practice as adopted in 1962, any party to an appeal could elect to have the appeal heard on the original record and two copies thereof rather than on the printed record theretofore required. The resulting substantial saving of printing costs led to the election of the new practice in virtually all cases, and by 1967 the use of printed records had ceased. By a recent amendment, the Ninth Circuit has abolished the printed record altogether. Its rules now provide that all appeals are to be heard on the original record, and it has reduced the number of copies required to two sets of copies of the transmitted original papers (excluding copies of exhibits, which need not be filed unless specifically ordered). See 9 Cir. Rule 10, as amended June 2, 1967, effective September 1, 1967. The Eighth Circuit permits appeals in criminal cases and in habeas corpus and 28 U.S.C. Sec. 2255 proceedings to be heard on the original record and two copies thereof. See 8 Cir. Rule 8 (i)-(j). The Tenth Circuit permits appeals in all cases to be heard on the original record and four copies thereof whenever the record consists of two hundred pages or less. See 10 Cir. Rule 17(a). This subdivision expressly authorizes the continuation of the practices in the Eighth, Ninth and Tenth Circuits. The judges of the Court of Appeals for the Ninth Circuit have expressed complete satisfaction with the practice there in use and have suggested that attention be called to the advantages which it offers in terms of reducing cost. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1970 AMENDMENT Subdivision (a). The amendment of subdivision (a) is related to the amendment of Rule 31(a), which authorizes a court of appeals to shorten the time for filing briefs. By virtue of this amendment, if the time for filing the brief of the appellant is shortened the time for filing the appendix is likewise shortened. Subdivision (c). As originally written, subdivision (c) permitted the appellant to elect to defer filing of the appendix until 21 days after service of the brief of the appellee. As amended, subdivision (c) requires that an order of court be obtained before filing of the appendix can be deferred, unless a court permits deferred filing by local rule. The amendment should not cause use of the deferred appendix to be viewed with disfavor. In cases involving lengthy records, permission to defer filing of the appendix should be freely granted as an inducement to the parties to include in the appendix only matter that the briefs show to be necessary for consideration by the judges. But the Committee is advised that appellants have elected to defer filing of the appendix in cases involving brief records merely to obtain the 21 day delay. The subdivision is amended to prevent that practice. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT Subdivision (a). During its study of the separate appendix (see Report on the Advisory Committee on the Federal Appellate Rules on the Operation of Rule 30, - FRD - (1985)), the Advisory Committee found that this document was frequently encumbered with memoranda submitted to the trial court. United States v. Noall, 587 F.2d 123, 125 n. 1 (2nd Cir. 1978). See generally Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496, 500 (5th Cir. 1976); Volkswagenwerk Aktiengesellschaft v. Church, 413 F.2d 1126, 1128 (9th Cir. 1969). Inclusion of such material makes the appendix more bulky and therefore less useful to the appellate panel. It also can increase significantly the costs of litigation. There are occasions when such trial court memoranda have independent relevance in the appellate litigation. For instance, there may be a dispute as to whether a particular point was raised or whether a concession was made in the district court. In such circumstances, it is appropriate to include pertinent sections of such memoranda in the appendix. Subdivision (b). The amendment to subdivision (b) is designed to require the circuits, by local rule, to establish a procedural mechanism for the imposition of sanctions against those attorneys who conduct appellate litigation in bad faith. Both 28 U.S.C. Sec. 1927 and the inherent power of the court authorized such sanctions. See Brennan v. Local 357, International Brotherhood of Teamsters, 709 F.2d 611 (9th Cir. 1983). See generally Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980). While considerations of uniformity are important and doubtless will be taken into account by the judges of the respective circuits, the Advisory Committee believes that, at this time, the circuits need the flexibility to tailor their approach to the conditions of local practice. The local rule shall provide for notice and opportunity to respond before the imposition of any sanction. Technical amendments also are made to subdivisions (a), (b) and (c) which are not intended to be substantive changes. TAXATION OF FEES IN APPEALS IN WHICH THE REQUIREMENT OF AN APPENDIX IS DISPENSED WITH The Judicial Conference of the United States at its session on October 28th and 29th approved the following resolution relating to fees to be taxed in the courts of appeals as submitted by the Judicial Council of the Ninth Circuit with the proviso that its application to any court of appeals shall be at the election of each such court: For some time it has been the practice in the Ninth Circuit Court of Appeals to dispense with an appendix in an appellate record and to hear the appeal on the original record, with a number of copies thereof being supplied (Rule 30f, Federal Rules of Appellate Procedure). It has been the practice of the Court to tax a fee of $5 in small records and $10 in large records for the time of the clerk involved in preparing such appeals and by way of reimbursement for postage expense. Judicial Conference approval heretofore has not been secured and the Judicial Council of the Ninth Circuit now seeks to fix a flat fee of $15 to be charged as fees for costs to be charged by any court of appeals 'in any appeal in which the requirement of an appendix is dispensed with pursuant to Rule 30f. Federal Rules of Appellate Procedure.' -CROSS- CROSS REFERENCES Typewritten appendices allowed in forma pauperis, see rule 24. ------DocID 37013 Document 875 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 31 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 31. Filing and service of briefs -STATUTE- (a) Time for serving and filing briefs. - The appellant shall serve and file a brief within 40 days after the date on which the record is filed. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. If a court of appeals is prepared to consider cases on the merits promptly after briefs are filed, and its practice is to do so, it may shorten the periods prescribed above for serving and filing briefs, either by rule for all cases or for classes of cases, or by order for specific cases. (b) Number of copies to be filed and served. - Twenty-five copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number, and two copies shall be served on counsel for each party separately represented. If a party is allowed to file typewritten ribbon and carbon copies of the brief, the original and three legible copies shall be filed with the clerk, and one copy shall be served on counsel for each party separately represented. (c) Consequence of failure to file briefs. - If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file a brief, the appellee will not be heard at oral argument except by permission of the court. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES A majority of the circuits now require the brief of the appellant to be filed within 30 days from the date on which the record is filed. But in those circuits an exchange of designations is unnecessary in the preparation of the appendix. The appellant files with his brief an appendix containing the parts of the record which he deems essential. If the appellee considers other parts essential, he includes those parts in his own appendix. Since the proposed rule requires the appellant to file with his brief an appendix containing necessary parts of the record as designated by both parties, the rule allows the appellant 40 days in order to provide time for the exchange of designations respecting the content of the appendix (see Rule 30(b)). NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1970 AMENDMENT The time prescribed by Rule 31(a) for preparing briefs - 40 days to the appellant, 30 days to the appellee - is well within the time that must ordinarily elapse in most circuits before an appeal can be reached for consideration. In those circuits, the time prescribed by the Rule should not be disturbed. But if a court of appeals maintains a current calendar, that is, if an appeal can be heard as soon as the briefs have been filed, or if the practice of the court permits the submission of appeals for preliminary consideration as soon as the briefs have been filed, the court should be free to prescribe shorter periods in the interest of expediting decision. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 31(a) and (c) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Form, see rule 32. Motion supported by brief, see rule 27. ------DocID 37014 Document 876 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 32 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 32. Form of briefs, the appendix and other papers -STATUTE- (a) Form of briefs and the appendix. - Briefs and appendices may be produced by standard typographic printing or by any duplicating or copying process which produces a clear black image on white paper. Carbon copies of briefs and appendices may not be submitted without permission of the court, except in behalf of parties allowed to proceed in forma pauperis. All printed matter must appear in at least 11 point type on opaque, unglazed paper. Briefs and appendices produced by the standard typographic process shall be bound in volumes having pages 6 1/8 by 9 1/4 inches and type matter 4 1/6 by 7 1/6 inches. Those produced by any other process shall be bound in volumes having pages not exceeding 8 1/2 by 11 inches and type matter not exceeding 6 1/2 by 9 1/2 inches, with double spacing between each line of text. In patent cases the pages of briefs and appendices may be of such size as is necessary to utilize copies of patent documents. Copies of the reporter's transcript and other papers reproduced in a manner authorized by this rule may be inserted in the appendix; such pages may be informally renumbered if necessary. If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appellant should be blue; that of the appellee, red; that of an intervenor or amicus curiae, green; that of any reply brief, gray. The cover of the appendix, if separately printed, should be white. The front covers of the briefs and of appendices, if separately printed, shall contain: (1) the name of the court and the number of the case; (2) the title of the case (see Rule 12(a)); (3) the nature of the proceeding in the court (e.g., Appeal; Petition for Review) and the name of the court, agency, or board below; (4) the title of the document (e.g., Brief for Appellant, Appendix); and (5) the names and addresses of counsel representing the party on whose behalf the document is filed. (b) Form of other papers. - Petitions for rehearing shall be produced in a manner prescribed by subdivision (a). Motions and other papers may be produced in like manner, or they may be typewritten upon opaque, unglazed paper 8 1/2 by 11 inches in size. Lines of typewritten text shall be double spaced. Consecutive sheets shall be attached at the left margin. Carbon copies may be used for filing and service if they are legible. A motion or other paper addressed to the court shall contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title indicating the purpose of the paper. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Only two methods of printing are now generally recognized by the circuits - standard typographic printing and the offset duplicating process (multilith). A third, mimeographing, is permitted in the Fifth Circuit. The District of Columbia, Ninth, and Tenth Circuits permit records to be reproduced by copying processes. The Committee feels that recent and impending advances in the arts of duplicating and copying warrant experimentation with less costly forms of reproduction than those now generally authorized. The proposed rule permits, in effect, the use of any process other than the carbon copy process which produces a clean, readable page. What constitutes such is left in first instance to the parties and ultimately to the court to determine. The final sentence of the first paragraph of subdivision (a) is added to allow the use of multilith, mimeograph, or other forms of copies of the reporter's original transcript whenever such are available. -CROSS- CROSS REFERENCES Typewritten briefs, appendices, and other papers allowed in forma pauperis, see rule 24. ------DocID 37015 Document 877 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 33 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 33. Prehearing conference -STATUTE- The court may direct the attorneys for the parties to appear before the court or a judge thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding by the court. The court or judge shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceeding, unless modified to prevent manifest injustice. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The uniform rule for review or enforcement of orders of administrative agencies, boards, commissions or officers (see the general note following Rule 15) authorizes a prehearing conference in agency review proceedings. The same considerations which make a prehearing conference desirable in such proceedings may be present in certain cases on appeal from the district courts. The proposed rule is based upon subdivision 11 of the present uniform rule for review of agency orders. -CROSS- CROSS REFERENCES Pre-trial procedure in the district courts, see Rule 16, Federal Rules of Civil Procedure, this Appendix. ------DocID 37016 Document 878 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 34 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 34. Oral argument -STATUTE- (a) In general; local rule. - Oral argument shall be allowed in all cases unless pursuant to local rule a panel of three judges, after examination of the briefs and record, shall be unanimously of the opinion that oral argument is not needed. Any such local rule shall provide any party with an opportunity to file a statement setting forth the reasons why oral argument should be heard. A general statement of the criteria employed in the administration of such local rule shall be published in or with the rule and such criteria shall conform substantially to the following minimum standard: Oral argument will be allowed unless (1) the appeal is frivolous; or (2) the dispositive issue or set of issues has been recently authoritatively decided; or (3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. (b) Notice of argument; postponement. - The clerk shall advise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument or for allowance of additional time must be made by motion filed reasonably in advance of the date fixed for hearing. (c) Order and content of argument. - The appellant is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records or authorities. (d) Cross and separate appeals. - A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If a case involves a cross-appeal, the plaintiff in the action below shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument. (e) Non-appearance of parties. - If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order. (f) Submission on briefs. - By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case be argued. (g) Use of physical exhibits at argument; removal. - If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best. -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES A majority of circuits now limit oral argument to thirty minutes for each side, with the provision that additional time may be made available upon request. The Committee is of the view that thirty minutes to each side is sufficient in most cases, but that where additional time is necessary it should be freely granted on a proper showing of cause therefor. It further feels that the matter of time should be left ultimately to each court of appeals, subject to the spirit of the rule that a reasonable time should be allowed for argument. The term 'side' is used to indicate that the time allowed by the rule is afforded to opposing interests rather than to individual parties. Thus if multiple appellants or appellees have a common interest, they constitute only a single side. If counsel for multiple parties who constitute a single side feel that additional time is necessary, they may request it. In other particulars this rule follows the usual practice among the circuits. See 3d Cir. Rule 31; 6th Cir. Rule 20; 10th Cir. Rule 23. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT The proposed amendment, patterned after the recommendations in the Report of the Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, 1975, created by Public Law 489 of the 92nd Cong. 2nd Sess., 86 Stat. 807, sets forth general principles and minimum standards to be observed in formulating any local rule. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 34(a) and (e) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Rehearing, no oral argument permitted, see rule 40. ------DocID 37017 Document 879 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 35 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 35. Determination of causes by the court in banc -STATUTE- (a) When hearing or rehearing in banc will be ordered. - A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. (b) Suggestion of a party for hearing or rehearing in banc. - A party may suggest the appropriateness of a hearing or rehearing in banc. No response shall be filed unless the court shall so order. The clerk shall transmit any such suggestion to the members of the panel and the judges of the court who are in regular active service but a vote need not be taken to determine whether the cause shall be heard or reheard in banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a party. (c) Time for suggestion of a party for hearing or rehearing in banc; suggestion does not stay mandate. - If a party desires to suggest that an appeal be heard initially in banc, the suggestion must be made by the date on which the appellee's brief is filed. A suggestion for a rehearing in banc must be made within the time prescribed by Rule 40 for filing a petition for rehearing, whether the suggestion is made in such petition or otherwise. The pendency of such a suggestion whether or not included in a petition for rehearing shall not affect the finality of the judgment of the court of appeals or stay the issuance of the mandate. -SOURCE- (As amended Apr. 1, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Statutory authority for in banc hearings is found in 28 U.S.C. Sec. 46(c). The proposed rule is responsive to the Supreme Court's view in Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), that litigants should be free to suggest that a particular case is appropriate for consideration by all the judges of a court of appeals. The rule is addressed to the procedure whereby a party may suggest the appropriateness of convening the court in banc. It does not affect the power of a court of appeals to initiate in banc hearings sua sponte. The provision that a vote will not be taken as a result of the suggestion of the party unless requested by a judge of the court in regular active service or by a judge who was a member of the panel that rendered a decision sought to be reheard is intended to make it clear that a suggestion of a party as such does not require any action by the court. See Western Pacific Ry. Corp. v. Western Pacific Ry. Co., supra, 345 U.S. at 262, 73 S.Ct. 656. The rule merely authorizes a suggestion, imposes a time limit on suggestions for rehearings in banc, and provides that suggestions will be directed to the judges of the court in regular active service. In practice, the suggestion of a party that a case be reheard in banc is frequently contained in a petition for rehearing, commonly styled 'petition for rehearing in banc.' Such a petition is in fact merely a petition for a rehearing, with a suggestion that the case be reheard in banc. Since no response to the suggestion, as distinguished from the petition for rehearing, is required, the panel which heard the case may quite properly dispose of the petition without reference to the suggestion. In such a case the fact that no response has been made to the suggestion does not affect the finality of the judgment or the issuance of the mandate, and the final sentence of the rule expressly so provides. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Under the present rule there is no specific provision for a response to a suggestion that an appeal be heard in banc. This has led to some uncertainty as to whether such a response may be filed. The proposed amendment would resolve this uncertainty. While the present rule provides a time limit for suggestions for rehearing in banc, it does not deal with the timing of a request that the appeal be heard in banc initially. The proposed amendment fills this gap as well, providing that the suggestion must be made by the date of which the appellee's brief is filed. Provision is made for circulating the suggestions to members of the panel despite the fact that senior judges on the panel would not be entitled to vote on whether a suggestion will be granted. -CROSS- CROSS REFERENCES Composition of court sitting in banc, see section 46 of this title. ------DocID 37018 Document 880 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 36 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 36. Entry of judgment -STATUTE- The notation of a judgment in the docket constitutes entry of the judgment. The clerk shall prepare, sign and enter the judgment following receipt of the opinion of the court unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement by the court. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruction from the court. The clerk shall, on the date judgment is entered, mail to all parties a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This is the typical rule. See 1st Cir. Rule 29; 3rd Cir. Rule 32; 6th Cir. Rule 21. At present, uncertainty exists as to the date of entry of judgment when the opinion directs subsequent settlement of the precise terms of the judgment, a common practice in cases involving enforcement of agency orders. See Stern and Gressman, Supreme Court Practice, p. 203 (3d Ed., 1962). The principle of finality suggests that in such cases entry of judgment should be delayed until approval of the judgment in final form. -CROSS- CROSS REFERENCES Certified copy of judgment, copy of opinion, and direction as to costs as constituting mandate, see rule 41. ------DocID 37019 Document 881 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 37 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 37. Interest on judgments -STATUTE- Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the district court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The first sentence makes it clear that if a money judgment is affirmed in the court of appeals, the interest which attaches to money judgments by force of law (see 28 U.S.C. Sec. 1961 and Sec. 2411) upon their initial entry is payable as if no appeal had been taken, whether or not the mandate makes mention of interest. There has been some confusion on this point. See Blair v. Durham, 139 F.2d 260 (6th Cir., 1943) and cases cited therein. In reversing or modifying the judgment of the district court, the court of appeals may direct the entry of a money judgment, as, for example, when the court of appeals reverses a judgment notwithstanding the verdict and directs entry of judgment on the verdict. In such a case the question may arise as to whether interest is to run from the date of entry of the judgment directed by the court of appeals or from the date on which the judgment would have been entered in the district court except for the erroneous ruling corrected on appeal. In Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), the Court held that where the mandate of the court of appeals directed entry of judgment upon a verdict but made no mention of interest from the date of the verdict to the date of the entry of the judgment directed by the mandate, the district court was powerless to add such interest. The second sentence of the proposed rule is a reminder to the court, the clerk and counsel of the Briggs rule. Since the rule directs that the matter of interest be disposed of by the mandate, in cases where interest is simply overlooked, a party who conceives himself entitled to interest from a date other than the date of entry of judgment in accordance with the mandate should be entitled to seek recall of the mandate for determination of the question. -CROSS- CROSS REFERENCES Damages and costs on affirmance, see section 1912 of this title. ------DocID 37020 Document 882 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 38 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 38. Damages for delay -STATUTE- If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Compare 28 U.S.C. Sec. 1912. While both the statute and the usual rule on the subject by courts of appeals (Fourth Circuit Rule 20 is a typical rule) speak of 'damages for delay,' the courts of appeals quite properly allow damages, attorney's fees and other expenses incurred by an appellee if the appeal is frivolous without requiring a showing that the appeal resulted in delay. See Dunscombe v. Sayle, 340 F.2d 311 (5th Cir., 1965), cert. den., 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965); Lowe v. Willacy, 239 F.2d 179 (9th Cir., 1956); Griffith Wellpoint Corp. v. Munro-Langstroth, Inc., 269 F.2d 64 (1st Cir., 1959); Ginsburg v. Stern, 295 F.2d 698 (3d Cir., 1961). The subjects of interest and damages are separately regulated, contrary to the present practice of combining the two (see Fourth Circuit Rule 20) to make it clear that the awards are distinct and independent. Interest is provided for by law; damages are awarded by the court in its discretion in the case of a frivolous appeal as a matter of justice to the appellee and as a penalty against the appellant. -CROSS- CROSS REFERENCES Damages and costs on affirmance, see section 1912 of this title. ------DocID 37021 Document 883 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 39 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 39. Costs -STATUTE- (a) To whom allowed. - Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court. (b) Costs for and against the United States. - In cases involving the United States or an agency or officer thereof, if an award of costs against the United States is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the United States. (c) Costs of briefs, appendices, and copies of records. - By local rule the court of appeals shall fix the maximum rate at which the cost of printing or otherwise producing necessary copies of briefs, appendices, and copies of records authorized by Rule 30(f) shall be taxable. Such rate shall not be higher than that generally charged for such work in the area where the clerk's office is located and shall encourage the use of economical methods of printing and copying. (d) Bill of costs; objections; costs to be inserted in mandate or added later. - A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which the party shall file with the clerk, with proof of service, within 14 days after the entry of judgment. Objections to the bill of costs must be filed within 10 days of service on the party against whom costs are to be taxed unless the time is extended by the court. The clerk shall prepare and certify an itemized statement of costs taxed in the court of appeals for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs and if the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate upon request by the clerk of the court of appeals to the clerk of the district court. (e) Costs on appeal taxable in the district courts. - Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES ON ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). Statutory authorization for taxation of costs is found in 28 U.S.C. Sec. 1920. The provisions of this subdivision follow the usual practice in the circuits. A few statutes contain specific provisions in derogation of these general provisions. (See 28 U.S.C. Sec. 1928, which forbids the award of costs to a successful plaintiff in a patent infringement action under the circumstances described by the statute). These statutes are controlling in cases to which they apply. Subdivision (b). The rules of the courts of appeals at present commonly deny costs to the United States except as allowance may be directed by statute. Those rules were promulgated at a time when the United States was generally invulnerable to an award of costs against it, and they appear to be based on the view that if the United States is not subject to costs if it loses, it ought not be entitled to recover costs if it wins. The number of cases affected by such rules has been greatly reduced by the Act of July 18, 1966, 80 Stat. 308 (1 U.S. Code Cong. & Ad. News, p. 349 (1966), 89th Cong., 2d Sess., which amended 28 U.S.C. Sec. 2412, the former general bar to the award of costs against the United States. Section 2412 as amended generally places the United States on the same footing as private parties with respect to the award of costs in civil cases. But the United States continues to enjoy immunity from costs in certain cases. By its terms amended section 2412 authorizes an award of costs against the United States only in civil actions, and it excepts from its general authorization of an award of costs against the United States cases which are 'otherwise specifically provided (for) by statute.' Furthermore, the Act of July 18, 1966, supra, provides that the amendments of section 2412 which it effects shall apply only to actions filed subsequent to the date of its enactment. The second clause continues in effect, for these and all other cases in which the United States enjoys immunity from costs, the presently prevailing rule that the United States may recover costs as the prevailing party only if it would have suffered them as the losing party. Subdivision (c). While only five circuits (D.C. Cir. Rule 20(d); 1st Cir. Rule 31(4); 3d Cir. Rule 35(4); 4th Cir. Rule 21(4); 9th Cir. Rule 25, as amended June 2, 1967) presently tax the cost of printing briefs, the proposed rule makes the cost taxable in keeping with the principle of this rule that all cost items expended in the prosecution of a proceeding should be borne by the unsuccessful party. Subdivision (e). The costs described in this subdivision are costs of the appeal and, as such, are within the undertaking of the appeal bond. They are made taxable in the district court for general convenience. Taxation of the cost of the reporter's transcript is specifically authorized by 28 U.S.C. Sec. 1920, but in the absence of a rule some district courts have held themselves without authority to tax the cost (Perlman v. Feldmann, 116 F.Supp. 102 (D.Conn., 1953); Firtag v. Gendleman, 152 F.Supp. 226 (D.D.C., 1957); Todd Atlantic Shipyards Corps. v. The Southport, 100 F.Supp. 763 (E.D.S.C., 1951). Provision for taxation of the cost of premiums paid for supersedeas bonds is common in the local rules of district courts and the practice is established in the Second, Seventh, and Ninth Circuits. Berner v. British Commonwealth Pacific Air Lines, Ltd., 362 F.2d 799 (2d Cir. 1966); Land Oberoesterreich v. Gude, 93 F.2d 292 (2d Cir., 1937); In re Northern Ind. Oil Co., 192 F.2d 139 (7th Cir., 1951); Lunn v. F. W. Woolworth, 210 F.2d 159 (9th Cir., 1954). NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (c). The proposed amendment would permit variations among the circuits in regulating the maximum rates taxable as costs for printing or otherwise reproducing briefs, appendices, and copies of records authorized by Rule 30(f). The present rule has had a different effect in different circuits depending upon the size of the circuit, the location of the clerk's office, and the location of other cities. As a consequence there was a growing sense that strict adherence to the rule produces some unfairness in some of the circuits and the matter should be made subject to local rule. Subdivision (d). The present rule makes no provision for objections to a bill of costs. The proposed amendment would allow 10 days for such objections. Cf. Rule 54(d) of the F.R.C.P. It provides further that the mandate shall not be delayed for taxation of costs. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendment to subdivision (c) is intended to increase the degree of control exercised by the courts of appeals over rates for printing and copying recoverable as costs. It further requires the courts of appeals to encourage cost-consciousness by requiring that, in fixing the rate, the court consider the most economical methods of printing and copying. The amendment to subdivision (d) is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Costs and fees, payment by clerk into treasury, see section 711 of this title. Damages and costs on affirmance, see section 1912 of this title. Judicial conference of United States to prescribe charges, see section 1913 of this title. Liability of United States for costs, see section 2412 of this title. ------DocID 37022 Document 884 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 40 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 40. Petition for rehearing -STATUTE- (a) Time for filing; content; answer; action by court if granted. - A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order or by local rule. The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. (b) Form of petition; length. - The petition shall be in a form prescribed by Rule 32(a), and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by permission of the court, or as specified by local rule of the court of appeals, a petition for rehearing shall not exceed 15 pages. -SOURCE- (As amended Apr. 30, 1979, eff. Aug. 1, 1979.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This is the usual rule among the circuits, except that the express prohibition against filing a reply to the petition is found only in the rules of the Fourth, Sixth and Eighth Circuits (it is also contained in Supreme Court Rule 58(3)). It is included to save time and expense to the party victorious on appeal. In the very rare instances in which a reply is useful, the court will ask for it. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1979 AMENDMENT Subdivision (a). The Standing Committee added to the first sentence of Rule 40(a) the words 'or by local rule,' to conform to current practice in the circuits. The Standing Committee believes the change noncontroversial. Subdivision (b). The proposed amendment would eliminate the distinction drawn in the present rule between printed briefs and those duplicated from typewritten pages in fixing their maximum length. See Note to Rule 28. Since petitions for rehearing must be prepared in a short time, making typographic printing less likely, the maximum number of pages is fixed at 15, the figure used in the present rule for petitions duplicated by means other than typographic printing. -CROSS- CROSS REFERENCES Mandate, issuance unless delayed by petition for rehearing, see rule 41. ------DocID 37023 Document 885 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 41 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 41. Issuance of mandate; stay of mandate -STATUTE- (a) Date of issuance. - The mandate of the court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order. (b) Stay of mandate pending application for certiorari. - A stay of the mandate pending application to the Supreme Court for a writ of certiorari may be granted upon motion, reasonable notice of which shall be given to all parties. The stay shall not exceed 30 days unless the period is extended for cause shown. If during the period of the stay there is filed with the clerk of the court of appeals a notice from the clerk of the Supreme Court that the party who has obtained the stay has filed a petition for the writ in that court, the stay shall continue until final disposition by the Supreme Court. Upon the filing of a copy of an order of the Supreme Court denying the petition for writ of certiorari the mandate shall issue immediately. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The proposed rule follows the rule or practice in a majority of circuits by which copies of the opinion and the judgment serve in lieu of a formal mandate in the ordinary case. Compare Supreme Court Rule 59. Although 28 U.S.C. Sec. 2101(c) permits a writ of certiorari to be filed within 90 days after entry of judgment, seven of the eight circuits which now regulate the matter of stays pending application for certiorari limit the initial stay of the mandate to the 30-day period provided in the proposed rule. Compare D.C. Cir. Rule 27(e). -CROSS- CROSS REFERENCES Certiorari to Supreme Court, see sections 1254 and 2101 of this title. Petition for rehearing, see rule 40. ------DocID 37024 Document 886 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 42 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 42. Voluntary dismissal -STATUTE- (a) Dismissal in the district court. - If an appeal has not been docketed, the appeal may be dismissed by the district court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant. (b) Dismissal in the court of appeals. - If the parties to an appeal or other proceeding shall sign and file with the clerk of the court of appeals an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). This subdivision is derived from FRCP 73(a) without change of substance. Subdivision (b). The first sentence is a common provision in present circuit rules. The second sentence is added. Compare Supreme Court Rule 60. -CROSS- CROSS REFERENCES Briefs, dismissal for default, see rule 31. Costs upon dismissal, see rule 39. Not docketed in time, see rule 12. ------DocID 37025 Document 887 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 43 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 43. Substitution of parties -STATUTE- (a) Death of a party. - If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the court of appeals. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by that party's personal representative, or, if there is no personal representative by that party's attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision. (b) Substitution for other causes. - If substitution of a party in the court of appeals is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a). (c) Public officers; death or separation from office. - (1) When a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) When a public officer is a party to an appeal or other proceeding in an official capacity that public officer may be described as a party by the public officer's official title rather than by name; but the court may require the public officer's name to be added. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). The first three sentences described a procedure similar to the rule on substitution in civil actions in the district court. See FRCP 25(a). The fourth sentence expressly authorizes an appeal to be taken against one who has died after the entry of judgment. Compare FRCP 73(b), which impliedly authorizes such an appeal. The sixth sentence authorizes an attorney of record for the deceased to take an appeal on behalf of successors in interest if the deceased has no representative. At present, if a party entitled to appeal dies before the notice of appeal is filed, the appeal can presumably be taken only by his legal representative and must be taken within the time ordinarily prescribed. 13 Cyclopedia of Federal Procedure (3d Ed.) Sec. 63.21. The states commonly make special provisions for the event of the death of a party entitled to appeal, usually by extending the time otherwise prescribed. Rules of Civil Procedure for Superior Courts of Arizona, Rule 73(t), 16 A.R.S.; New Jersey Rev. Rules 1:3-3; New York Civil Practice Law and Rules, Sec. 1022; Wisconsin Statutes Ann. 274.01(2). The provision in the proposed rule is derived from California Code of Civil Procedure, Sec. 941. Subdivision (c). This subdivision is derived from FRCP 25(d) and Supreme Court Rule 48, with appropriate changes. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 43(a) and (c) are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Substitution of parties, see Rule 25, Federal Rules of Civil Procedure, this Appendix. ------DocID 37026 Document 888 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 44 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 44. Cases involving constitutional questions where United States is not a party -STATUTE- It shall be the duty of a party who draws in question the constitutionality of any Act of Congress in any proceeding in a court of appeals to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the court of appeals, to give immediate notice in writing to the court of the existence of said question. The clerk shall thereupon certify such fact to the Attorney General. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule is now found in the rules of a majority of the circuits. It is in response to the Act of August 24, 1937 (28 U.S.C. Sec. 2403), which requires all courts of the United States to advise the Attorney General of the existence of an action or proceeding of the kind described in the rule. -CROSS- CROSS REFERENCES Intervention by United States, see section 2403 of this title. ------DocID 37027 Document 889 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 45 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 45. Duties of clerks -STATUTE- (a) General provisions. - The clerk of a court of appeals shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or counselor in any court while continuing in office. The court of appeals shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The office of the clerk with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays, but a court may provide by local rule or order that the office of its clerk shall be open for specified hours on Saturdays or on particular legal holidays other than New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. (b) The docket; calendar; other records required. - The clerk shall maintain a docket in such form as may be prescribed by the Director of the Administrative Office of the United States Courts. The clerk shall enter a record of all papers filed with the clerk and all process, orders and judgments. An index of cases contained in the docket shall be maintained as prescribed by the Director of the Administrative Office of the United States Courts. The clerk shall prepare, under the direction of the court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law. The clerk shall keep such other books and records as may be required from time to time by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, or as may be required by the court. (c) Notice of orders or judgments. - Immediately upon the entry of an order or judgment the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel. (d) Custody of records and papers. - The clerk shall have custody of the records and papers of the court. The clerk shall not permit any original record or paper to be taken from the clerk's custody except as authorized by the orders or instructions of the court. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other printed papers filed. -SOURCE- (As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The duties imposed upon clerks of the courts of appeals by this rule are those imposed by rule or practice in a majority of the circuits. The second sentence of subdivision (a) authorizing the closing of the clerk's office on Saturday and non-national legal holidays follows a similar provision respecting the district court clerk's office found in FRCP 77(c) and in FRCrP 56. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1971 AMENDMENT The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 26(a). NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendment to Rule 45(b) permits the courts of appeals to maintain computerized dockets. The Committee believes that the Administrative Office of the United States Courts ought to have maximum flexibility in prescribing the format of this docket in order to ensure a smooth transition from manual to automated systems and subsequent adaptation to technological improvements. The amendments to Rules 45(a) and (d) are technical. No substantive change is intended. The Birthday of Martin Luther King, Jr. has been added to the list of national holidays. -CROSS- CROSS REFERENCES Appointment and removal, see section 711 of this title. Bonds of clerks, see section 951 of this title. Costs and fees, payment by clerk into treasury, see section 711 of this title. Oath of office of clerks, see section 951 of this title. Practice of law restricted, see section 955 of this title. ------DocID 37028 Document 890 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 46 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 46. Attorneys -STATUTE- (a) Admission to the bar of a court of appeals; eligibility; procedure for admission. - An attorney who has been admitted to practice before the Supreme Court of the United States, or the highest court of a state, or another United States court of appeals, or a United States district court (including the district courts for the Canal Zone, Guam and the Virgin Islands), and who is of good moral and professional character, is eligible for admission to the bar of a court of appeals. An applicant shall file with the clerk of the court of appeals, on a form approved by the court and furnished by the clerk, an application for admission containing the applicant's personal statement showing eligibility for membership. At the foot of the application the applicant shall take and subscribe to the following oath or affirmation: I, XXXXXXXXXXXXXXX, do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States. Thereafter, upon written or oral motion of a member of the bar of the court, the court will act upon the application. An applicant may be admitted by oral motion in open court, but it is not necessary that the applicant appear before the court for the purpose of being admitted, unless the court shall otherwise order. An applicant shall upon admission pay to the clerk the fee prescribed by rule or order of the court. (b) Suspension or disbarment. - When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why the member should not be suspended or disbarred. Upon the member's response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order. (c) Disciplinary power of the court over attorneys. - A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court. -SOURCE- (As amended Mar. 10, 1986, eff. July 1, 1986.) -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). The basic requirement of membership in the bar of the Supreme Court, or of the highest court of a state, or in another court of appeals or a district court is found, with minor variations, in the rules of ten circuits. The only other requirement in those circuits is that the applicant be of good moral and professional character. In the District of Columbia Circuit applicants other than members of the District of Columbia District bar or the Supreme Court bar must claim membership in the bar of the highest court of a state, territory or possession for three years prior to application for admission (D.C. Cir. Rule 7). Members of the District of Columbia District bar and the Supreme Court bar again excepted, applicants for admission to the District of Columbia Circuit bar must meet precisely defined prelaw and law school study requirements (D.C. Cir. Rule 7 1/2). A few circuits now require that application for admission be made by oral motion by a sponsor member in open court. The proposed rule permits both the application and the motion by the sponsor member to be in writing, and permits action on the motion without the appearance of the applicant or the sponsor, unless the court otherwise orders. Subdivision (b). The provision respecting suspension or disbarment is uniform. Third Circuit Rule 8(3) is typical. Subdivision (c). At present only Fourth Circuit Rule 36 contains an equivalent provision. The purpose of this provision is to make explicit the power of a court of appeals to impose sanctions less serious than suspension or disbarment for the breach of rules. It also affords some measure of control over attorneys who are not members of the bar of the court. Several circuits permit a non-member attorney to file briefs and motions, membership being required only at the time of oral argument. And several circuits permit argument pro hac vice by non-member attorneys. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES - 1986 AMENDMENT The amendments to Rules 46(a) and (b) are technical. No substantive change is intended. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. -CROSS- CROSS REFERENCES Clerk as prohibited from practicing law, see section 955 of this title. Practice of law prohibited by United States marshal or deputy marshal, see section 568 of this title. ------DocID 37029 Document 891 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 47 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 47. Rules by courts of appeals -STATUTE- Each court of appeals by action of a majority of the circuit judges in regular active service may from time to time make and amend rules governing its practice not inconsistent with these rules. In all cases not provided for by rule, the courts of appeals may regulate their practice in any manner not inconsistent with these rules. Copies of all rules made by a court of appeals shall upon their promulgation be furnished to the Administrative Office of the United States Courts. -MISC1- NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This rule continues the authority now vested in individual courts of appeals by 28 U.S.C. Sec. 2071 to make rules consistent with rules of practice and procedure promulgated by the Supreme Court. ------DocID 37030 Document 892 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 48 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE TITLE VII -HEAD- Rule 48. Title -STATUTE- These rules may be known and cited as the Federal Rules of Appellate Procedure. ------DocID 37031 Document 893 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- APPENDIX OF FORMS ------DocID 37032 Document 894 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Form 1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court -STATUTE- UNITED STATES DISTRICT COURT FOR THE XXXX DISTRICT OF XXXXXX FILE NUMBER XXXX A. B., Plaintiff v. W Notice of Appeal C. D., Defendant Notice is hereby given that C. D., defendant above named, hereby appeals to the United States Court of Appeals for the XXXXX Circuit (from the final judgment) (from the order (describing it)) entered in this action on the XXX day of XXXXX, 19X. --------------------------------------------------------------------- --------------------------------------------------------------------- (s)XXXXXXXXXXXXX XXXXXXXXXXXXX (Address) Attorney for C. D. ------------------------------- ------DocID 37033 Document 895 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Form 2 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- Form 2. Notice of Appeal to a Court of Appeals From a Decision of the Tax Court (FOOTNOTE 1) -STATUTE- TAX COURT OF THE UNITED STATES WASHINGTON, D.C. A. B., Petitioner v. Commissioner of Internal Revenue, Docket No.XXXX Respondent NOTICE OF APPEAL Notice is hereby given that A. B. hereby appeals to the United States Court of Appeals for the XXXXXXXX Circuit from (that part of) the decision of this court entered in the above captioned proceeding on the XXXX day of XXXXXX, 19X (relating to XXXXXX). --------------------------------------------------------------------- --------------------------------------------------------------------- (s)XXXXXXXXXXX XXXXXXXXXXXXX (Address) Counsel for A. B. ------------------------------- (FOOTNOTE 1) The name of the Tax Court of the United States has been changed to United States Tax Court by Pub. L. 91-172, Sec. 951, Dec. 30, 1969, 83 Stat. 730 (26 U.S.C. Sec. 7441). ------DocID 37034 Document 896 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Form 3 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer -STATUTE- UNITED STATES COURT OF APPEALS FOR THE XXXX CIRCUIT A.B., Petitioner v. XYZ Commission, Petition for Review Respondent A. B. hereby petitions the court for review of the Order of the XYZ Commission (describe the order) entered on XXXX, 19X. --------------------------------------------------------------------- --------------------------------------------------------------------- XXXXXXXXXXXXXXX, Attorney for Petitioner. Address: XXXXXXXXXX ------------------------------- ------DocID 37035 Document 897 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Form 4 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis -STATUTE- UNITED STATES DISTRICT COURT FOR THE XXXX DISTRICT OF XXXX United States of America v. No. XX A. B. AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS I, XXXXXXXXXXXX being first duly sworn, depose and say that I am the XXXXX, in the above-entitled case; that in support of my motion to proceed on appeal without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to redress; and that the issues which I desire to present on appeal are the following: I further swear that the responses which I have made to the questions and instructions below relating to my ability to pay the cost of prosecuting the appeal are true. 1. Are you presently employed? a. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer. b. If the answer is no, state the date of your last employment and the amount of the salary and wages per month which you received. 2. Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, or other source? a. If the answer is yes, describe each source of income, and state the amount received from each during the past twelve months. 3. Do you own any cash or checking or savings account? a. If the answer is yes, state the total value of the items owned. 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? a. If the answer is yes, describe the property and state its approximate value. 5. List the persons who are dependent upon you for support and state your relationship to those persons. I understand that a false statement or answer to any questions in this affidavit will subject me to penalties for perjury. XXXXXXXXXXXX SUBSCRIBED AND SWORN TO before me this XXXX day of XXXXXX, 19X. Let the applicant proceed without prepayment of costs or fees or the necessity of giving security therefor. XXXXXXXXXXXX, District Judge. ------DocID 37036 Document 898 of 1452------ -CITE- 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Form 5 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF APPELLATE PROCEDURE APPENDIX OF FORMS -HEAD- Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or a Bankruptcy Appellate Panel -STATUTE- UNITED STATES DISTRICT COURT FOR THE XXXX DISTRICT OF XXXXXX In re XXXXXXXXXX, Debtor XXXXXXXXXX, File No. XXXXXX Plaintiff v. XXXXXXXXXX, Defendant NOTICE OF APPEAL TO UNITED STATES COURT OF APPEALS FOR THE XXXXXX CIRCUIT XXXXXXXX, the plaintiff (or defendant or other party) appeals to the United States Court of Appeals for the XXXXXX Circuit from the final judgment (or order or decree) of the district court for the district of XXXXXX (or bankruptcy appellate panel of the XXXXXX circuit), entered in this case on XXXXXX, 19XX (here describe the judgment, order, or decree) XXXXXXXXXX The parties to the judgment (or order or decree) appealed from and the names and addresses of their respective attorneys are as follows: Dated XXXXXXXXXXXX Signed XXXXXXXXXXXX Attorney for Appellant Address: XXXXXXXXXXX XXXXXXXXXXXXXX -SOURCE- (As added Apr. 25, 1989, eff. Dec. 1, 1989.) ------DocID 37037 Document 899 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE -HEAD- FEDERAL RULES OF CIVIL PROCEDURE -MISC1- (AS AMENDED TO JANUARY 2, 1991) HISTORICAL NOTE The original Rules of Civil Procedure for the District Courts were adopted by order of the Supreme Court on Dec. 20, 1937, transmitted to Congress by the Attorney General on Jan. 3, 1938, and became effective on Sept. 16, 1938. The Rules have been amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1, 1951; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, and Dec. 18, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Oct. 21, 1980, Pub. L. 96-481, title II, Sec. 205(a), (b), 94 Stat. 2330; Jan. 12, 1983, Pub. L. 97-462, Sec. 2-4, 96 Stat. 2527-2530, eff. Feb. 26, 1983; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7047(b), 7049, 7050, 102 Stat. 4401. RULES OF THE SUPREME COURT OF THE UNITED STATES Procedure in original actions in Supreme Court of the United States, Federal Rules of Civil Procedure as guide, see rule 17, this Appendix. I. SCOPE OF RULES - ONE FORM OF ACTION Rule 1. Scope of Rules. 2. One Form of Action. II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS 3. Commencement of Action. 4. Process. (a) Summons: Issuance. (b) Same: Form. (c) Service. (d) Summons and Complaint: Person To Be Served. (e) Summons; Service Upon Party Not Inhabitant of or Found Within State. (f) Territorial Limits of Effective Service. (g) Return. (h) Amendment. (i) Alternative Provisions for Service in a Foreign Country. (1) Manner. (2) Return. (j) Summons: Time Limit for Service. 5. Service and Filing of Pleadings and Other Papers. (a) Service: When Required. (b) Same: How Made. (c) Same: Numerous Defendants. (d) Filing. (e) Filing With the Court Defined. 6. Time. (a) Computation. (b) Enlargement. ((c) Rescinded.) (d) For Motions - Affidavits. (e) Additional Time After Service by Mail. III. PLEADINGS AND MOTIONS 7. Pleadings Allowed; Form of Motions. (a) Pleadings. (b) Motions and Other Papers. (c) Demurrers, Pleas, etc., Abolished. 8. General Rules of Pleading. (a) Claims for Relief. (b) Defenses; Form of Denials. (c) Affirmative Defenses. (d) Effect of Failure To Deny. (e) Pleading To Be Concise and Direct; Consistency. (f) Construction of Pleadings. 9. Pleading Special Matters. (a) Capacity. (b) Fraud, Mistake, Condition of the Mind. (c) Conditions Precedent. (d) Official Document or Act. (e) Judgment. (f) Time and Place. (g) Special Damage. (h) Admiralty and Maritime Claims. 10. Form of Pleadings. (a) Caption; Names of Parties. (b) Paragraphs; Separate Statements. (c) Adoption by Reference; Exhibits. 11. Signing of Pleadings, Motions, and Other Papers; Sanctions. 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings. (a) When Presented. (b) How Presented. (c) Motion for Judgment on the Pleadings. (d) Preliminary Hearings. (e) Motion for More Definite Statement. (f) Motion To Strike. (g) Consolidation of Defenses in Motion. (h) Waiver or Preservation of Certain Defenses. 13. Counterclaim and Cross-Claim. (a) Compulsory Counterclaims. (b) Permissive Counterclaims. (c) Counterclaim Exceeding Opposing Claim. (d) Counterclaim Against the United States. (e) Counterclaim Maturing or Acquired After Pleading. (f) Omitted Counterclaim. (g) Cross-Claim Against Co-Party. (h) Joinder of Additional Parties. (i) Separate Trials; Separate Judgments. 14. Third-Party Practice. (a) When Defendant May Bring in Third Party. (b) When Plaintiff May Bring in Third Party. (c) Admiralty and Maritime Claims. 15. Amended and Supplemental Pleadings. (a) Amendments. (b) Amendments To Conform to the Evidence. (c) Relation Back of Amendments. (d) Supplemental Pleadings. 16. Pretrial Conferences; Scheduling; Management. (a) Pretrial Conferences; Objectives. (b) Scheduling and Planning. (c) Subjects To Be Discussed at Pretrial Conferences. (d) Final Pretrial Conference. (e) Pretrial Orders. (f) Sanctions. IV. PARTIES 17. Parties Plaintiff and Defendant; Capacity. (a) Real Party in Interest. (b) Capacity To Sue or Be Sued. (c) Infants or Incompetent Persons. 18. Joinder of Claims and Remedies. (a) Joinder of Claims. (b) Joinder of Remedies; Fraudulent Conveyances. 19. Joinder of Persons Needed for Just Adjudication. (a) Persons To Be Joined if Feasible. (b) Determination by Court Whenever Joinder Not Feasible. (c) Pleading Reasons for Nonjoinder. (d) Exception of Class Actions. 20. Permissive Joinder of Parties. (a) Permissive Joinder. (b) Separate Trials. 21. Misjoinder and Non-Joinder of Parties. 22. Interpleader. 23. Class Actions. (a) Prerequisites to a Class Action. (b) Class Actions Maintainable. (c) Determination by Order Whether Class Action To Be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions. (d) Orders in Conduct of Actions. (e) Dismissal or Compromise. 23.1. Derivative Actions by Shareholders. 23.2. Actions Relating to Unincorporated Associations. 24. Intervention. (a) Intervention of Right. (b) Permissive Intervention. (c) Procedure. 25. Substitution of Parties. (a) Death. (b) Incompetency. (c) Transfer of Interest. (d) Public Officers; Death or Separation From Office. V. DEPOSITIONS AND DISCOVERY 26. General Provisions Governing Discovery. (a) Discovery Methods. (b) Discovery Scope and Limits. (1) In General. (2) Insurance Agreements. (3) Trial Preparation: Materials. (4) Trial Preparation: Experts. (c) Protective Orders. (d) Sequence and Timing of Discovery. (e) Supplementation of Responses. (f) Discovery Conference. (g) Signing of Discovery Requests, Responses, and Objections. 27. Depositions Before Action or Pending Appeal. (a) Before Action. (1) Petition. (2) Notice and Service. (3) Order and Examination. (4) Use of Deposition. (b) Pending Appeal. (c) Perpetuation by Action. 28. Persons Before Whom Depositions May Be Taken. (a) Within the United States. (b) In Foreign Countries. (c) Disqualification for Interest. 29. Stipulations Regarding Discovery Procedure. 30. Depositions Upon Oral Examination. (a) When Depositions May Be Taken. (b) Notice of Examination: General Requirements; Special Notice; NonStenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. (d) Motion To Terminate or Limit Examination. (e) Submission to Witness; Changes; Signing. (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing. (g) Failure To Attend or To Serve Subpoena; Expenses. 31. Depositions Upon Written Questions. (a) Serving Questions; Notice. (b) Officer To Take Responses and Prepare Record. (c) Notice of Filing. 32. Use of Depositions in Court Proceedings. (a) Use of Depositions. (b) Objections to Admissibility. ((c) Abrogated.) (d) Effect of Errors and Irregularities in Depositions. (1) As to Notice. (2) As to Disqualification of Officer. (3) As to Taking of Deposition. (4) As to Completion and Return of Deposition. 33. Interrogatories to Parties. (a) Availability; Procedures for Use. (b) Scope; Use at Trial. (c) Option To Produce Business Records. 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes. (a) Scope. (b) Procedure. (c) Persons Not Parties. 35. Physical and Mental Examination of Persons. (a) Order for Examination. (b) Report of Examining Physician or Psychologist. (c) Definitions. 36. Requests for Admission. (a) Request for Admission. (b) Effect of Admission. 37. Failure To Make or Cooperate in Discovery: Sanctions. (a) Motion for Order Compelling Discovery. (1) Appropriate Court. (2) Motion. (3) Evasive or Incomplete Answer. (4) Award of Expenses of Motion. (b) Failure To Comply With Order. (1) Sanctions by Court in District Where Deposition Is Taken. (2) Sanctions by Court in Which Action Is Pending. (c) Expenses on Failure To Admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. ((e) Abrogated.) ((f) Repealed.) (g) Failure To Participate in the Framing of a Discovery Plan. VI. TRIALS 38. Jury Trial of Right. (a) Right Preserved. (b) Demand. (c) Same: Specification of Issues. (d) Waiver. (e) Admiralty and Maritime Claims. 39. Trial by Jury or by the Court. (a) By Jury. (b) By the Court. (c) Advisory Jury and Trial by Consent. 40. Assignment of Cases for Trial. 41. Dismissal of Actions. (a) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; by Stipulation. (2) By Order of Court. (b) Involuntary Dismissal: Effect Thereof. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. (d) Costs of Previously-Dismissed Action. 42. Consolidation; Separate Trials. (a) Consolidation. (b) Separate Trials. 43. Taking of Testimony. (a) Form. ((b), (c) Abrogated.) (d) Affirmation in Lieu of Oath. (e) Evidence on Motions. (f) Interpreters. 44. Proof of Official Record. (a) Authentication. (1) Domestic. (2) Foreign. (b) Lack of Record. (c) Other Proof. 44.1. Determination of Foreign Law. 45. Subpoena. (a) For Attendance of Witnesses; Form; Issuance. (b) For Production of Documentary Evidence. (c) Service. (d) Subpoena for Taking Depositions; Place of Examination. (e) Subpoena for a Hearing or Trial. (f) Contempt. 46. Exceptions Unnecessary. 47. Jurors. (a) Examination of Jurors. (b) Alternate Jurors. 48. Juries of Less Than Twelve - Majority Verdict. 49. Special Verdicts and Interrogatories. (a) Special Verdicts. (b) General Verdict Accompanied by Answer to Interrogatories. 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict. (a) Motion for Directed Verdict: When Made; Effect. (b) Motion for Judgment Notwithstanding the Verdict. (c) Same: Conditional Rulings on Grant of Motion. (d) Same: Denial of Motion. 51. Instructions to Jury: Objection. 52. Findings by the Court. (a) Effect. (b) Amendment. 53. Masters. (a) Appointment and Compensation. (b) Reference. (c) Powers. (d) Proceedings. (1) Meetings. (2) Witnesses. (3) Statement of Accounts. (e) Report. (1) Contents and Filing. (2) In Non-Jury Actions. (3) In Jury Actions. (4) Stipulation as to Findings. (5) Draft Report. (f) Application to Magistrate. VII. JUDGMENT 54. Judgments; Costs. (a) Definition; Form. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. (c) Demand for Judgment. (d) Costs. 55. Default. (a) Entry. (b) Judgment. (1) By the Clerk. (2) By the Court. (c) Setting Aside Default. (d) Plaintiffs, Counterclaimants, Cross-Claimants. (e) Judgment Against the United States. 56. Summary Judgment. (a) For Claimant. (b) For Defending Party. (c) Motion and Proceedings Thereon. (d) Case Not Fully Adjudicated on Motion. (e) Form of Affidavits; Further Testimony; Defense Required. (f) When Affidavits Are Unavailable. (g) Affidavits Made in Bad Faith. 57. Declaratory Judgments. 58. Entry of Judgment. 59. New Trials; Amendment of Judgments. (a) Grounds. (b) Time for Motion. (c) Time for Serving Affidavits. (d) On Initiative of Court. (e) Motion To Alter or Amend a Judgment. 60. Relief From Judgment or Order. (a) Clerical Mistakes. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. 61. Harmless Error. 62. Stay of Proceedings To Enforce a Judgment. (a) Automatic Stay; Exceptions - Injunctions, Receiverships, and Patent Accountings. (b) Stay on Motion for New Trial or for Judgment. (c) Injunction Pending Appeal. (d) Stay Upon Appeal. (e) Stay in Favor of the United States or Agency Thereof. (f) Stay According to State Law. (g) Power of Appellate Court Not Limited. (h) Stay of Judgment as to Multiple Claims or Multiple Parties. 63. Disability of a Judge. VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS 64. Seizure of Person or Property. 65. Injunctions. (a) Preliminary Injunction. (1) Notice. (2) Consolidation of Hearing With Trial on Merits. (b) Temporary Restraining Order; Notice; Hearing; Duration. (c) Security. (d) Form and Scope of Injunction or Restraining Order. (e) Employer and Employee; Interpleader; Constitutional Cases. 65.1 Security: Proceedings Against Sureties. 66. Receivers Appointed by Federal Courts. 67. Deposit in Court. 68. Offer of Judgment. 69. Execution. (a) In General. (b) Against Certain Public Officers. 70. Judgment for Specific Acts; Vesting Title. 71. Process in Behalf of and Against Persons Not Parties. 71A. Condemnation of Property. (a) Applicability of Other Rules. (b) Joinder of Properties. (c) Complaint. (1) Caption. (2) Contents. (3) Filing. (d) Process. (1) Notice; Delivery. (2) Same; Form. (3) Service of Notice. (4) Return; Amendment. (e) Appearance or Answer. (f) Amendment of Pleadings. (g) Substitution of Parties. (h) Trial. (i) Dismissal of Action. (1) As of Right. (2) By Stipulation. (3) By Order of the Court. (4) Effect. (j) Deposit and Its Distribution. (k) Condemnation Under a State's Power of Eminent Domain. (l) Costs. 72. Magistrates; Pretrial Matters. (a) Nondispositive Matters. (b) Dispositive Motions and Prisoner Petitions. 73. Magistrates; Trial by Consent and Appeal Options. (a) Powers; Procedure. (b) Consent. (c) Normal Appeal Route. (d) Optional Appeal Route. 74. Method of Appeal From Magistrate to District Judge Under Title 28, U.S.C. Sec. 636(c)(4) and Rule 73(d). (a) When Taken. (b) Notice of Appeal; Service. (c) Stay Pending Appeal. (d) Dismissal. 75. Proceedings on Appeal From Magistrate to District Judge Under Rule 73(d). (a) Applicability. (b) Record on Appeal. (1) Composition. (2) Transcript. (3) Statement in Lieu of Transcript. (c) Time for Filing Briefs. (d) Length and Form of Briefs. (e) Oral Argument. 76. Judgment of the District Judge on the Appeal Under Rule 73(d) and Costs. (a) Entry of Judgment. (b) Stay of Judgments. (c) Costs. (IX. APPEALS) (ABROGATED) X. DISTRICT COURTS AND CLERKS 77. District Courts and Clerks. (a) District Courts Always Open. (b) Trials and Hearings; Orders in Chambers. (c) Clerk's Office and Orders by Clerk. (d) Notice of Orders or Judgments. 78. Motion Day. 79. Books and Records Kept by the Clerk and Entries Therein. (a) Civil Docket. (b) Civil Judgments and Orders. (c) Indices; Calendars. (d) Other Books and Records of the Clerk. 80. Stenographer; Stenographic Report or Transcript as Evidence. ((a), (b) Abrogated.) (c) Stenographic Report or Transcript as Evidence. XI. GENERAL PROVISIONS 81. Applicability in General. (a) To What Proceedings Applicable. (b) Scire Facias and Mandamus. (c) Removed Actions. ((d) Abrogated.) (e) Law Applicable. (f) References to Officer of the United States. 82. Jurisdiction and Venue Unaffected. 83. Rules by District Courts. 84. Forms. 85. Title. 86. Effective Date. (a) (Effective Date of Original Rules.) (b) Effective Date of Amendments. (c) Effective Date of Amendments. (d) Effective Date of Amendments. (e) Effective Date of Amendments. APPENDIX OF FORMS Form 1. Summons. 2. Allegation of Jurisdiction. 3. Complaint on a Promissory Note. 4. Complaint on an Account. 5. Complaint for Goods Sold and Delivered. 6. Complaint for Money Lent. 7. Complaint for Money Paid by Mistake. 8. Complaint for Money Had and Received. 9. Complaint for Negligence. 10. Complaint for Negligence Where Plaintiff Is Unable To Determine Definitely Whether the Person Responsible Is C.D. or E.F. or Whether Both Are Responsible and Where His Evidence May Justify a Finding of Wilfulness or of Recklessness or of Negligence. 11. Complaint for Conversion. 12. Complaint for Specific Performance of Contract To Convey Land. 13. Complaint on Claim for Debt and To Set Aside Fraudulent Conveyance Under Rule 18(b). 14. Complaint for Negligence Under Federal Employer's Liability Act. 15. Complaint for Damages Under Merchant Marine Act. 16. Complaint for Infringement of Patent. 17. Complaint for Infringement of Copyright and Unfair Competition. 18. Complaint for Interpleader and Declaratory Relief. 18-A. Notice and Acknowledgment for Service by Mail. 19. Motion To Dismiss, Presenting Defenses of Failure To State a Claim, of Lack of Service of Process, of Improper Venue, and of Lack of Jurisdiction Under Rule 12(b). 20. Answer Presenting Defenses Under Rule 12(b). 21. Answer to Complaint Set Forth in Form 8, With Counterclaim for Interpleader. (22. Eliminated.) 22-A. Summons and Complaint Against Third-Party Defendant. 22-B. Motion To Bring in Third-Party Defendant. 23. Motion To Intervene as a Defendant under Rule 24. 24. Request for Production of Documents, etc., Under Rule 34. 25. Request for Admission Under Rule 36. 26. Allegation of Reason for Omitting Party. (27. Abrogated.) 28. Notice: Condemnation. 29. Complaint: Condemnation. 30. Suggestion of Death Upon the Record Under Rule 25(a)(1). 31. Judgment on Jury Verdict. 32. Judgment on Decision by the Court. 33. Notice of Right To Consent to the Exercise of Civil Jurisdiction by a Magistrate and Appeal Option. 34. Consent To Proceed Before a United States Magistrate, Election of Appeal to District Judge, and Order of Reference. SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS Rule A. Scope of Rules. B. Attachment and Garnishment: Special Provisions. (1) When Available; Complaint, Affidavit, Judicial Authorization, and Process. (2) Notice to Defendant. (3) Answer. (a) By Garnishee. (b) By Defendant. C. Actions in Rem: Special Provisions. (1) When Available. (2) Complaint. (3) Judicial Authorization and Process. (4) Notice. (5) Ancillary Process. (6) Claim and Answer; Interrogatories. D. Possessory, Petitory, and Partition Actions. E. Actions in Rem and Quasi in Rem: General Provisions. (1) Applicability. (2) Complaint; Security. (a) Complaint. (b) Security for Costs. (3) Process. (a) Territorial Limits of Effective Service. (b) Issuance and Delivery. (4) Execution of Process; Marshal's Return; Custody of Property; Procedures for Release. (a) In General. (b) Tangible Property. (c) Intangible Property. (d) Directions with Respect to Property in Custody. (e) Expenses of Seizing and Keeping Property; Deposit. (f) Procedure for Release from Arrest or Attachment. (5) Release of Property. (a) Special Bond. (b) General Bond. (c) Release by Consent, or Stipulation; Order of Court or Clerk; Costs. (d) Possessory, Petitory, and Partition Actions. (6) Reduction or Impairment of Security. (7) Security on Counterclaim. (8) Restricted Appearance. (9) Disposition of Property; Sales. (a) Actions for Forfeitures. (b) Interlocutory Sales. (c) Sales; Proceeds. F. Limitation of Liability. (1) Time for Filing Complaint; Security. (2) Complaint. (3) Claims Against Owner; Injunction. (4) Notice to Claimants. (5) Claims and Answer. (6) Information To Be Given Claimants. (7) Insufficiency of Fund or Security. (8) Objections to Claims: Distribution of Fund. (9) Venue; Transfer. The Federal Rules of Civil Procedure supplant the Equity Rules since in general they cover the field now covered by the Equity Rules and the Conformity Act (former section 724 of this title). This table shows the Equity Rules to which references are made in the notes to the Federal Rules of Civil Procedure. --------------------------------------------------------------------- Equity Rules Federal Rules of Civil Procedure --------------------------------------------------------------------- 1 77 2 77 3 79 4 77 5 77 6 78 7 4, 70 8 6, 70 9 70 10 18, 54 11 71 12 3, 4, 5, 12, 55 13 4 14 4 15 4, 45 16 6, 55 17 55 18 7, 8 19 1, 15, 61 20 12 21 11, 12 22 1 23 1, 39 24 11 25 8, 9, 10, 19 26 18, 20, 82 27 23 28 15 29 7, 12, 42, 55 30 8, 13, 82 31 7, 8, 12, 55 32 15 33 7, 12 34 15 35 15 36 11 37 17, 19, 20, 24 38 23 39 19 40 20 41 17 42 19, 20 43 12, 21 44 12, 21 45 25 46 43, 61 47 26 48 43 49 53 50 30, 80 51 30, 53 52 45, 53 53 53 54 26 55 30 56 40 57 40 58 26, 33, 34, 36 59 53 60 53 61 53 61 1/2 53 62 53 63 53 64 26 65 53 66 53 67 53 68 53 69 59 70 17 70 1/2 52 71 54 72 60, 61 73 65 74 62 75 75 76 75 77 76 78 43 79 83 80 6 81 86 ------------------------------- RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS ------DocID 37038 Document 900 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE I -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE I -HEAD- I. SCOPE OF RULES - ONE FORM OF ACTION ------DocID 37039 Document 901 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE I -HEAD- Rule 1. Scope of Rules -STATUTE- These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. Rule 81 states certain limitations in the application of these rules to enumerated special proceedings. 2. The expression 'district courts of the United States' appearing in the statute authorizing the Supreme Court of the United States to promulgate rules of civil procedure does not include the district courts held in the Territories and insular possessions. See Mookini et al. v. United States, 303 U.S. 201, 58 S.Ct. 543, 82 L.Ed. 748 (1938). 3. These rules are drawn under the authority of the act of June 19, 1934, U.S.C., Title 28, Sec. 723b (see 2072) (Rules in actions at law; Supreme Court authorized to make), and Sec. 723c (see 2072) (Union of equity and action at law rules; power of Supreme Court) and also other grants of rule making power to the Court. See Clark and Moore, A New Federal Civil Procedure - I. The Background, 44 Yale L.J. 387, 391 (1935). Under Sec. 723b after the rules have taken effect all laws in conflict therewith are of no further force or effect. In accordance with Sec. 723c the Court has united the general rules prescribed for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both. See Rule 2 (One Form of Action). For the former practice in equity and at law see U.S.C., Title 28, Sec. 723 and 730 (see 2071 et seq.) (conferring power on the Supreme Court to make rules of practice in equity) and the (former) Equity Rules promulgated thereunder; U.S.C., Title 28, (former) Sec. 724 (Conformity act): (former) Equity Rule 22 (Action at Law Erroneously Begun as Suit in Equity - Transfer); (former) Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein); U.S.C., Title 28, (former) Sec. 397 (Amendments to pleadings when case brought to wrong side of court), and 398 (Equitable defenses and equitable relief in actions at law). 4. With the second sentence compare U.S.C., Title 28, (former) Sec. 777 (Defects of form; amendments), 767 (Amendment of process); (former) Equity Rule 19 (Amendments Generally). 1948 AMENDMENT The amendment effective Oct. 20, 1949, substituted the words 'United States district courts' for the words 'district courts of the United States'. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT This is the fundamental change necessary to effect unification of the civil and admiralty procedure. Just as the 1938 rules abolished the distinction between actions at law and suits in equity, this change would abolish the distinction between civil actions and suits in admiralty. See also Rule 81. -CROSS- CROSS REFERENCES Jurisdiction and venue as unaffected by these rules, see rule 82. Power of Supreme Court to prescribe rules of procedure and evidence, see section 2072 of this title. Puerto Rico, district court governed by the rules, see section 119 of this title. Virgin Islands, district court governed by the rules, see section 1615 of Title 48, Territories and Insular Possessions. ------DocID 37040 Document 902 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 2 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE I -HEAD- Rule 2. One Form of Action -STATUTE- There shall be one form of action to be known as 'civil action.' -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. This rule modifies U.S.C., Title 28, (former) Sec. 384 (Suits in equity, when not sustainable). U.S.C., Title 28, Sec. 723 and 730 (see 2071 et seq.) (conferring power on the Supreme Court to make rules of practice in equity), are unaffected insofar as they relate to the rule making power in admiralty. These sections, together with Sec. 723b (see 2072) (Rules in actions at law; Supreme Court authorized to make) are continued insofar as they are not inconsistent with Sec. 723c (see 2072) (Union of equity and action at law rules; power of Supreme Court). See Note 3 to Rule 1. U.S.C., Title 28, (former) Sec. 724 (Conformity act), 397 (Amendments to pleadings when case brought to wrong side of court) and 398 (Equitable defenses and equitable relief in actions at law) are superseded. 2. Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules. 3. This rule follows in substance the usual introductory statements to code practices which provide for a single action and mode of procedure, with abolition of forms of action and procedural distinctions. Representative statutes are N.Y. Code 1848 (Laws 1848, ch. 379) Sec. 62; N.Y.C.P.A. (1937) Sec. 8; Calif.Code Civ.Proc. (Deering, 1937) Sec. 307; 2 Minn.Stat. (Mason, 1927) Sec. 9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 153, 255. -CROSS- CROSS REFERENCES Injunctions, see rule 65. Joinder of claims and remedies, see rule 18. Receivers, see rule 66. ------DocID 37041 Document 903 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE II -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE II -HEAD- II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS ------DocID 37042 Document 904 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 3 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE II -HEAD- Rule 3. Commencement of Action -STATUTE- A civil action is commenced by filing a complaint with the court. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. Rule 5(e) defines what constitutes filing with the court. 2. This rule governs the commencement of all actions, including those brought by or against the United States or an officer or agency thereof, regardless of whether service is to be made personally pursuant to Rule 4(d), or otherwise pursuant to Rule 4(e). 3. With this rule compare (former) Equity Rule 12 (Issue of Subpoena - Time for Answer) and the following statutes (and other similar statutes) which provide a similar method for commencing an action: U.S.C., Title 28: Sec. 45 (former) (District courts; practice and procedure in certain cases under interstate commerce laws). Sec. 762 (see 1402) (Petition in suit against United States). Sec. 766 (see 2409) (Partition suits where United States is tenant in common or joint tenant). 4. This rule provides that the first step in an action is the filing of the complaint. Under Rule 4(a) this is to be followed forthwith by issuance of a summons and its delivery to an officer for service. Other rules providing for dismissal for failure to prosecute suggest a method available to attack unreasonable delay in prosecuting an action after it has been commenced. When a Federal or State statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4(a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a question arising. -CROSS- CROSS REFERENCES Filing with the court defined, see rule 5. ------DocID 37043 Document 905 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 4 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE II -HEAD- Rule 4. Process -STATUTE- (a) Summons: Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and a copy of the complaint. Upon request of the plaintiff separate or additional summons shall issue against any defendants. (b) Same: Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of the defendant's failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint. When, under Rule 4(e), service is made pursuant to a statute or rule of court of a state, the summons, or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule. (c) Service. (1) Process, other than a subpoena or a summons and complaint, shall be served by a United States marshal or deputy United States marshal, or by a person specially appointed for that purpose. (2)(A) A summons and complaint shall, except as provided in subparagraphs (B) and (C) of this paragraph, be served by any person who is not a party and is not less than 18 years of age. (B) A summons and complaint shall, at the request of the party seeking service or such party's attorney, be served by a United States marshal or deputy United States marshal, or by a person specially appointed by the court for that purpose, only - (i) on behalf of a party authorized to proceed in forma pauperis pursuant to Title 28, U.S.C. Sec. 1915, or of a seaman authorized to proceed under Title 28, U.S.C. Sec. 1916, (ii) on behalf of the United States or an officer or agency of the United States, or (iii) pursuant to an order issued by the court stating that a United States marshal or deputy United States marshal, or a person specially appointed for that purpose, is required to serve the summons and complaint in order that service be properly effected in that particular action. (C) A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (3) of subdivision (d) of this rule - (i) pursuant to the law of the State in which the district court is held for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State, or (ii) by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3). (D) Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons. (E) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation. (3) The court shall freely make special appointments to serve summonses and complaints under paragraph (2)(B) of this subdivision of this rule and all other process under paragraph (1) of this subdivision of this rule. (d) Summons and Complaint: Person To Be Served. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: (1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (2) Upon an infant or an incompetent person, by serving the summons and complaint in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. (3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. (4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency. (5) Upon an officer or agency of the United States, by serving the United States and by sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule. (6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. (e) Summons: Service Upon Party Not Inhabitant of or Found Within State. Whenever a statute of the United States or an order of court thereunder provides for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule. Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, or (2) for service upon or notice to such a party to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the party's property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule. (f) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state. In addition, persons who are brought in as parties pursuant to Rule 14, or as additional parties to a pending action or a counterclaim or cross-claim therein pursuant to Rule 19, may be served in the manner stated in paragraphs (1)-(6) of subdivision (d) of this rule at all places outside the state but within the United States that are not more than 100 miles from the place in which the action is commenced, or to which it is assigned or transferred for trial; and persons required to respond to an order of commitment for civil contempt may be served at the same places. A subpoena may be served within the territorial limits provided in Rule 45. (g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States marshal or deputy United States marshal, such person shall make affidavit thereof. If service is made under subdivision (c)(2)(C)(ii) of this rule, return shall be made by the sender's filing with the court the acknowledgment received pursuant to such subdivision. Failure to make proof of service does not affect the validity of the service. (h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. (i) Alternative Provisions for Service in a Foreign Country. (1) Manner. When the federal or state law referred to in subdivision (e) of this rule authorizes service upon a party not an inhabitant of or found within the state in which the district court is held, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the district court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. (2) Return. Proof of service may be made as prescribed by subdivision (g) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. (j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Jan. 12, 1983, Pub. L. 97-462, Sec. 2, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). With the provision permitting additional summons upon request of the plaintiff compare (former) Equity Rule 14 (Alias Subpoena) and the last sentence of (former) Equity Rule 12 (Issue of Subpoena - Time for Answer). Note to Subdivision (b). This rule prescribes a form of summons which follows substantially the requirements stated in (former) Equity Rules 12 (Issue of Subpoena - Time for Answer) and 7 (Process, Mesne and Final). U.S.C., Title 28, Sec. 721 (now 1691) (Sealing and testing of writs) is substantially continued insofar as it applies to a summons, but its requirements as to teste of process are superseded. U.S.C., Title 28, (former) Sec. 722 (Teste of process, day of), is superseded. See Rule 12(a) for a statement of the time within which the defendant is required to appear and defend. Note to Subdivision (c). This rule does not affect U.S.C., Title 28, Sec. 503 (see 566), as amended June 15, 1935 (Marshals; duties) and such statutes as the following insofar as they provide for service of process by a marshal, but modifies them insofar as they may imply service by a marshal only: U.S.C., Title 15: Sec. 5 (Bringing in additional parties) (Sherman Act) Sec. 10 (Bringing in additional parties) Sec. 25 (Restraining violations; procedure) U.S.C., Title 28: Sec. 45 (former) (Practice and procedure in certain cases under the interstate commerce laws) Compare (former) Equity Rule 15 (Process, by Whom Served). Note to Subdivision (d). Under this rule the complaint must always be served with the summons. Paragraph (1). For an example of a statute providing for service upon an agent of an individual see U.S.C., Title 28, Sec. 109 (now 1400, 1694) (Patent cases). Paragraph (3). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the officers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. See Christian v. International Ass'n of Machinists, 7 F.(2d) 481 (D.C.Ky., 1925) and Singleton v. Order of Railway Conductors of America, 9 F.Supp. 417 (D.C.Ill., 1935). Compare Operative Plasterers' and Cement Finishers' International Ass'n of the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C., 1937). For a statute authorizing service upon a specified agent and requiring mailing to the defendant, see U.S.C., Title 6, Sec. 7 (now Title 31, Sec. 9306) (Surety companies as sureties; appointment of agents; service of process). Paragraphs (4) and (5) provide a uniform and comprehensive method of service for all actions against the United States or an officer or agency thereof. For statutes providing for such service, see U.S.C., Title 7, Sec. 217 (Proceedings for suspension of orders), 499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission), 608c(15)(B) (Court review of ruling of Secretary of Agriculture), and 855 (making Sec. 608c(15)(B) applicable to orders of the Secretary of Agriculture as to handlers of anti-hog-cholera serum and hog-cholera virus); U.S.C., Title 26, (former) Sec. 1569 (Bill in chancery to clear title to realty on which the United States has a lien for taxes); U.S.C., Title 28, (former) Sec. 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws), (former) 763 (Petition in suit against the United States; service; appearance by district attorney), 766 (now 2409) (Partition suits where United States is tenant in common or joint tenant), 902 (now 2410) (Foreclosure of mortgages or other liens on property in which the United States has an interest). These and similar statutes are modified insofar as they prescribe a different method of service or dispense with the service of a summons. For the (former) Equity Rule on service, see (former) Equity Rule 13 (Manner of Serving Subpoena). Note to Subdivision (e). The provisions for the service of a summons or of notice or of an order in lieu of summons contained in U.S.C., Title 8, Sec. 405 (see 1451) (Cancellation of certificates of citizenship fraudulently or illegally procured) (service by publication in accordance with State law); U.S.C., Title 28, Sec. 118 (now 1655) (Absent defendants in suits to enforce liens); U.S.C., Title 35, Sec. 72a (now 146, 291) (Jurisdiction of District Court of United States for the District of Columbia in certain equity suits where adverse parties reside elsewhere) (service by publication against parties residing in foreign countries); U.S.C., Title 38, Sec. 445 (now 784) (Action against the United States on a veteran's contract of insurance) (parties not inhabitants of or not found within the District may be served with an order of the court, personally or by publication) and similar statutes are continued by this rule. Title 24, Sec. 378 (now Title 13, Sec. 336) of the Code of the District of Columbia (Publication against nonresident; those absent for six months; unknown heirs or devisees; for divorce or in rem; actual service beyond District) is continued by this rule. Note to Subdivision (f). This rule enlarges to some extent the present rule as to where service may be made. It does not, however, enlarge the jurisdiction of the district courts. U.S.C., Title 28, Sec. 113 (now 1392) (Suits in States containing more than one district) (where there are two or more defendants residing in different districts), (former) 115 (Suits of a local nature), 116 (now 1392) (Property in different districts in same State), (former) 838 (Executions run in all districts of State); U.S.C., Title 47, Sec. 13 (Action for damages against a railroad or telegraph company whose officer or agent in control of a telegraph line refuses or fails to operate such line in a certain manner - 'upon any agent of the company found in such state'); U.S.C., Title 49, Sec. 321(c) (now 10330(b)) (Requiring designation of a process agent by interstate motor carriers and in case of failure so to do, service may be made upon any agent in the State) and similar statutes, allowing the running of process throughout a State, are substantially continued. U.S.C., Title 15, Sec. 5 (Bringing in additional parties) (Sherman Act), 25 (Restraining violations; procedure); U.S.C., Title 28, Sec. 44 (now 2321) (Procedure in certain cases under interstate commerce laws; service of processes of court), 117 (now 754, 1692) (Property in different States in same circuit; jurisdiction of receiver), 839 (now 2413) (Executions; run in every State and Territory) and similar statutes, providing for the running of process beyond the territorial limits of a State, are expressly continued. Note to Subdivision (g). With the second sentence compare (former) Equity Rule 15 (Process, by Whom Served). Note to Subdivision (h). This rule substantially continues U.S.C., Title 28, (former) Sec. 767 (Amendment of process). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (b). Under amended subdivision (e) of this rule, an action may be commenced against a nonresident of the State in which the district court is held by complying with State procedures. Frequently the form of the summons or notice required in these cases by State law differs from the Federal form of summons described in present subdivision (b) and exemplified in Form 1. To avoid confusion, the amendment of subdivision (b) states that a form of summons or notice, corresponding 'as nearly as may be' to the State form, shall be employed. See also a corresponding amendment of Rule 12(a) with regard to the time to answer. Subdivision (d)(4). This paragraph, governing service upon the United States, is amended to allow the use of certified mail as an alternative to registered mail for sending copies of the papers to the Attorney General or to a United States officer or agency. Cf. N.J. Rule 4:5-2. See also the amendment of Rule 30(f)(1). Subdivision (d)(7). Formerly a question was raised whether this paragraph, in the context of the rule as a whole, authorized service in original Federal actions pursuant to State statutes permitting service on a State official as a means of bringing a nonresident motorist defendant into court. It was argued in McCoy v. Siler, 205 F.2d 498, 501-2 (3d Cir.) (concurring opinion), cert. denied, 346 U.S. 872, 74 S.Ct. 120, 98 L.Ed. 380 (1953), that the effective service in those cases occurred not when the State official was served but when notice was given to the defendant outside the State, and that subdivision (f) (Territorial limits of effective service), as then worded, did not authorize out-of-State service. This contention found little support. A considerable number of cases held the service to be good, either by fixing upon the service on the official within the State as the effective service, thus satisfying the wording of subdivision (f) as it then stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D.Md. 1955); Pasternack v. Dalo, 17 F.R.D. 420; (W.D.Pa. 1955); cf. Super Prods. Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading paragraph (7) as not limited by subdivision (f). See Griffin v. Ensign, 234 F.2d 307 (3d Cir. 1956); 2 Moore's Federal Practice, 4.19 (2d ed. 1948); 1 Barron & Holtzoff, Federal Practice & Procedure Sec. 182.1 (Wright ed. 1960); Comment, 27 U. of Chi.L.Rev. 751 (1960). See also Olberding v. Illinois Central R.R., 201 F.2d 582 (6th Cir.), rev'd on other grounds, 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); Feinsinger v. Bard, 195 F.2d 45 (7th Cir. 1952). An important and growing class of State statutes base personal jurisdiction over nonresidents on the doing of acts or on other contacts within the State, and permit notice to be given the defendant outside the State without any requirement of service on a local State official. See, e.g., Ill.Ann.Stat. ch. 110, Sec. 16, 17 (Smith-Hurd 1956); Wis.Stat. Sec. 262.06 (1959). This service, employed in original Federal actions pursuant to paragraph (7), has also been held proper. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, 243 F.2d 342 (2d Cir. 1957); Kappus v. Western Hills Oil, Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star v. Rogalny, 162 F.Supp. 181 (E.D.Ill. 1957). It has also been held that the clause of paragraph (7) which permits service 'in the manner prescribed by the law of the state,' etc., is not limited by subdivision (c) requiring that service of all process be made by certain designated persons. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, supra. But cf. Sappia v. Lauro Lines, 130 F.Supp. 810 (S.D.N.Y. 1955). The salutary results of these cases are intended to be preserved. See paragraph (7), with a clarified reference to State law, and amended subdivisions (e) and (f). Subdivision (e). For the general relation between subdivisions (d) and (e), see 2 Moore, supra, 4.32. The amendment of the first sentence inserting the word 'thereunder' supports the original intention that the 'order of court' must be authorized by a specific United States statute. See 1 Barron & Holtzoff, supra, at 731. The clause added at the end of the first sentence expressly adopts the view taken by commentators that, if no manner of service is prescribed in the statute or order, the service may be made in a manner stated in Rule 4. See 2 Moore, supra, 4.32, at 1004; Smit, International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1036-39 (1961). But see Commentary, 5 Fed. Rules Serv. 791 (1942). Examples of the statutes to which the first sentence relates are 28 U.S.C. Sec. 2361 (Interpleader; process and procedure); 28 U.S.C. Sec. 1655 (Lien enforcement; absent defendants). The second sentence, added by amendment, expressly allows resort in original Federal actions to the procedures provided by State law for effecting service on nonresident parties (as well as on domiciliaries not found within the State). See, as illustrative, the discussion under amended subdivision (d)(7) of service pursuant to State nonresident motorist statutes and other comparable State statutes. Of particular interest is the change brought about by the reference in this sentence to State procedures for commencing actions against nonresidents by attachment and the like, accompanied by notice. Although an action commenced in a State court by attachment may be removed to the Federal court if ordinary conditions for removal are satisfied, see 28 U.S.C. Sec. 1450; Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83 L.Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51 L.Ed. 138 (1906), there has heretofore been no provision recognized by the courts for commencing an original Federal civil action by attachment. See Currie, Attachment and Garnishment in the Federal Courts, 59 Mich.L.Rev. 337 (1961), arguing that this result came about through historical anomaly. Rule 64, which refers to attachment, garnishment, and similar procedures under State law, furnishes only provisional remedies in actions otherwise validly commenced. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir. 1944); 7 Moore's Federal Practice 64.05 (2d ed. 1954); 3 Barron & Holtzoff, Federal Practice & Procedure Sec. 1423 (Wright ed. 1958); but cf. Note, 13 So.Calif.L.Rev. 361 (1940). The amendment will now permit the institution of original Federal actions against nonresidents through the use of familiar State procedures by which property of these defendants is brought within the custody of the court and some appropriate service is made up them. The necessity of satisfying subject-matter jurisdictional requirements and requirements of venue will limit the practical utilization of these methods of effecting service. Within those limits, however, there appears to be no reason for denying plaintiffs means of commencing actions in Federal courts which are generally available in the State courts. See 1 Barron & Holtzoff, supra, at 374-80; Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. 105, 106 (1956); Note, 34 Corn.L.Q. 103 (1948); Note, 13 So.Calif.L.Rev. 361 (1940). If the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e), as amended) and the applicable State law (second sentence), the party seeking to make the service may proceed under the Federal or the State law, at his option. See also amended Rule 13(a), and the Advisory Committee's Note thereto. Subdivision (f). The first sentence is amended to assure the effectiveness of service outside the territorial limits of the State in all the cases in which any of the rules authorize service beyond those boundaries. Besides the preceding provisions of Rule 4, see Rule 71A(d)(3). In addition, the new second sentence of the subdivision permits effective service within a limited area outside the State in certain special situations, namely, to bring in additional parties to a counterclaim or cross-claim (Rule 13(h)), impleaded parties (Rule 14), and indispensable or conditionally necessary parties to a pending action (Rule 19); and to secure compliance with an order of commitment for civil contempt. In those situations effective service can be made at points not more than 100 miles distant from the courthouse in which the action is commenced, or to which it is assigned or transferred for trial. The bringing in of parties under the 100-mile provision in the limited situations enumerated is designed to promote the objective of enabling the court to determine entire controversies. In the light of present-day facilities for communication and travel, the territorial range of the service allowed, analogous to that which applies to the service of a subpoena under Rule 45(e)(1), can hardly work hardship on the parties summoned. The provision will be especially useful in metropolitan areas spanning more than one State. Any requirements of subject-matter jurisdiction and venue will still have to be satisfied as to the parties brought in, although these requirements will be eased in some instances when the parties can be regarded as 'ancillary.' See Pennsylvania R.R. v. Erie Avenue Warehouse Co., 5 F.R.Serv.2d 14a.62, Case 2 (3d Cir. 1962); Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959); United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2d Cir. 1955); Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir. 1944); Vaughn v. Terminal Transp. Co., 162 F.Supp. 647 (E.D.Tenn. 1957); and compare the fifth paragraph of the Advisory Committee's Note to Rule 4(e), as amended. The amendment is but a moderate extension of the territorial reach of Federal process and has ample practical justification. See 2 Moore, supra. Sec. 4.01(13) (Supp. 1960); 1 Barron & Holtzoff, supra, Sec. 184; Note, 51 Nw.U.L.Rev. 354 (1956). But cf. Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. 105, 106 (1956). As to the need for enlarging the territorial area in which orders of commitment for civil contempt may be served, see Graber v. Graber, 93 F.Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine Tree Products Co., Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v. Dexter, 244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60 (N.D. Iowa 1886). As to the Court's power to amend subdivisions (e) and (f) as here set forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946). Subdivision (i). The continual increase of civil litigation having international elements makes it advisable to consolidate, amplify, and clarify the provisions governing service upon parties in foreign countries. See generally Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515 (1953); Longley, Serving Process, Subpoenas and Other Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34 (1959); Smit, International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031 (1961). As indicated in the opening lines of new subdivision (i), referring to the provisions of subdivision (e), the authority for effecting foreign service must be found in a statute of the United States or a statute or rule of court of the State in which the district court is held providing in terms or upon proper interpretation for service abroad upon persons not inhabitants of or found within the State. See the Advisory Committee's Note to amended Rule 4(d)(7) and Rule 4(e). For examples of Federal and State statutes expressly authorizing such service, see 8 U.S.C. Sec. 1451(b); 35 U.S.C. Sec. 146, 293; Me.Rev.Stat., ch. 22, Sec. 70 (Supp. 1961); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Veh. & Tfc.Law Sec. 253. Several decisions have construed statutes to permit service in foreign countries, although the matter is not expressly mentioned in the statutes. See, e.g., Chapman v. Superior Court, 162 Cal.App.2d 421, 328 P.2d 23 (Dist.Ct.App. 1958); Sperry v. Fliegers, 194 Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951); Rushing v. Bush, 260 S.W.2d 900 (Tex.Ct.Civ.App. 1953). Federal and State statutes authorizing service on nonresidents in such terms as to warrant the interpretation that service abroad is permissible include 15 U.S.C. Sec. 77v(a), 78aa, 79y; 28 U.S.C. Sec. 1655; 38 U.S.C. Sec. 784(a); Ill.Ann.Stat. ch. 110, Sec. 16, 17 (Smith-Hurd 1956); Wis.Stat. Sec. 262.06 (1959). Under subdivisions (e) and (i), when authority to make foreign service is found in a Federal statute or statute or rule of court of a State, it is always sufficient to carry out the service in the manner indicated therein. Subdivision (i) introduces considerable further flexibility by permitting the foreign service and return thereof to be carried out in any of a number of other alternative ways that are also declared to be sufficient. Other aspects of foreign service continue to be governed by the other provisions of Rule 4. Thus, for example, subdivision (i) effects no change in the form of the summons, or the issuance of separate or additional summons, or the amendment of service. Service of process beyond the territorial limits of the United States may involve difficulties not encountered in the case of domestic service. Service abroad may be considered by a foreign country to require the performance of judicial, and therefore 'sovereign,' acts within its territory, which that country may conceive to be offensive to its policy or contrary to its law. See Jones, supra, at 537. For example, a person not qualified to serve process according to the law of the foreign country may find himself subject to sanctions if he attempts service therein. See Inter-American Judicial Committee, Report on Uniformity of Legislation on International Cooperation in Judicial Procedures 20 (1952). The enforcement of a judgment in the foreign country in which the service was made may be embarrassed or prevented if the service did not comport with the law of that country. See ibid. One of the purposes of subdivision (i) is to allow accommodation to the policies and procedures of the foreign country. It is emphasized, however, that the attitudes of foreign countries vary considerably and that the question of recognition of United States judgments abroad is complex. Accordingly, if enforcement is to be sought in the country of service, the foreign law should be examined before a choice is made among the methods of service allowed by subdivision (i). Subdivision (i)(1). Subparagraph (a) of paragraph (1), permitting service by the method prescribed by the law of the foreign country for service on a person in that country in a civil action in any of its courts of general jurisdiction, provides an alternative that is likely to create least objection in the place of service and also is likely to enhance the possibilities of securing ultimate enforcement of the judgment abroad. See Report on Uniformity of Legislation on International Cooperation in Judicial Procedures, supra. In certain foreign countries service in aid of litigation pending in other countries can lawfully be accomplished only upon request to the foreign court, which in turn directs the service to be made. In many countries this has long been a customary way of accomplishing the service. See In re Letters Rogatory out of First Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones, supra, at 543; Comment, 44 Colum.L.Rev. 72 (1944); Note, 58 Yale L.J. 1193 (1949). Subparagraph (B) of paragraph (1), referring to a letter rogatory, validates this method. A proviso, applicable to this subparagraph and the preceding one, requires, as a safeguard, that the service made shall be reasonably calculated to give actual notice of the proceedings to the party. See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940). Subparagraph (C) of paragraph (1), permitting foreign service by personal delivery on individuals and corporations, partnerships, and associations, provides for a manner of service that is not only traditionally preferred, but also is most likely to lead to actual notice. Explicit provision for this manner of service was thought desirable because a number of Federal and State statutes permitting foreign service do not specifically provide for service by personal delivery abroad, see e.g., 35 U.S.C. Sec. 146, 293; 46 U.S.C. Sec. 1292; Calif.Ins.Code Sec. 1612; N.Y.Veh. & Tfc.Law Sec. 253, and it also may be unavailable under the law of the country in which the service is made. Subparagraph (D) of paragraph (1), permitting service by certain types of mail, affords a manner of service that is inexpensive and expeditious, and requires a minimum of activity within the foreign country. Several statutes specifically provide for service in a foreign country by mail, e.g., Hawaii Rev.Laws Sec. 230-31, 230-32 (1955); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Civ.Prac.Act, Sec. 229-b; N.Y.Veh. & Tfc.Law Sec. 253, and it has been sanctioned by the courts even in the absence of statutory provision specifying that form of service. Zurini v. United States, 189 F.2d 722 (8th Cir. 1951); United States v. Cardillo, 135 F.Supp. 798 (W.D.Pa. 1955); Autogiro Co. v. Kay Gyroplanes, Ltd., 55 F.Supp. 919 (D.D.C. 1944). Since the reliability of postal service may vary from country to country, service by mail is proper only when it is addressed to the party to be served and a form of mail requiring a signed receipt is used. An additional safeguard is provided by the requirement that the mailing be attended to be the clerk of the court. See also the provisions of paragraph (2) of this subdivision (i) regarding proof of service by mail. Under the applicable law it may be necessary, when the defendant is an infant or incompetent person, to deliver the summons and complaint to a guardian, committee, or similar fiduciary. In such a case it would be advisable to make service under subparagraph (A), (B), or (E). Subparagraph (E) of paragraph (1) adds flexibility by permitting the court by order to tailor the manner of service to fit the necessities of a particular case or the peculiar requirements of the law of the country in which the service is to be made. A similar provision appears in a number of statutes, e.g., 35 U.S.C. Sec. 146, 293; 38 U.S.C. Sec. 784(a); 46 U.S.C. Sec. 1292. The next-to-last sentence of paragraph (1) permits service under (C) and (E) to be made by any person who is not a party and is not less than 18 years of age or who is designated by court order or by the foreign court. Cf. Rule 45(c); N.Y.Civ.Prac.Act Sec. 233, 235. This alternative increases the possibility that the plaintiff will be able to find a process server who can proceed unimpeded in the foreign country; it also may improve the chances of enforcing the judgment in the country of service. Especially is the alternative valuable when authority for the foreign service is found in a statute or rule of court that limits the group of eligible process servers to designated officials or special appointees who, because directly connected with another 'sovereign,' may be particularly offensive to the foreign country. See generally Smit, supra, at 1040-41. When recourse is had to subparagraph (A) or (B) the identity of the process server always will be determined by the law of the foreign country in which the service is made. The last sentence of paragraph (1) sets forth an alternative manner for the issuance and transmission of the summons for service. After obtaining the summons from the clerk, the plaintiff must ascertain the best manner of delivering the summons and complaint to the person, court, or officer who will make the service. Thus the clerk is not burdened with the task of determining who is permitted to serve process under the law of a particular country or the appropriate governmental or nongovernmental channel for forwarding a letter rogatory. Under (D), however, the papers must always be posted by the clerk. Subdivision (i)(2). When service is made in a foreign country, paragraph (2) permits methods for proof of service in addition to those prescribed by subdivision (g). Proof of service in accordance with the law of the foreign country is permitted because foreign process servers, unaccustomed to the form or the requirement of return of service prevalent in the United States, have on occasion been unwilling to execute the affidavit required by Rule 4(g). See Jones, supra, at 537; Longley, supra, at 35. As a corollary of the alternate manner of service in subdivision (i)(1)(E), proof of service as directed by order of the court is permitted. The special provision for proof of service by mail is intended as an additional safeguard when that method is used. On the type of evidence of delivery that may be satisfactory to a court in lieu of a signed receipt, see Aero Associates, Inc. v. La Metropolitana, 183 F.Supp. 357 (S.D.N.Y. 1960). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The wording of Rule 4(f) is changed to accord with the amendment of Rule 13(h) referring to Rule 19 as amended. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (a). This is a technical amendment to conform this subdivision with the amendment of subdivision (c). Subdivision (c). The purpose of this amendment is to authorize service of process to be made by any person who is authorized to make service in actions in the courts of general jurisdiction of the state in which the district court is held or in which service is made. There is a troublesome ambiguity in Rule 4. Rule 4(c) directs that all process is to be served by the marshal, by his deputy, or by a person specially appointed by the court. But Rule 4(d)(7) authorizes service in certain cases 'in the manner prescribed by the law of the state in which the district court is held. . . .' And Rule 4(e), which authorizes service beyond the state and service in quasi in rem cases when state law permits such service, directs that 'service may be made . . . under the circumstances and in the manner prescribed in the (state) statute or rule.' State statutes and rules of the kind referred to in Rule 4(d)(7) and Rule 4(e) commonly designate the persons who are to make the service provided for, e.g., a sheriff or a plaintiff. When that is so, may the persons so designated by state law make service, or is service in all cases to be made by a marshal or by one specially appointed under present Rule 4(c)? The commentators have noted the ambiguity and have suggested the desirability of an amendment. See 2 Moore's Federal Practice 4.08 (1974); Wright & Miller, Federal Practice and Procedure: Civil Sec. 1092 (1969). And the ambiguity has given rise to unfortunate results. See United States for the use of Tanos v. St. Paul Mercury Ins. Co., 361 F. 2d 838 (5th Cir. 1966); Veeck v. Commodity Enterprises, Inc., 487 F. 2d 423 (9th Cir. 1973). The ambiguity can be resolved by specific amendments to Rules 4(d)(7) and 4(e), but the Committee is of the view that there is no reason why Rule 4(c) should not generally authorize service of process in all cases by anyone authorized to make service in the courts of general jurisdiction of the state in which the district court is held or in which service is made. The marshal continues to be the obvious, always effective officer for service of process. LEGISLATIVE STATEMENT - 1983 AMENDMENT 128 CONGRESSIONAL RECORD H9848, DEC. 15, 1982 Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory and I brought before the House a bill to delay the effective date of proposed changes in rule 4 of the Federal Rules of Civil Procedure, dealing with service of process. The Congress enacted that legislation and delayed the effective date so that we could cure certain problems in the proposed amendments to rule 4. Since that time, Mr. McClory and I introduced a bill, H.R. 7154, that cures those problems. It was drafted in consultation with representatives of the Department of Justice, the Judicial Conference of the United States, and others. The Department of Justice and the Judicial Conference have endorsed the bill and have urged its prompt enactment. Indeed, the Department of Justice has indicated that the changes occasioned by the bill will facilitate its collection of debts owned to the Government. I have a letter from the Office of Legislative Affairs of the Department of Justice supporting the bill that I will submit for the Record. Also, I am submitting for the Record a section-by-section analysis of the bill. H.R. 7154 makes much needed changes in rule 4 of the Federal Rules of Civil Procedure and is supported by all interested parties. I urge my colleagues to support it. U.S. Department of Justice. Office of Legislative Affairs, Washington, D.C., December 10, 1982. Hon. Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, D.C. Dear Mr. Chairman: This is to proffer the views of the Department of Justice on H.R. 7154, the proposed Federal Rules of Civil Procedure Amendments Act of 1982. While the agenda is extremely tight and we appreciate that fact, we do reiterate that this Department strongly endorses the enactment of H.R. 7154. We would greatly appreciate your watching for any possible way to enact this legislation expeditiously. H.R. 7154 would amend Rule 4 of the Federal Rules of Civil Procedure to relieve effectively the United States Marshals Service of the duty of routinely serving summonses and complaints for private parties in civil actions and would thus achieve a goal this Department has long sought. Experience has shown that the Marshals Service's increasing workload and limited budget require such major relief from the burdens imposed by its role as process-server in all civil actions. The bill would also amend Rule 4 to permit certain classes of defendants to be served by first class mail with a notice and acknowledgment of receipt form enclosed. We have previously expressed a preference for the service-by-mail provisions of the proposed amendments to Rule 4 which the Supreme Court transmitted to Congress on April 28, 1982. The amendments proposed by the Supreme Court would permit service by registered or certified mail, return receipt requested. We had regarded the Supreme Court proposal as the more efficient because it would not require and affirmative act of signing and mailing on the part of a defendant. Moreover, the Supreme Court proposal would permit the entry of a default judgment if the record contained a returned receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant and subsequent service and notice by first class mail. However, critics of that system of mail service have argued that certified mail is not an effective method of providing actual notice to defendants of claims against them because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been 'unclaimed' or 'refused,' the latter providing the sole basis for a default judgment. As you know, in light of these criticisms the Congress enacted Public Law 97-227 (H.R. 6663) postponing the effective date of the proposed amendments to Rule 4 until October 1, 1983, so as to facilitate further review of the problem. This Department opposed the delay in the effective date, primarily because the Supreme Court's proposed amendments also contained urgently needed provisions designed to relieve the United States Marshals of the burden of serving summonses and complaints in private civil actions. In our view, these necessary relief provisions are readily separable from the issues of service by certified mail and the propriety of default judgment after service by certified mail which the Congress felt warranted additional review. During the floor consideration of H.R. 6663 Congressman Edwards and other proponents of the delayed effective date pledged to expedite the review of the proposed amendments to Rule 4, given the need to provide prompt relief for the Marshals Service in the service of process area. In this spirit Judiciary Committee staff consulted with representatives of this Department, the Judicial Conference, and others who had voiced concern about the proposed amendments. H.R. 7154 is the product of those consultations and accommodated the concerns of the Department in a very workable and acceptable manner. Accordingly, we are satisfied that the provisions of H.R. 7154 merit the support of all three branches of the Federal Government and everyone else who has a stake in the fair and efficient service of process in civil actions. We urge prompt consideration of H.R. 7154 by the Committee. (FOOTNOTE 1) The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely, Robert A. McConnell, Assistant Attorney General. XXXXXXX (FOOTNOTE 1) In addition to amending Rule 4, we have previously recommended: (a) amendments to 28 U.S.C. Sec. 569(b) redefining the Marshals traditional role by eliminating the statutory requirement that they serve subpoenas, as well as summonses and complaints, and; (b) amendments to 28 U.S.C. Sec. 1921 changing the manner and level in which marshal fees are charged for serving private civil process. These legislative changes are embodied in Section 10 of S. 2567 and the Department's proposed fiscal year 1983 Appropriations Authorization bill. If, in the Committee's judgment, efforts to incorporate these suggested amendments in H.R. 7154 would in any way impede consideration of the bill during the few remaining legislative days in the 97th Congress, we would urge that they be separately considered early in the 98th Congress. H.R. 7154 - FEDERAL RULES OF CIVIL PROCEDURE AMENDMENTS ACT OF 1982 BACKGROUND The Federal Rules of Civil Procedure set forth the procedures to be followed in civil actions and proceedings in United States district courts. These rules are usually amended by a process established by 28 U.S.C. 2072, often referred to as the 'Rules Enabling Act'. The Rules Enabling Act provides that the Supreme Court can propose new rules of 'practice and procedure' and amendments to existing rules by transmitting them to Congress after the start of a regular session but not later than May 1. The rules and amendments so proposed take effect 90 days after transmittal unless legislation to the contrary is enacted. (FOOTNOTE 1) On April 28, 1982, the Supreme Court transmitted to Congress several proposed amendments to the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure (which govern criminal cases and proceedings in Federal courts), and the Rules and Forms Governing Proceedings in the United States District Courts under sections 2254 and 2255 of Title 28, United States Code (which govern habeas corpus proceedings). These amendments were to have taken effect on August 1, 1982. The amendments to Rule 4 of the Federal Rules of Civil Procedure were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). The Committee received numerous complaints that the changes not only failed to achieve that goal, but that in the process the changes saddled litigators with flawed mail service, deprived litigants of the use of effective local procedures for service, and created a time limit for service replete with ambiguities that could only be resolved by costly litigation. See House Report No. 97-662, at 2-4 (1982). In order to consider these criticisms, Congress enacted Public Law 97-227, postponing the effective date of the proposed amendments to Rule 4 until October 1, 1983. (FOOTNOTE 2) Accordingly, in order to help shape the policy behind, and the form of, the proposed amendments, Congress must enact legislation before October 1, 1983. (FOOTNOTE 3) With that deadline and purpose in mind, consultations were held with representatives of the Judicial Conference, the Department of Justice, and others who had voiced concern about the proposed amendments. H.R. 7154 is the product of those consultations. The bill seeks to effectuate the policy of relieving the Marshals Service of the duty of routinely serving summonses and complaints. It provides a system of service by mail modeled upon a system found to be effective in California, and finally, it makes appropriate stylistic, grammatical, and other changes in Rule 4. NEED FOR THE LEGISLATION 1. CURRENT RULE 4 Rule 4 of the Federal Rules of Civil Procedure relates to the issuance and service of process. Subsection (c) authorizes service of process by personnel of the Marshals Service, by a person specially appointed by the Court, or 'by a person authorized to serve process in an action brought in the courts of general jurisdiction of the state in which the district court is held or in which service is made.' Subsection (d) describes how a summons and complaint must be served and designates those persons who must be served in cases involving specified categories of defendants. Mail service is not directly authorized. Subsection (d)(7), however, authorizes service under the law of the state in which the district court sits upon defendants described in subsections (d)(1) (certain individuals) and (d)(3) (organizations). Thus, if state law authorizes service by mail of a summons and complaint upon an individual or organization described in subsections (d)(1) or (3), then subsection (d)(7) authorizes service by mail for United States district courts in that state. (FOOTNOTE 4) 2. REDUCING THE ROLE OF MARSHALS The Supreme Court's proposed modifications of Rule 4 were designed to alleviate the burden on the Marshals Service of serving summonses and complaints in private civil actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). While the Committee received no complaints about the goal of reducing the role of the Marshals Service, the Court's proposals simply failed to achieve that goal. See House Report No. 97-662, at 2-3 (1982). The Court's proposed Rule 4(c)(2)(B) required the Marshals Service to serve summonses and complaints 'pursuant to any statutory provision expressly providing for service by a United States Marshal or his deputy.' (FOOTNOTE 5) One such statutory provision is 28 U.S.C. 569(b), which compels marshals to 'execute all lawful writs, process and orders issued under authority of the United States, including those of the courts * * *.' (emphasis added). Thus, any party could have invoked 28 U.S.C. 569(b) to utilize a marshal for service of a summons and complaint, thereby thwarting the intent of the new subsection to limit the use of marshals. The Justice Department acknowledges that the proposed subsection did not accomplish its objectives. (FOOTNOTE 6) Had 28 U.S.C. 569(b) been inconsistent with proposed Rule 4(c)(2)(B), the latter would have nullified the former under 28 U.S.C. 2072, which provides that 'All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.' Since proposed Rule 4(c)(2)(B) specifically referred to statutes such as 28 U.S.C. 569(b), however, the new subsection did not conflict with 28 U.S.C. 569(b) and did not, therefore, supersede it. H.R. 7154 cures this problem and achieves the desired reduction in the role of the Marshals Service by authorizing marshals to serve summonses and complaints 'on behalf of the United States'. By so doing, H.R. 7154 eliminates the loophole in the Court's proposed language and still provides for service by marshals on behalf of the Government. (FOOTNOTE 7) 3. MAIL SERVICE The Supreme Court's proposed subsection (d)(7) and (8) authorized, as an alternative to personal service, mail service of summonses and complaints on individuals and organizations described in subsection (d)(1) and (3), but only through registered or certified mail, restricted delivery. Critics of that system of mail service argued that registered and certified mail were not necessarily effective methods of providing actual notice to defendants of claims against them. This was so, they argued, because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been 'unclaimed' or 'refused', the latter apparently providing the sole basis for a default judgment. (FOOTNOTE 8) H.R. 7154 provides for a system of service by mail similar to the system now used in California. See Cal. Civ. Pro. Sec. 415.30 (West 1973). Service would be by ordinary mail with a notice and acknowledgment of receipt form enclosed. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete. If the acknowledgment is not returned within 20 days of mailing, then service must be effected through some other means provided for in the Rules. This system of mail service avoids the notice problems created by the registered and certified mail procedures proposed by the Supreme Court. If the proper person receives the notice and returns the acknowledgment, service is complete. If the proper person does not recieve the mailed form, or if the proper person receives the notice but fails to return the acknowledgment form, another method of service authorized by law is required. (FOOTNOTE 9) In either instance, however, the defendant will receive actual notice of the claim. In order to encourage defendants to return the acknowledgment form, the court can order a defendant who does not return it to pay the costs of service unless the defendant can show good cause for the failure to return it. 4. THE LOCAL OPTION The Court's proposed amendments to Rule 4 deleted the provision in current subsection (d)(7) that authorizes service of a summons and complaint upon individuals and organizations 'in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.' The Committee received a variety of complaints about the deletion of this provision. Those in favor of preserving the local option saw no reason to forego systems of service that had been successful in achieving effective notice. (FOOTNOTE 01) H.R. 7154 carries forward the policy of the current rule and permits a party to serve a summons and complaint upon individuals and organizations described in Rule 4(d)(1) and (3) in accordance with the law of the state in which the district court sits. Thus, the bill authorizes four methods of serving a summons and complaint on such defendants: (1) service by a nonparty adult (Rule 4(c)(2)(A)); (2) service by personnel of the Marshals Service, if the party qualifies, such as because the party is proceeding in forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner authorized by the law of the state in which the district court is held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a notice and acknowledgment of receipt form enclosed (Rule 4(c)(2)(C)(ii)). (FOOTNOTE 11) 5. TIME LIMITS Rule 4 does not currently provide a time limit within which service must be completed. Primarily because United States marshals currently effect service of process, no time restriction has been deemed necessary. Appendix II, at 18 (Advisory Committee Note). Along with the proposed changes to subdivisions (c) and (d) to reduce the role of the Marshals Service, however, came new subdivision (j), requiring that service of a summons and complaint be made within 120 days of the filing of the complaint. If service were not accomplished within that time, proposed subdivision (j) required that the action 'be dismissed as to that defendant without prejudice upon motion or upon the court's own initiative'. Service by mail was deemed made for purposes of subdivision (j) 'as of the date on which the process was accepted, refused, or returned as unclaimed'. (FOOTNOTE 21) H.R. 7154 adopts a policy of limiting the time to effect service. It provides that if a summons and complaint have not been served within 120 days of the filing of the complaint and the plaintiff fails to show 'good cause' for not completing service within that time, then the court must dismiss the action as to the unserved defendant. H.R. 7154 ensures that a plaintiff will be notified of an attempt to dismiss the action. If dismissal for failure to serve is raised by the court upon its own motion, the legislation requires that the court provide notice to the plaintiff. If dismissal is sought by someone else, Rule 5(a) of the Federal Rules of Civil Procedure requires that the motion be served upon the plaintiff. Like proposed subsection (j), H.R. 7154 provides that a dismissal for failure to serve within 120 days shall be 'without prejudice'. Proposed subsection (j) was criticized by some for ambiguity because, it was argued, neither the text of subsection (j) nor the Advisory Committee Note indicated whether a dismissal without prejudice would toll a statute of limitation. See House Report 97-662, at 3-4 (1982). The problem would arise when a plaintiff files the complaint within the applicable statute of limitation period but does not effect service within 120 days. If the statute of limitation period expires during that period, and if the plaintiff's action is dismissed 'without prejudice', can the plaintiff refile the complaint and maintain the action? The answer depends upon how the statute of limitation is tolled. (FOOTNOTE 31) If the law provides that the statute of limitation is tolled by filing and service of the complaint, then a dismissal under H.R. 7154 for failure to serve within the 120 days would, by the terms of the law controlling the tolling, bar the plaintiff from later maintaining the cause of action. (FOOTNOTE 41) If the law provides that the statute of limitation is tolled by filing alone, then the status of the plaintiff's cause of action turns upon the plaintiff's diligence. If the plaintiff has not been diligent, the court will dismiss the complaint for failure to serve within 120 days, and the plaintiff will be barred from later maintaining the cause of action because the statute of limitation has run. A dismissal without prejudice does not confer upon the plaintiff any rights that the plaintiff does not otherwise possess and leaves a plaintiff whose action has been dismissed in the same position as if the action had never been filed. (FOOTNOTE 51) If, on the other hand, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can oppose dismissal for failure to serve. A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action. This result is consistent with the policy behind the time limit for service and with statutes of limitation, both of which are designed to encourage prompt movement of civil actions in the federal courts. 6. CONFORMING AND CLARIFYING SUBSECTIONS (D)(4) AND (5) Current subsections (d)(4) and (5) prescribe which persons must be served in cases where an action is brought against the United States or an officer or agency of the United States. Under subsection (d)(4), where the United States is the named defendant, service must be made as follows: (1) personal service upon the United States attorney, an assistant United States attorney, or a designated clerical employee of the United States attorney in the district in which the action is brought; (2) registered or certified mail service to the Attorney General of the United States in Washington, D.C.; and (3) registered or certified mail service to the appropriate officer or agency if the action attacks an order of that officer or agency but does not name the officer or agency as a defendant. Under subsection (d)(5), where an officer or agency of the United States is named as a defendant, service must be made as in subsection (d)(4), except that personal service upon the officer or agency involved is required. (FOOTNOTE 61) The time limit for effecting service in H.R. 7154 would present significant difficulty to a plaintiff who has to arrange for personal service upon an officer or agency that may be thousands of miles away. There is little reason to require different types of service when the officer or agency is named as a party, and H.R. 7154 therefore conforms the manner of service under subsection (d)(5) to the manner of service under subsection (d)(4). SECTION-BY-SECTION ANALYSIS SECTION 1 Section 1 provides that the short title of the bill is the 'Federal Rules of Civil Procedure Amendments Act of 1982'. SECTION 2 Section 2 of the bill consists of 7 numbered paragraphs, each amending a different part of Rule 4 of the Federal Rules of Civil Procedure. Paragraph (1) deletes the requirement in present Rule 4(a) that a summons be delivered for service to the marshal or other person authorized to serve it. As amended by the legislation, Rule 4(a) provides that the summons be delivered to 'the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and complaint'. This change effectuates the policy proposed by the Supreme Court. See Appendix II, at - (Advisory Committee Note). Paragraph (2) amends current Rule 4(c), which deals with the service of process. New Rule 4(c)(1) requires that all process, other than a subpoena or a summons and complaint, be served by the Marshals Service or by a person especially appointed for that purpose. Thus, the Marshals Service or persons specially appointed will continue to serve all process other than subpoenas and summonses and complaints, a policy identical to that proposed by the Supreme Court. See Appendix II, at 8 (Report of the Judicial Conference Committee on Rules of Practice and Procedure). The service of subpoenas is governed by Rule 45, (FOOTNOTE 71) and the service of summonses and complaints is governed by new Rule 4(c)(2). New Rule 4(c)(2)(A) sets forth the general rule that summonses and complaints shall be served by someone who is at least 18 years old and not a party to the action or proceeding. This is consistent with the Court's proposal. Appendix II, at 16 (Advisory Committee Note). Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth exceptions to this general rule. Subparagraph (B) sets forth 3 exceptions to the general rule. First, subparagraph (B)(i) requires the Marshals Service (or someone specially appointed by the court) to serve summonses and complaints on behalf of a party proceeding in forma pauperis or a seaman authorized to proceed under 28 U.S.C. 1916. This is identical to the Supreme Court's proposal. See Appendix II, at 3 (text of proposed rule), 16 (Advisory Committee Note). Second, subparagraph (B)(ii) requires the Marshals Service (or someone specially appointed by the court) to serve a summons and complaint when the court orders the marshals to do so in order properly to effect service in that particular action. (FOOTNOTE 81) This, except for nonsubstantive changes in phrasing, is identical to the Supreme Court's proposal. See Appendix II, at 3 (text of proposed rule), 16 (Advisory Committee Note). Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the general rule of service by a nonparty adult. These exceptions apply only when the summons and complaint is to be served upon persons described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3) (organizations). (FOOTNOTE 91) First, subparagraph (C)(i) permits service of a summons and complaint in a manner authorized by the law of the state in which the court sits. This restates the option to follow local law currently found in Rule 4(d)(7) and would authorize service by mail if the state law so allowed. The method of mail service in that instance would, of course, be the method permitted by state law. Second, subparagraph (C)(ii) permits service of a summons and complaint by regular mail. The sender must send to the defendant, by first-class mail, postage prepaid, a copy of the summons and complaint, together with 2 copies of a notice and acknowledgment of receipt of summons and complaint form and a postage prepaid return envelope addressed to the sender. If a copy of the notice and acknowledgment form is not received by the sender within 20 days after the date of mailing, then service must be made under Rule 4(c)(2)(A) or (B) (i.e., by a nonparty adult or, if the person qualifies, (FOOTNOTE 02) by personnel of the Marshals Service or a person specially appointed by the court) in the manner prescribed by Rule 4(d)(1) or (3) (i.e., personal or substituted service). New Rule 4(c)(2)(D) permits a court to penalize a person who avoids service by mail. It authorizes the court to order a person who does not return the notice and acknowledgment form within 20 days after mailing to pay the costs of service, unless that person can show good cause for failing to return the form. The purpose of this provision is to encourage the prompt return of the form so that the action can move forward without unnecessary delay. Fairness requires that a person who causes another additional and unnecessary expense in effecting service ought to reimburse the party who was forced to bear the additional expense. Subparagraph (E) of rule 4(c)(2) requires that the notice and acknowledgment form described in new Rule 4(c)(2)(C)(ii) be executed under oath or affirmation. This provision tracks the language of 28 U.S.C. 1746, which permits the use of unsworn declarations under penalty of perjury whenever an oath or affirmation is required. Statements made under penalty of perjury are subject to 18 U.S,C. 1621(2), which provides felony penalties for someone who 'willfully subscribes as true any material matter which he does not believe to be true'. The requirement that the form be executed under oath or affirmation is intended to encourage truthful submissions to the court, as the information contained in the form is important to the parties. (FOOTNOTE 12) New Rule 4(c)(3) authorizes the court freely to make special appointments to serve summonses and complaints under Rule 4(c)(2)(B) and all other process under Rule 4(c)(1). This carries forward the policy of present Rule 4(c). Paragraph (3) of section 2 of the bill makes a non-substantive change in the caption of Rule 4(d) in order to reflect more accurately the provisions of Rule 4(d). Paragraph (3) also deletes a provision on service of a summons and complaint pursuant to state law. This provision is redundant in view of new Rule 4(c)(2)(C)(i). Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that service upon a named defendant agency or officer of the United States shall be made by 'sending' a copy of the summons and complaint 'by registered or certified mail' to the defendant. (FOOTNOTE 22) Rule 4(d)(5) currently provides for service by 'delivering' the copies to the defendant, but 28 U.S.C. 1391(e) authorizes delivery upon a defendant agency or officer outside of the district in which the action is brought by means of certified mail. Hence, the change is not a marked departure from current practice. Paragraph (5) of section 2 of the bill amends the caption of Rule 4(e) in order to describe subdivision (e) more accurately. Paragraph (6) of section 2 of the bill amends Rule 4(g), which deals with return of service. Present rule 4(g) is not changed except to provide that, if service is made pursuant to the new system of mail service (Rule 4(c)(2)(C)(ii)), the plaintiff or the plaintiff's attorney must file with the court the signed acknowledgment form returned by the person served. Paragraph (7) of section 2 of the bill adds new subsection (j) to provide a time limitation for the service of a summons and complaint. New Rule 4(j) retains the Supreme Court's requirement that a summons and complaint be served within 120 days of the filing of the complaint. See Appendix II, at 18 (Advisory Committee Note). (FOOTNOTE 32) The plaintiff must be notified of an effort or intention to dismiss the action. This notification is mandated by subsection (j) if the dismissal is being raised on the court's own initiative and will be provided pursuant to Rule 5 (which requires service of motions upon the adverse party) if the dismissal is sought by someone else. (FOOTNOTE 42) The plaintiff may move under Rule 6(b) to enlarge the time period. See Appendix II, at 1d. (Advisory Committee Note). If service is not made within the time period or enlarged time period, however, and if the plaintiff fails to show 'good cause' for not completing service, then the court must dismiss the action as to the unserved defendant. The dismissal is 'without prejudice'. The term 'without prejudice' means that the dismissal does not constitute an adjudication of the merits of the complaint. A dismissal 'without prejudice' leaves a plaintiff whose action has been dismissed in the position in whch that person would have been if the action had never been filed. SECTION 3 Section 3 of the bill amends the Appendix of Forms at the end of the Federal Rules of Civil Procedure by adding a new form 18A, 'Notice and Acknowledgment for Service by Mail'. This new form is required by new Rule 4(c)(2)(C)(ii), which requires that the notice and acknowledgment form used with service by regular mail conform substantially to Form 18A. Form 18A as set forth in section 3 of the bill is modeled upon a form used in California. (FOOTNOTE 52) It contains 2 parts. The first part is a notice to the person being served that tells that person that the enclosed summons and complaint is being served pursuant to Rule 4(c)(2)(C)(ii); advises that person to sign and date the acknowledgment form and indicate the authority to receive service if the person served is not the party to the action (e.g., the person served is an officer of the organization being served); and warns that failure to return the form to the sender within 20 days may result in the court ordering the party being served to pay the expenses involved in effecting service. The notice also warns that if the complaint is not responded to within 20 days, a default judgment can be entered against the party being served. The notice is dated under penalty of perjury by the plaintiff or the plaintiff's attorney. (FOOTNOTE 62) The second part of the form contains the acknowledgment of receipt of the summons and complaint. The person served must declare on this part of the form, under penalty of perjury, the date and place of service and the person's authority to receive service. SECTION 4 Section 4 of the bill provides that the changes in Rule 4 made by H.R. 7154 will take effect 45 days after enactment, thereby giving the bench and bar, as well as other interested persons and organizations (such as the Marshals Service), an opportunity to prepare to implement the changes made by the legislation. The delayed effective date means that service of process issued before the effective date will be made in accordance with current Rule 4. Accordingly, all process in the hands of the Marshals Service prior to the effective date will be served by the Marshals Service under the present rule. SECTION 5 Section 5 of the bill provides that the amendments to Rule 4 proposed by the Supreme Court (whose effective date was postponed by Public Law 97-227) shall not take effect. This is necessary because under Public Law 97-227 the proposed amendments will take effect on October 1, 1983. XXXXXXX (FOOTNOTE 1) The drafting of the rules and amendments is actually done by a committee of the Judicial Conference of the United States. In the case of the Federal Rules of Civil Procedure, the initial draft is prepared by the Advisory Committee on Civil Rules. The Advisory Committee's draft is then reviewed by the Committee on Rules of Practice and Procedure, which must give its approval to the draft. Any draft approved by that committee is forwarded to the Judicial Conference. If the Judicial Conference approves the draft, it forwards the draft to the Supreme Court. The Judicial Conference's role in the rule-making process is defined by 28 U.S.C. 331. For background information about how the Judicial Conference committees operate, see Wright, 'Procedural Reform: Its Limitation and Its Future,' 1 Ga.L.Rev. 563, 565-66 (1967) (civil rules); statement of United States District Judge Roszel C. Thomsen, Hearings on Proposed Amendments to the Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess. at 25 (1974) (criminal rules); statement of United States Circuit Judge J. Edward Lumbard, id. at 203 (criminal rules); J. Weinstein, Reform of Federal Court Rulemaking Procedure (1977); Weinstein, 'Reform of Federal Rulemaking Procedures,' 76 Colum.L.Rev. 905 (1976). (FOOTNOTE 2) All of the other amendments, including all of the proposed amendments to the Federal Rules of Criminal Procedure and the Rules and Forms Governing Proceedings in the United States District Courts under sections 2254 and 2255 of Title 28, United States Code, took effect on August 1, 1982, as scheduled. (FOOTNOTE 3) The President has urged Congress to act promptly. See President's Statement on Signing H.R. 6663 into Law, 18 Weekly Comp. of Pres. Doc. 982 (August 2, 1982). (FOOTNOTE 4) Where service of a summons is to be made upon a party who is neither an inhabitant of, nor found within, the state where the district court sits, subsection (e) authorizes service under a state statute or rule of court that provides for service upon such a party. This would authorize mail service if the state statute or rule of court provided for service by mail. (FOOTNOTE 5) The Court's proposal authorized service by the Marshals Service in other situations. This authority, however, was not seen as thwarting the underlying policy of limiting the use of marshals. See Appendix II, at 16, 17 (Advisory Committee Note). (FOOTNOTE 6) Appendix I, at 2 (letter of Assistant Attorney General Robert A. McConnell). (FOOTNOTE 7) The provisions of H.R. 7154 conflict with 28 U.S.C. 569(b) because the latter is a broader command to marshals to serve all federal court process. As a later statutory enactment, however, H.R. 7154 supersedes 28 U.S.C. 569(b), thereby achieving the goal of reducing the role of marshals. (FOOTNOTE 8) Proposed Rule 4(d)(8) provided that 'Service . . . shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant.' This provision reflects a desire to preclude default judgments on unclaimed mail. See Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure). The interpretation of Rule 4(d)(8) to require a refusal of delivery in order to have a basis for a default judgment, while undoubtedly the interpretation intended and the interpretation that reaches the fairest result, may not be the only possible interpretation. Since a default judgment can be entered for defendant's failure to respond to the complaint once defendant has been served and the time to answer the complaint has run, it can be argued that a default judgment can be obtained where the mail was unclaimed because proposed subsection (j), which authorized dismissal of a complaint not served within 120 days, provided that mail service would be deemed made 'on the date on which the process was accepted, refused, or returned as unclaimed' (emphasis added). (FOOTNOTE 9) See p. 15 infra. (FOOTNOTE 01) Proponents of the California system of mail service, in particular, saw no reason to supplant California's proven method of mail service with a certified mail service that they believed likely to result in default judgments without actual notice to defendants. See House Report No. 97-662, at 3 (1982). (FOOTNOTE 11) The parties may, of course, stipulate to service, as is frequently done now. (FOOTNOTE 21) While return of the letter as unclaimed was deemed service for the purpose of determining whether the plaintiff's action could be dismissed, return of the letter as unclaimed was not service for the purpose of entry of a default judgment against the defendant. See note 8 supra. (FOOTNOTE 31) The law governing the tolling of a statute of limitation depends upon the type of civil action involved. In adversity action, state law governs tolling. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). In Walker, plaintiff had filed his complaint and thereby commenced the action under Rule 3 of the Federal Rules of Civil Procedure within the statutory period. He did not, however, serve the summons and complaint until after the statutory period had run. The Court held that state law (which required both filing and service within the statutory period) governed, barring plaintiff's action. In the federal question action, the courts of appeals have generally held that Rule 3 governs, so that the filing of the complaint tolls a statute of limitation. United States v. Wahl, 538 F.2d 285 (6th Cir. 1978); Windbrooke Dev. Co. v. Environmental Enterprises Inc. of Fla., 524 F.2d 461 (5th Cir. 1975); Metropolitan Paving Co. v. International Union of Operating Engineers, 439 F.2d 300 (10th Cir. 1971); Moore Co. v. Sid Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.), cert. denied, 383 U.S. 925, reh. denied, 384 U.S. 914 (1965); Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959). The continued validity of this line of cases, however, must be questioned in light of the Walker case, even though the Court in that case expressly reserved judgment about federal question actions, see Walker v. Armco Steel Corp., 446 U.S. 741, 751 n.11 (1980). (FOOTNOTE 41) The same result obtains even if service occurs within the 120 day period, if the service occurs after the statute of limitation has run. (FOOTNOTE 51) See p. 19 infra. (FOOTNOTE 61) See p. 17 infra. (FOOTNOTE 71) Rule 45(c) provides that 'A subpoena may be served by the marshal, by his deputy, or by any other person who is not a party and is not less than 18 years of age.' (FOOTNOTE 81) Some litigators have voiced concern that there may be situations in which personal service by someone other than a member of the Marshals Service may present a risk of injury to the person attempting to make the service. For example, a hostile defendant may have a history of injuring persons attempting to serve process. Federal judges undoubtedly will consider the risk of harm to private persons who would be making personal service when deciding whether to order the Marshals Service to make service under Rule 4(c)(2)(B)(iii). (FOOTNOTE 91) The methods of service authorized by Rule 4(c)(2)(C) may be invoked by any person seeking to effect service. Thus, a nonparty adult who receives the summons and complaint for service under Rule 4(c)(1) may serve them personally or by mail in the manner authorized by Rule 4(c)(2)(C)(ii). Similarly, the Marshals Service may utilize the mail service authorized by Rule 4(c)(2)(C)(ii) when serving a summons and complaint under Rule 4(c)(2)(B)(i)(iii). When serving a summons and complaint under Rule 4(c)(2)(B)(ii), however, the Marshals Service must serve in the manner set forth in the court's order. If no particular manner of service is specified, then the Marshals Service may utilize Rule 4(c)(2)(C)(ii). It would not seem to be appropriate, however, for the Marshals Service to utilize Rule 4(c)(2)(C)(ii) in a situation where a previous attempt to serve by mail failed. Thus, it would not seem to be appropriate for the Marshals Service to attempt service by regular mail when serving a summons and complaint on behalf of a plaintiff who is proceeding in forma pauperis if that plaintiff previously attempted unsuccessfully to serve the defendant by mail. (FOOTNOTE 02) To obtain service by personnel of the Marshals Service or someone specially appointed by the court, a plaintiff who has unsuccessfully attempted mail service under Rule 4(c)(2)(C)(ii) must meet the conditions of Rule 4(c)(2)(B) - for example, the plaintiff must be proceeding in forma pauperis. (FOOTNOTE 12) For example, the sender must state the date of mailing on the form. If the form is not returned to the sender within 20 days of that date, then the plaintiff must serve the defendant in another manner and the defendant may be liable for the costs of such service. Thus, a defendant would suffer the consequences of a misstatement about the date of mailing. (FOOTNOTE 22) See p. 12 supra. (FOOTNOTE 32) The 120 day period begins to run upon the filing of each complaint. Thus, where a defendant files a cross-claim against the plaintiff, the 120 day period begins to run upon the filing of the cross-complaint, not upon the filing of the plaintiff's complaint initiating the action. (FOOTNOTE 42) The person who may move to dismiss can be the putative defendant (i.e., the person named as defendant in the complaint filed with the court) or, in multi-party actions, another party to the action. (If the putative defendant moves to dismiss and the failure to effect service is due to that person's evasion of service, a court should not dismiss because the plaintiff has 'good cause' for not completing service.) (FOOTNOTE 52) See Cal. Civ. Pro. Sec. 415.30 (West 1973). (FOOTNOTE 62) See p. 16 supra. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1983 AMENDMENT Subd. (a). Pub. L. 97-462, Sec. 2(1), substituted 'deliver the summons to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and a copy of the complaint' for 'deliver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it'. Subd. (c). Pub. L. 97-462, Sec. 2(2), substituted provision with subd. heading 'Service' for provision with subd. heading 'By Whom Served' which read: 'Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely. Service of process may also be made by a person authorized to serve process in an action brought in the courts of general jurisdiction of the state in which the district court is held or in which service is made.' Subd. (d). Pub. L. 97-462, Sec. 2(3), (4), substituted 'Summons and Complaint: Person to be Served' for 'Summons: Personal Service' in subd. heading. Subd. (d)(5). Pub. L. 97-462, Sec. 2(4), substituted 'sending a copy of the summons and of the complaint by registered or certified mail' for 'delivering a copy of the summons and of the complaint'. Subd. (d)(7). Pub. L. 97-462, Sec. 2(3)(B), struck out par. (7) which read: 'Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.'. See subd. (c)(2)(C) of this rule. Subd. (e). Pub. L. 97-462, Sec. 2(5), substituted 'Summons' for 'Same' as subd. heading. Subd. (g). Pub. L. 97-462, Sec. 2(6), substituted in second sentence 'deputy United States marshal' and 'such person' for 'his deputy' and 'he' and inserted third sentence 'If service is made under subdivision (c)(2)(C)(ii) of this rule, return shall be made by the sender's filing with the court the acknowledgment received pursuant to such subdivision.'. Subd. (j). Pub. L. 97-462, Sec. 2(7), added subd. (j). EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 97-462 effective 45 days after Jan. 12, 1983, see section 4 of Pub. L. 97-462, set out as a note under section 2071 of this title. -CROSS- FORMS Motion to quash the return of service of summons, see form 19, Appendix of Forms. Summons, see form 1. CROSS REFERENCES Actions on war risk insurance claims, see section 1292 of Title 46, Appendix, Shipping. Executions in favor of United States, see section 2413 of this title. Motions to dismiss or quash for lack of jurisdiction over the person, insufficiency of process or service of process, see rule 12. Process generally, see chapter 113 of this title. Process in bankruptcy proceedings, see Rules of Bankruptcy Procedure, Appendix to Title 11, Bankruptcy. Process to run outside state - Actions under Security Act of 1933, see section 77v of Title 15, Commerce and Trade. Actions under Security Exchange Act of 1934, see section 78aa of Title 15. Veterans' actions against United States on life insurance contracts, see section 784 of Title 38, Veterans' Benefits. Service of notice of application for leave to perpetuate testimony by taking deposition, see rule 27. Venue of civil actions, see chapter 87 of this title. ------DocID 37044 Document 906 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 5 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE II -HEAD- Rule 5. Service and Filing of Pleadings and Other Papers -STATUTE- (a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure. (b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. (c) Same: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. (d) Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, but the court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding. (e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivisions (a) and (b). Compare 2 Minn.Stat. (Mason, 1927) Sec. 9240, 9241, 9242; N.Y.C.P.A. (1937) Sec. 163, 164, and N.Y.R.C.P. (1937) Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 244-249. Note to Subdivision (d). Compare the present practice under (former) Equity Rule 12 (Issue of Subpoena - Time for Answer). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT The words 'affected thereby,' stricken out by the amendment, introduced a problem of interpretation. See 1 Barron & Holtzoff, Federal Practice & Procedure 760-61 (Wright ed. 1960). The amendment eliminates this difficulty and promotes full exchange of information among the parties by requiring service of papers on all the parties to the action, except as otherwise provided in the rules. See also subdivision (c) of Rule 5. So, for example, a third-party defendant is required to serve his answer to the third-party complaint not only upon the defendant but also upon the plaintiff. See amended Form 22-A and the Advisory Committee's Note thereto. As to the method of serving papers upon a party whose address is unknown, see Rule 5(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT The amendment makes clear that all papers relating to discovery which are required to be served on any party must be served on all parties, unless the court orders otherwise. The present language expressly includes notices and demands, but it is not explicit as to answers or responses as provided in Rules 33, 34, and 36. Discovery papers may be voluminous or the parties numerous, and the court is empowered to vary the requirement if in a given case it proves needlessly onerous. In actions begun by seizure of property, service will at times have to be made before the absent owner of the property has filed an appearance. For example, a prompt deposition may be needed in a maritime action in rem. See Rules 30(a) and 30(b)(2) and the related notes. A provision is added authorizing service on the person having custody or possession of the property at the time of its seizure. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (d). By the terms of this rule and Rule 30(f)(1) discovery materials must be promptly filed, although it often happens that no use is made of the materials after they are filed. Because the copies required for filing are an added expense and the large volume of discovery filings presents serious problems of storage in some districts, the Committee in 1978 first proposed that discovery materials not be filed unless on order of the court or for use in the proceedings. But such materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally. Accordingly, this amendment and a change in Rule 30(f)(1) continue the requirement of filing but make it subject to an order of the court that discovery materials not be filed unless filing is requested by the court or is effected by parties who wish to use the materials in the proceeding. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Additional time for service by mail, see rule 6. Jury trial, waiver by failing to file demand, see rule 38. ------DocID 37045 Document 907 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 6 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE II -HEAD- Rule 6. Time -STATUTE- (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), 'legal holiday' includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held. (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them. ((c) Unaffected by Expiration of Term.) (Rescinded Feb. 28, 1966, eff. July 1, 1966) (d) For Motions - Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time. (e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivisions (a) and (b). These are amplifications along lines common in state practices, of (former) Equity Rule 80 (Computation of Time - Sundays and Holidays) and of the provisions for enlargement of time found in (former) Equity Rules 8 (Enforcement of Final Decrees) and 16 (Defendant to Answer - Default - Decree Pro Confesso). See also Rule XIII, Rules and Forms in Criminal Cases, 292 U.S. 661, 666 (1934). Compare Ala.Code Ann. (Michie, 1928) Sec. 13 and former Law Rule 8 of the Rules of the Supreme Court of the District of Columbia (1924), superseded in 1929 by Law Rule 8, Rules of the District Court of the United States for the District of Columbia (1937). Note to Subdivision (c). This eliminates the difficulties caused by the expiration of terms of court. Such statutes as U.S.C. Title 28, (former) Sec. 12 (Trials not discontinued by new term) are not affected. Compare Rules of the United States District Court of Minnesota, Rule 25 (Minn.Stat. (Mason, Supp. 1936), p. 1089). Note to Subdivision (d). Compare 2 Minn.Stat. (Mason, 1927) Sec. 9246; N.Y.R.C.P. (1937) Rules 60 and 64. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (b). The purpose of the amendment is to clarify the finality of judgments. Prior to the advent of the Federal Rules of Civil Procedure, the general rule that a court loses jurisdiction to disturb its judgments, upon the expiration of the term at which they were entered, had long been the classic device which (together with the statutory limits on the time for appeal) gave finality to judgments. See Note to Rule 73(a). Rule 6(c) abrogates that limit on judicial power. That limit was open to many objections, one of them being inequality of operation because, under it, the time for vacating a judgment rendered early in a term was much longer than for a judgment rendered near the end of the term. The question to be met under Rule 6(b) is: how far should the desire to allow correction of judgments be allowed to postpone their finality? The rules contain a number of provisions permitting the vacation or modification of judgments on various grounds. Each of these rules contains express time limits on the motions for granting of relief. Rule 6(b) is a rule of general application giving wide discretion to the court to enlarge these time limits or revive them after they have expired, the only exceptions stated in the original rule being a prohibition against enlarging the time specified in Rule 59(b) and (d) for making motions for or granting new trials, and a prohibition against enlarging the time fixed by law for taking an appeal. It should also be noted that Rule 6(b) itself contains no limitation of time within which the court may exercise its discretion, and since the expiration of the term does not end its power, there is now no time limit on the exercise of its discretion under Rule 6(b). Decisions of lower federal courts suggest that some of the rules containing time limits which may be set aside under Rule 6(b) are Rules 25, 50(b), 52(b), 60(b), and 73(g). In a number of cases the effect of Rule 6(b) on the time limitations of these rules has been considered. Certainly the rule is susceptible of the interpretation that the court is given the power in its discretion to relieve a party from failure to act within the times specified in any of these other rules, with only the exceptions stated in Rule 6(b), and in some cases the rule has been so construed. With regard to Rule 25(a) for substitution, it was held in Anderson v. Brady, E.D.Ky. 1941, 1 F.R.D. 589, 4 Fed.Rules Service 25a.1, Case 1, and in Anderson v. Yungkau, C.C.A. 6th, 1946, 153 F.2d 685, cert. granted, 1946, 66 S.Ct. 1025, that under Rule 6(b) the court had no authority to allow substitution of parties after the expiration of the limit fixed in Rule 25(a). As to Rules 50(b) for judgments notwithstanding the verdict and 52(b) for amendment of findings and vacation of judgment, it was recognized in Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543, that Rule 6(b) allowed the district court to enlarge the time to make a motion for amended findings and judgment beyond the limit expressly fixed in Rule 52(b). See Coca-Cola v. Busch, E.D.Pa. 1943, 7 Fed.Rules Service 59b.2, Case 4. Obviously, if the time limit in Rule 52(b) could be set aside under Rule 6(b), the time limit in Rule 50(b) for granting judgment notwithstanding the verdict (and thus vacating the judgment entered 'forthwith' on the verdict) likewise could be set aside. As to Rule 59 on motions for a new trial, it has been settled that the time limits in Rule 59(b) and (d) for making motions for or granting new trial could not be set aside under Rule 6(b), because Rule 6(b) expressly refers to Rule 59, and forbids it. See Safeway Stores, Inc. v. Coe, App.D.C. 1943, 78 U.S.App.D.C. 19, 136 F.2d 771; Jusino v. Morales & Tio, C.C.A. 1st, 1944, 139 F.2d 946; Coca-Cola Co. v. Busch, E.D.Pa. 1943, 7 Fed.Rules Service 59b.2, Case 4; Peterson v. Chicago Great Western Ry. Co., D.Neb. 1943, 3 F.R.D. 346, 7 Fed.Rules Service 59b.2, Case 1; Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543. As to Rule 60(b) for relief from a judgment, it was held in Schram v. O'Connor, E.D.Mich. 1941, 5 Fed.Rules Serv. 6b.31, Case 1, 2, F.R.D. 192, s. c. 5 Fed.Rules Serv. 6b.31, Case 2, 2 F.R.D. 192, that the six-months time limit in original Rule 60(b) for making a motion for relief from a judgment for surprise, mistake, or excusable neglect could be set aside under Rule 6(b). The contrary result was reached in Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den., 1944, 323 U.S. 712, 65 S.Ct. 37; Reed v. South Atlantic Steamship Co. of Del., D.Del. 1942, 2 F.R.D. 475, 6 Fed.Rules Serv. 60b.31, Case 1. As to Rule 73(g), fixing the time for docketing an appeal, it was held in Ainsworth v. Gill Glass & Fixture Co., C.C.A.3d, 1939, 104 F.2d 83, that under Rule 6(b) the district court, upon motion made after the expiration of the forty-day period, stated in Rule 73(g), but before the expiration of the ninety-day period therein specified, could permit the docketing of the appeal on a showing of excusable neglect. The contrary was held in Mutual Benefit Health & Accident Ass'n v. Snyder, C.C.A. 6th, 1940, 109 F.2d 469 and in Burke v. Canfield, App.D.C. 1940, 72 App.D.C. 127, 111 F.2d 526. The amendment of Rule 6(b) now proposed is based on the view that there should be a definite point where it can be said a judgment is final; that the right method of dealing with the problem is to list in Rule 6(b) the various other rules whose time limits may not be set aside, and then, if the time limit in any of those other rules is too short, to amend that other rule to give a longer time. The further argument is that Rule 6(c) abolished the long standing device to produce finality in judgments through expiration of the term, and since that limitation on the jurisdiction of courts to set aside their own judgments has been removed by Rule 6(c), some other limitation must be substituted or judgments never can be said to be final. In this connection reference is made to the established rule that if a motion for new trial is seasonably made, the mere making or pendency of the motion destroys the finality of the judgment, and even though the motion is ultimately denied, the full time for appeal starts anew from the date of denial. Also, a motion to amend the findings under Rule 52(b) has the same effect on the time for appeal. Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543. By the same reasoning a motion for judgment under Rule 50(b), involving as it does the vacation of a judgment entered 'forthwith' on the verdict (Rule 58), operates to postpone, until an order is made, the running of the time for appeal. The Committee believes that the abolition by Rule 6(c) of the old rule that a court's power over its judgments ends with the term, requires a substitute limitation, and that unless Rule 6(b) is amended to prevent enlargement of the times specified in Rules 50(b), 52(b) and 60(b), and the limitation as to Rule 59(b) and (d) is retained, no one can say when a judgment is final. This is also true with regard to proposed Rule 59(e), which authorizes a motion to alter or amend a judgment, hence that rule is also included in the enumeration in amended Rule 6(b). In consideration of the amendment, however, it should be noted that Rule 60(b) is also to be amended so as to lengthen the six-months period originally prescribed in that rule to one year. As to Rule 25 on substitution, while finality is not involved, the limit there fixed should be controlling. That rule, as amended, gives the court power, upon showing of a reasonable excuse, to permit substitution after the expiration of the two-year period. As to Rule 73(g), it is believed that the conflict in decisions should be resolved and not left to further litigation, and that the rule should be listed as one whose limitation may not be set aside under Rule 6(b). As to Rule 59(c), fixing the time for serving affidavits on motion for new trial, it is believed that the court should have authority under Rule 6(b) to enlarge the time, because, once the motion for new trial is made, the judgment no longer has finality, and the extension of time for affidavits thus does not of itself disturb finality. Other changes proposed in Rule 6(b) are merely clarifying and conforming. Thus 'request' is substituted for 'application' in clause (1) because an application is defined as a motion under Rule 7(b). The phrase 'extend the time' is substituted for 'enlarge the period' because the former is a more suitable expression and relates more clearly to both clauses (1) and (2). The final phrase in Rule 6(b), 'or the period for taking an appeal as provided by law', is deleted and a reference to Rule 73(a) inserted, since it is proposed to state in that rule the time for appeal to a circuit court of appeals, which is the only appeal governed by the Federal Rules, and allows an extension of time. See Rule 72. Subdivision (c). The purpose of this amendment is to prevent reliance upon the continued existence of a term as a source of power to disturb the finality of a judgment upon grounds other than those stated in these rules. See Hill v. Hawes, 1944, 320 U.S. 520, 64 S.Ct. 334; Boaz v. Mutual Life Ins. Co. of New York, C.C.A. 8th, 1944, 146 F.2d 321; Bucy v. Nevada Construction Co., C.C.A. 9th, 1942, 125 F.2d 213. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (a). This amendment is related to the amendment of Rule 77(c) changing the regulation of the days on which the clerk's office shall be open. The wording of the first sentence of Rule 6(a) is clarified and the subdivision is made expressly applicable to computing periods of time set forth in local rules. Saturday is to be treated in the same way as Sunday or a 'legal holiday' in that it is not to be included when it falls on the last day of a computed period, nor counted as an intermediate day when the period is less than 7 days. 'Legal holiday' is defined for purposes of this subdivision and amended Rule 77(c). Compare the definition of 'holiday' in 11 U.S.C. Sec. 1(18); also 5 U.S.C. Sec. 86a; Executive Order No. 10358, 'Observance of Holidays,' June 9, 1952, 17 Fed.Reg. 5269. In the light of these changes the last sentence of the present subdivision, dealing with half holidays, is eliminated. With Saturdays and State holidays made 'dies non' in certain cases by the amended subdivision, computation of the usual 5-day notice of motion or the 2-day notice to dissolve or modify a temporary restraining order may work out so as to cause embarrassing delay in urgent cases. The delay can be obviated by applying to the court to shorten the time, see Rules 6(d) and 65(b). Subdivision (b). The prohibition against extending the time for taking action under Rule 25 (Substitution of parties) is eliminated. The only limitation of time provided for in amended Rule 25 is the 90-day period following a suggestion upon the record of the death of a party within which to make a motion to substitute the proper parties for the deceased party. See Rule 25(a)(1), as amended, and the Advisory Committee's Note thereto. It is intended that the court shall have discretion to enlarge that period. NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT The amendment eliminates the references to Rule 73, which is to be abrogated. P. L. 88-139, Sec. 1, 77 Stat. 248, approved on October 16, 1963, amended 28 U.S.C. Sec. 138 to read as follows: 'The district court shall not hold formal terms.' Thus Rule 6(c) is rendered unnecessary, and it is rescinded. NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968, 82 Stat. 250, which constituted Columbus Day a legal holiday effective after January 1, 1971. The Act, which amended Title 5, U.S.C., Sec. 6103(a), changes the day on which certain holidays are to be observed. Washington's Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Year's Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Subdivision (b). The amendment confers finality upon the judgments of magistrates by foreclosing enlargement of the time for appeal except as provided in new Rule 74(a) (20 day period for demonstration of excusable neglect). NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule 6(a) is amended to acknowledge that weather conditions or other events may render the clerk's office inaccessible one or more days. Parties who are obliged to file something with the court during that period should not be penalized if they cannot do so. The amendment conforms to changes made in Federal Rule of Criminal Procedure 45(a), effective August 1, 1982. The Rule also is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the current version of the Rule, parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions. This hardship would be especially acute in the case of Rules 50(b) and (c)(2), 52(b), and 59(b), (d), and (e), which may not be enlarged at the discretion of the court. See Rule 6(b). If the exclusion of Saturdays, Sundays, and legal holidays will operate to cause excessive delay in urgent cases, the delay can be obviated by applying to the court to shorten the time, See Rule 6(b). The Birthday of Martin Luther King, Jr., which becomes a legal holiday effective in 1986, has been added to the list of legal holidays enumerated in the Rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Answers and objections to admissions, see rule 36. Answer to - Complaint, see rule 12. Cross-claim, see rule 12. Interrogatories, see rule 33. Demand for jury trial, see rule 38. Motion for - Amendment of findings, see rule 52. New trial, see rule 59. Relief from judgment or order, see rule 60. Motion to - Alter or amend judgment, see rule 59. Set aside verdict and enter judgment, see rule 50. Notice of appeal, see section 2107 of this title. Objections to interrogatories, see rule 33. Reply to counterclaim, see rule 12. Service by mail complete upon mailing, see rule 5. Substitution of parties, see rule 25. ------DocID 37046 Document 908 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE III -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- III. PLEADINGS AND MOTIONS ------DocID 37047 Document 909 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 7 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 7. Pleadings Allowed; Form of Motions -STATUTE- (a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. (b) Motions and Other Papers. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules. (3) All motions shall be signed in accordance with Rule 11. (c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. A provision designating pleadings and defining a motion is common in the State practice acts. See Ill.Rev.Stat. (1937), ch. 110, Sec. 156 (Designation and order of pleadings); 2 Minn.Stat. (Mason, 1927) Sec. 9246 (Definition of motion); and N.Y.C.P.A. (1937) Sec. 113 (Definition of motion). Former Equity Rules 18 (Pleadings - Technical Forms Abrogated), 29 (Defenses - How Presented), and 33 (Testing Sufficiency of Defense) abolished technical forms of pleading, demurrers, and pleas, and exceptions for insufficiency of an answer. 2. Note to Subdivision (a). This preserves the substance of (former) Equity Rule 31 (Reply - When Required - When Cause at Issue). Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 23, r.r. 1, 2 (Reply to counterclaim; amended, 1933, to be subject to the rules applicable to defenses, O. 21). See O. 21, r.r. 1-14; O. 27, r. 13 (When pleadings deemed denied and put in issue). Under the codes the pleadings are generally limited. A reply is sometimes required to an affirmative defense in the answer. 1 Colo.Stat.Ann. (1935) Sec. 66; Ore.Code Ann. (1930) Sec. 1-614, 1-616. In other jurisdictions no reply is necessary to an affirmative defense in the answer, but a reply may be ordered by the court. N.C.Code Ann. (1935) Sec. 525; 1 S.D.Comp.Laws (1929) Sec. 2357. A reply to a counterclaim is usually required. Ark.Civ.Code (Crawford, 1934) Sec. 123-125; Wis.Stat. (1935) Sec. 263.20, 263.21. U.S.C., Title 28, (former) Sec. 45 (District courts; practice and procedure in certain cases) is modified insofar as it may dispense with a reply to a counterclaim. For amendment of pleadings, see Rule 15 dealing with amended and supplemental pleadings. 3. All statutes which use the words 'petition', 'bill of complaint', 'plea', 'demurrer', and other such terminology are modified in form by this rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. This amendment (to subdivision (a)) eliminates any question as to whether the compulsory reply, where a counterclaim is pleaded, is a reply only to the counterclaim or is a general reply to the answer containing the counterclaim. The Commentary, Scope of Reply Where Defendant Has Pleaded Counterclaim, 1939, 1 Fed.Rules Serv. 672; Fort Chartres and Ivy Landing Drainage and Levee District No. Five v. Thompson, E.D.Ill. 1945, 8 Fed.Rules Serv. 13.32, Case 1. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Certain redundant words are eliminated and the subdivision is modified to reflect the amendment of Rule 14(a) which in certain cases eliminates the requirement of obtaining leave to bring in a third-party defendant. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT One of the reasons sanctions against improper motion practice have been employed infrequently is the lack of clarity of Rule 7. That rule has stated only generally that the pleading requirements relating to captions, signing, and other matters of form also apply to motions and other papers. The addition of Rule 7(b)(3) makes explicit the applicability of the signing requirement and the sanctions of Rule 11, which have been amplified. -CROSS- RULES OF THE SUPREME COURT OF THE UNITED STATES Form of motions in original actions in Supreme Court of the United States as governed by Federal Rules of Civil Procedure, see rule 17, this Appendix. CROSS REFERENCES Procedure for motions in local practice, see rule 83. Service and filing of pleadings and other papers, see rule 5. Third party practice generally, see rule 14. Time for service of - Answer or reply, see rule 12. Motions and affidavits, see rule 6. Treating defenses as counterclaims, see rule 8. ------DocID 37048 Document 910 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 8 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 8. General Rules of Pleading -STATUTE- (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11. (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (d) Effect of Failure To Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (e) Pleading To Be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). See (former) Equity Rules 25 (Bill of Complaint - Contents), and 30 (Answer - Contents - Counterclaim). Compare 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-1004, 2-1015; 2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11305, 11314; Utah Rev.Stat.Ann. (1933), Sec. 104-7-2, 104-9-1. See Rule 19(c) for the requirement of a statement in a claim for relief of the names of persons who ought to be parties and the reason for their omission. See Rule 23(b) for particular requirements as to the complaint in a secondary action by shareholders. Note to Subdivision (b). 1. This rule supersedes the methods of pleading prescribed in U.S.C., Title 19, Sec. 508 (Persons making seizures pleading general issue and providing special matter); U.S.C., Title 35, (former) Sec. 40d (Providing under general issue, upon notice, that a statement in application for an extended patent is not true), 69 (now 282) (Pleading and proof in actions for infringement) and similar statutes. 2. This rule is, in part, (former) Equity Rule 30 (Answer - Contents - Counterclaim), with the matter on denials largely from the Connecticut practice. See Conn.Practice Book (1934) Sec. 107, 108, and 122; Conn.Gen.Stat. (1930) Sec. 5508-5514. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 17-20. Note to Subdivision (c). This follows substantially English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15 and N.Y.C.P.A. (1937) Sec. 242, with 'surprise' omitted in this rule. Note to Subdivision (d). The first sentence is similar to (former) Equity Rule 30 (Answer - Contents - Counterclaim). For the second sentence see (former) Equity Rule 31 (Reply - When Required - When Cause at Issue). This is similar to English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and to the practice in the States. Note to Subdivision (e). This rule is an elaboration upon (former) Equity Rule 30 (Answer - Contents - Counterclaim), plus a statement of the actual practice under some codes. Compare also (former) Equity Rule 18 (Pleadings - Technical Forms Abrogated). See Clark, Code Pleading (1928), pp. 171-4, 432-5; Hankin, Alternative and Hypothetical Pleading (1924), 33 Yale L.J. 365. Note to Subdivision (f). A provision of like import is of frequent occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110, Sec. 157(3); 2 Minn.Stat. (Mason, 1927) Sec. 9266; N.Y.C.P.A. (1937) Sec. 275; 2 N.D.Comp.Laws Ann. (1913) Sec. 7458. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The change here is consistent with the broad purposes of unification. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FORMS See Appendix of Forms. CROSS REFERENCES Amendment of pleadings generally, see rule 15. Defenses in law or fact, how presented, see rule 12. Joinder of claims, see rule 18. Relief granted in judgment even if not demanded, see rule 54. Reply to counterclaims denominated as such, see rule 7. ------DocID 37049 Document 911 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 9 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 9. Pleading Special Matters -STATUTE- (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special Damage. When items of special damage are claimed, they shall be specifically stated. (h) Admiralty and Maritime Claims. A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. The reference in Title 28, U.S.C. Sec. 1292(a)(3), to admiralty cases shall be construed to mean admiralty and maritime claims within the meaning of this subdivision (h). -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). Compare (former) Equity Rule 25 (Bill of Complaint - Contents) requiring disability to be stated; Utah Rev.Stat.Ann. (1933) Sec. 104-13-15, enumerating a number of situations where a general averment of capacity is sufficient. For provisions governing averment of incorporation, see 2 Minn.Stat. (Mason, 1927) Sec. 9271; N.Y.R.C.P. (1937) Rule 93; 2 N.D.Comp.Laws Ann. (1913) Sec. 7981 et seq. Note to Subdivision (b). See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 22. Note to Subdivision (c). The codes generally have this or a similar provision. See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 14; 2 Minn.Stat. (Mason, 1927) Sec. 9273; N.Y.R.C.P. (1937) Rule 92; 2 N.D.Comp.Laws Ann. (1913) Sec. 7461; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 288. Note to Subdivision (e). The rule expands the usual code provisions on pleading a judgment by including judgments or decisions of administrative tribunals and foreign courts. Compare Ark.Civ.Code (Crawford, 1934) Sec. 141; 2 Minn.Stat. (Mason, 1927) Sec. 9269; N.Y.R.C.P. (1937) Rule 95; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 287. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Certain distinctive features of the admiralty practice must be preserved for what are now suits in admiralty. This raises the question: After unification, when a single form of action is established, how will the counterpart of the present suit in admiralty be identifiable? In part the question is easily answered. Some claims for relief can only be suits in admiralty, either because the admiralty jurisdiction is exclusive or because no nonmaritime ground of federal jurisdiction exists. Many claims, however, are cognizable by the district courts whether asserted in admiralty or in a civil action, assuming the existence of a nonmaritime ground of jurisdiction. Thus at present the pleader has power to determine procedural consequences by the way in which he exercises the classic privilege given by the saving-to-suitors clause (28 U.S.C. Sec. 1333) or by equivalent statutory provisions. For example, a longshoreman's claim for personal injuries suffered by reason of the unseaworthiness of a vessel may be asserted in a suit in admiralty or, if diversity of citizenship exists, in a civil action. One of the important procedural consequences is that in the civil action either party may demand a jury trial, while in the suit in admiralty there is no right to jury trial except as provided by statute. It is no part of the purpose of unification to inject a right to jury trial into those admiralty cases in which that right is not provided by statute. Similarly as will be more specifically noted below, there is no disposition to change the present law as to interlocutory appeals in admiralty, or as to the venue of suits in admiralty; and, of course, there is no disposition to inject into the civil practice as it now is the distinctively maritime remedies (maritime attachment and garnishment, actions in rem, possessory, petitory and partition actions and limitation of liability). The unified rules must therefore provide some device for preserving the present power of the pleader to determine whether these historically maritime procedures shall be applicable to his claim or not; the pleader must be afforded some means of designating his claim as the counterpart of the present suit in admiralty, where its character as such is not clear. The problem is different from the similar one concerning the identification of claims that were formerly suits in equity. While that problem is not free from complexities, it is broadly true that the modern counterpart of the suit in equity is distinguishable from the former action at law by the character of the relief sought. This mode of identification is possible in only a limited category of admiralty cases. In large numbers of cases the relief sought in admiralty is simple money damages, indistinguishable from the remedy afforded by the common law. This is true, for example, in the case of the longshoreman's action for personal injuries stated above. After unification has abolished the distinction between civil actions and suits in admiralty, the complaint in such an action would be almost completely ambiguous as to the pleader's intentions regarding the procedure invoked. The allegation of diversity of citizenship might be regarded as a clue indicating an intention to proceed as at present under the saving-to-suitors clause; but this, too, would be ambiguous if there were also reference to the admiralty jurisdiction, and the pleader ought not be required to forego mention of all available jurisdictional grounds. Other methods of solving the problem were carefully explored, but the Advisory Committee concluded that the preferable solution is to allow the pleader who now has power to determine procedural consequences by filing a suit in admiralty to exercise that power under unification, for the limited instances in which procedural differences will remain, by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim. The choice made by the pleader in identifying or in failing to identify his claim as an admiralty or maritime claim is not an irrevocable election. The rule provides that the amendment of a pleading to add or withdraw an identifying statement is subject to the principles of Rule 15. NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT The amendment eliminates the reference to Rule 73 which is to be abrogated and transfers to Rule 9(h) the substance of Subsection (h) of Rule 73 which preserved the right to an interlocutory appeal in admiralty cases which is provided by 28 U.S.C. Sec. 1292(a)(3). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT The reference to Rule 26(a) is deleted, in light of the transfer of that subdivision to Rule 30(a) and the elimination of the de bene esse procedure therefrom. See the Advisory Committee's note to Rule 30(a). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Capacity to sue or be sued, see rule 17. Pleading affirmative defenses, see rule 8. Proof of official record, see rule 44. ------DocID 37050 Document 912 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 10 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 10. Form of Pleadings -STATUTE- (a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The first sentence is derived in part from the opening statement of (former) Equity Rule 25 (Bill of Complaint - Contents). The remainder of the rule is an expansion in conformity with usual state provisions. For numbered paragraphs and separate statements, see Conn.Gen.Stat. (1930) Sec. 5513; Ill.Rev.Stat. (1937) ch. 110, Sec. 157 (2); N.Y.R.C.P. (1937) Rule 90. For incorporation by reference, see N.Y.R.C.P. (1937) Rule 90. For written instruments as exhibits, see Ill.Rev.Stat. (1937) ch. 110, Sec. 160. -CROSS- RULES OF THE SUPREME COURT OF THE UNITED STATES Form of pleadings in original actions in Supreme Court of the United States as governed by Federal Rules of Civil Procedure, see rule 17, this Appendix. FORMS See Appendix of Forms. CROSS REFERENCES Captions in motions and other papers, see rule 7. ------DocID 37051 Document 913 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 11 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions -STATUTE- Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. -SOURCE- (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This is substantially the content of (former) Equity Rules 24 (Signature of Counsel) and 21 (Scandal and Impertinence) consolidated and unified. Compare (former) Equity Rule 36 (Officers Before Whom Pleadings Verified). Compare to similar purposes, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 4, and Great Australian Gold Mining Co. v. Martin, L. R., 5 Ch.Div. 1, 10 (1877). Subscription of pleadings is required in many codes. 2 Minn.Stat. (Mason, 1927) Sec. 9265; N.Y.R.C.P. (1937) Rule 91; 2 N.D.Comp.Laws Ann. (1913) Sec. 7455. This rule expressly continues any statute which requires a pleading to be verified or accompanied by an affidavit, such as: U.S.C., Title 28: Sec. 381 (former) (Preliminary injunctions and temporary restraining orders) Sec. 762 (now 1402) (Suit against the United States). U.S.C., Title 28, Sec. 829 (now 1927) (Costs; attorney liable for, when) is unaffected by this rule. For complaints which must be verified under these rules, see Rules 23(b) (Secondary Action by Shareholders) and 65 (Injunctions). For abolition of the rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances, see Pa.Stat.Ann. (Purdon, 1931) see 12 P.S.Pa., Sec. 1222; for the rule in equity itself, see Greenfield v. Blumenthal, 69 F.2d 294 (C.C.A. 3d, 1934). NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Since its original promulgation, Rule 11 has provided for the striking of pleadings and the imposition of disciplinary sanctions to check abuses in the signing of pleadings. Its provisions have always applied to motions and other papers by virtue of incorporation by reference in Rule 7(b)(2). The amendment and the addition of Rule 7(b)(3) expressly confirms this applicability. Experience shows that in practice Rule 11 has not been effective in deterring abuses. See 6 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1334 (1971). There has been considerable confusion as to (1) the circumstances that should trigger striking a pleading or motion or taking disciplinary action, (2) the standard of conduct expected of attorneys who sign pleadings and motions, and (3) the range of available and appropriate sanctions. See Rodes, Ripple & Mooney, Sanctions Imposable for Violations of the Federal Rules of Civil Procedure 64-65, Federal Judicial Center (1981). The new language is intended to reduce the reluctance of courts to impose sanctions, see Moore, Federal Practice 7.05, at 1547, by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions. The amended rule attempts to deal with the problem by building upon and expanding the equitable doctrine permitting the court to award expenses, including attorney's fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980); Hall v. Cole, 412 U.S. 1, 5 (1973). Greater attention by the district courts to pleading and motion abuses and the imposition of sanctions when appropriate, should discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses. The expanded nature of the lawyer's certification in the fifth sentence of amended Rule 11 recognizes that the litigation process may be abused for purposes other than delay. See, e.g., Browning Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078 (2d Cir. 1977). The words 'good ground to support' the pleading in the original rule were interpreted to have both factual and legal elements. See, e.g., Heart Disease Research Foundation v. General Motors Corp., 15 Fed.R.Serv. 2d 1517, 1519 (S.D.N.Y. 1972). They have been replaced by a standard of conduct that is more focused. The new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). This standard is more stringent than the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation. See Nemeroff v. Abelson, 620 F.2d 339 (2d Cir. 1980). The rule is not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. The rule does not require a party or an attorney to disclose privileged communications or work product in order to show that the signing of the pleading, motion, or other paper is substantially justified. The provisions of Rule 26(c), including appropriate orders after in camera inspection by the court, remain available to protect a party claiming privilege or work product protection. Amended Rule 11 continues to apply to anyone who signs a pleading, motion, or other paper. Although the standard is the same for unrepresented parties, who are obliged themselves to sign the pleadings, the court has sufficient discretion to take account of the special circumstances that often arise in pro se situations. See Haines v. Kerner 404 U.S. 519 (1972). The provision in the orignal rule for striking pleadings and motions as sham and false has been deleted. The passage has rarely been utilized, and decisions thereunder have tended to confuse the issue of attorney honesty with the merits of the action. See generally Risinger, Honesty in Pleading and its Enforcement: Some 'Striking' Problems with Fed. R. Civ. P. 11, 61 Minn.L.Rev. 1 (1976). Motions under this provision generally present issues better dealt with under Rules 8, 12, or 56. See Murchison v. Kirby, 27 F.R.D. 14 (S.D.N.Y. 1961); 5 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1334 (1969). The former reference to the inclusion of scandalous or indecent matter, which is itself strong indication that an improper purpose underlies the pleading, motion, or other paper, also has been deleted as unnecessary. Such matter may be stricken under Rule 12(f) as well as dealt with under the more general language of amended Rule 11. The text of the amended rule seeks to dispel apprehensions that efforts to obtain enforcement will be fruitless by insuring that the rule will be applied when properly invoked. The word 'sanctions' in the caption, for example, stresses a deterrent orientation in dealing with improper pleadings, motions or other papers. This corresponds to the approach in imposing sanctions for discovery abuses. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976) (per curiam). And the words 'shall impose' in the last sentence focus the court's attention on the need to impose sanctions for pleading and motion abuses. The court, however, retains the necessary flexibility to deal appropriately with violations of the rule. It has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted. The reference in the former text to wilfulness as a prerequisite to disciplinary action has been deleted. However, in considering the nature and severity of the sanctions to be imposed, the court should take account of the state of the attorney's or party's actual or presumed knowledge when the pleading or other paper was signed. Thus, for example, when a party is not represented by counsel, the absence of legal advice is an appropriate factor to be considered. Courts currently appear to believe they may impose sanctions on their own motion. See North American Trading Corp. v. Zale Corp., 73 F.R.D. 293 (S.D.N.Y. 1979). Authority to do so has been made explicit in order to overcome the traditional reluctance of courts to intervene unless requested by one of the parties. The detection and punishment of a violation of the signing requirement, encouraged by the amended rule, is part of the court's responsibility for securing the system's effective operation. If the duty imposed by the rule is violated, the court should have the discretion to impose sanctions on either the attorney, the party the signing attorney representes, or both, or on an unrepresented party who signed the pleading, and the new rule so provides. Although Rule 11 has been silent on the point, courts have claimed the power to impose sanctions on an attorney personally, either by imposing costs or employing the contempt technique. See 5 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1334 (1969); 2A Moore, Federal Practice 11.02, at 2104 n.8. This power has been used infrequently. The amended rule should eliminate any doubt as to the propriety of assessing sanctions against the attorney. Even though it is the attorney whose signature violates the rule, it may be appropriate under the circumstances of the case to impose a sanction on the client. See Browning Debenture Holders' Committee v. DASA Corp., supra. This modification brings Rule 11 in line with practice under Rule 37, which allows sanctions for abuses during discovery to be imposed upon the party, the attorney, or both. A party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so. The time when sanctions are to be imposed rests in the discretion of the trial judge. However, it is anticipated that in the case of pleadings the sanctions issue under Rule 11 normally will be determined at the end of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter. The procedure obviously must comport with due process requirements. The particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration. In many situations the judge's participation in the proceedings provides him with full knowledge of the relevant facts and little further inquiry will be necessary. To assure that the efficiencies achieved through more effective operation of the pleading regimen will not be offset by the cost of satellite litigation over the imposition of sanctions, the court must to the extent possible limit the scope of sanction proceedings to the record. Thus, discovery should be conducted only by leave of the court, and then only in extraordinary circumstances. Although the encompassing reference to 'other papers' in new Rule 11 literally includes discovery papers, the certification requirement in that context is governed by proposed new Rule 26(g). Discovery motions, however, fall within the ambit of Rule 11. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Notary public and other persons authorized to administer oaths required by laws of the United States, see section 2903 of Title 5, Government Organization and Employees. Signing of motions and other papers, see rule 7. ------DocID 37052 Document 914 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 12 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings -STATUTE- (a) When Presented. A defendant shall serve an answer within 20 days after the service of the summons and complaint upon that defendant, except when service is made under Rule 4(e) and a different time is prescribed in the order of court under the statute of the United States or in the statute or rule of court of the state. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The United States or an officer or agency thereof shall serve an answer to the complaint or to a cross-claim, or a reply to a counterclaim, within 60 days after the service upon the United States attorney of the pleading in which the claim is asserted. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. (f) Motion To Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated. (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). 1. Compare (former) Equity Rules 12 (Issue of Subpoena - Time for Answer) and 31 (Reply - When Required - When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) Sec. 9107, 9158; N.Y.C.P.A. (1937) Sec. 263; N.Y.R.C.P. (1937) Rules 109-111. 2. U.S.C., Title 28, Sec. 763 (now 547) (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. This and other statutes which provide 60 days for the United States or an officer or agency thereof to answer or otherwise defend are continued by this rule. Insofar as any statutes not excepted in Rule 81 provide a different time for a defendant to defend, such statutes are modified. See U.S.C., Title 28, (former) Sec. 45 (District courts; practice and procedure in certain cases under the interstate commerce laws) (30 days). 3. Compare the last sentence of (former) Equity Rule 29 (Defenses - How Presented) and N.Y.C.P.A. (1937) Sec. 283. See Rule 15(a) for time within which to plead to an amended pleading. Note to Subdivisions (b) and (d). 1. See generally (former) Equity Rules 29 (Defenses - How Presented), 33 (Testing Sufficiency of Defense), 43 (Defect of Parties - Resisting Objection), and 44 (Defect of Parties - Tardy Objection); N.Y.C.P.A. (1937) Sec. 277-280; N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1-4; Clark, Code Pleading (1928) pp. 371-381. 2. For provisions authorizing defenses to be made in the answer or reply see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) Sec. 378, 379. Compare (former) Equity Rule 29 (Defenses - How Presented); U.S.C., Title 28, (former) Sec. 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). U.S.C., Title 28, (former) Sec. 45, substantially continued by this rule, provides: 'No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed.' Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 433; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8600. For provisions that the defendant may demur and answer at the same time, see Calif.Code Civ.Proc. (Deering, 1937) Sec. 431; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8598. 3. (Former) Equity Rule 29 (Defenses - How Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing 'at the discretion of the court.' Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. See 6 Tenn.Code Ann. (Williams, 1934) Sec. 8784; Ala.Code Ann. (Michie, 1928) Sec. 9479; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 15-18; Kansas Gen.Stat.Ann. (1935) Sec. 60-705, 60-706. Note to Subdivision (c). Compare (former) Equity Rule 33 (Testing Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112. Note to Subdivisions (e) and (f). Compare (former) Equity Rules 20 (Further and Particular Statement in Pleading May Be Required) and 21 (Scandal and Impertinence); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b, 8; 4 Mont.Rev.Codes Ann. (1935) Sec. 9166, 9167; N.Y.C.P.A. (1937) Sec. 247; N.Y.R.C.P. (1937) Rules 103, 115, 116, 117; Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec. 89-1033, 89-1034. Note to Subdivision (g). Compare Rules of the District Court of the United States for the District of Columbia (1937), Equity Rule 11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii (105-408) (1934); Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e) and (f). Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 434; 2 Minn.Stat. (Mason, 1927) Sec. 9252; N.Y.C.P.A. (1937) Sec. 278 and 279; Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e). This rule continues U.S.C., Title 28, Sec. 80 (now 1359, 1447, 1919) (Dismissal or remand) (of action over which district court lacks jurisdiction), while U.S.C., Title 28, Sec. 399 (now 1653) (Amendments to show diverse citizenship) is continued by Rule 15. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). Various minor alterations in language have been made to improve the statement of the rule. All references to bills of particulars have been stricken in accordance with changes made in subdivision (e). Subdivision (b). The addition of defense (7), 'failure to join an indispensable party,' cures an omission in the rules, which are silent as to the mode of raising such failure. See Commentary, Manner of Raising Objection of Non-Joinder of Indispensable Party, 1940, 2 Fed.Rules Serv. 658 and, 1942, 5 Fed.Rules Serv. 820. In one case, United States v. Metropolitan Life Ins. Co., E.D.Pa. 1941, 36 F.Supp. 399, the failure to join an indispensable party was raised under Rule 12(c). Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. Samara v. United States, C.C.A.2d, 1942, 129 F.2d 594, cert. den., 1942, 317 U.S. 686, 63 S.Ct. 258; Boro Hall Corp. v. General Motors Corp., C.C.A.2d, 1942, 124 F.2d 822, cert. den., 1943, 317 U.S. 695, 63 S.Ct. 436. See also Kithcart v. Metropolitan Life Ins. Co., C.C.A.8th, 1945, 150 F.2d 997, aff'g 62 F.Supp. 93. It has also been suggested that this practice could be justified on the ground that the federal rules permit 'speaking' motions. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term 'speaking motion' is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous matter, may resolve questions of fact, on conflicting proof would be left uncertain. The decisions dealing with this general situation may be generally grouped as follows: (1) cases dealing with the use of affidavits and other extraneous material on motions; (2) cases reversing judgments to prevent final determination on mere pleading allegations alone. Under group (1) are: Boro Hall Corp. v. General Motors Corp., C.C.A.2d, 1942, 124 F.2d 822, cert. den., 1943, 317 U.S. 695, 63 S.Ct. 436; Gallup v. Caldwell, C.C.A.3d, 1941, 120 F.2d 90; Central Mexico Light & Power Co. v. Munch, C.C.A.2d, 1940, 116 F.2d 85; National Labor Relations Board v. Montgomery Ward & Co., App.D.C. 1944, 79 U.S.App.D.C. 200, 144 F.2d 528, cert. den., 1944, 65 S.Ct. 134; Urquhart v. American-La France Foamite Corp., App.D.C. 1944, 79 U.S.App.D.C. 219, 144 F.2d 542; Samara v. United States, C.C.A.2d, 1942, 129 F.2d 594; Cohen v. American Window Glass Co., C.C.A.2d, 1942, 126 F.2d 111; Sperry Products Inc. v. Association of American Railroads, C.C.A.2d, 1942, 132 F.2d 408; Joint Council Dining Car Employees Local 370 v. Delaware, Lackawanna and Western R. Co., C.C.A.2d, 1946, 157 F.2d 417; Weeks v. Bareco Oil Co., C.C.A.7th, 1941, 125 F.2d 84; Carroll v. Morrison Hotel Corp., C.C.A.7th, 1945, 149 F.2d 404; Victory v. Manning, C.C.A.3rd, 1942, 128 F.2d 415; Locals No. 1470, No. 1469, and 1512 of International Longshoremen's Association v. Southern Pacific Co., C.C.A.5th, 1942, 131 F.2d 605; Lucking v. Delano, C.C.A.6th, 1942, 129 F.2d 283; San Francisco Lodge No. 68 of International Association of Machinists v. Forrestal, N.D.Cal. 1944, 58 F.Supp. 466; Benson v. Export Equipment Corp., N. Mex. 1945, 164 P.2d 380, construing New Mexico rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould Pumps, Inc., W.D.N.Y. 1946, 9 Fed.Rules Serv. 12b, 33 Case 2, 5 F.R.D. 132. Cf. Kohler v. Jacobs, C.C.A.5th, 1943, 138 F.2d 440; Cohen v. United States, C.C.A.8th, 1942, 129 F.2d 733. Under group (2) are: Sparks v. England, C.C.A.8th, 1940, 113 F.2d 579; Continental Collieries, Inc. v. Shober, C.C.A.3d, 1942, 130 F.2d 631; Downey v. Palmer, C.C.A.2d 1940, 114 F.2d 116; DeLoach v. Crowley's Inc., C.C.A.5th, 1942, 128 F.2d 378; Leimer v. State Mutual Life Assurance Co. of Worcester, Mass., C.C.A.8th, 1940, 108 F.2d 302; Rossiter v. Vogel, C.C.A.2d, 1943, 134 F.2d 908, compare s. c., C.C.A.2d, 1945, 148 F.2d 292; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co., C.C.A.7th, 1940, 113 F.2d 356; Chicago Metallic Mfg. Co. v. Edward Katzinger Co., C.C.A.7th, 1941, 123 F.2d 518; Louisiana Farmers' Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc., C.C.A.8th, 1942, 131 F.2d 419; Publicity Bldg. Realty Corp. v. Hannegan, C.C.A.8th, 1943, 139 F.2d 583; Dioguardi v. Durning, C.C.A.2d, 1944, 139 F.2d 774; Package Closure Corp. v. Sealright Co., Inc., C.C.A.2d, 1944, 141 F.2d 972; Tahir Erk v. Glenn L. Martin Co., C.C.A.4th, 1941, 116 F.2d 865; Bell v. Preferred Life Assurance Society of Montgomery, Ala., 1943, 320 U.S. 238, 64 S.Ct. 5. The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion. Subdivision (c). The sentence appended to subdivision (c) performs the same function and is grounded on the same reasons as the corresponding sentence added in subdivision (b). Subdivision (d). The change here was made necessary because of the addition of defense (7) in subdivision (b). Subdivision (e). References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. With respect to preparations for trial, the party is properly relegated to the various methods of examination and discovery provided in the rules for that purpose. Slusher v. Jones, E.D.Ky. 1943, 7 Fed.Rules Serv. 12e.231, Case 5, 3 F.R.D. 168; Best Foods, Inc. v. General Mills, Inc., D.Del. 1943, 7 Fed.Rules Serv. 12e.231, Case 7, 3 F.R.D. 275; Braden v. Callaway, E.D.Tenn. 1943, 8 Fed.Rules Serv. 12e.231, Case 1 ('. . . most courts . . . conclude that the definiteness required is only such as will be sufficient for the party to prepare responsive pleadings'). Accordingly, the reference to the 20 day time limit has also been eliminated, since the purpose of this present provision is to state a time period where the motion for a bill is made for the purpose of preparing for trial. Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. See general discussion and cases cited in 1 Moore's Federal Practice, 1938, Cum.Supplement, Sec. 12.07, under 'Page 657'; also, Holtzoff, New Federal Procedure and the Courts, 1940, 35-41. And compare vote of Second Circuit Conference of Circuit and District Judges, June 1940, recommending the abolition of the bill of particulars; Sun Valley Mfg. Co. v. Mylish, E.D.Pa. 1944, 8 Fed.Rules Serv. 12e.231, Case 6 ('Our experience . . . has demonstrated not only that 'the office of the bill of particulars is fast becoming obsolete' . . . but that in view of the adequate discovery procedure available under the Rules, motions for bills of particulars should be abolished altogether.'); Walling v. American Steamship Co., W.D.N.Y. 1945, 4 F.R.D. 355, 8 Fed.Rules Serv. 12e.244, Case 8 ('. . . the adoption of the rule was ill advised. It has led to confusion, duplication and delay.') The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. The words 'or to prepare for trial' - eliminated by the proposed amendment - have sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. On the other hand, many courts have in effect read these words out of the rule. See Walling v. Alabama Pipe Co., W.D.Mo. 1942, 3 F.R.D. 159, 6 Fed.Rules Serv. 12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc., E.D.Tenn. 1941, 42 F.Supp. 230; Kellogg Co. v. National Biscuit Co., D.N.J. 1941, 38 F.Supp. 643; Brown v. H. L. Green Co., S.D.N.Y. 1943, 7 Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins. Co., W.D.Mo. 1945, 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v. Ohse, D.Neb. 1945, 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1; Klages v. Cohen, E.D.N.Y. 1945, 9 Fed.Rules Serv. 8a.25, Case 4; Bowles v. Lawrence, D.Mass. 1945, 8 Fed.Rules Serv. 12e.231, Case 19; McKinney Tool & Mfg. Co. v. Hoyt, N.D.Ohio 1945, 9 Fed.Rules Serv. 12e.235, Case 1; Bowles v. Jack, D.Minn. 1945, 5 F.R.D. 1, 9 Fed.Rules Serv. 12e.244, Case 9. And it has been urged from the bench that the phrase be stricken. Poole v. White, N.D.W.Va. 1941. 5 Fed.Rules Serv. 12e.231, Case 4, 2 F.R.D. 40. See also Bowles v. Gabel, W.D.Mo. 1946, 9 Fed.Rules Serv. 12e.244, Case 10 ('The courts have never favored that portion of the rules which undertook to justify a motion of this kind for the purpose of aiding counsel in preparing his case for trial.'). Subdivision (f). This amendment affords a specific method of raising the insufficiency of a defense, a matter which has troubled some courts, although attack has been permitted in one way or another. See Dysart v. Remington-Rand, Inc., D.Conn. 1939, 31 F.Supp. 296; Eastman Kodak Co. v. McAuley, S.D.N.Y. 1941, 4 Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D. 21; Schenley Distillers Corp. v. Renken, E.D.S.C. 1940, 34 F.Supp. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., S.D.N.Y. 1944, 3 F.R.D. 440; United States v. Turner Milk Co., N.D.Ill. 1941, 4 Fed.Rules Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan Oderwald, Inc., S.D.N.Y. 1940, 31 F.Supp. 626; Teplitsky v. Pennsylvania R. Co., N.D.Ill. 1941, 38 F.Supp. 535; Gallagher v. Carroll, E.D.N.Y. 1939, 27 F.Supp. 568; United States v. Palmer, S.D.N.Y. 1939, 28 F.Supp. 936. And see Indemnity Ins. Co. of North America v. Pan American Airways, Inc., S.D.N.Y. 1944, 58 F.Supp. 338; Commentary, Modes of Attacking Insufficient Defenses in the Answer, 1939, 1 Fed.Rules Serv. 669, 1940, 2 Fed.Rules Serv. 640. Subdivision (g). The change in title conforms with the companion provision in subdivision (h). The alteration of the 'except' clause requires that other than provided in subdivision (h) a party who resorts to a motion to raise defenses specified in the rule, must include in one motion all that are then available to him. Under the original rule defenses which could be raised by motion were divided into two groups which could be the subjects of two successive motions. Subdivision (h). The addition of the phrase relating to indispensable parties is one of necessity. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 4(e). See also the Advisory Committee's Note to amended Rule 4(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Subdivision (b)(7). The terminology of this subdivision is changed to accord with the amendment of Rule 19. See the Advisory Committee's Note to Rule 19, as amended, especially the third paragraph therein before the caption 'Subdivision (c).' Subdivision (g). Subdivision (g) has forbidden a defendant who makes a preanswer motion under this rule from making a further motion presenting any defense or objection which was available to him at the time he made the first motion and which he could have included, but did not in fact include therein. Thus if the defendant moves before answer to dismiss the complaint for failure to state a claim, he is barred from making a further motion presenting the defense of improper venue, if that defense was available to him when he made his original motion. Amended subdivision (g) is to the same effect. This required consolidation of defenses and objections in a Rule 12 motion is salutary in that it works against piecemeal consideration of a case. For exceptions to the requirement of consolidation, see the last clause of subdivision (g), referring to new subdivision (h)(2). Subdivision (h). The question has arisen whether an omitted defense which cannot be made the basis of a second motion may nevertheless be pleaded in the answer. Subdivision (h) called for waiver of '* * * defenses and objections which he (defendant) does not present * * * by motion * * * or, if he has made no motion, in his answer * * *.' If the clause 'if he has made no motion,' was read literally, it seemed that the omitted defense was waived and could not be pleaded in the answer. On the other hand, the clause might be read as adding nothing of substance to the preceding words; in that event it appeared that a defense was not waived by reason of being omitted from the motion and might be set up in the answer. The decisions were divided. Favoring waiver, see Keefe v. Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger v. Precision Metal Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see also Rensing v. Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958); P. Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282 (S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y. 1950). Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th Cir. 1941); Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963) (regretfully following the Phillips case); see also Birnbaum v. Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948); Johnson v. Joseph Schlitz Brewing Co., 33 F.Supp. 176 (E.D.Tenn. 1940); cf. Carter v. American Bus Lines, Inc., 22 F.R.D. 323 (D.Neb. 1958). Amended subdivision (h)(1)(A) eliminates the ambiguity and states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)-(5)). A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of subdivision (g) forbidding successive motions. By amended subdivision (h)(1)(B), the specified defenses, even if not waived by the operation of (A), are waived by the failure to raise them by a motion under Rule 12 or in the responsive pleading or any amendment thereof to which the party is entitled as a matter of course. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. Since the language of the subdivisions is made clear, the party is put on fair notice of the effect of his actions and omissions and can guard himself against unintended waiver. It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of jurisdiction over the subject matter (see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivision (h)(2) and (3). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Bill of particulars, see rule 7, Title 18, Appendix, Crimes and Criminal Procedure. Demurrers as abolished, see rule 12. Motion raising defenses and objections, see rule 12 and note of Advisory Committee under the rule. FORMS Answer presenting defenses under subd. (b) of this rule, see form 20, Appendix of Forms. Motion to dismiss, presenting defenses of failure to state a claim, of lack of service of process, of improper venue, and of lack of jurisdiction under subd. (b) of this rule, see form 19. CROSS REFERENCES Demurrers abolished, see rule 7. Dismissal of actions - Claims of opposing party, judgment on counterclaim or cross-claim, see rule 13. Class actions, see rule 23(c). Costs of previously-dismissed action, see rule 41. Depositions, right to use depositions in former action, see rule 26. Failure to serve answers to interrogatories, see rule 37. Findings of fact and conclusions of law, necessity, see rule 52. Voluntary and involuntary dismissal, see rule 41. District courts - Jurisdiction, see chapter 85 of this title. Trials, hearings, and orders in chambers, see rule 77. Venue, see chapter 87 of this title. Evidence on motions, see rule 43. Findings of fact and conclusions of law unnecessary, see rule 52. Indication of simplicity and brevity of statement, see rule 84. Judgment, definition of, see rule 54. Motions - Adoption of statement by reference, see rule 10. Courts always open for making, see section 452 of this title. Evidence on, see rule 43. Extension of time, see rule 6. Form of, see rule 7. Motion day and oral hearings, see rule 78. Technical forms not required, see rule 8. Time for motions generally, see rule 6. Parties - Necessary joinder, see rule 19. Third-party defendant, defenses to third-party plaintiff and plaintiff's claims, see rule 14. Pleadings - Affirmative defenses, see rule 8. Form of, see rule 10. Pleadings allowed, see rule 7. Striking for failure to serve answer to interrogatory, see rule 37. Waiver, objections to venue, see section 1406 of this title. ------DocID 37053 Document 915 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 13 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 13. Counterclaim and Cross-Claim -STATUTE- (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim Against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof. (e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. (g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20. (i) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. This is substantially (former) Equity Rule 30 (Answer - Contents - Counterclaim), broadened to include legal as well as equitable counterclaims. 2. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and O. 21, r.r. 10 - 17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181, 182 (1881). 3. Certain States have also adopted almost unrestricted provisions concerning both the subject matter of and the parties to a counterclaim. This seems to be the modern tendency. Ark.Civ.Code (Crawford, 1934) Sec. 117 (as amended) and 118; N.J.Comp.Stat. (2 Cum.Supp. 1911-1924), N.Y.C.P.A. (1937) Sec. 262, 266, 267 (all as amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat. (1935) Sec. 263.14 (1)(c). 4. Most codes do not expressly provide for a counterclaim in the reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 98 does provide, however, for such counterclaim. 5. The provisions of this rule respecting counterclaims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For a discussion of Federal jurisdiction and venue in regard to counterclaims and cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations in Federal Procedure (1936), 45 Yale L.J. 393, 410 et seq. 6. This rule does not affect such statutes of the United States as U.S.C., Title 28, Sec. 41(1) (now 1332, 1345, 1359) (United States as plaintiff; civil suits at common law and in equity), relating to assigned claims in actions based on diversity of citizenship. 7. If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co. v. American Surety Co., 260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306 (1922); Marconi Wireless Telegraph Co. v. National Electric Signalling Co., 206 Fed. 295 (E.D.N.Y., 1913); Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins, Federal Practice (1934), p. 663 8. For allowance of credits against the United States see U.S.C., Title 26, Sec. 1672-1673 (see 7442) (Suits for refunds of internal revenue taxes - limitations); U.S.C., Title 28, Sec. 774 (now 2406) (Suits by United States against individuals; credits), (former) 775 (Suits under postal laws; credits); U.S.C., Title 31, Sec. 227 (now 3728) (Offsets against judgments and claims against United States). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The use of the word 'filing' was inadvertent. The word 'serving' conforms with subdivision (e) and with usage generally throughout the rules. The removal of the phrase 'not the subject of a pending action' and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe, App.D.C. 1943, 77 U.S.App.D.C. 144, 134 F.2d 16, 33-34, cert. den., 1943, 319 U.S. 745, 63 S.Ct. 1033. The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action. Subdivision (g). The amendment is to care for a situation such as where a second mortgagee is made defendant in a foreclosure proceeding and wishes to file a cross-complaint against the mortgagor in order to secure a personal judgment for the indebtedness and foreclose his lien. A claim of this sort by the second mortgagee may not necessarily arise out of the transaction or occurrence that is the subject matter of the original action under the terms of Rule 13(g). Subdivision (h). The change clarifies the interdependence of Rules 13(i) and 54(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT When a defendant, if he desires to defend his interest in property, is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election. If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsory within the meaning of Rule 13(a). Clause (2), added by amendment to Rule 13(a), carries out this idea. It will apply to various cases described in Rule 4(e), as amended, where service is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause (2) will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Rule 13(h), dealing with the joinder of additional parties to a counterclaim or cross-claim, has partaken of some of the textual difficulties of Rule 19 on necessary joinder of parties. See Advisory Committee's Note to Rule 19, as amended; cf. 3 Moore's Federal Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A Barron & Holtzoff, Federal Practice and Procedure Sec. 399 (Wright ed. 1960). Rule 13(h) has also been inadequate in failing to call attention to the fact that a party pleading a counterclaim or cross-claim may join additional persons when the conditions for permissive joinder of parties under Rule 20 are satisfied. The amendment of Rule 13(h) supplies the latter omission by expressly referring to Rule 20, as amended, and also incorporates by direct reference the revised criteria and procedures of Rule 19, as amended. Hereafter, for the purpose of determining who must or may be joined as additional parties to a counterclaim or cross-claim, the party pleading the claim is to be regarded as a plaintiff and the additional parties as plaintiffs or defendants as the case may be, and amended Rules 19 and 20 are to be applied in the usual fashion. See also Rules 13(a) (compulsory counterclaims) and 22 (interpleader). The amendment of Rule 13(h), like the amendment of Rule 19, does not attempt to regulate Federal jurisdiction or venue. See Rule 82. It should be noted, however, that in some situations the decisional law has recognized 'ancillary' Federal jurisdiction over counterclaims and cross-claims and 'ancillary' venue as to parties to these claims. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FORMS Counterclaim, see forms 20 and 21, Appendix of Forms. Cross-claim, see form 20. CROSS REFERENCES Counterclaim - Default judgment against counter-claimants, see rule 55. Dismissal, see rule 41. Mistake in designation of defense, see rule 8. Reply, see rule 7. Requisites of pleading, see rule 8. Service of pleadings, numerous defendants, see rule 5. Summary judgment, see rule 56. Third party practice, see rule 14. Time for reply by United States, see rule 12. Time of service of reply, see rule 12. Voluntary dismissal, see rule 41. Cross-claim - Answer to, if answer contains a cross-claim, see rule 7. Default judgment against, see rule 55. Dismissal, see rule 41. Joinder, see rule 18. Requisites of pleading, see rule 8. Service of pleadings, numerous defendants, see rule 5. Summary judgment, see rule 56. Third party practice, see rule 14. Time for answer by United States, see rule 12. ------DocID 37054 Document 916 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 14 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 14. Third-Party Practice -STATUTE- (a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make any defenses to the third-party plaintiff's claim as provided in Rule 12 and any counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. The third-party complaint, if within the admiralty and maritime jurisdiction, may be in rem against a vessel, cargo, or other property subject to admiralty or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate, the claimant of the property arrested. (b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so. (c) Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make any defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the Federal admiralty courts, and in some American State jurisdictions. See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16A, r.r. 1-13; United States Supreme Court Admiralty Rules (1920), Rule 56 (Right to Bring in Party Jointly Liable); Pa.Stat.Ann. (Purdon, 1936) Title 12, Sec. 141; Wis.Stat. (1935) Sec. 260.19, 260.20; N.Y.C.P.A. (1937) Sec. 193 (2), 211(a). Compare La.Code Pract. (Dart, 1932) Sec. 378-388. For the practice in Texas as developed by judicial decision, see Lottman v. Cuilla, 288 S.W. 123, 126 (Tex., 1926). For a treatment of this subject see Gregory, Legislative Loss Distribution in Negligence Actions (1936); Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L.J. 393, 417, et seq. Third-party impleader under the conformity act has been applied in actions at law in the Federal courts. Lowry and Co., Inc., v. National City Bank of New York, 28 F.2d 895 (S.D.N.Y., 1928); Yellow Cab Co. of Philadelphia v. Rodgers, 61 F.2d 729 (C.C.A.3d, 1932). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The provisions in Rule 14(a) which relate to the impleading of a third party who is or may be liable to the plaintiff have been deleted by the proposed amendment. It has been held that under Rule 14(a) the plaintiff need not amend his complaint to state a claim against such third party if he does not wish to do so. Satink v. Holland Township, D.N.J. 1940, 31 F.Supp. 229, noted, 1940, 88 U.Pa.L.Rev. 751; Connelly v. Bender, E.D.Mich. 1941, 46 F.Supp. 368; Whitmire v. Partin (Milton), E.D.Tenn. 1941, 2 F.R.D. 83, 5 Fed.Rules Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co., D.D.C. 1939, 26 F.Supp. 715; Carbola Chemical Co., Inc. v. Trundle, S.D.N.Y. 1943, 3 F.R.D. 502, 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express, Inc. v. Automobile Ins. Co. of Hartford, Conn. (Providence Washington Ins. Co.), N.D.Ohio 1945, 8 Fed.Rules Serv. 14a.513, Case 3. In Delano v. Ives, E.D.Pa. 1941, 40 F.Supp. 672, the court said: '. . . the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue, by tendering in a third party complaint the third party as an additional defendant directly liable to the plaintiff.' Thus impleader here amounts to no more than a mere offer of a party to the plaintiff, and if he rejects it, the attempt is a time-consuming futility. See Satink v. Holland Township, supra; Malkin v. Arundel Corp., D.Md. 1941, 36 F.Supp. 948; also Koenigsberger, Suggestions for Changes in the Federal Rules of Civil Procedure, 1941, 4 Fed.Rules Serv. 1010. But cf. Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co., M.D.Ga. 1943, 52 F.Supp. 177. Moreover, in any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing. Hoskie v. Prudential Ins. Co. of America (Lorrac Real Estate Corp.), E.D.N.Y. 1941, 39 F.Supp. 305; Johnson v. G. J. Sherrard Co. (New England Telephone & Telegraph Co.), D.Mass. 1941, 5 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164; Thompson v. Cranston, W.D.N.Y. 1942, 6 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 270, aff'd C.C.A.2d, 1942, 132 F.2d 631, cert. den., 1943, 319 U.S. 741, 63 S.Ct. 1028; Friend v. Middle Atlantic Transportation Co., C.C.A.2d, 1946, 153 F.2d 778, cert. den., 1946, 66 S.Ct. 1370; Herrington v. Jones, E.D.La. 1941, 5 Fed.Rules Serv. 14a.511, Case 2, 2 F.R.D. 108; Banks v. Employers' Liability Assurance Corp. (Central Surety & Ins. Corp.), W.D.Mo. 1943, 7 Fed.Rules Serv. 14a.11, Case 2; Saunders v. Baltimore & Ohio R. Co., S.D.W.Va. 1945, 9 Fed.Rules Serv. 14a.62, Case 2; Hull v. United States Rubber Co. (Johnson Larsen & Co.), E.D.Mich. 1945, 9 Fed.Rules Serv. 14a.62, Case 3. See also concurring opinion of Circuit Judge Minton in People of State of Illinois for use of Trust Co. of Chicago v. Maryland Casualty Co., C.C.A.7th, 1942, 132 F.2d 850, 853. Contra: Sklar v. Hayes (Singer), E.D.Pa. 1941, 4 Fed.Rules Serv. 14a.511, Case 2, 1 F.R.D. 594. Discussion of the problem will be found in Commentary, Amendment of Plaintiff's Pleading to Assert Claim Against Third-Party Defendant, 1942, 5 Fed.Rules Serv. 811; Commentary, Federal Jurisdiction in Third-Party Practice, 1943, 6 Fed.Rules Serv. 766; Holtzoff, Some Problems Under Federal Third-Party Practice, 1941, 3 La.L.Rev. 408, 419-420; 1. Moore's Federal Practice, 1938, Cum.Supplement Sec. 14.08. For these reasons therefore, the words 'or to the plaintiff' in the first sentence of subdivision (a) have been removed by the amendment; and in conformance therewith the words 'the plaintiff' in the second sentence of the subdivision, and the words 'or to the third-party plaintiff' in the concluding sentence thereof have likewise been eliminated. The third sentence of Rule 14(a) has been expanded to clarify the right of the third-party defendant to assert any defenses which the third-party plaintiff may have to the plaintiff's claim. This protects the impleaded third-party defendant where the third-party plaintiff fails or neglects to assert a proper defense to the plaintiff's action. A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. See Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co., M.D.Ga. 1943, 52 F.Supp. 177. Accordingly, the next to the last sentence of subdivision (a) has also been revised to make clear that the plaintiff may, if he desires, assert directly against the third-party defendant either by amendment or by a new pleading any claim he may have against him arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. In such a case, the third-party defendant then is entitled to assert the defenses, counter-claims and cross-claims provided in Rules 12 and 13. The sentence reading 'The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff, or to the third-party plaintiff' has been stricken from Rule 14(a), not to change the law, but because the sentence states a rule of substantive law which is not within the scope of a procedural rule. It is not the purpose of the rules to state the effect of a judgment. The elimination of the words 'the third-party plaintiff, or any other party' from the second sentence of Rule 14(a), together with the insertion of the new phrases therein, are not changes of substance but are merely for the purpose of clarification. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Under the amendment of the initial sentences of the subdivision, a defendant as a third-party plaintiff may freely and without leave of court bring in a third-party defendant if he files the third-party complaint not later than 10 days after he serves his original answer. When the impleader comes so early in the case, there is little value in requiring a preliminary ruling by the court on the propriety of the impleader. After the third-party defendant is brought in, the court has discretion to strike the third-party claim if it is obviously unmeritorious and can only delay or prejudice the disposition of the plaintiff's claim, or to sever the third-party claim or accord it separate trial if confusion or prejudice would otherwise result. This discretion, applicable not merely to the cases covered by the amendment where the third-party defendant is brought in without leave, but to all impleaders under the rule, is emphasized in the next-to-last sentence of the subdivision, added by amendment. In dispensing with leave of court for an impleader filed not later than 10 days after serving the answer, but retaining the leave requirement for impleaders sought to be effected thereafter, the amended subdivision takes a moderate position on the lines urged by some commentators, see Note, 43 Minn.L.Rev. 115 (1958); cf. Pa.R.Civ.P. 2252-53 (60 days after service on the defendant); Minn.R.Civ.P. 14.01 (45 days). Other commentators would dispense with the requirement of leave regardless of the time when impleader is effected, and would rely on subsequent action by the court to dismiss the impleader if it would unduly delay or complicate the litigation or would be otherwise objectionable. See 1A Barron & Holtzoff, Federal Practice & Procedure 649-50 (Wright ed. 1960); Comment, 58 Colum.L.Rev. 532, 546 (1958); cf. N.Y.Civ.Prac. Act Sec. 193-a; Me.R.Civ.P. 14. The amended subdivision preserves the value of a preliminary screening, through the leave procedure, of impleaders attempted after the 10-day period. The amendment applies also when an impleader is initiated by a third-party defendant against a person who may be liable to him, as provided in the last sentence of the subdivision. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Rule 14 was modeled on Admiralty Rule 56. An important feature of Admiralty Rule 56 was that it allowed impleader not only of a person who might be liable to the defendant by way of remedy over, but also of any person who might be liable to the plaintiff. The importance of this provision was that the defendant was entitled to insist that the plaintiff proceed to judgment against the third-party defendant. In certain cases this was a valuable implementation of a substantive right. For example, in a case of ship collision where a finding of mutual fault is possible, one ship- owner, if sued alone, faces the prospect of an absolute judgment for the full amount of the damage suffered by an innocent third party; but if he can implead the owner of the other vessel, and if mutual fault is found, the judgment against the original defendant will be in the first instance only for a moiety of the damages; liability for the remainder will be conditioned on the plaintiff's inability to collect from the third-party defendant. This feature was originally incorporated in Rule 14, but was eliminated by the amendment of 1946, so that under the amended rule a third party could not be impleaded on the basis that he might be liable to the plaintiff. One of the reasons for the amendment was that the Civil Rule, unlike the Admiralty Rule, did not require the plaintiff to go to judgment against the third-party defendant. Another reason was that where jurisdiction depended on diversity of citizenship the impleader of an adversary having the same citizenship as the plaintiff was not considered possible. Retention of the admiralty practice in those cases that will be counterparts of a suit in admiralty is clearly desirable. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Third party answer, service of third party complaint, see rule 7. Third party claim - Dismissal of, see rule 41. Joinder, see rule 18. Judgment on less than all claims, see rule 54. Requisites, see rule 8. Separate trial, see rule 42. Third party complaint, leave to summon person not an original party, see rule 7. Third party plaintiff, default judgment against, see rule 55. Third party tort liability to United States for hospital and medical care, see section 2651 et. seq. of Title 42, The Public Health and Welfare. ------DocID 37055 Document 917 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 15 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 15. Amended and Supplemental Pleadings -STATUTE- (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. (b) Amendments To Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of process to the United States Attorney, or the United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant. (d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See generally for the present federal practice, (former) Equity Rules 19 (Amendments Generally), 28 (Amendment of Bill as of Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading), and 35 (Bills of Revivor and Supplemental Bills - Form); U.S.C., Title 28, Sec. 399 (now 1653) (Amendments to show diverse citizenship) and (former) 777 (Defects of Form; amendments). See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r.r. 1-13; O. 20, r. 4; O. 24, r.r. 1-3. Note to Subdivision (a). The right to serve an amended pleading once as of course is common. 4 Mont.Rev.Codes Ann. (1935) Sec. 9186; 1 Ore.Code Ann. (1930) Sec. 1-904; 1 S.C.Code (Michie, 1932) Sec. 493; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r. 2. Provision for amendment of pleading before trial, by leave of court, is in almost every code. If there is no statute the power of the court to grant leave is said to be inherent. Clark, Code Pleading, (1928) pp. 498, 509. Note to Subdivision (b). Compare (former) Equity Rule 19 (Amendments Generally) and code provisions which allow an amendment 'at any time in furtherance of justice,' (e. g., Ark.Civ.Code (Crawford, 1934) Sec. 155) and which allow an amendment of pleadings to conform to the evidence, where the adverse party has not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright, 1929) Sec. 105-601, 105-602). Note to Subdivision (c). 'Relation back' is a well recognized doctrine of recent and now more frequent application. Compare Ala.Code Ann. (Michie, 1928) Sec. 9513; Ill.Rev.Stat. (1937) ch. 110, Sec. 170(2); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 308-3(4). See U.S.C., Title 28, Sec. 399 (now 1653) (Amendments to show diverse citizenship) for a provision for 'relation back.' Note to Subdivision (d). This is an adaptation of Equity Rule 34 (Supplemental Pleading). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading. However, some cases, opposed by other cases and criticized by the commentators, have taken the rigid and formalistic view that where the original complaint fails to state a claim upon which relief can be granted, leave to serve a supplemental complaint must be denied. See Bonner v. Elizabeth Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65 F.Supp. 548 (E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d Cir. 1946), cert. denied, Senderowitz v. Fleming, 330 U.S. 848, 67 S.Ct. 1091, 91 L.Ed. 1292 (1947); cf. LaSalle Nat. Bank v. 222 East Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S. 836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959). But see Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958); Genuth v. National Biscuit Co., 81 F.Supp. 213 (S.D.N.Y. 1948), app. dism., 177 F.2d 962 (2d Cir. 1949); 3 Moore's Federal Practice 15.01 (5) (Supp. 1960); 1A Barron & Holtzoff, Federal Practice & Procedure 820-21 (Wright ed. 1960). Thus plaintiffs have sometimes been needlessly remitted to the difficulties of commencing a new action even though events occurring after the commencement of the original action have made clear the right to relief. Under the amendment the court has discretion to permit a supplemental pleading despite the fact that the original pleading is defective. As in other situations where a supplemental pleading is offered, the court is to determine in the light of the particular circumstances whether filing should be permitted, and if so, upon what terms. The amendment does not attempt to deal with such questions as the relation of the statute of limitations to supplemental pleadings, the operation of the doctrine of laches, or the availability of other defenses. All these questions are for decision in accordance with the principles applicable to supplemental pleadings generally. Cf. Blau v. Lamb, 191 F.Supp. 906 (S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc., 23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a claim is asserted (including an amendment to correct a misnomer or misdescription of a defendant) shall 'relate back' to the date of the original pleading. The problem has arisen most acutely in certain actions by private parties against officers or agencies of the United States. Thus an individual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. 42 U.S.C. Sec. 405(g) (Supp. III, 1962). In several recent cases the claimants instituted timely action but mistakenly named as defendant the United States, the Department of HEW, the 'Federal Security Administration' (a nonexistent agency), and a Secretary who had retired from the office nineteen days before. Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired. The motions were denied on the ground that the amendment 'would amount to the commencement of a new proceeding and would not relate back in time so as to avoid the statutory provision * * * that suit be brought within sixty days * * *' Cohn v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961); see also Cunningham v. United States, 199 F.Supp. 541 (W.D.Mo. 1958); Hall v. Department of HEW, 199 F.Supp. 833 (S.D.Tex. 1960); Sandridge v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn. 1959). (The Secretary of Health, Education, and Welfare has approved certain ameliorative regulations under 42 U.S.C. Sec. 405(g). See 29 Fed.Reg. 8209 (June 30, 1964); Jacoby, The Effect of Recent Changes in the Law of 'Nonstatutory' Judicial Review, 53 Geo.L.J. 19, 42-43 (1964); see also Simmons v. United States Dept. HEW, 328 F.2d 86 (3d Cir. 1964).) Analysis in terms of 'new proceeding' is traceable to Davis v. L. L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. Arkansas Land & Lumber Co., 275 U.S. 460 (1928), but those cases antedate the adoption of the Rules which import different criteria for determining when an amendment is to 'relate back'. As lower courts have continued to rely on the Davis and Mellon cases despite the contrary intent of the Rules, clarification of Rule 15(c) is considered advisable. Relation back is intimately connected with the policy of the statute of limitations. The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated period - in the particular instances, by means of the initial delivery of process to a responsible government official (see Rule 4(d)(4) and (5). In these circumstances, characterization of the amendment as a new proceeding is not responsive to the realty, but is merely question-begging; and to deny relation back is to defeat unjustly the claimant's opportunity to prove his case. See the full discussion by Byse, Suing the 'Wrong' Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77 Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act Sec. 46(4). Much the same question arises in other types of actions against the government (see Byse, supra, at 45 n. 15). In actions between private parties, the problem of relation back of amendments changing defendants has generally been better handled by the courts, but incorrect criteria have sometimes been applied, leading sporadically to doubtful results. See 1A Barron & Holtzoff, Federal Practice & Procedure Sec. 451 (Wright ed. 1960); 1 id. Sec. 186 (1960); 2 id. Sec. 543 (1961); 3 Moore's Federal Practice, par. 15.15 (Cum.Supp. 1962); Annot., Change in Party After Statute of Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has been amplified to provide a general solution. An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 15(c) of 'arising out of the conduct * * * set forth * * * in the original pleading,' and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action - the notice need not be formal - that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party. Revised Rule 15(c) goes on to provide specifically in the government cases that the first and second requirements are satisfied when the government has been notified in the manner there described (see Rule 4(d)(4) and (5). As applied to the government cases, revised Rule 15(c) further advances the objectives of the 1961 amendment of Rule 25(d) (substitution of public officers). The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Jurisdiction, amendment to show, see section 1653 of this title. Recasting of pleadings on removal of cause, see section 1447 of this title. Substitution of successor to public officer by supplemental pleading, see rule 25. Time for service of pleadings, see rule 12. ------DocID 37056 Document 918 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 16 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE III -HEAD- Rule 16. Pretrial Conferences; Scheduling; Management -STATUTE- (a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as (1) expediting the disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation, and; (5) facilitating the settlement of the case. (b) Scheduling and Planning. Except in categories of actions exempted by district court rule as inappropriate, the judge, or a magistrate when authorized by district court rule, shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file and hear motions; and (3) to complete discovery. The scheduling order also may include (4) the date or dates for conferences before trial, a final pretrial conference, and trial; and (5) any other matters appropriate in the circumstances of the case. The order shall issue as soon as practicable but in no event more than 120 days after filing of the complaint. A schedule shall not be modified except by leave of the judge or a magistrate when authorized by district court rule upon a showing of good cause. (c) Subjects To Be Discussed at Pretrial Conferences. The participants at any conference under this rule may consider and take action with respect to (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence; (4) the avoidance of unnecessary proof and of cumulative evidence; (5) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial; (6) the advisability of referring matters to a magistrate or master; (7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute; (8) the form and substance of the pretrial order; (9) the disposition of pending motions; (10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and (11) such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. (d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. (e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. (f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. -SOURCE- (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. Similar rules of pre-trial procedure are now in force in Boston, Cleveland, Detroit, and Los Angeles, and a rule substantially like this one has been proposed for the urban centers of New York state. For a discussion of the successful operation of pre-trial procedure in relieving the congested condition of trial calendars of the courts in such cities and for the proposed New York plan, see A Proposal for Minimizing Calendar Delay in Jury Cases (Dec. 1936 - published by The New York Law Society); Pre-Trial Procedure and Administration, Third Annual Report of the Judicial Council of the State of New York (1937), pp. 207-243; Report of the Commission on the Administration of Justice in New York State (1934), pp. (288)-(290). See also Pre-Trial Procedure in the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland, The Theory and Practice of Pre-Trial Procedure (Dec. 1937) 36 Mich.L.Rev. 215-226, 21 J.Am.Jud.Soc. 125. Compare the English procedure known as the 'summons for directions,' English Rules Under the Judicature Act (The Annual Practice, 1937) O. 38a; and a similar procedure in New Jersey, N.J.Comp.Stat. (2 Cum.Supp. 1911-1924); N.J. Supreme Court Rules, 2 N.J.Misc.Rep. (1924) 1230, Rules 94, 92, 93, 95 (the last three as amended 1933, 11 N.J.Misc.Rep. (1933) 955). 2. Compare the similar procedure under Rule 56(d) (Summary Judgment - Case Not Fully Adjudicated on Motion). Rule 12(g) (Consolidation of Motions), by requiring to some extent the consolidation of motions dealing with matters preliminary to trial, is a step in the same direction. In connection with clause (5) of this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3) (Master's Report; In Jury Actions). NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT INTRODUCTION Rule 16 has not been amended since the Federal Rules were promulgated in 1938. In many respects, the rule has been a success. For example, there is evidence that pretrial conferences may improve the quality of justice rendered in the federal courts by sharpening the preparation and presentation of cases, tending to eliminate trial surprise, and improving, as well as facilitating, the settlement process. See 6 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1522 (1971). However, in other respects particularly with regard to case management, the rule has not always been as helpful as it might have been. Thus there has been a widespread feeling that amendment is necessary to encourage pretrial management that meets the needs of modern litigation. See Report of the National Commission for the Review of Antitrust Laws and Procedures (1979). Major criticism of Rule 16 has centered on the fact that its application can result in over-regulation of some cases and under-regulation of others. In simple, run-of-the-mill cases, attorneys have found pretrial requirements burdensome. It is claimed that over-administration leads to a series of mini-trials that result in a waste of an attorney's time and needless expense to a client. Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D. 475 (1974). This is especially likely to be true when pretrial proceedings occur long before trial. At the other end of the spectrum, the discretionary character of Rule 16 and its orientation toward a single conference late in the pretrial process has led to under-administration of complex or protracted cases. Without judicial guidance beginning shortly after institution, these cases often become mired in discovery. Four sources of criticism of pretrial have been identified. First, conferences often are seen as a mere exchange of legalistic contentions without any real analysis of the particular case. Second, the result frequently is nothing but a formal agreement on minutiae. Third, the conferences are seen as unnecessary and time-consuming in cases that will be settled before trial. Fourth, the meetings can be ceremonial and ritualistic, having little effect on the trial and being of minimal value, particularly when the attorneys attending the sessions are not the ones who will try the case or lack authority to enter into binding stipulations. See generally McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976); Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D. 475 (1974); Rosenberg, The Pretrial Conference and Effective Justice 45 (1964). There also have been difficulties with the pretrial orders that issue following Rule 16 conferences. When an order is entered far in advance of trial, some issues may not be properly formulated. Counsel naturally are cautious and often try to preserve as many options as possible. If the judge who tries the case did not conduct the conference, he could find it difficult to determine exactly what was agreed to at the conference. But any insistance on a detailed order may be too burdensome, depending on the nature or posture of the case. Given the significant changes in federal civil litigation since 1938 that are not reflected in Rule 16, it has been extensively rewritten and expanded to meet the challenges of modern litigation. Empirical studies reveal that when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices. Flanders, Case Management and Court Management in United States District Courts 17, Federal Judicial Center (1977). Thus, the rule mandates a pretrial scheduling order. However, although scheduling and pretrial conferences are encouraged in appropriate cases, they are not mandated. DISCUSSION Subdivision (a); Pretrial Conferences; Objectives. The amended rule makes scheduling and case management an express goal of pretrial procedure. This is done in Rule 16(a) by shifting the emphasis away from a conference focused solely on the trial and toward a process of judicial management that embraces the entire pretrial phase, especially motions and discovery. In addition, the amendment explicitly recognizes some of the objectives of pretrial conferences and the powers that many courts already have assumed. Rule 16 thus will be a more accurate reflection of actual practice. Subdivision (b); Scheduling and Planning. The most significant change in Rule 16 is the mandatory scheduling order described in Rule 16(b), which is based in part on Wisconsin Civil Procedure Rule 802.10. The idea of scheduling orders is not new. It has been used by many federal courts. See, e.g., Southern District of Indiana, Local Rule 19. Although a mandatory scheduling order encourages the court to become involved in case management early in the litigation, it represents a degree of judicial involvement that is not warranted in many cases. Thus, subdivision (b) permits each district court to promulgate a local rule under Rule 83 exempting certain categories of cases in which the burdens of scheduling orders exceed the administrative efficiencies that would be gained. See Eastern District of Virginia, Local Rule 12(1). Logical candidates for this treatment include social security disability matters, habeas corpus petitions, forfeitures, and reviews of certain administrative actions. A scheduling conference may be requested either by the judge, a magistrate when authorized by district court rule, or a party within 120 days after the summons and complaint are filed. If a scheduling conference is not arranged within that time and the case is not exempted by local rule, a scheduling order must be issued under Rule 16(b), after some communication with the parties, which may be by telephone or mail rather than in person. The use of the term 'judge' in subdivision (b) reflects the Advisory Committee's judgment that is it preferable that this task should be handled by a district judge rather than a magistrate, except when the magistrate is acting under 28 U.S.C. Sec. 636(c). While personal supervision by the trial judge is preferred, the rule, in recognition of the impracticality or difficulty of complying with such a requirement in some districts, authorizes a district by local rule to delegate the duties to a magistrate. In order to formulate a practicable scheduling order, the judge, or a magistrate when authorized by district court rule, and attorneys are required to develop a timetable for the matters listed in Rule 16(b)(1)-(3). As indicated in Rule 16(b)(4)-(5), the order may also deal with a wide range of other matters. The rule is phrased permissively as to clauses (4) and (5), however, because scheduling these items at an early point may not be feasible or appropriate. Even though subdivision (b) relates only to scheduling, there is no reason why some of the procedural matters listed in Rule 16(c) cannot be addressed at the same time, at least when a scheduling conference is held. Item (1) assures that at some point both the parties and the pleadings will be fixed, by setting a time within which joinder of parties shall be completed and the pleadings amended. Item (2) requires setting time limits for interposing various motions that otherwise might be used as stalling techniques. Item (3) deals with the problem of procrastination and delay by attorneys in a context in which scheduling is especially important - discovery. Scheduling the completion of discovery can serve some of the same functions as the conference described in Rule 26(f). Item (4) refers to setting dates for conferences and for trial. Scheduling multiple pretrial conferences may well be desirable if the case is complex and the court believes that a more elaborate pretrial structure, such as that described in the Manual for Complex Litigation, should be employed. On the other hand, only one pretrial conference may be necessary in an uncomplicated case. As long as the case is not exempted by local rule, the court must issue a written scheduling order even if no scheduling conference is called. The order, like pretrial orders under the former rule and those under new Rule 16(c), normally will 'control the subsequent course of the action.' See Rule 16(e). After consultation with the attorneys for the parties and any unrepresented parties - a formal motion is not necessary - the court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension. Since the scheduling order is entered early in the litigation, this standard seems more appropriate than a 'manifest injustice' or 'substantial hardship' test. Otherwise, a fear that extensions will not be granted may encourage counsel to request the longest possible periods for completing pleading, joinder, and discovery. Moreover, changes in the court's calendar sometimes will oblige the judge or magistrate when authorized by district court rule to modify the scheduling order. The district courts undoubtedly will develop several prototype scheduling orders for different types of cases. In addition, when no formal conference is held, the court may obtain scheduling information by telephone, mail, or otherwise. In many instances this will result in a scheduling order better suited to the individual case than a standard order, without taking the time that would be required by a formal conference. Rule 16(b) assures that the judge will take some early control over the litigation, even when its character does not warrant holding a scheduling conference. Despite the fact that the process of preparing a scheduling order does not always bring the attorneys and judge together, the fixing of time limits serves to stimulate litigants to narrow the areas of inquiry and advocacy to those they believe are truly relevant and material. Time limits not only compress the amount of time for litigation, they should also reduce the amount of resources invested in litigation. Litigants are forced to establish discovery priorities and thus to do the most important work first. Report of the National Commission for the Review of Antitrust Laws and Procedures 28 (1979). Thus, except in exempted cases, the judge or a magistrate when authorized by district court rule will have taken some action in every case within 120 days after the complaint is filed that notifies the attorneys that the case will be moving toward trial. Subdivision (b) is reenforced by subdivision (f), which makes it clear that the sanctions for violating a scheduling order are the same as those for violating a pretrial order. Subdivision (c); Subjects to be Discussed at Pretrial Conferences. This subdivision expands upon the list of things that may be discussed at a pretrial conference that appeared in original Rule 16. The intention is to encourage better planning and management of litigation. Increased judicial control during the pretrial process accelerates the processing and termination of cases. Flanders, Case Management and Court Management in United States District Courts, Federal Judicial Center (1977). See also Report of the National Commission for the Review of Antitrust Laws and Procedures (1979). The reference in Rule 16(c)(1) to 'formulation' is intended to clarify and confirm the court's power to identify the litigable issues. It has been added in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone. See generally Meadow Gold Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir. 1960). The notion is emphasized by expressly authorizing the elimination of frivolous claims or defenses at a pretrial conference. There is no reason to require that this await a formal motion for summary judgment. Nor is there any reason for the court to wait for the parties to initiate the process called for in Rule 16(c)(1). The timing of any attempt at issue formulation is a matter of judicial discretion. In relatively simple cases it may not be necessary or may take the form of a stipulation between counsel or a request by the court that counsel work together to draft a proposed order. Counsel bear a substantial responsibility for assisting the court in identifying the factual issues worthy of trial. If counsel fail to identify an issue for the court, the right to have the issue tried is waived. Although an order specifying the issues is intended to be binding, it may be amended at trial to avoid manifest injustice. See Rule 16(e). However, the rule's effectiveness depends on the court employing its discretion sparingly. Clause (6) acknowledges the widespread availability and use of magistrates. The corresponding provision in the original rule referred only to masters and limited the function of the reference to the making of 'findings to be used as evidence' in a case to be tried to a jury. The new text is not limited and broadens the potential use of a magistrate to that permitted by the Magistrate's Act. Clause (7) explicitly recognizes that it has become commonplace to discuss settlement at pretrial conferences. Since it obviously eases crowded court dockets and results in savings to the litigants and the judicial system, settlement should be facilitated at as early a stage of the litigation as possible. Although it is not the purpose of Rule 16(b)(7) to impose settlement negotiations on unwilling litigants, it is believed that providing a neutral forum for discussing the subject might foster it. See Moore's Federal Practice 16.17; 6 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1522 (1971). For instance, a judge to whom a case has been assigned may arrange, on his own motion or a at a party's request, to have settlement conferences handled by another member of the court or by a magistrate. The rule does not make settlement conferences mandatory because they would be a waste of time in many cases. See Flanders, Case Management and Court Management in the United States Disrict Courts, 39, Federal Judicial Center (1977). Requests for a conference from a party indicating a willingness to talk settlement normally should be honored, unless thought to be frivolous or dilatory. A settlement conference is appropriate at any time. It may be held in conjuction with a pretrial or discovery conference, although various objectives of pretrial management, such as moving the case toward trial, may not always be compatible with settlement negotiations, and thus a seperate settlement conference may be desirable. See 6 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1522, at p. 751 (1971). In addition to settlement, Rule 16(c)(7) refers to exploring the use of procedures other than litigation to resolve the dispute. This includes urging the litigants to employ adjudicatory techniques outside the courthouse. See, for example, the experiment described in Green, Marks & Olson, Settling Large Case Litigation: An Alternative Approach, 11 Loyola of L.A. L.Rev. 493 (1978). Rule 16(c)(10) authorizes the use of special pretrial procedures to expedite the adjudication of potentially difficult or protracted cases. Some district courts obviously have done so for many years. See Rubin, The Managed Calendar: Some Pragmatic Suggestions About Achieving the Just, Speedy and Inexpensive Determination of Civil Cases in Federal Courts, 4 Just. Sys. J. 135 (1976). Clause 10 provides an explicit authorization for such procedures and encourages their use. No particular techniques have been described; the Committee felt that flexibility and experience are the keys to efficient management of complex cases. Extensive guidance is offered in such documents as the Manual for Complex Litigation. The rule simply identifies characteristics that make a case a strong candidate for special treatment. The four mentioned are illustrative, not exhaustive, and overlap to some degree. But experience has shown that one or more of them will be present in every protracted or difficult case and it seems desirable to set them out. See Kendig, Procedures for Management of Non-Routine Cases, 3 Hofstra L.Rev. 701 (1975). The last sentence of subdivision (c) is new. See Wisconsin Civil Procedure Rule 802.11(2). It has been added to meet one of the criticisms of the present practice described earlier and insure proper preconference preparation so that the meeting is more than a ceremonial or ritualistic event. The reference to 'authority' is not intended to insist upon the ability to settle the litigation. Nor should the rule be read to encourage the judge conducting the conference to compel attorneys to enter into stipulations or to make admissions that they consider to be unreasonable, that touch on matters that could not normally have been anticipated to arise at the conference, or on subjects of a dimension that normally require prior consultation with and approval from the client. Subdivision (d); Final Pretrial Conference. This provision has been added to make it clear that the time between any final pretrial conference (which in a simple case may be the only pretrial conference) and trail should be as short as possible to be certain that the litigants make substantial progress with the case and avoid the inefficiency of having that preparation repeated when there is a delay between the last pretrial conference and trial. An optimum time of 10 days to two weeks has been suggested by one federal judge. Rubin, The Managed Calendar: Some Pragmatic Suggestions About Achieving the Just, Speedy and Inexpensive Determination of Civil Cases in Federal Courts, 4 Just. Sys. J. 135, 141 (1976). The Committee, however, concluded that it would be inappropriate to fix a precise time in the rule, given the numerous variables that could bear on the matter. Thus the timing has been left to the court's discretion. At least one of the attorneys who will conduct the trial for each party must be present at the final pretrial conference. At this late date there should be no doubt as to which attorney or attorneys this will be. Since the agreements and stipulations made at this final conference will control the trial, the presence of lawyers who will be involved in it is especially useful to assist the judge in structuring the case, and to lead to a more effective trial. Subdivision (e); Pretrial Orders. Rule 16(e) does not substantially change the portion of the original rule dealing with pretrial orders. The purpose of an order is to guide the course of the litigation and the language of the original rule making that clear has been retained. No compelling reason has been found for major revision, expecially since this portion of the rule has been interpreted and clarified by over forty years of judicial decisions with comparatively little difficulty. See 6 Wright & Miller, Federal Practice and Procedure: Civil Sec. 1521-30 (1971). Changes in language therefore have been kept to a minimum to avoid confusion. Since the amended rule encourages more extensive pretrial management than did the original, two or more conferences may be held in many cases. The language of Rule 16(e) recognizes this possiblity and the corresponding need to issue more than one pretrial order in a single case. Once formulated, pretrial orders should not be changed lightly; but total inflexibility is undesirable. See, e.g., Clark v. Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words used to describe the standard for amending the pretrial order probably are less important than the meaning given them in practice. By not imposing any limitation on the ability to modify a pretrial order, the rule reflects the reality that in any process of continuous management what is done at one conference may have to be altered at the next. In the case of the final pretrial order, however, a more stringent standard is called for and the words 'to prevent manifest injustice,' which appeared in the original rule, have been retained. They have the virtue of familarity and adequately describe the restraint the trial judge should exercise. Many local rules make the plaintiff's attorney responsible for drafting a proposed pretrial order, either before or after the conference. Others allow the court to appoint any of the attorneys to perform the task, and others leave it to the court. See Note, Pretrial Conference: A Critical Examination of Local Rules Adopted by Federal District Courts, 64 Va.L.Rev. 467 (1978). Rule 16 has never addressed this matter. Since there is no consensus about which method of drafting the order works best and there is no reason to believe that nationwide uniformity is needed, the rule has been left silent on the point. See Handbook for Effective Pretrial Procedure, 37 F.R.D. 225 (1964). Subdivision (f); Sanctions. Original Rule 16 did not mention the sanctions that might be imposed for failing to comply with the rule. However, courts have not hestitated to enforce it by appropriate measures. See, e.g., Link v. Wabash R. Co., 370 U.S. 628 (1962) (district court's dismissal under Rule 41(b) after plaintiff's attorney failed to appear at a pretrial conference upheld); Admiral Theatre Corp. v. Douglas Theatre, 585 F.2d 877 (8th Cir. 1978) (district court has discretion to exclude exhibits or refuse to permit the testimony of a witness not listed prior to trial in contravention of its pretrial order). To reflect that existing practice, and to obviate dependence upon Rule 41(b) or the court's inherent power to regulate litigation, cf. Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f) expressly provides for imposing sanctions on disobedient or recalcitrant parties, their attorneys, or both in four types of situations. Rodes, Ripple & Mooney, Sanctions Imposable for Violations of the Federal Rules of Civil Procedure 65-67, 80-84, Federal Judicial Center (1981). Furthermore, explicit reference to sanctions reenforces the rule's intention to encourage forceful judicial management. Rule 16(f) incorporates portions of Rule 37(b)(2), which prescribes sanctions for failing to make discovery. This should facilitate application of Rule 16(f), since courts and lawyers already are familiar with the Rule 37 standards. Among the sanctions authorized by the new subdivision are: preclusion order, striking a pleading, staying the proceeding, default judgment, contempt, and charging a party, his attorney, or both with the expenses, including attorney's fees, caused by noncompliance. The contempt sanction, however, is only available for a violation of a court order. The references in Rule 16(f) are not exhaustive. As is true under Rule 37(b)(2), the imposition of sanctions may be sought by either the court or a party. In addition, the court has discretion to impose whichever sanction it feels is appropriate under the circumstances. Its action is reviewable under the abuse-of-discretion standard. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37057 Document 919 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE IV -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- IV. PARTIES ------DocID 37058 Document 920 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 17 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 17. Parties Plaintiff and Defendant; Capacity -STATUTE- (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (b) Capacity To Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., Sections 754 and 959(a). (c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7049, 102 Stat. 4401.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The real party in interest provision, except for the last clause which is new, is taken verbatim from (former) Equity Rule 37 (Parties Generally - Intervention), except that the word 'expressly' has been omitted. For similar provisions see N.Y.C.P.A. (1937) Sec. 210; Wyo.Rev.Stat.Ann. (1931) Sec. 89-501, 89-502, 89-503; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r. 8. See also Equity Rule 41 (Suit to Execute Trusts of Will - Heir as Party). For examples of statutes of the United States providing particularly for an action for the use or benefit of another in the name of the United States, see U.S.C., Title 40, Sec. 270b (Suit by persons furnishing labor and material for work on public building contracts * * * may sue on a payment bond, 'in the name of the United States for the use of the person suing'); and U.S.C., Title 25, Sec. 201 (Penalties under laws relating to Indians - how recovered). Compare U.S.C., Title 26, (former) Sec. 1645(c) (Suits for penalties, fines, and forfeitures, under this title, where not otherwise provided for, to be in name of United States). Note to Subdivision (b). For capacity see generally Clark and Moore, New Federal Civil Procedure - II. Pleadings and Parties, 44 Yale L.J. 1291, 1312-1317 (1935) and specifically Coppedge v. Clinton, 72 F.2d 531 (C.C.A.10th, 1934) (natural person); David Lupton's Sons Co. v. Automobile Club of America, 225 U.S. 489, 32 S.Ct. 711, 56 L.Ed. 1177, Ann.Cas. 1914A, 699 (1912) (corporation); Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903 (1933) (unincorporated assn.); United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762 (1922) (federal substantive right enforced against unincorporated association by suit against the association in its common name without naming all its members as parties). This rule follows the existing law as to such associations, as declared in the case last cited above. Compare Moffat Tunnel League v. United States, 289 U.S. 113, 53 S.Ct. 543, 77 L.Ed. 1069 (1933). See note to Rule 23, clause (1). Note to Subdivision (c). The provision for infants and incompetent persons is substantially (former) Equity Rule 70 (Suits by or Against Incompetents) with slight additions. Compare the more detailed English provisions, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 16-21. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The new matter (in subdivision (b)) makes clear the controlling character of Rule 66 regarding suits by or against a federal receiver in a federal court. 1948 AMENDMENT The amendment effective October 20, 1949, deleted the words 'Rule 66' at the end of subdivision (b) and substituted the words 'Title 28, U.S. C., Sec. 754 and 959(a)'. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The minor change in the text of the rule is designed to make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule. These illustrations, of course, carry no negative implication to the effect that there are not other instances of recognition as the real party in interest of one whose standing as such may be in doubt. The enumeration is simply of cases in which there might be substantial doubt as to the issue but for the specific enumeration. There are other potentially arguable cases that are not excluded by the enumeration. For example, the enumeration states that the promisee in a contract for the benefit of a third party may sue as real party in interest; it does not say, because it is obvious, that the third-party beneficiary may sue (when the applicable law gives him that right.) The rule adds to the illustrative list of real parties in interest a bailee - meaning, of course, a bailee suing on behalf of the bailor with respect to the property bailed. (When the possessor of property other than the owner sues for an invasion of the possessory interest he is the real party in interest.) The word 'bailee' is added primarily to preserve the admiralty practice whereby the owner of a vessel as bailee of the cargo, or the master of the vessel as bailee of both vessel and cargo, sues for damage to either property interest or both. But there is no reason to limit such a provision to maritime situations. The owner of a warehouse in which household furniture is stored is equally entitled to sue on behalf of the numerous owners of the furniture stored. Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed - in both maritime and nonmaritime cases. See Levinson v. Deupree, 345 U.S. 648 (1953); Link Aviation, Inc. v. Downs, 325 F.2d 613 (D.C.Cir. 1963). The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. It does not mean, for example, that, following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and have the benefit of suspension of the limitation period. It does not even mean, when an action is filed by the personal representative of John Smith, of Buffalo, in the good faith belief that he was aboard the flight, that upon discovery that Smith is alive and well, having missed the fatal flight, the representative of James Brown, of San Francisco, an actual victim, can be substituted to take advantage of the suspension of the limitation period. It is, in cases of this sort, intended to insure against forfeiture and injustice - in short, to codify in broad terms the salutary principle of Levinson v. Deupree, 345 U.S. 648 (1953), and Link Aviation, Inc. v. Downs, 325 F.2d 613 (D.C.Cir. 1963). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. 1988 AMENDMENT Subd. (a). Pub. L. 100-690, which directed amendment of subd. (a) by striking 'with him', could not be executed because of the intervening amendment by the Court by order dated Apr. 25, 1988, eff. Aug. 1, 1988. -CROSS- CROSS REFERENCES Action by - One or more on behalf of class, see rule 23. United States for use of materialmen on public building contracts, see section 270b of Title 40, Public Buildings, Property, and Works. Perpetuation of testimony of minor or incompetent, see rule 27. ------DocID 37059 Document 921 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 18 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 18. Joinder of Claims and Remedies -STATUTE- (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party. (b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). 1. Recent development, both in code and common law states, has been toward unlimited joinder of actions. See Ill.Rev.Stat. (1937) ch. 110, Sec. 168; N.J.S.A. 2:27-37, as modified by N.J.Sup.Ct.Rules, Rule 21, 2 N.J.Misc. 1208 (1924); N.Y.C.P.A. (1937) Sec. 258 as amended by Laws of 1935, ch. 339. 2. This provision for joinder of actions has been patterned upon (former) Equity Rule 26 (Joinder of Causes of Action) and broadened to include multiple parties. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 18, r.r. 1-9 (noting rules 1 and 6). The earlier American codes set forth classes of joinder, following the now abandoned New York rule. See N.Y.C.P.A. Sec. 258 before amended in 1935; Compare Kan.Gen.Stat.Ann. (1935) Sec. 60-601; Wis.Stat. (1935) Sec. 263.04 for the more liberal practice. 3. The provisions of this rule for the joinder of claims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For the jurisdictional aspects of joinder of claims, see Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure (1936), 45 Yale L.J. 393, 397-410. For separate trials of joined claims, see Rule 42(b). Note to Subdivision (b). This rule is inserted to make it clear that in a single action a party should be accorded all the relief to which he is entitled regardless of whether it is legal or equitable or both. This necessarily includes a deficiency judgment in foreclosure actions formerly provided for in (former) Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.). In respect to fraudulent conveyances the rule changes the former rule requiring a prior judgment against the owner (Braun v. American Laundry Mach. Co., 56 F.2d 197 (S.D.N.Y. 1932)) to conform to the provisions of the Uniform Fraudulent Conveyance Act, Sec. 9 and 10. See McLaughlin, Application of the Uniform Fraudulent Conveyance Act, 46 Harv.L.Rev. 404, 444 (1933). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The Rules 'proceed upon the theory that no inconvenience can result from the joinder of any two or more matters in the pleadings, but only from trying two or more matters together which have little or nothing in common.' Sunderland, The New Federal Rules, 45 W.Va.L.Q. 5, 13 (1938); see Clark, Code Pleading 58 (2d ed. 1947). Accordingly, Rule 18(a) has permitted a party to plead multiple claims of all types against an opposing party, subject to the court's power to direct an appropriate procedure for trying the claims. See Rules 42(b), 20(b), 21. The liberal policy regarding joinder of claims in the pleadings extends to cases with multiple parties. However, the language used in the second sentence of Rule 18(a) - 'if the requirements of Rules 19 (necessary joinder of parties), 20 (permissive joinder of parties), and 22 (interpleader) are satisfied' - has led some courts to infer that the rules regulating joinder of parties are intended to carry back to Rule 18(a) and to impose some special limits on joinder of claims in multiparty cases. In particular, Rule 20(a) has been read as restricting the operation of Rule 18(a) in certain situations in which a number of parties have been permissively joined in an action. In Federal Housing Admr. v. Christianson, 26 F.Supp. 419 (D.Conn. 1939), the indorsee of two notes sued the three comakers of one note, and sought to join in the action a count on a second note which had been made by two of the three defendants. There was no doubt about the propriety of the joinder of the three parties defendant, for a right to relief was being asserted against all three defendants which arose out of a single 'transaction' (the first note) and a question of fact or law 'common' to all three defendants would arise in the action. See the text of Rule 20(a). The court, however, refused to allow the joinder of the count on the second note, on the ground that this right to relief, assumed to arise from a distinct transaction, did not involve a question common to all the defendants but only two of them. For analysis of the Christianson case and other authorities, see 2 Barron & Holtzoff, Federal Practice & Procedure, Sec. 533.1 (Wright ed. 1961); 3 Moore's Federal Practice, par. 18.04(3) (2d ed. 1963). If the court's view is followed, it becomes necessary to enter at the pleading stage into speculations about the exact relation between the claim sought to be joined against fewer than all the defendants properly joined in the action, and the claims asserted against all the defendants. Cf. Wright, Joinder of Claims and Parties Under Modern Pleading Rules, 36 Minn.L.Rev. 580, 605-06 (1952). Thus if it could be found in the Christianson situation that the claim on the second note arose out of the same transaction as the claim on the first or out of a transaction forming part of a 'series,' and that any question of fact or law with respect to the second note also arose with regard to the first, it would be held that the claim on the second note could be joined in the complaint. See 2 Barron & Holtzoff, supra, at 199; see also id. at 198 n. 60.4; cf. 3 Moore's Federal Practice, supra, at 1811. Such pleading niceties provide a basis for delaying and wasteful maneuver. It is more compatible with the design of the Rules to allow the claim to be joined in the pleading, leaving the question of possible separate trial of that claim to be later decided. See 2 Barron & Holtzoff, supra, Sec. 533.1; Wright, supra, 36 Minn.L.Rev. at 604-11; Developments in the Law - Multiparty Litigation in the Federal Courts, 71 Harv. 874, 970-71 (1958); Commentary, Relation Between Joinder of Parties and Joinder of Claims, 5 F.R.Serv. 822 (1942). It is instructive to note that the court in the Christianson case, while holding that the claim on the second note could not be joined as a matter of pleading, held open the possibility that both claims would later be consolidated for trial under Rule 42(a). See 26 F.Supp. 419. Rule 18(a) is now amended not only to overcome the Christianson decision and similar authority, but also to state clearly as a comprehensive proposition, that a party asserting a claim (an original claim, counterclaim, cross-claim, or third-party claim) may join as many claims as he has against an opposing party. See Noland Co., Inc. v. Graver Tank & Mfg. Co., 301 F.2d 43, 49-51 (4th Cir. 1962); but cf. C. W. Humphrey Co. v. Security Alum. Co., 31 F.R.D. 41 (E.D.Mich. 1962) This permitted joinder of claims is not affected by the fact that there are multiple parties in the action. The joinder of parties is governed by other rules operating independently. It is emphasized that amended Rule 18(a) deals only with pleading. As already indicated, a claim properly joined as a matter of pleading need not be proceeded with together with the other claim if fairness or convenience justifies separate treatment. Amended Rule 18(a), like the rule prior to amendment, does not purport to deal with questions of jurisdiction or venue which may arise with respect to claims properly joined as a matter of pleading. See Rule 82. See also the amendment of Rule 20(a) and the Advisory Committee's Note thereto. Free joinder of claims and remedies is one of the basic purposes of unification of the admiralty and civil procedure. The amendment accordingly provides for the inclusion in the rule of maritime claims as well as those which are legal and equitable in character. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FORMS Claim for debt and to set aside fraudulent conveyance, see form 13, Appendix of Forms. CROSS REFERENCES Counterclaims, see rule 13. General rules of pleading, see rule 8. One form of action, see rule 2. Separate trial of joined claims, see rule 42. Severance of claim against party, see rule 21. ------DocID 37060 Document 922 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 19 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 19. Joinder of Persons Needed for Just Adjudication -STATUTE- (a) Persons To Be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The first sentence with verbal differences (e.g., 'united' interest for 'joint' interest) is to be found in (former) Equity Rule 37 (Parties Generally - Intervention). Such compulsory joinder provisions are common. Compare Alaska Comp. Laws (1933) Sec. 3392 (containing in same sentence a 'class suit' provision); Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec. 89-515 (immediately followed by 'class suit' provisions, Sec. 89-516). See also (former) Equity Rule 42 (Joint and Several Demands). For example of a proper case for involuntary plaintiff, see Independent Wireless Telegraph Co. v. Radio Corp. of America, 269 U.S. 459, 46 S.Ct. 166, 70 L.Ed. 357 (1926). The joinder provisions of this rule are subject to Rule 82 (Jurisdiction and Venue Unaffected). Note to Subdivision (b). For the substance of this rule see (former) Equity Rule 39 (Absence of Persons Who Would be Proper Parties) and U.S.C., Title 28, Sec. 111 (now 1391) (When part of several defendants cannot be served); Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997 (1919). See also the second and third sentences of (former) Equity Rule 37 (Parties Generally - Intervention). Note to Subdivision (c). For the substance of this rule see the fourth subdivision of (former) Equity Rule 25 (Bill of Complaint - Contents). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT GENERAL CONSIDERATIONS Whenever feasible, the persons materially interested in the subject of an action - see the more detailed description of these persons in the discussion of new subdivision (a) below - should be joined as parties so that they may be heard and a complete disposition made. When this comprehensive joinder cannot be accomplished - a situation which may be encountered in Federal courts because of limitations on service of process, subject matter jurisdiction, and venue - the case should be examined pragmatically and a choice made between the alternatives of proceeding with the action in the absence of particular interested persons, and dismissing the action. Even if the court is mistaken in its decision to proceed in the absence of an interested person, it does not by that token deprive itself of the power to adjudicate as between the parties already before it through proper service of process. But the court can make a legally binding adjudication only between the parties actually joined in the action. It is true that an adjudication between the parties before the court may on occasion adversely affect the absent person as a practical matter, or leave a party exposed to a later inconsistent recovery by the absent person. These are factors which should be considered in deciding whether the action should proceed, or should rather be dismissed; but they do not themselves negate the court's power to adjudicate as between the parties who have been joined. DEFECTS IN THE ORIGINAL RULE The foregoing propositions were well understood in the older equity practice, see Hazard, Indispensable Party: The Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and Rule 19 could be and often was applied in consonance with them. But experience showed that the rule was defective in its phrasing and did not point clearly to the proper basis of decision. Textual defects. - (1) The expression 'persons * * * who ought to be parties if complete relief is to be accorded between those already parties,' appearing in original subdivision (b), was apparently intended as a description of the persons whom it would be desirable to join in the action, all questions of feasibility of joinder being put to one side; but it was not adequately descriptive of those persons. (2) The word 'Indispensable,' appearing in original subdivision (b), was apparently intended as an inclusive reference to the interested persons in whose absence it would be advisable, all factors having been considered, to dismiss the action. Yet the sentence implied that there might be interested persons, not 'indispensable.' in whose absence the action ought also to be dismissed. Further, it seemed at least superficially plausible to equate the word 'indispensable' with the expression 'having a joint interest,' appearing in subdivision (a). See United States v. Washington Inst. of Tech., Inc., 138 F.2d 25, 26 (3d Cir. 1943); cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). But persons holding an interest technically 'joint' are not always so related to an action that it would be unwise to proceed without joining all of them, whereas persons holding an interest not technically 'joint' may have this relation to an action. See Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 356 ff., 483 (1957). (3) The use of 'indispensable' and 'joint interest' in the context of original Rule 19 directed attention to the technical or abstract character of the rights or obligations of the persons whose joinder was in question, and correspondingly distracted attention from the pragmatic considerations which should be controlling. (4) The original rule, in dealing with the feasibility of joining a person as a party to the action, besides referring to whether the person was 'subject to the jurisdiction of the court as to both service of process and venue,' spoke of whether the person could be made a party 'without depriving the court of jurisdiction of the parties before it.' The second quoted expression used 'jurisdiction' in the sense of the competence of the court over the subject matter of the action, and in this sense the expression was apt. However, by a familiar confusion, the expression seems to have suggested to some that the absence from the lawsuit of a person who was 'indispensable' or 'who ought to be (a) part(y)' itself deprived the court of the power to adjudicate as between the parties already joined. See Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co. of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert. denied, 329 U.S. 782 (1946), noted in 56 Yale L.J. 1088 (1947); Reed, supra, 55 Mich.L.Rev. at 332-34. Failure to point to correct basis of decision. The original rule did not state affirmatively what factors were relevant in deciding whether the action should proceed or be dismissed when joinder of interested persons was infeasible. In some instances courts did not undertake the relevant inquiry or were misled by the 'jurisdiction' fallacy. In other instances there was undue preoccupation with abstract classifications of rights or obligations, as against consideration of the particular consequences of proceeding with the action and the ways by which these consequences might be ameliorated by the shaping of final relief or other precautions. Although these difficulties cannot be said to have been general analysis of the cases showed that there was good reason for attempting to strengthen the rule. The literature also indicated how the rule should be reformed. See Reed, supra (discussion of the important case of Shields v. Barrow, 17 How. (58 U.S.) 130 (1854), appears at 55 Mich.L.Rev., p. 340 ff.); Hazard, supra; N.Y. Temporary Comm. on Courts, First Preliminary Report, Legis.Doc. 1957, No. 6(b), pp. 28, 233; N.Y. Judicial Council, Twelfth Ann.Rep., Legis.Doc. 1946, No. 17, p. 163; Joint Comm. on Michigan Procedural Revision, Final Report, Pt. III, p. 69 (1960); Note, Indispensable Parties in the Federal Courts, 65 Harv.L.Rev. 1050 (1952); Developments in the Law - Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 879 (1958); Mich.Gen.Court Rules, R. 205 (effective Jan. 1, 1963); N.Y.Civ.Prac.Law & Rules, Sec. 1001 (effective Sept. 1, 1963). THE AMENDED RULE New subdivision (a) defines the persons whose joinder in the action is desirable. Clause (1) stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or 'hollow' rather than complete relief to the parties before the court. The interests that are being furthered here are not only those of the parties, but also that of the public in avoiding repeated lawsuits on the same essential subject matter. Clause (2)(i) recognizes the importance of protecting the person whose joinder is in question against the pratical prejudice to him which may arise through a disposition of the action in his absence. Clause (2)(ii) recognizes the need for considering whether a party may be left, after the adjudication, in a position where a person not joined can subject him to a double or otherwise inconsistent liability. See Reed, supra, 55 Mich.L.Rev. at 330, 338; Note, supra, 65 Harv.L.Rev. at 1052-57; Developments in the Law, supra, 71 Harv.L.Rev. at 881-85. The subdivision (a) definition of persons to be joined is not couched in terms of the abstract nature of their interests - 'joint,' 'united,' 'separable,' or the like. See N.Y. Temporary Comm. on Courts, First Preliminary Report, supra; Developments in the Law, supra, at 880. It should be noted particularly, however, that the description is not at variance with the settled authorities holding that a tortfeasor with the usual 'joint-and-several' liability is merely a permissive party to an action against another with like liability. See 3 Moore's Federal Practice 2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice & Procedure Sec. 513.8 (Wright ed. 1961). Joinder of these tortfeasors continues to be regulated by Rule 20; compare Rule 14 on third-party practice. If a person as described in subdivision (a)(1)(2) is amenable to service of process and his joinder would not deprive the court of jurisdiction in the sense of competence over the action, he should be joined as a party; and if he has not been joined, the court should order him to be brought into the action. If a party joined has a valid objection to the venue and chooses to assert it, he will be dismissed from the action. Subdivision (b). - When a person as described in subdivision (a)(1)-(2) cannot be made a party, the court is to determine whether in equity and good conscience the action should proceed among the parties already before it, or should be dismissed. That this decision is to be made in the light of pragmatic considerations has often been acknowledged by the courts. See Roos v. Texas Co., 23 F.2d 171 (2d Cir. 1927), cert. denied, 277 U.S. 587 (1928); Niles-Bement-Pond Co. v. Iron Moulders, Union, 254 U.S. 77, 80 (1920). The subdivision sets out four relevant considerations drawn from the experience revealed in the decided cases. The factors are to a certain extent overlapping, and they are not intended to exclude other considerations which may be applicable in particular situations. The first factor brings in a consideration of what a judgment in the action would mean to the absentee. Would the absentee be adversely affected in a practical sense, and if so, would the prejudice be immediate and serious, or remote and minor? The possible collaterial consequences of the judgment upon the parties already joined are also to be appraised. Would any party be exposed to a fresh action by the absentee, and if so, how serious is the threat? See the elaborate discussion in Reed, supra; cf. A. L. Smith Iron Co. v. Dickson, 141 F.2d 3 (2d Cir. 1944); Caldwell Mfg. Co. v. Unique Balance Co., 18 F.R.D. 258 (S.D.N.Y. 1955). The second factor calls attention to the measures by which prejudice may be averted or lessened. The 'shaping of relief' is a familiar expedient to this end. See, e.g., the award of money damages in lieu of specific relief where the latter might affect an absentee adversely. Ward v. Deavers, 203 F.2d 72 (D.C.Cir. 1953); Miller & Lux, Inc. v. Nickel, 141 F.Supp. 41 (N.D.Calif. 1956). On the use of 'protective provisions,' see Roos v. Texas Co., supra; Atwood v. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir. 1921), cert. denied, 257 U.S. 661 (1922); cf. Stumpf v. Fidelity Gas Co., 294 F.2d 886 (9th Cir. 1961); and the general statement in National Licorice Co. v. Labor Board, 309 U.S. 350, 363 (1940). Sometimes the party is himself able to take measures to avoid prejudice. Thus a defendant faced with a prospect of a second suit by an absentee may be in a position to bring the latter into the action by defensive interpleader. See Hudson v. Newell, 172 F.2d 848, 852 mod., 176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, 198 F.2d 83, 86 (D.C.Cir. 1952); Abel v. Brayton Flying Service, Inc., 248 F.2d 713, 716 (5th Cir. 1957) (suggestion of possibility of counterclaim under Rule 13(h)); cf. Parker Rust-Proof Co. v. Western Union Tel. Co., 105 F.2d 976 (2d Cir. 1939) cert. denied, 308 U.S. 597 (1939). See also the absentee may sometimes be able to avert prejudice to himself by voluntarily appearing in the action or intervening on an ancillary basis. See Developments in the Law, supra, 71 Harv.L.Rev. at 882; Annot., Intervention or Subsequent Joinder of Parties as Affecting Jurisdiction of Federal Court Based on Diversity of Citizenship, 134 A.L.R. 335 (1941); Johnson v. Middleton, 175 F.2d 535 (7th Cir. 1949); Kentucky Nat. Gas Corp. v. Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v. McCormack, 159 F.2d 219 (5th Cir. 1947). The court should consider whether this, in turn, would impose undue hardship on the absentee. (For the possibility of the court's informing an absentee of the pendency of the action, see comment under subdivision (c) below.) The third factor - whether an 'adequate' judgment can be rendered in the absence of a given person - calls attention to the extent of the relief that can be accorded among the parties joined. It meshes with the other factors, especially the 'shaping of relief' mentioned under the second factor. Cf. Kroese v. General Steel Castings Corp., 179 F.2d 760 (3d Cir. 1949), cert. denied, 339 U.S. 983 (1950). The fourth factor, looking to the practical effects of a dismissal, indicates that the court should consider whether there is any assurance that the plaintiff, if dismissed, could sue effectively in another forum where better joinder would be possible. See Fitzgerald v. Haynes, 241 F.2d 417, 420 (3d Cir. 1957); Fouke v. Schenewerk, 197 F.2d 234, 236 (5th Cir. 1952); cf. Warfield v. Marks, 190 F.2d 178 (5th Cir. 1951). The subdivision uses the word 'indispensable' only in a conclusory sense, that is, a person is 'regarded as indispensable' when he cannot be made a party and, upon consideration of the factors above mention, it is determined that in his absence it would be preferable to dismiss the action, rather than to retain it. A person may be added as a party at any stage of the action on motion or on the court's initiative (see Rule 21); and a motion to dismiss, on the ground that a person has not been joined and justice requires that the action should not proceed in his absence, may be made as late as the trial on the merits (see Rule 12(h)(2), as amended; cf. Rule 12(b)(7), as amended). However, when the moving party is seeking dismissal in order to protect himself against a later suit by the absent person (subdivision (a)(2)(ii)), and is not seeking vicariously to protect the absent person against a prejudicial judgment (subdivision (a)(2)(i)), his undue delay in making the motion can properly be counted against him as a reason for denying the motion. A joinder question should be decided with reasonable promptness, but decision may properly be deferred if adequate information is not available at the time. Thus the relationship of an absent person to the action, and the practical effects of an adjudication upon him and others, may not be sufficiently revealed at the pleading stage; in such a case it would be appropriate to defer decision until the action was further advanced. Cf. Rule 12(d). The amended rule makes no special provision for the problem arising in suits against subordinate Federal officials where it has often been set up as a defense that some superior officer must be joined. Frequently this defense has been accompanied by or intermingled with defenses of sovereign community or lack of consent of the United States to suit. So far as the issue of joinder can be isolated from the rest, the new subdivision seems better adapted to handle it than the predecessor provision. See the discussion in Johnson v. Kirkland, 290 F.2d 440, 446-47 (5th Cir. 1961) (stressing the practical orientation of the decisions); Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955). Recent legislation, P.L. 87-748, 76 Stat. 744, approved October 5, 1962, adding Sec. 1361, 1391(e) to Title 28, U.S.C., vests original jurisdiction in the District Courts over actions in the nature of mandamus to compel officials of the United States to perform their legal duties, and extends the range of service of process and liberalizes venue in these actions. If, then, it is found that a particular official should be joined in the action, the legislation will make it easy to bring him in. Subdivision (c) parallels the predecessor subdivision (c) of Rule 19. In some situations it may be desirable to advise a person who has not been joined of the fact that the action is pending, and in particular cases the court in its discretion may itself convey this information by directing a letter or other informal notice to the absentee. Subdivision (d) repeats the exception contained in the first clause of the predecessor subdivision (a). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Class actions, see rule 23. Indispensable party, defense of failure to join, see rule 12. Interpleader, see rule 22. Intervention, see rule 24. Jurisdiction and venue unaffected by these rules, see rule 82. Lien enforcement, ordering absent defendant to appear or plead, see section 1655 of this title. Misjoinder and nonjoinder of parties, see rule 21. Permissive joinder of parties, see rule 20. Substitution of parties, see rule 25. ------DocID 37061 Document 923 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 20 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 20. Permissive Joinder of Parties -STATUTE- (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. (b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The provisions for joinder here stated are in substance the provisions found in England, California, Illinois, New Jersey, and New York. They represent only a moderate expansion of the present federal equity practice to cover both law and equity actions. With this rule compare also (former) Equity Rules 26 (Joinder of Causes of Action), 37 (Parties Generally - Intervention), 40 (Nominal Parties), and 42 (Joint and Several Demands). The provisions of this rule for the joinder of parties are subject to Rule 82 (Jurisdiction and Venue Unaffected). Note to Subdivision (a). The first sentence is derived from English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r. 1. Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 378, 379a; Ill.Rev.Stat. (1937) ch. 110, Sec. 147-148; N.J.Comp.Stat. (2 Cum.Supp., 1911-1924), N.Y.C.P.A. (1937) Sec. 209, 211. The second sentence is derived from English Rules Under the Judicature Act (he Annual Practice, 1937) O. 16, r. 4. The third sentence is derived from O. 16, r. 5, and the fourth from O. 16, r.r. 1 and 4. Note to Subdivision (b). This is derived from English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 1 and 5. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT See the amendment of Rule 18(a) and the Advisory Committee's Note thereto. It has been thought that a lack of clarity in the antecedent of the word 'them,' as it appeared in two places in Rule 20(a), contributed to the view, taken by some courts, that this rule limited the joinder of claims in certain situations of permissive party joinder. Although the amendment of Rule 18(a) should make clear that this view is untenable, it has been considered advisable to amend Rule 20(a) to eliminate any ambiguity. See 2 Barron & Holtzoff, Federal Practice & Procedure 202 (Wright Ed. 1961). A basic purpose of unification of admiralty and civil procedure is to reduce barriers to joinder; hence the reference to 'any vessel,' etc. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Collusive and improper joinder of parties, jurisdiction of district courts, see section 1359 of this title. Interpleader, see rule 22. Intervention, see rule 24. Misjoinder and nonjoinder of parties, see rule 21. Necessary joinder of parties, see rule 19. Substitution of parties, see rule 25. ------DocID 37062 Document 924 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 21 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 21. Misjoinder and Non-Joinder of Parties -STATUTE- Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r. 11. See also (former) Equity Rules 43 (Defect of Parties - Resisting Objection) and 44 (Defect of Parties - Tardy Objection). For separate trials see Rules 13(i) (Counterclaims and Cross-Claims: Separate Trials; Separate Judgments), 20(b) (Permissive Joinder of Parties: Separate Trials), and 42(b) (Separate Trials, generally) and the note to the latter rule. -CROSS- CROSS REFERENCES Collusive and improper joinder of parties, jurisdiction of district courts, see section 1359 of this title. Intervention of parties, see rule 24. Necessary joinder of parties, see rule 19. Permissive joinder of parties, see rule 20. Removal of causes, realignment of parties, see section 1447 of this title. ------DocID 37063 Document 925 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 22 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 22. Interpleader -STATUTE- (1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20. (2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by Title 28, U.S.C., Sec. 1335, 1397, and 2361. Actions under those provisions shall be conducted in accordance with these rules. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The first paragraph provides for interpleader relief along the newer and more liberal lines of joinder in the alternative. It avoids the confusion and restrictions that developed around actions of strict interpleader and actions in the nature of interpleader. Compare John Hancock Mutual Life Insurance Co. v. Kegan et al., 22 F.Supp. 326 (D.C.Md., 1938). It does not change the rules on service of process, jurisdiction, and venue, as established by judicial decision. The second paragraph allows an action to be brought under the recent interpleader statute when applicable. By this paragraph all remedies under the statute are continued, but the manner of obtaining them is in accordance with these rules. For temporary restraining orders and preliminary injunctions under this statute, see Rule 65(e). This rule substantially continues such statutory provisions as U.S.C., Title 38, Sec. 445 (now 784) (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (actions upon veterans' contracts of insurance with the United States), providing for interpleader by the United States where it acknowledges indebtedness under a contract of insurance with the United States; U.S.C., Title 49, Sec. 97 (Interpleader of conflicting claimants) (by carrier which has issued bill of lading). See Chafee, The Federal Interpleader Act of 1936: I and II (1936), 45 Yale L.J. 963, 1161. 1948 AMENDMENT The amendment effective October 20, 1949, substituted the reference to 'Title 28, U.S.C., Sec. 1335, 1397, and 2361,' at the end of the first sentence of paragraph (2), for the reference to 'Section 24(26) of the Judicial Code, as amended, U.S.C., Title 28, Sec. 41(26).' The amendment also substituted the words 'those provisions' in the second sentence of paragraph (2) for the words 'that section.' NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37064 Document 926 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 23 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 23. Class Actions -STATUTE- (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. (c) Determination by Order Whether Class Action To Be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. (2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel. (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. (d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. (e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This is a substantial restatement of (former) Equity Rule 38 (Representatives of Class) as that rule has been construed. It applies to all actions, whether formerly denominated legal or equitable. For a general analysis of class actions, effect of judgment, and requisites of jurisdiction see Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L.J. 551, 570 et seq. (1937); Moore and Cohn, Federal Class Actions, 32 Ill.L.Rev. 307 (1937); Moore and Cohn, Federal Class Actions - Jurisdiction and Effect of Judgment, 32 Ill.L.Rev. 555 - 567 (1938); Lesar, Class Suits and the Federal Rules, 22 Minn.L.Rev. 34 (1937); cf. Arnold and James, Cases on Trials, Judgments and Appeals (1936) 175; and see Blume, Jurisdictional Amount in Representative Suits, 15 Minn.L.Rev. 501 (1931). The general test of (former) Equity Rule 38 (Representatives of Class) that the question should be 'one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court,' is a common test. For states which require the two elements of a common or general interest and numerous persons, as provided for in (former) Equity Rule 38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws Ann. (Supp., 1936) Sec. 4918 (7); Georgia Code (1933) Sec. 37-1002, and see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r. 9. For statutory provisions providing for class actions when the question is one of common or general interest or when the parties are numerous, see Ala.Code Ann. (Michie, 1928) Sec. 5701; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-220; N.Y.C.P.A. (1937) Sec. 195; Wis.Stat. (1935) Sec. 260.12. These statutes have, however, been uniformly construed as though phrased in the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86 S.W.2d 155 (1935). The rule adopts the test of (former) Equity Rule 38, but defines what constitutes a 'common or general interest'. Compare with code provisions which make the action dependent upon the propriety of joinder of the parties. See Blume, The 'Common Questions' Principle in the Code Provision for Representative Suits, 30 Mich.L.Rev. 878 (1932). For discussion of what constitutes 'numerous persons' see Wheaton, Representative Suits Involving Numerous Litigants, 19 Corn.L.Q. 399 (1934); Note, 36 Harv.L.Rev. 89 (1922). Clause (1), Joint, Common, or Secondary Right. This clause is illustrated in actions brought by or against representatives of an unincorporated association. See Oster v. Brotherhood of Locomotive Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A., N.S., 1067 (1906); Colt v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932). Compare Rule 17(b) as to when an unincorporated association has capacity to sue or be sued in its common name; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762 (1922) (an unincorporated association was sued as an entity for the purpose of enforcing against it a federal substantive right); Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L.J. 551, 566 (for discussion of jurisdictional requisites when an unincorporated association sues or is sued in its common name and jurisdiction is founded upon diversity of citizenship). For an action brought by representatives of one group against representatives of another group for distribution of a fund held by an unincorporated association, see Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942 (U.S. 1853). Compare Christopher, et al. v. Brusselback, 302 U.S. 500, 58 S.Ct. 350, 82 L.Ed. 388 (1938). For an action to enforce rights held in common by policyholders against the corporate issuer of the policies, see Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921). See also Terry v. Little, 101 U.S. 216, 25 L.Ed. 864 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596 (D.C.N.Y., 1917) dealing with the right held in common by creditors to enforce the statutory liability of stockholders. Typical of a secondary action is a suit by stockholders to enforce a corporate right. For discussion of the general nature of these actions see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936); Glenn, The Stockholder's Suit - Corporate and Individual Grievances, 33 Yale L.J. 580 (1924); McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L.J. 421 (1937). See also Subdivision (b) of this rule which deals with Shareholder's Action; Note, 15 Minn.L.Rev. 453 (1931). Clause (2). A creditor's action for liquidation or reorganization of a corporation is illustrative of this clause. An action by a stockholder against certain named defendants as representatives of numerous claimants presents a situation converse to the creditor's action. Clause (3). See Everglades Drainage League v. Napoleon Broward Drainage Dist., 253 Fed. 246 (D.C.Fla., 1918); Gramling v. Maxwell, 52 F.2d 256 (D.C.N.C., 1931), approved in 30 Mich.L.Rev. 624 (1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921); Duke of Bedford v. Ellis (1901) A.C. 1, for class actions when there were numerous persons and there was only a question of law or fact common to them; and see Blume, The 'Common Questions' Principle in the Code Provision for Representative Suits, 30 Mich.L.Rev. 878 (1932). Note to Subdivision (b). This is (former) Equity Rule 27 (Stockholder's Bill) with verbal changes. See also Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882) and former Equity Rule 94, promulgated January 23, 1882, 104 U.S. IX. Note to Subdivision (c). See McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L.J. 421 (1937). NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE Note. Subdivision (b), relating to secondary actions by shareholders, provides among other things, that in such an action the complainant 'shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law . . .' As a result of the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (decided April 25, 1938, after this rule was promulgated by the Supreme Court, though before it took effect) a question has arisen as to whether the provision above quoted deals with a matter of substantive right or is a matter of procedure. If it is a matter of substantive law or right, then under Erie R. Co. v. Tompkins clause (1) may not be validly applied in cases pending in states whose local law permits a shareholder to maintain such actions, although not a shareholder at the time of the transactions complained of. The Advisory Committee, believing the question should be settled in the courts, proposes no change in Rule 23 but thinks rather that the situation should be explained in an appropriate note. The rule has a long history. In Hawes v. Oakland, 1882, 104 U.S. 450, the Court held that a shareholder could not maintain such an action unless he owned shares at the time of the transactions complained of, or unless they devolved on him by operation of law. At that time the decision in Swift v. Tyson, 1842, 16 Peters 1, was the law, and the federal courts considered themselves free to establish their own principles of equity jurisprudence, so the Court was not in 1882 and has not been, until Erie R. Co. v. Tompkins in 1938, concerned with the question whether Hawes v. Oakland dealt with substantive right or procedure. Following the decision in Hawes v. Oakland, and at the same term, the Court, to implement its decision, adopted (former) Equity Rule 94, which contained the same provision above quoted from Rule 23 F.R.C.P. The provision in (former) Equity Rule 94 was later embodied in (former) Equity Rule 27, of which the present Rule 23 is substantially a copy. In City of Quincy v. Steel, 1887, 120 U.S. 241, 245, 7 S.Ct. 520, the Court referring to Hawes v. Oakland said: 'In order to give effect to the principles there laid down, this Court at that term adopted Rule 94 of the rules of practice for courts of equity of the United States.' Some other cases dealing with (former) Equity Rules 94 or 27 prior to the decision in Erie R. Co. v. Tompkins are Dimpfel v. Ohio & Miss. R. R., 1884, 110 U.S. 209, 3 S.Ct. 573; Illinois Central R. Co. v. Adams, 1901, 180 U.S. 28, 34, 21 S.Ct. 251; Venner v. Great Northern Ry., 1908, 209 U.S. 24, 30, 28 S.Ct. 328; Jacobson v. General Motors Corp., S.D.N.Y. 1938, 22 F.Supp. 255, 257. These cases generally treat Hawes v. Oakland as establishing a 'principle' of equity, or as dealing not with jurisdiction but with the 'right' to maintain an action, or have said that the defense under the equity rule is analogous to the defense that the plaintiff has no 'title' and results in a dismissal 'for want of equity.' Those state decisions which held that a shareholder acquiring stock after the event may maintain a derivative action are founded on the view that it is a right belonging to the shareholder at the time of the transaction and which passes as a right to the subsequent purchaser. See Pollitz v. Gould, 1911, 202 N.Y. 11, 94 N.E. 1088. The first case arising after the decision in Erie R. Co. v. Tompkins, in which this problem was involved, was Summers v. Hearst, S.D.N.Y. 1938, 23 F.Supp. 986. It concerned (former) Equity Rule 27, as Federal Rule 23 was not then in effect. In a well considered opinion Judge Leibell reviewed the decisions and said: 'The federal cases that discuss this section of Rule 27 support the view that it states a principle of substantive law.' He quoted Pollitz v. Gould, 1911, 202 N.Y. 11, 94 N.E. 1088, as saying that the United States Supreme Court 'seems to have been more concerned with establishing this rule as one of practice than of substantive law' but that 'whether it be regarded as establishing a principle of law or a rule of practice, this authority has been subsequently followed in the United States courts.' He then concluded that, although the federal decisions treat the equity rule as 'stating a principle of substantive law', if (former) 'Equity Rule 27 is to be modified or revoked in view of Erie R. Co. v. Tompkins, it is not the province of this Court to suggest it, much less impliedly to follow that course by disregarding the mandatory provisions of the Rule.' Some other federal decisions since 1938 touch the question. In Picard v. Sperry Corporation, S.D.N.Y. 1941, 36 F.Supp. 1006, 1009-10, affirmed without opinion, C.C.A.2d, 1941, 120 F.2d 328, a shareholder, not such at the time of the transactions complained of, sought to intervene. The court held an intervenor was as much subject to Rule 23 as an original plaintiff; and that the requirement of Rule 23(b) was 'a matter of practice,' not substance, and applied in New York where the state law was otherwise, despite Erie R. Co. v. Tompkins. In York v. Guaranty Trust Co. of New York, C.C.A.2d, 1944, 143 F.2d 503, rev'd on other grounds, 1945, 65 S.Ct. 1464, the court said: 'Restrictions on the bringing of stockholders' actions, such as those imposed by F.R.C.P. 23(b) or other state statutes are procedural,' citing the Picard and other cases. In Gallup v. Caldwell, C.C.A.3d, 1941, 120 F.2d 90, 95, arising in New Jersey, the point was raised but not decided, the court saying that it was not satisfied that the then New Jersey rule differed from Rule 23(b), and that 'under the circumstances the proper course was to follow Rule 23(b).' In Mullins v. De Soto Securities Co., W.D.La. 1942, 45 F.Supp. 871, 878, the point was not decided, because the court found the Louisiana rule to be the same as that stated in Rule 23(b). In Toebelman v. Missouri-Kansas Pipe Line Co., D.Del. 1941, 41 F.Supp. 334, 340, the court dealt only with another part of Rule 23(b), relating to prior demands on the stockholders and did not discuss Erie R. Co. v. Tompkins, or its effect on the rule. In Perrott v. United States Banking Corp., D.Del. 1944, 53 F.Supp. 953, it appeared that the Delaware law does not require the plaintiff to have owned shares at the time of the transaction complained of. The court sustained Rule 23(b), after discussion of the authorities, saying: 'It seems to me the rule does not go beyond procedure. * * * Simply because a particular plaintiff cannot qualify as a proper party to maintain such an action does not destroy or even whittle at the cause of action. The cause of action exists until a qualified plaintiff can get it started in a federal court.' In Bankers Nat. Corp. v. Barr, S.D.N.Y. 1945, 9 Fed.Rules Serv. 23b.11, Case 1, the court held Rule 23(b) to be one of procedure, but that whether the plaintiff was a stockholder was a substantive question to be settled by state law. The New York rule, as stated in Pollitz v. Gould, supra, has been altered by an act of the New York Legislature, Chapter 667, Laws of 1944, effective April 9, 1944, General Corporation Law, Sec. 61, which provides that 'in any action brought by a shareholder in the right of a . . . corporation, it must appear that the plaintiff was a stockholder at the time of the transaction of which he complains, or that his stock thereafter devolved upon him by operation of law.' At the same time a further and separate provision was enacted, requiring under certain circumstances the giving of security for reasonable expenses and attorney's fees, to which security the corporation in whose right the action is brought and the defendants therein may have recourse. (Chapter 668, Laws of 1944, effective April 9, 1944, General Corporation Law, Sec. 61-b.) These provisions are aimed at so-called 'strike' stockholders' suits and their attendant abuses. Shielcrawt v. Moffett, Ct.App. 1945, 294 N.Y. 180, 61 N.E.2d 435, rev'g 51 N.Y.S.2d 188, aff'g 49 N.Y.S.2d 64; Noel Associates, Inc. v. Merrill, Sup.Ct. 1944, 184 Misc. 646, 63 N.Y.S.2d 143. Insofar as Sec. 61 is concerned, it has been held that the section is procedural in nature. Klum v. Clinton Trust Co., Sup.Ct. 1944, 183 Misc. 340, 48 N.Y.S.2d 267; Noel Associates, Inc. v. Merrill, supra. In the latter case the court pointed out that 'The 1944 amendment to Section 61 rejected the rule laid down in the Pollitz case and substituted, in place thereof, in its precise language, the rule which has long prevailed in the Federal Courts and which is now Rule 23(b) . . .' There is, nevertheless, a difference of opinion regarding the application of the statute to pending actions. See Klum v. Clinton Trust Co., supra (applicable); Noel Associates, Inc. v. Merrill, supra (inapplicable). With respect to Sec. 61-b, which may be regarded as a separate problem, Noel Associates, Inc. v. Merrill, supra, it has been held that even though the statute is procedural in nature - a matter not definitely decided - the Legislature evinced no intent that the provision should apply to actions pending when it became effective. Shielcrawt v. Moffett, supra. As to actions instituted after the effective date of the legislation, the constitutionality of Sec. 61-b is in dispute. See Wolf v. Atkinson, Sup.Ct. 1944, 182 Misc. 675, 49 N.Y.S.2d 703 (constitutional); Citron v. Mangel Stores Corp., Sup.Ct. 1944, 50 N.Y.S.2d 416 (unconstitutional); Zlinkoff, The American Investor and the Constitutionality of Section 61-B of the New York General Corporation Law, 1945, 54 Yale L.J. 352. New Jersey also enacted a statute, similar to Chapters 667 and 668 of the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp. 14:3-15. The New Jersey provision similar to Chapter 668, Sec. 61-b, differs, however, in that it specifically applies retroactively. It has been held that this provision is procedural and hence will not govern a pending action brought against a New Jersey corporation in the New York courts. Shielcrawt v. Moffett, Sup.Ct.N.Y. 1945, 184 Misc. 1074, 56 N.Y.S.2d 134. See also generally, 2 Moore's Federal Practice, 1938, 2250-2253, and Cum.Supplement Sec. 23.05. The decisions here discussed show that the question is a debatable one, and that there is respectable authority for either view, with a recent trend towards the view that Rule 23(b)(1) is procedural. There is reason to say that the question is one which should not be decided by the Supreme Court ex parte, but left to await a judicial decision in a litigated case, and that in the light of the material in this note, the only inference to be drawn from a failure to amend Rule 23(b) would be that the question is postponed to await a litigated case. The Advisory Committee is unanimously of the opinion that this course should be followed. If, however, the final conclusion is that the rule deals with a matter of substantive right, then the rule should be amended by adding a provision that Rule 23(b)(1) does not apply in jurisdictions where state law permits a shareholder to maintain a secondary action, although he was not a shareholder at the time of the transactions of which he complains. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Difficulties with the original rule. The categories of class actions in the original rule were defined in terms of the abstract nature of the rights involved: the so-called 'true' category was defined as involving 'joint, common, or secondary rights'; the 'hybrid' category, as involving 'several' rights related to 'specific property'; the 'spurious' category, as involving 'several' rights affected by a common question and related to common relief. It was thought that the definitions accurately described the situations amendable to the class-suit device, and also would indicate the proper extent of the judgment in each category, which would in turn help to determine the res judicata effect of the judgment if questioned in a later action. Thus the judgments in 'true' and 'hybrid' class actions would extend to the class (although in somewhat different ways); the judgment in a 'spurious' class action would extend only to the parties including intervenors. See Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo.L.J. 551, 570-76 (1937). In practice, the terms 'joint,' 'common,' etc., which were used as the basis of the Rule 23 classification proved obscure and uncertain. See Chaffee, Some Problems of Equity 245-46, 256-57 (1950); Kalven & Rosenfield, The Contemporary Function of the Class Suit, 8 U. of Chi.L.Rev. 684, 707 & n. 73 (1941); Keeffe, Levy & Donovan, Lee Defeats Ben Hur, 33 Corn.L.Q. 327, 329-36 (1948); Developments in the Law: Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 931 (1958); Advisory Committee's Note to Rule 19, as amended. The courts had considerable difficulty with these terms. See, e.g., Gullo v. Veterans' Coop. H. Assn., 13 F.R.D. 11 (D.D.C. 1952); Shipley v. Pittsburgh & L. E. R. Co., 70 F.Supp. 870 (W.D.Pa. 1947); Deckert v. Independence Shares Corp., 27 F.Supp. 763 (E.D.Pa. 1939), rev'd, 108 F.2d 51 (3d Cir. 1939), rev'd, 311 U.S. 282 (1940), on remand, 39 F.Supp. 592 (E.D.Pa. 1941), rev'd sub nom. Pennsylvania Co. for Ins. on Lives v. Deckert, 123 F.2d 979 (3d Cir. 1941) (see Chafee, supra, at 264-65). Nor did the rule provide an adequate guide to the proper extent of the judgments in class actions. First, we find instances of the courts classifying actions as 'true' or intimating that the judgments would be decisive for the class where these results seemed appropriate but were reached by dint of depriving the word 'several' of coherent meaning. See, e.g., System Federation No. 91 v. Reed, 180 F.2d 991 (6th Cir. 1950); Wilson v. City of Paducah, 100 F.Supp. 116 (W.D.Ky. 1951); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323 U.S. 776 (1944); United States v. American Optical Co., 97 F.Supp. 66 (N.D.Ill. 1951); (National Hairdressers' & C. Assn. v. Philad. Co., 34 F.Supp. 264 (D.Del. 1940); 41 F.Supp. 701 (D.Del. 1940), aff'd mem., 129 F.2d 1020 (3d Cir. 1942). Second, we find cases classified by the courts as 'spurious' in which, on a realistic view, it would seem fitting for the judgments to extend to the class. See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245 (E.D.Pa. 1954); aff'd 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); York v. Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 90 (1945) (see Chafee, supra, at 208); cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3d Cir. 1944), cert. denied, 325 U.S. 807 (1945). But cf. the early decisions, Duke of Bedford v. Ellis (1901), A.C. 1; Sheffield Waterworks v. Yeomans, L.R. 2 Ch.App. 8 (1866); Brown v. Vermuden, 1 Ch.Cas. 272, 22 Eng.Rep. 796 (1676). The 'spurious' action envisaged by original Rule 23 was in any event an anomaly because, although denominated a 'class' action and pleaded as such, it was supposed not to adjudicate the rights or liabilities of any person not a party. It was believed to be an advantage of the 'spurious' category that it would invite decisions that a member of the 'class' could, like a member of the class in a 'true' or 'hybrid' action, intervene on an ancillary basis without being required to show an independent basis of Federal jurisdiction, and have the benefit of the date of the commencement of the action for purposes of the statute of limitations. See 3 Moore's Federal Practice, pars. 23.10(1), 23.12 (2d ed. 1963). These results were attained in some instances but not in others. On the statute of limitations, see Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S. 801 (1963); but cf. P. W. Husserl, Inc. v. Newman, 25 F.R.D. 264 (S.D.N.Y. 1960); Athas v. Day, 161 F.Supp. 916 (D.Colo. 1958). On ancillary intervention, see Amen v. Black, 234 F.2d 12 (10th Cir. 1956), cert. granted, 352 U.S. 888 (1956), dism. on stip., 355 U.S. 600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D. 128 (W.D.Mo. 1952). The results, however, can hardly depend upon the mere appearance of a 'spurious' category in the rule; they should turn no more basic considerations. See discussion of subdivision (c)(1) below. Finally, the original rule did not squarely address itself to the question of the measures that might be taken during the course of the action to assure procedural fairness, particularly giving notice to members of the class, which may in turn be related in some instances to the extension of the judgment to the class. See Chafee, supra, at 230-31; Keeffe, Levy & Donovan, supra; Developments in the Law, supra, 71 Harv.L.Rev. at 937-38; Note, Binding Effect of Class Actions, 67 Harv.L.Rev. 1059, 1062-65 (1954); Note, Federal Class Actions: A Suggested Revision of Rule 23, 46 Colum.L.Rev. 818, 833-36 (1946); Mich.Gen.Court R. 208.4 (effective Jan. 1, 1963); Idaho R.Civ.P. 23(d); Minn.R.Civ.P. 23.04; N.Dak.R.Civ.P. 23(d). The amended rule describes in more practical terms the occasions for maintaining class actions; provides that all class actions maintained to the end as such will result in judgments including those whom the court finds to be members of the class, whether or not the judgment is favorable to the class; and refers to the measures which can be taken to assure the fair conduct of these actions. Subdivision (a) states the prerequisites for maintaining any class action in terms of the numerousness of the class making joinder of the members impracticable, the existence of questions common to the class, and the desired qualifications of the representative parties. See Weinstein, Revision of Procedure; Some Problems in Class Actions, 9 Buffalo L.Rev. 433, 458-59 (1960); 2 Barron & Holtzoff, Federal Practice & Procedure Sec. 562, at 265, Sec. 572, at 351-52 (Wright ed. 1961). These are necessary but not sufficient conditions for a class action. See, e.g., Giordano v. Radio Corp. of Am., 183 F.2d 558, 560 (3d Cir. 1950); Zachman v. Erwin, 186 F.Supp. 681 (S.D.Tex. 1959); Baim & Blank, Inc. v. Warren Connelly Co., Inc., 19 F.R.D. 108 (S.D.N.Y. 1956). Subdivision (b) describes the additional elements which in varying situations justify the use of a class action. Subdivision (b)(1). The difficulties which would be likely to arise if resort were had to separate actions by or against the individual members of the class here furnish the reasons for, and the principal key to, the propriety and value of utilizing the class-action device. The considerations stated under clauses (A) and (B) are comparable to certain of the elements which define the persons whose joinder in an action is desirable as stated in Rule 19(a), as amended. See amended Rule 19(a)(2)(i) and (ii), and the Advisory Committee's Note thereto; Hazard, Indispensable Party; The Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254, 1259-60 (1961); cf. 3 Moore, supra, par. 23.08, at 3435. Clause (A): One person may have rights against, or be under duties toward, numerous persons constituting a class, and be so positioned that conflicting or varying adjudications in lawsuits with individual members of the class might establish incompatible standards to govern his conduct. The class action device can be used effectively to obviate the actual or virtual dilemma which would thus confront the party opposing the class. The matter has been stated thus: 'The felt necessity for a class action is greatest when the courts are called upon to order or sanction the alteration of the status quo in circumstances such that a large number of persons are in a position to call on a single person to alter the status quo, or to complain if it is altered, and the possibility exists that (the) actor might be called upon to act in inconsistent ways.' Louisell & Hazard, Pleading and Procedure; State and Federal 719 (1962); see Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67 (1921). To illustrate: Separate actions by individuals against a municipality to declare a bond issue invalid or condition or limit it, to prevent or limit the making of a particular appropriation or to compel or invalidate an assessment, might create a risk of inconsistent or varying determinations. In the same way, individual litigations of the rights and duties of riparian owners, or of landowners' rights and duties respecting a claimed nuisance, could create a possibility of incompatible adjudications. Actions by or against a class provide a ready and fair means of achieving unitary adjudication. See Maricopa County Mun. Water Con. Dist. v. Looney, 219 F.2d 529 (9th Cir. 1955); Rank v. Krug, 142 F.Supp. 1, 154-59 (S.D.Calif. 1956), on app., State of California v. Rank, 293 F.2d 340, 348 (9th Cir. 1961); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert. denied 359 U.S. 978 (1959); cf. Martinez v. Maverick Cty. Water Con. & Imp. Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, par. 23.11(2), at 3458-59. Clause (B): This clause takes in situations where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter. The vice of an individual actions would lie in the fact that the other members of the class, thus practically concluded, would have had no representation in the lawsuit. In an action by policy holders against a fraternal benefit association attacking a financial reorganization of the society, it would hardly have been practical, if indeed it would have been possible, to confine the effects of a validation of the reorganization to the individual plaintiffs. Consequently a class action was called for with adequate representation of all members of the class. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); Waybright v. Columbian Mut. Life Ins. Co., 30 F.Supp. 885 (W.D.Tenn. 1939); cf. Smith v. Swormstedt, 16 How. (57 U.S.) 288 (1853). For much the same reason actions by shareholders to compel the declaration of a dividend the proper recognition and handling of redemption or pre-emption rights, or the like (or actions by the corporation for corresponding declarations of rights), should ordinarily be conducted as class actions, although the matter has been much obscured by the insistence that each shareholder has an individual claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245 (E.D.Pa. 1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); Zahn v. Transamerica Corp., 162 F.2d 36 (3d Cir. 1947); Speed v. Transamerica Corp., 100 F.Supp. 461 (D.Del. 1951); Sobel v. Whittier Corp., 95 F.Supp. 643 (E.D.Mich. 1951), app. dism., 195 F.2d 361 (6th Cir. 1952); Goldberg v. Whittier Corp., 111 F.Supp. 382 (E.D.Mich. 1953); Dann v. Studebaker-Packard Corp., 288 F.2d 201 (6th Cir. 1961); Edgerton v. Armour & Co.,94 F.Supp. 549 (S.D.Calif. 1950); Ames v. Mengel Co., 190 F.2d 344 (2d Cir. 1951). (These shareholders' actions are to be distinguished from derivative actions by shareholders dealt with in new Rule 23.1). The same reasoning applies to an action which charges a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of security holders or other beneficiaries, and which requires an accounting or like measures to restore the subject of the trust. See Bosenberg v. Chicago T. & T. Co., 128 F.2d 245 (7th Cir. 1942); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323 U.S. 776 (1944); cf. York v. Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945). In various situations an adjudication as to one or more members of the class will necessarily or probably have an adverse practical effect on the interests of other members who should therefore be represented in the lawsuit. This is plainly the case when claims are made by numerous persons against a fund insufficient to satisfy all claims. A class action by or against representative members to settle the validity of the claims as a whole, or in groups, followed by separate proof of the amount of each valid claim and proportionate distribution of the fund, meets the problem. Cf. Dickinson v. Burnham, 197 F.2d 973 (2d Cir. 1952), cert. denied, 344 U.S. 875 (1952); 3 Moore, supra, at par. 23.09. The same reasoning applies to an action by a creditor to set aside a fraudulent conveyance by the debtor and to appropriate the property to his claim, when the debtor's assets are insufficient to pay all creditors' claims. See Hefferman v. Bennett & Armour, 110 Cal.App.2d 564, 243 P.2d 846 (1952); cf. City & County of San Francisco v. Market Street Ry., 95 Cal.App.2d 648, 213 P.2d 780 (1950). Similar problems, however, can arise in the absence of a fund either present or potential. A negative or mandatory injunction secured by one of a numerous class may disable the opposing party from performing claimed duties toward the other members of the class or materially affect his ability to do so. An adjudication as to movie 'clearances and runs' nominally affecting only one exhibitor would often have practical effects on all the exhibitors in the same territorial area. Cf. United States v. Paramount Pictures, Inc., 66 F.Supp. 323, 341-46 (S.D.N.Y. 1946); 334 U.S. 131, 144-48 (1948). Assuming a sufficiently numerous class of exhibitors, a class action would be advisable. (Here representation of subclasses of exhibitors could become necessary; see subdivision (c)(3)(B).) Subdivision (b)(2). This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate. Declaratory relief 'corresponds' to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief. The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class. Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 377 U.S. 972 (1964); Brunson v. Board of Trustees of School District No. 1, Clarendon City, S.C., 311 F.2d 107 (4th Cir. 1962), cert. denied, 373 U.S. 933 (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d 118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d 156 (5th Cir. 1957), cert. denied, 354 U.S. 921 (1957); Mannings v. Board of Public Inst. of Hillsborough County, Fla., 277 F.2d 370 (5th Cir. 1960); Northcross v. Board of Ed. of City of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied 370 U.S. 944 (1962); Frasier v. Board of Trustees of Univ. of N.C., 134 F.Supp. 589 (M.D.N.C. 1955, 3-judge court), aff'd, 350 U.S. 979 (1956). Subdivision (b)(2) is not limited to civil-rights cases. Thus an action looking to specific or declaratory relief could be brought by a numerous class of purchasers, say retailers of a given description, against a seller alleged to have undertaken to sell to that class at prices higher than those set for other purchasers, say retailers of another description, when the applicable law forbids such a pricing differential. So also a patentee of a machine, charged with selling or licensing the machine on condition that purchasers or licensees also purchase or obtain licenses to use an ancillary unpatented machine, could be sued on a class basis by a numerous group of purchasers or licensees, or by a numerous group of competing sellers or licensors of the unpatented machine, to test the legality of the 'tying' condition. Subdivision (b)(3). In the situations to which this subdivision relates, class-action treatment is not as clearly called for as in those described above, but it may nevertheless be convenient and desirable depending upon the particular facts. Subdivision (b)(3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote, uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Cf. Chafee, supra, at 201. The court is required to find, as a condition of holding that a class action may be maintained under this subdivision, that the questions common to the class predominate over the questions affecting individual members. It is only where this predominance exists that economies can be achieved by means of the class-action device. In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representation made or in the kinds or degrees of reliance by the persons to whom they were addressed. See Oppenheimer v. F. J. Young & Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in other contexts, see Hughes v. Encyclopaedia Brittanica, 199 F.2d 295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d 819 (6th Cir. 1944). A 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. See Pennsylvania R.R. v. United States, 111 F.Supp. 80 (D.N.J. 1953); cf. Weinstein, supra, 9 Buffalo L.Rev. at 469. Private damage claims by numerous individuals arising out of concerted antitrust violations may or may not involve predominating common questions. See Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S. 801 (1963); cf. Weeks v. Bareco Oil Co., 125 F.2d 84 (7th Cir. 1941); Kainz v. Anheuser-Busch, Inc., 194 F.2d 737 (7th Cir. 1952); Hess v. Anderson, Clayton & Co., 20 F.R.D. 466 (S.D.Calif. 1957). That common questions predominate is not itself sufficient to justify a class action under subdivision (b)(3), for another method of handling the litigious situation may be available which has greater practical advantages. Thus one or more actions agreed to by the parties as test or model actions may be preferable to a class action; or it may prove feasible and preferable to consolidate actions. Cf. Weinstein, supra, 9 Buffalo L.Rev. at 438-54. Even when a number of separate actions are proceeding simultaneously, experience shows that the burdens on the parties and the courts can sometimes be reduced by arrangements for avoiding repetitious discovery or the like. Currently the Coordinating Committee on Multiple Litigation in the United States District Courts (a subcommittee of the Committee on Trial Practice and Technique of the Judicial Conference of the United States) is charged with developing methods for expediting such massive litigation. To reinforce the point that the court with the aid of the parties ought to assess the relative advantages of alternative procedures for handling the total controversy, subdivision (b)(3) requires, as a further condition of maintaining the class action, that the court shall find that that procedure is 'superior' to the others in the particular circumstances. Factors (A)-(D) are listed, non-exhaustively, as pertinent to the findings. The court is to consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit. See Weeks v. Bareco Oil Co., 125 F.2d 84, 88-90, 93-94 (7th Cir. 1941) (anti-trust action); see also Pentland v. Dravo Corp., 152 F.2d 851 (3d Cir. 1945), and Chaffee, supra, at 273-75, regarding policy of Fair Labor Standards Act of 1938, Sec. 16(b), 29 U.S.C. Sec. 216(b), prior to amendment by Portal-to-Portal Act of 1947, Sec. 5(a). (The present provisions of 29 U.S.C. Sec. 216(b) are not intended to be affected by Rule 23, as amended.) In this connection the court should inform itself of any litigation actually pending by or against the individuals. The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable. The burden that separate suits would impose on the party opposing the class, or upon the court calendars, may also fairly be considered. (See the discussion, under subdivision (c)(2) below, of the right of members to be excluded from the class upon their request.) Also pertinent is the question of the desirability of concentrating the trial of the claims in the particular forum by means of a class action, in contrast to allowing the claims to be litigated separately in forums to which they would ordinarily be brought. Finally, the court should consider the problems of management which are likely to arise in the conduct of a class action. Subdivision (c)(1). In order to give clear definition to the action, this provision requires the court to determine, as early in the proceedings as may be practicable, whether an action brought as a class action is to be so maintained. The determination depends in each case on satisfaction of the terms of subdivision (a) and the relevant provisions of subdivision (b). An order embodying a determination can be conditional; the court may rule, for example, that a class action may be maintained only if the representation is improved through intervention of additional parties of a stated type. A determination once made can be altered or amended before the decision on the merits if, upon fuller development of the facts, the original determination appears unsound. A negative determination means that the action should be stripped of its character as a class action. See subdivision (d)(4). Although an action thus becomes a nonclass action, the court may still be receptive to interventions before the decision on the merits so that the litigation may cover as many interests as can be conveniently handled; the questions whether the intervenors in the nonclass action shall be permitted to claim 'ancillary' jurisdiction or the benefit of the date of the commencement of the action for purposes of the statute of limitations are to be decided by reference to the laws governing jurisdiction and limitations as they apply in particular contexts. Whether the court should require notice to be given to members of the class of its intention to make a determination, or of the order embodying it, is left to the court's discretion under subdivision (d)(2). Subdivision (c)(2) makes special provision for class actions maintained under subdivision (b)(3). As noted in the discussion of the latter subdivision, the interests of the individuals in pursuing their own litigations may be so strong here as to warrant denial of a class action altogether. Even when a class action is maintained under subdivision (b)(3), this individual interest is respected. Thus the court is required to direct notice to the members of the class of the right of each member to be excluded from the class upon his request. A member who does not request exclusion may, if he wishes, enter an appearance in the action through his counsel; whether or not he does so, the judgment in the action will embrace him. The notice setting forth the alternatives open to the members of the class, is to be the best practicable under the circumstances, and shall include individual notice to the members who can be identified through reasonable effort. (For further discussion of this notice, see the statement under subdivision (d)(2) below.) Subdivision (c)(3). The judgment in a class action maintained as such to the end will embrace the class, that is, in a class action under subdivision (b)(1) or (b)(2), those found by the court to be class members; in a class action under subdivision (b)(3), those to whom the notice prescribed by subdivision (c)(2) was directed, excepting those who requested exclusion or who are ultimately found by the court not to be members of the class. The judgment has this scope whether it is favorable or unfavorable to the class. In a (b)(1) or (b)(2) action the judgment 'describes' the members of the class, but need not specify the individual members; in a (b)(3) action the judgment 'specifies' the individual members who have been identified and described the others. Compare subdivision (c)(4) as to actions conducted as class actions only with respect to particular issues. Where the class-action character of the lawsuit is based solely on the existence of a 'limited fund,' the judgment, while extending to all claims of class members against the fund, has ordinarily left unaffected the personal claims of nonappearing members against the debtor. See 3 Moore, supra, par. 23.11(4). Hitherto, in a few actions conducted as 'spurious' class actions and thus nominally designed to extend only to parties and others intervening before the determination of liability, courts have held or intimated that class members might be permitted to intervene after a decision on the merits favorable to their interests, in order to secure the benefits of the decision for themselves, although they would presumably be unaffected by an unfavorable decision. See, as to the propriety of this so-called 'one-way' intervention in 'spurious' actions, the conflicting views expressed in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S. 801 (1963); York v. Guaranty Trust Co., 143 F.2d 503, 529 (2d Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945); Pentland v. Dravo Corp., 152 F.2d 851, 856 (3d Cir. 1945); Speed v. Transamerica Corp., 100 F.Supp. 461, 463 (D.Del. 1951); State Wholesale Grocers v. Great Atl. & Pac. Tea Co., 24 F.R.D. 510 (N.D.Ill. 1959); Alabama Ind. Serv. Stat. Assn. v. Shell Pet Corp., 28 F.Supp. 386, 390 (N.D.Ala. 1939); Tolliver v. Cudahy Packing Co., 39 F.Supp. 337, 339 (E.D.Tenn. 1941); Kalven & Rosenfield, supra, 8 U. of Chi.L.Rev. 684 (1941); Comment, 53 Nw.U.L.Rev. 627, 632-33 (1958); Developments in the Law, supra, 71 Harv.L.Rev. at 935; 2 Barron & Holtzoff, supra, Sec. 568; but cf. Lockwood v. Hercules Powder Co., 7 F.R.D. 24, 28-29 (W.D.Mo. 1947); Abram v. San Joaquin Cotton Oil Co., 46 F.Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at 280, 285; 3 Moore, supra, par. 23.12, at 3476. Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class, as above stated. Although thus declaring that the judgment in a class action includes the class, as defined, subdivision (c)(3) does not disturb the recognized principle that the court conducting the action cannot predetermine the res judicata effect of the judgment; this can be tested only in a subsequent action. See Restatement, Judgments Sec. 86, comment (h), Sec. 116 (1942). The court, however, in framing the judgment in any suit brought as a class action, must decide what its extent or coverage shall be, and if the matter is carefully considered, questions of res judicata are less likely to be raised at a later time and if raised will be more satisfactorily answered. See Chafee, supra, at 294; Weinstein, supra, 9 Buffalo L.Rev. at 460. Subdivision (c)(4). This provision recognizes that an action may be maintained as a class action as to particular issues only. For example, in a fraud or similar case the action may retain its 'class' character only through the adjudication of liability to the class; the members of the class may thereafter be required to come in individually and prove the amounts of their respective claims. Two or more classes may be represented in a single action. Where a class is found to include subclasses divergent in interest, the class may be divided correspondingly, and each subclass treated as a class. Subdivision (d) is concerned with the fair and efficient conduct of the action and lists some types of orders which may be appropriate. The court should consider how the proceedings are to be arranged in sequence, and what measures should be taken to simplify the proof and argument. See subdivision (d)(1). The orders resulting from this consideration, like the others referred to in subdivision (d), may be combined with a pretrial order under Rule 16, and are subject to modification as the case proceeds. Subdivision (d)(2) sets out a non-exhaustive list of possible occasions for orders requiring notice to the class. Such notice is not a novel conception. For example, in 'limited fund' cases, members of the class have been notified to present individual claims after the basic class decision. Notice has gone to members of a class so that they might express any opposition to the representation, see United States v. American Optical Co., 97 F.Supp. 66 (N.D.Ill. 1951), and 1950-51 CCH Trade Cases 64573-74 (par. 62869); cf. Weeks v. Bareco Oil Co., 125 F.2d 84, 94 (7th Cir. 1941), and notice may encourage interventions to improve the representation of the class. Cf. Oppenheimer v. F. J. Young & Co., 144 F.2d 387 (2d Cir. 1944). Notice has been used to poll members on a proposed modification of a consent decree. See record in Sam Fox Publishing Co. v. United States, 366 U.S. 683 (1961). Subdivision (d)(2) does not require notice at any stage, but rather calls attention to its availability and invokes the court's discretion. In the degree that there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum. These indicators suggest that notice under subdivision (d)(2) may be particularly useful and advisable in certain class actions maintained under subdivision (b)(3), for example, to permit members of the class to object to the representation. Indeed, under subdivision (c)(2), notice must be ordered, and is not merely discretionary, to give the members in a subdivision (b)(3) class action an opportunity to secure exclusion from the class. This mandatory notice pursuant to subdivision (c)(2), together with any discretionary notice which the court may find it advisable to give under subdivision (d)(2), is designed to fulfill requirements of due process to which the class action procedure is of course subject. See Hansberry v. Lee, 311 U.S. 32 (1940); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); cf. Dickinson v. Burnham, 197 F.2d 973, 979 (2d Cir. 1952), and studies cited at 979 n. 4; see also All American Airways, Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954); Gart v. Cole, 263 F.2d 244, 248-49 (2d Cir. 1959), cert. denied, 359 U.S. 978 (1959). Notice to members of the class, whenever employed under amended Rule 23, should be accommodated to the particular purpose but need not comply with the formalities for service of process. See Chafee, supra, at 230-31; Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946). The fact that notice is given at one stage of the action does not mean that it must be given at subsequent stages. Notice is available fundamentally 'for the protection of the members of the class or otherwise for the fair conduct of the action' and should not be used merely as a device for the undesirable solicitation of claims. See the discussion in Cherner v. Transitron Electronic Corp., 201 F.Supp. 934 (D.Mass. 1962); Hormel v. United States, 17 F.R.D. 303 (S.D.N.Y. 1955). In appropriate cases the court should notify interested government agencies of the pendency of the action or of particular steps therein. Subdivision (d)(3) reflects the possibility of conditioning the maintenance of a class action, e.g., on the strengthening of the representation, see subdivision (c)(1) above; and recognizes that the imposition of conditions on intervenors may be required for the proper and efficient conduct of the action. As to orders under subdivision (d)(4), see subdivision (c)(1) above. Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Capacity of unincorporated association to sue or be sued, see rule 17. Process on corporations in stockholder's derivative action, see section 1695 of this title. Venue in stockholder's derivative action, see section 1401 of this title. ------DocID 37065 Document 927 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 23.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 23.1. Derivative Actions by Shareholders -STATUTE- In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which the plaintiff complains or that the plaintiff's share or membership thereafter devolved on the plaintiff by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would not otherwise have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES A derivative action by a shareholder of a corporation or by a member of an unincorporated association has distinctive aspects which require the special provisions set forth in the new rule. The next-to-the-last sentence recognizes that the question of adequacy of representation may arise when the plaintiff is one of a group of shareholders or members. Cf. 3 Moore's Federal Practice, par. 23.08 (2d ed. 1963). The court has inherent power to provide for the conduct of the proceedings in a derivative action, including the power to determine the course of the proceedings and require that any appropriate notice be given to shareholders or members. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37066 Document 928 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 23.2 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 23.2. Actions Relating to Unincorporated Associations -STATUTE- An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e). -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Although an action by or against representatives of the membership of an unincorporated association has often been viewed as a class action, the real or main purpose of this characterization has been to give 'entity treatment' to the association when for formal reasons it cannot sue or be sued as a jural person under Rule 17(b). See Louisell & Hazard, Pleading and Procedure: State and Federal 718 (1962); 3 Moore's Federal Practice, par. 23.08 (2d ed. 1963); Story, J. in West v. Randall, 29 Fed.Cas. 718, 722-23, No. 17,424 (C.C.D.R.I. 1820); and, for examples, Gibbs v. Buck, 307 U.S. 66 (1939); Tunstall v. Brotherhood of Locomotive F. & E., 148 F.2d 403 (4th Cir. 1945); Oskoian v. Canuel, 269 F.2d 311 (1st Cir. 1959). Rule 23.2 deals separately with these actions, referring where appropriate to Rule 23. ------DocID 37067 Document 929 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 24 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 24. Intervention -STATUTE- (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C., Sec. 2403. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The right to intervene given by the following and similar statutes is preserved, but the procedure for its assertion is governed by this rule: U.S.C., Title 28: Sec. 45a (now 2323) (Special attorneys; participation by Interstate Commerce Commission; intervention) (in certain cases under interstate commerce laws) Sec. 48 (now 2322) (Suits to be against United States; intervention by United States) Sec. 401 (now 2403) (Intervention by United States; constitutionality of Federal statute) U.S.C., Title 40: Sec. 276a-2(b) (Bonds of contractors for public buildings or works; rights of persons furnishing labor and materials). Compare with the last sentence of (former) Equity Rule 37 (Parties Generally - Intervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: I The Right to Intervene and Reorganization (1936), 45 Yale L.J. 565. Under the codes two types of intervention are provided, one for the recovery of specific real or personal property (2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11263; Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec. 89-522), and the other allowing intervention generally when the applicant has an interest in the matter in litigation (1 Colo.Stat.Ann. (1935) Code Civ.Proc. Sec. 22; La.Code Pract. (Dart, 1932) Arts. 389-394; Utah Rev.Stat.Ann. (1933) Sec. 104-3-24). The English intervention practice is based upon various rules and decisions and falls into the two categories of absolute right and discretionary right. For the absolute right see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 12, r. 24 (admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12 (execution); J. A. (1925) Sec. 181, 182, 183(2) (divorce); In re Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497 (receivership); Wilson v. Church, 9 Ch.D. 552 (1878) (representative action). For the discretionary right see O. 16, r. 11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916), Vavasseur v. Krupp, 9 Ch.D. 351 (1878) (persons out of the jurisdiction). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AND 1948 AMENDMENTS Note. Subdivision (a). The addition to subdivision (a)(3) covers the situation where property may be in the actual custody of some other officer or agency - such as the Secretary of the Treasury - but the control and disposition of the property is lodged in the court wherein the action is pending. Subdivision (b). The addition in subdivision (b) permits the intervention of governmental officers or agencies in proper cases and thus avoids exclusionary constructions of the rule. For an example of the latter, see Matter of Bender Body Co., Ref.Ohio 1941, 47 F.Supp. 224, aff'd as moot, N.D.Ohio 1942, 47 F.Supp. 224, 234, holding that the Administrator of the Office of Price Administration, then acting under the authority of an Executive Order of the President, could not intervene in a bankruptcy proceeding to protest the sale of assets above ceiling prices. Compare, however, Securities and Exchange Commission v. United States Realty & Improvement Co., 1940, 310 U.S. 434, 60 S.Ct. 1044, where permissive intervention of the Commission to protect the public interest in an arrangement proceeding under Chapter XI of the Bankruptcy Act was upheld. See also dissenting opinion in Securities and Exchange Commission v. Long Island Lighting Co., C.C.A.2d, 1945, 148 F.2d 252, judgment vacated as moot and case remanded with direction to dismiss complaint, 1945, 325 U.S. 833, 65 S.Ct. 1085. For discussion see Commentary, Nature of Permissive Intervention Under Rule 24b, 1940, 3 Fed.Rules Serv. 704; Berger, Intervention by Public Agencies in Private Litigation in the Federal Courts, 1940, 50 Yale L.J. 65. Regarding the construction of subdivision (b)(2), see Allen Calculators, Inc. v. National Cash Register Co., 1944, 322 U.S. 137, 64 S. Ct. 905. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee's Note to that amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT In attempting to overcome certain difficulties which have arisen in the application of present Rule 24(a)(2) and (3), this amendment draws upon the revision of the related Rules 19 (joinder of persons needed for just adjudication) and 23 (class actions), and the reasoning underlying that revision. Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: 'The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action.' 4 Moore's Federal Practice, par. 24.09(3), at 55 (2d ed. 1962), and see, e.g., Formulabs, Inc. v. Hartley Pen Co., 275 F.2d 52 (9th Cir. 1960). This development was quite natural, for Rule 24(a)(3) was unduly restricted. If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of. Intervention of right is here seen to be a kind of counterpart to Rule 19(a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louisell & Hazard, Pleading and Procedure: State and Federal 749-50 (1962). The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in the action if he could establish with fair probability that the representation was inadequate. Thus, where an action is being prosecuted or defended by a trustee, a beneficiary of the trust should have a right to intervene if he can show that the trustee's representation of his interest probably is inadequate; similarly a member of a class should have the right to intervene in a class action if he can show the inadequacy of the representation of his interest by the representative parties before the court. Original Rule 24(a)(2), however, made it a condition of intervention that 'the applicant is or may be bound by a judgment in the action,' and this created difficulties with intervention in class actions. If the 'bound' language was read literally in the sense of res judicata, it could defeat intervention in some meritorious cases. A member of a class to whom a judgment in a class action extended by its terms (see Rule 23(c)(3), as amended) might be entitled to show in a later action, when the judgment in the class action was claimed to operate as res judicata against him, that the 'representative' in the class action had not in fact adequately represented him. If he could make this showing, the class-action judgment might be held not to bind him. See Hansberry v. Lee, 311 U.S. 32 (1940). If a class member sought to intervene in the class action proper, while it was still pending, on grounds of inadequacy of representation, he could be met with the argument: if the representation was in fact inadequate, he would not be 'bound' by the judgment when it was subsequently asserted against him as res judicata, hence he was not entitled to intervene; if the representation was in fact adequate, there was no occasion or ground for intervention. See Sam Fox Publishing Co. v. United States, 366 U.S. 683 (1961); cf. Sutphen Estates, Inc. v. United States, 342 U.S. 19 (1951). This reasoning might be linguistically justified by original Rule 24(a)(2); but it could lead to poor results. Compare the discussion in International M. & I. Corp. v. Von Clemm, 301 F.2d 857 (2d Cir. 1962); Atlantic Refining Co. v. Standard Oil Co., 304 F.2d 387 (D.C.Cir. 1962). A class member who claims that his 'representative' does not adequately represent him, and is able to establish that proposition with sufficient probability, should not be put to the risk of having a judgment entered in the action which by its terms extends to him, and be obliged to test the validity of the judgment as applied to his interest by a later collateral attack. Rather he should, as a general rule, be entitled to intervene in the action. The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest is already adequately represented in the action by existing parties. The Rule 19(a)(2)(i) criterion imports practical considerations, and the deletion of the 'bound' language similarly frees the rule from undue preoccupation with strict considerations of res judicata. The representation whose adequacy comes into question under the amended rule is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class. A party to an action may provide practical representation to the absentee seeking intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed. See International M. & I. Corp. v. Von Clemm, and Atlantic Refining Co. v. Standard Oil Co., both supra; Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir. 1944), cert. denied, 323 U.S. 777 (1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir. 1957); and generally, Annot., 84 A.L.R.2d 1412 (1961). An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FORMS Motion to intervene as defendant, see form 23, Appendix of Forms. CROSS REFERENCES Intervention of - Parties interested in action to enforce, suspend or annul orders of the Interstate Commerce Commission, see section 2323 of this title. United States where constitutionality of federal statute is questioned, see section 2403 of this title. ------DocID 37068 Document 930 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 25 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE IV -HEAD- Rule 25. Substitution of Parties -STATUTE- (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. (2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties. (b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party's representative. (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. (d) Public Officers; Death or Separation From Office. (1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) A public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name; but the court may require the officer's name to be added. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). 1. The first paragraph of this rule is based upon (former) Equity Rule 45 (Death of Party - Revivor) and U.S.C., Title 28, (former) Sec. 778 (Death of parties; substitution of executor or administrator). The scire facias procedure provided for in the statute cited is superseded and the writ is abolished by Rule 81 (b). Paragraph two states the content of U.S.C., Title 28, (former) Sec. 779 (Death of one of several plaintiffs or defendants). With these two paragraphs compare generally English Rules Under the Judicature Act (The Annual Practice, 1937) O. 17, r.r. 1-10. 2. This rule modifies U.S.C., Title 28, (former) Sec. 778 (Death of parties; substitution of executor or administrator), 779 (Death of one of several plaintiffs or defendants), and 780 (Survival of actions, suits, or proceedings, etc.) insofar as they differ from it. Note to Subdivisions (b) and (c). These are a combination and adaptation of N.Y.C.P.A. (1937) Sec. 83 and Calif.Code Civ.Proc. (Deering, 1937) Sec. 385; see also 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8561. Note to Subdivision (d). With the first and last sentences compare U.S.C., Title 28, (former) Sec. 780 (Survival of actions, suits, or proceedings, etc.). With the second sentence of this subdivision compare Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311 (1933). 1948 AMENDMENT The amendment effective October 19, 1949, inserted the words, 'the Canal Zone, a territory, an insular possession,' in the first sentence of subdivision (d), and, in the same sentence, after the phrase 'or other governmental agency,' deleted the words, 'or any other officer specified in the act of February 13, 1925, ch. 229, Sec. 11 (43 Stat. 941), formerly section 780 of this title'. NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT Subdivision (d)(1). Present Rule 25(d) is generally considered to be unsatisfactory. 4 Moore's, Federal Practice 25.01(7) (2d ed. 1950; Wright, Amendments to the Federal Rules: The Function of a Continuing Rules Committee, 7 Vand.L.Rev. 521, 529 (1954); Developments in the Law - Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 931-34 (1957). To require, as a condition of substituting a successor public officer as a party to a pending action, that an application be made with a showing that there is substantial need for continuing the litigation, can rarely serve any useful purpose and fosters a burdensome formality. And to prescribe a short, fixed time period for substitution which cannot be extended even by agreement, see Snyder v. Buck, 340 U.S. 15, 19 (1950), with the penalty of dismissal of the action, 'makes a trap for unsuspecting litigants which seems unworthy of a great government.' Vibra Brush Corp. v. Schaffer, 256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter v. Folsom, 242 F.2d 516 (3d Cir. 1957). Under the amendment, the successor is automatically substituted as a party without an application or showing of need to continue the action. An order of substitution is not required, but may be entered at any time if a party desires or the court thinks fit. The general term 'public officer' is used in preference to the enumeration which appears in the present rule. It comprises Federal, State, and local officers. The expression 'in his official capacity' is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The amended rule will apply to all actions brought by public officers for the government, and to any action brought in form against a named officer, but intrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferred, cf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S. 123 (1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office. Cf. Land v. Dollar, 330 U.S. 731 (1947); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). Excluded from the operation of the amended rule will be the relatively infrequent actions which are directed to securing money judgments against the named officers enforceable against their personal assets; in these cases Rule 25(a)(1), not Rule 25(d), applies to the question of substitution. Examples are actions against officers seeking to make them pay damages out of their own pockets for defamatory utterances or other misconduct in some way related to the office, see Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). Another example is the anomalous action for a tax refund against a collector of internal revenue, see Ignelzi v. Granger, 16 F.R.D. 517 (W.D.Pa. 1955), 28 U.S.C. Sec. 2006, 4 Moore, supra, 25.05, p. 531; but see 28 U.S.C. Sec. 1346(a)(1), authorizing the bringing of such suits against the United States rather than the officer. Automatic substitution under the amended rule, being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action. Thus a defense of immunity from suit will remain in the case despite a substitution. Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree. Contrast Ex parte La Prade, supra; Allen v. Regents of the University System, 304 U.S. 439 (1938); McGrath v. National Assn. of Mfgrs., 344 U.S. 804 (1952); Danenberg. v. Cohen, 213 F.2d 944 (7th Cir. 1954). As the present amendment of Rule 25(d)(1) eliminates a specified time period to secure substitution of public officers, the reference in Rule 6(b) (regarding enlargement of time) to Rule 25 will no longer apply to these public-officer substitutions. As to substitution on appeal, the rules of the appellate courts should be consulted. Subdivision (d)(2). This provision, applicable in 'official capacity' cases as described above, will encourage the use of the official title without any mention of the officer individually, thereby recognizing the intrinsic character of the action and helping to eliminate concern with the problem of substitution. If for any reason it seems desirable to add the individual's name, this may be done upon motion or on the court's initiative; thereafter the procedure of amended Rule 25(d)(1) will apply if the individual named ceases to hold office. For examples of naming the office or title rather than the officeholder, see Annot., 102 A.L.R. 943, 948-52; Comment, 50 Mich.L.Rev. 443, 450 (1952); cf. 26 U.S.C. Sec. 7484. Where an action is brought by or against a board or agency with continuity of existence, it has been often decided that there is no need to name the individual members and substitution is unnecessary when the personnel changes. 4 Moore, supra, 25.09, p. 536. The practice encouraged by amended Rule 25(d)(2) is similar. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Present Rule 25(a)(1), together with present Rule 6(b), results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases. See e.g., Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436 (1947); Iovino v. Waterson, 274 F.2d 41 (1959), cert. denied, Carlin v. Sovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867 (1960); Perry v. Allen, 239 F.2d 107 (5th Cir. 1956); Starnes v. Pennsylvania R.R., 26 F.R.D. 625 (E.D.N.Y.), aff'd per curiam, 295 F.2d 704 (2d Cir. 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 688, 7 L.Ed.2d 612 (1962); Zdanok v. Glidden Co., 28 F.R.D. 346 (S.D.N.Y. 1961). See also 4 Moore's Federal Practice 25.01(9) (Supp. 1960); 2 Barron & Holtzoff, Federal Practice & Procedure Sec. 621, at 420-21 (Wright ed. 1961). The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death as provided by the means of a suggestion of death upon the record, i.e., service of a statement of the fact of the death. Cf. Ill.Ann.Stat., ch. 110, Sec. 54(2) (Smith-Hurd 1956). The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule 6(b), as amended. See the Advisory Committee's Note to amended Rule 6(b). See also the new Official Form 30. A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record. A motion to substitute made within the prescribed time will ordinarily be granted, but under the permissive language of the first sentence of the amended rule ('the court may order') it may be denied by the court in the exercise of a sound discretion if made long after the death - as can occur if the suggestion of death is not made or is delayed - and circumstances have arisen rendering it unfair to allow substitution. Cf. Anderson v. Yungkau, supra, 329 U.S. at 485, 486, 67 S.Ct. at 430, 431, 91 L.Ed. 436, where it was noted under the present rule that settlement and distribution of the state of a deceased defendant might be so far advanced as to warrant denial of a motion for substitution even though made within the time limit prescribed by that rule. Accordingly, a party interested in securing substitution under the amended rule should not assume that he can rest indefinitely awaiting the suggestion of death before he makes his motion to substitute. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Depositions, right to use after substitution, see rule 26. Extension of time for substitution, prohibiting, see rule 6. ------DocID 37069 Document 931 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE V -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- V. DEPOSITIONS AND DISCOVERY -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENTS TO DISCOVERY RULES This statement is intended to serve as a general introduction to the amendments of Rules 26-37, concerning discovery, as well as related amendments of other rules. A separate note of customary scope is appended to amendments proposed for each rule. This statement provides a framework for the consideration of individual rule changes. CHANGES IN THE DISCOVERY RULES The discovery rules, as adopted in 1938, were a striking and imaginative departure from tradition. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. These amendments make substantial changes in the discovery rules. Those summarized here are among the more important changes. Scope of Discovery. New provisions are made and existing provisions changed affecting the scope of discovery: (1) The contents of insurance policies are made discoverable (Rule 26(b)(2)). (2) A showing of good cause is no longer required for discovery of documents and things and entry upon land (Rule 34). However, a showing of need is required for discovery of 'trial preparation' materials other than a party's discovery of his own statement and a witness' discovery of his own statement; and protection is afforded against disclosure in such documents of mental impressions, conclusions, opinions, or legal theories concerning the litigation. (Rule 26(b)(3)). (3) Provision is made for discovery with respect to experts retained for trial preparation, and particularly those experts who will be called to testify at trial (Rule 26(b)(4)). (4) It is provided that interrogatories and requests for admission are not objectionable simply because they relate to matters of opinion or contention, subject of course to the supervisory power of the court (Rules 33(b), 36(a)). (5) Medical examination is made available as to certain nonparties. (Rule 35(a)). Mechanics of Discovery. A variety of changes are made in the mechanics of the discovery process, affecting the sequence and timing of discovery, the respective obligations of the parties with respect to requests, responses, and motions for court orders, and the related powers of the court to enforce discovery requests and to protect against their abusive use. A new provision eliminates the automatic grant of priority in discovery to one side (Rule 26(d)). Another provides that a party is not under a duty to supplement his responses to requests for discovery, except as specified (Rule 26(e)). Other changes in the mechanics of discovery are designed to encourage extrajudicial discovery with a minimum of court intervention. Among these are the following: (1) The requirement that a plaintiff seek leave of court for early discovery requests is eliminated or reduced, and motions for a court order under Rule 34 are made unnecessary. Motions under Rule 35 are continued. (2) Answers and objections are to be served together and an enlargement of the time for response is provided. (3) The party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties. (4) Judicial sanctions are tightened with respect to unjustified insistence upon or objection to discovery. These changes bring Rules 33, 34, and 36 substantially into line with the procedure now provided for depositions. Failure to amend Rule 35 in the same way is based upon two considerations. First, the Columbia Survey (described below) finds that only about 5 percent of medical examinations require court motions, of which about half result in court orders. Second and of greater importance, the interest of the person to be examined in the privacy of his person was recently stressed by the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The court emphasized the trial judge's responsibility to assure that the medical examination was justified, particularly as to its scope. Rearrangement of Rules. A limited rearrangement of the discovery rules has been made, whereby certain provisions are transferred from one rule to another. The reasons for this rearrangement are discussed below in a separate section of this statement, and the details are set out in a table at the end of this statement. Optional Procedures. In two instances, new optional procedures have been made available. A new procedure is provided to a party seeking to take the deposition of a corporation or other organization (Rule 30(b)(6)). A party on whom interrogatories have been served requesting information derivable from his business records may under specified circumstances produce the records rather than give answers (Rule 33(c)). Other Changes. This summary of changes is by no means exhaustive. Various changes have been made in order to improve, tighten, or clarify particular provisions, to resolve conflicts in the case law, and to improve language. All changes, whether mentioned here or not, are discussed in the appropriate note for each rule. A FIELD SURVEY OF DISCOVERY PRACTICE Despite widespread acceptance of discovery as an essential part of litigation, disputes have inevitably arisen concerning the values claimed for discovery and abuses alleged to exist. Many disputes about discovery relate to particular rule provisions or court decisions and can be studied in traditional fashion with a view to specific amendment. Since discovery is in large measure extra-judicial, however, even these disputes may be enlightened by a study of discovery 'in the field.' And some of the larger questions concerning discovery can be pursued only by a study of its operation at the law office level and in unreported cases. The Committee, therefore, invited the Project for Effective Justice of Columbia Law School to conduct a field survey of discovery. Funds were obtained from the Ford Foundation and the Walter E. Meyer Research Institute of Law, Inc. The survey was carried on under the direction of Prof. Maurice Rosenberg of Columbia Law School. The Project for Effective Justice has submitted a report to the Committee entitled 'Field Survey of Federal Pretrial Discovery' (hereafter referred to as the Columbia Survey). The Committee is deeply grateful for the benefit of this extensive undertaking and is most appreciative of the cooperation of the Project and the funding organizations. The Committee is particularly grateful to Professor Rosenberg who not only directed the survey but has given much time in order to assist the Committee in assessing the results. The Columbia Survey concludes, in general, that there is no empirical evidence to warrant a fundamental change in the philosophy of the discovery rules. No widespread or profound failings are disclosed in the scope or availability of discovery. The costs of discovery do not appear to be oppressive, as a general matter, either in relation to ability to pay or to the stakes of the litigation. Discovery frequently provides evidence that would not otherwise be available to the parties and thereby makes for a fairer trial or settlement. On the other hand, no positive evidence is found that discovery promotes settlement. More specific findings of the Columbia Survey are described in other Committee notes, in relation to particular rule provisions and amendments. Those interested in more detailed information may obtain it from the Project for Effective Justice. REARRANGEMENT OF THE DISCOVERY RULES The present discovery rules are structured entirely in terms of individual discovery devices, except for Rule 27 which deals with perpetuation of testimony, and Rule 37 which provides sanctions to enforce discovery. Thus, Rules 26 and 28 to 32 are in terms addressed only to the taking of a deposition of a party or third person. Rules 33 to 36 then deal in succession with four additional discovery devices: Written interrogatories to parties, production for inspection of documents and things, physical or mental examination and requests for admission. Under the rules as promulgated in 1938, therefore, each of the discovery devices was separate and self-contained. A defect of this arrangement is that there is no natural location in the discovery rules for provisions generally applicable to all discovery or to several discovery devices. From 1938 until the present, a few amendments have applied a discovery provision to several rules. For example, in 1948, the scope of deposition discovery in Rule 26(b) and the provision for protective orders in Rule 30(b) were incorporated by reference in Rules 33 and 34. The arrangement was adequate so long as there were few provisions governing discovery generally and these provisions were relatively simple. As will be seen, however, a series of amendments are now proposed which govern most or all of the discovery devices. Proposals of a similar nature will probably be made in the future. Under these circumstances, it is very desirable, even necessary, that the discovery rules contain one rule addressing itself to discovery generally. Rule 26 is obviously the most appropriate rule for this purpose. One of its subdivisions, Rule 26(b), in terms governs only scope of deposition discovery, but it has been expressly incorporated by reference in Rules 33 and 34 and is treated by courts as setting a general standard. By means of a transfer to Rule 26 of the provisions for protective orders now contained in Rule 30(b), and a transfer from Rule 26 of provisions addressed exclusively to depositions, Rule 26 is converted into a rule concerned with discovery generally. It becomes a convenient vehicle for the inclusion of new provisions dealing with the scope, timing, and regulation of discovery. Few additional transfers are needed. See table showing rearrangement of rules, set out below. There are, to be sure, disadvantages in transferring any provision from one rule to another. Familiarity with the present pattern, reinforced by the references made by prior court decisions and the various secondary writings about the rules, is not lightly to be sacrificed. Revision of treatises and other references works is burdensome and costly. Moreover, many States have adopted the existing pattern as a model for their rules. On the other hand, the amendments now proposed will in any event require revision of texts and reference works as well as reconsideration by States following the Federal model. If these amendments are to be incorporated in an understandable way, a rule with general discovery provisions is needed. As will be seen, the proposed rearrangement produces a more coherent and intelligible pattern for the discovery rules taken as a whole. The difficulties described are those encountered whenever statutes are reexamined and revised. Failure to rearrange the discovery rules now would freeze the present scheme, making future change even more difficult. Table Showing Rearrangement of Rules --------------------------------------------------------------------- Existing Rule No. New Rule No. --------------------------------------------------------------------- 26(a) 30(a), 31(a) 26(c) 30(c) 26(d) 32(a) 26(e) 32(b) 26(f) 32(c) 30(a) 30(b) 30(b) 26(c) 32 32(d) ------------------------------- ------DocID 37070 Document 932 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 26 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 26. General Provisions Governing Discovery -STATUTE- (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c). (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony. (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (f) Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: (1) A statement of the issues as they then appear; (2) A proposed plan and schedule of discovery; (3) Any limitations proposed to be placed on discovery; (4) Any other proposed orders with respect to discovery; and (5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and each party's attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion. Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires. Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16. (g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This rule freely authorizes the taking of depositions under the same circumstances and by the same methods whether for the purpose of discovery or for the purpose of obtaining evidence. Many states have adopted this practice on account of its simplicity and effectiveness, safeguarding it by imposing such restrictions upon the subsequent use of the deposition at the trial or hearing as are deemed advisable. See Ark.Civ.Code (Crawford, 1934) Sec. 606-607; Calif.Code Civ.Proc. (Deering, 1937) Sec. 2021; 1 Colo.Stat.Ann. (1935) Code Civ.Proc. Sec. 376; Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19); Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-1501, 2-1506; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 557; 1 Mo.Rev.Stat. (1929) Sec. 1753; 4 Mont.Rev.Codes Ann. (1935) Sec. 10645; Neb.Comp.Stat. (1929) ch. 20, Sec. 1246-7; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 9001; 2 N.H.Pub.Laws (1926) ch. 337, Sec. 1; N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Sec. 7889-7897; 2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11525-6; 1 Ore.Code Ann. (1930) Title 9, Sec. 1503; 1 S.D.Comp.Laws (1929) Sec. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice adopted by the Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec. 1. Compare (former) Equity Rules 47 (Depositions - To be Taken in Exceptional Instances); 54 (Depositions Under Revised Statutes, Sections 863, 865, 866, 867 - Cross-Examination); 58 (Discovery - Interrogatories - Inspection and Production of Documents - Admission of Execution or Genuineness). This and subsequent rules incorporate, modify, and broaden the provisions for depositions under U.S.C., Title 28, (former) Sec. 639 (Depositions de bene esse; when and where taken; notice), 640 (Same; mode of taking), 641 (Same; transmission to court), 644 (Depositions under dedimus potestatem and in perpetuam), 646 (Deposition under dedimus potestatem; how taken). These statutes are superseded insofar as they differ from this and subsequent rules. U.S.C., Title 28, (former) Sec. 643 (Depositions; taken in mode prescribed by State laws) is superseded by the third sentence of Subdivision (a). While a number of states permit discovery only from parties or their agents, others either make no distinction between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without restriction, from any persons who have knowledge of relevant facts. See Ark.Civ.Code (Crawford, 1934) Sec. 606-607; 1 Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19); Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-1501; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 554-558; 2 Md.Ann.Code (Bagby, 1924) Art. 35, Sec. 21; 2 Minn.Stat. (Mason, 1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Sec. 1753, 1759; Neb.Comp.Stat. (1929) ch. 20, Sec. 1246-7; 2 N.H.Pub.Laws (1926) ch. 337, Sec. 1; 2 N.D.Comp.Laws Ann. (1913) Sec. 7897; 2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11525-6; 1 S.D.Comp.Laws (1929) Sec. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice adopted by Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec. 1. The more common practice in the United States is to take depositions on notice by the party desiring them, without any order from the court, and this has been followed in these rules. See Calif.Code Civ.Proc. (Deering 1937) Sec. 2031; 2 Fla.Comp.Gen.Laws Ann. (1927) Sec. 4405-7; 1 Idaho Code Ann. (1932) Sec. 16-902; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 25919); Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-1502; Kan.Gen.Stat.Ann. (1935) Sec. 60-2827; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 565; 2 Minn.Stat. (Mason, 1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Sec. 1761; 4 Mont.Rev.Codes Ann. (1935) Sec. 10651; Nev.Comp.Laws (Hillyer, 1929) Sec. 9002; N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Sec. 7895; Utah Rev.Stat.Ann. (1933) Sec. 104-51-8. Note to Subdivision (b). While the old chancery practice limited discovery to facts supporting the case of the party seeking it, this limitation has been largely abandoned by modern legislation. See Ala.Code Ann. (Michie, 1928) Sec. 7764-7773; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935) Sec. 11185; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 557, 606 (8); La.Code Pract. (Dart, 1932) arts. 347-356; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 61-67; 1 Mo.Rev.Stat. (1929) Sec. 1753, 1759; Neb.Comp.Stat. (1929) Sec. 20-1246, 20-1247; 2 N.H.Pub.Laws (1926) ch. 337, Sec. 1; 2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11497, 11526; Tex.Stat. (Vernon, 1928) arts. 3738, 3753, 3769; Wis.Stat. (1935) Sec. 326.12; Ontario Consol.Rules of Pract. (1928) Rules 237-347; Quebec Code of Civ.Proc. (Curran, 1922) Sec. 286-290. Note to Subdivisions (d), (e), and (f). The restrictions here placed upon the use of depositions at the trial or hearing are substantially the same as those provided in U.S.C., Title 28, (former) Sec. 641, for depositions taken, de bene esse, with the additional provision that any deposition may be used when the court finds the existence of exceptional circumstances. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 37, r. 18 (with additional provision permitting use of deposition by consent of the parties). See also (former) Equity Rule 64 (Former Depositions, Etc., May be Used Before Master); and 2 Minn. Stat. (Mason, 1927) Sec. 9835 (Use in a subsequent action of a deposition filed in a previously dismissed action between the same parties and involving the same subject matter). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The amendment eliminates the requirement of leave of court for the taking of a deposition except where a plaintiff seeks to take a deposition within 20 days after the commencement of the action. The retention of the requirement where a deposition is sought by a plaintiff within 20 days of the commencement of the action protects a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit; the plaintiff, of course, needs no such protection. The present rule forbids the plaintiff to take a deposition, without leave of court, before the answer is served. Sometimes the defendant delays the serving of an answer for more than 20 days, but as 20 days are sufficient time for him to obtain a lawyer, there is no reason to forbid the plaintiff to take a deposition without leave merely because the answer has not been served. In all cases, Rule 30(a) empowers the court, for cause shown, to alter the time of the taking of a deposition, and Rule 30(b) contains provisions giving ample protection to persons who are unreasonably pressed. The modified practice here adopted is along the line of that followed in various states. See, e.g., 8 Mo.Rev.Stat.Ann., 1939, Sec. 1917; 2 Burns' Ind.Stat.Ann., 1933, Sec. 2-1506. Subdivision (b). The amendments to subdivision (b) make clear the broad scope of examination and that it may cover not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case. Engl v. Aetna Life Ins. Co., C.C.A.2d, 1943, 139 F.2d 469; Mahler v. Pennsylvania R. Co., E.D.N.Y. 1945, 8 Fed.Rules Serv. 33,351, Case 1. In such a preliminary inquiry admissibility at trial should not be the test as to whether the information sought is within the scope of proper examination. Such a standard unnecessarily curtails the utility of discovery practice. Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible. Lewis v. United Air Lines Transportation Corp., D.Conn. 1939, 27 F.Supp. 946; Engl v. Aetna Life Ins. Co., supra; Mahler v. Pennsylvania R. Co., supra; Bloomer v. Sirian Lamp Co., D.Del. 1944, 8 Fed.Rules Serv. 26b.31, Case 3; Rousseau v. Langley, S.D.N.Y. 1945, 9 Fed.Rules Serv. 34.41, Case 1 (Rule 26 contemplates 'examinations not merely for the narrow purpose of adducing testimony which may be offered in evidence but also for the broad discovery of information which may be useful in preparation for trial.'); Olson Transportation Co. v. Socony-Vacuum Co., E.D.Wis. 1944, 8 Fed.Rules Serv. 34.41, Case 2 ('. . . the Rules . . . permit 'fishing' for evidence as they should.'); Note, 1945, 45 Col.L.Rev. 482. Thus hearsay, while inadmissible itself, may suggest testimony which properly may be proved. Under Rule 26 (b) several cases, however, have erroneously limited discovery on the basis of admissibility, holding that the word 'relevant' in effect meant 'material and competent under the rules of evidence'. Poppino v. Jones Store Co., W.D.Mo. 1940, 1 F.R.D. 215, 3 Fed.Rules Serv. 26b.5, Case 1; Benevento v. A. & P. Food Stores, Inc., E.D.N.Y. 1939, 26 F.Supp. 424. Thus it has been said that inquiry might not be made into statements or other matters which, when disclosed, amounted only to hearsay. See Maryland for use of Montvila v. Pan-American Bus Lines, Inc., D.Md. 1940, 1 F.R.D. 213, 3 Fed.Rules Serv. 26b.211, Case 3; Gitto v. 'Italia,' Societa Anonima Di Navigazione, E.D.N.Y. 1940, 31 F.Supp. 567; Rose Silk Mills, Inc. v. Insurance Co. of North America, S.D.N.Y. 1939, 29 F.Supp. 504; Colpak v. Hetterick, E.D.N.Y. 1941, 40 F.Supp. 350; Matthies v. Peter F. Connolly Co., E.D.N.Y. 1941, 6 Fed.Rules Serv. 30a.22, Case 1, 2 F.R.D. 277; Matter of Examination of Citizens Casualty Co. of New York S.D.N.Y. 1942, 3 F.R.D. 171, 7 Fed.Rules Serv. 26b.211, Case 1; United States v. Silliman, D.C.N.J. 1944 8 Fed.Rules Serv. 26b.52, Case 1. The contrary and better view, however, has often been stated. See e.g., Engl v. Aetna Life Ins. Co., supra; Stevenson v. Melady, S.D.N.Y. 1940, 3 Fed.Rules Serv. 26b.31, Case 1, 1 F.R.D. 329; Lewis v. United Air Lines Transport Corp., supra; Application of Zenith Radio Corp., E.D.Pa. 1941, 4 Fed.Rules Serv. 30b. 21, Case 1, 1 F.R.D. 627; Steingut v. Guaranty Trust Co. of New York, S.D.N.Y. 1941, 1 F.R.D. 723, 4 Fed.Rules Serv. 26b.5. Case 2: DeSeversky v. Republic Aviation Corp, E.D.N.Y. 1941, 2 F.R.D. 183, 5 Fed.Rules Serv. 26b.31, Case 5; Moore v. George A. Hormel & Co., S.D.N.Y. 1942, 6 Fed.Rules Serv. 30b.41, Case 1, 2 F.R.D. 340; Hercules Powder Co. v. Rohm & Haas Co., D.Del. 1943, 7 Fed.Rules Serv. 45b.311, Case 2, 3 F.R.D. 302; Bloomer v. Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., D.Mass. 1944, 8 Fed.Rules Serv. 26b.31, Case 1; Patterson Oil Terminals, Inc. v. Charles Kurz & Co., Inc., E.D.Pa. 1945, 9 Fed.Rules Serv. 33.321, Case 2; Pueblo Trading Co. v. Reclamation Dist. No. 1500, N.D.Cal. 1945, 9 Fed.Rules Serv. 33.321, Case 4, 4 F.R.D. 471. See also discussion as to the broad scope of discovery in Hoffman v. Palmer, C.C.A.2d, 1942, 129 F.2d 976, 995-997, aff'd on other grounds, 1942, 318 U.S. 109, 63 S.Ct. 477; Note, 1945, 45 Col.L.Rev. 482. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 28(b). See the next-to-last paragraph of the Advisory Committee's Note to that amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The requirement that the plaintiff obtain leave of court in order to serve notice of taking of a deposition within 20 days after commencement of the action gives rises to difficulties when the prospective deponent is about to become unavailable for examination. The problem is not confined to admiralty, but has been of special concern in that context because of the mobility of vessels and their personnel. When Rule 26 was adopted as Admiralty Rule 30A in 1961, the problem was alleviated by permitting depositions de bene esse, for which leave of court is not required. See Advisory Committee's Note to Admiralty Rule 30A (1961). A continuing study is being made in the effort to devise a modification of the 20-day rule appropriate to both the civil and admiralty practice to the end that Rule 26(a) shall state a uniform rule applicable alike to what are now civil actions and suits in admiralty. Meanwhile, the exigencies of maritime litigation require preservation, for the time being at least, of the traditional de bene esse procedure for the post-unification counterpart of the present suit in admiralty. Accordingly, the amendment provides for continued availability of that procedure in admiralty and maritime claims within the meaning of Rule 9(h). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT A limited rearrangement of the discovery rules is made, whereby certain rule provisions are transferred, as follows: Existing Rule 26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c) is transferred to Rule 30(c). Existing Rules 26(d), (e), and (f) are transferred to Rule 32. Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and 32. In addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this rearrangement is to establish Rule 26 as a rule governing discovery in general. (The reasons are set out in the Advisory Committee's explanatory statement.) Subdivision (a) - Discovery Devices. This is a new subdivision listing all of the discovery devices provided in the discovery rules and establishing the relationship between the general provisions of Rule 26 and the specific rules for particular discovery devices. The provision that the frequency of use of these methods is not limited confirms existing law. It incorporates in general form a provision now found in Rule 33. Subdivision (b) - Scope of Discovery. This subdivision is recast to cover the scope of discovery generally. It regulates the discovery obtainable through any of the discovery devices listed in Rule 26(a). All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules. Rule 26(c) (transferred from 30(b)) confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been freely exercised. For example, a party's income tax return is generally held not privileged, 2A Barron & Holtzoff, Federal Practice and Procedure, Sec. 65.2 (Wright ed. 1961), and yet courts have recognized that interests in privacy may call for a measure of extra protection. E.g., Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y. 1964). Similarly, the courts have in appropriate circumstances protected materials that are primarily of an impeaching character. These two types of materials merely illustrate the many situations, not capable of governance by precise rule, in which courts must exercise judgment. The new subsections in Rule 26(d) do not change existing law with respect to such situations. Subdivision (b)(1) - In General. The language is changed to provide for the scope of discovery in general terms. The existing subdivision, although in terms applicable only to depositions, is incorporated by reference in existing Rules 33 and 34. Since decisions as to relevance to the subject matter of the action are made for discovery purposes well in advance of trial, a flexible treatment of relevance is required and the making of discovery, whether voluntary or under court order, is not a concession or determination of relevance for purposes of trial. Cf. 4 Moore's Federal Practice 26-16(1) (2d ed. 1966). Subdivision (b)(2) - Insurance Policies. Both cases and commentators are sharply in conflict on the question whether defendant's liability insurance coverage is subject to discovery in the usual situation when the insurance coverage is not itself admissible and does not bear on another issue on the case. Examples of Federal cases requiring disclosure and supporting comments: Cook v. Welty, 253 F.Supp. 875 (D.D.C. 1966) (cases cited); Johanek v. Aberle, 27 F.R.D. 272 (D.Mont. 1961); Williams, Discovery of Dollar Limits in Liability Policies in Automobile Tort Cases, 10 Ala.L.Rev. 355 (1958); Thode, Some Reflections on the 1957 Amendments to the Texas Rules, 37 Tex.L.Rev. 33, 40-42 (1958). Examples of Federal cases refusing disclosure and supporting comments: Bisserier v. Manning, 207 F.Supp. 476 (D.N.J. 1962); Cooper v. Stender, 30 F.R.D. 389 (E.D.Tenn. 1962); Frank, Discovery and Insurance Coverage, 1959 Ins.L.J. 281; Fournier, Pre-Trial Discovery of Insurance Coverage and Limits, 28 Ford L.Rev. 215 (1959). The division in reported cases is close. State decisions based on provisions similar to the federal rules are similarly divided. See cases collected in 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 647.1, nn. 45.5, 45.6 (Wright ed. 1961). It appears to be difficult if not impossible to obtain appellate review of the issue. Resolution by rule amendment is indicated. The question is essentially procedural in that it bears upon preparation for trial and settlement before trial, and courts confronting the question, however, they have decided it, have generally treated it as procedural and governed by the rules. The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26(b) that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as foreclosed. See Bisserier v. Manning, supra. Some note also that facts about a defendant's financial status are not discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage discoverable, they must extend the principle to other aspects of the defendant's financial status. The cases favoring disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and trial preparation. In Clauss v. Danker, 264 F.Supp. 246 (S.D.N.Y. 1967), the court held that the rules forbid disclosure but called for an amendment to permit it. Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status (1) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy. Disclosure is required when the insurer 'may be liable' on part or all of the judgment. Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. The provision applies only to persons 'carrying on an insurance business' and thus covers insurance companies and not the ordinary business concern that enters into a contract of indemnification. Cf. N.Y.Ins. Law Sec. 41. Thus, the provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business. Similarly, the provision does not cover the business concern that creates a reserve fund for purposes of self-insurance. For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement. The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision. In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. Subdivision (b)(3) - Trial Preparation: Materials. Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial. The existing rules make no explicit provision for such materials. Yet, two verbally distinct doctrines have developed, each conferring a qualified immunity on these materials - the 'good cause' requirement in Rule 34 (now generally held applicable to discovery of documents via deposition under Rule 45 and interrogatories under Rule 33) and the work-product doctrine of Hickman v. Taylor, 329 U.S. 495 (1947). Both demand a showing of justification before production can be had, the one of 'good cause' and the other variously described in the Hickman case: 'necessity or justification,' 'denial * * * would unduly prejudice the preparation of petitioner's case,' or 'cause hardship or injustice' 329 U.S. at 509-510. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in 1947 for an approach to the problem of trial preparation materials by judicial decision rather than by rule. Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal. The major difficulties visible in the existing case law are (1) confusion and disagreement as to whether 'good cause' is made out by a showing of relevance and lack of privilege, or requires an additional showing of necessity, (2) confusion and disagreement as to the scope of the Hickman work-product doctrine, particularly whether it extends beyond work actually performed by lawyers, and (3) the resulting difficulty of relating the 'good cause' required by Rule 34 and the 'necessity or justification' of the work-product doctrine, so that their respective roles and the distinctions between them are understood. Basic Standard. Since Rule 34 in terms requires a showing of 'good cause' for the production of all documents and things, whether or not trial preparation is involved, courts have felt that a single formula is called for and have differed over whether a showing of relevance and lack of privilege is enough or whether more must be shown. When the facts of the cases are studied, however, a distinction emerges based upon the type of materials. With respect to documents not obtained or prepared with an eye to litigation, the decisions, while not uniform, reflect a strong and increasing tendency to relate 'good cause' to a showing that the documents are relevant to the subject matter of the action. E.g., Connecticut Mutual Life Ins. Co. v. Shields, 17 F.R.D. 273 (S.D.N.Y. 1959), with cases cited; Houdry Process Corp. v. Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y. 1955); see Bell v. Commercial Ins. Co., 280 F.2d 514, 517 (3d Cir. 1960). When the party whose documents are sought shows that the request for production is unduly burdensome or oppressive, courts have denied discovery for lack of 'good cause', although they might just as easily have based their decision on the protective provisions of existing Rule 30(b) (new Rule 26(c)). E.g., Lauer v. Tankrederi, 39 F.R.D. 334 (E.D.Pa. 1966). As to trial-preparation materials, however, the courts are increasingly interpreting 'good cause' as requiring more than relevance. When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman. But even as to the preparatory work of nonlawyers, while some courts ignore work-product and equate 'good cause' with relevance, e.g., Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955), the more recent trend is to read 'good cause' as requiring inquiry into the importance of and need for the materials as well as into alternative sources for securing the same information. In Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962), statements of witnesses obtained by claim agents were held not discoverable because both parties had had equal access to the witnesses at about the same time, shortly after the collision in question. The decision was based solely on Rule 34 and 'good cause'; the court declined to rule on whether the statements were work-product. The court's treatment of 'good cause' is quoted at length and with approval in Schlagenhauf v. Holder, 379 U.S. 104, 117-118 (1964). See also Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958); Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir. 1954); Burke v. United States, 32 F.R.D. 213 (E.D.N.Y. 1963). While the opinions dealing with 'good cause' do not often draw an explicit distinction between trial preparation materials and other materials, in fact an overwhelming proportion of the cases in which special showing is required are cases involving trial preparation materials. The rules are amended by eliminating the general requirement of 'good cause' from Rule 34 but retaining a requirement of a special showing for trial preparation materials in this subdivision. The required showing is expressed, not in terms of 'good cause' whose generality has tended to encourage confusion and controversy, but in terms of the elements of the special showing to be made: substantial need of the materials in the preparation of the case and inability without undue hardship to obtain the substantial equivalent of the materials by other means. These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy (as with respect to income tax returns or grand jury minutes) or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order. On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side. See Field and McKusick, Maine Civil Practice 264 (1959). Elimination of a 'good cause' requirement from Rule 34 and the establishment of a requirement of a special showing in this subdivision will eliminate the confusion caused by having two verbally distinct requirements of justification that the courts have been unable to distinguish clearly. Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case. The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks. Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other. The court in Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir. 1968), while it naturally addressed itself to the 'good cause' requirements of Rule 34, set forth as controlling considerations the factors contained in the language of this subdivision. The analysis of the court suggests circumstances under which witness statements will be discoverable. The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. Lanham, supra at 127-128; Guilford, supra at 926. Or he may be reluctant or hostile. Lanham, supra at 128-129; Brookshire v. Pennsylvania RR., 14 F.R.D. 154 (N.D.Ohio 1953); Diamond v. Mohawk Rubber Co., 33 F.R.D. 264 (D.Colo. 1963). Or he may have a lapse of memory. Tannenbaum v. Walker, 16 F.R.D. 570 (E.D.Pa. 1954). Or he may probably be deviating from his prior statement. Cf. Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir. 1954). On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports. Lanham, supra at 131-133; Pickett v. L. R. Ryan, Inc., 237 F.Supp. 198 (E.D.S.C. 1965). Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision. Gossman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir. 1963); cf. United States v. New York Foreign Trade Zone Operators, Inc., 304 F.2d 792 (2d Cir. 1962). No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable. Treatment of Lawyers; Special Protection of Mental Impressions, Conclusions, Opinions, and Legal Theories Concerning the Litigation. - The courts are divided as to whether the work-product doctrine extends to the preparatory work only of lawyers. The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of appeals, compare Alltmont v. United States, 177 F.2d 971, 976 (3d Cir. 1949), cert. denied, 339 U.S. 967 (1950) (Hickman applied to statements obtained by FBI agents on theory it should apply to 'all statements of prospective witnesses which a party has obtained for his trial counsel's use'), with Southern Ry. v. Campbell, 309 F.2d 569 (5th Cir. 1962) (statements taken by claim agents not work-product), and Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962) (avoiding issue of work-product as to claim agents, deciding case instead under Rule 34 'good cause'). Similarly, the district courts are divided on statements obtained by claim agents, compare, e.g., Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955) with Hanke v. Milwaukee Electric Ry. & Transp. Co., 7 F.R.D. 540 (E.D. Wis. 1947); investigators, compare Burke v. United States, 32 F.R.D. 213 (E.D.N.Y.1963) with Snyder v. United States, 20 F.R.D. 7 (E.D.N.Y.1956); and insurers, compare Gottlieb v. Bresler, 24 F.R.D. 371 (D.D.C.1959) with Burns v. Mulder, 20 F.R.D. 605 (ED.Pa 1957). See 4 Moore's Federal Practice 26.23 (8.1) (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 652.2 (Wright ed. 1961). A complication is introduced by the use made by courts of the 'good cause' requirement of Rule 34, as described above. A court may conclude that trial preparation materials are not work-product because not the result of lawyer's work and yet hold that they are not producible because 'good cause' has not been shown. Cf. Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962), cited and described above. When the decisions on 'good cause' are taken into account, the weight of authority affords protection of the preparatory work of both lawyers and nonlawyers (though not necessarily to the same extent) by requiring more than a showing of relevance to secure production. Subdivision (b)(3) reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators and claim-agents. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted. Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions. But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use. Party's Right to Own Statement. - An exception to the requirement of this subdivision enables a party to secure production of his own statement without any special showing. The cases are divided. Compare, e.g., Safeway Stores, Inc. v. Reynolds, 176 F.2d 476 (D.C. Cir. 1949); Shupe v. Pennsylvania RR., 19 F.R.D. 144 (W.D.Pa. 1956); with e.g., New York Central RR. v. Carr, 251 F.2d 433 (4th Cir. 1957); Belback v. Wilson Freight Forwarding Co., 40 F.R.D. 16 (W.D.Pa. 1966). Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's statement is, without more, admissible in evidence. Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced. E.g., Smith v. Central Linen Service Co., 39 F.R.D. 15 (D.Md. 1966); McCoy v. General Motors Corp., 33 F.R.D. 354 (W.D.Pa. 1963). Commentators strongly support the view that a party be able to secure his statement without a showing. 4 Moore's Federal Practice 26.23 (8.4) (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 652.3 (Wright ed. 1961); see also Note, Developments in the Law - Discovery, 74 Harv.L.Rev. 940, 1039 (1961). The following states have by statute or rule taken the same position: Statutes: Fla.Stat.Ann. Sec. 92.33; Ga.Code Ann. Sec. 38-2109(b); La.Stat.Ann.R.S. 13:3732; Mass.Gen.Laws Ann. c. 271, Sec. 44; Minn.Stat.Ann. Sec. 602.01; N.Y.C.P.L.R. Sec. 3101(e). Rules: Mo.R.C.P. 56.01(a); N.Dak.R.C.P. 34(b); Wyo.R.C.P. 34(b); cf. Mich.G.C.R. 306.2. In order to clarify and tighten the provision on statements by a party, the term 'statement' is defined. The definition is adapted from 18 U.S.C. Sec. 3500(e) (Jencks Act). The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization. Witness' Right to Own Statement. - A second exception to the requirement of this subdivision permits a nonparty witness to obtain a copy of his own statement without any special showing. Many, though not all, of the considerations supporting a party's right to obtain his statement apply also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly. Subdivision (b)(4) - Trial Preparation: Experts. This is a new provision dealing with discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party. The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses. It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. Subsection (b)(4)(A) deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases. See, e.g., United States v. Nysco Laboratories, Inc., 26 F.R.D. 159, 162 (E.D.N.Y. 1960) (food and drug); E. I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 24 F.R.D. 416, 421 (D.Del. 1959) (patent); Cold Metal Process Co. v. Aluminum Co. of America, 7 F.R.D. 425 (N.D.Ohio 1947), aff'd. Sachs v. Aluminum Co. of America, 167 F.2d 570 (6th Cir. 1948) (same); United States v. 50.34 Acres of Land, 13 F.R.D. 19 (E.D.N.Y. 1952) (condemnation). In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand. McGlothlin, Some Practical Problems in Proof of Economic, Scientific, and Technical Facts, 23 F.R.D. 467, 478 (1958). A California study of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts' valuation materials is 'lengthy - and often fruitless - cross-examination during trial,' and recommends pretrial exchange of such material. Calif.Law Rev.Comm'n, Discovery in Eminent Domain Proceedings 707-710 (Jan.1963). Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated. These considerations appear to account for the broadening of discovery against experts in the cases cited where expert testimony was central to the case. In some instances, the opinions are explicit in relating expanded discovery to improved cross-examination and rebuttal at trial. Franks v. National Dairy Products Corp., 41 F.R.D. 234 (W.D.Tex. 1966); United States v. 23.76 Acres, 32 F.R.D. 593 (D.Md. 1963); see also an unpublished opinion of Judge Hincks, quoted in United States v. 48 Jars, etc., 23 F.R.D. 192, 198 (D.D.C. 1958). On the other hand, the need for a new provision is shown by the many cases in which discovery of expert trial witnesses is needed for effective cross-examination and rebuttal, and yet courts apply the traditional doctrine and refuse disclosure. E.g., United States v. Certain Parcels of Land, 25 F.R.D. 192 (N.D.Cal. 1959); United States v. Certain Acres, 18 F.R.D. 98 (M.D.Ga. 1955). Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision (b)(4)(A) draws no line between complex and simple cases, or between cases with many experts and those with but one. It establishes by rule substantially the procedure adopted by decision of the court in Knighton v. Villian & Fassio, 39 F.R.D. 11 (D.Md. 1965). For a full analysis of the problem and strong recommendations to the same effect, see Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455, 485-488 (1962); Long, Discovery and Experts under the Federal Rules of Civil Procedure, 38 F.R.D. 111 (1965). Past judicial restrictions on discovery of an adversary's expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other's better preparation. The procedure established in subsection (b)(4)(A) holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent's experts. Subdivision (b)(4)(A) provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices. Subdivision (b)(4)(B) deals with an expert who has been retained or specially employed by the party in anticipation of litigation or preparation for trial (thus excluding an expert who is simply a general employee of the party not specially employed on the case), but who is not expected to be called as a witness. Under its provisions, a party may discover facts known or opinions held by such an expert only on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Subdivision (b)(4)(B) is concerned only with experts retained or specially consulted in relation to trial preparation. Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted. These new provisions of subdivision (b)(4) repudiate the few decisions that have held an expert's information privileged simply because of his status as an expert, e.g., American Oil Co. v. Pennsylvania Petroleum Products Co., 23 F.R.D. 680, 685-686 (D.R.I. 1959). See Louisell, Modern California Discovery 315-316 (1963). They also reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United States v. McKay, 372 F.2d 174, 176-177 (5th Cir. 1967). The provisions adopt a form of the more recently developed doctrine of 'unfairness'. See e.g., United States v. 23.76 Acres of Land, 32 F.R.D. 593, 597 (D.Md. 1963); Louisell, supra, at 317-318; 4 Moore's Federal Practice Sec. 26.24 (2d ed. 1966). Under subdivision (b)(4)(C), the court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert. The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum. E.g., Lewis v. United Air Lines Transp. Corp., 32 F.Supp. 21 (W.D.Pa. 1940); Walsh v. Reynolds Metal Co., 15 F.R.D. 376 (D.N.J. 1954). On the other hand, a party may not obtain discovery simply by offering to pay fees and expenses. Cf. Boynton v. R. J. Reynolds Tobacco Co., 36 F.Supp. 593 (D.Mass. 1941). In instances of discovery under subdivision (b)(4)(B), the court is directed to award fees and expenses to the other party, since the information is of direct value to the discovering party's preparation of his case. In ordering discovery under (b)(4)(A)(ii), the court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other party's case or is going beyond this to develop his own case. Even in cases where the court is directed to issue a protective order, it may decline to do so if it finds that manifest injustice would result. Thus, the court can protect, when necessary and appropriate, the interests of an indigent party. Subdivision (c) - Protective Orders. The provisions of existing Rule 30(b) are transferred to this subdivision (c), as part of the rearrangement of Rule 26. The language has been changed to give it application to discovery generally. The subdivision recognizes the power of the court in the district where a deposition is being taken to make protective orders. Such power is needed when the deposition is being taken far from the court where the action is pending. The court in the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where the action is pending. In addition, drafting changes are made to carry out and clarify the sense of the rule. Insertions are made to avoid any possible implication that a protective order does not extend to 'time' as well as to 'place' or may not safeguard against 'undue burden or expense.' The new reference to trade secrets and other confidential commercial information reflects existing law. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection. See, e.g., Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir. 1965); Julius M. Ames Co. v. Bostitch, Inc., 235 F.Supp. 856 (S.D.N.Y. 1964). The subdivision contains new matter relating to sanctions. When a motion for a protective order is made and the court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery. This will bring the sanctions of Rule 37(b) directly into play. Since the court has heard the contentions of all interested persons, an affirmative order is justified. See Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col.L.Rev. 480, 492-493 (1958). In addition, the court may require the payment of expenses incurred in relation to the motion. Subdivision (d) - Sequence and Priority. This new provision is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court's power to establish priority by an order issued in a particular case. A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects: First, this priority rule permits a party to establish a priority running to all depositions as to which he has given earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his adversary's taking of depositions for an inordinate time. Some courts have ruled that deposition priority also permits a party to delay his answers to interrogatories and production of documents. E.g., E. I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 23 F.R.D. 237 (D.Del. 1959); but cf. Sturdevant v. Sears, Roebuck & Co., 32 F.R.D. 426 (W.D.Mo. 1963). Second, since notice is the key to priority, if both parties wish to take depositions first a race results. See Caldwell-Clements, Inc. v. McGraw-Hill Pub. Co., 11 F.R.D. 156 (S.D.N.Y. 1951) (description of tactics used by parties). But the existing rules on notice of deposition create a race with runners starting from different positions. The plaintiff may not give notice without leave of court until 20 days after commencement of the action, whereas the defendant may serve notice at any time after commencement. Thus, a careful and prompt defendant can almost always secure priority. This advantage of defendants is fortuitous, because the purpose of requiring plaintiff to wait 20 days is to afford defendant an opportunity to obtain counsel, not to confer priority. Third, although courts have ordered a change in the normal sequence of discovery on a number of occasions, e.g., Kaeppler v. James H. Matthews & Co., 200 F.Supp. 229 (E.D.Pa. 1961); Park & Tilford Distillers Corp. v. Distillers Co., 19 F.R.D. 169 (S.D.N.Y. 1956), and have at all times avowed discretion to vary the usual priority, most commentators are agreed that courts in fact grant relief only for 'the most obviously compelling reasons.' 2A Barron & Holtzoff, Federal Practice and Procedure 447-47 (Wright ed. 1961); see also Younger, Priority of Pretrial Examination in the Federal Courts - A Comment, 34 N.Y.U.L.Rev. 1271 (1959); Freund, The Pleading and Pretrial of an Antitrust Claim, 46 Corn.L.Q. 555, 564, (1964). Discontent with the fairness of actual practice has been evinced by other observers. Comments, 59 Yale L.J. 117, 134-136 (1949); Yudkin, Some Refinements in Federal Discovery Procedure, 11 Fed.B.J. 289, 296-297 (1951); Developments in the Law-Discovery, 74 Harv.L.Rev. 940, 954-958 (1961). Despite these difficulties, some courts have adhered to the priority rule, presumably because it provides a test which is easily understood and applied by the parties without much court intervention. It thus permits deposition discovery to function extrajudicially, which the rules provide for and the courts desire. For these same reasons, courts are reluctant to make numerous exceptions to the rule. The Columbia Survey makes clear that the problem of priority does not affect litigants generally. It found that most litigants do not move quickly to obtain discovery. In over half of the cases, both parties waited at least 50 days. During the first 20 days after commencement of the action - the period when defendant might assure his priority by noticing depositions - 16 percent of the defendants acted to obtain discovery. A race could not have occurred in more than 16 percent of the cases and it undoubtedly occurred in fewer. On the other hand, five times as many defendants as plaintiffs served notice of deposition during the first 19 days. To the same effect, see Comment, Tactical Use and Abuse of Depositions Under the Federal Rules, 59 Yale L.J. 117, 134 (1949). These findings do not mean, however, that the priority rule is satisfactory or that a problem of priority does not exist. The court decisions show that parties do bottle on this issue and carry their disputes to court. The statistics show that these court cases are not typical. By the same token, they reveal that more extensive exercise of judicial discretion to vary the priority will not bring a flood of litigation, and that a change in the priority rule will in fact affect only a small fraction of the cases. It is contended by some that there is no need to alter the existing priority practice. In support, it is urged that there is no evidence that injustices in fact result from present practice and that, in any event, the courts can and do promulgate local rules, as in New York, to deal with local situations and issue orders to avoid possible injustice in particular cases. Subdivision (d) is based on the contrary view that the rule of priority based on notice is unsatisfactory and unfair in its operation. Subdivision (d) follows an approach adapted from Civil Rule 4 of the District Court for the Southern District of New York. That rule provides that starting 40 days after commencement of the action, unless otherwise ordered by the court, the fact that one part is taking a deposition shall not prevent another party from doing so 'concurrenly.' In practice, the depositions are not usually taken simultaneously; rather, the parties work out arrangements for alternation in the taking of depositions. One party may take a complete deposition and then the other, or, if the depositions are extensive, one party deposes for a set time, and then the other. See Caldwell-Clements, Inc. v. McGraw-Hill Pub. Co., 11 F.R.D. 156 (S.D.N.Y. 1951). In principle, one party's initiation of discovery should not wait upon the other's completion, unless delay is dictated by special considerations. Clearly the principle is feasible with respect to all methods of discovery other than depositions. And the experience of the Southern District of New York shows that the principle can be applied to depositions as well. The courts have not had an increase in motion business on this matter. Once it is clear to lawyers that they bargain on an equal footing, they are usually able to arrange for an orderly succession of depositions without judicial intervention. Professor Moore has called attention to Civil Rule 4 and suggested that it may usefully be extended to other areas. 4 Moore's Federal Practice 1154 (2d ed. 1966). The court may upon motion and by order grant priority in a particular case. But a local court rule purporting to confer priority in certain classes of cases would be inconsistent with this subdivision and thus void. Subdivision (e) - Supplementation of Responses. The rules do not now state whether interrogatories (and questions at deposition as well as requests for inspection and admissions) impose a 'continuing burden' on the responding party to supplement his answers if he obtains new information. The issue is acute when new information renders substantially incomplete or inaccurate an answer which was complete and accurate when made. It is essential that the rules provide an answer to this question. The parties can adjust to a rule either way, once they know what it is. See 4 Moore's Federal Practice 33.25(4) (2d ed. 1966). Arguments can be made both ways. Imposition of a continuing burden reduces the proliferation of additional sets of interrogatories. Some courts have adopted local rules establishing such a burden. E.g., E.D.Pa.R. 20(f), quoted in Taggart v. Vermont Transp. Co., 32 F.R.D. 587 (E.D.Pa. 1963); D.Me.R.15(c). Others have imposed the burden by decision, E.g., Chenault v. Nebraska Farm Products, Inc., 9 F.R.D. 529, 533 (D.Nebr. 1949). On the other hand, there are serious objections to the burden, especially in protracted cases. Although the party signs the answers, it is his lawyer who understands their significance and bears the responsibility to bring answers up to date. In a complex case all sorts of information reaches the party, who little understands its bearing on answers previously given to interrogatories. In practice, therefore, the lawyer under a continuing burden must periodically recheck all interrogatories and canvass all new information. But a full set of new answers may no longer be needed by the interrogating party. Some issues will have been dropped from the case, some questions are now seen as unimportant, and other questions must in any event be reformulated. See Novick v. Pennsylvania RR., 18 F.R.D. 296, 298 (W.D.Pa. 1955). Subdivision (e) provides that a party is not under a continuing burden except as expressly provided. Cf. Note, 68 Harv.L.Rev. 673, 677 (1955). An exception is made as to the identity of persons having knowledge of discoverable matters, because of the obvious importance to each side of knowing all witnesses and because information about witnesses routinely comes to each lawyer's attention. Many of the decisions on the issue of a continuing burden have in fact concerned the identity of witnesses. An exception is also made as to expert trial witnesses in order to carry out the provisions of Rule 26(b)(4). See Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md. 1967). Another exception is made for the situation in which a party, or more frequently his lawyer, obtains actual knowledge that a prior response is incorrect. This exception does not impose a duty to check the accuracy of prior responses, but it prevents knowing concealment by a party or attorney. Finally, a duty to supplement may be imposed by order of the court in a particular case (including an order resulting from a pretrial conference) or by agreement of the parties. A party may of course make a new discovery request which requires supplementation of prior responses. The duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (f). This subdivision is new. There has been widespread criticism of abuse of discovery. The Committee has considered a number of proposals to eliminate abuse, including a change in Rule 26(b)(1) with respect to the scope of discovery and a change in Rule 33(a) to limit the number of questions that can be asked by interrogatories to parties. The Committee believes that abuse of discovery, while very serious in certain cases, is not so general as to require such basic changes in the rules that govern discovery in all cases. A very recent study of discovery in selected metropolitan districts tends to support its belief. P. Connolly, E. Holleman, & M. Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery (Federal Judicial Center, 1978). In the judgment of the Committee abuse can best be prevented by intervention by the court as soon as abuse is threatened. To this end this subdivision provides that counsel who has attempted without success to effect with opposing counsel a reasonable program or plan for discovery is entitled to the assistance of the court. It is not contemplated that requests for discovery conferences will be made routinely. A relatively narrow discovery dispute should be resolved by resort to Rules 26(c) or 37(a), and if it appears that a request for a conference is in fact grounded in such a dispute, the court may refer counsel to those rules. If the court is persuaded that a request is frivolous or vexatious, it can strike it. See Rules 11 and 7(b)(2). A number of courts routinely consider discovery matters in preliminary pretrial conferences held shortly after the pleadings are closed. This subdivision does not interfere with such a practice. It authorizes the court to combine a discovery conference with a pretrial conference under Rule 16 if a pretrial conference is held sufficiently early to prevent or curb abuse. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems. Recent studies have made some attempt to determine the sources and extent of the difficulties. See Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery, Federal Judicial Center (1978); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979); Schroeder & Frank, The Proposed Changes in the Discovery Rules, 1978 Ariz.St.L.J. 475. The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. 'Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.' Hickman v. Taylor, 329 U.S. 495, 507 (1947). Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses. All of this results in excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake. Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules, nevertheless results in delay. See Brazil, The Adversary Character of Civil Discovery: A Critque and Proposals for Change, 31 Vand.L.Rev. 1259 (1978). As a result, it has been said that the rules have 'not infrequently (been) exploited to the disadvantage of justice.' Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell, J., concurring). These practices impose costs on an already overburdened system and impede the fundamental goal of the 'just, speedy, and inexpensive determination of every action.' Fed.R.Civ.P. 1. Subdivision (a); Discovery Methods. The deletion of the last sentence of Rule 26(a)(1), which provided that unless the court ordered otherwise under Rule 26(c) 'the frequency of use' of the various discovery methods was not to be limited, is an attempt to address the problem of duplicative, redundant, and excessive discovery and to reduce it. The amendment, in conjunction with the changes in Rule 26(b)(1), is designed to encourage district judges to identify instances of needless discovery and to limit the use of the various discovery devices accordingly. The question may be raised by one of the parties, typically on a motion for a protective order, or by the court on its own initiative. It is entirely appropriate to consider a limitation on the frequency of use of discovery at a discovery conference under Rule 26(f) or at any other pretrial conference authorized by these rules. In considering the discovery needs of a particular case, the court should consider the factors described in Rule 26(b)(1). Subdivison (b); Discovery Scope and Limits. Rule 26(b)(1) has been amended to add a sentence to deal with the problem of over-discovery. The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry. The new sentence is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse. The grounds mentioned in the amended rule for limiting discovery reflect the existing practice of many courts in issuing protective orders under Rule 26(c). See e.g., Carlson Cos. v. Sperry & Hutchinson Co., 374 F.Supp. 1080 (D.Minn. 1974); Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y. 1971); Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D.Pa. 1963); Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941). On the whole, however, district judges have been reluctant to limit the use of the discovery devices. See, e.g., Apco Oil Co. v. Certified Transp., Inc., 46 F.R.D. 428 (W.D.Mo. 1969). See generally 8 Wright & Miller, Federal Practice and Procedure: Civil Sec. 2036, 2037, 2039, 2040 (1970). The first element of the standard, Rule 26(b)(1)(i), is designed to minimize redundancy in discovery and encourage attorneys to be sensitive to the comparative costs of different methods of securing information. Subdivision (b)(1)(ii) also seeks to reduce repetitiveness and to oblige lawyers to think through their discovery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. The elements of Rule 26(b)(1)(iii) address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent. The rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. See Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery 77, Federal Judicial Center (1978). In an appropriate case the court could restrict the number of depositions, interrogatories, or the scope of a production request. But the court must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case. The court may act on motion, or its own initiative. It is entirely appropriate to resort to the amended rule in conjunction with a discovery conference under Rule 26(f) or one of the other pretrial conferences authorized by the rules. Subdivision (g); Signing of Discovery Requests, Responses, and Objections. Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. The term 'response' includes answers to interrogatories and to requests to admit as well as responses to production requests. If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discovery are governed by Rule 11. However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g). Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection. The duty to make a 'reasonable inquiry' is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. See the Advisory Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed. Sav. & Loan Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). In making the inquiry, the attorney may rely on assertions by the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances. Rule 26(g) does not require the signing attorney to certify the truthfulness of the client's factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer's certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33. Nor does the rule require a party or an attorney to disclose privileged communications or work product in order to show that a discovery request, response, or objection is substantially justified. The provisions of Rule 26(c), including appropriate orders after in camera inspection by the court, remain available to protect a party claiming privilege or work product protection. The signing requirement means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily dependent on the circumstances of each case. The certification speaks as of the time it is made. The duty to supplement discovery responses continues to be governed by Rule 26(e). Concern about discovery abuse has led to widespread recognition that there is a need for more aggresive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanctions to deter discovery abuse would be more effective if they were diligently applied 'not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.' National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). See also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978). Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards will significantly reduce abuse by imposing disadvantages therefor. Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. Sec. 1927, and the court's inherent power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D.Col. 1980); Note, Sanctions Imposed by Courts on Attorneys Who Abuse the Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances. The court may take into account any failure by the party seeking sanctions to invoke protection under Rule 26(c) at an early stage in the litigation. The sanctioning process must comport with due process requirements. The kind of notice and hearing required will depend on the facts of the case and the severity of the sanction being considered. To prevent the proliferation of the sanction procedure and to avoid multiple hearings, discovery in any sanction proceeding normally should be permitted only when it is clearly required by the interests of justice. In most cases the court will be aware of the circumstances and only a brief hearing should be necessary. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Certification and filing of depositions, see rule 30. Consequences of refusal to appear for deposition, see rule 37. Continuance to procure depositions opposing motion for summary judgment, see rule 56. Depositions - Before action or pending appeal, see rule 27. Of witnesses upon written interrogatories, see rule 31. Opposing motion for summary judgment, see rule 56. Effect of errors and irregularities in depositions, see rule 32. Examination and cross-examination of deponents, see Federal Rules of Evidence, rules 607, 611. Failure to attend or serve subpoena, expenses, see rule 30. Motion to terminate or limit examination, see rule 30. Notice for taking deposition, see rule 30. Objections to admissibility of depositions, see rule 32. Order compelling answer to question propounded upon oral examination, see rule 37. Orders for protection of parties and deponents, see rule 30. Persons before whom depositions may be taken, see rule 28. Record of examination, see rule 30. Stipulations regarding taking depositions, see rule 29. Subpoena for taking depositions, see rule 45. Time and place for depositions, see rules 30 and 45. Written interrogatories of party, see rule 33. ------DocID 37071 Document 933 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 27 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 27. Depositions Before Action or Pending Appeal -STATUTE- (a) Before Action. (1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: 1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and the petitioner's interest therein, 3, the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, 4, the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the district or state in the manner provided in Rule 4(d) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4(d), an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(c) apply. (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a United States district court, in accordance with the provisions of Rule 32(a). (b) Pending Appeal. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court. (c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This rule offers a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. See Arizona v. California, 292 U.S. 341, 54 S.Ct. 735, 78 L.Ed. 1298 (1934); Todd Engineering Dry Dock and Repair Co. v. United States, 32 F.2d 734 (C.C.A.5th, 1929); Hall v. Stout, 4 Del. ch. 269 (1871). For comparable state statutes see Ark.Civ.Code (Crawford, 1934) Sec. 666-670; Calif.Code Civ.Proc. (Deering, 1937) 2083-2089; Ill.Rev.Stat. (1937) ch. 51, Sec. 39-46; Iowa Code (1935) Sec. 11400-11407; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 233, Sec. 46-63; N.Y.C.P.A. (1937) Sec. 295; Ohio Gen.Code Ann. ((Throckmorton, 1936) Sec. 12216-12222; Va.Code Ann. (Michie, 1936) Sec. 6235; Wisc.Stat. (1935) Sec. 326.27-326.29. The appointment of an attorney to represent absent parties or parties not personally notified, or a guardian ad litem to represent minors and incompetents, is provided for in several of the above statutes. Note to Subdivision (b). This follows the practice approved in Richter v. Union Trust Co., 115 U.S. 55, 5 S.Ct. 1162, 29 L.Ed. 345 (1885), by extending the right to perpetuate testimony to cases pending an appeal. Note to Subdivision (c). This preserves the right to employ a separate action to perpetuate testimony under U.S.C., Title 28, (former) Sec. 644 (Depositions under dedimus potestatem and in perpetuam) as an alternate method. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Since the second sentence in subdivision (a)(3) refers only to depositions, it is arguable that Rules 34 and 35 are inapplicable in proceedings to perpetuate testimony. The new matter (in subdivisions (a)(3) and (b)) clarifies. A conforming change is also made in subdivision (b). 1948 AMENDMENT The amendment effective October 1949, substituted the words 'United States district court' in subdivision (a)(1) and (4) for 'district court of the United States'. NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT The reference intended in this subdivision is to the rule governing the use of depositions in court proceedings. Formerly Rule 26(d), that rule is now Rule 32(a). The subdivision is amended accordingly. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Persons before whom depositions may be taken, see rule 28. ------DocID 14614 Document 934 of 1452------ -CITE- 10 USC APPENDIX - RULES OF COURT OF MILITARY APPEALS Rule 28 -EXPCITE- TITLE 10 APPENDIX UNITED STATES COURT OF MILITARY APPEALS EXTRAORDINARY RELIEF -HEAD- Rule 28. Form of Petition for Extraordinary Relief, Writ Appeal Petition, Answer, and Reply -STATUTE- (a) Petition/writ appeal petition. A Petition for extraordinary relief or a writ appeal petition for review of a Court of Military Review decision on application for extraordinary relief will be accompanied by any available record and will be substantially in the following form: -MISC1- IN THE UNITED STATES COURT OF MILITARY APPEALS (PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF XXXXXXX, (TYPE OF WRIT SOUGHT)) (Petitioner) OR (Appellant) (WRIT APPEAL PETITION v. FOR REVIEW OF COURT XXXXXXX, OF MILITARY REVIEW (Respondent) DECISION ON (Appellee) APPLICATION FOR EXTRAORDINARY RELIEF) USCMA MISC. DKT. NO.X (FOR COURT USE ONLY) PREAMBLE The (petitioner) (appellant) hereby prays for an order directing the (respondent) (appellee) to: (Briefly state the relief sought.) I HISTORY OF THE CASE (SEE RULE 27(A)(1)(A)) II STATEMENT OF FACTS (SEE RULE 27(A)(1)(B)) III STATEMENT OF ISSUE (Do not include citations of authority or discussion of principles. Set forth no more than the full question of law involved.) IV THE RELIEF SOUGHT (State with particularity the relief which the petitioner or appellant seeks to have the Court order.) V JURISDICTIONAL STATEMENT (SEE RULE 27(A)(1)(E)) VI REASONS FOR GRANTING THE WRIT (WHERE APPLICABLE, INDICATE WHY THE COURT OF MILITARY REVIEW ERRED IN ITS DECISION) XXXXXXXXXXXXXXXXXXXXXXXX Signature of (petitioner) (appellant) (counsel) XXXXXXXXXXXXXXXXXXXXXXXX Address & phone number of (petitioner) (appellant) (counsel) *** ILLUSTRATIONS OR TABLE DATA OMITTED *** CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was (mailed) (delivered) to the Court and (mailed) (delivered) to the (respondent) (appellee) on XXXX. (Date) XXXXXXXXXXXXXXXXXXX (Typed name and signature) XXXXXXXXXXXXXXXXXXX (Address and telephone no.) (b) Answer. (1) The respondent's Answer to an order to show cause, if ordered by the Court after consideration of a petition for extraordinary relief, shall be in substantially the same form as that of the petition, except that the answer may incorporate the petitioner's statement of facts, add supplementary facts, or contest the statement. To the extent that the petitioner's statement of facts is not contested by the respondent, it shall be taken by the Court as representing an accurate declaration of the basis on which relief is sought. The answer to the order to show cause will be filed no later than 10 days after service on the respondent of the order requiring such answer, unless a different time for filing the answer is specified in the Court's order. (2) The appellee's answer to a writ appeal petition shall be filed no later than 10 days after the filing of the appellant's writ appeal petition and supporting brief. (c) Reply. (1) A reply may be filed by the petitioner no later than 5 days after the filing of a respondent's answer to an order to show cause. (2) A reply may be filed by an appellant, in the case of a writ appeal petition, no later than 5 days after the filing of an appellee's answer. ------DocID 37073 Document 935 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 29 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 29. Stipulations Regarding Discovery Procedure -STATUTE- Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may be made only with the approval of the court. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT There is no provision for stipulations varying the procedures by which methods of discovery other than depositions are governed. It is common practice for parties to agree on such variations, and the amendment recognizes such agreements and provides a formal mechanism in the rules for giving them effect. Any stipulation varying the procedures may be superseded by court order, and stipulations extending the time for response to discovery under Rules 33, 34, and 36 require court approval. ------DocID 37074 Document 936 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 30 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 30. Depositions Upon Oral Examination -STATUTE- (a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Notice of Examination: General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) Leave of court is not required for the taking of a deposition by the plaintiff if the notice (A) states that the person to be examined is about to go out of the district where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless the person's deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and the attorney's signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when the party was served with notice under this subdivision (b)(2) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party. (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party's own expense. Any objections under subdivision (c), any changes made by the witness, the witness' signature identifying the deposition as the witness' own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in a writing to accompany a deposition recorded by non-stenographic means. (5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1), and 45(d), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions propounded to the deponent. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Motion To Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing. (1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, the officer shall then securely seal the deposition in an envelope indorsed with the title of the action and marked 'Deposition of (here insert name of witness)' and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. (2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (3) The party taking the deposition shall give prompt notice of its filing to all other parties. (g) Failure To Attend or To Serve Subpoena; Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This is in accordance with common practice. See U.S.C., Title 28, (former) Sec. 639 (Depositions de bene esse; when and where taken; notice), the relevant provisions of which are incorporated in this rule; Calif.Code Civ.Proc. (Deering, 1937) Sec. 2031; and statutes cited in respect to notice in the Note to Rule 26(a). The provision for enlarging or shortening the time of notice has been added to give flexibility to the rule. Note to Subdivisions (b) and (d). These are introduced as a safeguard for the protection of parties and deponents on account of the unlimited right of discovery given by Rule 26. Note to Subdivisions (c) and (e). These follow the general plan of (former) Equity Rule 51 (Evidence Taken Before Examiners, Etc.) and U. S. C., Title 28, (former) Sec. 640 (Depositions de bene esse; mode of taking), and (former) 641 (Same; transmission to court), but are more specific. They also permit the deponent to require the officer to make changes in the deposition if the deponent is not satisfied with it. See also (former) Equity Rule 50 (Stenographer-Appointment-Fees). Note to Subdivision (f). Compare (former) Equity Rule 55 (Depositions Deemed Published When Filed). Note to Subdivision (g). This is similar to 2 Minn. Stat. (Mason, 1927) Sec. 9833, but is more extensive. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment corresponds to the change in Rule 4(d)(4). See the Advisory Committee's Note to that amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Subdivision (a). This subdivision contains the provisions of existing Rule 26(a), transferred here as part of the rearrangement relating to Rule 26. Existing Rule 30(a) is transferred to 30(b). Changes in language have been made to conform to the new arrangement. This subdivision is further revised in regard to the requirement of leave of court for taking a deposition. The present procedure, requiring a plaintiff to obtain leave of court if he serves notice of taking a deposition within 20 days after commencement of the action, is changed in several respects. First, leave is required by reference to the time the deposition is to be taken rather than the date of serving notice of taking. Second, the 20-day period is extended to 30 days and runs from the service of summons and complaint on any defendant, rather than the commencement of the action. Cf. Ill. S.Ct.R. 19-1, S-H Ill.Ann.Stat. Sec. 101.19-1. Third, leave is not required beyond the time that defendant initiates discovery, thus showing that he has retained counsel. As under the present practice, a party not afforded a reasonable opportunity to appear at a deposition, because he has not yet been served with process, is protected against use of the deposition at trial against him. See Rule 32(a), transferred from 26(d). Moreover, he can later redepose the witness if he so desires. The purpose of requiring the plaintiff to obtain leave of court is, as stated by the Advisory Committee that proposed the present language of Rule 26(a), to protect 'a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit.' Note to 1948 amendment of Rule 26(a), quoted in 3A Barron & Holtzoff, Federal Practice and Procedure 455-456 (Wright ed. 1958). In order to assure defendant of this opportunity, the period is lengthened to 30 days. This protection, however, is relevant to the time of taking the deposition, not to the time that notice is served. Similarly, the protective period should run from the service of process rather than the filing of the complaint with the court. As stated in the note to Rule 26(d), the courts have used the service of notice as a convenient reference point for assigning priority in taking depositions, but with the elimination of priority in new Rule 26(d) the reference point is no longer needed. The new procedure is consistent in principle with the provisions of Rules 33, 34, and 36 as revised. Plaintiff is excused from obtaining leave even during the initial 30-day period if he gives the special notice provided in subdivision (b)(2). The required notice must state that the person to be examined is about to go out of the district where the action is pending and more than 100 miles from the place of trial, or out of the United States, or on a voyage to sea, and will be unavailable for examination unless deposed within the 30-day period. These events occur most often in maritime litigation, when seamen are transferred from one port to another or are about to go to sea. Yet, there are analogous situations in nonmaritime litigation, and although the maritime problems are more common, a rule limited to claims in the admirality and maritime jurisdiction is not justified. In the recent unification of the civil and admiralty rules, this problem was temporarily met through addition in Rule 26(a) of a provision that depositions de bene esse may continue to be taken as to admiralty and maritime claims within the meaning of Rule 9(h). It was recognized at the time that 'a uniform rule applicable alike to what are now civil actions and suits in admiralty' was clearly preferable, but the de bene esse procedure was adopted 'for the time being at least.' See Advisory Committee's note in Report of the Judicial Conference: Proposed Amendments to Rules of Civil Procedure 43-44 (1966). The changes in Rule 30(a) and the new Rule 30(b)(2) provide a formula applicable to ordinary civil as well as maritime claims. They replace the provision for depositions de bene esse. They authorize an early deposition without leave of court where the witness is about to depart and, unless his deposition is promptly taken, (1) it will be impossible or very difficult to depose him before trial or (2) his deposition can later be taken but only with substantially increased effort and expense. Cf. S.S. Hai Chang, 1966 A.M.C. 2239 (S.D.N.Y. 1966), in which the deposing party is required to prepay expenses and counsel fees of the other party's lawyer when the action is pending in New York and depositions are to be taken on the West Coast. Defendant is protected by a provision that the deposition cannot be used against him if he was unable through exercise of diligence to obtain counsel to represent him. The distance of 100 miles from place of trial is derived from the de bene esse provision and also conforms to the reach of a subpoena of the trial court, as provided in Rule 45(e). See also S.D.N.Y. Civ.R. 5(a). Some parts of the de bene esse provision are omitted from Rule 30(b)(2). Modern deposition practice adequately covers the witness who lives more than 100 miles away from place of trial. If a witness is aged or infirm, leave of court can be obtained. Subdivision (b). Existing Rule 30(b) on protective orders has been transferred to Rule 26(c), and existing Rule 30(a) relating to the notice of taking deposition has been transferred to this subdivision. Because new material has been added, subsection numbers have been inserted. Subdivision (b)(1). If a subpoena duces tecum is to be served, a copy thereof or a designation of the materials to be produced must accompany the notice. Each party is thereby enabled to prepare for the deposition more effectively. Subdivision (b)(2). This subdivision is discussed in the note to subdivision (a), to which it relates. Subdivision (b)(3). This provision is derived from existing Rule 30(a), with a minor change of language. Subdivision (b)(4). In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means - e.g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary. Subdivision (b)(5). A provision is added to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition. This may now be done as to a nonparty deponent through use of a subpoena duces tecum as authorized by Rule 45, but some courts have held that documents may be secured from a party only under Rule 34. See 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 644.1 n. 83.2, Sec. 792 n. 16 (Wright ed. 1961). With the elimination of 'good cause' from Rule 34, the reason for this restrictive doctrine has disappeared. Cf. N.Y.C.P.L.R. Sec. 3111. Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rules 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone. Subdivision (b)(6). A new provision is added, whereby a party may name a corporation, partnership, association, or governmental agency as the deponent and designate the matters on which he requests examination, and the organization shall then name one or more of its officers, directors, or managing agents, or other persons consenting to appear and testify on its behalf with respect to matters known or reasonably available to the organization. Cf. Alberta Sup.Ct.R. 255. The organization may designate persons other than officers, directors, and managing agents, but only with their consent. Thus, an employee or agent who has an independent or conflicting interest in the litigation - for example, in a personal injury case - can refuse to testify on behalf of the organization. This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them. On the other hand, a court's decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subdivision. The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a 'managing agent.' See Note, Discovery Against Corporations Under the Federal Rules, 47 Iowa L.Rev. 1006-1016 (1962). It will curb the 'bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it. Cf. Haney v. Woodward & Lothrop, Inc., 330 F.2d 940, 944 (4th Cir. 1964). The provisions should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. Some courts have held that under the existing rules a corporation should not be burdened with choosing which person is to appear for it. E.g., United States v. Gahagan Dredging Corp., 24 F.R.D. 328, 329 (S.D.N.Y. 1958). This burden is not essentially different from that of answering interrogatories under Rule 33, and is in any case lighter than that of an examining party ignorant of who in the corporation has knowledge. Subdivision (c). A new sentence is inserted at the beginning, representing the transfer of existing Rule 26(c) to this subdivision. Another addition conforms to the new provision in subdivision (b)(4). The present rule provides that transcription shall be carried out unless all parties waive it. In view of the many depositions taken from which nothing useful is discovered, the revised language provides that transcription is to be performed if any party requests it. The fact of the request is relevant to the exercise of the court's discretion in determining who shall pay for transcription. Parties choosing to serve written questions rather than participate personally in an oral deposition are directed to serve their questions on the party taking the deposition, since the officer is often not identified in advance. Confidentiality is preserved, since the questions may be served in a sealed envelope. Subdivision (d). The assessment of expenses incurred in relation to motions made under this subdivision (d) is made subject to the provisions of Rule 37(a). The standards for assessment of expenses are more fully set out in Rule 37(a), and these standards should apply to the essentially similar motions of this subdivision. Subdivision (e). The provision relating to the refusal of a witness to sign his deposition is tightened through insertion of a 30-day time period. Subdivision (f)(1). A provision is added which codifies in a flexible way the procedure for handling exhibits related to the deposition and at the same time assures each party that he may inspect and copy documents and things produced by a nonparty witness in response to subpoena duces tecum. As a general rule and in the absence of agreement to the contrary or order of the court, exhibits produced without objection are to be annexed to and returned with the deposition, but a witness may substitute copies for purposes of marking and he may obtain return of the exhibits. The right of the parties to inspect exhibits for identification and to make copies is assured. Cf. N.Y.C.P.L.R. Sec. 3116(c). NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT The subdivision permits a party to name a corporation or other form of organization as a deponent in the notice of examination and to describe in the notice the matters about which discovery is desired. The organization is then obliged to designate natural persons to testify on its behalf. The amendment clarifies the procedure to be followed if a party desires to examine a non-party organization through persons designated by the organization. Under the rules, a subpoena rather than a notice of examination is served on a non-party to compel attendance at the taking of a deposition. The amendment provides that a subpoena may name a non-party organization as the deponent and may indicate the matters about which discovery is desired. In that event, the non-party organization must respond by designating natural persons, who are then obliged to testify as to matters known or reasonably available to the organization. To insure that a non-party organization that is not represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to advise of the duty in the body of the subpoena. NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Subdivision (c). Existing. Rule 43(b), which is to be abrogated, deals with the use of leading questions, the calling, interrogation, impeachment, and scope of cross-examination of adverse parties, officers, etc. These topics are dealt with in many places in the Rules of Evidence. Moreover, many pertinent topics included in the Rules of Evidence are not mentioned in Rule 43(b), e.g. privilege. A reference to the Rules of Evidence generally is therefore made in subdivision (c) of Rule 30. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (b)(4). It has been proposed that electronic recording of depositions be authorized as a matter of course, subject to the right of a party to seek an order that a deposition be recorded by stenographic means. The Committee is not satisfied that a case has been made for a reversal of present practice. The amendment is made to encourage parties to agree to the use of electronic recording of depositions so that conflicting claims with respect to the potential of electronic recording for reducing costs of depositions can be appraised in the light of greater experience. The provision that the parties may stipulate that depositions may be recorded by other than stenographic means seems implicit in Rule 29. The amendment makes it explicit. The provision that the stipulation or order shall designate the person before whom the deposition is to be taken is added to encourage the naming of the recording technician as that person, eliminating the necessity of the presence of one whose only function is to administer the oath. See Rules 28(a) and 29. Subdivision (b)(7). Depositions by telephone are now authorized by Rule 29 upon stipulation of the parties. The amendment authorizes that method by order of the court. The final sentence is added to make it clear that when a deposition is taken by telephone it is taken in the district and at the place where the witness is to answer the questions rather than that where the questions are propounded. Subdivision (f)(1). For the reasons set out in the Note following the amendment of Rule 5(d), the court may wish to permit the parties to retain depositions unless they are to be used in the action. The amendment of the first paragraph permits the court to so order. The amendment of the second paragraph is clarifying. The purpose of the paragraph is to permit a person who produces materials at a deposition to offer copies for marking and annexation to the deposition. Such copies are a 'substitute' for the originals, which are not to be marked and which can thereafter be used or even disposed of by the person who produces them. In the light of that purpose, the former language of the paragraph had been justly termed 'opaque.' Wright & Miller, Federal Practice and Procedure: Civil Sec. 2114. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of this title. -CROSS- CROSS REFERENCES Discovery and production of documents and things for inspection, copying, or photographing, see rule 34. Effect of taking or using depositions, see rule 26. Errors or irregularities in depositions, effect, see rule 32. Motion to suppress deposition, see rule 32. Notary public and other persons authorized to administer oaths required by laws of the United States, see section 2903 of Title 5, Government Organization and Employees. Objections to admissibility of deposition, see rule 26. Orders for protection of party on written interrogatories, see rule 33. Persons before whom deposition may be taken, see rule 28. Place of examination, see rule 45. Power of person appointed by court to take deposition to administer oaths and take testimony, see rule 28. Scope of examination, see rule 26. Stipulations regarding discovery procedure, see rule 29. Subpoena for taking depositions, see rule 45. Time of taking depositions, see rule 26. United States magistrates, power to administer oaths and take depositions, see section 636 of this title. Waiver of objections, see rule 32. ------DocID 37075 Document 937 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 31 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 31. Depositions Upon Written Questions -STATUTE- (a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time. (b) Officer To Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer. (c) Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule is in accordance with common practice. In most of the states listed in the Note to Rule 26(a), provisions similar to this rule will be found in the statutes which in their respective statutory compilations follow those cited in the Note to Rule 26(a). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Confusion is created by the use of the same terminology to describe both the taking of a deposition upon 'written interrogatories' pursuant to this rule and the serving of 'written interrogatories' upon parties pursuant to Rule 33. The distinction between these two modes of discovery will be more readily and clearly grasped through substitution of the word 'questions' for 'interrogatories' throughout this rule. Subdivision (a). A new paragraph is inserted at the beginning of this subdivision to conform to the rearrangement of provisions in Rules 26(a), 30(a), and 30(b). The revised subdivision permits designation of the deponent by general description or by class or group. This conforms to the practice for depositions on oral examination. The new procedure provided in Rule 30(b)(6) for taking the deposition of a corporation or other organization through persons designated by the organization is incorporated by reference. The service of all questions, including cross, redirect, and recross, is to be made on all parties. This will inform the parties and enable them to participate fully in the procedure. The time allowed for service of cross, redirect, and recross questions has been extended. Experience with the existing time limits shows them to be unrealistically short. No special restriction is placed on the time for serving the notice of taking the deposition and the first set of questions. Since no party is required to serve cross questions less than 30 days after the notice and questions are served, the defendant has sufficient time to obtain counsel. The court may for cause shown enlarge or shorten the time. Subdivision (d). Since new Rule 26(c) provides for protective orders with respect to all discovery, and expressly provides that the court may order that one discovery device be used in place of another, subdivision (d) is eliminated as unnecessary. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Written interrogatories of a party, see rule 33. ------DocID 37076 Document 938 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 32 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 32. Use of Depositions in Court Proceedings -STATUTE- (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any State and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the Federal Rules of Evidence. (b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. ((c) Effect of Taking or Using Depositions.) (Abrogated Nov. 20, 1972, eff. July 1, 1975) (d) Effect of Errors and Irregularities in Depositions. (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to Taking of Deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized. (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule is in accordance with common practice. In most of the states listed in the Note to Rule 26, provisions similar to this rule will be found in the statutes which in their respective statutory compilations follow those cited in the Note to Rule 26. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT As part of the rearrangement of the discovery rules, existing subdivisions (d), (e), and (f) of Rule 26 are transferred to Rule 32 as new subdivisions (a), (b), and (c). The provisions of Rule 32 are retained as subdivision (d) of Rule 32 with appropriate changes in the lettering and numbering of subheadings. The new rule is given a suitable new title. A beneficial byproduct of the rearrangement is that provisions which are naturally related to one another are placed in one rule. A change is made in new Rule 32(a), whereby it is made clear that the rules of evidence are to be applied to depositions offered at trial as though the deponent were then present and testifying at trial. This eliminates the possibility of certain technical hearsay objections which are based, not on the contents of deponent's testimony, but on his absence from court. The language of present Rule 26(d) does not appear to authorize these technical objections, but it is not entirely clear. Note present Rule 26(e), transferred to Rule 32(b); see 2A Barron & Holtzoff, Federal Practice and Procedure 164-166 (Wright ed. 1961). An addition in Rule 32(a)(2) provides for use of a deposition of a person designated by a corporation or other organization, which is a party, to testify on its behalf. This complements the new procedure for taking the deposition of a corporation or other organization provided in Rules 30(b)(6) and 31(a). The addition is appropriate, since the deposition is in substance and effect that of the corporation or other organization which is a party. A change is made in the standard under which a party offering part of a deposition in evidence may be required to introduce additional parts of the deposition. The new standard is contained in a proposal made by the Advisory Committee on Rules of Evidence. See Rule 1-07 and accompanying Note, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates 21-22 (March, 1969). References to other rules are changed to conform to the rearrangement, and minor verbal changes have been made for clarification. The time for objecting to written questions served under Rule 31 is slightly extended. NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Subdivision (e). The concept of 'making a person one's own witness' appears to have had significance principally in two respects: impeachment and waiver of incompetency. Neither retains any vitality under the Rules of Evidence. The old prohibition against impeaching one's own witness is eliminated by Evidence Rule 607. The lack of recognition in the Rules of Evidence of state rules of incompetency in the Dead Man's area renders it unnecessary to consider aspects of waiver arising from calling the incompetent party witness. Subdivision (c) is deleted because it appears to be no longer necessary in the light of the Rules of Evidence. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (a)(1). Rule 801(d) of the Federal Rules of Evidence permits a prior inconsistent statement of a witness in a deposition to be used as substantive evidence. And Rule 801(d)(2) makes the statement of an agent or servant admissible against the principal under the circumstances described in the Rule. The language of the present subdivision is, therefore, too narrow. Subdivision (a)(4). The requirement that a prior action must have been dismissed before depositions taken for use in it can be used in a subsequent action was doubtless an oversight, and the courts have ignored it. See Wright & Miller, Federal Practice and Procedure: Civil Sec. 2150. The final sentence is added to reflect the fact that the Federal Rules of Evidence permit a broader use of depositions previously taken under certain circumstances. For example, Rule 804(b)(1) of the Federal Rules of Evidence provides that if a witness is unavailable, as that term is defined by the rule, his deposition in any earlier proceeding can be used against a party to the prior proceeding who had an opportunity and similar motive to develop the testimony of the witness. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (a)(1), (4), are set out in this Appendix. -MISC2- EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of this title. -CROSS- CROSS REFERENCES Notary public and other persons authorized to administer oaths required by laws of the United States, see section 2903 of Title 5, Government Organization and Employees. Rejection of deposition by court after refusal to sign, see rule 30. ------DocID 37077 Document 939 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 33 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 33. Interrogatories to Parties -STATUTE- (a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time. (c) Option To Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule restates the substance of (former) Equity Rule 58 (Discovery - Interrogatories - Inspection and Production of Documents - Admission of Execution or Genuineness), with modifications to conform to these rules. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The added second sentence in the first paragraph of Rule 33 conforms with a similar change in Rule 26(a) and will avoid litigation as to when the interrogatories may be served. Original Rule 33 does not state the times at which parties may serve written interrogatories upon each other. It has been the accepted view, however, that the times were the same in Rule 33 as those stated in Rule 26(a). United States v. American Solvents & Chemical Corp. of California, D.Del. 1939, 30 F.Supp. 107; Sheldon v. Great Lakes Transit Corp., W.D.N.Y. 1942, 2 F.R.D. 272, 5 Fed.Rules Serv. 33.11, Case 3; Musher Foundation, Inc., v. Alba Trading Co., S.D.N.Y. 1941, 42 F.Supp. 281; 2 Moore's Federal Practice, 1938, 2621. The time within which leave of court must be secured by a plaintiff has been fixed at 10 days, in view of the fact that a defendant has 10 days within which to make objections in any case, which should give him ample time to engage counsel and prepare. Further in the first paragraph of Rule 33, the word 'service' is substituted for 'delivery' in conformance with the use of the word 'serve' elsewhere in the rule and generally throughout the rules. See also Note to Rule 13(a) herein. The portion of the rule dealing with practice on objections has been revised so as to afford a clearer statement of the procedure. The addition of the words 'to interrogatories to which objection is made' insures that only the answers to the objectionable interrogatories may be deferred, and that the answers to interrogatories not objectionable shall be forthcoming within the time prescribed in the rule. Under the original wording, answers to all interrogatories may be withheld until objections, sometimes to but a few interrogatories, are determined. The amendment expedites the procedure of the rule and serves to eliminate the strike value of objections to minor interrogatories. The elimination of the last sentence of the original rule is in line with the policy stated subsequently in this note. The added second paragraph in Rule 33 contributes clarity and specificity as to the use and scope of interrogatories to the parties. The field of inquiry will be as broad as the scope of examination under Rule 26(b). There is no reason why interrogatories should be more limited than depositions, particularly when the former represent an inexpensive means of securing useful information. See Hoffman v. Wilson Line, Inc., E.D.Pa. 1946, 9 Fed.Rules Serv. 33.514, Case 2; Brewster v. Technicolor, Inc., S.D.N.Y. 1941, 2 F.R.D. 186, 5 Fed.Rules Serv. 33.319, Case 3; Kingsway Press, Inc. v. Farrell Publishing Corp., S.D.N.Y. 1939, 30 F.Supp. 775. Under present Rule 33 some courts have unnecessarily restricted the breadth of inquiry on various grounds. See Auer v. Hershey Creamery Co., D.N.J. 1939, 2 Fed.Rules Serv. 33.31, Case 2, 1 F.R.D. 14; Tudor v. Leslie, D.Mass. 1940, 1 F.R.D. 448, 4 Fed.Rules Serv. 33.324, Case 1. Other courts have read into the rule the requirement that interrogation should be directed only towards 'important facts', and have tended to fix a more or less arbitrary limit as to the number of interrogatories which could be asked in any case. See Knox v. Alter, W.D.Pa. 1942, 2 F.R.D. 337, 6 Fed.Rules Serv. 33.352, Case 1; Byers Theaters, Inc. v. Murphy, W.D.Va. 1940, 3 Fed.Rules Serv. 33.31, Case 3, 1 F.R.D. 286; Coca-Cola Co. v. Dixi-Cola Laboratories, Inc., D.Md. 1939, 30 F.Supp. 275. See also comment on these restrictions in Holtzoff, Instruments of Discovery Under Federal Rules of Civil Procedure, 1942, 41 Mich.L.Rev. 205, 216-217. Under amended Rule 33, the party interrogated is given the right to invoke such protective orders under Rule 30(b) as are appropriate to the situation. At the same time, it is provided that the number of or number of sets of interrogatories to be served may not be limited arbitrarily or as a general policy to any particular number, but that a limit may be fixed only as justice requires to avoid annoyance, expense, embarrassment or oppression in individual cases. The party interrogated, therefore, must show the necessity for limitation on that basis. It will be noted that in accord with this change the last sentence of the present rule, restricting the sets of interrogatories to be served, has been stricken. In J. Schoeneman, Inc. v. Brauer, W.D.Mo. 1940, 1 F.R.D. 292, 3 Fed.Rules Serv. 33.31, Case 2, the court said: 'Rule 33 . . . has been interpreted . . . as being just as broad in its implications as in the case of depositions . . . It makes no difference therefore, how many interrogatories are propounded. If the inquiries are pertinent the opposing party cannot complain.' To the same effect, see Canuso v. City of Niagara Falls, W.D.N.Y. 1945, 8 Fed.Rules Serv. 33.352, Case 1; Hoffman v. Wilson Line, Inc., supra. By virtue of express language in the added second paragraph of Rule 33, as amended, any uncertainty as to the use of the answers to interrogatories is removed. The omission of a provision on this score in the original rule has caused some difficulty. See, e.g., Bailey v. New England Mutual Life Ins. Co., S.D.Cal. 1940, 1 F.R.D. 494, 4 Fed.Rules Serv. 33.46, Case 1. The second sentence of the second paragraph in Rule 33, as amended, concerns the situation where a party wishes to serve interrogatories on a party after having taken his deposition, or vice versa. It has been held that an oral examination of a party, after the submission to him and answer of interrogatories, would be permitted. Howard v. State Marine Corp., S.D.N.Y. 1940, 4 Fed.Rules Serv. 33.62, Case 1, 1 F.R.D. 499; Stevens v. Minder Construction Co., S.D.N.Y. 1943, 3 F.R.D. 498, 7 Fed.Rules Serv. 30b.31, Case 2. But objections have been sustained to interrogatories served after the oral deposition of a party had been taken. McNally v. Simons, S.D.N.Y. 1940, 3 Fed.Rules Serv. 33.61, Case 1, 1 F.R.D. 254; Currier v. Currier, S.D.N.Y. 1942, 3 F.R.D. 21, 6 Fed.Rules Serv. 33.61, Case 1. Rule 33, as amended, permits either interrogatories after a deposition or a deposition after interrogatories. It may be quite desirable or necessary to elicit additional information by the inexpensive method of interrogatories where a deposition has already been taken. The party to be interrogated, however, may seek a protective order from the court under Rule 30(b) where the additional deposition or interrogation works a hardship or injustice on the party from whom it is sought. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Subdivision (a). The mechanics of the operation of Rule 33 are substantially revised by the proposed amendment, with a view to reducing court intervention. There is general agreement that interrogatories spawn a greater percentage of objections and motions than any other discovery device. The Columbia Survey shows that, although half of the litigants resorted to depositions and about one-third used interrogatories, about 65 percent of the objections were made with respect to interrogatories and 26 percent related to depositions. See also Speck, The Use of Discovery in United States District Courts, 60 Yale L.J. 1132, 1144, 1151 (1951); Note, 36 Minn.L.Rev. 364, 379 (1952). The procedures now provided in Rule 33 seem calculated to encourage objections and court motions. The time periods now allowed for responding to interrogatories - 15 days for answers and 10 days for objections - are too short. The Columbia Survey shows that tardy response to interrogatories is common, virtually expected. The same was reported in Speck, supra, 60 Yale L.J. 1132, 1144. The time pressures tend to encourage objections as a means of gaining time to answer. The time for objections is even shorter than for answers, and the party runs the risk that if he fails to object in time he may have waived his objections. E.g., Cleminshaw v. Beech Aircraft Corp., 21 F.R.D. 300 (D.Del. 1957); see 4 Moore's Federal Practice, 33.27 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 372-373 (Wright ed. 1961). It often seems easier to object than to seek an extension of time. Unlike Rules 30(d) and 37(a), Rule 33 imposes no sanction of expenses on a party whose objections are clearly unjustified. Rule 33 assures that the objections will lead directly to court, through its requirement that they be served with a notice of hearing. Although this procedure does preclude an out-of-court resolution of the dispute, the procedure tends to discourage informal negotiations. If answers are served and they are thought inadequate, the interrogating party may move under Rule 37(a) for an order compelling adequate answers. There is no assurance that the hearing on objections and that on inadequate answers will be heard together. The amendment improves the procedure of Rule 33 in the following respects: (1) The time allowed for response is increased to 30 days and this time period applies to both answers and objections, but a defendant need not respond in less than 45 days after service of the summons and complaint upon him. As is true under existing law, the responding party who believes that some parts or all of the interrogatories are objectionable may choose to seek a protective order under new Rule 26(c) or may serve objections under this rule. Unless he applies for a protective order, he is required to serve answers or objections in response to the interrogatories, subject to the sanctions provided in Rule 37(d). Answers and objections are served together, so that a response to each interrogatory is encouraged, and any failure to respond is easily noted. (2) In view of the enlarged time permitted for response, it is no longer necessary to require leave of court for service of interrogatories. The purpose of this requirement - that defendant have time to obtain counsel before a response must be made - is adequately fulfilled by the requirement that interrogatories be served upon a party with or after service of the summons and complaint upon him. Some would urge that the plaintiff nevertheless not be permitted to serve interrogatories with the complaint. They fear that a routine practice might be invited, whereby form interrogatories would accompany most complaints. More fundamentally, they feel that, since very general complaints are permitted in present-day pleading, it is fair that the defendant have a right to take the lead in serving interrogatories. (These views apply also to Rule 36.) The amendment of Rule 33 rejects these views, in favor of allowing both parties to go forward with discovery, each free to obtain the information he needs respecting the case. (3) If objections are made, the burden is on the interrogating party to move under Rule 37(a) for a court order compelling answers, in the course of which the court will pass on the objections. The change in the burden of going forward does not alter the existing obligation of an objecting party to justify his objections. E.g., Pressley v. Boehlke, 33 F.R.D. 316 (W.D.N.C. 1963). If the discovering party asserts than an answer is incomplete or evasive, again he may look to Rule 37(a) for relief, and he should add this assertion to his motion to overrule objections. There is no requirement that the parties consult informally concerning their differences, but the new procedure should encourage consultation, and the court may by local rule require it. The proposed changes are similar in approach to those adopted by California in 1961. See Calif.Code Civ.Proc. Sec. 2030(a). The experience of the Los Angeles Superior Court is informally reported as showing that the California amendment resulted in a significant reduction in court motions concerning interrogatories. Rhode Island takes a similar approach. See R. 33, R.I.R.Civ.Proc. Official Draft, p. 74 (Boston Law Book Co.). A change is made in subdivision (a) which is not related to the sequence of procedures. The restriction to 'adverse' parties is eliminated. The courts have generally construed this restriction as precluding interrogatories unless an issue between the parties is disclosed by the pleadings - even though the parties may have conflicting interests. E.g., Mozeika v. Kaufman Construction Co., 25 F.R.D. 233 (E.D.Pa. 1960) (plaintiff and third-party defendant); Biddle v. Hutchinson, 24 F.R.D. 256 (M.D.Pa. 1959) (codefendants). The resulting distinctions have often been highly technical. In Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court rejected a contention that examination under Rule 35 could be had only against an 'opposing' party, as not in keeping 'with the aims of a liberal, nontechnical application of the Federal Rules.' 379 U.S. at 116. Eliminating the requirement of 'adverse' parties from Rule 33 brings it into line with all other discovery rules. A second change in subdivision (a) is the addition of the term 'governmental agency' to the listing of organizations whose answers are to be made by any officer or agent of the organization. This does not involve any change in existing law. Compare the similar listing in Rule 30(b)(6). The duty of a party to supplement his answers to interrogatories is governed by a new provision in Rule 26(e). Subdivision (b). There are numerous and conflicting decisions on the question whether and to what extent interrogatories are limited to matters 'of fact,' or may elicit opinions, contentions, and legal conclusions. Compare, e.g., Payer, Hewitt & Co. v. Bellanca Corp., 26 F.R.D. 219 (D.Del. 1960) (opinions bad); Zinsky v. New York Central R.R., 36 F.R.D. 680 (N.D.Ohio 1964) (factual opinion or contention good, but legal theory bad); United States v. Carter Products, Inc., 28 F.R.D. 373 (S.D.N.Y.1961) (factual contentions and legal theories bad) with Taylor v. Sound Steamship Lines, Inc., 100 F.Supp. 388 (D.Conn. 1951) (opinions good), Bynum v. United States, 36 F.R.D. 14 (E.D.La. 1964) (contentions as to facts constituting negligence good). For lists of the many conflicting authorities, see 4 Moore's Federal Practice 33.17 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 768 (Wright ed. 1961). Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit 'factual' opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. See Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md. 1967); Moore, supra; Field & McKusick, Maine Civil Practice Sec. 26.18 (1959). On the other hand, under the new language interrogatories may not extend to issues of 'pure law,' i.e., legal issues unrelated to the facts of the case. Cf. United States v. Maryland & Va. Milk Producers Assn., Inc., 22 F.R.D. 300 (D.D.C. 1958). Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer. Likewise, the court may delay determination until pretrial conference, if it believes that the dispute is best resolved in the presence of the judge. The principal question raised with respect to the cases permitting such interrogatories is whether they reintroduce undesirable aspects of the prior pleading practice, whereby parties were chained to misconceived contentions or theories, and ultimate determination on the merits was frustrated. See James, The Revival of Bills of Particulars under the Federal Rules, 71 Harv.L.Rev. 1473 (1958). But there are few if any instances in the recorded cases demonstrating that such frustration has occurred. The general rule governing the use of answers to interrogatories is that under ordinary circumstances they do not limit proof. See e.g., McElroy v. United Air Lines, Inc., 21 F.R.D. 100 (W.D.Mo. 1967); Pressley v. Boehlke, 33 F.R.D. 316, 317 (W.D.N.C. 1963). Although in exceptional circumstances reliance on an answer may cause such prejudice that the court will hold the answering party bound to his answer, e.g., Zielinski v. Philadelphia Piers, Inc., 139 F.Supp. 408 (E.D.Pa. 1956), the interrogating party will ordinarily not be entitled to rely on the unchanging character of the answers he receives and cannot base prejudice on such reliance. The rule does not affect the power of a court to permit withdrawal or amendment of answers to interrogatories. The use of answers to interrogatories at trial is made subject to the rules of evidence. The provisions governing use of depositions, to which Rule 33 presently refers, are not entirely apposite to answers to interrogatories, since deposition practice contemplates that all parties will ordinarily participate through cross-examination. See 4 Moore's Federal Practice 33.29(1) (2 ed. 1966). Certain provisions are deleted from subdivision (b) because they are fully covered by new Rule 26(c) providing for protective orders and Rules 26(a) and 26(d). The language of the subdivision is thus simplified without any change of substance. Subdivision (c). This is a new subdivision, adopted from Calif.Code Civ.Proc. Sec. 2030(c), relating especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer. The subdivision gives the party an option to make the records available and place the burden of research on the party who seeks the information. 'This provision, without undermining the liberal scope of interrogatory discovery, places the burden of discovery upon its potential benefitee,' Louisell, Modern California Discovery, 124-125 (1963), and alleviates a problem which in the past has troubled Federal courts. See Speck, The Use of Discovery in United States District Courts, 60 Yale L.J. 1132, 1142-1144 (1951). The interrogating party is protected against abusive use of this provision through the requirement that the burden of ascertaining the answer be substantially the same for both sides. A respondent may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records. At the same time, the respondent unable to invoke this subdivision does not on that account lose the protection available to him under new Rule 26(c) against oppressive or unduly burdensome or expensive interrogatories. And even when the respondent successfully invokes the subdivision, the court is not deprived of its usual power, in appropriate cases, to require that the interrogating party reimburse the respondent for the expense of assembling his records and making them intelligible. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (c). The Committee is advised that parties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by this subdivision. Such practices are an abuse of the option. A party who is permitted by the terms of this subdivision to offer records for inspection in lieu of answering an interrogatory should offer them in a manner that permits the same direct and economical access that is available to the party. If the information sought exists in the form of compilations, abstracts or summaries then available to the responding party, those should be made available to the interrogating party. The final sentence is added to make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived. ------DocID 37078 Document 940 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 34 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes -STATUTE- (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). (b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES In England orders are made for the inspection of documents, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 31, r.r. 14, et seq., or for the inspection of tangible property or for entry upon land, O. 50, r.3. Michigan provides for inspection of damaged property when such damage is the ground of the action. Mich.Court Rules Ann. (Searl, 1933) Rule 41, Sec. 2. Practically all states have statutes authorizing the court to order parties in possession or control of documents to permit other parties to inspect and copy them before trial. See Ragland, Discovery Before Trial (1932), Appendix, p. 267, setting out the statutes. Compare (former) Equity Rule 58 (Discovery - Interrogatories - Inspection and Production of Documents - Admission of Execution or Genuineness) (fifth paragraph). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The changes in clauses (1) and (2) correlate the scope of inquiry permitted under Rule 34 with that provided in Rule 26(b), and thus remove any ambiguity created by the former differences in language. As stated in Olson Transportation Co. v. Socony-Vacuum Oil Co., E.D.Wis. 1944, 8 Fed.Rules Serv. 34.41, Case 2, '. . . Rule 34 is a direct and simple method of discovery.' At the same time the addition of the words following the term 'parties' makes certain that the person in whose custody, possession, or control the evidence reposes may have the benefit of the applicable protective orders stated in Rule 30(b). This change should be considered in the light of the proposed expansion of Rule 30(b). An objection has been made that the word 'designated' in Rule 34 has been construed with undue strictness in some district court cases so as to require great and impracticable specificity in the description of documents, papers, books, etc., sought to be inspected. The Committee, however, believes that no amendment is needed, and that the proper meaning of 'designated' as requiring specificity has already been delineated by the Supreme Court. See Brown v. United States, 1928, 276 U.S. 134, 143, 48 S.Ct. 288 ('The subpoena . . . specifies . . . with reasonable particularity the subjects to which the documents called for related.'); Consolidated Rendering Co. v. Vermont, 1908, 207 U.S. 541, 543-544, 28 S.Ct. 178 ('We see no reason why all such books, papers and correspondence which related to the subject of inquiry, and were described with reasonable detail, should not be called for and the company directed to produce them. Otherwise, the State would be compelled to designate each particular paper which it desired, which presupposes an accurate knowledge of such papers, which the tribunal desiring the papers would probably rarely, if ever, have.'). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Rule 34 is revised to accomplish the following major changes in the existing rule: (1) to eliminate the requirement of good cause; (2) to have the rule operate extrajudicially; (3) to include testing and sampling as well as inspecting or photographing tangible things; and (4) to make clear that the rule does not preclude an independent action for analogous discovery against persons not parties. Subdivision (a). Good cause is eliminated because it has furnished an uncertain and erratic protection to the parties from whom production is sought and is now rendered unnecessary by virtue of the more specific provisions added to Rule 26(b) relating to materials assembled in preparation for trial and to experts retained or consulted by parties. The good cause requirement was originally inserted in Rule 34 as a general protective provision in the absence of experience with the specific problems that would arise thereunder. As the note to Rule 26(b)(3) on trial preparation materials makes clear, good cause has been applied differently to varying classes of documents, though not without confusion. It has often been said in court opinions that good cause requires a consideration of need for the materials and of alternative means of obtaining them, i.e., something more than relevance and lack of privilege. But the overwhelming proportion of the cases in which the formula of good cause has been applied to require a special showing are those involving trial preparation. In practice, the courts have not treated documents as having a special immunity to discovery simply because of their being documents. Protection may be afforded to claims of privacy or secrecy or of undue burden or expense under what is now Rule 26(c) (previously Rule 30(b)). To be sure, an appraisal of 'undue' burden inevitably entails consideration of the needs of the party seeking discovery. With special provisions added to govern trial preparation materials and experts, there is no longer any occasion to retain the requirement of good cause. The revision of Rule 34 to have it operate extrajudicially, rather than by court order, is to a large extent a reflection of existing law office practice. The Columbia Survey shows that of the litigants seeking inspection of documents or things, only about 25 percent filed motions for court orders. This minor fraction nevertheless accounted for a significant number of motions. About half of these motions were uncontested and in almost all instances the party seeking production ultimately prevailed. Although an extrajudicial procedure will not drastically alter existing practice under Rule 34 - it will conform to it in most cases - it has the potential of saving court time in a substantial though proportionately small number of cases tried annually. The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing. Cf. Mich.Gen.Ct.R. 310.1(1) (1963) (testing authorized). The inclusive description of 'documents' is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden of expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentially of nondiscoverable matters, and costs. Subdivision (b). The procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended, and the discussion in the note appended to that rule is relevant to Rule 34 as well. Problems peculiar to Rule 34 relate to the specific arrangements that must be worked out for inspection and related acts of copying, photographing, testing, or sampling. The rule provides that a request for inspection shall set forth the items to be inspected either by item or category, describing each with reasonable particularity, and shall specify a reasonable time, place, and manner of making the inspection. Subdivision (c). Rule 34 as revised continues to apply only to parties. Comments from the bar make clear that in the preparation of cases for trial it is occasionally necessary to enter land or inspect large tangible things in the possession of a person not a party, and that some courts have dismissed independent actions in the nature of bills in equity for such discovery on the ground that Rule 34 is preemptive. While an ideal solution to this problem is to provide for discovery against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex. For the present, this subdivision makes clear that Rule 34 does not preclude independent actions for discovery against persons not parties. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (b). The Committee is advised that, 'It is apparently not rare for parties deliberately to mix critical documents with others in the hope of obscuring significance.' Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association (1977) 22. The sentence added by this subdivision follows the recommendation of the Report. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- FORMS Motion for production of documents, etc., see form 24, Appendix of Forms. CROSS REFERENCES Consequences of failure to comply with order, see rule 37. Perpetuation of testimony, order and examination, see rule 27. Subpoena for production of documentary evidence, see rule 45. Summary judgment, continuance to procure discovery opposing, see rule 56. ------DocID 37079 Document 941 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 35 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 35. Physical and Mental Examination of Persons -STATUTE- (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (b) Report of Examining Physician or Psychologist. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examining physician or psychologist setting out the physician's (FOOTNOTE 1) findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that such party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician or psychologist fails or refuses to make a report the court may exclude the physician's (FOOTNOTE 1) testimony if offered at the trial. (FOOTNOTE 1) So in original. Probably should be followed by 'or psychologist's'. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or psychologist or the taking of a deposition of the physician or psychologist in accordance with the provisions of any other rule. (c) Definitions. For the purpose of this rule, a psychologist is a psychologist licensed or certified by a State or the District of Columbia. -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7047(b), 102 Stat. 4401.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Physical examination of parties before trial is authorized by statute or rule in a number of states. See Ariz.Rev.Code Ann. (Struckmeyer, 1928) Sec. 4468; Mich.Court Rules Ann. (Searl, 1933) Rule 41, Sec. 2; 2 N.J.Comp.Stat. (1910), N.Y.C.P.A. (1937) Sec. 306; 1 S.D.Comp.Laws (1929) Sec. 2716A; 3 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 1230-1. Mental examination of parties is authorized in Iowa. Iowa Code (1935) ch. 491-F1. See McCash, The Evolution of the Doctrine of Discovery and Its Present Status in Iowa, 20 Ia.L.Rev. 68 (1934). The constitutionality of legislation providing for physical examination of parties was sustained in Lyon v. Manhattan Railway Co., 142 N.Y. 298, 37 N.E. 113 (1894), and McGovern v. Hope, 63 N.J.L. 76, 42 Atl. 830 (1899). In Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), it was held that the court could not order the physical examination of a party in the absence of statutory authority. But in Camden and Suburban Ry. Co. v. Stetson, 177 U.S. 172, 20 L.Ed. 617, 44 L.Ed. 721 (1900) where there was statutory authority for such examination, derived from a state statute made operative by the conformity act, the practice was sustained. Such authority is now found in the present rule made operative by the Act of June 19, 1934, ch. 651, U.S.C., Title 28, Sec. 723b (see 2072) (Rules in actions at law; Supreme Court authorized to make) and 723c (see 2072) (Union of equity and action at law rules; power of Supreme Court). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Subdivision (a). Rule 35(a) has hitherto provided only for an order requiring a party to submit to an examination. It is desirable to extend the rule to provide for an order against the party for examination of a person in his custody or under his legal control. As appears from the provisions of amended Rule 37(b)(2) and the comment under that rule, an order to 'produce' the third person imposes only an obligation to use good faith efforts to produce the person. The amendment will settle beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination. Further, the amendment expressly includes blood examination within the kinds of examinations that can be ordered under the rule. See Beach v. Beach, 114 F.2d 479 (D.C. Cir. 1940). Provisions similar to the amendment have been adopted in at least 10 States: Calif.Code Civ.Proc. Sec. 2032; Ida.R.Civ.P. 35; Ill.S-H Ann. c. 110A, Sec. 215; Md.R.P. 420; Mich.Gen. Ct.R. 311; Minn.R.Civ.P. 35; Mo.Vern.Ann.R.Civ.P. 60.01; N.Dak.R.Civ.P. 35; N.Y.C.P.L. Sec. 3121; Wyo.R.Civ.P. 35. The amendment makes no change in the requirements of Rule 35 that, before a court order may issue, the relevant physical or mental condition must be shown to be 'in controversy' and 'good cause' must be shown for the examination. Thus, the amendment has no effect on the recent decision of the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964), stressing the importance of these requirements and applying them to the facts of the case. The amendment makes no reference to employees of a party. Provisions relating to employees in the State statutes and rules cited above appear to have been virtually unused. Subdivision (b)(1). This subdivision is amended to correct an imbalance in Rule 35(b)(1) as heretofore written. Under that text, a party causing a Rule 35(a) examination to be made is required to furnish to the party examined, on request, a copy of the examining physician's report. If he delivers this copy, he is in turn entitled to receive from the party examined reports of all examinations of the same condition previously or later made. But the rule has not in terms entitled the examined party to receive from the party causing the Rule 35(a) examination any reports of earlier examinations of the same condition to which the latter may have access. The amendment cures this defect. See La.Stat.Ann., Civ.Proc. art. 1495 (1960); Utah R.Civ.P.35(c). The amendment specifies that the written report of the examining physician includes results of all tests made, such as results of X-rays and cardiograms. It also embodies changes required by the broadening of Rule 35(a) to take in persons who are not parties. Subdivision (b)(3). This new subdivision removes any possible doubt that reports of examination may be obtained although no order for examination has been made under Rule 35(a). Examinations are very frequently made by agreement, and sometimes before the party examined has an attorney. The courts have uniformly ordered that reports be supplied, see 4 Moore's Federal Practice 35.06, n.1 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 823, n. 22 (Wright ed. 1961), and it appears best to fill the technical gap in the present rule. The subdivision also makes clear that reports of examining physicians are discoverable not only under Rule 35(b) but under other rules as well. To be sure, if the report is privileged, then discovery is not permissible under any rule other than Rule 35(b) and it is permissible under Rule 35(b) only if the party requests a copy of the report of examination made by the other party's doctor. Sher v. De Haven, 199 F.2d 777 (D.C. Cir. 1952), cert. denied 345 U.S. 936 (1953). But if the report is unprivileged and is subject to discovery under the provisions of rules other than Rule 35(b) - such as Rules 34 or 26(b)(3) or (4) - discovery should not depend upon whether the person examined demands a copy of the report. Although a few cases have suggested the contrary, e.g., Galloway v. National Dairy Products Corp., 24 F.R.D. 362 (E.D.Pa. 1959), the better considered district court decisions hold that Rule 35(b) is not preemptive. E.g., Leszynski v. Russ, 29 F.R.D. 10, 12 (D.Md. 1961) and cases cited. The question was recently given full consideration in Buffington v. Wood, 351 F.2d 292 (3d Cir. 1965), holding that Rule 35(b) is not preemptive. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1988 AMENDMENT Subd. (a). Pub. L. 100-690, Sec. 7047(b)(1), substituted 'physical examination by a physician, or mental examination by a physician or psychologist' for 'physical or mental examination by a physician'. Subd. (b). Pub. L. 100-690, Sec. 7047(b)(2), inserted 'or psychologist' in heading, in two places in par. (1), and in two places in par. (3). Subd. (c). Pub. L. 100-690, Sec. 7047(b)(3), added subd. (c). -CROSS- CROSS REFERENCES Consequences of failure to submit to examination, see rule 37. Perpetuation of testimony, order and examination, see rule 27. ------DocID 37080 Document 942 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 36 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 36. Requests for Admission -STATUTE- (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon that defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provision of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Compare similar rules: (Former) Equity Rule 58 (last paragraph, which provides for the admission of the execution and genuineness of documents); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 32; Ill.Rev.Stat. (1937) ch. 110, Sec. 182 and Rule 18 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.18); 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 69; Mich.Court Rules Ann. (Searl, 1933) Rule 42; N.J.Comp.Stat. (2 Cum.Supp. 1911-1924) N.Y.C.P.A. (1937) Sec. 322, 323; Wis.Stat. (1935) Sec. 327.22. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The first change in the first sentence of Rule 36(a) and the addition of the new second sentence, specifying when requests for admissions may be served, bring Rule 36 in line with amended Rules 26(a) and 33. There is no reason why these rules should not be treated alike. Other provisions of Rule 36(a) give the party whose admissions are requested adequate protection. The second change in the first sentence of the rule (subdivision (a)) removes any uncertainty as to whether a party can be called upon to admit matters of fact other than those set forth in relevant documents described in and exhibited with the request. In Smyth v. Kaufman, C.C.A.2d, 1940, 114 F.2d 40, it was held that the word 'therein', now stricken from the rule (said subdivision) referred to the request and that a matter of fact not related to any document could be presented to the other party for admission or denial. The rule of this case is now clearly stated. The substitution of the word 'served' for 'delivered' in the third sentence of the amended rule (said subdivision) is in conformance with the use of the word 'serve' elsewhere in the rule and generally throughout the rules. See also Notes to Rules 13(a) and 33 herein. The substitution (in said subdivision) of 'shorter or longer' for 'further' will enable a court to designate a lesser period than 10 days for answer. This conforms with a similar provision already contained in Rule 33. The addition of clause (1) (in said subdivision) specifies the method by which a party may challenge the propriety of a request to admit. There has been considerable difference of judicial opinion as to the correct method, if any, available to secure relief from an allegedly improper request. See Commentary, Methods of Objecting to Notice to Admit, 1942, 5 Fed.Rules Serv. 835; International Carbonic Engineering Co. v. Natural Carbonic Products, Inc., S.D.Cal. 1944, 57 F.Supp. 248. The changes in clause (1) are merely of a clarifying and conforming nature. The first of the added last two sentences (in said subdivision) prevents an objection to a part of a request from holding up the answer, if any, to the remainder. See similar proposed change in Rule 33. The last sentence strengthens the rule by making the denial accurately reflect the party's position. It is taken, with necessary changes, from Rule 8(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. The changes made in the rule are designed to serve these purposes more effectively. Certain disagreements in the courts about the proper scope of the rule are resolved. In addition, the procedural operation of the rule is brought into line with other discovery procedures, and the binding effect of an admission is clarified. See generally Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371 (1962). Subdivision (a). As revised, the subdivision provides that a request may be made to admit any matter within the scope of Rule 26(b) that relate to statements or opinions of fact or of the application of law to fact. It thereby eliminates the requirement that the matters be 'of fact.' This change resolves conflicts in the court decisions as to whether a request to admit matters of 'opinion' and matters involving 'mixed law and fact' is proper under the rule. As to 'opinion,' compare, e.g., Jackson Bluff Corp. v. Marcelle, 20 F.R.D. 139 (E.D.N.Y. 1957); California v. The S.S. Jules Fribourg, 19 F.R.D. 432 (N.D.Calif. 1955), with e.g., Photon, Inc. v. Harris Intertype, Inc., 28 F.R.D. 327 (D.Mass. 1961); Hise v. Lockwood Grader Corp., 153 F.Supp 276 (D.Nebr. 1957). As to 'mixed law and fact' the majority of courts sustain objections, e.g., Minnesota Mining and Mfg. Co. v. Norton Co., 36 F.R.D. 1 (N.D.Ohio 1964), but McSparran v. Hanigan, 225 F.Supp. 628 (E.D.Pa. 1963) is to the contrary. Not only is it difficult as a practical matter to separate 'fact' from 'opinion,' see 4 Moore's Federal Practice 36.04 (2d ed. 1966); cf. 2A Barron & Holtzoff, Federal Practice and Procedure 317 (Wright ed. 1961), but an admission on a matter of opinion may facilitate proof or narrow the issues or both. An admission of a matter involving the application of law to fact may, in a given case, even more clearly narrow the issues. For example, an admission that an employee acted in the scope of his employment may remove a major issue from the trial. In McSparran v. Hanigan, supra, plaintiff admitted that 'the premises on which said accident occurred, were occupied or under the control' of one of the defendants, 225 F.Supp. at 636. This admission, involving law as well as fact, removed one of the issues from the lawsuit and thereby reduced the proof required at trial. The amended provision does not authorize requests for admissions of law unrelated to the facts of the case. Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed. Power is therefore expressly conferred upon the court to defer decision until a pretrial conference is held or until a designated time prior to trial. On the other hand, the court should not automatically defer decision; in many instances, the importance of the admission lies in enabling the requesting party to avoid the burdensome accumulation of proof prior to the pretrial conference. Courts have also divided on whether an answering party may properly object to request for admission as to matters which that party regards as 'in dispute.' Compare, e.g., Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 917 (2d Cir. 1959); Driver v. Gindy Mfg. Corp., 24 F.R.D. 473 (E.D.Pa. 1959); with e.g., McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa. 1961); United States v. Ehbauer, 13 F.R.D. 462 (W.D.Mo. 1952). The proper response in such cases is an answer. The very purpose of the request is to ascertain whether the answering party is prepared to admit or regards the matter as presenting a genuine issue for trial. In his answer, the party may deny, or he may give his reason for inability to admit or deny the existence of a genuine issue. The party runs no risk of sanctions if the matter is genuinely in issue, since Rule 37(c) provides a sanction of costs only when there are no good reasons for a failure to admit. On the other hand, requests to admit may be so voluminous and so framed that the answering party finds the task of identifying what is in dispute and what is not unduly burdensome. If so, the responding party may obtain a protective order under Rule 26(c). Some of the decisions sustaining objections on 'disputability' grounds could have been justified by the burdensome character of the requests. See, e.g., Syracuse Broadcasting Corp. v. Newhouse, supra. Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out additional information. One line of cases has held that a party may answer on the basis of such knowledge as he has at the time he answers. E.g., Jackson Buff Corp. v. Marcelle, 20 F.R.D. 139 (E.D.N.Y. 1957); Sladek v. General Motors Corp., 16 F.R.D. 104 (S.D.Iowa 1954). A larger group of cases, supported by commentators, has taken the view that if the responding party lacks knowledge, he must inform himself in reasonable fashion. E.g., Hise v. Lockwood Grader Corp., 153 F.Supp. 276 (D.Nebr. 1957); E. H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D.Pa. 1954); Finman, supra, 71 Yale L.J. 371, 404-409; 4 Moore's Federal Practice 36.04 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 509 (Wright ed. 1961). The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of 'proving' the other side's case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be 'readily obtainable.' Rule 36 requires only that the party state that he has taken these steps. The sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c). The requirement that the answer to a request for admission be sworn is deleted, in favor of a provision that the answer be signed by the party or by his attorney. The provisions of Rule 36 make it clear that admissions function very much as pleadings do. Thus, when a party admits in part and denies in part, his admission is for purposes of the pending action only and may not be used against him in any other proceeding. The broadening of the rule to encompass mixed questions of law and fact reinforces this feature. Rule 36 does not lack a sanction for false answers; Rule 37(c) furnishes an appropriate deterrent. The existing language describing the available grounds for objection to a request for admission is eliminated as neither necessary nor helpful. The statement that objection may be made to any request, which is 'improper' adds nothing to the provisions that the party serve an answer or objection addressed to each matter and that he state his reasons for any objection. None of the other discovery rules set forth grounds for objection, except so far as all are subject to the general provisions of Rule 26. Changes are made in the sequence of procedures in Rule 36 so that they conform to the new procedures in Rules 33 and 34. The major changes are as follows: (1) The normal time for response to a request for admissions is lengthened from 10 to 30 days, conforming more closely to prevailing practice. A defendant need not respond, however, in less than 45 days after service of the summons and complaint upon him. The court may lengthen or shorten the time when special situations require it. (2) The present requirement that the plaintiff wait 10 days to serve requests without leave of court is eliminated. The revised provision accords with those in Rules 33 and 34. (3) The requirement that the objecting party move automatically for a hearing on his objection is eliminated, and the burden is on the requesting party to move for an order. The change in the burden of going forward does not modify present law on burden of persuasion. The award of expenses incurred in relation to the motion is made subject to the comprehensive provisions of Rule 37(a)(4). (4) A problem peculiar to Rule 36 arises if the responding party serves answers that are not in conformity with the requirements of the rule - for example, a denial is not 'specific,' or the explanation of inability to admit or deny is not 'in detail.' Rule 36 now makes no provision for court scrutiny of such answers before trial, and it seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served. Some cases have so held. E.g., Southern Ry. Co. v. Crosby, 201 F.2d 878 (4th Cir. 1953); United States v. Laney, 96 F.Supp. 482 (E.D.S.C. 1951). Giving a defective answer the automatic effect of an admission may cause unfair surprise. A responding party who purported to deny or to be unable to admit or deny will for the first time at trial confront the contention that he has made a binding admission. Since it is not always easy to know whether a denial is 'specific' or an explanation is 'in detail,' neither party can know how the court will rule at trial and whether proof must be prepared. Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. E.g., Woods v. Stewart, 171 F.2d 544 (5th Cir. 1948); SEC v. Kaye, Real & Co., 122 F.Supp. 639 (S.D.N.Y. 1954); Seib's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113 (W.D.Ark. 1952). The rule as revised conforms to the latter practice. Subdivision (b). The rule does not now indicate the extent to which a party is bound by his admission. Some courts view admissions as the equivalent of sworn testimony E.g., Ark.-Tenn Distributing Corp. v. Breidt, 209 F.2d 359 (3d Cir. 1954); United States v. Lemons, 125 F.Supp. 686 (W.D.Ark. 1954); 4 Moore's Federal Practice 36.08 (2d ed. 1966 Supp.). At least in some jurisdictions a party may rebut his own testimony, e.g., Alamo v. Del Rosario, 98 F.2d 328 (D.C.Cir. 1938), and by analogy an admission made pursuant to Rule 36 may likewise be thought rebuttable. The courts in Ark-Tenn and Lemons, supra, reasoned in this way, although the results reached may be supported on different grounds. In McSparran v. Hanigan, 225 F.Supp. 628, 636-637 (E.D.Pa. 1963), the court held that an admission is conclusively binding, though noting the confusion created by prior decisions. The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. Louisell, Modern California Discovery Sec. 8.07 (1963); 2A Barron & Holtzoff, Federal Practice and Procedure Sec. 838 (Wright ed. 1961). Unless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated. Field & McKusick, Maine Civil Practice Sec. 36.4 (1959); Finman, supra, 71 Yale L.J. 371, 418-426; Comment, 56 Nw.U.L.Rev. 679, 682-683 (1961). Provision is made for withdrawal or amendment of an admission. This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice. Cf. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FORMS Request for admission under this rule, see form 25, Appendix of Forms. CROSS REFERENCES Expenses on refusal to admit, see rule 37. Use of admissions on motions for summary judgment, see rule 56. ------DocID 37081 Document 943 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 37 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE V -HEAD- Rule 37. Failure To Make or Cooperate in Discovery: Sanctions -STATUTE- (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. (2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c). (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure To Comply With Order. (1) Sanctions by Court in District Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on Failure To Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c). ((e) Subpoena of Person in Foreign Country.) (Abrogated Apr. 29, 1980, eff. Aug. 1, 1980) ((f) Expenses Against United States.) (Repealed Oct. 21, 1980, eff. Oct. 1, 1981) (g) Failure To Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96-481, title II, Sec. 205(a), Oct. 21, 1980, 94 Stat. 2330; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The provisions of this rule authorizing orders establishing facts or excluding evidence or striking pleadings, or authorizing judgments of dismissal or default, for refusal to answer questions or permit inspection or otherwise make discovery, are in accord with Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15 Ann.Cas. 645 (1909), which distinguishes between the justifiable use of such measures as a means of compelling the production of evidence, and their unjustifiable use, as in Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897), for the mere purpose of punishing for contempt. 1948 AMENDMENT The amendment effective October 1949, substituted the reference to 'Title 28, U.S.C. Sec. 1783' in subdivision (e) for the reference to 'the act of July 3, 1926, ch. 762, Sec. 1, (44 Stat. 835), U.S.C. Title 28, Sec. 711'. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery. Experience has brought to light a number of defects in the language of the rule as well as instances in which it is not serving the purposes for which it was designed. See Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col.L.Rev. 480 (1958). In addition, changes being made in other discovery rules requiring conforming amendments to Rule 37. Rule 37 sometimes refers to a 'failure' to afford discovery and at other times to a 'refusal' to do so. Taking note of this dual terminology, courts have imported into 'refusal' a requirement of 'wilfullness.' See Roth v. Paramount Pictures Corp., 8 F.R.D. 31 (W.D.Pa. 1948); Campbell v. Johnson, 101 F.Supp. 705, 707 (S.D.N.Y. 1951). In Societe Internationale v. Rogers, 357 U.S. 197 (1958), the Supreme Court concluded that the rather random use of these two terms in Rule 37 showed no design to use them with consistently distinctive meanings, that 'refused' in Rule 37(b)(2) meant simply a failure to comply, and that wilfullness was relevant only to the selection of sanctions, if any, to be imposed. Nevertheless, after the decision in Societe, the court in Hinson v. Michigan Mutual Liability Co., 275 F.2d 537 (5th Cir. 1960) once again ruled that 'refusal' required wilfullness. Substitution of 'failure' for 'refusal' throughout Rule 37 should eliminate this confusion and bring the rule into harmony with the Societe Internationale decision. See Rosenberg, supra, 58 Col.L.Rev. 480, 489-490 (1958). Subdivision (a). Rule 37(a) provides relief to a party seeking discovery against one who, with or without stated objections, fails to afford the discovery sought. It has always fully served this function in relation to depositions, but the amendments being made to Rules 33 and 34 give Rule 37(a) added scope and importance. Under existing Rule 33, a party objecting to interrogatories must make a motion for court hearing on his objections. The changes now made in Rules 33 and 37(a) make it clear that the interrogating party must move to compel answers, and the motion is provided for in Rule 37(a). Existing Rule 34, since it requires a court order prior to production of documents or things or permission to enter on land, has no relation to Rule 37(a). Amendments of Rules 34 and 37(a) create a procedure similar to that provided for Rule 33. Subdivision (a)(1). This is a new provision making clear to which court a party may apply for an order compelling discovery. Existing Rule 37(a) refers only to the court in which the deposition is being taken; nevertheless, it has been held that the court where the action is pending has 'inherent power' to compel a party deponent to answer. Lincoln Laboratories, Inc. v. Savage Laboratories, Inc., 27 F.R.D. 476 (D.Del. 1961). In relation to Rule 33 interrogatories and Rule 34 requests for inspection, the court where the action is pending is the appropriate enforcing tribunal. The new provision eliminates the need to resort to inherent power by spelling out the respective roles of the court where the action is pending and the court where the deposition is taken. In some instances, two courts are available to a party seeking to compel answers from a party deponent. The party seeking discovery may choose the court to which he will apply, but the court has power to remit the party to the other court as a more appropriate forum. Subdivision (a)(2). This subdivision contains the substance of existing provisions of Rule 37(a) authorizing motions to compel answers to questions put at depositions and to interrogatories. New provisions authorize motions for orders compelling designation under Rules 30(b)(6) and 31(a) and compelling inspection in accordance with a request made under Rule 34. If the court denies a motion, in whole or part, it may accompany the denial with issuance of a protective order. Compare the converse provision in Rule 26(c). Subdivision (a)(3). This new provision makes clear that an evasive or incomplete answer is to be considered, for purposes of subdivision (a), a failure to answer. The courts have consistently held that they have the power to compel adequate answers. E.g., Cone Mills Corp. v. Joseph Bancroft & Sons Co., 33 F.R.D. 318 (D.Del. 1963). This power is recognized and incorporated into the rule. Subdivision (a)(4). This subdivision amends the provisions for award of expenses, including reasonable attorney's fees, to the prevailing party or person when a motion is made for an order compelling discovery. At present, an award of expenses is made only if the losing party or person is found to have acted without substantial justification. The change requires that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified. The test of 'substantial justification' remains, but the change in language is intended to encourage judges to be more alert to abuses occurring in the discovery process. On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery. The present provision of Rule 37(a) that the court shall require payment if it finds that the defeated party acted without 'substantial justification' may appear adequate, but in fact it has been little used. Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37(a) did the court award expenses. It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary. The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust - as where the prevailing party also acted unjustifiably. The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged. But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent. Subdivision (b). This subdivision deals with sanctions for failure to comply with a court order. The present captions for subsections (1) and (2) entitled, 'Contempt' and 'Other Consequences,' respectively, are confusing. One of the consequences listed in (2) is the arrest of the party, representing the exercise of the contempt power. The contents of the subsections show that the first authorizes the sanction of contempt (and no other) by the court in which the deposition is taken, whereas the second subsection authorizes a variety of sanctions, including contempt, which may be imposed by the court in which the action is pending. The captions of the subsections are changed to deflect their contents. The scope of Rule 37(b)(2) is broadened by extending it to include any order 'to provide or permit discovery,' including orders issued under Rules 37(a) and 35. Various rules authorize orders for discovery - e.g., Rule 35 (b)(1), Rule 26(c) as revised. Rule 37(d). See Rosenberg, supra, 58 Col.L.Rev. 480, 484-486. Rule 37(b)(2) should provide comprehensively for enforcement of all these orders. Cf. Societe Internationale v. Rogers, 357 U.S. 197, 207 (1958). On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule. A new subsection (E) provides that sanctions which have been available against a party for failure to comply with an order under Rule 35(a) to submit to examination will now be available against him for his failure to comply with a Rule 35(a) order to produce a third person for examination, unless he shows that he is unable to produce the person. In this context, 'unable' means in effect 'unable in good faith.' See Societe Internationale v. Rogers, 357 U.S. 197 (1958). Subdivision (b)(2) is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37(b)(2) and 37(d) have been silent as to award of expenses, courts have nevertheless ordered them on occasion. E.g., United Sheeplined Clothing Co. v. Arctic Fur Cap Corp., 165 F.Supp. 193 (S.D.N.Y.1958); Austin Theatre, Inc. v. Warner Bros. Picture, Inc., 22 F.R.D. 302 (S.D.N.Y. 1958). The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust. Allocating the burden in this way conforms to the changed provisions as to expenses in Rule 37(a), and is particularly appropriate when a court order is disobeyed. An added reference to directors of a party is similar to a change made in subdivision (d) and is explained in the note to that subdivision. The added reference to persons designated by a party under Rules 30(b)(6) or 31(a) to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization. Subdivision (c). Rule 37(c) provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either (1) and admission, or (2) a sworn and specific denial, or (3) a sworn statement 'setting forth in detail the reasons why he cannot truthfully admit or deny.' If the party obtains the second or third of these responses, in proper form, Rule 36 does not provide for a pretrial hearing on whether the response is warranted by the evidence thus far accumulated. Instead, Rule 37(c) is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial. Rule 37(c), as now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37(c) should deter all unjustified failures to admit. This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37(c) may apply. Bertha Bldg. Corp. v. National Theatres Corp., 15 F.R.D. 339 (E.D.N.Y. 1954). Another has held that the party should be treated as having admitted the request. Heng Hsin Co. v. Stern, Morgenthau & Co., 20 Fed.Rules Serv. 36a.52, Case 1 (S.D.N.Y. Dec. 10, 1954). Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate. United States Plywood Corp. v. Hudson Lumber Co., 127 F.Supp. 489, 497-498 (S.D.N.Y. 1954). See generally Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371, 426-430 (1962). The amendment eliminates this defect in Rule 37(c) by bringing within its scope all failures to admit. Additional provisions in Rule 37(c) protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36(a) or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail. Subdivision (d). The scope of subdivision (d) is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule 34. Two related changes are made in subdivision (d): the permissible sanctions are broadened to include such orders 'as are just'; and the requirement that the failure to appear or respond be 'wilful' is eliminated. Although Rule 37(d) in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth. E.g., Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957); Saltzman v. Birrell, 156 F.Supp. 538 (S.D.N.Y. 1957); 2A Barron & Holtzoff, Federal Practice and Procedure 554-557 (Wright ed. 1961). The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed. The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be 'wilful.' The concept of 'wilful failure' is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to wilfullness. E.g., Milewski v. Schneider Transportation Co., 238 F.2d 397 (6th Cir. 1956); Dictograph Products, Inc. v. Kentworth Corp., 7 F.R.D. 543 (W.D.Ky. 1947). In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel's ignorance of Federal practice, cf. Dunn. v. Pa. R.R., 96 F. Supp. 597 (N.D.Ohio 1951), or by his preoccupation with another aspect of the case, cf. Maurer-Neuer, Inc. v. United Packinghouse Workers, 26 F.R.D. 139 (D.Kans. 1960), dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. 'Wilfullness' continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b) as construed by the Supreme Court in Societe Internationale v. Rogers, 357 U.S. 197, 208 (1958). A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable. If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought. Compare Collins v. Wayland, 139 F.2d 677 (9th Cir. 1944), cert. den. 322 U.S. 744; Bourgeois v. El Paso Natural Gas Co., 20 F.R.D. 358 (S.D.N.Y. 1957); Loosley v. Stone, 15 F.R.D. 373 (S.D.Ill. 1954), with Scarlatos v. Kulukundis, 21 F.R.D. 185 (S.D.N.Y. 1957); Ross v. True Temper Corp., 11 F.R.D 307 (N.D.Ohio 1951). Compare also Rosenberg, supra, 58 Col.L.Rev. 480, 496 (1958) with 2A Barron & Holtzoff, Federal Practice and Procedure 530-531 (Wright ed. 1961). The party from whom discovery is sought is afforded, through Rule 26(c), a fair and effective procedure whereby he can challenge the request made. At the same time, the total non-compliance with which Rule 37(d) is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process. Cf. 2B Barron & Holtzoff, Federal Practice and Procedure 306-307 (Wright ed. 1961) (response to a subpoena). The failure of an officer or managing agent of a party to make discovery as required by present Rule 37(d) is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v. General Motors Corp., 13 F.R.D. 331 (S.D.N.Y. 1952), the practical differences are negligible. That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26(d)(2), transferred to 32(a)(2) (deposition of director of party may be used at trial by an adverse party for any purpose) and of Rule 43(b) (director of party may be treated at trial as a hostile witness on direct examination by any adverse party). Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions. Cf. Societe Internationale v. Rogers, 357 U.S. 197 (1958). Subdivision (e). The change in the caption conforms to the language of 28 U.S.C. Sec. 1783, as amended in 1964. Subdivision (f). Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made. See H.R.Rept.No. 1535, 89th Cong., 2d Sess., 2-3 (1966). To avoid any conflict with this doctrine, Rule 37(f) has provided that expenses and attorney's fees may not be imposed upon the United States under Rule 37. See 2A Barron & Holtzoff, Federal Practice and Procedure 857 (Wright ed. 1961). A major change in the law was made in 1966, 80 Stat. 308, 28 U.S.C. Sec. 2412 (1966), whereby a judgment for costs may ordinarily be awarded to the prevailing party in any civil action brought by or against the United States. Costs are not to include the fees and expenses of attorneys. In light of this legislative development, Rule 37(f) is amended to permit the award of expenses and fees against the United States under Rule 37, but only to the extent permitted by statute. The amendment brings Rule 37(f) into line with present and future statutory provisions. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (b)(2). New Rule 26(f) provides that if a discovery conference is held, at its close the court shall enter an order respecting the subsequent conduct of discovery. The amendment provides that the sanctions available for violation of other court orders respecting discovery are available for violation of the discovery conference order. Subdivision (e). Subdivision (e) is stricken. Title 28, U.S.C. Sec. 1783 no longer refers to sanctions. The subdivision otherwise duplicates Rule 45(e)(2). Subdivision (g). New Rule 26(f) imposes a duty on parties to participate in good faith in the framing of a discovery plan by agreement upon the request of any party. This subdivision authorizes the court to award to parties who participate in good faith in an attempt to frame a discovery plan the expenses incurred in the attempt if any party or his attorney fails to participate in good faith and thereby causes additional expense. Failure of United States to Participate in Good Faith in Discovery. Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney's fees, incurred by other parties as a result of that failure. Since attorneys' fees cannot ordinarily be awarded against the United States (28 U.S.C. Sec. 2412), there is often no practical remedy for the misconduct of its officers and attorneys. However, in the case of a government attorney who fails to participate in good faith in discovery, nothing prevents a court in an appropriate case from giving written notification of that fact to the Attorney General of the United States and other appropriate heads of offices or agencies thereof. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1980 AMENDMENT Subd. (f). Pub. L. 96-481 repealed subd. (f), which provided that except to the extent permitted by statute, expenses and fees may not be awarded against the United States under this rule. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-481 effective Oct. 1, 1981, and applicable to adversary adjudication defined in section 504(b)(1)(C) of Title 5, and to civil actions and adversary adjudications described in section 2412 of Title 28, Judiciary and Judicial Procedure, which are pending on, or commenced on or after Oct. 1, 1981, see section 208 of Pub. L. 96-481, set out as an Effective Date note under section 504 of Title 5, Government Organization and Employees. -CROSS- CROSS REFERENCES Failure to attend taking of a deposition or to serve subpoena, payment of expenses, see rule 30. ------DocID 37082 Document 944 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE VI -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- VI. TRIALS ------DocID 37083 Document 945 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 38 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 38. Jury Trial of Right -STATUTE- (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. (b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party. (c) Same: Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. (d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. (e) Admiralty and Maritime Claims. These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim within the meaning of Rule 9(h). -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934, 48 Stat. 1064, U.S.C., Title 28, Sec. 723c (see 2072)), and it and the next rule make definite provision for claim and waiver of jury trial, following the method used in many American states and in England and the British Dominions. Thus the claim must be made at once on initial pleading or appearance under Ill.Rev.Stat. (1937) ch. 110, Sec. 188; 6 Tenn.Code Ann. (Williams, 1934) Sec. 8734; compare Wyo.Rev.Stat.Ann. (1931) Sec. 89-1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issue under 2 Conn.Gen.Stat. (1930) Sec. 5624; Hawaii Rev.Laws (1935) Sec. 4101; 2 Mass.Gen.Laws (Ter.Ed. 1932) ch. 231, Sec. 60; 3 Mich.Comp.Laws (1929) Sec. 14263; Mich.Court Rules Ann. (Searl, 1933) Rule 33 (15 days); England (until 1933) O. 36, r.r. 2 and 6; and Ontario Jud.Act (1927) Sec. 57(1) (4 days, or, where prior notice of trial, 2 days from such notice); or at a definite time varying under different codes, from 10 days before notice of trial to 10 days after notice, or, as in many, when the case is called for assignment, Ariz.Rev.Code Ann. (Struckmeyer, 1928) Sec. 3802; Calif.Code Civ.Proc. (Deering, 1937) Sec. 631, par. 4; Iowa Code (1935) Sec. 10724; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8782; N.M.Stat.Ann. (Courtright, 1929) Sec. 105-814; N.Y.C.P.A. (1937) Sec. 426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens Counties); R.I.Pub.Laws (1929), ch. 1327, amending R.I.Gen.Laws (1923) ch. 337, Sec. 6; Utah Rev.Stat.Ann. (1933) Sec. 104-23-6; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 316; England (4 days after notice of trial), Administration of Justice Act (1933) Sec. 6 and amended rule under the Judicature Act (The Annual Practice, 1937), O. 36, r. 1; Australia High Court Procedure Act (1921) Sec. 12, Rules, O. 33, r. 2; Alberta Rules of Ct. (1914) 172, 183, 184; British Columbia Sup.Ct.Rules (1925) O. 36, r.r. 2, 6, 11, and 16; New Brunswick Jud. Act (1927) O. 36, r.r. 2 and 5. See James, Trial by Jury and the New Federal Rules of Procedure (1936), 45 Yale L.J. 1022. Rule 81(c) provides for claim for jury trial in removed actions. The right to trial by jury as declared in U.S.C., Title 28, Sec. 770 (now 1873) (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies U.S.C., Title 28, (former) Sec. 773 (Trial of issues of fact; by court). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT See Note to Rule 9(h), supra. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Admiralty and maritime case, trial of issues of fact by jury, see section 1873 of this title. Advisory jury, see rule 39. Calendar to designate cases as 'jury actions', see rule 79. Declaratory judgment actions, right to jury trial, see rule 57. Default judgment, right of trial by jury, see rule 55. Directed verdict, motion for which is not granted not a waiver of trial by jury, see rule 50. Juries generally, see chapter 121 of this title. Recovery of forfeitures in actions on bonds and specialties, jury assessment of amount due, see section 1874 of this title. Removed actions, time for service of jury demand, see rule 81. Supreme Court, jury trial in original actions at law, see section 1872 of this title. Trial by jury or by the court, see rule 39. Trustees and receivers, right to jury trial in actions against, see section 959 of this title. United States, jury trial denied in actions against, see section 2402 of this title. ------DocID 37084 Document 946 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 39 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 39. Trial by Jury or by the Court -STATUTE- (a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States. (b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. (c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The provisions for express waiver of jury trial found in U.S.C., Title 28, (former) Sec. 773 (Trial of issues of fact; by court) are incorporated in this rule. See rule 38, however, which extends the provisions for waiver of jury. U.S.C., Title 28, (former) Sec. 772 (Trial of issues of fact; in equity in patent causes) is unaffected by this rule. When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried. See Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S.Ct. 118, 67 L.Ed. 232 (1922). A discretionary power in the courts to send issues of fact to the jury is common in state procedure. Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc., ch. 12, Sec. 191; Conn.Gen.Stat. (1930) Sec. 5625; 2 Minn.Stat. (Mason, 1927) Sec. 9288; 4 Mont.Rev.Codes Ann. (1935) Sec. 9327; N.Y.C.P.A. (1937) Sec. 430; 2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11380; 1 Okla.Stat.Ann. (Harlow, 1931) Sec. 351; Utah Rev.Stat.Ann. (1933) Sec. 104-23-5; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 315; Wis.Stat. (1935) Sec. 270.07. See (former) Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein) and U.S.C., Title 28, (former) Sec. 772 (Trial of issues of fact; in equity in patent causes); Colleton Merc. Mfg. Co. v. Savannah River Lumber Co., 280 Fed. 358 (C.C.A.4th, 1922); Fed. Res. Bk. of San Francisco v. Idaho Grimm Alfalfa Seed Growers' Ass'n, 8 F.2d 922 (C.C.A.9th, 1925), cert. den. 270 U.S. 646, 46 S.Ct. 347, 70 L.Ed. 778 (1926); Watt v. Starke, 101 U.S. 247, 25 L.Ed. 826 (1879). -CROSS- CROSS REFERENCES Demand for jury trial, see rule 38. Enlargement of time after expiration of period prescribed, see rule 6. Findings of fact required in actions tried with an advisory jury, see rule 52. Report of masters in jury actions, see rule 53. ------DocID 37085 Document 947 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 40 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 40. Assignment of Cases for Trial -STATUTE- The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of the United States. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES U.S.C., Title 28, (former) Sec. 769 (Notice of case for trial) is modified. See (former) Equity Rule 56 (On Expiration of Time for Depositions, Case Goes on Trial Calendar). See also (former) Equity Rule 57 (Continuances). For examples of statutes giving precedence, see U.S.C., Title 28, Sec. 47 (now 1253, 2101, 2325) (Injunctions as to orders of Interstate Commerce Commission); Sec. 380 (now 1253, 2101, 2284) (Injunctions alleged unconstitutionality of state statutes); Sec. 380a (now 1253, 2101, 2284) (Same; Constitutionality of federal statute); (former) Sec. 768 (Priority of cases where a state is party); Title 15, Sec. 28 (Antitrust laws; suits against monopolies expedited); Title 22, Sec. 240 (Petition for restoration of property seized as munitions of war, etc.); and Title 49, (former) Sec. 44 (Proceedings in equity under interstate commerce laws; expedition of suits). -CROSS- CROSS REFERENCES Adoption of local rules not inconsistent with these rules, see rule 83. ------DocID 37086 Document 948 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 41 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 41. Dismissal of Actions -STATUTE- (a) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (d) Costs of Previously-Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). Compare Ill.Rev.Stat. (1937) ch. 110, Sec. 176, and English Rules Under the Judicature Act (The Annual Practice, 1937) O. 26. Provisions regarding dismissal in such statutes as U.S.C., Title 8, Sec. 164 (see 1329) (Jurisdiction of district courts in immigration cases) and U.S.C., Title 31, Sec. 232 (now 3730) (Liability of persons making false claims against United States; suits) are preserved by paragraph (1). Note to Subdivision (b). This provides for the equivalent of a nonsuit on motion by the defendant after the completion of the presentation of evidence by the plaintiff. Also, for actions tried without a jury, it provides the equivalent of the directed verdict practice for jury actions which is regulated by Rule 50. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The insertion of the reference to Rule 66 correlates Rule 41(a)(1) with the express provisions concerning dismissal set forth in amended Rule 66 on receivers. The change in Rule 41(a)(1)(i) gives the service of a motion for summary judgment by the adverse party the same effect in preventing unlimited dismissal as was originally given only to the service of an answer. The omission of reference to a motion for summary judgment in the original rule was subject to criticism. 3 Moore's Federal Practice, 1938, 3037-3038, n. 12. A motion for summary judgment may be forthcoming prior to answer, and if well taken will eliminate the necessity for an answer. Since such a motion may require even more research and preparation than the answer itself, there is good reason why the service of the motion, like that of the answer, should prevent a voluntary dismissal by the adversary without court approval. The word 'generally' has been stricken from Rule 41(a)(1)(ii) in order to avoid confusion and to conform with the elimination of the necessity for special appearance by original Rule 12(b). Subdivision (b). In some cases tried without a jury, where at the close of plaintiff's evidence the defendant moves for dismissal under Rule 41(b) on the ground that plaintiff's evidence is insufficient for recovery, the plaintiff's own evidence may be conflicting or present questions of credibility. In ruling on the defendant's motion, questions arise as to the function of the judge in evaluating the testimony and whether findings should be made if the motion is sustained. Three circuits hold that as the judge is the trier of the facts in such a situation his function is not the same as on a motion to direct a verdict, where the jury is the trier of the facts, and that the judge in deciding such a motion in a non-jury case may pass on conflicts of evidence and credibility, and if he performs that function of evaluating the testimony and grants the motion on the merits, findings are required. Young v. United States, C.C.A.9th, 1940, 111 F.2d 823; Gary Theatre Co. v. Columbia Pictures Corporation, C.C.A.7th, 1941, 120 F.2d 891; Bach v. Friden Calculating Machine Co., Inc., C.C.A.6th, 1945, 148 F.2d 407. Cf. Mateas v. Fred Harvey, a Corporation, C.C.A.9th, 1945, 146 F.2d 989. The Third Circuit has held that on such a motion the function of the court is the same as on a motion to direct in a jury case, and that the court should only decide whether there is evidence which would support a judgment for the plaintiff, and, therefore, findings are not required by Rule 52. Federal Deposit Insurance Corp. v. Mason, C.C.A.3d, 1940, 115 F.2d 548; Schad v. Twentieth Century-Fox Film Corp., C.C.A.3d, 1943, 136 F.2d 991. The added sentence in Rule 41(b) incorporates the view of the Sixth, Seventh and Ninth Circuits. See also 3 Moore's Federal Practice, 1938, Cum. Supplement Sec. 41.03, under 'Page 3045'; Commentary, The Motion to Dismiss in Non-Jury Cases, 1946, 9 Fed.Rules Serv., Comm.Pg. 41b.14. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Under the present text of the second sentence of this subdivision, the motion for dismissal at the close of the plaintiff's evidence may be made in a case tried to a jury as well as in a case tried without a jury. But, when made in a jury-tried case, this motion overlaps the motion for a directed verdict under Rule 50(a), which is also available in the same situation. It has been held that the standard to be applied in deciding the Rule 41(b) motion at the close of the plaintiff's evidence in a jury-tried case is the same as that used upon a motion for a directed verdict made at the same stage; and, just as the court need not make findings pursuant to Rule 52(a) when it directs a verdict, so in a jury-tried case it may omit these findings in granting the Rule 41(b) motion. See generally O'Brien v. Westinghouse Electric Corp., 293 F.2d 1, 5-10 (3d Cir. 1961). As indicated by the discussion in the O'Brien case, the overlap has caused confusion. Accordingly, the second and third sentences of Rule 41(b) are amended to provide that the motion for dismissal at the close of the plaintiff's evidence shall apply only to nonjury cases (including cases tried with an advisory jury). Hereafter the correct motion in jury-tried cases will be the motion for a directed verdict. This involves no change of substance. It should be noted that the court upon a motion for a directed verdict may in appropriate circumstances deny that motion and grant instead a new trial, or a voluntary dismissal without prejudice under Rule 41(a)(2). See 6 Moore's Federal Practice Sec. 59.08(5) (2d ed. 1954); cf. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 91 L.Ed. 849 (1947). The first sentence of Rule 41(b), providing for dismissal for failure to prosecute or to comply with the Rules or any order of court, and the general provisions of the last sentence remain applicable in jury as well as nonjury cases. The amendment of the last sentence of Rule 41(b) indicates that a dismissal for lack of an indispensable party does not operate as an adjudication on the merits. Such a dismissal does not bar a new action, for it is based merely 'on a plaintiff's failure to comply with a precondition requisite to the Court's going forward to determine the merits of his substantive claim.' See Costello v. United States, 365 U.S. 265, 284-288, 81 S.Ct. 534, 5 L.Ed.2d 551 & n. 5 (1961); Mallow v. Hinde, 12 Wheat. (25 U.S.) 193, 6 L.Ed. 599 (1827); Clark, Code Pleading 602 (2d ed. 1947); Restatement of Judgments Sec. 49, comm. a, b (1942). This amendment corrects an omission from the rule and is consistent with an earlier amendment, effective in 1948, adding 'the defense of failure to join an indispensable party' to clause (1) of Rule 12(h). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The terminology is changed to accord with the amendment of Rule 19. See that amended rule and the Advisory Committee's Note thereto. NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT The amendment corrects an inadvertent error in the reference to amended Rule 23. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Approval of court for dismissal of class action, see rule 23. Costs, see rule 54. Counterclaim, cross-claim or third party claim, see rules 13 and 14. Discontinuance of civil actions arising under immigration laws, see section 1329 of Title 8, Aliens and Nationality. Findings of fact in non-jury action, see rule 52. Motion for directed verdict at close of evidence offered by an opponent, see rule 50. Motion to dismiss - For failure to state a claim upon which relief can be granted, see rule 12. For lack of jurisdiction or improper venue, see rule 12. Order of court for dismissal of action wherein receiver has been appointed, see rule 66. Taxation of costs, see section 1920 of this title. Withdrawal or discontinuance of false claim actions against United States, see section 3730 of Title 31, Money and Finance. ------DocID 37087 Document 949 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 42 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 42. Consolidation; Separate Trials -STATUTE- (a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a) is based upon U.S.C., Title 28, (former) Sec. 734 (Orders to save costs; consolidation of causes of like nature) but insofar as the statute differs from this rule, it is modified. For comparable statutes dealing with consolidation see Ark.Dig.Stat. (Crawford & Moses, 1921) Sec. 1081; Calif.Code Civ.Proc. (Deering, 1937) Sec. 1048; N.M.Stat.Ann. (Courtright, 1929) Sec. 105-828; N.Y.C.P.A. (1937) Sec. 96, 96a, and 97; American Judicature Society, Bulletin XIV (1919) Art.26. For severance or separate trials see Calif.Code Civ.Proc. (Deering, 1937) Sec. 1048; N.Y.C.P.A. (1937) Sec. 96; American Judicature Society, Bulletin XIV (1919) Art. 3, Sec. 2 and Art. 10, Sec. 10. See also the third sentence of Equity Rule 29 (Defenses - How Presented) providing for discretionary separate hearing and disposition before trial of pleas in bar or abatement, and see also Rule 12(d) of these rules for preliminary hearings of defenses and objections. For the entry of separate judgments, see Rule 54(b) (Judgment at Various Stages). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT In certain suits in admiralty separation for trial of the issues of liability and damages (or of the extent of liability other than damages, such as salvage and general average) has been conducive to expedition and economy, especially because of the statutory right to interlocutory appeal in admiralty cases (which is of course preserved by these Rules). While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth. Cf. Weinstein, Routine Bifurcation of Negligence Trials, 14 Vand.L.Rev. 831 (1961). In cases (including some cases within the admiralty and maritime jurisdiction) in which the parties have a constitutional or statutory right of trial by jury, separation of issues may give rise to problems. See e.g., United Air Lines, Inc. v. Wiener, 286 F.2d 302 (9th Cir. 1961). Accordingly, the proposed change in Rule 42 reiterates the mandate of Rule 38 respecting preservation of the right to jury trial. -CROSS- CROSS REFERENCES Preliminary hearings of defenses and objections, see rule 12. Separate - Judgments, see rule 54. Trial for parties, see rule 20. Trials of counterclaims or cross-claims, see rule 13. Third party claims, see rule 14. ------DocID 37088 Document 950 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 43 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 43. Taking of Testimony -STATUTE- (a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court. ((b) Scope of Examination and Cross-Examination.) (Abrogated Nov. 20, 1972, and Dec. 18, 1972, eff. July 1, 1975) ((c) Record of Excluded Evidence.) (Abrogated Nov. 20, 1972, and Dec. 18, 1972, eff. July 1, 1975) (d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (f) Interpreters. The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and Dec. 18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The first sentence is a restatement of the substance of U.S.C., Title 28, (former) Sec. 635 (Proof in common-law actions), Sec. 637 (see 2072, 2073) (Proof in equity and admiralty), and (former) Equity Rule 46 (Trial - Testimony Usually Taken in Open Court - Rulings on Objections to Evidence). This rule abolishes in patent and trade-mark actions, the practice under (former) Equity Rule 48 of setting forth in affidavits the testimony in chief of expert witnesses whose testimony is directed to matters of opinion. The second and third sentences on admissibility of evidence and Subdivision (b) on contradiction and cross-examination modify U.S.C., Title 28, Sec. 725 (now 1652) (Laws of states as rules of decision) insofar as that statute has been construed to prescribe conformity to state rules of evidence. Compare Callihan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 45 Yale L.J. 622 (1936), and Same: 2, 47 Yale L.J. 195 (1937). The last sentence modifies to the extent indicated U.S.C., Title 28, (former) Sec. 631 (Competency of witnesses governed by State laws). Note to Subdivision (b). See 4 Wigmore on Evidence (2d ed., 1923) Sec. 1885 et seq. Note to Subdivision (c). See (former) Equity Rule 46 (Trial - Testimony Usually Taken in Open Court - Rulings on Objections to Evidence). With the last sentence compare Dowagiac v. Lochren, 143 Fed. 211 (C.C.A.8th, 1906). See also Blease v. Garlington, 92 U.S. 1, 23 L.Ed. 521 (1876); Nelson v. United States, 201 U.S. 92. 114, 26 S.Ct. 358, 50 L.Ed. 673 (1906); Unkle v. Wills, 281 Fed. 29 (C.C.A.8th 1922). See Rule 61 for harmless error in either the admission or exclusion of evidence. Note to Subdivision (d). See (former) Equity Rule 78 (Affirmation in Lieu of Oath) and U.S.C., Title 1, Sec. 1 (Words importing singular number, masculine gender, etc.; extended application), providing for affirmation in lieu of oath. NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE REGARDING RULES 43 AND 44 Note. These rules have been criticized and suggested improvements offered by commentators. 1 Wigmore on Evidence, 3d ed. 1940, 200-204; Green, The Admissibility of Evidence Under the Federal Rules, 1941, 55 Harv.L.Rev. 197. Cases indicate, however, that the rule is working better than these commentators had expected. Boerner v. United States, C.C.A.2d, 1941, 117 F.2d 387, cert. den., 1941, 313 U.S. 587, 61 S.Ct. 1120; Mosson v. Liberty Fast Freight Co., C.C.A.2d, 1942, 124 F.2d 448; Hartford Accident & Indemnity Co. v. Olivier, C.C.A.5th, 1941, 123 F.2d 709; Anzano v. Metropolitan Life Ins. Co. of New York, C.C.A.3d, 1941, 118 F.2d 430; Franzen v. E. I. DuPont De Nemours & Co., C.C.A.3d, 1944, 146 F.2d 837; Fakouri v. Cadais, C.C.A.5th, 1945, 147 F.2d 667; In re C. & P. Co., S.D.Cal. 1945, 63 F.Supp. 400, 408. But cf. United States v. Aluminum Co. of America, S.D.N.Y. 1938, 1 Fed.Rules Serv. 43a.3, Case 1; Note, 1946, 46 Col.L.Rev. 267. While consideration of a comprehensive and detailed set of rules of evidence seems very desirable, it has not been feasible for the Committee so far to undertake this important task. Such consideration should include the adaptability to federal practice of all or parts of the proposed Code of Evidence of the American Law Institute. See Armstrong, Proposed Amendments to Federal Rules of Civil Procedure, 4 F.R.D. 124, 137-138. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT This new subdivision authorizes the court to appoint interpreters (including interpreters for the deaf), to provide for their compensation, and to tax the compensation as costs. Compare proposed subdivision (b) of Rule 28 of the Federal Rules of Criminal Procedure. NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Rule 43, entitled Evidence, has heretofore served as the basic rule of evidence for civil cases in federal courts. Its very general provisions are superseded by the detailed provisions of the new Rules of Evidence. The original title and many of the provisions of the rule are, therefore, no longer appropriate. Subdivision (a). The provision for taking testimony in open court is not duplicated in the Rules of Evidence and is retained. Those dealing with admissibility of evidence and competency of witnesses, however, are no longer needed or appropriate since those topics are covered at large in the Rules of Evidence. They are accordingly deleted. The language is broadened, however, to take account of acts of Congress dealing with the taking of testimony, as well as of the Rules of Evidence and any other rules adopted by the Supreme Court. Subdivision (b). The subdivision is no longer needed or appropriate since the matters with which it deals are treated in the Rules of Evidence. The use of leading questions, both generally and in the interrogation of an adverse party or witness identified with him, is the subject of Evidence Rule 611(c). Who may impeach is treated in Evidence Rule 601 and scope of cross-examination is covered in Evidence Rule 611(b). The subdivision is accordingly deleted. Subdivision (c). Offers of proof and making a record of excluded evidence are treated in Evidence Rule 103. The subdivision is no longer needed or appropriate and is deleted. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (a), are set out in this Appendix. -MISC2- EFFECTIVE DATE OF AMENDMENTS PROPOSED NOVEMBER 20, 1972, AND DECEMBER 18, 1972 Amendments of this rule embraced by orders entered by the Supreme Court of the United States on November 20, 1972, and December 18, 1972, effective on the 180th day beginning after January 2, 1975, see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of this title. -CROSS- CROSS REFERENCES Amendment of pleading to conform to evidence, see rule 15. Certified public accountant as witness before master, statement of accounts as evidence, see rule 53. Compelling giving of testimony, application of rules, see rule 81. Depositions of witnesses in foreign country, see section 1781 of this title. Documentary evidence, see section 1731 et seq. of this title. Evidence - Generally, see section 1731 et seq. of this title. Hearing before master, see rule 53. Exceptions to rulings unnecessary, see rule 46. Harmless error in admitting or excluding evidence, see rule 61. Interested persons, competency, see section 1822 of this title. Notary public and other persons authorized to administer oaths required by laws of the United States, see section 2903 of Title 5, Government Organization and Employees. Offer of judgment, see rule 68. Perpetuation of testimony by action, see rule 27. Pre-trial procedure, see rule 16. Proof of official record, see rule 44. Record made in regular course of business, see section 1732 of this title. Record on appeal, form of testimony included in, see Federal Rules of Appellate Procedure, rule 10. Subpoena for attendance of witnesses and obtaining evidence, see rule 45. Transcript of evidence, filing by master with report, see rule 53. United States, evidence to establish claim on default, see rule 55. Witnesses generally, see section 1821 et seq. of this title. ------DocID 37089 Document 951 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 44 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 44. Proof of Official Record -STATUTE- (a) Authentication. (1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer's office. (2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. (b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule provides a simple and uniform method of proving public records, and entry or lack of entry therein, in all cases including those specifically provided for by statutes of the United States. Such statutes are not superseded, however, and proof may also be made according to their provisions whenever they differ from this rule. Some of those statutes are: U.S.C., Title 28: Sec. 661 (now 1733) (Copies of department or corporation records and papers; admissibility; seal) Sec. 662 (now 1733) (Same; in office of General Counsel of the Treasury) Sec. 663 (now 1733) (Instruments and papers of Comptroller of Currency; admissibility) Sec. 664 (now 1733) (Organization certificates of national banks; admissibility) Sec. 665 (now 1733) (Transcripts from books of Treasury in suits against delinquents; admissibility) Sec. 666 (now 1733) (Same; certificate by Secretary or Assistant Secretary) Sec. 670 (now 1743) (Admissibility of copies of statements of demands by Post Office Department) Sec. 671 (now 1733) (Admissibility of copies of post office records and statement of accounts) Sec. 672 (former) (Admissibility of copies of records in General Land Office) Sec. 673 (now 1744) (Admissibility of copies of records, and so forth, of Patent Office) Sec. 674 (now 1745) (Copies of foreign letters patent as prima facie evidence) Sec. 675 (former) (Copies of specifications and drawings of patents admissible) Sec. 676 (now 1736) (Extracts from Journals of Congress admissible when injunction of secrecy removed) Sec. 677 (now 1740) (Copies of records in offices of United States consuls admissible) Sec. 678 (former) (Books and papers in certain district courts) Sec. 679 (former) (Records in clerks' offices, western district of North Carolina) Sec. 680 (former) (Records in clerks' offices of former district of California) Sec. 681 (now 1734) (Original records lost or destroyed; certified copy admissible) Sec. 682 (now 1734) (Same; when certified copy not obtainable) Sec. 685 (now 1735) (Same; certified copy of official papers) Sec. 687 (now 1738) (Authentication of legislative acts; proof of judicial proceedings of State) Sec. 688 (now 1739) (Proofs of records in offices not pertaining to courts) Sec. 689 (now 1742) (Copies of foreign records relating to land titles) Sec. 695 (now 1732) (Writings and records made in regular course of business; admissibility) Sec. 695e (now 1741) (Foreign documents on record in public offices; certification) U.S.C., Title 1: Sec. 30 (now 112) (Statutes at large; contents; admissibility in evidence) Sec. 30a (now 113) ('Little and Brown's' edition of laws and treaties competent evidence of Acts of Congress) Sec. 54 (now 204) (Codes and supplements as establishing prima facie the laws of United States and District of Columbia, etc.) Sec. 55 (now 208) (Copies of supplements to Code of Laws of United States and of District of Columbia Code and supplements; conclusive evidence of original) U.S.C., Title 5: Sec. 490 (former) (Records of Department of Interior; authenticated copies as evidence) U.S.C., Title 6: Sec. 7 (now Title 31, Sec. 9306) (Surety Companies as sureties; appointment of agents; service of process) U.S.C., Title 8: Sec. 9a (see 1435(c)) (Citizenship of children of persons naturalized under certain laws; repatriation of native-born women married to aliens prior to September 22, 1922; copies of proceedings) Sec. 356 (see 1443) (Regulations for execution of naturalization laws; certified copies of papers as evidence) Sec. 399b(d) (see 1443) (Certifications of naturalization records; authorization; admissibility as evidence) U.S.C., Title 11: Sec. 44(d), (e), (f), (g) (former) (Bankruptcy court proceedings and orders as evidence) Sec. 204 (former) (Extensions extended, etc.; evidence of confirmation) Sec. 207(j) (former) (Corporate reorganizations; certified copy of decree as evidence) U.S.C., Title 15: Sec. 127 (Trade-mark records in Patent Office; copies as evidence) U.S.C., Title 20: Sec. 52 (Smithsonian Institution; evidence of title to site and buildings) U.S.C., Title 25: Sec. 6 (Bureau of Indian Affairs; seal; authenticated and certified documents; evidence) U.S.C., Title 31: Sec. 46 (now 704) (Laws governing General Accounting Office; copies of books, records, etc., thereof as evidence) U.S.C., Title 38: Sec. 11g (see 202) (Seal of Veterans' Administration; authentication of copies of records) U.S.C., Title 40: Sec. 238 (National Archives; seal; reproduction of archives; fee; admissibility in evidence of reproductions) Sec. 270c (Bonds of contractors for public works; right of person furnishing labor or material to copy of bond) U.S.C., Title 43: Sec. 57-59 (Copies of land surveys, etc., in certain states and districts admissible as evidence) Sec. 83 (General Land Office registers and receivers; transcripts of records as evidence) U.S.C., Title 46: Sec. 823 (Records of Maritime Commission; copies; publication of reports; evidence) U.S.C., Title 47: Sec. 154(m) (Federal Communications Commission; copies of reports and decisions as evidence) Sec. 412 (Documents filed with Federal Communications Commission as public records; prima facie evidence; confidential records) U.S.C., Title 49: Sec. 14(3) (now 10310) (Interstate Commerce Commission reports and decisions; printing and distribution of copies) Sec. 16(13) (now 10303(b)) (Copies of schedules, tariffs, etc., filed with Interstate Commerce Commission as evidence) Sec. 19a(i) (now 10785(c)) (Valuation of property of carriers by Interstate Commerce Commission; final published valuations as evidence) NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE REGARDING RULES 43 AND 44 For supplementary note of Advisory Committee on this rule, see note under rule 43. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Subdivision (a)(1). These provisions on proof of official records kept within the United States are similar in substance to those heretofore appearing in Rule 44. There is a more exact description of the geographical areas covered. An official record kept in one of the areas enumerated qualifies for proof under subdivision (a)(1) even though it is not a United States official record. For example, an official record kept in one of these areas by a government in exile falls within subdivision (a)(1). It also falls within subdivision (a)(2) which may be availed of alternatively. Cf. Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir. 1940). Subdivision (a)(2). Foreign official records may be proved, as heretofore, by means of official publications thereof. See United States v. Aluminum Co. of America, 1 F.R.D. 71 (S.D.N.Y. 1939). Under this rule, a document that, on its face, appears to be an official publication, is admissible, unless a party opposing its admission into evidence shows that it lacks that character. The rest of subdivision (a)(2) aims to provide greater clarity, efficiency, and flexibility in the procedure for authenticating copies of foreign official records. The reference to attestation by 'the officer having the legal custody of the record,' hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the assumed relation between custody and the authority to attest does not obtain. See 2B Barron & Holtzoff, Federal Practice & Procedure Sec. 992 (Wright ed. 1961). Accordingly it is provided that an attested copy may be obtained from any person authorized by the law of the foreign country to make the attestation without regard to whether he is charged with responsibility for maintaining the record or keeping it in his custody. Under Rule 44 a United States foreign service officer has been called on to certify to the authority of the foreign official attesting the copy as well as the genuineness of his signature and his official position. See Schlesinger, Comparative Law 57 (2d ed. 1959); Smit, International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1063 (1961); 22 C.F.R. Sec. 92.41(a), (e) (1958). This has created practical difficulties. For example, the question of the authority of the foreign officer might raise issues of foreign law which were beyond the knowledge of the United States officer. The difficulties are met under the amended rule by eliminating the element of the authority of the attesting foreign official from the scope of the certifying process, and by specifically permitting use of the chain-certificate method. Under this method, it is sufficient if the original attestation purports to have been issued by an authorized person and is accompanied by a certificate of another foreign official whose certificate may in turn be followed by that of a foreign official of higher rank. The process continues until a foreign official is reached as to whom the United States foreign service official (or a diplomatic or consular officer of the foreign country assigned or accredited to the United States) has adequate information upon which to base a 'final certification.' See New York Life Ins. Co. v. Aronson, 38 F.Supp. 687 (W.D.Pa. 1941); 22 C.F.R. Sec. 92.37 (1958). The final certification (a term used in contradistinction to the certificates prepared by the foreign officials in a chain) relates to the incumbency and genuineness of signature of the foreign official who attested the copy of the record or, where the chain-certificate method is used, of a foreign official whose certificate appears in the chain, whether that certificate is the last in the chain or not. A final certification may be prepared on the basis of material on file in the consulate or any other satisfactory information. Although the amended rule will generally facilitate proof of foreign official records, it is recognized that in some situations it may be difficult or even impossible to satisfy the basic requirements of the rule. There may be no United States consul in a particular foreign country; the foreign officials may not cooperate, peculiarities may exist or arise hereafter in the law or practice of a foreign country. See United States v. Grabina, 119 F.2d 863 (2d Cir. 1941); and, generally, Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 548-49 (1953). Therefore the final sentence of subdivision (a)(2) provides the court with discretion to admit an attested copy of a record without a final certification, or an attested summary of a record with or without a final certification. See Rep. of Comm. on Comparative Civ. Proc. & Prac., Proc. A.B.A., Sec. Int'l & Comp. L. 123, 130-131 (1952); Model Code of Evidence Sec. 517, 519 (1942). This relaxation should be permitted only when it is shown that the party has been unable to satisfy the basic requirements of the amended rule despite his reasonable efforts. Moreover, it is specially provided that the parties must be given a reasonable opportunity in these cases to examine into the authenticity and accuracy of the copy or summary. Subdivision (b). This provision relating to proof of lack of record is accommodated to the changes made in subdivision (a). Subdivision (c). The amendment insures that international agreements of the United States are unaffected by the rule. Several consular conventions contain provisions for reception of copies or summaries of foreign official records. See, e.g., Consular Conv. with Italy, May 8, 1878, art. X, 20 Stat. 725, T.S. No. 178 (Dept. State 1878). See also 28 U.S.C. Sec. 1740-42, 1745; Fakouri v. Cadais, 149 F.2d 321 (5th Cir. 1945), cert. denied, 326 U.S. 742 (1945); 5 Moore's Federal Practice, par. 44.05 (2d ed. 1951). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Authenticated and certified copy of Government record by Archivist admissible on evidence, see section 2116 of Title 44, Public Printing and Documents. ------DocID 37090 Document 952 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 44.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 44.1. Determination of Foreign Law -STATUTE- A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Nov. 20, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Rule 44.1 is added by amendment to furnish Federal courts with a uniform and effective procedure for raising and determining an issue concerning the law of a foreign country. To avoid unfair surprise, the first sentence of the new rule requires that a party who intends to raise an issue of foreign law shall give notice thereof. The uncertainty under Rule 8(a) about whether foreign law must be pleaded - compare Siegelman v. Cunard White Star, Ltd., 221 F.2d 189 (2d Cir. 1955), and Pedersen v. United States, 191 F.Supp. 95 (D.Guam 1961), with Harrison v. United Fruit Co., 143 F.Supp. 598 (S.D.N.Y. 1956) - is eliminated by the provision that the notice shall be 'written' and 'reasonable.' It may, but need not be, incorporated in the pleadings. In some situations the pertinence of foreign law is apparent from the outset; accordingly the necessary investigation of that law will have been accomplished by the party at the pleading stage, and the notice can be given conveniently in the pleadings. In other situations the pertinence of foreign law may remain doubtful until the case is further developed. A requirement that notice of foreign law be given only through the medium of the pleadings would tend in the latter instances to force the party to engage in a peculiarly burdensome type of investigation which might turn out to be unnecessary; and correspondingly the adversary would be forced into a possible wasteful investigation. The liberal provisions for amendment of the pleadings afford help if the pleadings are used as the medium of giving notice of the foreign law; but it seems best to permit a written notice to be given outside of and later than the pleadings, provided the notice is reasonable. The new rule does not attempt to set any definite limit on the party's time for giving the notice of an issue of foreign law; in some cases the issue may not become apparent until the trial and notice then given may still be reasonable. The stage which the case has reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought to be raised, are among the factors which the court should consider in deciding a question of the reasonableness of a notice. If notice is given by one party it need not be repeated by any other and serves as a basis for presentation of material on the foreign law by all parties. The second sentence of the new rule describes the materials to which the court may resort in determining an issue of foreign law. Heretofore the district courts, applying Rule 43(a), have looked in certain cases to State law to find the rules of evidence by which the content of foreign-country law is to be established. The State laws vary; some embody procedures which are inefficient, time consuming and expensive. See, generally, Nussbaum, Proving the Law of Foreign Countries, 3 Am.J.Comp.L. 60 (1954). In all events the ordinary rules of evidence are often inapposite to the problem of determining foreign law and have in the past prevented examination of material which could have provided a proper basis for the determination. The new rule permits consideration by the court of any relevant material, including testimony, without regard to its admissibility under Rule 43. Cf. N.Y.Civ.Prac.Law & Rules, R. 4511 (effective Sept. 1, 1963); 2 Va.Code Ann. tit. 8, Sec. 8-273; 2 W.Va.Code Ann. Sec. 5711. In further recognition of the peculiar nature of the issue of foreign law, the new rule provides that in determining this law the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found. The court may have at its disposal better foreign law materials than counsel have presented, or may wish to reexamine and amplify material that has been presented by counsel in partisan fashion or in insufficient detail. On the other hand, the court is free to insist on a complete presentation by counsel. There is no requirement that the court give formal notice to the parties of its intention to engage in its own research on an issue of foreign law which has been raised by them, or of its intention to raise and determine independently an issue not raised by them. Ordinarily the court should inform the parties of material it has found diverging substantially from the material which they have presented; and in general the court should give the parties an opportunity to analyze and counter new points upon which it proposes to rely. See Schlesinger, Comparative Law 142 (2d ed. 1959); Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1296 (1952); cf. Siegelman v. Cunard White Star, Ltd., supra, 221 F.2d at 197. To require, however, that the court give formal notice from time to time as it proceeds with its study of the foreign law would add an element of undesirable rigidity to the procedure for determining issues of foreign law. The new rule refrains from imposing an obligation on the court to take 'judicial notice' of foreign law because this would put an extreme burden on the court in many cases; and it avoids use of the concept of 'judicial notice' in any form because of the uncertain meaning of that concept as applied to foreign law. See, e.g., Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45 Calif.L.Rev. 23, 43 (1957). Rather the rule provides flexible procedures for presenting and utilizing material on issues of foreign law by which a sound result can be achieved with fairness to the parties. Under the third sentence, the court's determination of an issue of foreign law is to be treated as a ruling on a question of 'law,' not 'fact,' so that appellate review will not be narrowly confined by the 'clearly erroneous' standard of Rule 52(a). Cf. Uniform Judicial Notice of Foreign Law Act Sec. 3; Note, 72 Harv.L.Rev. 318 (1958). The new rule parallels Article IV of the Uniform Interstate and International Procedure Act, approved by the Commissioners on Uniform State Laws in 1962, except that section 4.03 of Article IV states that '(t)he court, not the jury' shall determine foreign law. The new rule does not address itself to this problem, since the Rules refrain from allocating functions as between the court and the jury. See Rule 38(a). It has long been thought, however, that the jury is not the appropriate body to determine issues of foreign law. See, e.g., Story, Conflict of Laws, Sec. 638 (1st ed. 1834, 8th ed. 1883); 1 Greenleaf, Evidence, Sec. 486 (1st ed. 1842, 16th ed. 1899); 4 Wigmore, Evidence Sec. 2558 (1st ed. 1905); 9 id. Sec. 2558 (3d ed. 1940). The majority of the States have committed such issues to determination by the court. See Article 5 of the Uniform Judicial Notice of Foreign Law Act, adopted by twenty-six states, 9A U.L.A. 318 (1957) (Suppl. 1961, at 134); N.Y.Civ.Prac.Law & Rules, R. 4511 (effective Sept. 1, 1963); Wigmore, loc. cit. And Federal courts that have considered the problem in recent years have reached the same conclusion without reliance on statute. See Janson v. Swedish American Line, 185 F.2d 212, 216 (1st Cir. 1950); Bank of Nova Scotia v. San Miguel, 196 F.2d 950, 957, n. 6 (1st Cir. 1952); Liechti v. Roche, 198 F.2d 174 (5th Cir. 1952); Daniel Lumber Co. v. Empresas Hondurenas, S.A., 215 F.2d 465 (5th Cir. 1954). NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT Since the purpose of the provision is to free the judge, in determining foreign law, from any restrictions imposed by evidence rules, a general reference to the Rules of Evidence is appropriate and is made. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in text, are set out in this Appendix. -MISC2- EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972, effective on the 180th day beginning after January 2, 1973, see section 3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of this title. ------DocID 37091 Document 953 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 45 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 45. Subpoena -STATUTE- (a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. (b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (c) Service. A subpoena may be served by the marshal, by a deputy marshal, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. (d) Subpoena for Taking Depositions; Place of Examination. (1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the district court for the district in which the deposition is to be taken of subpoenas for the persons named or described therein. Proof of service may be made by filing with the clerk of the district court for the district in which the deposition is to be taken a copy of the notice together with a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition. (2) A person to whom a subpoena for the taking of a deposition is directed may be required to attend at any place within 100 miles from the place where that person resides, is employed or transacts business in person, or is served, or at such other convenient place as is fixed by an order of court. (e) Subpoena for a Hearing or Trial. (1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the district court for the district in which the hearing or trial is held. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the district, or at any place without the district that is within 100 miles of the place of the hearing or trial specified in the subpoena, or at a place within the state where a state statute or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place where the district court is held. When a statute of the United States provides therefor, the court upon proper application and cause shown may authorize the service of a subpoena at any other place. (2) A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in Title 28, U.S.C., Sec. 1783. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule applies to subpoenas ad testificandum and duces tecum issued by the district courts for attendance at a hearing or a trial, or to take depositions. It does not apply to the enforcement of subpoenas issued by administrative officers and commissions pursuant to statutory authority. The enforcement of such subpoenas by the district courts is regulated by appropriate statutes. Many of these statutes do not place any territorial limits on the validity of subpoenas so issued, but provide that they may be served anywhere within the United States. Among such statutes are the following: U.S.C., Title 7, Sec. 222 and 511n (Secretary of Agriculture) U.S.C., Title 15, Sec. 49 (Federal Trade Commission) U.S.C., Title 15, Sec. 77v(b), 78u(c), 79r(d) (Securities and Exchange Commission) U.S.C., Title 16, Sec. 797(g) and 825f (Federal Power Commission) U.S.C., Title 19, Sec. 1333(b) (Tariff Commission) U.S.C., Title 22, Sec. 268, 270d and 270e (International Commissions, etc.) U.S.C., Title 26, Sec. 614, 619(b) (see 7456) (Board of Tax Appeals) U.S.C., Title 26, Sec. 1523(a) (see 7608) (Internal Revenue Officers) U.S.C., Title 29, Sec. 161 (Labor Relations Board) U.S.C., Title 33, Sec. 506 (Secretary of Army) U.S.C., Title 35, Sec. 54-56 (now 24) (Patent Office proceedings) U.S.C., Title 38, (former) Sec. 133 (Veterans' Administration) U.S.C., Title 41, Sec. 39 (Secretary of Labor) U.S.C., Title 45, Sec. 157 Third. (h) (Board of Arbitration under Railway Labor Act) U.S.C., Title 45, Sec. 222(b) (Investigation Commission under Railroad Retirement Act of 1935) U.S.C., Title 46, Sec. 1124(b) (Maritime Commission) U.S.C., Title 47, Sec. 409(c) and (d) (Federal Communications Commission) U.S.C., Title 49, Sec. 12(2) and (3) (now 10321) (Interstate Commerce Commission) U.S.C., Title 49, Sec. 173a (see 1484) (Secretary of Commerce) Note to Subdivisions (a) and (b). These simplify the form of subpoena as provided in U.S.C., Title 28, (former) Sec. 655 (Witnesses; subpoena; form; attendance under); and broaden U.S.C., Title 28, (former) Sec. 636 (Production of books and writings) to include all actions, and to extend to any person. With the provision for relief from an oppressive or unreasonable subpoena duces tecum, compare N.Y.C.P.A. (1937) Sec. 411. Note to Subdivision (c). This provides for the simple and convenient method of service permitted under many state codes; e.g., N.Y.C.P.A. (1937) Sec. 220, 404, J.Ct.Act, Sec. 191; 3 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 1218. Compare Equity Rule 15 (Process, by Whom Served). For statutes governing fees and mileage of witnesses see: U.S.C., Title 28: Sec. 600a (now 1871) (Per diem; mileage) Sec. 600c (now 1821, 1825) (Amount per diem and mileage for witnesses; subsistence) Sec. 600d (former) (Fees and mileage in certain states) Sec. 601 (former) (Witnesses; fees; enumeration) Sec. 602 (now 1824) (Fees and mileage of jurors and witnesses) Sec. 603 (see Title 5, Sec. 5515, 5537) (No officer of court to have witness fees) Note to Subdivision (d). The method provided in paragraph (1) for the authorization of the issuance of subpoenas has been employed in some districts. See Henning v. Boyle, 112 Fed. 397 (S.D.N.Y., 1901). The requirement of an order for the issuance of a subpoena duces tecum is in accordance with U.S.C., Title 28, (former) Sec. 647 (Deposition under dedimus potestatem; subpoena duces tecum). The provisions of paragraph (2) are in accordance with common practice. See U.S.C., Title 28, (former) Sec. 648 (Deposition under dedimus potestatem; witnesses, when required to attend); N.Y.C.P.A. (1937) Sec. 300; 1 N.J.Rev.Stat. (1937) 2:27-174. Note to Subdivision (e). The first paragraph continues the substance of U.S.C., Title 28, (former) Sec. 654 (Witnesses; subpoenas; may run into another district). Compare U.S.C., Title 11, (former) Sec. 69 (Referees in bankruptcy; contempts before) (production of books and writings) which is not affected by this rule. For examples of statutes which allow the court, upon proper application and cause shown, to authorize the clerk of the court to issue a subpoena for a witness who lives in another district and at a greater distance than 100 miles from the place of the hearing or trial, see: U.S.C., Title 15: Sec. 23 (Suits by United States; subpoenas for witnesses) (under antitrust laws). U.S.C., Title 38: Sec. 445 (now 784) (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (Veterans; insurance contracts). The second paragraph continues the present procedure applicable to certain witnesses who are in foreign countries. See U.S.C., Title 28, Sec. 711 (now 1783) (Letters rogatory to take testimony of witness, addressed to court of foreign country; failure of witness to appear; subpoena) and 713 (now 1783) (Service of subpoena on witness in foreign country). Note to Subdivision (f). Compare (former) Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AND 1948 AMENDMENTS Note. Subdivision (b). The added words, 'or tangible things' in subdivision (b) merely makes the rule for the subpoena duces tecum at the trial conform to that of subdivision (d) for the subpoena at the taking of depositions. The insertion of the words 'or modify' in clause (1) affords desirable flexibility. Subdivision (d). The added last sentence of amended subdivision (d)(1) properly gives the subpoena for documents or tangible things the same scope as provided in Rule 26(b), thus promoting uniformity. The requirement in the last sentence of original Rule 45(d)(1) - to the effect that leave of court should be obtained for the issuance of such a subpoena - has been omitted. This requirement is unnecessary and oppressive on both counsel and court, and it has been criticized by district judges. There is no satisfactory reason for a differentiation between a subpoena for the production of documentary evidence by a witness at a trial (Rule 45(a)) and for the production of the same evidence at the taking of a deposition. Under this amendment, the person subpoenaed may obtain the protection afforded by any of the orders permitted under Rule 30(b) or Rule 45(b). See Application of Zenith Radio Corp., (E.D.Pa. 1941), 4 Fed.Rules Serv. 30b.21, Case 1, 1 F.R.D. 627; Fox v. House, (E.D.Okla.) 1939, 29 F.Supp. 673; United States of America for the Use of Tilo Roofing Co., Inc. v. J. Slotnik Co., (D.Conn. 1944), 3 F.R.D. 408. The changes in subdivision (d)(2) give the court the same power in the case of residents of the district as is conferred in the case of non-residents, and permit the court to fix a place for attendance which may be more convenient and accessible for the parties than that specified in the rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT At present, when a subpoena duces tecum is issued to a deponent, he is required to produce the listed materials at the deposition, but is under no clear compulsion to permit their inspection and copying. This results in confusion and uncertainty before the time the deposition is taken, with no mechanism provided whereby the court can resolve the matter. Rule 45(d)(1), as revised, makes clear that the subpoena authorizes inspection and copying of the materials produced. The deponent is afforded full protection since he can object, thereby forcing the party serving the subpoena to obtain a court order if he wishes to inspect and copy. The procedure is thus analogous to that provided in Rule 34. The changed references to other rules conform to changes made in those rules. The deletion of words in the clause describing the proper scope of the subpoena conforms to a change made in the language of Rule 34. The reference to Rule 26(b) is unchanged but encompasses new matter in that subdivision. The changes make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules. NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT Subdivision (d)(1). The amendment defines the term 'proof of service' as used in the first sentence of the present subdivision. For want of a definition, the district court clerks have been obliged to fashion their own, with results that vary from district to district. All that seems required is a simple certification on a copy of the notice to take a deposition that the notice has been served on every other party to the action. That is the proof of service required by Rule 25(d) of both the Federal Rules of Appellate Procedure and the Supreme Court Rules. Subdivision (e)(1). The amendment makes the reach of a subpoena of a district court at least as extensive as that of the state courts of general jurisdiction in the state in which the district court is held. Under the present rule the reach of a district court subpoena is often greater, since it extends throughout the district. No reason appears why it should be less, as it sometimes is because of the accident of district lines. Restrictions upon the reach of subpoenas are imposed to prevent undue inconvenience to witnesses. State statutes and rules of court are quite likely to reflect the varying degrees of difficulty and expense attendant upon local travel. NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Present Rule 45(d)(2) has two sentences setting forth the territorial scope of deposition subpoenas. The first sentence is directed to depositions taken in the judicial district in which the deponent resides; the second sentence addresses situations in which the deponent is not a resident of the district in which the deposition is to take place. The Rule, as currently constituted, creates anomalous situations that often cause logistical problems in conducting litigation. The first sentence of the present Rule states that a deponent may be required to attend only in the county wherein that person resides or is employed or transacts business in person, that is, where the person lives or works. Under this provision a deponent can be compelled, without court order, to travel from one end of that person's home county to the other, no matter how far that may be. The second sentence of the Rule is somewhat more flexible, stating that someone who does not reside in the district in which the deposition is to be taken can be required to attend in the county where the person is served with the subpoena, or within 40 miles from the place of service. Under today's conditions there is no sound reason for distinguishing between residents of the district or county in which a deposition is to be taken and nonresidents, and the Rule is amended to provide that any person may be subpoenaed to attend a deposition within a specified radius from that person's residence, place of business, or where the person was served. The 40-mile radius has been increased to 100 miles. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Motion for order for production of documents, see rule 34. Scope of deposition on oral examination, see rule 26. Subpoenas in civil cases brought by United States under anti-trust laws, see section 23 of Title 15, Commerce and Trade. ------DocID 37092 Document 954 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 46 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 46. Exceptions Unnecessary -STATUTE- Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Abolition of formal exceptions is often provided by statute. See Ill.Rev.Stat. (1937), ch. 110, Sec. 204; Neb.Comp.Stat. (1929) Sec. 20-1139; N.M.Stat.Ann. (Courtright, 1929) Sec. 105-830; 2 N.D.Comp.Laws Ann. (1913) Sec. 7653; Ohio Code Ann. (Throckmorton, 1936) Sec. 11560; 1 S.D.Comp.Laws (1929) Sec. 2542; Utah Rev.Stat.Ann. (1933) Sec. 104-39-2, 104-24-18; Va.Rules of Court, Rule 22, 163 Va. v, xii (1935); Wis.Stat. (1935) Sec. 270.39. Compare N.Y.C.P.A. (1937) Sec. 583, 445, and 446, all as amended by L. 1936, ch. 915. Rule 51 deals with objections to the court's instructions to the jury. U.S.C., Title 28, (former) Sec. 776 (Bill of exceptions; authentication; signing of by judge) and (former) 875 (Review of findings in cases tried without a jury) are superseded insofar as they provide for formal exceptions, and a bill of exceptions. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Exceptions unnecessary, see rule 51, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Form and admissibility of evidence, see rule 43. Harmless error, see rule 61. Objections to instructions, see rule 51. ------DocID 37093 Document 955 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 47 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 47. Jurors -STATUTE- (a) Examination of Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. (b) Alternate Jurors. The court may direct that not more than six jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, 2 peremptory challenges if 3 or 4 alternate jurors are to be impanelled, and 3 peremptory challenges if 5 or 6 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This permits a practice found very useful by Federal trial judges. For an example of a state practice in which the examination by the court is supplemented by further inquiry by counsel, see Rule 27 of the Code of Rules for the District Courts of Minnesota, 186 Minn. xxxiii (1932), 3 Minn.Stat. (Mason, supp. 1936) Appendix, 4, p. 1062. Note to Subdivision (b). The provision for an alternate juror is one often found in modern state codes. See N.C.Code (1935) Sec. 2330(a); Ohio Gen.Code Ann. (Page, Supp. 1926-1935) Sec. 11419-47; Pa.Stat.Ann. (Purdon, Supp. 1936) Title 17, Sec. 1153; compare U.S.C., Title 28, (former) Sec. 417a (Alternate jurors in criminal trials); 1 N.J.Rev.Stat. (1937) 2:91A-1, 2:91A-2, 2:91A-3. Provisions for qualifying, drawing, and challenging of jurors are found in U.S.C., Title 28: Sec. 411 (now 1861) (Qualifications and exemptions) Sec. 412 (now 1864) (Manner of drawing) Sec. 413 (now 1865) (Apportioned in district) Sec. 415 (see 1862) (Not disqualified because of race or color) Sec. 416 (now 1867) (Venire; service and return) Sec. 417 (now 1866) (Talesmen for petit jurors) Sec. 418 (now 1866) (Special juries) Sec. 423 (now 1869) (Jurors not to serve more than once a year) Sec. 424 (now 1870) (Challenges) and D.C. Code (1930) Title 18, Sec. 341-360 (Juries and Jury Commission) and Title 6, Sec. 366 (Peremptory challenges. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT The revision of this subdivision brings it into line with the amendment of Rule 24(c) of the Federal Rules of Criminal Procedure. That rule previously allowed four alternate jurors, as contrasted with the two allowed in civil cases, and the amendments increase the number of a maximum of six in all cases. The Advisory Committee's Note to amended Criminal Rule 24(c) points to experience demonstrating that four alternates may not be enough in some lengthy criminal trials; and the same may be said of civil trials. The Note adds: 'The words 'or are found to be' are added to the second sentence to make clear that an alternate juror may be called in the situation where it is first discovered during the trial that a juror was unable or disqualified to preform his duties at the time he was sworn.' -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Trial jurors, see rule 24, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Challenges of jurors, see section 1870 of this title. Jury trial of right, see rule 38. Manner of drawing trial jurors, see section 1864 of this title. Qualifications of jurors, see section 1861 of this title. ------DocID 37094 Document 956 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 48 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 48. Juries of Less Than Twelve - Majority Verdict -STATUTE- The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES For provisions in state codes, compare Utah Rev.Stat.Ann. (1933) Sec. 48-O-5 (In civil cases parties may agree in open court on lesser number of jurors); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 323 (Parties may consent to any number of jurors not less than three). -CROSS- CROSS REFERENCES Advisory jury, see rule 39. Jury trial of right, see rule 38. Right to jury trial, see Const. Amend. VII. ------DocID 37095 Document 957 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 49 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 49. Special Verdicts and Interrogatories -STATUTE- (a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. (b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The Federal courts are not bound to follow state statutes authorizing or requiring the court to ask a jury to find a special verdict or to answer interrogatories. Victor American Fuel Co. v. Peccarich, 209 Fed. 568 (C.C.A.8th, 1913) cert. den. 232 U.S. 727, 34 S.Ct. 603, 58 L.Ed. 817 (1914); Spokane and I. E. R. Co. v. Campbell, 217 Fed. 518 (C.C.A.9th, 1914), affd. 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125 (1916); Simkins, Federal Practice (1934) Sec. 186. The power of a territory to adopt by statute the practice under Subdivision (b) has been sustained. Walker v. New Mexico and Southern Pacific R. R., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837 (1897); Southwestern Brewery and Ice Co. v. Schmidt, 226 U.S. 162, 33 S.Ct. 68, 57 L.Ed. 170 (1912). Compare Wis.Stat. (1935) Sec. 270.27, 270.28 and 270.30 Green, A New Development in Jury Trial (1927), 13 A.B.A.J. 715; Morgan, A Brief History of Special Verdicts and Special Interrogatories, 1923, 32 Yale L.J. 575. The provisions of U.S.C., Title 28, (former) Sec. 400(3) (Declaratory judgments authorized; procedure) permitting the submission of issues of fact to a jury are covered by this rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 58. See the Advisory Committee's Note to Rule 58, as amended. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Advisory jury, see rule 39. New trial, see rule 59. ------DocID 37096 Document 958 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 50 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict -STATUTE- (a) Motion for Directed Verdict: When Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. (b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with the party's motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. (c) Same: Conditional Rulings on Grant of Motion. (1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. (2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict. (d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The present federal rule is changed to the extent that the formality of an express reservation of rights against waiver is no longer necessary. See Sampliner v. Motion Picture Patents Co., 254 U.S. 233, 41 S.Ct. 79, 65 L.Ed. 240 (1920); Union Indemnity Co. v. United States, 74 F.2d 645 (C.C.A.6th, 1935). The requirement that specific grounds for the motion for a directed verdict must be stated settles a conflict in the federal cases. See Simkins, Federal Practice (1934) Sec. 189. Note to Subdivision (b). For comparable state practice upheld under the conformity act, see Baltimore and Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935); compare Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas. 1914D, 1029 (1913). See Northern Ry. Co. v. Page, 274 U.S. 65, 47 S.Ct. 491, 71 L.Ed. 929 (1927), following the Massachusetts practice of alternative verdicts, explained in Thorndike, Trial by Jury in United States Courts, 26 Harv.L.Rev. 732 (1913). See also Thayer, Judicial Administration, 63 U. of Pa.L.Rev. 585, 600-601, and note 32 (1915); Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 685 (1918); Comment, 34 Mich.L.Rev. 93, 98 (1935). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (a). The practice, after the court has granted a motion for a directed verdict, of requiring the jury to express assent to a verdict they did not reach by their own deliberations serves no useful purpose and may give offense to the members of the jury. See 2B Barron & Holtzoff, Federal Practice and Procedure Sec. 1072, at 367 (Wright ed. 1961); Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555, 582-85, 589-90 (1950). The final sentence of the subdivision, added by amendment, provides that the court's order granting a motion for a directed verdict is effective in itself, and that no action need be taken by the foreman or other members of the jury. See Ariz.R.Civ.P. 50(c); cf. Fed.R.Crim.P. 29 (a). No change is intended in the standard to be applied in deciding the motion. To assure this interpretation, and in the interest of simplicity, the traditional term, 'directed verdict,' is retained. Subdivision (b). A motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence. The amendment of the second sentence of this subdivision sets the time limit for making the motion for judgment n.o.v. at 10 days after the entry of judgment, rather than 10 days after the reception of the verdict. Thus the time provision is made consistent with that contained in Rule 59(b) (time for motion for new trial) and Rule 52(b) (time for motion to amend findings by the court). Subdivision (c) deals with the situation where a party joins a motion for a new trial with his motion for judgment n.o.v. or prays for a new trial in the alternative, and the motion for judgment n.o.v. is granted. The procedure to be followed in making rulings on the motion for the new trial, and the consequences of the rulings thereon, were partly set out in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 85 L.Ed. 147 (1940), and have been further elaborated in later cases. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Globe Liquor Co., Inc. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948); Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949); Johnson v. New York, N.H. & H.R.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952). However, courts as well as counsel have often misunderstood the procedure, and it will be helpful to summarize the proper practice in the text of the rule. The amendments do not alter the effects of a jury verdict or the scope of appellate review. In the situation mentioned, subdivision (c)(1) requires that the court make a 'conditional' ruling on the new-trial motion, i.e., a ruling which goes on the assumption that the motion for judgment n.o.v. was erroneously granted and will be reversed or vacated; and the court is required to state its grounds for the conditional ruling. Subdivision (c)(1) then spells out the consequences of a reversal of the judgment in the light of the conditional ruling on the new-trial motion. If the motion for new trial has been conditionally granted, and the judgment is reversed, 'the new trial shall proceed unless the appellate court has otherwise ordered.' The party against whom the judgment n.o.v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the conditional grant of the new trial. And the appellate court, if it reverses the judgment n.o.v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict. See Bailey v. Slentz, 189 F.2d 406 (10th Cir. 1951); Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246 (9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); Peters v. Smith, 221 F.2d 721 (3d Cir.1955); Dailey v. Timmer, 292 F.2d 824 (3d Cir. 1961), explaining Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960); Cox v. Pennsylvania R.R., 120 A.2d 214 (D.C.Mun.Ct.App. 1956); 3 Barron & Holtzoff, Federal Practice and Procedure Sec. 1302.1 at 346-47 (Wright ed. 1958); 6 Moore's Federal Practice 59.16 at 3915 n. 8a (2d ed. 1954). If the motion for a new trial has been conditionally denied, and the judgment is reversed, 'subsequent proceedings shall be in accordance with the order of the appellate court.' The party in whose favor judgment n.o.v. was entered below may, as appellee, besides seeking to uphold that judgment, also urge on the appellate court that the trial court committed error in conditionally denying the new trial. The appellee may assert this error in his brief, without taking a cross-appeal. Cf. Patterson v. Pennsylvania R.R., 238 F.2d 645, 650 (6th Cir. 1956); Hughes v. St. Louis Nat. L. Baseball Club, Inc., 359 Mo. 993, 997, 224 S.W.2d 989, 992 (1949). If the appellate court concludes that the judgment cannot stand, but accepts the appellee's contention that there was error in the conditional denial of the new trial, it may order a new trial in lieu of directing the entry of judgment upon the verdict. Subdivision (c)(2), which also deals with the situation where the trial court has granted the motion for judgment n.o.v., states that the verdict-winner may apply to the trial court for a new trial pursuant to Rule 59 after the judgment n.o.v. has been entered against him. In arguing to the trial court in opposition to the motion for judgment n.o.v., the verdict-winner may, and often will, contend that he is entitled, at the least, to a new trial, and the court has a range of discretion to grant a new trial or (where plaintiff won the verdict) to order a dismissal of the action without prejudice instead of granting judgment n.o.v. See Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at 217, 218 67 S.Ct. at 755, 756, 91 L.Ed. 849. Subdivision (c)(2) is a reminder that the verdict-winner is entitled, even after entry of judgment n.o.v. against him, to move for a new trial in the usual course. If in these circumstances the motion is granted, the judgment is superseded. In some unusual circumstances, however, the grant of the new-trial motion may be only conditional, and the judgment will not be superseded. See the situation in Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960) (upon a verdict for plaintiff, defendant moves for and obtains judgment n.o.v.; plaintiff moves for a new trial on the ground of inadequate damages; trial court might properly have granted plaintiff's motion, conditional upon reversal of the judgment n.o.v.). Even if the verdict-winner makes no motion for a new trial, he is entitled upon his appeal from the judgment n.o.v. not only to urge that that judgment should be reversed and judgment entered upon the verdict, but that errors were committed during the trial which at the least entitle him to a new trial. Subdivision (d) deals with the situation where judgment has been entered on the jury verdict, the motion for judgment n.o.v. and any motion for a new trial having been denied by the trial court. The verdict-winner, as appellee, besides seeking to uphold the judgment, may urge upon the appellate court that in case the trial court is found to have erred in entering judgment on the verdict, there are grounds for granting him a new trial instead of directing the entry of judgment for his opponent. In appropriate cases the appellate court is not precluded from itself directing that a new trial be had. See Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704 (1949). Nor is it precluded in proper cases from remanding the case for a determination by the trial court as to whether a new trial should be granted. The latter course is advisable where the grounds urged are suitable for the exercise of trial court discretion. Subdivision (d) does not attempt a regulation of all aspects of the procedure where the motion for judgment n.o.v. and any accompanying motion for a new trial are denied, since the problems have not been fully canvassed in the decisions and the procedure is in some respects still in a formative stage. It is, however, designed to give guidance on certain important features of the practice. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Motions for directed verdict abolished in criminal cases, see rule 29, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Grounds for new trial, see rule 59. Involuntary dismissal at end of plaintiff's case, see rule 41. ------DocID 37097 Document 959 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 51 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 51. Instructions to Jury: Objection -STATUTE- At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Supreme Court Rule 8 requires exceptions to the charge of the court to the jury which shall distinctly state the several matters of law in the charge to which exception is taken. Similar provisions appear in the rules of the various Circuit Courts of Appeals. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT Although Rule 51 in its present form specifies that the court shall instruct the jury only after the arguments of the parties are completed, in some districts (typically those in states where the practice is otherwise) it is common for the parties to stipulate to instruction before the arguments. The purpose of the amendment is to give the court discretion to instruct the jury either before or after argument. Thus, the rule as revised will permit resort to the long-standing federal practice or to an alternative procedure, which has been praised because it gives counsel the opportunity to explain the instructions, argue their application to the facts and thereby give the jury the maximum assistance in determining the issues and arriving at a good verdict on the law and the evidence. As an ancillary benefit, this approach aids counsel by supplying a natural outline so that arguments may be directed to the essential fact issues which the jury must decide. See generally Raymond, Merits and Demerits of the Missouri System of Instructing Juries, 5 St. Louis U.L.J. 317 (1959). Moreover, if the court instructs before an argument, counsel then know the precise words the court has chosen and need not speculate as to the words the court will later use in its instructions. Finally, by instructing ahead of argument the court has the attention of the jurors when they are fresh and can given their full attention to the court's instructions. It is more difficult to hold the attention of jurors after lengthy arguments. -CROSS- CROSS REFERENCES Formal exceptions unnecessary, see rule 46. Motion for directed verdict, see rule 50. ------DocID 37098 Document 960 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 52 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 52. Findings by the Court -STATUTE- (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b). (b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See (former) Equity Rule 70 1/2, as amended Nov. 25, 1935 (Findings of Fact and Conclusions of Law), and U.S.C., Title 28, (former) Sec. 764 (Opinion, findings, and conclusions in action against United States) which are substantially continued in this rule. The provisions of U.S.C., Title 28, (former) Sec. 773 (Trial of issues of fact; by court) and (former) 875 (Review in cases tried without a jury) are superseded insofar as they provide a different method of finding facts and a different method of appellate review. The rule stated in the third sentence of Subdivision (a) accords with the decisions on the scope of the review in modern federal equity practice. It is applicable to all classes of findings in cases tried without a jury whether the finding is of a fact concerning which there was conflict of testimony, or of a fact deduced or inferred from uncontradicted testimony. See Silver King Coalition Mines, Co. v. Silver King Consolidated Mining Co., 204 Fed. 166 (C.C.A.8th, 1913), cert. den. 229 U.S. 624, 33 S.Ct. 1051, 57 L.Ed. 1356 (1913); Warren v. Keep, 155 U.S. 265, 15 S.Ct. 83, 39 L.Ed. 144 (1894); Furrer v. Ferris, 145 U.S. 132, 12 S.Ct. 821, 36 L.Ed. 649 (1892); Tilghman v. Proctor, 125 U.S. 136, 149, 8 S.Ct. 894, 31 L.Ed. 664 (1888); Kimberly v. Arms, 129 U.S. 512, 524, 9 S.Ct. 355, 32 L.Ed. 764 (1889). Compare Kaeser & Blair, Inc., v. Merchants' Ass'n, 64 F.2d 575, 576 (C.C.A.6th, 1933); Dunn v. Trefry, 260 Fed. 147, 148 (C.C.A.1st, 1919). In the following states findings of fact are required in all cases tried without a jury (waiver by the parties being permitted as indicated at the end of the listing): Arkansas, Civ.Code (Crawford, 1934) Sec. 364; California, Code Civ.Proc. (Deering, 1937) Sec. 632, 634; Colorado, 1 Stat.Ann. (1935) Code Civ.Proc. Sec. 232, 291 (in actions before referees or for possession of and damages to land); Connecticut, Gen.Stats. Sec. 5660, 5664; Idaho, 1 Code Ann. (1932) Sec. 7-302 through 7-305; Massachusetts (equity cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214, Sec. 23; Minnesota, 2 Stat. (Mason, 1927) Sec. 9311; Nevada, 4 Comp.Laws (Hillyer, 1929) Sec. 8783-8784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197, 1239 (1924); New Mexico, Stat.Ann. (Courtright, 1929) Sec. 105-813; North Carolina, Code (1935) Sec. 569; North Dakota, 2 Comp.Laws Ann. (1913) Sec. 7641; Oregon, 2 Code Ann. (1930) Sec. 2-502; South Carolina, Code (Michie, 1932) Sec. 649; South Dakota, 1 Comp.Laws (1929) Sec. 2525-2526; Utah, Rev.Stat.Ann. (1933) Sec. 104-26-2, 104-26-3; Vermont (where jury trial waived), Pub. Laws (1933) Sec. 2069; Washington, 2 Rev.Stat.Ann. (Remington, 1932) Sec. 367; Wisconsin, Stat. (1935) Sec. 270.33. The parties may waive this requirement for findings in California, Idaho, North Dakota, Nevada, New Mexico, Utah, and South Dakota. In the following states the review of findings of fact in all non-jury cases, including jury waived cases, is assimilated to the equity review: Alabama, Code Ann. (Michie, 1928) Sec. 9498, 8599; California, Code Civ.Proc. (Deering, 1937) Sec. 956a; but see 20 Calif.Law Rev. 171 (1932); Colorado, Johnson v. Kountze, 21 Colo. 486, 43 Pac. 445 (1895), semble; Illinois, Baker v. Hinricks, 359 Ill. 138, 194 N.E. 284 (1934), Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 195 N.E. 420, 98 A.L.R. 169 (1935); Minnesota, State Bank of Gibbon v. Walter, 167 Minn. 37, 38, 208 N.W. 423 (1926), Waldron v. Page, 191 Minn. 302, 253 N.W. 894 (1934); New Jersey, N.J.Comp.Stat. (2 Cum.Supp. 1911-1924) Title 163, Sec. 303, as interpreted in Bussy v. Hatch, 95 N.J.L. 56, 111 A. 546 (1920); New York, York Mortgage Corporation v. Clotar Const. Corp., 254 N.Y. 128, 133, 172 N.E. 265 (1930); North Dakota, Comp.Laws Ann. (1913) Sec. 7846, as amended by N.D.Laws 1933, ch. 208, Milnor Holding Co. v. Holt, 63 N.D. 362, 370, 248 N.W. 315 (1933); Oklahoma, Wichita Mining and Improvement Co. v. Hale, 20 Okla. 159, 167, 94 Pac. 530 (1908); South Dakota, Randall v. Burk Township, 4 S.D. 337, 57 N.W. 4 (1893); Texas, Custard v. Flowers, 14 S.W.2d 109 (1929); Utah, Rev.Stat.Ann. (1933) Sec. 104-41-5; Vermont, Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933); Washington, 2 Rev.Stat.Ann. (Remington, 1932) Sec. 309-316; McCullough v. Puget Sound Realty Associates, 76 Wash. 700, 136 Pac. 1146 (1913), but see Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1 (1915); West Virginia, Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004 (1906), semble; Wisconsin, Stat. (1935) Sec. 251.09; Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374 (1927), Gessler v. Erwin Co., 182 Wis. 315, 193 N.W. 363 (1924). For examples of an assimilation of the review of findings of fact in cases tried without a jury to the review at law as made in several states, see Clark and Stone, Review of Findings of Fact, 4 U. of Chi.L.Rev. 190, 215 (1937). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The amended rule makes clear that the requirement for findings of fact and conclusions of law thereon applies in a case with an advisory jury. This removes an ambiguity in the rule as originally stated, but carries into effect what has been considered its intent. 3 Moore's Federal Practice, 1938, 3119. Hurwitz v. Hurwitz, App.D.C. 1943, 78 U.S.App.D.C. 66, 136 F.2d 796. The two sentences added at the end of Rule 52(a) eliminate certain difficulties which have arisen concerning findings and conclusions. The first of the two sentences permits findings of fact and conclusions of law to appear in an opinion or memorandum of decision. See, e.g., United States v. One 1941 Ford Sedan, S.D.Tex. 1946, 65 F.Supp 84. Under original Rule 52(a) some courts have expressed the view that findings and conclusions could not be incorporated in an opinion. Detective Comics, Inc. v. Bruns Publication, S.D.N.Y. 1939, 28 F.Supp. 399; Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Cincinnati & L. E. R. Co., S.D.Ohio 1941, 43 F.Supp. 5; United States v. Aluminum Co. of America, S.D.N.Y. 1941, 2 F.R.D. 224, 5 Fed.Rules Serv. 52a.11, Case 3; see also s.c., 44 F.Supp. 97. But, to the contrary, see Wellman v. United States, D.Mass. 1938, 25 F.Supp. 868; Cook v. United States, D.Mass. 1939, 26 F.Supp. 253; Proctor v. White, D.Mass. 1939, 28 F.Supp. 161; Green Valley Creamery, Inc. v. United States, C.C.A.1st, 1939, 108 F.2d 342. See also Matton Oil Transfer Corp. v. The Dynamic, C.C.A.2d, 1941, 123 F.2d 999; Carter Coal Co. v. Litz, C.C.A.4th, 1944, 140 F.2d 934; Woodruff v. Heiser, C.C.A.10th, 1945, 150 F.2d 869; Coca-Cola Co. v. Busch, E.D.Pa. 1943, 7 Fed.Rules Serv. 59b.2, Case 4; Oglebay, Some Developments in Bankruptcy Law, 1944, 18 J. of Nat'l Ass'n of Ref. 68, 69. Findings of fact aid in the process of judgment and in defining for future cases the precise limitations of the issues and the determination thereon. Thus they not only aid the appellate court on review, Hurwitz v. Hurwitz, App.D.C. 1943, 78 U.S.App.D.C. 66, 136 F.2d 796, but they are an important factor in the proper application of the doctrines of res judicata and estoppel by judgment Nordbye, Improvements in Statement of Findings of Fact and Conclusions of Law, 1 F.R.D. 25, 26-27; United States v. Forness, C.C.A.2d, 1942, 125 F.2d 928; cert. den., 1942, 316 U.S. 694, 62 S.Ct. 1293. These findings should represent the judge's own determination and not the long, often argumentative statements of successful counsel. United States v. Forness, supra: United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254. Consequently, they should be a part of the judge's opinion and decision, either stated therein or stated separately. Matton Oil Transfer Corp. v. The Dynamic, supra. But the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for overelaboration of detail or particularization of facts. United States v. Forness, supra; United States v. Crescent Amusement Co., supra. See also Petterson Lighterage & Towing Corp. v. New York Central R. Co., C.C.A.2d, 1942, 126 F.2d 992; Brown Paper Mill Co., Inc. v. Irwin, C.C.A.8th, 1943, 134 F.2d 337; Allen Bradley Co. v. Local Union No. 3, I.B.E.W., C.C.A.2d, 1944, 145 F.2d 215, rev'd on other grounds, 1945, 325 U.S. 797, 65 S.Ct. 1533; Young v. Murphy, N.D.Ohio 1946, 9 Fed.Rules Serv. 52a.11, Case 2. The last sentence of Rule 52(a) as amended will remove any doubt that findings and conclusions are unnecessary upon decision of a motion, particularly one under Rule 12 or Rule 56, except as provided in amended Rule 41(b). As so holding, see Thomas v. Peyser, App.D.C. 1941, 118 F.2d 369; Schad v. Twentieth Century-Fox Corp., C.C.A.3d, 1943, 136 F.2d 991; Prudential Ins. Co. of America v. Goldstein, E.D.N.Y. 1942, 43 F.Supp. 767; Somers Coal Co. v. United States, N.D.Ohio 1942, 2 F.R.D. 532, 6 Fed.Rules Serv. 52a.1, Case 1; Pen-Ken Oil & Gas Corp. v. Warfield Natural Gas Co., E.D.Ky. 1942, 2 F.R.D. 355, 5 Fed.Rules Serv. 52a.1, Case 3; also Commentary, Necessity of Findings of Fact, 1941, 4 Fed.Rules Serv. 936. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 58. See the Advisory Committee's Note to Rule 58, as amended. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Rule 52(a) has been amended to revise its penultimate sentence to provide explicitly that the district judge may make the findings of fact and conclusions of law required in nonjury cases orally. Nothing in the prior text of the rule forbids this practice, which is widely utilized by district judges. See Christensen, A Modest Proposal for Immeasurable Improvement, 64 A.B.A.J. 693 (1978). The objective is to lighten the burden on the trial court in preparing findings in nonjury cases. In addition, the amendment should reduce the number of published district court opinions that embrace written findings. NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule 52(a) has been amended (1) to avoid continued confusion and conflicts among the circuits as to the standard of appellate review of findings of fact by the court, (2) to eliminate the disparity between the standard of review as literally stated in Rule 52(a) and the practice of some courts of appeals, and (3) to promote nationwide uniformity. See Note, Rule 52(a): Appellate Review of Findings of Fact Based on Documentary or Undisputed Evidence, 49 Va. L. Rev. 506, 536 (1963). Some courts of appeal have stated that when a trial court's findings do not rest on demeanor evidence and evaluation of a witness' credibility, there is no reason to defer to the trial court's findings and the appellate court more readily can find them to be clearly erroneous. See, e.g., Marcum v. United States, 621 F.2d 142, 144-45 (5th Cir. 1980). Others go further, holding that appellate review may be had without application of the 'clearly erroneous' test since the appellate court is in as good a position as the trial court to review a purely documentary record. See, e.g., Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Lydle v. United States, 635 F.2d 763, 765 n. 1 (6th Cir. 1981); Swanson v. Baker Indus., Inc., 615 F.2d 479, 483 (8th Cir. 1980); Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir. 1979), cert. denied, 445 U.S. 946 (1980); Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979); John R. Thompson Co. v. United States, 477 F.2d 164, 167 (7th Cir. 1973). A third group has adopted the view that the 'clearly erroneous' rule applies in all nonjury cases even when findings are based solely on documentary evidence or on inferences from undisputed facts. See, e.g., Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459 U.S. 976 (1982); United States v. Texas Education Agency, 647 F.2d 504, 506-07 (5th Cir. 1981), cert. denied, 454 U.S. 1143 (1982); Constructora Maza, Inc. v. Banco de Ponce, 616 F.2d 573, 576 (1st Cir. 1980); In re Sierra Trading Corp., 482 F.2d 333, 337 (10th Cir. 1973); Case v. Morrisette, 475 F.2d 1300, 1306-07 (D.C. Cir. 1973). The commentators also disagree as to the proper interpretation of the Rule. Compare Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 769-70 (1957) (language and intent of Rule support view that 'clearly erroneous' test should apply to all forms of evidence), and 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2587, at 740 (1971) (language of the Rule is clear), with 5A J. Moore, Federal Practice 52.04, 2687-88 (2d ed. 1982) (Rule as written supports broader review of findings based on non-demeanor testimony). The Supreme Court has not clearly resolved the issue. See, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 1958 (1984); Pullman Standard v. Swint, 456 U.S. 273, 293 (1982); United States v. General Motors Corp., 384 U.S. 127, 141 n. 16 (1966); United States v. United States Gypsum Co., 333 U.S. 364, 394-96 (1948). The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court's assessment of credibility of the witnesses but on an evaluatin of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court's findings. These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority. -CROSS- CROSS REFERENCES Advisory jury, see rule 39. Extension of time to apply for amendment of findings, limitation on, see rule 6. Master's report, inclusion of findings of fact and conclusions of law, see rule 53. Motion for new trial, amendment of findings on, see rule 59. Special verdicts, making of findings on, see rule 49. Stay of proceedings to enforce judgment pending disposition of motion to amend, see rule 62. ------DocID 37099 Document 961 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 53 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VI -HEAD- Rule 53. Masters -STATUTE- (a) Appointment and Compensation. The court in which any action is pending may appoint a special master therein. As used in these rules the word 'master' includes a referee, an auditor, an examiner, and an assessor. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct; provided that this provision for compensation shall not apply when a United States magistrate is designated to serve as a master pursuant to Title 28, U.S.C. section 636(b)(2). The master shall not retain the master's report as security for the master's compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. Upon the consent of the parties, a magistrate may be designated to serve as a special master without regard to the provisions of this subdivision. (c) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order. The master may require the production before the master of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury. (d) Proceedings. (1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment. (2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. (3) Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs. (e) Report. (1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing. (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. The master's findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report. (4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. (5) Draft Report. Before filing the master's report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. (f) (FOOTNOTE 1) (Application to Magistrate.) A magistrate is subject to this rule only when the order referring a matter to the magistrate expressly provides that the reference is made under this Rule. (FOOTNOTE 1) Subdivision heading supplied editorially. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This is a modification of (former) Equity Rule 68 (Appointment and Compensation of Masters). Note to Subdivision (b). This is substantially the first sentence of (former) Equity Rule 59 (Reference to Master - Exceptional, Not Usual) extended to actions formerly legal. See Ex parte Peterson 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920). Note to Subdivision (c). This is (former) Equity Rules 62 (Powers of Master) and 65 (Claimants Before Master Examinable by Him) with slight modifications. Compare (former) Equity Rules 49 (Evidence Taken Before Examiners, Etc.) and 51 (Evidence Taken Before Examiners, Etc.). Note to Subdivision (d). (1) This is substantially a combination of the second sentence of (former) Equity Rule 59 (Reference to Master - Exceptional, Not Usual) and (former) Equity Rule 60 (Proceedings Before Master). Compare (former) Equity Rule 53 (Notice of Taking Testimony Before Examiner, Etc.). (2) This is substantially (former) Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner). (3) This is substantially (former) Equity Rule 63 (Form of Accounts Before Master). Note to Subdivision (e). This contains the substance of (former) Equity Rules 61 (Master's Report - Documents Identified but not Set Forth), 61 1/2 (Master's Report - Presumption as to Correctness - Review), and 66 (Return of Master's Report - Exceptions - Hearing), with modifications as to the form and effect of the report and for inclusion of reports by auditors, referees, and examiners, and references in actions formerly legal. Compare (former) Equity Rules 49 (Evidence Taken Before Examiners, Etc.) and 67 (Costs on Exceptions to Master's Report). See Camden v. Stuart, 144 U.S. 104, 12 S.Ct. 585, 36 L.Ed. 363 (1892); Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT These changes are designed to preserve the admiralty practice whereby difficult computations are referred to a commissioner or assessor, especially after an interlocutory judgment determining liability. As to separation of issues for trial see Rule 42(b). NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Subdivision (a). The creation of full-time magistrates, who serve at government expense and have no nonjudicial duties competing for their time, eliminates the need to appoint standing masters. Thus the prior provision in Rule 53(a) authorizing the appointment of standing masters is deleted. Additionally, the definition of 'master' in subdivision (a) now eliminates the superseded office of commissioner. The term 'special master' is retained in Rule 53 in order to maintain conformity with 28 U.S.C. Sec. 636(b)(2), authorizing a judge to designate a magistrate 'to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States District Courts.' Obviously, when a magistrate serves as a special master, the provisions for compensation of masters are inapplciable, and the amendment to subdivision (a) so provides. Although the existence of magistrates may make the appointment of outside masters unnecessary in many instances, see, e.g., Gautreaux v. Chicago Housing Authority, 384 F.Supp. 37 (N.D.Ill. 1974), mandamus denied sub nom., Chicago Housing Authority v. Austin, 511 F.2d 82 (7th Cir. 1975); Avco Corp. v. American Tel. & Tel. Co., 68 F.R.D. 532 (S.D. Ohio 1975), such masters may prove useful when some special expertise is desired or when a magistrate is unavailable for lengthy and detailed supervision of a case. Subdivision (b). The provisions of 28 U.S.C. Sec. 636(b)(2) not only permit magistrates to serve as masters under Rule 53(b) but also eliminate the exceptional condition requirement of Rule 53(b) when the reference is made with the consent of the parties. The amendment to subdivision (b) brings Rule 53 into harmony with the statute by exempting magistrates, appointed with the consent of the parties, from the general requirement that some exceptional condition requires the reference. It should be noted that subdivision (b) does not address the question, raised in recent decisional law and commentary, as to whether the exceptional condition requirement is applicable when private masters who are not magistrates are appointed with the consent of the parties. See Silberman, Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L.Rev. 1297, 1354 (1975). Subdivision (c). The amendment recognizes the abrogation of Federal Rule 43(c) by the Federal Rules of Evidence. Subdivision (f). The new subdivision responds to confusion flowing from the dual authority for references of pretrial matters to magistrates. Such references can be made, with or without the consent of the parties, pursuant to Rule 53 or under 28 U.S.C. Sec. 636(b)(1)(A) and (b)(1)(B). There are a number of distinctions between references made under the statute and under the rule. For example, under the statute nondispositive pretrial matters may be referred to a magistrate, without consent, for final determination with reconsideration by the district judge if the magistrate's order is clearly erroneous or contrary to law. Under the rule, however, the appointment of a master, without consent of the parties, to supervise discovery would require some exceptional condition (Rule 53(b)) and would subject the proceedings to the report procedures of Rule 53(e). If an order of reference does not clearly articulate the source of the court's authority the resulting proceedings could be subject to attack on grounds of the magistrate's noncompliance with the provisions of Rule 53. This subdivision therefore establishes a presumption that the limitations of Rule 53 are not applicable unless the reference is specifically made subject to Rule 53. A magistrate serving as a special master under 28 U.S.C. Sec. 636(b)(2) is governed by the provisions of Rule 53, with the exceptional condition requirement lifted in the case of a consensual reference. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subdiv. (c), are set out in this Appendix. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- CROSS REFERENCES Adoption of master's findings by court, see rule 52. Clerks of courts, ineligible to appointment as master, see section 957 of this title. Default judgment, reference to determine account or amount of damages, see rule 55. Pre-trial determination as to preliminary reference, see rule 16. Report, judgment not required to recite, see rule 54. Three-Judge Court, appointment of master by single judge, see section 2284 of this title. United States magistrates, fees for attending to any reference, see section 633 of this title. ------DocID 37100 Document 962 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE VII -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- VII. JUDGMENT ------DocID 37101 Document 963 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 54 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 54. Judgments; Costs -STATUTE- (a) Definition; Form. 'Judgment' as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. (d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The second sentence is derived substantially from (former) Equity Rule 71 (Form of Decree). Note to Subdivision (b). This provides for the separate judgment of equity and code practice. See Wis.Stat. (1935) Sec. 270.54; Compare N.Y.C.P.A. (1937) Sec. 476. Note to Subdivision (c). For the limitation on default contained in the first sentence, see 2 N.D.Comp.Laws Ann. (1913) Sec. 7680; N.Y.C.P.A. (1937) Sec. 479. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 13, r.r. 3-12. The remainder is a usual code provision. It makes clear that a judgment should give the relief to which a party is entitled, regardless of whether it is legal or equitable or both. This necessarily includes the deficiency judgment in foreclosure cases formerly provided for by Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.). Note to Subdivision (d). For the present rule in common law actions, see Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920); Payne, Costs in Common Law Actions in the Federal Courts (1935), 21 Va.L.Rev. 397. The provisions as to costs in actions in forma pauperis contained in U.S.C., Title 28, Sec. 832-836 (now 1915) are unaffected by this rule. Other sections of U.S.C., Title 28, which are unaffected by this rule are: Sec. 815 (former) (Costs; plaintiff not entitled to, when), 821 (now 1928) (Costs; infringement of patent; disclaimer), 825 (Costs; several actions), 829 (now 1927) (Costs; attorney liable for, when), and 830 (now 1920) (Costs; bill of; taxation). The provisions of the following and similar statutes as to costs against the United States and its officers and agencies are specifically continued: U.S.C., Title 15, Sec. 77v(a), 78aa, 79y (Securities and Exchange Commission) U.S.C., Title 16, Sec. 825p (Federal Power Commission) U.S.C., Title 26, (former) Sec. 1569(d) and 1645(d) (Internal revenue actions) U.S.C., Title 26, (former) Sec. 1670(b)(2) (Reimbursement of costs of recovery against revenue officers) U.S.C., Title 28, (former) Sec. 817 (Internal revenue actions) U.S.C., Title 28, Sec. 836 (now 1915) (United States - actions in forma pauperis) U.S.C., Title 28, Sec. 842 (now 2006) (Actions against revenue officers) U.S.C., Title 28, Sec. 870 (now 2408) (United States - in certain cases) U.S.C., Title 28, (former) Sec. 906 (United States - foreclosure actions) U.S.C., Title 47, Sec. 401 (Communications Commission) The provisions of the following and similar statutes as to costs are unaffected: U.S.C., Title 7, Sec. 210(f) (Actions for damages based on an order of the Secretary of Agriculture under Stockyards Act) U.S.C., Title 7, Sec. 499g(c) (Appeals from reparations orders of Secretary of Agriculture under Perishable Commodities Act) U.S.C., Title 8, (former) Sec. 45 (Action against district attorneys in certain cases) U.S.C., Title 15, Sec. 15 (Actions for injuries due to violation of antitrust laws) U.S.C., Title 15, Sec. 72 (Actions for violation of law forbidding importation or sale of articles at less than market value or wholesale prices) U.S.C., Title 15, Sec. 77k (Actions by persons acquiring securities registered with untrue statements under Securities Act of 1933) U.S.C., Title 15, Sec. 78i(e) (Certain actions under the Securities Exchange Act of 1934) U.S.C., Title 15, Sec. 78r (Similar to 78i(e)) U.S.C., Title 15, Sec. 96 (Infringement of trade-mark - damages) U.S.C., Title 15, Sec. 99 (Infringement of trade-mark - injunctions) U.S.C., Title 15, Sec. 124 (Infringement of trade-mark - damages) U.S.C., Title 19, Sec. 274 (Certain actions under customs law) U.S.C., Title 30, Sec. 32 (Action to determine right to possession of mineral lands in certain cases) U.S.C., Title 31, Sec. 232 (now 3730) and (former) 234 (Action for making false claims upon United States) U.S.C., Title 33, Sec. 926 (Actions under Harbor Workers' Compensation Act) U.S.C., Title 35, Sec. 67 (now 281, 284) (Infringement of patent - damages) U.S.C., Title 35, Sec. 69 (now 282) (Infringement of patent - pleading and proof) U.S.C., Title 35, Sec. 71 (now 288) (Infringement of patent - when specification too broad) U.S.C., Title 45, Sec. 153p (Actions for non-compliance with an order of National R. R. Adjustment Board for payment of money) U.S.C., Title 46, (former) Sec. 38 (Action for penalty for failure to register vessel) U.S.C., Title 46, Sec. 829 (Action based on non-compliance with an order of Maritime Commission for payment of money) U.S.C., Title 46, Sec. 941 (Certain actions under Ship Mortgage Act) U.S.C., Title 46, Sec. 1227 (Actions for damages for violation of certain provisions of the Merchant Marine Act, 1936) U.S.C., Title 47, Sec. 206 (Actions for certain violations of Communications Act of 1934) U.S.C., Title 49, Sec. 16(2) (now 11705) (Action based on non-compliance with an order of I. C. C. for payment of money) NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute. Hohorst v. Hamburg-American Packet Co., 1893, 148 U.S. 262, 13 S.Ct. 590; Rexford v. Brunswick-Balke-Collender Co., 1913, 228 U.S. 339, 33 S.Ct. 515; Collins v. Miller, 1920, 252 U.S. 364, 40 S.Ct. 347. Rule 54(b) was originally adopted in view of the wide scope and possible content of the newly created 'civil action' in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case. It was not designed to overturn the settled federal rule stated above, which, indeed, has more recently been reiterated in Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631. See also United States v. Florian, 1941, 312 U.S. 656, 61 S.Ct. 713, rev'g, and restoring the first opinion in, Florian v. United States, C.C.A.7th, 1940, 114 F.2d 990; Reeves v. Beardall, 1942, 316 U.S. 283, 62 S.Ct. 1085. Unfortunately, this was not always understood, and some confusion ensued. Hence situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of. In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question. While most appellate courts have reached a result generally in accord with the intent of the rule, yet there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant. It hardly seems a case where multiplicity of precedents will tend to remove the problem from debate. The problem is presented and discussed in the following cases: Atwater v. North American Coal Corp., C.C.A.2d, 1940, 111 F.2d 125; Rosenblum v. Dingfelder, C.C.A.2d, 1940, 111 F.2d 406; Audi-Vision, Inc. v. RCA Mfg. Co., Inc., C.C.A.2d, 1943, 136 F.2d 621; Zalkind v. Scheinman, C.C.A.2d, 1943, 139 F.2d 895; Oppenheimer v. F. J. Young & Co., Inc., C.C.A.2d, 1944, 144 F.2d 387; Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., C.C.A.2d, 1946, 154 F.2d 814, cert. den., 1946, 66 S.Ct. 1353; Zarati Steamship Co. v. Park Bridge Corp., C.C.A.2d, 1946, 154 F.2d 377; Baltimore and Ohio R. Co. v. United Fuel Gas Co., C.C.A.4th, 1946, 154 F.2d 545; Jefferson Electric Co. v. Sola Electric Co., C.C.A.7th, 1941, 122 F.2d 124; Leonard v. Socony-Vacuum Oil Co., C.C.A.7th, 1942, 130 F.2d 535; Markham v. Kasper, C.C.A.7th, 1945, 152 F.2d 270; Hanney v. Franklin Fire Ins. Co. of Philadelphia, C.C.A.9th, 1944, 142 F.2d 864; Toomey v. Toomey, App.D.C. 1945, 80 U.S.App.D.C. 77, 149 F.2d 19. In view of the difficulty thus disclosed, the Advisory Committee in its two preliminary drafts of proposed amendments attempted to redefine the original rule with particular stress upon the interlocutory nature of partial judgments which did not adjudicate all claims arising out of a single transaction or occurrence. This attempt appeared to meet with almost universal approval from those of the profession commenting upon it, although there were, of course, helpful suggestions for additional changes in language or clarification of detail. But cf. Circuit Judge Frank's dissenting opinion in Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., supra, n. 21 of the dissenting opinion. The Committee, however, became convinced on careful study of its own proposals that the seeds of ambiguity still remained, and that it had not completely solved the problem of piecemeal appeals. After extended consideration, it concluded that a retention of the older federal rule was desirable, and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule. This is afforded by amended Rule 54(b). It re-establishes an ancient policy with clarity and precision. For the possibility of staying execution where not all claims are disposed of under Rule 54(b), see amended Rule 62(h). NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT This rule permitting appeal, upon the trial court's determination of 'no just reason for delay,' from a judgment upon one or more but less than all the claims in an action, has generally been given a sympathetic construction by the courts and its validity is settled. Reeves v. Beardall, 316 U.S. 283 (1942); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445 (1956). A serious difficulty has, however, arisen because the rule speaks of claims but nowhere mentions parties. A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, even with the requisite trial court determination, of one or more but less than all defendants jointly charged in an action, i.e. charged with various forms of concerted or related wrongdoing or related liability. See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960); Richards v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th Cir. 1955); Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955). For purposes of Rule 54(b) it was arguable that there were as many 'claims' as there were parties defendant and that the rule in its present text applied where less than all of the parties were dismissed, cf. United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955); Bowling Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir. 1960); but the Courts of Appeals are now committed to an opposite view. The danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases, see Pabellon v. Grace Line, Inc., 191 F.2d 169, 179 (2d Cir. 1951), cert. denied, 342 U.S. 893 (1951), and courts and commentators have urged that Rule 54(b) be changed to take in the former. See Reagan v. Traders & General Ins. Co., 255 F.2d 845 (5th Cir. 1958); Meadows v. Greyhound Corp., 235 F.2d 233 (5th Cir. 1956); Steiner v. 20th Century-Fox Film Corp., supra; 6 Moore's Federal Practice 54.34(2) (2d ed. 1953); 3 Barron & Holtzoff, Federal Practice & Procedure Sec. 1193.2 (Wright ed. 1958); Developments in the Law - Multiparty Litigation, 71 Harv.L.Rev. 874, 981 (1958); Note, 62 Yale L.J. 263, 271 (1953); Ill.Ann.Stat. ch. 110, Sec. 50(2) (Smith-Hurd 1956). The amendment accomplishes this purpose by referring explicitly to parties. There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. Sec. 1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). The Rule 54(b) procedure seems preferable for those cases, and Sec. 1292(b) should be held inapplicable to them when the rule is enlarged as here proposed. See Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960); 1 Barron & Holtzoff, supra, Sec. 58.1, p. 321 (Wright ed. 1960). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Amendment or alteration of judgment - Stay of proceedings pending disposition of motion for, see rule 62. Time for service of motion, see rule 59. Appellate court directing entry of judgment, see section 2106 of this title. Attachment of property of person disobeying judgment for specific acts, see rule 70. Bills of review abolished, see rule 60. Certified copy of satisfaction of judgment, registration, see section 1963 of this title. Civil docket, entry of judgment in, see rule 79. Contempt by disobeying judgment directing performance of specific acts, see rule 70. Copies, clerk to keep correct copy of every final judgment, see rule 79. Costs - Absent defendant, setting aside judgment and pleading on payment of, see section 1655 of this title. Admiralty, taxation, see section 1925 of this title. Admissions on genuineness of documents or truth of factual matters, expenses on failure to make, see rule 37. Affidavits, see sections 1915 and 1924 of this title. Agencies of United States, see section 2408 of this title. Amount in controversy, removal of action against carrier to district court, see section 1445 of this title. Appeal, in forma pauperis proceeding, see section 1915 of this title. Briefs, taxation of printing as, see section 1923 of this title. Claimant in proceedings to condemn or forfeit property seized, see section 2465 of this title. Clerk of court of appeals, payment into Treasury, see section 711 of this title. Contempt of witness in foreign country failing to respond to subpoena, see section 1784 of this title. Copies of papers, taxation as, see section 1920 of this title. Counsel's liability for excessive, see section 1927 of this title. Default judgment including, see rule 55. Delay of entry of judgment for taxing of, see rule 58. Denial of to plaintiff where plaintiff recovers less than $10,000, see section 1332 of this title. Dismissal for lack of jurisdiction, see section 1919 of this title. District court, see section 1918 of this title. Docket fees, see sections 1920, 1922 and 1923 of this title. Exemplification of papers, taxation, see section 1920 of this title. Fees, taxation as, see section 1920 of this title. Filing and inclusion of bill of costs in judgment or decree, see section 1920 of this title. Fine and forfeitures for violating act of Congress, see section 1918 of this title. Forma pauperis proceeding, see section 1915 of this title. Garnishment by United States, see section 2405 of this title. Jurisdiction of district court, amount in controversy, see section 1332 of this title. Maritime cases, taxation, see section 1925 of this title. Offer of judgment affecting, see rule 68. Patent infringement action, see section 1928 of this title. Previously dismissed action, see rule 41. Removal of causes, bond to accompany petition for removal, see section 1446 of this title. Seamen's suits, see section 1916 of this title. Security not required of United States, see section 2408 of this title. Stay of execution and enforcement of judgment to obtain certiorari from Supreme Court, see section 2101 of this title. Summary judgment, affidavits presented in bad faith, see rule 56. Taxation, see sections 1920 and 1921 of this title. United States, liability for, see section 2412 of this title. United States marshal's fees, see section 1921 of this title. Verification of bill of, see section 1924 of this title. Witness fees, taxation as, see sections 1920 and 1922 of this title. Counterclaim or cross-claim judgment on, see rule 13. Court of Claims judgment finding plaintiff indebted to United States as judgment of district court, see section 2508 of this title. Court record of judgment lost or destroyed, enforcement where United States is interested, see section 1735 of this title. Declaratory judgment, see rule 57 and sections 2201 and 2202 of this title. Default judgment, see rule 55. Docketing judgment to constitute lien, see section 1962 of this title. Entry of judgment - New judgment on motion for new trial, see rule 59. On verdict by clerk, see rule 58. Extension of time for relief from judgment, see rule 6. Finality of judgment unaffected by motion for relief, see rule 60. Garnishment by United States against corporation, see section 2405 of this title. Index to be kept by clerk of every judgment, see rule 79. Indexing of judgment to constitute lien, see section 1962 of this title. Interest on judgments, see sections 1961 and 2411. Interrogatories, entry of judgment on, see rule 58. Judge to approve form of judgment, see rule 58. Lien, judgment as, see section 1962. Modification of judgment, errors not affecting substantial rights not ground for, see rule 61. Motion for judgment in action by United States against delinquents for public money, see section 2407 of this title. New trial, stay of proceedings to enforce judgment on motion for, see rule 62. Notation in docket as entry of judgment, see rule 58. Offer of judgment, see rule 68. Opening judgment on motion for new trial, see rule 59. Pleading judgment, see rule 9. Possession, enforcement of judgment directing delivery, see rule 70. Recording judgment to constitute lien, see section 1962 of this title. Registration of judgment, see sections 1962 and 1963 of this title. Relief from judgment, grounds for, see rule 60. Removal of causes, attachment or sequestration to hold goods or estate of defendant to answer judgment, see section 1450 of this title. Reopening judgment after verdict on motion for directed verdict, see rule 50. Sales under judgment, see section 1961 et seq. of this title. Security on stay of proceedings to enforce judgment, see rule 62. Special verdict, entry of judgment on, see rule 58. State law, staying enforcement of judgment in accordance to, see rule 62. Stay of - Judgment on less than all of multiple claims, see rule 62. Proceedings to enforce judgment, see rule 62. Stipulation for stay of execution of process in rem issued in admiralty case, see section 2464 of this title. Summary judgment - Procedure generally, see rule 56. Single judge of Three-Judge Court not to enter, see section 2284 of this title. Suspension of judgment by motion for relief, see rule 60. Third party tort liability to United States for hospital and medical care, see section 2651 et seq. of Title 42, The Public Health and Welfare. Time - Entry of judgment, see rule 58. Extension of, for relief from judgment, see rule 6. Motion for relief from judgment, see rule 60. Motion to alter or amend judgment, extension of, see rule 6. Proceedings to enforce judgment, see rule 62. United States - Payment of judgments against, see section 2414 of this title. Stay of judgment against, see rule 62. Tort claims against, judgment as bar to action against employee, see section 2676. Vacation of judgment, errors not affecting substantial rights not ground for, see rule 61. Verdict submitted on written interrogatories to jury, judgment on, see rule 49. Writs of coram nobis, coram vobis and audita querela abolished, see rule 60. ------DocID 37102 Document 964 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 55 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 55. Default -STATUTE- (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. (b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person. (2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). (d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). (e) Judgment Against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This represents the joining of the equity decree pro confesso ((former) Equity Rules 12 (Issue of Subpoena - Time for Answer), 16 (Defendant to Answer - Default - Decree Pro Confesso), 17 (Decree Pro Confesso to be Followed by Final Decree - Setting Aside Default), 29 (Defenses - How Presented), 31 (Reply - When Required - When Cause at Issue)) and the judgment by default now governed by U.S.C., Title 28, (former) Sec. 724 (Conformity act). For dismissal of an action for failure to comply with these rules or any order of the court, see rule 41(b). Note to Subdivision (a). The provision for the entry of default comes from the Massachusetts practice, 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 57. For affidavit of default, see 2 Minn.Stat. (Mason, 1927) Sec. 9256. Note to Subdivision (b). The provision in paragraph (1) for the entry of judgment by the clerk when plaintiff claims a sum certain is found in the N.Y.C.P.A. (1937) Sec. 485, in Calif.Code Civ.Proc. (Deering, 1937) Sec. 585(1), and in Conn.Practice Book (1934) Sec. 47. For provisions similar to paragraph (2), compare Calif.Code, supra, Sec. 585(2); N.Y.C.P.A. (1937) Sec. 490; 2 Minn.Stat. (Mason, 1927) Sec. 9256(3); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 411(2). U.S.C., Title 28, Sec. 785 (Action to recover forfeiture in bond) and similar statutes are preserved by the last clause of paragraph (2). Note to Subdivision (e). This restates substantially the last clause of U.S.C., Title 28, (former) Sec. 763 (Action against the United States under the Tucker Act). As this rule governs in all actions against the United States, U.S.C., Title 28, (former) Sec. 45 (Practice and procedure in certain cases under the interstate commerce laws) and similar statutes are modified insofar as they contain anything inconsistent therewith. NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE Note. The operation of Rule 55(b) (Judgment) is directly affected by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, Sec. 501 et seq. Section 200 of the Act (50 U.S.C. Appendix, Sec. 520) imposes specific requirements which must be fulfilled before a default judgment can be entered, e.g., Ledwith v. Storkan, D.Neb. 1942, 6 Fed.Rules Serv. 60b.24, Case 2, 2 F.R.D. 539, and also provides for the vacation of a judgment in certain circumstances. See discussion in Commentary, Effect of Conscription Legislation on the Federal Rules, 1940, 3 Fed.Rules Serv. 725; 3 Moore's Federal Practice, 1938, Cum.Supplement Sec. 55.02. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Demand for judgment, see rule 54. Failure to serve answers to interrogatories, entry of default judgment, see rule 37. Relief awarded on default, see rule 54. Summons as notice to defendant, judgment by default will be entered on failure to appear and defend, see rule 4. ------DocID 37103 Document 965 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 56 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 56. Summary Judgment -STATUTE- (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule is applicable to all actions, including those against the United States or an officer or agency thereof. Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it. During the first nine years after its adoption there, the records of New York county alone show 5,600 applications for summary judgments. Report of the Commission on the Administration of Justice in New York State (1934), p. 383. See also Third Annual Report of the Judicial Council of the State of New York (1937), p. 30. In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. In Michigan (3 Comp.Laws (1929) Sec. 14260) and Illinois (Ill.Rev.Stat. (1937) ch. 110, Sec. 181, 259.15, 259.16), it is not limited to liquidated demands. New York (N.Y.R.C.P. (1937) Rule 113; see also Rule 107) has brought so many classes of actions under the operation of the rule that the Commission on Administration of Justice in New York State (1934) recommend that all restrictions be removed and that the remedy be available 'in any action' (p. 287). For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423. Note to Subdivision (d). See Rule 16 (Pre-Trial Procedure; Formulating Issues) and the Note thereto. Note to Subdivisions (e) and (f). These are similar to rules in Michigan. Mich.Court Rules Ann. (Searl, 1933) Rule 30. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. This will normally operate to permit an earlier motion by the claimant than under the original rule, where the phrase 'at any time after the pleading in answer thereto has been served' operates to prevent a claimant from moving for summary judgment, even in a case clearly proper for its exercise, until a formal answer has been filed. Thus in Peoples Bank v. Federal Reserve Bank of San Francisco, N.D.Cal. 1944, 58 F.Supp. 25, the plaintiff's counter-motion for a summary judgment was stricken as premature, because the defendant had not filed an answer. Since Rule 12(a) allows at least 20 days for an answer, that time plus the 10 days required in Rule 56(c) means that under original Rule 56(a) a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment. An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further. In many cases this merely represents unnecessary delay. See United States v. Adler's Creamery, Inc., (C.C.A.2d, 1939), 107 F.2d 987. The changes are in the interest of more expeditious litigation. The 20-day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself makes a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides. Subdivision (c). The amendment of Rule 56(c), by the addition of the final sentence, resolves a doubt expressed in Sartor v. Arkansas Natural Gas Corp., 1944, 321 U.S. 620, 64 S.Ct. 724. See also Commentary, Summary Judgment as to Damages, 1944, 7 Fed.Rules Serv. 974; Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., (C.C.A.2d, 1945) 147 F.2d 399, cert. den., 1945, 325 U.S. 861, 65 S.Ct. 1201. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case. If the case is not fully adjudicated it may be dealt with as provided in subdivision (d) of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial. Subdivision (d). Rule 54(a) defines 'judgment' as including a decree and 'any order from which an appeal lies.' Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary 'judgment' is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact. See Leonard v. Socony-Vacuum Oil Co., C.C.A.7th, 1942, 130 F.2d 535; Biggins v. Oltmer Iron Works, C.C.A.7th, 1946, 154 F.2d 214; 3 Moore's Federal Practice, 1938. 3190-3192. Since interlocutory appeals are not allowed, except where specifically provided by statute, see 3 Moore, op. cit. supra, 3155-3156, this interpretation is in line with that policy, Leonard v. Socony-Vacuum Oil Co., supra. See also Audi Vision, Inc., v. RCA Mfg. Co., C.C.A.2d, 1943, 136 F.2d 621; Toomey v. Toomey, App.D.C. 1945, 80 U.S.App.D.C. 77, 149 F.2d 19; Biggins v. Oltmer Iron Works, supra; Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (c). By the amendment 'answers to interrogatories' are included among the materials which may be considered on motion for summary judgment. The phrase was inadvertently omitted from the rule, see 3 Barron & Holtzoff, Federal Practice and Procedure 159-60 (Wright ed. 1958), and the courts have generally reached by interpretation the result which will hereafter be required by the text of the amended rule. See Annot., 74 A.L.R.2d 984 (1960). Subdivision (e). The words 'answers to interrogatories' are added in the third sentence of this subdivision to conform to the amendment of subdivision (c). The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. In this situation Third Circuit cases have taken the view that summary judgment must be denied, at least if the averments are 'well-pleaded,' and not suppositious, conclusory, or ultimate. See Frederick Hart & Co., Inc. v. Recordgraph Corp., 169 F.2d 580 (3d Cir. 1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (3d Cir. 1958); United States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc., 191 F.Supp. 383 (D.Del. 1961); Jamison v. Pennsylvania Salt Mfg. Co., 22 F.R.D. 238 (W.D.Pa. 1958); Bunny Bear, Inc. v. Dennis Mitchell Industries, 139 F.Supp. 542 (E.D.Pa. 1956); Levy v. Equitable Life Assur. Society, 18 F.R.D. 164 (E.D.Pa. 1955). The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. See 6 Moore's Federal Practice 2069 (2d ed. 1953); 3 Barron & Holtzoff, supra, Sec. 1235.1. It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment. The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary. Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Dismissal of action prior to service of motion for summary judgment, see rule 41. Findings of fact and conclusions of law unnecessary, see rule 52. Injunctions, single judge not to enter summary judgment, see section 2284 of this title. Motions treated as for summary judgment - Dismiss for failure of pleading to state a claim upon which relief can be granted, see rule 12. Judgment on the pleadings, see rule 12. ------DocID 37104 Document 966 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 57 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 57. Declaratory Judgments -STATUTE- The procedure for obtaining a declaratory judgment pursuant to Title 28, U.S.C., Sec. 2201, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The fact that a declaratory judgment may be granted 'whether or not further relief is or could be prayed' indicates that declaratory relief is alternative or cumulative and not exclusive or extraordinary. A declaratory judgment is appropriate when it will 'terminate the controversy' giving rise to the proceeding. Inasmuch as it often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion, as provided for in California (Code Civ.Proc. (Deering, 1937) Sec. 1062a), Michigan (3 Comp.Laws (1929) Sec. 13904), and Kentucky (Codes (Carroll, 1932) Civ.Pract. Sec. 639a-3). The 'controversy' must necessarily be 'of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts.' Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688, 699 (1936). The existence or nonexistence of any right, duty, power, liability, privilege, disability, or immunity or of any fact upon which such legal relations depend, or of a status, may be declared. The petitioner must have a practical interest in the declaration sought and all parties having an interest therein or adversely affected must be made parties or be cited. A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case, but general ordinary or extraordinary legal remedies, whether regulated by statute or not, are not deemed special statutory proceedings. When declaratory relief will not be effective in settling the controversy, the court may decline to grant it. But the fact that another remedy would be equally effective affords no ground for declining declaratory relief. The demand for relief shall state with precision the declaratory judgment desired, to which may be joined a demand for coercive relief, cumulatively or in the alternative; but when coercive relief only is sought but is deemed ungrantable or inappropriate, the court may sua sponte, if it serves a useful purpose, grant instead a declaration of rights. Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170 (1933). Written instruments, including ordinances and statutes, may be construed before or after breach at the petition of a properly interested party, process being served on the private parties or public officials interested. In other respects the Uniform Declaratory Judgment Act affords a guide to the scope and function of the Federal act. Compare Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000 (1937); Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191 (1933); Gully, Tax Collector v. Interstate Natural Gas Co., 82 F.2d 145 (C.C.A.5th, 1936); Ohio Casualty Ins. Co. v. Plummer, 13 F.Supp. 169 (S.D.Tex., 1935); Borchard, Declaratory Judgments (1934), passim. 1948 AMENDMENT The amendment effective October 1949 substituted the reference to 'Title 28, U.S.C., Sec. 2201' in the first sentence for the reference to 'Section 274(d) of the Judicial Code, as amended, U.S.C., Title 28, Sec. 400'. -CROSS- CROSS REFERENCES Answers to written interrogatories to jury, see rule 49. Assignment of cases for trial, see rule 40. Creation of remedy and further relief in declaratory judgment actions, see sections 2201 and 2202 of this title. Jury trial and advisory jury, see rules 38 and 39. ------DocID 37105 Document 967 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 58 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 58. Entry of Judgment -STATUTE- Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See Wis.Stat. (1935) Sec. 270.31 (judgment entered forthwith on verdict of jury unless otherwise ordered), Sec. 270.65 (where trial is by the court, entered by direction of the court), Sec. 270.63 (entered by clerk on judgment on admitted claim for money). Compare 1 Idaho Code Ann. (1932) Sec. 7-1101, and 4 Mont.Rev.Codes Ann. (1935) Sec. 9403, which provides that judgment in jury cases be entered by clerk within 24 hours after verdict unless court otherwise directs. Conn. Practice Book (1934) Sec. 200, provides that all judgments shall be entered within one week after rendition. In some States such as Washington, 2 Rev.Stat.Ann. (Remington, 1932) Sec. 431, in jury cases the judgment is entered two days after the return of verdict to give time for making motion for new trial; Sec. 435 (ibid.), provides that all judgments shall be entered by the clerk, subject to the court's direction. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The reference to Rule 54(b) is made necessary by the amendment of that rule. Two changes have been made in Rule 58 in order to clarify the practice. The substitution of the more inclusive phrase 'all relief be denied' for the words 'there be no recovery', makes it clear that the clerk shall enter the judgment forthwith in the situations specified without awaiting the filing of a formal judgment approved by the court. The phrase 'all relief be denied' covers cases such as the denial of a bankrupt's discharge and similar situations where the relief sought is refused but there is literally no denial of a 'recovery'. The addition of the last sentence in the rule emphasizes that judgments are to be entered promptly by the clerk without waiting for the taxing of costs. Certain district court rules, for example, Civil Rule 22 of the Southern District of New York - until its annulment Oct. 1, 1945, for conflict with this rule - and the like rule of the Eastern District of New York, are expressly in conflict with this provision, although the federal law is of long standing and well settled. Fowler v. Hamill, 1891, 139 U.S. 549, 11 S.Ct. 663; Craig v. The Hartford, C.C.Cal. 1856, Fed.Cas.No. 3,333; Tuttle v. Claflin, C.C.A.2d, 1895, 60 Fed. 7, cert. den., 1897, 166 U.S. 721, 17 S.Ct. 992; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F.R. Co., C.C.A.2d, 1897, 84 Fed. 213; Stallo v. Wagner, C.C.A.2d, 1917, 245 Fed. 636, 639-40; Brown v. Parker, C.C.A.8th, 1899, 97 Fed. 446; Allis-Chalmers v. United States, C.C.A.7th, 1908, 162 Fed. 679. And this applies even though state law is to the contrary. United States v. Nordbye, C.C.A.8th, 1935, 75 F.2d 744, 746, cert. den., 1935, 296 U.S. 572, 56 S.Ct. 103. Inasmuch as it has been held that failure of the clerk thus enter judgment is a 'misprision' 'not to be excused', The Washington, C.C.A.2d, 1926, 16 F.2d 206, such a district court rule may have serious consequences for a district court clerk. Rules of this sort also provide for delay in entry of the judgment contrary to Rule 58. See Commissioner of Internal Revenue v. Bedford's Estate, 1945, 325 U.S. 283, 65 S.Ct. 1157. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Under the present rule a distinction has sometimes been made between judgments on general jury verdicts, on the one hand, and, on the other, judgments upon decisions of the court that a party shall recover only money or costs or that all relief shall be denied. In the first situation, it is clear that the clerk should enter the judgment without awaiting a direction by the court unless the court otherwise orders. In the second situation it was intended that the clerk should similarly enter the judgment forthwith upon the court's decision; but because of the separate listing in the rule, and the use of the phrase 'upon receipt . . . of the direction,' the rule has sometimes been interpreted as requiring the clerk to await a separate direction of the court. All these judgments are usually uncomplicated, and should be handled in the same way. The amended rule accordingly deals with them as a single group in clause (1) (substituting the expression 'only a sum certain' for the present expression 'only money'), and requires the clerk to prepare, sign, and enter them forthwith, without awaiting court direction, unless the court makes a contrary order. (The clerk's duty is ministerial and may be performed by a deputy clerk in the name of the clerk. See 28 U.S.C. Sec. 956; cf. Gilbertson v. United States, 168 Fed. 672 (7th Cir. 1909).) The more complicated judgments described in clause (2) must be approved by the court before they are entered. Rule 58 is designed to encourage all reasonable speed in formulating and entering the judgment when the case has been decided. Participation by the attorneys through the submission of forms of judgment involves needless expenditure of time and effort and promotes delay, except in special cases where counsel's assistance can be of real value. See Matteson v. United States, 240 F.2d 517, 518-19 (2d Cir. 1956). Accordingly, the amended rule provides that attorneys shall not submit forms of judgment unless directed to do so by the court. This applies to the judgments mentioned in clause (2) as well as clause (1). Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e.g., 'the plaintiff's motion (for summary judgment) is granted,' see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of judgment was effective, starting the time running for postverdict motions and for the purpose of appeal. See id.; and compare Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5th Cir. 1961); United States v. Higginson, 238 F.2d 439 (1st Cir. 1956); Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580 (3d Cir. 1960); Sears v. Austin, 282 F.2d 340 (9th Cir. 1960), with Matteson v. United States, supra; Erstling v. Southern Bell Tel. & Tel. Co., 255 F.2d 93 (5th Cir. 1958); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Beacon Fed. S. & L. Assn. v. Federal Home L. Bank Bd., 266 F.2d 246 (7th Cir.), cert. denied, 361 U.S. 823, 80 S.Ct. 70, 4 L.Ed.2d 67 (1959); Ram v. Paramount Film D. Corp., 278 F.2d 191 (4th Cir. 1960). The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document - distinct from any opinion or memorandum - which provides the basis for the entry of judgment. That judgments shall be on separate documents is also indicated in Rule 79(b); and see General Rule 10 of the U.S. District Courts for the Eastern and Southern Districts of New York; Ram v. Paramount Film D. Corp., supra, at 194. See the amendment of Rule 79(a) and the new specimen forms of judgment, Forms 31 and 32. See also Rule 55(b)(1) and (2) covering the subject of judgments by default. -CROSS- CROSS REFERENCES General verdict accompanied by answers to interrogatories by jury, see rule 49. Judgment for particular claim or counterclaim, see rule 54. Notation of entry of judgment, see rule 79. Notice of entry of judgment, see rule 77. Time for new trial, see rule 59. ------DocID 37106 Document 968 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 59 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 59. New Trials; Amendment of Judgments -STATUTE- (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment. (c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. (d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor. (e) Motion To Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule represents an amalgamation of the petition for rehearing of (former) Equity Rule 69 (Petition for Rehearing) and the motion for new trial of U.S.C., Title 28, Sec. 391 (see 2111) (New trials; harmless error), made in the light of the experience and provision of the code States. Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 656-663a, U.S.C., Title 28, Sec. 391 (see 2111) (New trials; harmless error) is thus substantially continued in this rule. U.S.C., Title 28, (former) Sec. 840 (Executions; stay on conditions) is modified insofar as it contains time provisions inconsistent with Subdivision (b). For the effect of the motion for new trial upon the time for taking an appeal see Morse v. United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518 (1926); Aspen Mining and Smelting Co. v. Billings, 150 U.S. 31, 14 S.Ct. 4, 37 L.Ed. 986 (1893). For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931); Schuerholz v. Roach, 58 F.2d 32 (C.C.A.4th, 1932); Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann.Cas.1912D, 588 (1912) (sustaining and recommending the practice and citing Federal cases and cases in accord from about sixteen States and contra from three States). The procedure in several States provides specifically for partial new trials. Ariz.Rev.Code Ann. (Struckmeyer, 1928) Sec. 3852; Calif.Code Civ.Proc. (Deering, 1937) Sec. 657, 662; Ill.Rev.Stat. (1937) ch. 110, Sec. 216 (par. (f)); Md.Ann.Code (Bagby, 1924) Art. 5, Sec. 25, 26; Mich.Court Rules Ann. (Searl, 1933) Rule 47, Sec. 2; Miss.Sup.Ct. Rule 12, 161 Miss. 903, 905 (1931); N.J.Sup.Ct. Rules 131, 132, 147, 2 N.J.Misc. 1197, 1246-1251, 1255 (1924); 2 N.D.Comp.Laws Ann. (1913), Sec. 7844, as amended by N.D.Laws 1927, ch. 214. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (b). With the time for appeal to a circuit court of appeals reduced in general to 30 days by the proposed amendment of Rule 73(a), the utility of the original 'except' clause, which permits a motion for a new trial on the ground of newly discovered evidence to be made before the expiration of the time for appeal, would have been seriously restricted. It was thought advisable, therefore, to take care of this matter in another way. By amendment of Rule 60(b), newly discovered evidence is made the basis for relief from a judgment, and the maximum time limit has been extended to one year. Accordingly the amendment of Rule 59(b) eliminates the 'except' clause and its specific treatment of newly discovered evidence as a ground for a motion for new trial. This ground remains, however, as a basis for a motion for new trial served not later than 10 days after the entry of judgment. See also Rule 60(b). As to the effect of a motion under subdivision (b) upon the running of appeal time, see amended Rule 73(a) and Note. Subdivision (e). This subdivision has been added to care for a situation such as that arising in Boaz v. Mutual Life Ins. Co. of New York, C.C.A.8th, 1944, 146 F.2d 321, and makes clear that the district court possesses the power asserted in that case to alter or amend a judgment after its entry. The subdivision deals only with alteration or amendment of the original judgment in a case and does not relate to a judgment upon motion as provided in Rule 50(b). As to the effect of a motion under subdivision (e) upon the running of appeal time, see amended Rule 73(a) and Note. The title of rule 59 has been expanded to indicate the inclusion of this subdivision. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT By narrow interpretation of Rule 59(b) and (d), it has been held that the trial court is without power to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion but perceived and relied on by the trial court sua sponte. Freid v. McGrath, 133 F.2d 350 (D.C.Cir. 1942); National Farmers Union Auto. & Cas. Co. v. Wood, 207 F.2d 659 (10th Cir. 1953); Bailey v. Slentz, 189 F.2d 406 (10th Cir. 1951); Marshall's U.S. Auto Supply, Inc. v. Cashman, 111 F.2d 140 (10th Cir. 1940), cert. denied, 311 U.S. 667 (1940); but see Steinberg v. Indemnity Ins. Co., 36 F.R.D. 253 (E.D.La. 1964). The result is undesirable. Just as the court has power under Rule 59(d) to grant a new trial of its own initiative within the 10 days, so it should have power, when an effective new trial motion has been made and is pending, to decide it on grounds thought meritorious by the court although not advanced in the motion. The second sentence added by amendment to Rule 59(d) confirms the court's power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. See 6 Moore's Federal Practice, par. 59.09(2) (2d ed. 1953). In considering whether a given ground has or has not been advanced in the motion made by the party, it should be borne in mind that the particularity called for in stating the grounds for a new trial motion is the same as that required for all motions by Rule 7(b)(1). The latter rule does not require ritualistic detail but rather a fair indication to court and counsel of the substance of the grounds relied on. See Lebeck v. William A. Jarvis Co., 250 F.2d 285 (3d Cir. 1957); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961); General Motors Corp. v. Perry, 303 F.2d 544 (7th Cir. 1962); cf. Grimm v. California Spray-Chemical Corp., 264 F.2d 145 (9th Cir. 1959); Cooper v. Midwest Feed Products Co., 271 F.2d 177 (8th Cir. 1959). -CROSS- CROSS REFERENCES Answers to written interrogatories inconsistent with general verdict, as ground for ordering new trial, see rule 49. Claims Court, grounds for new trial, see section 2515 of this title. Disability of judge preventing performance of duties as ground for new trial, see rule 63. Extension of time for motion, see rule 6. Harmless error not ground for new trial, see rule 61. Joinder of motion with motion to set aside verdict or judgment on motion for directed verdict, see rule 50. Motion to amend findings or make additional findings, see rule 52. Stay of execution or proceedings to enforce judgment on motion for new trial, see rule 62. ------DocID 37107 Document 969 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 60 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 60. Relief From Judgment or Order -STATUTE- (a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). See (former) Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); Mich.Court Rules Ann. (Searl, 1933) Rule 48, Sec. 3; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec. 89-2301(3). For an example of a very liberal provision for the correction of clerical errors and for amendment after judgment, see Va.Code Ann. (Michie, 1936) Sec. 6329, 6333. Note to Subdivision (b). Application to the court under this subdivision does not extend the time for taking an appeal, as distinguished from the motion for new trial. This section is based upon Calif.Code Civ.Proc. (Deering, 1937) Sec. 473. See also N.Y.C.P.A. (1937) Sec. 108; 2 Minn.Stat. (Mason, 1927) Sec. 9283. For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure, pages 760-765, compare 639; and Simkins, Federal Practice, ch. CXXI (pp. 820-830) and ch. CXXII (pp. 831-834), compare Sec. 214. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The amendment incorporates the view expressed in Perlman v. 322 West Seventy-Second Street Co., Inc., C.C.A.2d, 1942, 127 F.2d 716; 3 Moore's Federal Practice, 1938, 3276, and further permits correction after docketing, with leave of the appellate court. Some courts have thought that upon the taking of an appeal the district court lost its power to act. See Schram v. Safety Investment Co., E.D.Mich. 1942, 45 F.Supp. 636; also Miller v. United States, C.C.A.7th, 1940, 114 F.2d 267. Subdivision (b). When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field. Since the rules have been in force, decisions have been rendered that the use of bills of review, coram nobis, or audita querela, to obtain relief from final judgments is still proper, and that various remedies of this kind still exist although they are not mentioned in the rules and the practice is not prescribed in the rules. It is obvious that the rules should be complete in this respect and define the practice with respect to any existing rights or remedies to obtain relief from final judgments. For extended discussion of the old common law writs and equitable remedies, the interpretation of Rule 60, and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623. See also 3 Moore's Federal Practice, 1938, 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, 1941, 4 Fed.Rules Serv. 942, 945; Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den., 1944, 323 U.S. 712, 65 S.Ct. 37. The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623, 659-682. It endeavored then to amend the rules to permit, either by motion or by independent action, the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules, and the amendment concludes with a provision abolishing the use of bills of review and the other common law writs referred to, and requiring the practice to be by motion or by independent action. To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal. If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den., 1944, 323 U.S. 712, 65 S.Ct. 37; Fraser v. Doing, App.D.C. 1942, 130 F.2d 617; Jones v. Watts, C.C.A.5th, 1944, 142 F.2d 575; Preveden v. Hahn, S.D.N.Y. 1941, 36 F.Supp. 952; Cavallo v. Agwilines, Inc., S.D.N.Y. 1942, 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States, D.Mass. 1942, 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis v. Oliver, W.D.Okla. 1945, 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623, 631-653; 3 Moore's Federal Practice, 1938, 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief from Judgment, op. cit. supra. Cf. Norris v. Camp, C.C.A.10th, 1944, 144 F.2d 1; Reed v. South Atlantic Steamship Co. of Delaware, D.Del. 1942, 2 F.R.D. 475, 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens, D.D.C. 1945, 8 Fed.Rules Serv. 60b.51, Case 1, 73 W.L.R. 209. The transposition of the words 'the court' and the addition of the word 'and' at the beginning of the first sentence are merely verbal changes. The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires. The qualifying pronoun 'his' has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his mistake, inadvertence, etc. Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b). There is no sound reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a 'reasonable time,' which might be after the time stated in the rule had run. Fiske v. Buder, (C.C.A.8th, 1942), 125 F.2d 841; see also inferentially Bucy v. Nevada Construction Co., (C.C.A.9th, 1942), 125 F.2d 213. On the other hand, it has been suggested that in view of the fact that fraud was omitted from original Rule 60(b) as a ground for relief, an independent action was the only proper remedy. Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, 1941, 4 Fed.Rules Serv. 942, 945. The amendment settles this problem by making fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a basis for relief by independent action insofar as established doctrine permits. See Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623, 653-659; 3 Moore's Federal Practice, 1938, 3267 et seq. And the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co., 1944, 322 U.S. 238, 64 S.Ct. 997. The time limit for relief by motion in the court and in the action in which the judgment was rendered has been enlarged from six months to one year. It should be noted that Rule 60(b) does not assume to define the substantive law as to the grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain relief. It should also be noted that under Sec. 200(4) of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, Sec. 501 et seq. (Sec. 520(4)), a judgment rendered in any action or proceeding governed by the section may be vacated under certain specified circumstances upon proper application to the court. 1948 AMENDMENT The amendment effective October 1949 substituted the reference to 'Title 28, U.S.C., Sec. 1655' in the next to the last sentence of subdivision (b), for the reference to 'Section 57 of the Judicial Code, U.S.C., Title 28, Sec. 118'. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Enlargement of time under this rule prohibited, see rule 6. Power of court unaffected by expiration of term, see rule 6. Stay of proceedings pending disposition of motion under this rule, see rule 62. Time for motion for new trial, see rule 59. ------DocID 37108 Document 970 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 61 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 61. Harmless Error -STATUTE- No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES A combination of U.S.C., Title 28, Sec. 391 (see 2111) (New trials; harmless error) and (former) 777 (Defects of form; amendments) with modifications. See McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205 (1936). Compare (former) Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); and last sentence of (former) Equity Rule 46 (Trial - Testimony Usually Taken in Open Court - Rulings on Objections to Evidence). For the last sentence see the last sentence of (former) Equity Rule 19 (Amendments Generally). -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Grounds for new trial, see rule 33, Title 18, Appendix, Crimes and Criminal Procedure. Harmless and plain error, see rule 52. CROSS REFERENCES Admissibility of evidence generally, see rule 43. Formal exceptions unnecessary, see rule 46. Grounds for new trial, rule 59. Harmless error on appeal or certiorari, see section 2111 of this title. Instructions to jury, see rule 51. Motion for judgment notwithstanding verdict, see rule 50. Motion to vacate judgment or order, see rule 60. Power of appellate court to affirm, modify, reverse, and remand case, see section 2106 of this title. ------DocID 37109 Document 971 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 62 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 62. Stay of Proceedings To Enforce a Judgment -STATUTE- (a) Automatic Stay; Exceptions - Injunctions, Receiverships, and Patent Accountings. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letters patent, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal. (b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b). (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. If the judgment appealed from is rendered by a district court of three judges specially constituted pursuant to a statute of the United States, no such order shall be made except (1) by such court sitting in open court or (2) by the assent of all the judges of such court evidenced by their signatures to the order. (d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. (e) Stay in Favor of the United States or Agency Thereof. When an appeal is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant. (f) Stay According to State Law. In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled, in the district court held therein, to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state. (g) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered. (h) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The first sentence states the substance of the last sentence of U.S.C., Title 28, (former) Sec. 874 (Supersedeas). The remainder of the subdivision states the substance of the last clause of U.S.C., Title 28, (former) Sec. 227 (Appeals in proceedings for injunctions; receivers; and admiralty), and of (former) Sec. 227a (Appeals in suits in equity for infringement of letters patent for inventions; stay of proceedings for accounting), but extended to include final as well as interlocutory judgments. Note to Subdivision (b). This modifies U.S.C., Title 28, (former) Sec. 840 (Executions; stay on conditions). Note to Subdivision (c). Compare (former) Equity Rule 74 (Injunction Pending Appeal); and Cumberland Telephone and Telegraph Co. v. Louisiana Public Service Commission, 260 U.S. 212, 43 S.Ct. 75, 67 L.Ed. 217 (1922). See Simkins, Federal Practice (1934) Sec. 916 in regard to the effect of appeal on injunctions and the giving of bonds. See U.S.C., (former) Title 6 (Official and Penal Bonds) for bonds by surety companies. For statutes providing for a specially constituted district court of three judges, see: U.S.C., Title 7: Sec. 217 (Proceedings for suspension of orders of Secretary of Agriculture under Stockyards Act) - by reference. Sec. 499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission to orders of Secretary of Agriculture under Perishable Commodities Act) - by reference. U.S.C., Title 15: Sec. 28 (Antitrust laws; suits against monopolies expedited) U.S.C., Title 28: Sec. 47 (now 2325) (Injunctions as to orders of Interstate Commerce Commission, etc.) Sec. 380 (now 2284) (Injunctions; alleged unconstitutionality of State statutes.) Sec. 380a (now 2284) (Same; constitutionality of federal statute) U.S.C., Title 49: Sec. 44 (former) (Suits in equity under interstate commerce laws; expedition of suits) Note to Subdivision (d). This modifies U.S.C., Title 28, (former) Sec. 874 (Supersedeas). See Rule 36(2), Rules of the Supreme Court of the United States, which governs supersedeas bonds on direct appeals to the Supreme Court, and Rule 73(d), of these rules, which governs supersedeas bonds on appeals to a circuit court of appeals. The provisions governing supersedeas bonds in both kinds of appeals are substantially the same. Note to Subdivision (e). This states the substance of U.S.C., Title 28, Sec. 870 (now 2408) (Bond; not required of the United States). Note to Subdivision (f). This states the substance of U.S.C., Title 28, (former) Sec. 841 (Executions; stay of one term) with appropriate modification to conform to the provisions of Rule 6(c) as to terms of court. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). (This subdivision not amended). Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, Sec. 501 et seq. (Sec. 523, 524), provide under certain circumstances for the issuance and continuance of a stay of execution of any judgment or order entered against a person in military service. See Bowsman v. Peterson, D.Neb. 1942, 45 F.Supp. 741. Section 201 of the Act (50 U.S.C. App. Sec. 521) permits under certain circumstances the issuance of a stay of any action or proceeding at any stage thereof, where either the plaintiff or defendant is a person in military service. See also Note to Rule 64 herein. Subdivision (b). This change was necessary because of the proposed addition to Rule 59 of subdivision (e). Subdivision (h). In proposing to revise Rule 54(b), the Committee thought it advisable to include a separate provision in Rule 62 for stay of enforcement of a final judgment in cases involving multiple claims. 1948 AMENDMENT The amendment effective October 1949 deleted at the end of subdivision (g) the following language which originally appeared after the word 'entered': 'and these rules do not supersede the provisions of Section 210 of the Judicial Code, as amended, U.S.C., Title 28, Sec. 47a, or of other statutes of the United States to the effect that stays pending appeals to the Supreme Court may be granted only by that court or a justice thereof.' 1961 AMENDMENT The amendment adopted Apr. 17, 1961, eliminated words 'on some but not all of the claims presented in the action' which followed 'final judgment'. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- CROSS REFERENCES Deposit of bonds or notes of United States in lieu of surety, see section 9303 of Title 31, Money and Finance. Execution, see rule 69. Security not required of United States, see section 2408 of this title. ------DocID 37110 Document 972 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 63 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VII -HEAD- Rule 63. Disability of a Judge -STATUTE- If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that such other judge cannot perform those duties because such other judge did not preside at the trial or for any other reason, such other judge may in such other judge's discretion grant a new trial. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule adapts and extends the provisions of U.S.C., Title 28, (former) Sec. 776 (Bill of exceptions; authentication; signing of by judge) to include all duties to be performed by the judge after verdict or judgment. The statute is therefore superseded. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Disability of judge, see rule 25, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Findings of fact and conclusions of law, see rule 52. New trial, see rule 59. ------DocID 37111 Document 973 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE VIII -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS ------DocID 37112 Document 974 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 64 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 64. Seizure of Person or Property -STATUTE- At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule adopts the existing Federal law, except that it specifies the applicable State law to be that of the time when the remedy is sought. Under U.S.C., Title 28, (former) Sec. 726 (Attachments as provided by State laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872, provided by the applicable State law, and the district courts might, from time to time, by general rules, adopt such State laws as might be in force. This statute is superseded as are district court rules which are rendered unnecessary by the rule. Lis pendens. No rule concerning lis pendens is stated, for this would appear to be a matter of substantive law affecting State laws of property. It has been held that in the absence of a State statute expressly providing for the recordation of notice of the pendency of Federal actions, the commencement of a Federal action is notice to all persons affected. King v. Davis, 137 Fed. 198 (W.D.Va., 1903). It has been held, however, that when a State statute does so provide expressly, its provisions are binding. United States v. Calcasieu Timber Co., 236 Fed. 196 (C.C.A.5th, 1916). For statutes of the United States on attachment, see e.g.: U.S.C., Title 28: Sec. 737 (now 2710) (Attachment in postal suits) Sec. 738 (now 2711) (Attachment; application for warrant) Sec. 739 (now 2712) (Attachment; issue of warrant) Sec. 740 (now 2713) (Attachment; trial of ownership of property) Sec. 741 (now 2714) (Attachment; investment of proceeds of attached property) Sec. 742 (now 2715) (Attachment; publication of attachment) Sec. 743 (now 2716) (Attachment; personal notice of attachment) Sec. 744 (now 2717) (Attachment; discharge; bond) Sec. 745 (former) (Attachment; accrued rights not affected) Sec. 746 (Attachments dissolved in conformity with State laws) For statutes of the United States on garnishment, see e.g.: U.S.C., Title 28: Sec. 748 (now 2405) (Garnishees in suits by United States against a corporation) Sec. 749 (now 2405) (Same; issue tendered on denial of indebtedness) Sec. 750 (now 2405) (Same; garnishee failing to appear) For statutes of the United States on arrest, see e.g.: U.S.C., Title 28: Sec. 376 (now 1651) (Writs of ne exeat) Sec. 755 (former) (Special bail in suits for duties and penalties) Sec. 756 (former) (Defendant giving bail in one district and committed in another) Sec. 757 (former) (Defendant giving bail in one district and committed in another; defendant held until judgment in first suit) Sec. 758 (former) (Bail and affidavits; taking by commissioners) Sec. 759 (former) (Calling of bail in Kentucky) Sec. 760 (former) (Clerks may take bail de bene esse) Sec. 843 (now 2007) (Imprisonment for debt) Sec. 844 (now 2007) (Imprisonment for debt; discharge according to State laws) Sec. 845 (now 2007) (Imprisonment for debt; jail limits) For statutes of the United States on replevin, see, e.g.: U.S.C., Title 28: Sec. 747 (now 2463) (Replevy of property taken under revenue laws) NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE Note. Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, Sec. 501 et seq. (Sec. 523, 524), provide under certain circumstances for the issuance and continuance of a stay of the execution of any judgment entered against a person in military service, or the vacation or stay of any attachment or garnishment directed against such person's property, money, or debts in the hands of another. See also Note to Rule 62 herein. -CROSS- CROSS REFERENCES Execution, see rule 69. ------DocID 37113 Document 975 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 65 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 65. Injunctions -STATUTE- (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Employer and Employee; Interpleader; Constitutional Cases. These rules do not modify any statute of the United States relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of Title 28, U.S.C., Sec. 2361, relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or Title 28, U.S.C., Sec. 2284, relating to actions required by Act of Congress to be heard and determined by a district court of three judges. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivisions (a) and (b). These are taken from U.S.C., Title 28, (former) Sec. 381 (Injunctions; preliminary injunctions and temporary restraining orders). Note to Subdivision (c). Except for the last sentence, this is substantially U.S.C., Title 28, (former) Sec. 382 (Injunctions; security on issuance of). The last sentence continues the following and similar statutes which expressly except the United States or an officer or agency thereof from such security requirements: U.S.C., Title 15, Sec. 77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission). It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not. See U.S.C., (former) Title 6 (Official and Penal Bonds) for bonds by surety companies. Note to Subdivision (d). This is substantially U.S.C., Title 28, (former) Sec. 383 (Injunctions; requisites of order; binding effect). Note to Subdivision (e). The words 'relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee' are words of description and not of limitation. Compare (former) Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes. For other statutes dealing with injunctions which are continued, see e.g.: U.S.C., Title 28: Sec. 46 (now 2324) (Suits to enjoin orders of Interstate Commerce Commission to be against United States) Sec. 47 (now 2325) (Injunctions as to orders of Interstate Commerce Commission; appeal to Supreme Court; time for taking) Sec. 378 (former) (Injunctions; when granted) Sec. 379 (now 2283) (Injunctions; stay in State courts) Sec. 380 (now 1253, 2101, 2281, 2284) (Injunctions; alleged unconstitutionality of State statutes; appeal to Supreme Court) Sec. 380a (now 1253, 2101, 2281, 2284) (Injunctions; constitutionality of Federal statute; application for hearing; appeal to Supreme Court) U.S.C., Title 7: Sec. 216 (Court proceedings to enforce orders; injunction) Sec. 217 (Proceedings for suspension of orders) U.S.C., Title 15: Sec. 4 (Jurisdiction of courts; duty of district attorney; procedure) Sec. 25 (Restraining violations; procedure) Sec. 26 (Injunctive relief for private parties; exceptions) Sec. 77t(b) (Injunctions and prosecution of offenses) NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley, 1881, 105 U.S. 433, 466. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73(f) for a similar situation. The paragraph added to Rule 65(c) insures this result and is in the interest of efficiency. There is no reason why Rules 65(c) and 73(f) should operate differently. Compare Sec. 50, sub. n of the Bankruptcy Act, 11 U.S.C. Sec. 78, sub. n, under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court. See 2 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 1853-1854. 1948 AMENDMENT The amendment effective October 1949, changed subdivision (e) in the following respects: in the first clause the amendment substituted the words 'any statute of the United States' for the words 'the Act of October 15, 1914, ch. 323, Sec. 1 and 20 (38 Stat. 730), U.S.C., Title 29, Sec. 52 and 53, or the Act of March 23, 1932, ch. 90 (47 Stat. 70), U.S.C., Title 29, ch. 6'; in the second clause of subdivision (e) the amendment substituted the reference to 'Title 28, U.S.C., Sec. 2361' for the reference to 'Section 24(26) of the Judicial Code as amended, U.S.C., Title 28, Sec. 41(26)'; and the third clause was amended to read 'Title 28, U.S.C., Sec. 2284,' etc., as at present, instead of 'the Act of August 24, 1937, ch. 754, Sec. 3, relating to actions to enjoin the enforcement of acts of Congress.' NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Subdivision (a)(2). This new subdivision provides express authority for consolidating the hearing of an application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of evidence offered on the application will be relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases. The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties. Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction. The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception. Subdivision (b). In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. v. Transport Workers Union, 278 F.2d 693, 694 (3d Cir. 1960); Arvida Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir. 1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83 (2d Cir. 1961), cert. denied, 368 U.S. 986 (1962). Heretofore the first sentence of subdivision (b), in referring to a notice 'served' on the 'adverse party' on which a 'hearing' could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all. Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard. The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant. Subdivision (c). Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule 65.1. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Anti-trust laws, restraining violation, see section 4 of Title 15, Commerce and Trade. Appeals - District Courts to courts of appeals, see section 1292 of this title. Injunction pending, see rule 62. Interlocutory orders of district courts to courts of appeals, see section 1292 of this title. Appellate court's power to suspend, modify or grant pending appeal, see rule 62. Atomic Energy Act, enjoining violation of act or regulation, see section 2280 of Title 42, The Public Health and Welfare. Bond for injunction pending appeal, see rule 62. Clayton Act, violation of, see sections 25, 26 of Title 15, Commerce and Trade. Copyrights, injunction against infringement, see section 502 of Title 17, Copyrights. Fair Labor Standards Act, restraint of violations of regulations, see section 217 of Title 29, Labor. Findings of fact and conclusions of law, necessity for, see rule 52. Internal revenue, prohibition of suits to restrain assessment or collection, see section 7421 of Title 26, Internal Revenue Code. Labor-Management Relations Act - Petition by Attorney General to enjoin strike or lockout, see section 178 of Title 29, Labor. Restraining unfair labor practices, see sections 160, 161 of Title 29. Patent infringement, see section 283 of Title 35, Patents. Securities Act, actions to restrain violations, see section 77t of Title 15, Commerce and Trade. Securities Exchange Act, restraint of violations, see section 78u of Title 15. Three-Judge Court, composition of, see section 2284 of this title. Trade-marks and trade-names, infringement, see section 78u of Title 15, Commerce and Trade. ------DocID 37114 Document 976 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 65.1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 65.1. Security: Proceedings Against Sureties -STATUTE- Whenever these rules, including the Supplemental Rules for Certain Admiralty and Maritime Claims, require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See Note to Rule 65. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37115 Document 977 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 66 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 66. Receivers Appointed by Federal Courts -STATUTE- An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the district courts. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The title of Rule 66 has been expanded to make clear the subject of the rule, i.e., federal equity receivers. The first sentence added to Rule 66 prevents a dismissal by any party, after a federal equity receiver has been appointed, except upon leave of court. A party should not be permitted to oust the court and its officer without the consent of that court. See Civil Rule 31(e), Eastern District of Washington. The second sentence added at the beginning of the rule deals with suits by or against a federal equity receiver. The first clause thereof eliminates the formal ceremony of an ancillary appointment before suit can be brought by a receiver, and is in accord with the more modern state practice, and with more expeditious and less expensive judicial administration. 2 Moore's Federal Practice, 1938, 2088-2091. For the rule necessitating ancillary appointment, see Sterrett v. Second Nat. Bank, 1918, 248 U.S. 73, 39 S.Ct. 27; Kelley v. Queeney, W.D.N.Y. 1941, 41 F.Supp. 1015; see also McCandless v. Furlaud, 1934, 293 U.S. 67, 55 S.Ct. 42. This rule has been extensively criticized. First, Extraterritorial Powers of Receivers, 1932, 27 Ill.L.Rev. 271; Rose, Extraterritorial Actions by Receivers, 1933, 17 Minn.L.Rev. 704; Laughlin, The Extraterritorial Powers of Receivers, 1932, 45 Harv.L.Rev. 429; Clark and Moore, A New Federal Civil Procedure - II, Pleadings and Parties, 1935, 44 Yale L.J. 1291, 1312-1315; Note, 1932, 30 Mich.L.Rev. 1322. See also comment in Bicknell v. Lloyd-Smith, C.C.A.2d, 1940, 109 F.2d 527, cert. den., 1940, 311 U.S. 650, 61 S.Ct. 15. The second clause of the sentence merely incorporates the well-known and general rule that, absent statutory authorization, a federal receiver cannot be sued without leave of the court which appointed him, applied in the federal courts since Barton v. Barbour, 1881, 104 U.S. 126. See also 1 Clark on Receivers, 2d ed., Sec. 549. Under 28 U.S.C. Sec. 125 leave of court is unnecessary when a receiver is sued 'in respect of any act or transaction of his in carrying on the business' connected with the receivership property, but such suit is subject to the general equity jurisdiction of the court in which the receiver was appointed, so far as justice necessitates. Capacity of a state court receiver to sue or be sued in federal court is governed by Rule 17(b). The last sentence added to Rule 66 assures the application of the rules in all matters except actual administration of the receivership estate itself. Since this implicitly carries with it the applicability of those rules relating to appellate procedure, the express reference thereto contained in Rule 66 has been stricken as superfluous. Under Rule 81(a)(1) the rules do not apply to bankruptcy proceedings except as they may be made applicable by order of the Supreme Court. Rule 66 is applicable to what is commonly known as a federal 'chancery' or 'equity' receiver, or similar type of court officer. It is not designed to regulate or affect receivers in bankruptcy, which are governed by the Bankruptcy Act and the General Orders. Since the Federal Rules are applicable in bankruptcy by virtue of General Orders in Bankruptcy 36 and 37 (following section 53 of Title 11, U.S.C.) only to the extent that they are not inconsistent with the Bankruptcy Act or the General Orders, Rule 66 is not applicable to bankruptcy receivers. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 2.23-2.36. 1948 AMENDMENT The amendment effective October 1949 deleted a sentence which formerly appeared immediately following the first sentence and which read as follows: 'A receiver shall have the capacity to sue in any district court without ancillary appointment; but actions against a receiver may not be commenced without leave of the court appointing him except when authorized by a statute of the United States.' -CROSS- CROSS REFERENCES Receiver suable without leave of court, see section 959 of this title. ------DocID 37116 Document 978 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 67 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 67. Deposit in Court -STATUTE- In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C., Sec. 2041, and 2042; the Act of June 26, 1934, c. 756, Sec. 23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C., Title 31, Sec. 725v; (FOOTNOTE 1) or any like statute. The fund shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court. (FOOTNOTE 1) See References in Text note below. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug. 1, 1983.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule provides for deposit in court generally, continuing similar special provisions contained in such statutes as U.S.C., Title 28, Sec. 41(26) (now 1335, 1397, 2361) (Original jurisdiction of bills of interpleader, and of bills in the nature of interpleader). See generally Howard v. United States, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754 (1902); United States Supreme Court Admiralty Rules (1920), Rules 37 (Bringing Funds into Court), 41 (Funds in Court Registry), and 42 (Claims Against Proceeds in Registry). With the first sentence, compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 22, r. 1(1). 1948 AMENDMENT The amendment effective October 1949 substituted the reference to 'Title 28, U.S.C.A. Sec. 2041, and 2042' for the reference to 'Sections 995 and 996, Revised Statutes, as amended, U.S.C.A., Title 28, Sec. 851, 852.' The amendment also added the words 'as amended' following the citation of the Act of June 26, 1934, ch. 756, Sec. 23, and in the parenthetical citation immediately following, added the reference to '58 Stat. 845'. NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT Rule 67 has been amended in three ways. The first change is the addition of the clause in the first sentence. Some courts have construed the present rule to permit deposit only when the party making it claims no interest in the fund or thing deposited. E.g., Blasin-Stern v. Beech-Nut Life Savers Corp., 429 F.Supp. 533 (D. Puerto Rico 1975); Dinkins v. General Aniline & Film Corp., 214 F.Supp. 281 (S.D.N.Y. 1963). However, there are situations in which a litigant may wish to be relieved of responsibility for a sum or thing, but continue to claim an interest in all or part of it. In these cases the deposit-in-court procedure should be available; in addition to the advantages to the party making the deposit, the procedure gives other litigants assurance that any judgment will be collectable. The amendment is intended to accomplish that. The second change is the addition of a requirement that the order of deposit be served on the clerk of the court in which the sum or thing is to be deposited. This is simply to assure that the clerk knows what is being deposited and what his responsibilities are with respect to the deposit. The latter point is particularly important since the rule as amended contemplates that deposits will be placed in interest-bearing accounts; the clerk must know what treatment has been ordered for the particular deposit. The third change is to require that any money be deposited in an interest-bearing account or instrument approved by the court. -REFTEXT- REFERENCES IN TEXT Act of June 26, 1934, c. 756, Sec. 23, as amended (48 Stat. 1236, 58 Stat. 845), 31 U.S.C. Sec. 725v, referred to in text, was repealed by Pub. L. 97-258, Sec. 5(b), Sept. 13, 1982, 96 Stat. 1074, the first section of which enacted Title 31, Money and Finance. Insofar as not superseded by sections 2041 and 2042 of Title 28, Judiciary and Judicial Procedure, the Act of June 26, 1934, Sec. 23, as amended (31 U.S.C. 725v) was reenacted as sections 572a and 2043 of Title 28 by Pub. L. 97-258, Sec. 2(g)(3), (4). ------DocID 37117 Document 979 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 68 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 68. Offer of Judgment -STATUTE- At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See 2 Minn. Stat. (Mason, 1927) Sec. 9323; 4 Mont. Rev. Codes Ann. (1935) Sec. 9770; N.Y.C.P.A. (1937) Sec. 177. For the recovery of costs against the United States, see Rule 54(d). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible. The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits - as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues - whether there be a first, second or third trial - and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation. The phrase 'before the trial begins', in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co., C.C.A.7th, 1943, 136 F.2d 374, cert. den. 1943, 320 U.S. 749, 64 S.Ct. 53. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37118 Document 980 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 69 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 69. Execution -STATUTE- (a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held. (b) Against Certain Public Officers. When a judgment has been entered against a collector or other officer of revenue under the circumstances stated in Title 28, U.S.C., Sec. 2006, or against an officer of Congress in an action mentioned in the Act of March 3, 1875, ch. 130, Sec. 8 (18 Stat. 401), U.S.C., Title 2, Sec. 118, and when the court has given the certificate of probable cause for the officer's act as provided in those statutes, execution shall not issue against the officer or the officer's property but the final judgment shall be satisfied as provided in such statutes. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This follows in substance U.S.C., Title 28, (former) Sec. 727 (Executions as provided by State laws) and 729 (now Title 42, Sec. 1988) (Proceedings in vindication of civil rights), except that, as in the similar case of attachments (see note to Rule 64), the rule specifies the applicable State law to be that of the time when the remedy is sought, and thus renders unnecessary, as well as supersedeas, local district court rules. Statutes of the United States on execution, when applicable, govern under this rule. Among these are: U.S.C., Title 12: Sec. 91 (Transfers by bank and other acts in contemplation of insolvency) Sec. 632 (Jurisdiction of United States district courts in cases arising out of foreign banking jurisdiction where Federal reserve bank a party) U.S.C., Title 19: Sec. 199 (Judgments for customs duties, how payable) U.S.C., Title 26: Sec. 1610(a) (former) (Surrender of property subject to distraint) U.S.C., Title 28: Sec. 122 (now 1656) (Creation of new district or transfer of territory; lien) Sec. 350 (now 2101) (Time for making application for appeal or certiorari; stay pending application for certiorari) Sec. 489 (now 547) (District Attorneys; reports to Department of Justice) Sec. 574 (now 1921) (Marshals, fees enumerated) Sec. 786 (former) (Judgments for duties; collected in coin) Sec. 811 (now 1961) (Interest on judgments) Sec. 838 (former) (Executions; run in all districts of State) Sec. 839 (now 2413) (Executions; run in every State and Territory) Sec. 840 (former) (Executions; stay on conditions), as modified by Rule 62(b). Sec. 841 (former) (Executions; stay of one term), as modified by Rule 62(f) Sec. 842 (now 2006) (Executions; against officers of revenue in cases of probable cause), as incorporated in Subdivision (b) of this rule Sec. 843 (now 2007) (Imprisonment for debt) Sec. 844 (now 2007) (Imprisonment for debt; discharge according to State laws) Sec. 845 (now 2007) (Imprisonment for debt; jail limits) Sec. 846 (now 2005) (Fieri Facias; appraisal of goods; appraisers) Sec. 847 (now 2001) (Sales; real property under order or decree) Sec. 848 (now 2004) (Sales; personal property under order or decree) Sec. 849 (now 2002) (Sales; necessity of notice) Sec. 850 (now 2003) (Sales; death of marshall after levy or after sale) Sec. 869 (former) (Bond in former error and on appeal) as incorporated in Rule 73(c) Sec. 874 (former) (Supersedeas), as modified by Rules 62(d) and 73(d) U.S.C., Title 31: Sec. 195 (now 3715) (Purchase on execution) U.S.C., Title 33: Sec. 918 (Collection of defaulted payments) U.S.C., Title 49: Sec. 74(g) (former) (Causes of action arising out of Federal control of railroads; execution and other process) Special statutes of the United States on exemption from execution are also continued. Among these are: U.S.C., Title 2: Sec. 118 (Actions against officers of Congress for official acts) U.S.C., Title 5: Sec. 729 (see 8346, 8470) (Federal employees retirement annuities not subject to assignment, execution, levy, or other legal process) U.S.C., Title 10: Sec. 610 (now 3690, 8690) (Exemption of enlisted men from arrest on civil process) U.S.C., Title 22: Sec. 21(h) (see 4060) (Foreign service retirement and disability system; establishment; rules and regulations; annuities; nonassignable; exemption from legal process) U.S.C., Title 33: Sec. 916 (Assignment and exemption from claims of creditors) Longshoremen's and Harborworkers' Compensation Act) U.S.C., Title 38: Sec. 54 (see 3101) (Attachment, levy or seizure of moneys due pensioners prohibited) Sec. 393 (former) (Army and Navy Medal of Honor Roll; pensions additional to other pensions; liability to attachment, etc.) Compare Title 34, Sec. 365(c) (Medal of Honor Roll; special pension to persons enrolled) Sec. 618 (see 3101) (Benefits exempt from seizure under process and taxation; no deductions for indebtedness to United States) U.S.C., Title 43: Sec. 175 (Exemption from execution of homestead land) U.S.C., Title 48: Sec. 1371o (Panama Canal and railroad retirement annuities, exemption from execution and so forth) NOTES OF ADVISORY COMMITTEE ON RULES - SUPPLEMENTARY NOTE Note. With respect to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, Sec. 501 et seq., see Notes to Rules 62 and 64 herein. 1948 AMENDMENT The amendment effective October 1949 substituted the citation of 'Title 28, U.S.C., Sec. 2006' in subdivision (b) in place of the citation to 'Section 989, Revised Statutes, U.S.C., Title 28, Sec. 842'. NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT The amendment assures that, in aid of execution on a judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a deposition. Under the present language, one court has held that Rule 34 discovery is unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa. 1951). Notwithstanding the language, and relying heavily on legislative history referring to Rule 33, the Fifth Circuit has held that a judgment creditor may invoke Rule 33 interrogatories. United States v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But the court's reasoning does not extend to discovery except as provided in Rules 26-33. One commentator suggests that the existing language might properly be stretched to all discovery, 7 Moore's Federal Practice 69.05(1) (2d ed. 1966), but another believes that a rules amendment is needed. 3 Barron & Holtzoff, Federal Practice and Procedure 1484 (Wright ed. 1958). Both commentators and the court in McWhirter are clear that, as a matter of policy, Rule 69 should authorize the use of all discovery devices provided in the rules. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Execution against revenue officers, see section 2006 of this title. Executions and judicial sales, see section 2001 et seq. of this title. Executions in favor of United States, see section 2413 of this title. Power to issue writ of execution, see section 1651 of this title. Seizure of person or property for satisfaction of judgment, see rule 64. Stay of execution of judgment, see rule 62. Writ of execution for delivery of possession, see rule 70. ------DocID 37119 Document 981 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 70 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 70. Judgment for Specific Acts; Vesting Title -STATUTE- If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the district, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk. -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Compare (former) Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934), Sec. 10594; 2 Conn.Gen.Stat. (1930), Sec. 5455; N.M.Stat.Ann. (Courtright, 1929), Sec. 117-117; 2 Ohio Gen.Code Ann. (Page, 1926), Sec. 11590; and England, Supreme Court of Judicature Act (1925), Sec. 47. -CROSS- CROSS REFERENCES Contempts, power of court, see section 401 of Title 18, Crimes and Criminal Procedure. Execution, see rule 69. Power to issue writs, see section 1651 of this title. Remedies of attachment and sequestration, see rule 64. ------DocID 37120 Document 982 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 71 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 71. Process in Behalf of and Against Persons Not Parties -STATUTE- When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Compare (former) Equity Rule 11 (Process in Behalf of and Against Persons Not Parties). Compare also Terrell v. Allison, 21 Wall. 289, 22 L.Ed. 634 (U.C., 1875); Farmers' Loan and Trust Co. v. Chicago and A. Ry. Co., 44 Fed. 653 (C.C.Ind., 1890); Robert Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp., 288 Fed. 80 (E.D.N.Y., 1923); Thompson v. Smith, Fed.Cas.No. 13,977 (C.C.Minn., 1870). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CROSS- CROSS REFERENCES Execution, see rule 69. Parties generally, see rules 17 to 25. Power to issue writs, see section 1651 of this title. Process generally, see rule 4. Writs of attachment, sequestration and equivalent remedies, see rule 64. ------DocID 37121 Document 983 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 71A -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 71A. Condemnation of Property -STATUTE- (a) Applicability of Other Rules. The Rules of Civil Procedure for the United States District Courts govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as otherwise provided in this rule. (b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use. (c) Complaint. (1) Caption. The complaint shall contain a caption as provided in Rule 10(a), except that the plaintiff shall name as defendants the property, designated generally by kind, quantity, and location, and at least one of the owners of some part of or interest in the property. (2) Contents. The complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation 'Unknown Owners.' Process shall be served as provided in subdivision (d) of this rule upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in subdivision (e) of this rule. The court meanwhile may order such distribution of a deposit as the facts warrant. (3) Filing. In addition to filing the complaint with the court, the plaintiff shall furnish to the clerk at least one copy thereof for the use of the defendants and additional copies at the request of the clerk or of a defendant. (d) Process. (1) Notice; Delivery. Upon the filing of the complaint the plaintiff shall forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint. Additional notices directed to defendants subsequently added shall be so delivered. The delivery of the notice and its service have the same effect as the delivery and service of the summons under Rule 4. (2) Same; Form. Each notice shall state the court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of the defendant's property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the plaintiff's attorney an answer within 20 days after service of the notice, and that the failure so to serve an answer constitutes a consent to the taking and to the authority of the court to proceed to hear the action and to fix the compensation. The notice shall conclude with the name of the plaintiff's attorney and an address within the district in which action is brought where the attorney may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed. (3) Service of Notice. (i) Personal Service. Personal service of the notice (but without copies of the complaint) shall be made in accordance with Rule 4(c) and (d) upon a defendant who resides within the United States or its territories or insular possessions and whose residence is known. (ii) Service by Publication. Upon the filing of a certificate of the plaintiff's attorney stating that the attorney believes a defendant cannot be personally served, because after diligent inquiry within the state in which the complaint is filed the attorney's place of residence cannot be ascertained by the plaintiff or, if ascertained, that it is beyond the territorial limits of personal service as provided in this rule, service of the notice shall be made on this defendant by publication in a newspaper published in the county where the property is located, or if there is no such newspaper, then in a newspaper having a general circulation where the property is located, once a week for not less than three successive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served as provided in this rule but whose place of residence is then known. Unknown owners may be served by publication in like manner by a notice addressed to 'Unknown Owners.' Service by publication is complete upon the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiff's attorney, to which shall be attached a printed copy of the published notice with the name and dates of the newspaper marked thereon. (4) Return; Amendment. Proof of service of the notice shall be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons under Rule 4(g) and (h). (e) Appearance or Answer. If a defendant has no objection or defense to the taking of the defendant's property, the defendant may serve a notice of appearance designating the property in which the defendant claims to be interested. Thereafter, the defendant shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of the property, the defendant shall serve an answer within 20 days after the service of notice upon the defendant. The answer shall identify the property in which the defendant claims to have an interest, state the nature and extent of the interest claimed, and state all the defendant's objections and defenses to the taking of the property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not the defendant has previously appeared or answered, the defendant may present evidence as to the amount of the compensation to be paid for the property, and the defendant may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed. (f) Amendment of Pleadings. Without leave of court, the plaintiff may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by subdivision (i) of this rule. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Rule 5(b), upon any party affected thereby who has appeared and, in the manner provided in subdivision (d) of this rule, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the court for the use of the defendants at least one copy of each amendment and shall furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by subdivision (e) of this rule a defendant may serve an answer to the amended pleading, in the form and manner and with the same effect as there provided. (g) Substitution of Parties. If a defendant dies or becomes incompetent or transfers an interest after the defendant's joinder, the court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in subdivision (d)(3) of this rule. (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. In the event that a commission is appointed the court may direct that not more than two additional persons serve as alternate commissioners to hear the case and replace commissioners who, prior to the time when a decision is filed, are found by the court to be unable or disqualified to perform their duties. An alternate who does not replace a regular commissioner shall be discharged after the commission renders its final decision. Before appointing the members of the commission and alternates the court shall advise the parties of the identity and qualifications of each prospective commissioner and alternate and may permit the parties to examine each such designee. The parties shall not be permitted or required by the court to suggest nominees. Each party shall have the right to object for valid cause to the appointment of any person as a commissioner or alternate. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court. (i) Dismissal of Action. (1) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed. (2) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the court may vacate any judgment that has been entered. (3) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the court may dismiss the action as to that property, except that it shall not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest so taken. The court at any time may drop a defendant unnecessarily or improperly joined. (4) Effect. Except as otherwise provided in the notice, or stipulation of dismissal, or order of the court, any dismissal is without prejudice. (j) Deposit and Its Distribution. The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute. In such cases the court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to that defendant on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to that defendant, the court shall enter judgment against that defendant and in favor of the plaintiff for the overpayment. (k) Condemnation Under a State's Power of Eminent Domain. The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed. (l) Costs. Costs are not subject to Rule 54(d). -SOURCE- (Added Apr. 30, 1951, eff. Aug. 1, 1951, and amended Jan. 21, 1963, eff. July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7050, 102 Stat. 4401.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Supplementary report The Court will remember that at its conference on December 2, 1948, the discussion was confined to subdivision (h) of the rule (* * *), the particular question being whether the tribunal to award compensation should be a commission or a jury in cases where the Congress has not made specific provision on the subject. The Advisory Committee was agreed from the outset that a rule should not be promulgated which would overturn the decision of the Congress as to the kind of tribunal to fix compensation, provided that the system established by Congress was found to be working well. We found two instances where the Congress had specified the kind of tribunal to fix compensation. One case was the District of Columbia (U.S.C., Title 40, Sec. 361-386 (now D.C. Code, Title 16, Sec. 1301 et seq.)) where a rather unique system exists under which the court is required in all cases to order the selection of a 'jury' of five from among not less than twenty names drawn from 'the special box provided by law.' They must have the usual qualifications of jurors and in addition must be freeholders of the District and not in the service of the United States or the District. That system has been in effect for many years, and our inquiry revealed that it works well under the conditions prevailing in the District, and is satisfactory to the courts of the District, the legal profession and to property owners. The other instance is that of the Tennessee Valley Authority, where the act of Congress (U.S.C., Title 16, Sec. 831x) provides that compensation is fixed by three disinterested commissioners appointed by the court, whose award goes before the District Court for confirmation or modification. The Advisory Committee made a thorough inquiry into the practical operation of the TVA commission system. We obtained from counsel for the TVA the results of their experience, which afforded convincing proof that the commission system is preferable under the conditions affecting TVA and that the jury system would not work satisfactorily. We then, under date of February 6, 1947, wrote every Federal judge who had ever sat in a TVA condemnation case, asking his views as to whether the commission system is satisfactory and whether a jury system should be preferred. Of 21 responses from the judges 17 approved the commission system and opposed the substitution of a jury system for the TVA. Many of the judges went further and opposed the use of juries in any condemnation cases. Three of the judges preferred the jury system, and one dealt only with the TVA provision for a three judge district court. The Advisory Committee has not considered abolition of the three judge requirement of the TVA Act, because it seemed to raise a question of jurisdiction, which cannot be altered by rule. Nevertheless the Department of Justice continued its advocacy of the jury system for its asserted expedition and economy; and others favored a uniform procedure. In consequence of these divided counsels the Advisory Committee was itself divided, but in its May 1948 Report to the Court recommended the following rule as approved by a majority (* * *): (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix. Trial of all issues shall otherwise be by the court. The effect of this was to preserve the existing systems in the District of Columbia and in TVA cases, but to provide for a jury to fix compensation in all other cases. Before the Court's conference of December 2, 1948, the Chief Justice informed the Committee that the Court was particularly interested in the views expressed by Judge John Paul, judge of the United States District Court for the Western District of Virginia, in a letter from him to the chairman of the Advisory Committee, dated February 13, 1947. Copies of all the letters from judges who had sat in TVA cases had been made available to the Court, and this letter from Judge Paul is one of them. Judge Paul strongly opposed jury trials and recommended the commission system in large projects like the TVA, and his views seemed to have impressed the Court and to have been the occasion for the conference. The reasons which convinced the Advisory Committee that the use of commissioners instead of juries is desirable in TVA cases were these: 1. The TVA condemns large areas of land of similar kind, involving many owners. Uniformity in awards is essential. The commission system tends to prevent discrimination and provide for uniformity in compensation. The jury system tends to lack of uniformity. Once a reasonable and uniform standard of values for the area has been settled by a commission, litigation ends and settlements result. 2. Where large areas are involved many small landowners reside at great distances from the place where a court sits. It is a great hardship on humble people to have to travel long distances to attend a jury trial. A commission may travel around and receive the evidence of the owner near his home. 3. It is impracticable to take juries long distances to view the premises. 4. If the cases are tried by juries the burden on the time of the courts is excessive. These considerations are the very ones Judge Paul stressed in his letter. He pointed out that they applied not only to the TVA but to other large governmental projects, such as flood control, hydroelectric power, reclamation, national forests, and others. So when the representatives of the Advisory Committee appeared at the Court's conference December 2, 1948, they found it difficult to justify the proposed provision in subdivision (h) of the rule that a jury should be used to fix compensation in all cases where Congress had not specified the tribunal. If our reasons for preserving the TVA system were sound, provision for a jury in similar projects of like magnitude seemed unsound. Aware of the apparent inconsistency between the acceptance of the TVA system and the provision for a jury in all other cases, the members of the Committee attending the conference of December 2, 1948, then suggested that in the other cases the choice of jury or commission be left to the discretion of the District Court, going back to a suggestion previously made by Committee members and reported at page 15 of the Preliminary Draft of June 1947. They called the attention of the Court to the fact that the entire Advisory Committee had not been consulted about this suggestion and proposed that the draft be returned to the Committee for further consideration, and that was done. The proposal we now make for subdivision (h) is as follows: (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court. In the 1948 draft the Committee had been almost evenly divided as between jury or commission and that made it easy for us to agree on the present draft. It would be difficult to state in a rule the various conditions to control the District Court in its choice and we have merely stated generally the matters which should be considered by the District Court. The rule as now drafted seems to meet Judge Paul's objection. In large projects like the TVA the court may decide to use a commission. In a great number of cases involving only sites for buildings or other small areas, where use of a jury is appropriate, a jury may be chosen. The District Court's discretion may also be influenced by local preference or habit, and the preference of the Department of Justice and the reasons for its preference will doubtless be given weight. The Committee is convinced that there are some types of cases in which use of a commission is preferable and others in which a jury may be appropriately used, and that it would be a mistake to provide that the same kind of tribunal should be used in all cases. We think the available evidence clearly leads to that conclusion. When this suggestion was made at the conference of December 2, 1948, representatives of the Department of Justice opposed it, expressing opposition to the use of a commission in any case. Their principal ground for opposition to commissions was then based on the assertion that the commission system is too expensive because courts allow commissioners too large compensation. The obvious answer to that is that the compensation of commissioners ought to be fixed or limited by law, as was done in the TVA Act, and the agency dealing with appropriations - either the Administrative Office or some other interested department of the government - should correct that evil, if evil there be, by obtaining such legislation. Authority to promulgate rules of procedure does not include power to fix compensation of government employees. The Advisory Committee is not convinced that even without such legislation the commission system is more expensive than the jury system. The expense of jury trials includes not only the per diem and mileage of the jurors impaneled for a case but like items for the entire venire. In computing cost of jury trials, the salaries of court officials, judges, clerks, marshals and deputies must be considered. No figures have been given to the Committee to establish that the cost of the commission system is the greater. We earnestly recommend the rule as now drafted for promulgation by the Court, in the public interest. The Advisory Committee have given more time to this rule, including time required for conferences with the Department of Justice to hear statements of its representatives, than has been required by any other rule. The rule may not be perfect but if faults develop in practice they may be promptly cured. Certainly the present conformity system is atrocious. Under state practices, just compensation is normally determined by one of three methods: by commissioners; by commissioners with a right of appeal to and trial de novo before a jury; and by a jury, without a commission. A trial to the court or to the court including a master are, however, other methods that are occasionally used. Approximately 5 states use only commissioners; 23 states use commissioners with a trial de novo before a jury; and 18 states use only the jury. This classification is advisedly stated in approximate terms, since the same state may utilize diverse methods, depending upon different types of condemnations or upon the locality of the property, and since the methods used in a few states do not permit of a categorical classification. To reject the proposed rule and leave the situation as it is would not satisfy the views of the Department of Justice. The Department and the Advisory Committee agree that the use of a commission, with appeal to a jury, is a wasteful system. The Department of Justice has a voluminous 'Manual on Federal Eminent Domain,' the 1940 edition of which has 948 pages with an appendix of 73 more pages. The title page informs us the preparation of the manual was begun during the incumbency of Attorney General Cummings, was continued under Attorney General Murphy, and completed during the incumbency of Attorney General Jackson. The preface contains the following statement: It should also be mentioned that the research incorporated in the manual would be of invaluable assistance in the drafting of a new uniform code, or rules of court, for federal condemnation proceedings, which are now greatly confused, not only by the existence of over seventy federal statutes governing condemnations for different purposes - statutes which sometimes conflict with one another - but also by the countless problems occasioned by the requirements of conformity to state law. Progress of the work has already demonstrated that the need for such reform exists. It is not surprising that more than once Attorneys General have asked the Advisory Committee to prepare a federal rule and rescue the government from this morass. The Department of Justice has twice tried and failed to persuade the Congress to provide that juries shall be used in all condemnation cases. The debates in Congress show that part of the opposition to the Department of Justice's bills came from representatives opposed to jury trials in all cases, and in part from a preference for the conformity system. Our present proposal opens the door for district judges to yield to local preferences on the subject. It does much for the Department's points of view. It is a great improvement over the present so-called conformity system. It does away with the wasteful 'double' system prevailing in 23 states where awards by commissions are followed by jury trials. Aside from the question as to the choice of a tribunal to award compensation, the proposed rule would afford a simple and improved procedure. We turn now to an itemized explanation of the other changes we have made in the 1948 draft. Some of these result from recent amendments to the Judicial Code. Others result from a reconsideration by the Advisory Committee of provisions which we thought could be improved. 1. In the amended Judicial Code, the district courts are designated as 'United States District Courts' instead of 'District Courts of the United States,' and a corresponding change has been made in the rule. 2. After the 1948 draft was referred back to the committee, the provision in subdivision (c)(2), relating to naming defendants, * * * which provided that the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a search of the records to the extent commonly made by competent searchers of title in the vicinity 'in light of the type and value of the property involved,' the phrase in quotation marks was changed to read 'in the light of the character and value of the property involved and the interests to be acquired.' The Department of Justice made a counter proposal * * * that there be substituted the words 'reasonably diligent search of the records, considering the type.' When the American Bar Association thereafter considered the draft, it approved the Advisory Committee's draft of this subdivision, but said that it had no objection to the Department's suggestion. Thereafter, in an effort to eliminate controversy, the Advisory Committee accepted the Department's suggestion as to (c)(2), using the word 'character' instead of the word 'type.' The Department of Justice also suggested that in subdivision (d)(3)(2) relating to service by publication, the search for a defendant's residence as a preliminary to publication be limited to the state in which the complaint is filed. Here again the American Bar Association's report expressed the view that the Department's suggestion was unobjectionable and the Advisory Committee thereupon adopted it. 3. Subdivision (k) of the 1948 draft is as follows: (k) Condemnation Under a State's Power of Eminent Domain. If the action involves the exercise of the power of eminent domain under the law of a state, the practice herein prescribed may be altered to the extent necessary to observe and enforce any condition affecting the substantial rights of a litigant attached by the state law to the exercise of the state's power of eminent domain. Occasionally condemnation cases under a state's power of eminent domain reach a United States District Court because of diversity of citizenship. Such cases are rare, but provision should be made for them. The 1948 draft of (k) required a district court to decide whether a provision of state law specifying the tribunal to award compensation is or is not a 'condition' attached to the exercise of the state's power. On reconsideration we concluded that it would be wise to redraft (k) so as to avoid that troublesome question. As to conditions in state laws which affect the substantial rights of a litigant, the district courts would be bound to give them effect without any rule on the subject. Accordingly we present two alternative revisions. One suggestion supported by a majority of the Advisory Committee is as follows: (k) Condemnation Under a State's Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed. The other is as follows: (k) Condemnation Under a State's Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law gives a right to a trial by jury such a trial shall in any case be allowed to the party demanding it within the time permitted by these rules, and in that event no hearing before a commission shall be had. The first proposal accepts the state law as to the tribunals to fix compensation, and in that respect leaves the parties in precisely the same situation as if the case were pending in a state court, including the use of a commission with appeal to a jury, if the state law so provides. It has the effect of avoiding any question as to whether the decisions in Erie R. Co. v. Tompkins and later cases have application to a situation of this kind. The second proposal gives the parties a right to a jury trial if that is provided for by state law, but prevents the use of both commission and jury. Those members of the Committee who favor the second proposal do so because of the obvious objections to the double trial, with a commission and appeal to a jury. As the decisions in Erie R. Co. v. Tompkins and later cases may have a bearing on this point, and the Committee is divided, we think both proposals should be placed before the Court. 4. The provision * * * of the 1948 draft * * * prescribing the effective date of the rule was drafted before the recent amendment of the Judicial Code on that subject. On May 10, 1950, the President approved an act which amended section 2072 of Title 28, United States Code, to read as follows: Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of 90 days after they have been thus reported. To conform to the statute now in force, we suggest a provision as follows: Effective Date. This Rule 71A and the amendment to Rule 81(a) will take effect on August 1, 1951. Rule 71A governs all proceedings in actions brought after it takes effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in a paticular action pending when the rule takes effect would not be feasible or would work injustice, in which event the former procedure applies. If the rule is not reported to Congress by May 1, 1951, this provision must be altered. 5. We call attention to the fact that the proposed rule does not contain a provision for the procedure to be followed in order to exercise the right of the United States to take immediate possession or title, when the condemnation proceeding is begun. There are several statutes conferring such a right which are cited in the original notes to the May 1948 draft * * *. The existence of this right is taken into account in the rule. In paragraph (c)(2), * * * it is stated: 'Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known.' That is to enable the United States to exercise the right to immediate title or possession without the delay involved in ascertaining the names of all interested parties. The right is also taken into account in the provision relating to dismissal (paragraph (i) subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating to deposits and their distribution. The Advisory Committee considered whether the procedure for exercising the right should be specified in the rule and decided against it, as the procedure now being followed seems to be giving no trouble, and to draft a rule to fit all the statutes on the subject might create confusion. The American Bar Association has taken an active interest in a rule for condemnation cases. In 1944 its House of Delegates adopted a resolution which among other things resolved: That before adoption by the Supreme Court of the United States of any redraft of the proposed rule, time and opportunity should be afforded to the bar to consider and make recommendations concerning any such redraft. Accordingly, in 1950 the revised draft was submitted to the American Bar Association and its section of real property, probate and trust law appointed a committee to consider it. That committee was supplied with copies of the written statement from the Department of Justice giving the reasons relied on by the Department for preferring a rule to use juries in all cases. The Advisory Committee's report was approved at a meeting of the section of real property law, and by the House of Delegates at the annual meeting of September 1950. The American Bar Association report gave particular attention to the question whether juries or commissions should be used to fix compensation, approved the Advisory Committee's solution appearing in their latest draft designed to allow use of commissions in projects comparable to the TVA, and rejected the proposal for use of juries in all cases. In November 1950 a committee of the Federal Bar Association, the chairman of which was a Special Assistant to the Attorney General, made a report which reflected the attitude of the Department of Justice on the condemnation rule. Aside from subdivision (h) about the tribunal to award compensation the final draft of the condemnation rule here presented has the approval of the American Bar Association and, we understand, the Department of Justice, and we do not know of any opposition to it. Subdivision (h) has the unanimous approval of the Advisory Committee and has been approved by the American Bar Association. The use of commissions in TVA cases, and, by fair inference, in cases comparable to the TVA, is supported by 17 out of 20 judges who up to 1947 had sat in TVA cases. The legal staff of the TVA has vigorously objected to the substitution of juries for commissions in TVA cases. We regret to report that the Department of Justice still asks that subdivision (h) be altered to provide for jury trials in all cases where Congress has not specified the tribunal. We understand that the Department approves the proposal that the system prevailing in 23 states for the 'double' trial, by commission with appeal to and trial de novo before a jury, should be abolished, and also asks that on demand a jury should be substituted for a commission, in those states where use of a commission alone is now required. The Advisory Committee has no evidence that commissions do not operate satisfactorily in the case of projects comparable to the TVA. Original report General Statement. 1. Background. When the Advisory Committee was formulating its recommendations to the Court concerning rules of procedure, which subsequently became the Federal Rules of 1938, the Committee concluded at an early stage not to fix the procedure in condemnation cases. This is a matter principally involving the exercise of the federal power of eminent domain, as very few condemnation cases involving the state's power reach the United States District Courts. The Committee's reasons at that time were that inasmuch as condemnation proceedings by the United States are governed by statutes of the United States, prescribing different procedure for various agencies and departments of the government, or, in the absence of such statutes, by local state practice under the Conformity Act (40 U.S.C. sec. 258), it would be extremely difficult to draft a uniform rule satisfactory to the various agencies and departments of the government and to private parties; and that there was no general demand for a uniform rule. The Committee continued in that belief until shortly before the preparation of the April 1937 Draft of the Rules, when the officials of the Department of Justice having to do with condemnation cases urgently requested the Committee to propose rules on this subject. The Committee undertook the task and drafted a Condemnation Rule which appeared for the first time as Rule 74 of the April 1937 Draft. After the publication and distribution of this initial draft many objections were urged against it by counsel for various governmental agencies, whose procedure in condemnation cases was prescribed by federal statutes. Some of these agencies wanted to be excepted in whole or in part from the operation of the uniform rule proposed in April 1937. And the Department of Justice changed its position and stated that it preferred to have government condemnations conducted by local attorneys familiar with the state practice, which was applied under the Conformity Act where the Acts of Congress do not prescribe the practice; that it preferred to work under the Conformity Act without a uniform rule of procedure. The profession generally showed little interest in the proposed uniform rule. For these reasons the Advisory Committee in its Final Report to the Court in November 1937 proposed that all of Rule 74 be stricken and that the Federal Rules be made applicable only to appeals in condemnation cases. See note to Rule 74 of the Final Report. Some six or seven years later when the Advisory Committee was considering the subject of amendments to the Federal Rules both government officials and the profession generally urged the adoption of some uniform procedure. This demand grew out of the volume of condemnation proceedings instituted during the war, and the general feeling of dissatisfaction with the diverse condemnation procedures that were applicable in the federal courts. A strongly held belief was that both the sovereign's power to condemn and the property owner's right to compensation could be promoted by a simplified rule. As a consequence the Committee proposed a Rule 71A on the subject of condemnation in its Preliminary Draft of May 1944. In the Second Preliminary Draft of May 1945 this earlier proposed Rule 71A was, however, omitted. The Committee did not then feel that it had sufficient time to prepare a revised draft satisfactorily to it which would meet legitimate objections made to the draft of May 1944. To avoid unduly delaying the proposed amendments to existing rules the Committee concluded to proceed in the regular way with the preparation of the amendments to these rules and deal with the question of a condemnation rule as an independent matter. As a consequence it made no recommendations to the Court on condemnation in its Final Report of Proposed Amendments of June 1946; and the amendments which the Court adopted in December 1946 did not deal with condemnation. After concluding its task relative to amendments, the Committee returned to a consideration of eminent domain, its proposed Rule 71A of May 1944, the suggestions and criticisms that had been presented in the interim, and in June 1947 prepared and distributed to the profession another draft of a proposed condemnation rule. This draft contained several alternative provisions, specifically called attention to and asked for opinion relative to these matters, and in particular as to the constitution of the tribunal to award compensation. The present draft was based on the June 1947 formulation, in light of the advice of the profession on both matters of substance and form. 2. Statutory Provisions. The need for a uniform condemnation rule in the federal courts arises from the fact that by various statutes Congress has prescribed diverse procedures for certain condemnation proceedings, and, in the absence of such statutes, has prescribed conformity to local state practice under 40 U.S.C. Sec. 258. This general conformity adds to the diversity of procedure since in the United States there are multifarious methods of procedure in existence. Thus in 1931 it was said that there were 269 different methods of judicial procedure in different classes of condemnation cases and 56 methods of nonjudicial or administrative procedure. First Report of Judicial Council of Michigan, 1931, Sec. 46, pp. 55-56. These numbers have not decreased. Consequently, the general requirement of conformity to state practice and procedure, particularly where the condemnor is the United States, leads to expense, delay and uncertainty. In advocacy of a uniform federal rule, see Armstrong, Proposed Amendments to Federal Rules for Civil Procedure 1944, 4 F.R.D. 124, 134; id., Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending Amendments, 1946, 5 F.R.D. 339, 357. There are a great variety of Acts of Congress authorizing the exercise of the power of eminent domain by the United States and its officers and agencies. These statutes for the most part do not specify the exact procedure to be followed, but where procedure is prescribed, it is by no means uniform. The following are instances of Acts which merely authorize the exercise of the power without specific declaration as to the procedure: U.S.C., Title 16: Sec. 404c-11 (Mammoth Cave National Park; acquisition of lands, interests in lands or other property for park by the Secretary of the Interior). Sec. 426d (Stones River National Park; acquisition of land for parks by the Secretary of the Army). Sec. 450aa (George Washington Carver National Monument; acquisition of land by the Secretary of the Interior). Sec. 517 (National forest reservation; title to lands to be acquired by the Secretary of Agriculture). U.S.C., Title 42: Sec. 1805(b)(5), 1813(b) (Atomic Energy Act). The following are instances of Acts which authorized condemnation and declare that the procedure is to conform with that of similar actions in state courts: U.S.C., Title 16: Sec. 423k (Richmond National Battlefield Park; acquisition of lands by the Secretary of the Interior). Sec. 714 (Exercise by water power licensee of power of eminent domain). U.S.C., Title 24: Sec. 78 (Condemnation of land for the former National Home for Disabled Volunteer Soldiers). U.S.C., Title 33: Sec. 591 (Condemnation of lands and materials for river and harbor improvement by the Secretary of the Army). U.S.C., Title 40: Sec. 257 (Condemnation of realty for sites for public building and for other public uses by the Secretary of the Treasury authorized). Sec. 258 (Same procedure). U.S.C., Title 50: Sec. 171 (Acquisition of land by the Secretary of the Army for national defense). Sec. 172 (Acquisition of property by the Secretary of the Army, etc., for production of lumber). Sec. 632 App. (Second War Powers Act, 1942; acquisition of real property for war purposes by the Secretary of the Army, the Secretary of the Navy and others). The following are Acts in which a more or less complete code of procedure is set forth in connection with the taking: U.S.C., Title 16: Sec. 831x (Condemnation by Tennessee Valley Authority). U.S.C., Title 40: Sec. 361-386 (now D.C. Code, Title 16, Sec. 1301 et seq.) (Acquisition of lands in District of Columbia for use of United States; condemnation). 3. Adjustment of Rule to Statutory Provisions. While it was apparent that the principle of uniformity should be the basis for a rule to replace the multiple diverse procedures set out above, there remained a serious question as to whether an exception could properly be made relative to the method of determining compensation. Where Congress had provided for conformity to state law the following were the general methods in use: an initial determination by commissioners, with appeal to a judge; an initial award, likewise made by commissioners, but with the appeal to a jury; and determination by a jury without a previous award by commissioners. In two situations Congress had specified the tribunal to determine the issue of compensation: condemnation by the Tennessee Valley Authority; and condemnation in the District of Columbia. Under the TVA procedure the initial determination of value is by three disinterested commissioners, appointed by the court, from a locality other than the one in which the land lies. Either party may except to the award of the commission; in that case the exceptions are to be heard by three district judges (unless the parties stipulate for a lesser number), with a right of appeal to the circuit court of appeals. The TVA is a regional agency. It is faced with the necessity of acquiring a very substantial acreage within a relatively small area, and charged with the task of carrying on within the Tennessee Valley and in cooperation with the local people a permanent program involving navigation and flood control, electric power, soil conservation, and general regional development. The success of this program is partially dependent upon the good will and cooperation of the people of the Tennessee Valley, and this in turn partially depends upon the land acquisition program. Disproportionate awards among landowners would create dissatisfaction and ill will. To secure uniformity in treatment Congress provided the rather unique procedure of the three-judge court to review de novo the initial award of the commissioners. This procedure has worked to the satisfaction of the property owners and the TVA. A full statement of the TVA position and experience is set forth in Preliminary Draft of Proposed Rule to Govern Condemnation Cases (June, 1947) 15-19. A large majority of the district judges with experience under this procedure approve it, subject to some objection to the requirement for a three-judge district court to review commissioners' awards. A statutory three-judge requirement is, however, jurisdictional and must be strictly followed. Stratton v. St. Louis, Southwestern Ry. Co., 1930, 51 S.Ct. 8, 282 U.S. 10, 75 L.Ed. 135; Ayrshire Collieries Corp. v. United States, 1947, 67 S.Ct. 1168, 331 U.S. 132, 91 L.Ed. 1391. Hence except insofar as the TVA statute itself authorizes the parties to stipulate for a court of less than three judges, the requirement must be followed, and would seem to be beyond alteration by court rule even if change were thought desirable. Accordingly the TVA procedure is retained for the determination of compensation in TVA condemnation cases. It was also thought desirable to retain the specific method Congress had prescribed for the District of Columbia, which is a so-called jury of five appointed by the court. This is a local matter and the specific treatment accorded by Congress has given local satisfaction. Aside from the foregoing limited exceptions dealing with the TVA and the District of Columbia, the question was whether a uniform method for determining compensation should be a commission with appeal to a district judge, or a commission with appeal to a jury, or a jury without a commission. Experience with the commission on a nationwide basis, and in particular with the utilization of a commission followed by an appeal to a jury, has been that the commission is time consuming and expensive. Furthermore, it is largely a futile procedure where it is preparatory to jury trial. Since in the bulk of states a land owner is entitled eventually to a jury trial, since the jury is a traditional tribunal for the determination of questions of value, and since experience with juries has proved satisfactory to both government and land owner, the right to jury trial is adopted as the general rule. Condemnation involving the TVA and the District of Columbia are the two exceptions. See Note to Subdivision (h), infra. Note to Subdivision (a). As originally promulgated the Federal Rules governed appeals in condemnation proceedings but were not otherwise applicable. Rule 81(a)(7). Pre-appeal procedure, in the main, conformed to state procedure. See statutes and discussion, supra. The purpose of Rule 71A is to provide a uniform procedure for condemnation in the federal district courts, including the District of Columbia. To achieve this purpose Rule 71A prescribes such specialized procedure as is required by condemnation proceedings, otherwise it utilizes the general framework of the Federal Rules where specific detail is unnecessary. The adoption of Rule 71A, of course, renders paragraph (7) of Rule 81(a) unnecessary. The promulgation of a rule for condemnation procedure is within the rule-making power. The Enabling Act (Act of June 19, 1934, c. 651, Sec. 1, 2 (48 Stat. 1064), 28 U.S.C. Sec. 723b, 723c (see 2072)) gives the Supreme Court 'the power to prescribe, by general rules * * * the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law.' Such rules, however, must not abridge, enlarge, or modify substantive rights. In Kohl v. United States, 1875, 91 U.S. 367, 23 L.Ed. 449, a proceeding instituted by the United States to appropriate land for a post-office site under a statute enacted for such purpose, the Supreme Court held that 'a proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it, is * * * a suit at common law, when initiated in a court.' See also Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 23 L.Ed. 449, infra, under subdivision (k). And the Conformity Act, 40 U.S.C. Sec. 258, which is superseded by Rule 71A, deals only with 'practice, pleadings, forms and proceedings and not with matters of substantive laws.' United States v. 243.22 Acres of Land in Village of Farmingdale, Town of Babylon, Suffolk County, N.Y., D.C.N.Y. 1942, 43 F.Supp. 561, affirmed 129 F.2d 678, certiorari denied, 63 S.Ct. 441, 317 U.S. 698, 87 L.Ed. 558. Rule 71A affords a uniform procedure for all cases of condemnation invoking the national power of eminent domain, and, to the extent stated in subdivision (k), for cases invoking a state's power of eminent domain; and supplants all statutes prescribing a different procedure. While the almost exclusive utility of the rule is for the condemnation of real property, it also applies to the condemnation of personal property, either as an incident to real property or as the sole object of the proceeding, when permitted or required by statute. See 38 U.S.C. (former) Sec. 438j (World War Veterans' Relief Act); 42 U.S.C. Sec. 1805, 1811, 1813 (Atomic Energy Act); 50 U.S.C. Sec. 79 (Nitrates Act); 50 U.S.C. Sec. 161-166 (Helium Gas Act). Requisitioning of personal property with the right in the owner to sue the United States, where the compensation cannot be agreed upon (see 42 U.S.C. Sec. 1813, supra, for example) will continue to be the normal method of acquiring personal property and Rule 71A in no way interferes with or restricts any such right. Only where the law requires or permits the formal procedure of condemnation to be utilized will the rule have any applicability to the acquisition of personal property. Rule 71A is not intended to and does not supersede the Act of February 26, 1931, ch. 307, Sec. 1-5 (46 Stat. 1421), 40 U.S.C. Sec. 258a-258e, which is a supplementary condemnation statute, permissive in its nature and designed to permit the prompt acquisition of title by the United States, pending the condemnation proceeding, upon a deposit in court. See United States v. 76,800 Acres, More or Less, of Land, in Bryan and Liberty Counties, Ga., D.C.Ga. 1942, 44 F.Supp. 653; United States v. 17,280 Acres of Land, More or Less, Situated in Saunders County, Nebr., D.C.Neb. 1942, 47 F.Supp. 267. The same is true insofar as the following or any other statutes authorize the acquisition of title or the taking of immediate possession: U.S.C., Title 33: Sec. 594 (When immediate possession of land may be taken; for a work of river and harbor improvements). U.S.C., Title 42: Sec. 1813(b) (When immediate possession may be taken under Atomic Energy Act). U.S.C., Title 50: Sec. 171 (Acquisition of land by the Secretary of the Army for national defense). Sec. 632 App. (Second War Powers Act, 1942; acquisition of real property for war purposes by the Secretary of the Army, the Secretary of the Navy, and others). Note to Subdivision (b). This subdivision provides for broad joinder in accordance with the tenor of other rules such as Rule 18. To require separate condemnation proceedings for each piece of property separately owned would be unduly burdensome and would serve no useful purpose. And a restriction that only properties may be joined which are to be acquired for the same public use would also cause difficulty. For example, a unified project to widen a street, construct a bridge across a navigable river, and for the construction of approaches to the level of the bridge on both sides of the river might involve acquiring property for different public uses. Yet it is eminently desirable that the plaintiff may in one proceeding condemn all the property interests and rights necessary to carry out this project. Rule 21 which allows the court to sever and proceed separately with any claim against a party, and Rule 42(b) giving the court broad discretion to order separate trials give adequate protection to all defendants in condemnation proceedings. Note to Subdivision (c). Since a condemnation proceeding is in rem and since a great many property owners are often involved, paragraph (1) requires the property to be named and only one of the owners. In other respects the caption will contain the name of the court, the title of the action, file number, and a designation of the pleading as a complaint in accordance with Rule 10(a). Since the general standards of pleading are stated in other rules, paragraph (2) prescribes only the necessary detail for condemnation proceedings. Certain statutes allow the United States to acquire title or possession immediately upon commencement of an action. See the Act of February 26, 1931, ch. 307 Sec. 1-5 (46 Stat. 1421), 40 U.S.C. Sec. 258a-258e, supra; and 33 U.S.C. Sec. 594, 42 U.S.C. Sec. 1813(b), 50 U.S.C. Sec. 171, 632, supra. To carry out the purpose of such statutes and to aid the condemnor in instituting the action even where title is not acquired at the outset, the plaintiff is initially required to join as defendants only the persons having or claiming an interest in the property whose names are then known. This in no way prejudices the property owner, who must eventually be joined as a defendant, served with process, and allowed to answer before there can be any hearing involving the compensation to be paid for his piece of property. The rule requires the plaintiff to name all persons having or claiming an interest in the property of whom the plaintiff has learned and, more importantly, those appearing of record. By charging the plaintiff with the necessity to make 'a search of the records of the extent commonly made by competent searchers of title in the vicinity in light of the type and value of the property involved' both the plaintiff and property owner are protected. Where a short term interest in property of little value is involved, as a two or three year easement over a vacant land for purposes of ingress and egress to other property, a search of the records covering a long period of time is not required. Where on the other hand fee simple title in valuable property is being condemned the search must necessarily cover a much longer period of time and be commensurate with the interests involved. But even here the search is related to the type made by competent title searchers in the vicinity. A search that extends back to the original patent may be feasible in some midwestern and western states and be proper under certain circumstances. In the Atlantic seaboard states such a search is normally not feasible nor desirable. There is a common sense business accommodation of what title searchers can and should do. For state statutes requiring persons appearing as owners or otherwise interested in the property to be named as defendants, see 3 Colo. Stat. Ann., 1935, c. 61, Sec. 2; Ill. Ann. Stat. (Smith-Hurd) c. 47, Sec. 2; 1 Iowa Code, 1946, Sec. 472.3; Kans. Stat. Ann., 1935, Sec. 26-101; 2 Mass. Laws Ann., 1932, ch. 80A, Sec. 4; 7 Mich. Stat. Ann., 1936, Sec. 8.2; 2 Minn. Stat., Mason, 1927, Sec. 6541; 20 N.J. Stat. Ann., 1939, Sec. 1-2; 3 Wash. Revised Stat., Remington, 1932, Title 6, Sec. 891. For state provisions allowing persons whose names are not known to be designated under the descriptive term of 'unknown owner', see Hawaii Revised Laws, 1945, c. 8, Sec. 310 ('such (unknown) defendant may be joined in the petition under a fictitious name.'; Ill. Ann. Stat., Smith-Hurd), c. 47, Sec. 2 ('Persons interested, whose names are unknown, may be made parties defendant by the description of the unknown owners; . . .'); Maryland Code Ann., 1939, Ar. 33A, Sec. 1 ('In case any owner or owners is or are not known, he or they may be described in such petition as the unknown owner or owners, or the unknown heir or heirs of a deceased owner.'); 2 Mass. Laws Ann., 1932, c. 80A, Sec. 4 ('Persons not in being, unascertained or unknown who may have an interest in any of such land shall be made parties respondent by such description as seems appropriate, * * *'); New Mex. Stat. Ann., 1941, Sec. 25-901 ('the owners * * * shall be parties defendant, by name, if the names are known, and by description of the unknown owners of the land therein described, if their names are unknown.'); Utah Code Ann., 1943, Sec. 104-61-7 ('The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants'). The last sentence of paragraph (2) enables the court to expedite the distribution of a deposit, in whole or in part, as soon as pertinent facts of ownership, value and the like are established. See also subdivision (j). The signing of the complaint is governed by Rule 11. Note to Subdivision (d). In lieu of a summons, which is the initial process in other civil actions under Rule 4 (a), subdivision (d) provides for a notice which is to contain sufficient information so that the defendant in effect obtains the plaintiff's statement of his claim against the defendant to whom the notice is directed. Since the plaintiff's attorney is an officer of the court and to prevent unduly burdening the clerk of the court, paragraph (1) of subdivision (d) provides that plaintiff's attorney shall prepare and deliver a notice or notices to the clerk. Flexibility is provided by the provision for joint or several notices, and for additional notices. Where there are only a few defendants it may be convenient to prepare but one notice directed to all the defendants. In other cases where there are many defendants it will be more convenient to prepare two or more notices; but in any event a notice must be directed to each named defendant. Paragraph (2) provides that the notice is to be signed by the plaintiff's attorney. Since the notice is to be delivered to the clerk, the issuance of the notice will appear of record in the court. The clerk should forthwith deliver the notice or notices for service to the marshal or to a person specially appointed to serve the notice. Rule 4 (a). The form of the notice is such that, in addition to informing the defendant of the plaintiff's statement of claim, it tells the defendant precisely what his rights are. Failure on the part of the defendant to serve an answer constitutes a consent to the taking and to the authority of the court to proceed to fix compensation therefor, but it does not preclude the defendant from presenting evidence as to the amount of compensation due him or in sharing the award of distribution. See subdivision (e); Form 28. While under Rule 4(f) the territorial limits of a summons are normally the territorial limits of the state in which the district court is held, the territorial limits for personal service of a notice under Rule 71A (d)(3) are those of the nation. This extension of process is here proper since the aim of the condemnation proceeding is not to enforce any personal liability and the property owner is helped, not imposed upon, by the best type of service possible. If personal service cannot be made either because the defendant's whereabouts cannot be ascertained, or, if ascertained, the defendant cannot be personally served, as where he resides in a foreign country such as Canada or Mexico, then service by publication is proper. The provisions for this type of service are set forth in the rule and are in no way governed by 28 U.S.C. Sec. 118. Note to Subdivision (e). Departing from the scheme of Rule 12, subdivision (e) requires all defenses and objections to be presented in an answer and does not authorize a preliminary motion. There is little need for the latter in condemnation proceedings. The general standard of pleading is governed by other rules, particularly Rule 8, and this subdivision (e) merely prescribes what matters the answer should set forth. Merely by appearing in the action a defendant can receive notice of all proceedings affecting him. And without the necessity of answering a defendant may present evidence as to the amount of compensation due him, and he may share in the distribution of the award. See also subdivision (d)(2); Form 28. Note to Subdivision (f). Due to the number of persons who may be interested in the property to be condemned, there is a likelihood that the plaintiff will need to amend his complaint, perhaps many times, to add new parties or state new issues. This subdivision recognizes that fact and does not burden the court with applications by the plaintiff for leave to amend. At the same time all defendants are adequately protected; and their need to amend the answer is adequately protected by Rule 15, which is applicable by virtue of subdivision (a) of this Rule 71A. Note to Subdivision (g). A condemnation action is a proceeding in rem. Commencement of the action as against a defendant by virtue of his joinder pursuant to subdivision (c)(2) is the point of cut-off and there is no mandatory requirement for substitution because of a subsequent change of interest, although the court is given ample power to require substitution. Rule 25 is inconsistent with subdivision (g) and hence inapplicable. Accordingly, the time periods of Rule 25 do not govern to require dismissal nor to prevent substitution. Note to Subdivision (h). This subdivision prescribes the method for determining the issue of just compensation in cases involving the federal power of eminent domain. The method of jury trial provided by subdivision (h) will normally apply in cases involving the state power by virtue of subdivision (k). Congress has specially constituted a tribunal for the trial of the issue of just compensation in two instances: condemnation under the Tennessee Valley Authority Act; and condemnation in the District of Columbia. These tribunals are retained for reasons set forth in the General Statement: 3. Adjustment of Rule to Statutory Provisions, supra. Subdivision (h) also has prospective application so that if Congress should create another special tribunal, that tribunal will determine the issue of just compensation. Subject to these exceptions the general method of trial of that issue is to be by jury if any party demands it, otherwise that issue, as well as all other issues, are to be tried by the court. As to the TVA procedure that is continued, U.S.C., Title 16, Sec. 831x requires that three commissioners be appointed to fix the compensation; that exceptions to their award are to be heard by three district judges (unless the parties stipulate for a lesser number) and that the district judges try the question de novo; that an appeal to the circuit court of appeals may be taken within 30 days from the filing of the decision of the district judges; and that the circuit court of appeals shall on the record fix compensation 'without regard to the awards of findings theretofore made by the commissioners or the district judges.' The mode of fixing compensation in the District of Columbia, which is also continued, is prescribed in U.S.C., Title 40, Sec. 361-386 (now D.C. Code, Title 16, Sec. 1301 et seq.). Under Sec. 371 the court is required in all cases to order the selection of a jury of five from among not less than 20 names, drawn 'from the special box provided by law.' They must have the usual qualifications of jurors and in addition must be freeholders of the District, and not in the service of the United States or the District. A special oath is administered to the chosen jurors. The trial proceeds in the ordinary way, except that the jury is allowed to separate after they have begun to consider their verdict. There is no constitutional right to jury trial in a condemnation proceeding. Bauman v. Ross, 1897, 17 S.Ct. 966, 167 U.S. 548, 42 L.Ed. 270. See, also, Hines, Does the Seventh Amendment to the Constitution of the United States Require Jury Trials in all Condemnation Proceedings? 1925, 11 Va.L.Rev. 505; Blair, Federal Condemnation Proceedings and the Seventh Amendment 1927, 41 Harv.L.Rev. 29; 3 Moore's Federal Practice 1938, 3007. Prior to Rule 71A, jury trial in federal condemnation proceedings was, however, enjoyed under the general conformity statute, 40 U.S.C. Sec. 258, in states which provided for jury trial. See generally, 2 Lewis, Eminent Domain 3d ed. 1909, Sec. 509, 510; 3 Moore, op. cit. supra. Since the general conformity statute is superseded by Rule 71A, see supra under subdivision (a), and since it was believed that the rule to be substituted should likewise give a right to jury trial, subdivision (h) establishes that method as the general one for determining the issue of just compensation. Note to Subdivision (i). Both the right of the plaintiff to dismiss by filing a notice of dismissal and the right of the court to permit a dismissal are circumscribed to the extent that where the plaintiff has acquired the title or a lesser interest or possession, viz, any property interest for which just compensation should be paid, the action may not be dismissed, without the defendant's consent, and the property owner remitted to another court, such as the Court of Claims, to recover just compensation for the property right taken. Circuity of action is thus prevented without increasing the liability of the plaintiff to pay just compensation for any interest that is taken. Freedom of dismissal is accorded, where both the condemnor and condemnee agree, up to the time of the entry of judgment vesting plaintiff with title. And power is given to the court, where the parties agree, to vacate the judgment and thus revest title in the property owner. In line with Rule 21, the court may at any time drop a defendant who has been unnecessarily or improperly joined as where it develops that he has no interest. Note to Subdivision (j). Whatever the substantive law is concerning the necessity of making a deposit will continue to govern. For statutory provisions concerning deposit in court in condemnation proceedings by the United States, see U.S.C., Title 40, Sec. 258a; U.S.C., Title 33, Sec. 594 - acquisition of title and possession statutes referred to in note to subdivision (a), supra. If the plaintiff is invoking the state's power of eminent domain the necessity of deposit will be governed by the state law. For discussion of such law, see 1 Nichols, Eminent Domain, 2d ed. 1917, Sec. 209-216. For discussion of the function of deposit and the power of the court to enter judgment in cases both of deficiency and overpayment, see United States v. Miller, 1943, 63 S.Ct. 276, 317 U.S. 369, 87 L.Ed. 336, 147 A.L.R. 55, rehearing denied, 63 S.Ct. 557, 318 U.S. 798, 87 L.Ed. 1162 (judgment in favor of plaintiff for overpayment ordered). The court is to make distribution of the deposit as promptly as the facts of the case warrant. See also subdivision (c)(2). Note to Subdivision (k). While the overwhelming number of cases that will be brought in the federal courts under this rule will be actions involving the federal power of eminent domain, a small percentage of cases may be instituted in the federal court or removed thereto on the basis of diversity or alienage which will involve the power of eminent domain under the law of a state. See Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; Searl v. School District No. 2, 1888, 8 S.Ct. 460, 124 U.S. 197, 31 L.Ed. 415; Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In the Madisonville case, and in cases cited therein, it has been held that condemnation actions brought by state corporations in the exercise of a power delegated by the state might be governed by procedure prescribed by the laws of the United States, whether the cases were begun in or removed to the federal court. See also Franzen v. Chicago, M. & St. P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372. Any condition affecting the substantial right of a litigant attached by state law is to be observed and enforced, such as making a deposit in court where the power of eminent domain is conditioned upon so doing. (See also subdivision (j)). Subject to this qualification, subdivision (k) provides that in cases involving the state power of eminent domain, the practice prescribed by other subdivisions of Rule 71A shall govern. Note to Subdivision (l). Since the condemnor will normally be the prevailing party and since he should not recover his costs against the property owner, Rule 54(d), which provides generally that costs shall go to the prevailing party, is made inapplicable. Without attempting to state what the rule on costs is, the effect of subdivision (1) is that costs shall be awarded in accordance with the law that has developed in condemnation cases. This has been summarized as follows: 'Costs of condemnation proceedings are not assessable against the condemnee, unless by stipulation he agrees to assume some or all of them. Such normal expenses of the proceeding as bills for publication of notice, commissioners' fees, the cost of transporting commissioners and jurors to take a view, fees for attorneys to represent defendants who have failed to answer, and witness' fees, are properly charged to the government, though not taxed as costs. Similarly, if it is necessary that a conveyance be executed by a commissioner, the United States pay his fees and those for recording the deed. However, the distribution of the award is a matter in which the United States has no legal interest. Expenses incurred in ascertaining the identity of distributees and deciding between conflicting claimants are properly chargeable against the award, not against the United States, although United States attorneys are expected to aid the court in such matters as amici curiae.' Lands Division Manual 861. For other discussion and citation, see Grand River Dam Authority v. Jarvis, C.C.A.10th, 1942, 124 F.2d 914. Costs may not be taxed against the United States except to the extent permitted by law. United States v. 125.71 Acres of Land in Loyalhanna Tp., Westmoreland County, Pa., D.C.Pa. 1944, 54 F.Supp. 193; Lands Division Manual 859. Even if it were thought desirable to allow the property owner's costs to be taxed against the United States, this is a matter for legislation and not court rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This amendment conforms to the amendment of Rule 4(f). NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule 71A(h) provides that except when Congress has provided otherwise, the issue of just compensation in a condemnation case may be tried by a jury if one of the parties so demands, unless the court in its discretion orders the issue determined by a commission of three persons. In 1980, the Comptroller General of the United States in a Report to Congress recommended that use of the commission procedure should be encouraged in order to improve and expedite the trial of condemnation cases. The Report noted that long delays were being caused in many districts by such factors as crowded dockets, the precedence given criminal cases, the low priority accorded condemnation matters, and the high turnover of Assistant United States Attorneys. The Report concluded that revising Rule 71A to make the use of the commission procedure more attractive might alleviate the situation. Accordingly, Rule 71A(h) is being amended in a number of respects designed to assure the quality and utility of a Rule 71A commission. First, the amended Rule will give the court discretion to appoint, in addition to the three members of a commission, up to two additional persons as alternate commissioners who would hear the case and be available, at any time up to the filing of the decision by the three-member commission, to replace any commissioner who becomes unable or disqualified to continue. The discretion to appoint alternate commissioners can be particularly useful in protracted cases, avoiding expensive retrials that have been required in some cases because of the death or disability of a commissioner. Prior to replacing a commissioner an alternate would not be present at, or participate in, the commission's deliberations. Second, the amended Rule requires the court, before appointment, to advise the parties of the identity and qualifications of each prospective commissioner and alternate. The court then may authorize the examination of prospective appointees by the parties and each party has the right to challenge for cause. The objective is to insure that unbiased and competent commissioners are appointed. The amended Rule does not prescribe a qualification standard for appointment to a commission, although it is understood that only persons possessing background and ability to appraise real estate valuation testimony and to award fair and just compensation on the basis thereof would be appointed. In most situations the chairperson should be a lawyer and all members should have some background qualifying them to weigh proof of value in the real estate field and, when possible, in the particular real estate market embracing the land in question. The amended Rule should give litigants greater confidence in the commission procedure by affording them certain rights to participate in the appointment of commission members that are roughly comparable to the practice with regard to jury selection. This is accomplished by giving the court permission to allow the parties to examine prospective commissioners and by recognizing the right of each party to object to the appointment of any person for cause. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. 1988 AMENDMENT Subd. (e). Pub. L. 100-690, which directed amendment of subd. (e) by striking 'taking of the defendants property' and inserting 'taking of the defendant's property', could not be executed because of the intervening amendment by the Court by order dated Apr. 25, 1988, eff. Aug. 1, 1988. -CROSS- CROSS REFERENCES Condemnation of property, right of Government officials, see section 257 of Title 40, Public Buildings, Property, and Works. District of Columbia, procedure in condemnation proceedings, see D.C. Code, Sec. 16-1351 to 16-1368 Jurisdiction and venue in condemnation proceedings, see sections 1358 and 1403 of this title. Possession and title, taking in advance of final judgment, see sections 258a to 258f of Title 40, Public Buildings, Property, and Works. Reclamation projects, compensation for rights-of-way, see section 945b of Title 43, Public Lands. Tennessee Valley Authority, procedure in condemnation proceedings, see section 831x of Title 16, Conservation. ------DocID 37122 Document 984 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 72 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 72. Magistrates; Pretrial Matters -STATUTE- (a) Nondispositive Matters. A magistrate to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. The district judge to whom the case is assigned shall consider objections made by the parties, provided they are served and filed within 10 days after the entry of the order, and shall modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law. (b) Dispositive Motions and Prisoner Petitions. A magistrate assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement shall promptly conduct such proceedings as are required. A record shall be made of all evidentiary proceedings before the magistrate, and a record may be made of such other proceedings as the magistrate deems necessary. The magistrate shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate. The clerk shall forthwith mail copies to all parties. A party objecting to the recommended disposition of the matter shall promptly arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a). This subdivision addresses court-ordered referrals of nondispositive matters under 28 U.S.C. Sec. 636(b)(1)(A). The rule calls for a written order of the magistrate's disposition to preserve the record and facilitate review. An oral order read into the record by the magistrate will satisfy this requirement. No specific procedures or timetables for raising objections to the magistrate's rulings on nondispositive matters are set forth in the Magistrates Act. The rule fixes a 10-day period in order to avoid uncertainty and provide uniformity that will eliminate the confusion that might arise if different periods were prescribed by local rule in different districts. It also is contemplated that a party who is successful before the magistrate will be afforded an opportunity to respond to objections raised to the magistrate's ruling. The last sentence of subdivision (a) specifies that reconsideration of a magistrate's order, as provided for in the Magistrates Act, shall be by the district judge to whom the case is assigned. This rule does not restrict experimentation by the district courts under 28 U.S.C. Sec. 636(b)(3) involving references of matters other than pretrial matters, such as appointment of counsel, taking of default judgments, and acceptance of jury verdicts when the judge is unavailable. Subdivision (b). This subdivision governs court-ordered referrals of dispositive pretrial matters and prisoner petitions challenging conditions of confinement, pursuant to statutory authorization in 28 U.S.C. Sec. 636(b)(1)(B). This rule does not extend to habeas corpus petitions, which are covered by the specific rules relating to proceedings under Sections 2254 and 2255 of Title 28. This rule implements the statutory procedures for making objections to the magistrate's proposed findings and recommendations. The 10-day period, as specified in the statute, is subject to Rule 6(e) which provides for an additional 3-day period when service is made by mail. Although no specific provision appears in the Magistrates Act, the rule specifies a 10-day period for a party to respond to objections to the magistrate's recommendation. Implementing the statutory requirements, the rule requires the district judge to whom the case is assigned to make a de novo determination of those portions of the report, findings, or recommendations to which timely objection is made. The term 'de novo' signifies that the magistrate's findings are not protected by the clearly erroneous doctrine, but does not indicate that a second evidentiary hearing is required. See United States v. Raddatz, 417 U.S. 667 (1980). See also Silberman, Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L.Rev. 1297, 1367 (1975). When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879, quoted in House Report No. 94-1609, 94th Cong. 2d Sess. (1976) at 3. Compare Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). Failure to make timely objection to the magistrate's report prior to its adoption by the district judge may constitute a waiver of appellate review of the district judge's order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37123 Document 985 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 73 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 73. Magistrates; Trial by Consent and Appeal Options -STATUTE- (a) Powers; Procedure. When specially designated to exercise such jurisdiction by local rule or order of the district court and when all parties consent thereto, a magistrate may exercise the authority provided by Title 28, U.S.C. Sec. 636(c) and may conduct any or all proceedings, including a jury or nonjury trial, in a civil case. A record of the proceedings shall be made in accordance with the requirements of Title 28, U.S.C. Sec. 636(c)(7). (b) Consent. When a magistrate has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent to the exercise by a magistrate of civil jurisdiction over the case, as authorized by Title 28, U.S.C. Sec. 636(c). If, within the period specified by local rule, the parties agree to a magistrate's exercise of such authority, they shall execute and file a joint form of consent or separate forms of consent setting forth such election. No district judge, magistrate, or other court official shall attempt to persuade or induce a party to consent to a reference of a civil matter to a magistrate under this rule, nor shall a district judge or magistrate be informed of a party's response to the clerk's notification, unless all parties have consented to the referral of the matter to a magistrate. The district judge, for good cause shown on the judge's motion, or under extraordinary circumstances shown by a party, may vacate a reference of a civil matter to a magistrate under this subdivision. (c) Normal Appeal Route. In accordance with Title 28, U.S.C. Sec. 636(c)(3), unless the parties otherwise agree to the optional appeal route provided for in subdivision (d) of this rule, appeal from a judgment entered upon direction of a magistrate in proceedings under this rule will lie to the court of appeals as it would from a judgment of the district court. (d) Optional Appeal Route. In accordance with Title 28, U.S.C. Sec. 636(c)(4), at the time of reference to a magistrate, the parties may consent to appeal on the record to a judge of the district court and thereafter, by petition only, to the court of appeals. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983, and amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a). This subdivision implements the broad authority of the 1979 amendments to the Magistrates Act, 28 U.S.C. Sec. 636(c), which permit a magistrate to sit in lieu of a district judge and exercise civil jurisdiction over a case, when the parties consent. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 364-79 (1979). In order to exercise this jurisdiction, a magistrate must be specially designated under 28 U.S.C. Sec. 636(c)(1) by the district court or courts he serves. The only exception to a magistrate's exercise of civil jurisdiction, which includes the power to conduct jury and nonjury trials and decide dispositive motions, is the contempt power. A hearing on contempt is to be conducted by the district judge upon certification of the facts and an order to show cause by the magistrate. See 28 U.S.C. Sec. 639(e). In view of 28 U.S.C. Sec. 636(c)(1) and this rule, it is unnecessary to amend Rule 58 to provide that the decision of a magistrate is a 'decision by the court' for the purposes of that rule and a 'final decision of the district court' for purposes of 28 U.S.C. Sec. 1291 governing appeals. Subdivision (b). This subdivision implements the blind consent provision of 28 U.S.C. Sec. 636(c)(2) and is designed to ensure that neither the judge nor the magistrate attempts to induce a party to consent to reference of a civil matter under this rule to a magistrate. See House Rep. No. 96-444, 96th Cong. 1st Sess. 8 (1979). The rule opts for a uniform approach in implementing the consent provision by directing the clerk to notify the parties of their opportunity to elect to proceed before a magistrate and by requiring the execution and filing of a consent form or forms setting forth the election. However, flexibility at the local level is preserved in that local rules will determine how notice shall be communicated to the parties, and local rules will specify the time period within which an election must be made. The last paragraph of subdivision (b) reiterates the provision in 28 U.S.C. Sec. 636(c)(6) for vacating a reference to the magistrate. Subdivision (c). Under 28 U.S.C. Sec. 636(c)(3), the normal route of appeal from the judgment of a magistrate - the only route that will be available unless the parties otherwise agree in advance - is an appeal by the aggrieved party 'directly to the appropriate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court.' The quoted statutory language indicates Congress' intent that the same procedures and standards of appealability that govern appeals from district court judgments govern appeals from magistrates' judgments. Subdivision (d). 28 U.S.C. Sec. 636(c)(4) offers parties who consent to the exercise of civil jurisdiction by a magistrate an alternative appeal route to that provided in subdivision (c) of this rule. This optional appellate route was provided by Congress in recognition of the fact that not all civil cases warrant the same appellate treatment. In cases where the amount in controversy is not great and there are no difficult questions of law to be resolved, the parties may desire to avoid the expense and delay of appeal to the court of appeals by electing an appeal to the district judge. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 388 (1979). This subdivision provides that the parties may elect the optional appeal route at the time of reference to a magistrate. To this end, the notice by the clerk under subdivision (b) of this rule shall explain the appeal option and the corollary restriction on review by the court of appeals. This approach will avoid later claims of lack of consent to the avenue of appeal. The choice of the alternative appeal route to the judge of the district court should be made by the parties in their forms of consent. Special appellate rules to govern appeals from a magistrate to a district judge appear in new Rules 74 through 76. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37124 Document 986 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 74 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 74. Method of Appeal From Magistrate to District Judge Under Title 28, U.S.C. Sec. 636(c)(4) and Rule 73(d) -STATUTE- (a) When Taken. When the parties have elected under Rule 73(d) to proceed by appeal to a district judge from an appealable decision made by a magistrate under the consent provisions of Title 28, U.S.C. Sec. 636(c)(4), an appeal may be taken from the decision of a magistrate by filing with the clerk of the district court a notice of appeal within 30 days of the date of entry of the judgment appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days thereafter, or within the time otherwise prescribed by this subdivision, whichever period last expires. The running of the time for filing a notice of appeal is terminated as to all parties by the timely filing of any of the following motions with the magistrate by any party, and the full time for appeal from the judgment entered by the magistrate commences to run anew from entry of any of the following orders: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. An interlocutory decision or order by a magistrate which, if made by a judge of the district court, could be appealed under any provision of law, may be appealed to a judge of the district court by filing a notice of appeal within 15 days after entry of the decision or order, provided the parties have elected to appeal to a judge of the district court under Rule 73(d). An appeal of such interlocutory decision or order shall not stay the proceedings before the magistrate unless the magistrate or judge shall so order. Upon a showing of excusable neglect, the magistrate may extend the time for filing a notice of appeal upon motion filed not later than 20 days after the expiration of the time otherwise prescribed by this rule. (b) Notice of Appeal; Service. The notice of appeal shall specify the party or parties taking the appeal, designate the judgment, order or part thereof appealed from, and state that the appeal is to a judge of the district court. The clerk shall mail copies of the notice to all other parties and note the date of mailing in the civil docket. (c) Stay Pending Appeal. Upon a showing that the magistrate has refused or otherwise failed to stay the judgment pending appeal to the district judge under Rule 73(d), the appellant may make application for a stay to the district judge with reasonable notice to all parties. The stay may be conditioned upon the filing in the district court of a bond or other appropriate security. (d) Dismissal. For failure to comply with these rules or any local rule or order, the district judge may take such action as is deemed appropriate, including dismissal of the appeal. The district judge also may dismiss the appeal upon the filing of a stipulation signed by all parties, or upon motion and notice by the appellant. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a). This rule governs appeals from decisions of magistrates exercising consensual civil jurisdiction under Rule 73 when the parties elect to appeal to a judge of the district court under subdivision (d) of that rule. Congress specified that such an appeal would be 'on the record to a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals.' See 28 U.S.C. Sec. 636(c)(4). Presumably, Congress intended that the district court follow the same general procedures, including the 'clearly erroneous' factual review standard of Civil Rule 52(a), that a court of appeals follows in reviewing a judgment of the district court. However, Congress also provided that 'whenever possible' the local rules of the district court shall endeavor to make appeals expeditious and inexpensive. See 28 U.S.C. Sec. 636(c)(4). Since the Federal Rules of Appellate Procedure are designed to cover appeals from a single judge to a three-member appeal tribunal, some modifications have proved desirable in assuring an expeditious appeal from a magistrate to a single district judge. Rules 74 through 76 provide this set of rules governing appeals from magistrates' exercise of consensual jurisdiction. The time limits in subdivision (a) generally conform to those in Appellate Rule 4(a), except that the period in which a party may move for leave to file a late notice of appeal on grounds of excusable neglect is 20 days, rather than the 30-day period provided for in the Appellate Rules. The term 'appealable decision' as used in this rule embraces the 'final decision' concept of 28 U.S.C. Sec. 1291 and permits an appeal from a magistrate to a district judge in those situations in which an appeal from a district judge to the court of appeals would lie. That term, along with the specific provision in the rule permitting appeals of certain interlocutory orders, incorporates by reference the provisions of 28 U.S.C. Sec. 1292 and adopts, by analogy to Section 1292(b), a certification procedure for otherwise unappealable orders 'where the order is based on a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.' Although no specific certification procedure is set forth, the rule contemplates that a magistrate may certify such an order for appeal, and the district judge, in his discretion, may allow the appeal. In the interest of expediting the trial, interlocutory appeals of any kind will not stay the proceedings unless the magistrate or district judge finds that the nature of the appeal or its relation to the remaining proceedings requires a stay. Subdivision (b). The provisions governing the content and service of the notice of appeal conform substantially to Rules 3(c) and 3(d) of the Federal Rules of Appellate Procedure. Subdivision (c). This subdivision represents a simplified version of Rule 8 of the Federal Rules of Appellate Procedure. Under this subdivision, the district judge is in the position of an appellate judge under Rule 8 of the Appellate Rules when the judge below has refused a stay under Rule 62. In proceedings under 28 U.S.C. Sec. 636(c), an application for a stay of the judgment under Rule 62 initially will be made to the magistrate. The district judge under this rule may hear an application for a stay of the judgment upon a showing that the magistrate has refused to stay the judgment pending appeal to the distric judge. Subdivision (d). The provisions governing dismissal are similar to Rule 3(a) (failure to prosecute) and Rule 42(a) (voluntary dismissal) of the Federal Rules of Appellate Procedure. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37125 Document 987 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 75 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 75. Proceedings on Appeal From Magistrate to District Judge Under Rule 73(d) -STATUTE- (a) Applicability. In proceedings under Title 28, U.S.C. Sec. 636(c), when the parties have previously elected under Rule 73(d) to appeal to a district judge rather than to the court of appeals, this rule shall govern the proceedings on appeal. (b) Record on Appeal. (1) Composition. The original papers and exhibits filed with the clerk of the district court, the transcript of the proceedings, if any, and the docket entries shall constitute the record on appeal. In lieu of this record the parties, within 10 days after the filing of the notice of appeal, may file a joint statement of the case showing how the issues presented by the appeal arose and were decided by the magistrate, and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. (2) Transcript. Within 10 days after filing the notice of appeal the appellant shall make arrangements for the production of a transcript of such parts of the proceedings as the appellant deems necessary. Unless the entire transcript is to be included, the appellant, within the time provided above, shall serve on the appellee and file with the court a description of the parts of the transcript which the appellant intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary, within 10 days after the service of the statement of the appellant, the appellee shall serve on the appellant and file with the court a designation of additional parts to be included. The appellant shall promptly make arrangements for the inclusion of all such parts unless the magistrate, upon motion, exempts the appellant from providing certain parts, in which case the appellee may provide for their transcription. (3) Statement in Lieu of Transcript. If no record of the proceedings is available for transcription, the parties shall, within 10 days after the filing of the notice of appeal, file a statement of the evidence from the best available means to be submitted in lieu of the transcript. If the parties cannot agree they shall submit a statement of their differences to the magistrate for settlement. (c) Time for Filing Briefs. Unless a local rule or court order otherwise provides, the following time limits for filing briefs shall apply. (1) The appellant shall serve and file the appellant's brief within 20 days after the filing of the transcript, statement of the case, or statement of the evidence. (2) The appellee shall serve and file the appellee's brief within 20 days after service of the brief of the appellant. (3) The appellant may serve and file a reply brief within 10 days after service of the brief of the appellee. (4) If the appellee has filed a cross-appeal, the appellee may file a reply brief limited to the issues on the cross-appeal within 10 days after service of the reply brief of the appellant. (d) Length and Form of Briefs. Briefs may be typewritten. The length and form of briefs shall be governed by local rule. (e) Oral Argument. The opportunity for the parties to be heard on oral argument shall be governed by local rule. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983, and amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a). 28 U.S.C. Sec. 636(c)(4) provides that whenever possible the local rules of the district court shall endeavor to make appeals from the magistrate to the district judge expeditious and inexpensive. The provisions of this rule are directed to that end in simplifying the record on appeal and permitting typewritten briefs. The availability of oral argument and the length and form of briefs are matters appropriately left to local rule. Subdivision (b). The provisions governing the composition of the record and the transcript are adapted from Rule 10 of the Federal Rules of Appellate Procedure. The language requiring the appellant to 'make arrangements for the production of a transcript' is broad enough to require the party to order a transcript from the court reporter or to make arrangements to transcribe a taped record of the proceedings. The magistrate is to settle any differences regarding the extent of the transcript and to require the appellant to provide for transcription of any additional portions designated by the appellee that are material to the issues on appeal. Naturally, the rule is subject to the operation of 28 U.S.C. Sec. 1915 in the case of a party who is unable to pay such costs. Although it is not anticipated that an appeal will often be taken from a hearing or trial of which no record was made, the parties do have the option to forego a record in routine matters under 28 U.S.C. Sec. 636(c)(7). In such cases a statement of the evidence will be prepared by the parties (or by the magistrate if the parties cannot agree) from the best available means, including the recollections and notes of the parties and the magistrate. Subdivision (c). Although the parties, with agreement of the court, can dispense with the filing of briefs, a schedule for the serving and filing of briefs will often be necessary. In lieu of the elaborate provisions of Rules 28 through 32 of the Federal Rules of Appellate Procedure, this rule adopts a simplified approach for the filing and serving of briefs in order to achieve an inexpensive and expeditious appeal from a magistrate's judgment to a district judge. The timing of the appellant's initial brief is tied to the filing of the transcript or statement, instead of the filing of the record (Appellate Rule 31(a)) or the docketing of the appeal, because the rest of the record is already in the hands of the district court clerk and need not be transmitted. This rule does not require payment of a filing fee. Thus the filing of the transcript or statement is all that remains of the traditional concepts of filing the record and docketing the appeal. The introductory clause of the rule recognizes the desirability of allowing local and individual variations in the filing of briefs, and the numbered clauses prescribe shorter periods than the corresponding intervals allowed by Appellate Rule 31(a). The provision allowing a reply brief for an appellee who has filed a cross-appeal is taken from Appellate Rule 28(c). Subdivision (d). The use of typewritten briefs is urged as a means of minimizing costs and of expediting appeals from the magistrate to the district judge. The form and length of briefs should be addressed as a matter of local rule in order to avoid resort to the more elaborate provisions of the Federal Rules of Appellate Procedure. Subdivision (e). The availability of oral argument has been left as a matter for local rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37126 Document 988 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 76 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE VIII -HEAD- Rule 76. Judgment of the District Judge on the Appeal Under Rule 73(d) and Costs -STATUTE- (a) Entry of Judgment. When the parties have elected under Rule 73(d) to appeal from a judgment of the magistrate to a district judge, the clerk shall prepare, sign, and enter judgment in accordance with the order or decision of the district judge following an appeal from a judgment of the magistrate, unless the district judge directs otherwise. The clerk shall mail to all parties a copy of the order or decision of the district judge. (b) Stay of Judgments. The decision of the district judge shall be stayed for 10 days during which time a party may petition the district judge for rehearing, and a timely petition shall stay the decision of the district judge pending disposition of a petition for rehearing. Upon the motion of a party, the decision of the district judge may be stayed in order to allow a party to petition the court of appeals for leave to appeal. (c) Costs. Except as otherwise provided by law or ordered by the district judge, costs shall be taxed against the losing party; if a judgment of the magistrate is affirmed in part or reversed in part, or is vacated, costs shall be allowed only as ordered by the district judge. The cost of the transcript, if necessary for the determination of the appeal, and the premiums paid for bonds to preserve rights pending appeal shall be taxed as costs by the clerk. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (a). This subdivision, adapted from Rule 36 of the Federal Rules of Appellate Procedure, directs the clerk to enter judgment in accordance with the order or decision of the district judge affirming, reversing, or modifying the judgment of the magistrate and to mail copies of the order or decision to all parties. Subdivision (b). This subdivision, adapted from Rule 41 of the Federal Rules of Appellate Procedure, stays the effect of the district judge's decision on an appeal from a judgment of the magistrate. The availability of a rehearing by the district judge is contemplated (see Appellate Rule 40), but no particular form of petition is specified by the rule. The initial 10-day stay and the stay pending disposition of a timely petition for rehearing operate automatically upon the magistrate and all parties. Any other stay is at the discretion of the district judge. Subdivision (c). This provision for costs on appeal is adapted from Rule 39 of the Federal Rules of Appellate Procedure to achieve the inexpensive appellate process envisioned for district judge review of magistrate action. No filing fee is required since a single clerk's office handles the file throughout, and no bond for costs is required. Ordinarily the only costs will be the costs of the transcript and the premium for any supersedeas bond. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. ------DocID 37127 Document 989 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE (IX -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE (IX -HEAD- (IX. APPEALS) (Abrogated Dec. 4, 1967, eff. July 1, 1968) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES These (Rules 72-76) are the civil rules relating to appeals, the provisions of which, except for Rule 73(h), are transferred to and covered by the Federal Rules of Appellate Procedure and (in the case of Rule 72) by the Rules of the Supreme Court. The substance of Rule 73(h) is to be transferred to Rule 9(h). ------DocID 37128 Document 990 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE X -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE X -HEAD- X. DISTRICT COURTS AND CLERKS ------DocID 37129 Document 991 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 77 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE X -HEAD- Rule 77. District Courts and Clerks -STATUTE- (a) District Courts Always Open. The district courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, and rules. (b) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the district; but no hearing, other than one ex parte, shall be conducted outside the district without the consent of all parties affected thereby. (c) Clerk's Office and Orders by Clerk. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays, but a district court may provide by local rule or order that its clerk's office shall be open for specified hours on Saturdays or particular legal holidays other than New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but the clerk's action may be suspended or altered or rescinded by the court upon cause shown. (d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule states the substance of U.S.C., Title 28, Sec. 13 (now 452) (Courts open as courts of admiralty and equity). Compare (former) Equity Rules 1 (District Court Always Open For Certain Purposes - Orders at Chambers), 2 (Clerk's Office Always Open, Except, Etc.), 4 (Notice of Orders), and 5 (Motions Grantable of Course by Clerk). NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Rule 77(d) has been amended to avoid such situations as the one arising in Hill v. Hawes, 1944, 320 U.S. 520. In that case, an action instituted in the District Court for the District of Columbia, the clerk failed to give notice of the entry of a judgment for defendant as required by Rule 77(d). The time for taking an appeal then was 20 days under Rule 10 of the Court of Appeals (later enlarged by amendment to thirty days), and due to lack of notice of the entry of judgment the plaintiff failed to file his notice of appeal within the prescribed time. On this basis the trial court vacated the original judgment and then reentered it, whereupon notice of appeal was filed. The Court of Appeals dismissed the appeal as taken too late. The Supreme Court, however, held that although Rule 77(d) did not purport to attach any consequence to the clerk's failure to give notice as specified, the terms of the rule were such that the appellant was entitled to rely on it, and the trial court in such a case, in the exercise of a sound discretion, could vacate the former judgment and enter a new one, so that the appeal would be within the allowed time. Because of Rule 6(c), which abolished the old rule that the expiration of the term ends a court's power over its judgment, the effect of the decision in Hill v. Hawes is to give the district court power, in its discretion and without time limit, and long after the term may have expired, to vacate a judgment and reenter it for the purpose of reviving the right of appeal. This seriously affects the finality of judgments. See also proposed Rule 6(c) and Note; proposed Rule 60(b) and Note; and proposed Rule 73(a) and Note. Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal; but in considering an application for extension of time for appeal as provided in Rule 73(a), the court may take into account, as one of the factors affecting its decision, whether the clerk failed to give notice as provided in Rule 77(d) or the party failed to receive the clerk's notice. It need not, however, extend the time for appeal merely because the clerk's notice was not sent or received. It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party's failure to serve notice of the entry of a judgment. Any party may, of course, serve timely notice of the entry of a judgment upon the adverse party and thus preclude a successful application, under Rule 73(a), for the extension of the time for appeal. NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (c). The amendment authorizes closing of the clerk's office on Saturday as far as civil business is concerned. However, a district court may require its clerk's office to remain open for specified hours on Saturdays or 'legal holidays' other than those enumerated. ('Legal holiday' is defined in Rule 6(a), as amended.) The clerk's offices of many district courts have customarily remained open on some of the days appointed as holidays by State law. This practice could be continued by local rule or order. Subdivision (d). This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee's Note to that amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT The provisions of Rule 73(a) are incorporated in Rule 4(a) of the Federal Rules of Appellate Procedure. NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 6(a). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. The Birthday of Martin Luther King, Jr. is added to the list of national nolidays in Rule 77. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Appellate Procedure, referred to in text, are set out in this Appendix. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Courts always open, see rule 56, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Books and records kept by clerk and entries therein, see rule 79. Courts always open, see section 452 of this title. Entry of default judgment by clerk, see rule 55. Execution, see rule 69. Service of papers on attorney or party, see rule 5. ------DocID 37130 Document 992 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 78 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE X -HEAD- Rule 78. Motion Day -STATUTE- Unless local conditions make it impracticable, each district court shall establish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but the judge at any time or place and on such notice, if any, as the judge considers reasonable may make orders for the advancement, conduct, and hearing of actions. To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition. -SOURCE- (As amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Compare (former) Equity Rule 6 (Motion Day) with the first paragraph of this rule. The second paragraph authorizes a procedure found helpful for the expedition of business in some of the Federal and State courts. See Rule 43(e) of these rules dealing with evidence on motions. Compare Civil Practice Rules of the Municipal Court of Chicago (1935), Rules 269, 270, 271. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Motions, see rules 45, 47, 49, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Local rules not to be inconsistent with these rules, see rule 83. Motions and other papers, see rule 7. Service of affidavits in support of and in opposition to motions, see rule 6. Time for noticing motions, see rule 6. Use of affidavits on motions, see rule 43. ------DocID 37131 Document 993 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 79 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE X -HEAD- Rule 79. Books and Records Kept by the Clerk and Entries Therein -STATUTE- (a) Civil Docket. The clerk shall keep a book known as 'civil docket' of such form and style as may be prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, and shall enter therein each civil action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the folio of the docket whereon the first entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. When in an action trial by jury has been properly demanded or ordered the clerk shall enter the word 'jury' on the folio assigned to that action. (b) Civil Judgments and Orders. The clerk shall keep, in such form and manner as the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States may prescribe, a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept. (c) Indices; Calendars. Suitable indices of the civil docket and of every civil judgment and order referred to in subdivision (b) of this rule shall be kept by the clerk under the direction of the court. There shall be prepared under the direction of the court calendars of all actions ready for trial, which shall distinguish 'jury actions' from 'court actions.' (d) Other Books and Records of the Clerk. The clerk shall also keep such other books and records as may be required from time to time by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Compare (former) Equity Rule 3 (Books Kept by Clerk and Entries Therein). In connection with this rule, see also the following statutes of the United States: U.S.C., Title 5: Sec. 301 (see Title 28, Sec. 526) (Officials for investigation of official acts, records and accounts of marshals, attorneys, clerks of courts, United States commissioners, referees and trustees) Sec. 318 (former) (Accounts of district attorneys) U.S.C., Title 28: Sec. 556 (former) (Clerks of district courts; books open to inspection) Sec. 567 (now 751) (Same; accounts) Sec. 568 (now 751) (Same; reports and accounts of moneys received; dockets) Sec. 813 (former) (Indices of judgment debtors to be kept by clerks) And see 'Instructions to United States Attorneys, Marshals, Clerks and Commissioners' issued by the Attorney General of the United States. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivision (a). The amendment substitutes the Director of the Administrative Office of the United States Courts, acting subject to the approval of the Judicial Conference of Senior Circuit Judges, in the place of the Attorney General as a consequence of and in accordance with the provisions of the act establishing the Administrative Office and transferring functions thereto. Act of August 7, 1939, ch. 501, Sec. 1-7, 53 Stat. 1223, 28 U.S.C. Sec. 444-450 (now 601-610). Subdivision (b). The change in this subdivision does not alter the nature of the judgments and orders to be recorded in permanent form but it does away with the express requirement that they be recorded in a book. This merely gives latitude for the preservation of court records in other than book form, if that shall seem advisable, and permits with the approval of the Judicial Conference and adoption of such modern, space-saving methods as microphotography. See Proposed Improvements in the Administration of the Offices of Clerks of United States District Courts, prepared by the Bureau of the Budget, 1941, 38-42. See also Rule 55, Federal Rules of Criminal Procedure (following section 687 of Title 18 U.S.C.). Subdivision (c). The words 'Separate and' have been deleted as unduly rigid. There is no sufficient reason for requiring that the indices in all cases be separate; on the contrary, the requirement frequently increases the labor of persons searching the records as well as the labor of the clerk's force preparing them. The matter should be left to administrative discretion. The other changes in the subdivision merely conform with those made in subdivision (b) of the rule. Subdivision (d). Subdivision (d) is a new provision enabling the Administrative Office, with the approval of the Judicial Conference, to carry out any improvements in clerical procedure with respect to books and records which may be deemed advisable. See report cited in Note to subdivision (b), supra. 1948 AMENDMENT The amendment effective October 1949 substituted the name, 'Judicial Conference of the United States,' for 'Judicial Conference of Senior Circuit Judges,' in the first sentence of subdivision (a), and in subdivisions (b) and (d). NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT The terminology is clarified without any change of the prescribed practice. See amended Rule 58, and the Advisory Committee's Note thereto. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Notice of entry of orders by clerk, see rule 49, Title 18, Appendix, Crimes and Criminal Procedure. Records, see rule 55. CROSS REFERENCES Entry of judgment, see rule 58. Examination of court dockets by Director of Administrative Office of the United States Courts, see section 604 of this title. Filing of pleading and other papers with clerk or judge, see rule 5. Lien of judgment, see section 1962 of this title. Notice of entry of judgment or order, see rule 77. Obsolete papers disposed of in accordance with rules of Judicial Conference of the United States, see section 457 of this title. Registration of judgments for money or property in other districts, see section 1963 of this title. Return of execution of process, see rule 4. Survey and recommendation of Judicial Conference of the United States, see section 331 of this title. Time for serving demand for jury trial, see rule 38. ------DocID 37132 Document 994 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 80 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE X -HEAD- Rule 80. Stenographer; Stenographic Report or Transcript as Evidence -STATUTE- ((a) Stenographer.) (Abrogated Dec. 27, 1946, eff. Mar. 19, 1948) ((b) Official Stenographer.) (Abrogated Dec. 27, 1946, eff. Mar. 19, 1948) (c) Stenographic Report or Transcript as Evidence. Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This follows substantially (former) Equity Rule 50 (Stenographer - Appointment - Fees). (This subdivision was abrogated. See amendment note of Advisory Committee below.) Note to Subdivision (b). See Reports of Conferences of Senior Circuit Judges with the Chief Justice of the United States (1936), 22 A.B.A.J. 818, 819; (1937), 24 A.B.A.J. 75, 77. (This subdivision was abrogated. See amendment note of Advisory Committee below.) Note to Subdivision (c). Compare Iowa Code (1935) Sec. 11353. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. Subdivisions (a) and (b) of Rule 80 have been abrogated because of Public Law 222, 78th Cong., ch. 3, 2d Sess., approved Jan. 20, 1944, 28 U.S.C. Sec. 9a (now 550, 604, 753, 1915, 1920), providing for the appointment of official stenographers for each district court, prescribing their duties, providing for the furnishing of transcripts, the taxation of the fees therefor as costs and other related matters. This statute has now been implemented by Congressional appropriation available for the fiscal year beginning July 1, 1945. Subdivision (c) of Rule 80 (Stenographic Report or Transcript as Evidence) has been retained unchanged. -CROSS- CROSS REFERENCES Appointment and compensation of court reporters, see section 753 of this title. Fees for transcripts of court reporters, see section 753 of this title. Fees of court reporter for stenographic transcript taxable as costs, see section 1920 of this title. Payment by United States for fees for transcripts and printing record on appeal furnished persons proceeding in forma pauperis, see sections 753 and 1915 of this title. Proof of official record, see rule 44. ------DocID 37133 Document 995 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE XI -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- XI. GENERAL PROVISIONS ------DocID 37134 Document 996 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 81 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 81. Applicability in General -STATUTE- (a) To What Proceedings Applicable. (1) These rules do not apply to prize proceedings in admiralty governed by Title 10, U.S.C., Sec. 7651-7681. They do not apply to proceedings in bankruptcy or proceedings in copyright under Title 17, U.S.C., except in so far as they may be made applicable thereto by rules promulgated by the Supreme Court of the United States. They do not apply to mental health proceedings in the United States District Court for the District of Columbia. (2) These rules are applicable to proceedings for admission to citizenship, habeas corpus, and quo warranto, to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions. The writ of habeas corpus, or order to show cause, shall be directed to the person having custody of the person detained. It shall be returned within 3 days unless for good cause shown additional time is allowed which in cases brought under 28 U.S.C. Sec. 2254 shall not exceed 40 days, and in all other cases shall not exceed 20 days. (3) In proceedings under Title 9, U.S.C., relating to arbitration, or under the Act of May 20, 1926, ch. 347, Sec. 9 (44 Stat. 585), U.S.C., Title 45, Sec. 159, relating to boards of arbitration of railway labor disputes, these rules apply only to the extent that matters of procedure are not provided for in those statutes. These rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings. (4) These rules do not alter the method prescribed by the Act of February 18, 1922, ch. 57, Sec. 2 (42 Stat. 388), U.S.C., Title 7, Sec. 292; or by the Act of June 10, 1930, ch. 436, Sec. 7 (46 Stat. 534), as amended, U.S.C., Title 7, Sec. 499g(c), for instituting proceedings in the United States district courts to review orders of the Secretary of Agriculture; or prescribed by the Act of June 25, 1934, ch. 742, Sec. 2 (48 Stat. 1214), U.S.C., Title 15, Sec. 522, for instituting proceedings to review orders of the Secretary of the Interior; or prescribed by the Act of February 22, 1935, ch. 18, Sec. 5 (49 Stat. 31), U.S.C., Title 15, Sec. 715d(c), as extended, for instituting proceedings to review orders of petroleum control boards; but the conduct of such proceedings in the district courts shall be made to conform to these rules so far as applicable. (5) These rules do not alter the practice in the United States district courts prescribed in the Act of July 5, 1935, ch. 372, Sec. 9 and 10 (49 Stat. 453), as amended, U.S.C., Title 29, Sec. 159 and 160, for beginning and conducting proceedings to enforce orders of the National Labor Relations Board; and in respects not covered by those statutes, the practice in the district courts shall conform to these rules so far as applicable. (6) These rules apply to proceedings for enforcement or review of compensation orders under the Longshoremen's and Harbor Workers' Compensation Act, Act of March 4, 1927, c. 509, Sec. 18, 21 (44 Stat. 1434, 1436), as amended, U.S.C., Title 33, Sec. 918, 921, except to the extent that matters of procedure are provided for in that Act. The provisions for service by publication and for answer in proceedings to cancel certificates of citizenship under the Act of June 27, 1952, c. 477, Title III, c. 2, Sec. 340 (66 Stat. 260), U.S.C., Title 8, Sec. 1451, remain in effect. ((7)) (Abrogated Apr. 30, 1951, eff. Aug. 1, 1951) (b) Scire Facias and Mandamus. The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules. (c) Removed Actions. These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal. Repleading is not necessary unless the court so orders. In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest. If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if the party's demand therefor is served within 10 days after the petition for removal is filed if the party is the petitioner, or if not the petitioner within 10 days after service on the party of the notice of filing the petition. A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal. If state law applicable in the court from which the case is removed does not require the parties to make express demands in order to claim trial by jury, they need not make demands after removal unless the court directs that they do so within a specified time if they desire to claim trial by jury. The court may make this direction on its own motion and shall do so as a matter of course at the request of any party. The failure of a party to make demand as directed constitutes a waiver by that party of trial by jury. ((d) District of Columbia; Courts and Judges.) (Abrogated Dec. 29, 1948, eff. Oct. 20, 1949) (e) Law Applicable. Whenever in these rules the law of the state in which the district court is held is made applicable, the law applied in the District of Columbia governs proceedings in the United States District Court for the District of Columbia. When the word 'state' is used, it includes, if appropriate, the District of Columbia. When the term 'statute of the United States' is used, it includes, so far as concerns proceedings in the United States District Court for the District of Columbia, any Act of Congress locally applicable to and in force in the District of Columbia. When the law of a state is referred to, the word 'law' includes the statutes of that state and the state judicial decisions construing them. (f) References to Officer of the United States. Under any rule in which reference is made to an officer or agency of the United States, the term 'officer' includes a district director of internal revenue, a former district director or collector of internal revenue, or the personal representative of a deceased district director or collector of internal revenue. -SOURCE- (As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1, 1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). Paragraph (1): Compare the enabling act, act of June 19, 1934, U.S.C., Title 28, Sec. 723b (see 2072) (Rules in actions at law; Supreme Court authorized to make) and 723c (see 2072) (Union of equity and action at law rules; power of Supreme Court). For the application of these rules in bankruptcy and copyright proceedings, see Orders xxxvi and xxxvii in Bankruptcy and Rule 1 of Rules of Practice and Procedure under Sec. 25 of the copyright act, act of March 4, 1909, U.S.C., Title 17, Sec. 25 (see 412, 501 to 504) (Infringement and rules of procedure). For examples of statutes which are preserved by paragraph (2) see: U.S.C., Title 8, ch. 9 (former) (Naturalization); Title 28, ch. 14 (now 153) (Habeas corpus); Title 28, Sec. 377a-377c (now D.C. Code, Title 16, Sec. 3501 et seq.) (Quo warranto); and such forfeiture statutes as U.S.C., Title 7, Sec. 116 (Misbranded seeds, confiscation), and Title 21, Sec. 14 (see 334(b)) (Pure Food and Drug Act - condemnation of adulterated or misbranded food; procedure). See also 443 Cans of Frozen Eggs Product v. U.S., 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174 (1912). For examples of statutes which under paragraph (7) will continue to govern procedure in condemnation cases, see U.S.C., Title 40, Sec. 258 (Condemnation of realty for sites for public building, etc., procedure); U.S.C., Title 16, Sec. 831x (Condemnation by Tennessee Valley Authority); U.S.C., Title 40, Sec. 120 (Acquisition of lands for public use in District of Columbia); Title 40, ch. 7 (now D.C. Code, Title 16, Sec. 1301 et seq.) (Acquisition of lands in District of Columbia for use of United States; condemnation). Note to Subdivision (b). Some statutes which will be affected by this subdivision are: U.S.C., Title 7: Sec. 222 (Federal Trade Commission powers adopted for enforcement of Stockyards Act) (By reference to Title 15, Sec. 49) U.S.C., Title 15: Sec. 49 (Enforcement of Federal Trade Commission orders and antitrust laws) Sec. 77t(c) (Enforcement of Securities and Exchange Commission orders and Securities Act of 1933) Sec. 78u(f) (Same; Securities Exchange Act of 1934) Sec. 79r(g) (Same; Public Utility Holding Company Act of 1935) U.S.C., Title 16: Sec. 820 (Proceedings in equity for revocation or to prevent violations of license of Federal Power Commission licensee) Sec. 825m(b) (Mandamus to compel compliance with Federal Water Power Act, etc.) U.S.C., Title 19: Sec. 1333(c) (Mandamus to compel compliance with orders of Tariff Commission, etc.) U.S.C., Title 28: Sec. 377 (now 1651) (Power to issue writs) Sec. 572 (now 1923) (Fees, attorneys, solicitors and proctors) Sec. 778 (former) (Death of parties; substitution of executor or administrator). Compare Rule 25(a) (Substitution of parties; death), and the note thereto. U.S.C., Title 33: Sec. 495 (Removal of bridges over navigable waters) U.S.C., Title 45: Sec. 88 (Mandamus against Union Pacific Railroad Company) Sec. 153(p) (Mandamus to enforce orders of Adjustment Board under Railway Labor Act) Sec. 185 (Same; National Air Transport Adjustment Board) (By reference to Sec. 153) U.S.C., Title 47: Sec. 11 (Powers of Federal Communications Commission) Sec. 401(a) (Enforcement of Federal Communications Act and orders of Commission) Sec. 406 (Same; compelling furnishing of facilities; mandamus) U.S.C., Title 49: Sec. 19a(l) (now 11703) (Mandamus to compel compliance with Interstate Commerce Act) Sec. 20(9) (now 11703) (Jurisdiction to compel compliance with interstate commerce laws by mandamus) For comparable provisions in state practice see Ill. Rev. Stat. (1937), ch. 110, Sec. 179; Calif. Code Civ. Proc. (Deering, 1937) Sec. 802. Note to Subdivision (c). Such statutes as the following dealing with the removal of actions are substantially continued and made subject to these rules: U.S.C., Title 28: Sec. 71 (now 1441, 1445, 1447) (Removal of suits from state courts) Sec. 72 (now 1446, 1447) (Same; procedure) Sec. 73 (former) (Same; suits under grants of land from different states) Sec. 74 (now 1443, 1446, 1447) (Same; causes against persons denied civil rights) Sec. 75 (now 1446) (Same; petitioner in actual custody of state court) Sec. 76 (now 1442, 1446, 1447) (Same; suits and prosecutions against revenue officers) Sec. 77 (now 1442) (Same; suits by aliens) Sec. 78 (now 1449) (Same; copies of records refused by clerk of state court) Sec. 79 (now 1450) (Same; previous attachment bonds or orders) Sec. 80 (now 1359, 1447, 1919) (Same; dismissal or remand) Sec. 81 (now 1447) (Same; proceedings in suits removed) Sec. 82 (former) (Same; record; filing and return) Sec. 83 (now 1447, 1448) (Service of process after removal) U.S.C., Title 28, Sec. 72 (now 1446, 1447), supra, however, is modified by shortening the time for pleading in removed actions. Note to Subdivision (e). The last sentence of this subdivision modifies U.S.C., Title 28, Sec. 725 (now 1652) (Laws of States as rules of decision) in so far as that statute has been construed to govern matters of procedure and to exclude state judicial decisions relative thereto. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note to Subdivision (a). Despite certain dicta to the contrary, Lynn v. United States, C.C.A.5th, 1940, 110 F.2d 586; Mount Tivy Winery, Inc. v. Lewis, N.D.Cal. 1942, 42 F.Supp. 636, it is manifest that the rules apply to actions against the United States under the Tucker Act (28 U.S.C., Sec. 41(20), 250, 251, 254, 257, 258, 287, 289, 292, 761-765 (now 791, 1346, 1401, 1402, 1491, 1493, 1496, 1501, 1503, 2071, 2072, 2411, 2412, 2501, 2506, 2509, 2510)). See United States to use of Foster Wheeler Corp. v. American Surety Co. of New York, E.D.N.Y. 1939, 25 F.Supp. 700; Boerner v. United States, E.D.N.Y. 1939, 26 F.Supp. 769; United States v. Gallagher, C.C.A.9th, 1945, 151 F.2d 556. Rules 1 and 81 provide that the rules shall apply to all suits of a civil nature, whether cognizable as cases at law or in equity, except those specifically excepted; and the character of the various proceedings excepted by express statement in Rule 81, as well as the language of the rules generally, shows that the term 'civil action' (Rule 2) includes actions against the United States. Moreover, the rules in many places expressly make provision for the situation wherein the United States is a party as either plaintiff or defendant. See Rules 4(d)(4), 12(a), 13(d), 25(d), 37(f), 39(c), 45(c), 54(d), 55(e), 62(e), and 65(c). In United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, the Solicitor General expressly conceded in his brief for the United States that the rules apply to Tucker Act cases. The Solicitor General stated: 'The Government, of course, recognizes that the Federal Rules of Civil Procedure apply to cases brought under the Tucker Act.' (Brief for the United States, p. 31). Regarding Lynn v. United States, supra, The Solicitor General said: 'In Lynn v. United States * * * the Circuit Court of Appeals for the Fifth Circuit went beyond the Government's contention there, and held that an action under the Tucker Act is neither an action at law nor a suit in equity and, seemingly, that the Federal Rules of Civil Procedure are, therefore, inapplicable. We think the suggestion is erroneous. Rules 4(d), 12(a), 39(c), and 55(e) expressly contemplate suits against the United States, and nothing in the enabling Act (48 Stat. 1064, 28 U.S.C. Sec. 723b, 723c (see 2072)) suggests that the Rules are inapplicable to Tucker Act proceedings, which in terms are to accord with court rules and their subsequent modifications (Sec. 4, Act of March 3, 1887, 24 Stat. 505, 28 U.S.C., Sec. 761 (see 2071, 2072)).' (Brief for the United States, p. 31, n. 17.) United States v. Sherwood, supra, emphasizes, however, that the application of the rules in Tucker Act cases affects only matters of procedure and does not operate to extend jurisdiction. See also Rule 82. In the Sherwood case, the New York Supreme Court, acting under Sec. 795 of the New York Civil Practice Act, made an order authorizing Sherwood, as a judgment creditor, to maintain a suit under the Tucker Act to recover damages from the United States for breach of its contract with the judgment debtor, Kaiser, for construction of a post office building. Sherwood brought suit against the United States and Kaiser in the District Court for the Eastern District of New York. The question before the United States Supreme Court was whether a United States District Court had jurisdiction to entertain a suit against the United States wherein private parties were joined as parties defendant. It was contended that either the Federal Rules of Civil Procedure or the Tucker Act, or both, embodied the consent of the United States to be sued in litigations in which issues between the plaintiff and third persons were to be adjudicated. Regarding the effect of the Federal Rules, the Court declared that nothing in the rules, so far as they may be applicable in Tucker Act cases, authorized the maintenance of any suit against the United States to which it had not otherwise consented. The matter involved was not one of procedure but of jurisdiction, the limits of which were marked by the consent of the United States to be sued. The jurisdiction thus limited is unaffected by the Federal Rules of Civil Procedure. Subdivision (a)(2). The added sentence makes it clear that the rules have not superseded the requirements of U.S.C. Title 28, Sec. 466 (now 2253). Schenk v. Plummer, C.C.A. 9th 1940, 113 F.2d 726. For correct application of the rules in proceedings for forfeiture of property for violation of a statute of the United States, such as under U.S.C., Title 22, Sec. 405 (seizure of war materials intended for unlawful export) or U.S.C., Title 21, Sec. 334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21, U.S.C. Sec. 14, Pure Food and Drug Act), see Reynal v. United States, C.C.A.5th, 1945, 153 F.2d 929; United States v. 108 Boxes of Cheddar Cheese, S.D.Iowa 1943, 3 F.R.D. 40. Subdivision (a)(3). The added sentence makes it clear that the rules apply to appeals from proceedings to enforce administrative subpoenas. See Perkins v. Endicott Johnson Corp., C.C.A. 2d 1942; 128 F.2d 208, aff'd on other grounds, 1943, 317 U.S. 501, 63 S.Ct. 339; Walling v. News Printing, Inc., C.C.A. 3d, 1945, 148 F.2d 57; McCrone v. United States, 1939, 307 U.S. 61, 59 S.Ct. 685. And, although the provision allows full recognition of the fact that the rigid application of the rules in the proceedings themselves may conflict with the summary determination desired, Good year Tire & Rubber Co. v. National Labor Relations Board, C.C.A. 6th, 1941, 122 F.2d 450; Cudahy Packing Co. v. National Labor Relations Board, C.C.A. 10th, 1941, 117 F.2d 692, it is drawn so as to permit application of any of the rules in the proceedings whenever the district court deems them helpful. See, e.g., Peoples Natural Gas Co. v. Federal Power Commission, App. D.C. 1942, 127 F.2d 153, cert. den., 1942, 316 U.S. 700, 62 S.Ct. 1298; Martin v. Chandis Securities Co., C.C.A. 9th, 1942, 128 F.2d 731. Compare the application of the rules in summary proceedings in bankruptcy under General Order 37. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 326-327; 2 Collier, op. cit. supra, 1401-1402; 3 Collier, op. cit. supra, 228-231; 4 Collier, op. cit. supra, 1199-1202. Subdivision (a)(6). Section 405 of U.S.C., Title 8 originally referred to in the last sentence of paragraph (6), has been repealed and Sec. 738 (see 1451), U.S.C., Title 8, has been enacted in its stead. The last sentence of paragraph (6) has, therefore, been amended in accordance with this change. The sentence has also been amended so as to refer directly to the statute regarding the provision of time for answer, thus avoiding any confusion attendant upon a change in the statute. That portion of subdivision (a)(6) making the rules applicable to proceedings for enforcement or review of compensation orders under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. Sec. 901 et seq.) was added by an amendment made pursuant to order of the Court, December 28, 1939, effective three months subsequent to the adjournment of the 76th Congress, January 3, 1941. Subdivision (c). The change in subdivision (c) effects more speedy trials in removed actions. In some states many of the courts have only two terms a year. A case, if filed 20 days before a term, is returnable to that term, but if filed less than 20 days before a term, is returnable to the following term, which convenes six months later. Hence, under the original wording of Rule 81(c), where a case is filed less than 20 days before the term and is removed within a few days but before answer, it is possible for the defendant to delay interposing his answer or presenting his defenses by motion for six months or more. The rule as amended prevents this result. Subdivision (f). The use of the phrase 'the United States or an officer or agency thereof' in the rules (as e.g., in Rule 12(a) and amended Rule 73(a)) could raise the question of whether 'officer' includes a collector of internal revenue, a former collector, or the personal representative of a deceased collector, against whom suits for tax refunds are frequently instituted. Difficulty might ensue for the reason that a suit against a collector or his representative has been held to be a personal action. Sage v. United States, 1919, 250 U.S. 33, 39 S.Ct. 415; Smietanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42 S.Ct. 1; United States v. Nunnally Investment Co., 1942, 316 U.S. 258, 62 S.Ct. 1064. The addition of subdivision (f) to Rule 81 dispels any doubts on the matter and avoids further litigation. NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT The amendment effective October 1949 substituted the words 'United States District Court' for the words 'District Court of the United States' in the last sentence of subdivision (a)(1) and in the first and third sentences of subdivision (e). The amendment substituted the words 'United States district courts' for 'district courts of the United States' in subdivision (a)(4) and (5) and in the first sentence of subdivision (c). The amendment effective October 20, 1949, also made the following changes: In subdivision (a)(1), the reference to 'Title 17, U.S.C.' was substituted for the reference to 'the Act of March 4, 1909, ch. 320, Sec. 25 (35 Stat. 1081), as amended, U.S.C.; Title 17, Sec. 25.' In subdivision (a)(2), the reference to 'Title 28, U.S.C., Sec. 2253' was substituted for 'U.S.C., Title 28, Sec. 466.' In subdivision (a)(3), the reference in the first sentence to 'Title 9, U.S.C.,' was substituted for 'the Act of February 12, 1925, ch. 213 (43 Stat. 883), U.S.C., Title 9'. In subdivision (a)(5), the words 'as amended' were inserted after the parenthetical citation of '(49 Stat. 453),' and after the citations of 'Title 29, Sec. 159 and 160,' former references to subdivisions '(e), (g), and (i)' were deleted. In subdivision (a)(6), after the words 'These rules' at the beginning of the first sentence, the following words were deleted: 'do not apply to proceedings under the Act of September 13, 1888, ch. 1015, Sec. 13 (25 Stat. 479), as amended, U.S.C., Title 8, Sec. 282, relating to deportation of Chinese; they'. Also in the first sentence, after the parenthetical citation of '(44 Stat. 1434, 1436),' the words 'as amended' were added. In the last sentence, the words 'October 14, 1940, ch. 876, Sec. 338 (54 Stat. 1158)' were inserted in lieu of the words 'June 29, 1906, ch. 3592, Sec. 15 (34 Stat. 601), as amended.' In subdivision (c), the word 'all' originally appearing in the first sentence between the words 'govern' and 'procedure' was deleted. In the third sentence, the portion beginning with the words '20 days after the receipt' and including all the remainder of that sentence was substituted for the following language: 'the time allowed for answer by the law of the state or within 5 days after the filing of the transcript of the record in the district court of the United States, whichever period is longer, but in any event within 20 days after the filing of the transcript'. In the fourth or last sentence, after the words at the beginning of the sentence. 'If at the time of removal all necessary pleadings have been,' the word 'served' was inserted in lieu of the word 'filed,' and the concluding words of the sentence, 'petition for removal is filed if he is the petitioner,' together with the final clause immediately following, were substituted for the words 'record of the action is filed in the district court of the United States.' NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT Subdivision (a)(4). This change reflects the transfer of functions from the Secretary of Commerce to the Secretary of the Interior made by 1939 Reorganization Plan No. II, Sec. 4(e), 53 Stat. 1433. Subdivision (a)(6). The proper current reference is to the 1952 statute superseding the 1940 statute. Subdivision (c). Most of the cases have held that a party who has made a proper express demand for jury trial in the State court is not required to renew the demand after removal of the action. Zakoscielny v. Waterman Steamship Corp., 16 F.R.D. 314 (D.Md. 1954); Talley v. American Bakeries Co., 15 F.R.D. 391 (E.D.Tenn. 1954); Rehrer v. Service Trucking Co., 15 F.R.D. 113 (D.Del. 1953); 5 Moore's Federal Practice 38.39(3) (2d ed. 1951); 1 Barron & Holtzoff, Federal Practice and Procedure Sec. 132 (Wright ed. 1960). But there is some authority to the contrary. Petsel v. Chicago, B. & Q.R. Co., 101 F.Supp. 1006 (S.D.Iowa 1951) Nelson v. American Nat. Bank & Trust Co., 9 F.R.D. 680 (E.D.Tenn. 1950). The amendment adopts the preponderant view. In order still further to avoid unintended waivers of jury trial, the amendment provides that where by State law applicable in the court from which the case is removed a party is entitled to jury trial without making an express demand, he need not make a demand after removal. However, the district court for calendar or other purposes may on its own motion direct the parties to state whether they demand a jury, and the court must make such a direction upon the request of any party. Under the amendment a district court may find it convenient to establish a routine practice of giving these directions to the parties in appropriate cases. Subdivision (f). The amendment recognizes the change of nomenclature made by Treasury Dept. Order 150-26(2), 18 Fed. Reg. 3499 (1953). As to a special problem arising under Rule 25 (Substitution of parties) in actions for refund of taxes, see the Advisory Committee's Note to the amendment of Rule 25(d), effective July 19, 1961; and 4 Moore's Federal Practice Sec. 25.09 at 531 (2d ed. 1950). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT See Note to Rule 1, supra. Statutory proceedings to forfeit property for violation of the laws of the United States, formerly governed by the admiralty rules, will be governed by the unified and supplemental rules. See Supplemental Rule A. Upon the recommendation of the judges of the United States District Court for the District of Columbia, the Federal Rules of Civil Procedure are made applicable to probate proceedings in that court. The exception with regard to adoption proceedings is removed because the court no longer has jurisdiction of those matters; and the words 'mental health' are substituted for 'lunacy' to conform to the current characterization in the District. The purpose of the amendment to paragraph (3) is to permit the deletion from Rule 73(a) of the clause 'unless a shorter time is provided by law.' The 10 day period fixed for an appeal under 45 U.S.C. Sec. 159 is the only instance of a shorter time provided for appeals in civil cases. Apart from the unsettling effect of the clause, it is eliminated because its retention would preserve the 15 day period heretofore allowed by 28 U.S.C. Sec. 2107 for appeals from interlocutory decrees in admiralty, it being one of the purposes of the amendment to make the time for appeals in civil and admiralty cases uniform under the unified rules. See Advisory Committee's Note to subdivision (a) of Rule 73. NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT The amendments eliminate inappropriate references to appellate procedure. NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT Title 28, U.S.C., Sec. 2243 now requires that the custodian of a person detained must respond to an application for a writ of habeas corpus 'within three days unless for good cause additional time, not exceeding twenty days, is allowed.' The amendment increases to forty days the additional time that the district court may allow in habeas corpus proceedings involving persons in custody pursuant to a judgment of a state court. The substantial increase in the number of such proceedings in recent years has placed a considerable burden on state authorities. Twenty days has proved in practice too short a time in which to prepare and file the return in many such cases. Allowance of additional time should, of course, be granted only for good cause. While the time allowed in such a case for the return of the writ may not exceed forty days, this does not mean that the state must necessarily be limited to that period of time to provide for the federal court the transcript of the proceedings of a state trial or plenary hearing if the transcript must be prepared after the habeas corpus proceeding has begun in the federal court. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. EFFECTIVE DATE OF ABROGATION Abrogation of par. (7) of subdivision (a) of this rule as effective August 1, 1951, see Effective Date note under Rule 71A. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Application and exception, see rule 54, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Antitrust Civil Process Act petitions, application of rules, see section 1314 of Title 15, Commerce and Trade. Demand for jury trial, see rule 38. Habeas corpus, see this title. Power of court to issue writs, see section 1651 of this title. Procedure before and after removal generally, see sections 1446 and 1447 of this title. Scope of rules, see rule 1. Virgin Islands, applicability of rules to district court for, see section 1615 of Title 48, Territories and Insular Possessions. ------DocID 37135 Document 997 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 82 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 82. Jurisdiction and Venue Unaffected -STATUTE- These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein. An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28, U.S.C., Sec. 1391-93. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES These rules grant extensive power of joining claims and counterclaims in one action, but, as this rule states, such grant does not extend federal jurisdiction. The rule is declaratory of existing practice under the (former) Federal Equity Rules with regard to such provisions as (former) Equity Rule 26 on Joinder of Causes of Action and (former) Equity Rule 30 on Counterclaims. Compare Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393 (1936). 1948 AMENDMENT The amendment effective October 1949 substituted the words 'United States district courts' for 'district courts of the United States'. NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Title 28, U.S.C. Sec. 1391(b) provides: 'A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.' This provision cannot appropriately be applied to what were formerly suits in admiralty. The rationale of decisions holding it inapplicable rests largely on the use of the term 'civil action'; i.e., a suit in admiralty is not a 'civil action' within the statute. By virtue of the amendment to Rule 1, the provisions of Rule 2 convert suits in admiralty into civil actions. The added sentence is necessary to avoid an undesirable change in existing law with respect to venue. ------DocID 37136 Document 998 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 83 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 83. Rules by District Courts -STATUTE- Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act. -SOURCE- (As amended Apr. 29, 1985, eff. Aug. 1, 1985.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This rule substantially continues U.S.C., Title 28, Sec. 731 (now 2071) (Rules of practice in district courts) with the additional requirement that copies of such rules and amendments be furnished to the Supreme Court of the United States. See (former) Equity Rule 79 (Additional Rules by District Court). With the last sentence compare United States Supreme Court Admiralty Rules (1920), Rule 44 (Right of Trial Courts To Make Rules of Practice) (originally promulgated in 1842). NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule 83, which has not been amended since the Federal Rules were promulgated in 1938, permits each district to adopt local rules not inconsistent with the Federal Rules by a majority of the judges. The only other requirement is that copies be furnished to the Supreme Court. The widespread adoption of local rules and the modest procedural prerequisites for their promulgation have led many commentators to question the soundness of the process as well as the validity of some rules, See 12 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 3152, at 217 (1973); Caballero, Is There an Over-Exercise of Local Rule-Making Powers by the United States District Courts?, 24 Fed. Bar News 325 (1977). Although the desirability of local rules for promoting uniform practice within a district is widely accepted, several commentators also have suggested reforms to increase the quality, simplicity, and uniformity of the local rules. See Note, Rule 83 and the Local Federal Rules, 67 Colum.L.Rev. 1251 (1967), and Comment, The Local Rules of Civil Procedure in the Federal District Courts - A Survey, 1966 Duke L.J. 1011. The amended Rule attempts, without impairing the procedural validity of existing local rules, to enhance the local rulemaking process by requiring appropriate public notice of proposed rules and an opportunity to comment on them. Although some district courts apparently consult the local bar before promulgating rules, many do not, which has led to criticism of a process that has district judges consulting only with each other. See 12 C. Wright & A. Miller, supra, Sec. 3152, at 217; Blair, The New Local Rules for Federal Practice In Iowa, 23 Drake L.Rev. 517 (1974). The new language subjects local rulemaking to scrutiny similar to that accompanying the Federal Rules, administrative rulemaking, and legislation. It attempts to assure that the expert advice of practitioners and scholars is made available to the district court before local rules are promulgated. See Weinstein, Reform of Court Rule-Making Procedures 84-87, 127-37, 151 (1977). The amended Rule does not detail the procedure for giving notice and an opportunity to be heard since conditions vary from district to district. Thus, there is no explicit requirement for a public hearing, although a district may consider that procedure appropriate in all or some rulemaking situations. See generally, Weinstein, supra, at 117-37, 151. The new Rule does not foreclose any other form of consultation. For example, it can be accomplished through the mechanism of an 'Advisory Committee' similar to that employed by the Supreme Court in connection with the Federal Rules themselves. The amended Rule provides that a local rule will take effect upon the date specified by the district court and will remain in effect unless amended by the district court or abrogated by the judicial council. The effectiveness of a local rule should not be deferred until approved by the judicial council because that might unduly delay promulgation of a local rule that should become effective immediately, especially since some councils do not meet frequently. Similarly, it was thought that to delay a local rule's effectiveness for a fixed period of time would be arbitrary and that to require the judicial council to abrogate a local rule within a specified time would be inconsistent with its power under 28 U.S.C. Sec. 332 (1976) to nullify a local rule at any time. The expectation is that the judicial council will examine all local rules, including those currently in effect, with an eye toward determining whether they are valid and consistent with the Federal Rules, promote inter-district uniformity and efficiency, and do not undermine the basic objectives of the Federal Rules. The amended Rule requires copies of local rules to be sent upon their promulgation to the judicial council and the Administrative Office of the United States Courts rather than to the Supreme Court. The Supreme Court was the appropriate filing place in 1938, when Rule 83 originally was promulgated, but the establishment of the Administrative Office makes it a more logical place to develop a centralized file of local rules. This procedure is consistent with both the Criminal and the Appellate Rules. See Fed.R.Crim.P. 57(a); Fed.R.App.P. 47. The Administrative Office also will be able to provide improved utilization of the file because of its recent development of a Local Rules Index. The practice pursued by some judges of issuing standing orders has been controversial, particularly among members of the practicing bar. The last sentence in Rule 83 has been amended to make certain that standing orders are not inconsistent with the Federal Rules or any local district court rules. Beyond that, it is hoped that each district will adopt procedures, perhaps by local rule, for promulgating and reviewing single-judge standing orders. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Local rules, see rule 57, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES Rule-making power generally, see section 2071 of this title. ------DocID 37137 Document 999 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 84 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 84. Forms -STATUTE- The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES In accordance with the practice found useful in many codes, provision is here made for a limited number of official forms which may serve as guides in pleading. Compare 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, Sec. 147, Forms 1-47; English Annual Practice (1937) Appendix A to M, inclusive; Conn. Practice Book (1934) Rules, 47-68, pp. 123-427. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT Note. The amendment serves to emphasize that the forms contained in the Appendix of Forms are sufficient to withstand attack under the rules under which they are drawn, and that the practitioner using them may rely on them to that extent. The circuit courts of appeals generally have upheld the use of the forms as promoting desirable simplicity and brevity of statement. Sierocinski v. E. I. DuPont DeNemours & Co., C.C.A. 3d, 1939, 103 F.2d 843; Swift & Co. v. Young, C.C.A. 4th, 1939, 107 F.2d 170; Sparks v. England, C.C.A. 8th, 1940, 113 F.2d 579; Ramsouer v. Midland Valley R. Co., C.C.A. 8th, 1943, 135 F.2d 101. And the forms as a whole have met with widespread approval in the courts. See cases cited in 1 Moore's Federal Practice, 1938, Cum. Supplement Sec. 8.07, under 'Page 554'; see also Commentary, The Official Forms, 1941, 4 Fed. Rules Serv. 954. In Cook, 'Facts' and 'Statements of Fact', 1937, 4 U.Chi.L.Rev. 233, 245-246, it is said with reference to what is now Rule 84: '* * * pleaders in the federal courts are not to be left to guess as to the meaning of (the) language' in Rule 8 (a) regarding the form of the complaint. 'All of which is as it should be. In no other way can useless litigation be avoided.' Ibid. The amended rule will operate to discourage isolated results such as those found in Washburn v. Moorman Mfg. Co., S.D.Cal. 1938, 25 F.Supp. 546; Employers Mutual Liability Ins. Co. of Wisconsin v. Blue Line Transfer Co., W.D.Mo. 1941, 2 F.R.D. 121, 5 Fed. Rules Serv. 12e.235, Case 2. ------DocID 37138 Document 1000 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 85 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 85. Title -STATUTE- These rules may be known and cited as the Federal Rules of Civil Procedure. -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Title, see rule 60, Title 18, Appendix, Crimes and Criminal Procedure. ------DocID 37139 Document 1001 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 86 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE XI -HEAD- Rule 86. Effective Date -STATUTE- (a) (FOOTNOTE 1) (Effective Date of Original Rules.) These rules will take effect on the day which is 3 months subsequent to the adjournment of the second regular session of the 75th Congress, but if that day is prior to September 1, 1938, then these rules will take effect on September 1, 1938. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies. (FOOTNOTE 1) Subdivision heading supplied editorially. (b) Effective Date of Amendments. The amendments adopted by the Supreme Court on December 27, 1946, and transmitted to the Attorney General on January 2, 1947, shall take effect on the day which is three months subsequent to the adjournment of the first regular session of the 80th Congress, but, if that day is prior to September 1, 1947, then these amendments shall take effect on September 1, 1947. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (c) Effective Date of Amendments. The amendments adopted by the Supreme Court on December 29, 1948, and transmitted to the Attorney General on December 31, 1948, shall take effect on the day following the adjournment of the first regular session of the 81st Congress. (d) Effective Date of Amendments. The amendments adopted by the Supreme Court on April 17, 1961, and transmitted to the Congress on April 18, 1961, shall take effect on July 19, 1961. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (e) Effective Date of Amendments. The amendments adopted by the Supreme Court on January 21, 1963, and transmitted to the Congress on January 21, 1963 shall take effect on July 1, 1963. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar. 18, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES See (former) Equity Rule 81 (These Rules Effective February 1, 1913 - Old Rules Abrogated). EFFECTIVE DATE OF 1966 AMENDMENT; TRANSMISSION TO CONGRESS; RESCISSION Sections 2-4 of the Order of the Supreme Court, dated Feb. 28, 1966, 383 U.S. 1031, provided: '2. That the foregoing amendments and additions to the Rules of Civil Procedure shall take effect on July 1, 1966, and shall govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies. '3. That the Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments and additions to the Rules of Civil Procedure in accordance with the provisions of Title 28, U.S.C., Sec. 2072 and 2073. '4. That: (a) subdivision (c) of Rule 6 of the Rules of Civil Procedure for the United States District Courts promulgated by this court on December 20, 1937, effective September 16, 1938; (b) Rule 2 of the Rules for Practice and Procedure under section 25 of An Act To amend and consolidate the Acts respecting copyright, approved March 4, 1909, promulgated by this court on June 1, 1909, effective July 1, 1909; and (c) the Rules of Practice in Admiralty and Maritime Cases, promulgated by this court on December 6, 1920, effective March 7, 1921, as revised, amended and supplemented be, and they hereby are, rescinded, effective July 1, 1966.' -CROSS- FEDERAL RULES OF CRIMINAL PROCEDURE Effective Date, see rule 59, Title 18, Appendix, Crimes and Criminal Procedure. CROSS REFERENCES All laws in conflict with these rules to be of no further force and effect, see section 2072 of this title. ------DocID 37140 Document 1002 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- APPENDIX OF FORMS -MISC1- (SEE RULE 84) INTRODUCTORY STATEMENT 1. The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms. Each form assumes the action to be brought in the Southern District of New York. If the district in which an action is brought has divisions, the division should be indicated in the caption. 2. Except where otherwise indicated each pleading, motion, and other paper should have a caption similar to that of the summons, with the designation of the particular paper substituted for the word 'Summons'. In the caption of the summons and in the caption of the complaint all parties must be named but in other pleadings and papers, it is sufficient to state the name of the first party on either side, with an appropriate indication of other parties. See Rules 4(b), 7(b)(2), and 10(a). 3. In Form 3 and the forms following, the words, 'Allegation of jurisdiction,' are used to indicate the appropriate allegation in Form 2. 4. Each pleading, motion, and other paper is to be signed in his individual name by at least one attorney of record (Rule 11). The attorney's name is to be followed by his address as indicated in Form 3. In forms following Form 3 the signature and address are not indicated. 5. If a party is not represented by an attorney, the signature and address of the party are required in place of those of the attorney. ------DocID 37141 Document 1003 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 1 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 1. Summons -STATUTE- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CIVIL ACTION, FILE NUMBER XXXX A. B., Plaintiff v. W Summons C. D., Defendant To the above-named Defendant: You are hereby summoned and required to serve upon XXXX, plaintiff's attorney, whose address is XXXXXX, an answer to the complaint which is herewith served upon you, within 20 (FOOTNOTE 1) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. XXXXXXXXXXXX, Clerk of Court. (Seal of the U.S. District Court) Dated XXXXXXXXXXXX (This summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedure) (FOOTNOTE 1) If the United States or an officer or agency thereof is a defendant, the time to be inserted as to it is 60 days. -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949.) ------DocID 37142 Document 1004 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 2 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 2. Allegation of Jurisdiction -STATUTE- (a) Jurisdiction founded on diversity of citizenship and amount. Plaintiff is a (citizen of the State of Connecticut) (FOOTNOTE 1) (corporation incorporated under the laws of the State of Connecticut having its principal place of business in the State of Connecticut) and defendant is a corporation incorporated under the laws of the State of New York having its principal place of business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars. (b) Jurisdiction founded on the existence of a Federal question and amount in controversy. The action arises under (the Constitution of the United States, Article XX, Section XX); (the XXXAmendment to the Constitution of the United States, Section XXX); (the Act of XXX, XXX Stat. XXX; U.S.C., Title XXX, Sec. XXX); (the Treaty of the United States (here describe the treaty)), (FOOTNOTE 2) as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars. (c) Jurisdiction founded on the existence of a question arising under particular statutes. The action arises under the Act of XXX, XXX Stat. XXX; U.S.C., Title XXX, Sec. XXX, as hereinafter more fully appears. (d) Jurisdiction founded on the admiralty or maritime character of the claim. This is a case of admiralty and maritime jurisdiction, as hereinafter more fully appears. (If the pleader wishes to invoke the distinctively maritime procedures referred to in Rule 9(h), add the following or its substantial equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).) (FOOTNOTE 1) Form for natural person. (FOOTNOTE 2) Use the appropriate phrase or phrases. The general allegation of the existence of a Federal question is ineffective unless the matters constituting the claim for relief as set forth in the complaint raise a Federal question. -SOURCE- (As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES 1. Diversity of Citizenship. If the plaintiff is an assignee, he should allege such other facts of citizenship as will show that he is entitled to prosecute his action under U.S.C., Title 28, Sec. 41(1) (now 1332). 2. Jurisdiction Founded on Some Fact Other Than Diversity of Citizenship. The allegation as to the matter in controversy may be omitted in any case where by law no jurisdictional amount is required. See for example, U.S.C., Title 28, Sec. 41(2)-(28) (now 1333 to 1340, 1343, 1344, 1346, 1348, 1350, 1351, 1353, 1355 to 1357). 3. Pleading Venue. Since improper venue is an affirmative dilatory defense, it is not necessary for plaintiff to include allegations showing the venue to be proper. 4. It is sufficient to allege that a corporation is incorporated in a particular state, there being, for jurisdictional purposes, a conclusive presumption that all of its members or stockholders are citizens of that State, Marshall v. Baltimore and Ohio R.R.. Co., 1853, 16 How. 314; Henderson, Position of Foreign Corporations in American Constitutional Law (1918) 54-64. NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT 1. Diversity of citizenship. U.S.C., Title 28, Sec. 1332 (Diversity of citizenship; amount in controversy; costs), as amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, states in subsection (c) that 'For the purposes of this section and section 1441 of this title (removable actions), a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.' Thus if the defendant corporation in Form 2(a) had its principal place of business in Connecticut, diversity of citizenship would not exist. An allegation regarding the principal place of business of each corporate party must be made in addition to an allegation regarding its place of incorporation. 2. Jurisdictional amount. U.S.C., Title 28, Sec. 1331 (Federal question; amount in controversy; costs) and Sec. 1332 (Diversity of citizenship; amount in controversy; costs), as amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, require that the amount in controversy, exclusive of interest and costs, be in excess of $10,000. The allegation as to the amount in controversy may be omitted in any case where by law no jurisdictional amount is required. See, for example, U.S.C., Title 28, Sec. 1338 (Patents, copyrights, trade-marks, and unfair competition), Sec. 1343 (Civil rights and elective franchise). 3. Pleading venue. Since improper venue is a matter of defense, it is not necessary for plaintiff to include allegations showing the venue to be proper. See 1 Moore's Federal practice, par. 0.140 (1.-4) (2d ed. 1959). NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT Since the Civil Rules have not heretofore been applicable to proceedings in Admiralty (Rule 81(a)(1)), Form 2 naturally has not contained a provision for invoking the admiralty jurisdiction. The form has never purported to be comprehensive, as making provision for all possible grounds of jurisdiction; but a provision for invoking the admiralty jurisdiction is particularly appropriate as an incident of unification. Certain distinctive features of the admiralty practice must be preserved in unification, just as certain distinctive characteristics of equity were preserved in the merger of law and equity in 1938. Rule 9(h) provides the device whereby, after unification, with its abolition of the distinction between civil actions and suits in admiralty, the pleader may indicate his choice of the distinctively maritime procedures, and designates those features that are preserved. This form illustrates an appropriate way in which the pleader may invoke those procedures. Use of this device is not necessary if the claim is cognizable only by virtue of the admiralty and maritime jurisdiction, nor if the claim is within the exclusive admiralty jurisdiction of the district court. Omission of a statement such as this from the pleading indicates the pleader's choice that the action proceed as a conventional civil action, if this is jurisdictionally possible, without the distinctive maritime remedies and procedures. It should be remembered, however, that Rule 9(h) provides that a pleading may be amended to add or withdraw such an identifying statement subject to the principles stated in Rule 15. ------DocID 37143 Document 1005 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 3 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 3. Complaint on a Promissory Note -STATUTE- 1. Allegation of jurisdiction. 2. Defendant on or about June 1, 1935, executed and delivered to plaintiff a promissory note (in the following words and figures: (here set out the note verbatim)); (a copy of which is hereto annexed as Exhibit A); (whereby defendant promised to pay to plaintiff or order on June 1, 1936 the sum of XXX dollars with interest thereon at the rate of six percent. per annum). 3. Defendant owes to plaintiff the amount of said note and interest. Wherefore plaintiff demands judgment against defendant for the sum of XXX dollars, interest, and costs. Signed: XXXXXXXXXXXXXX, Attorney for Plaintiff. Address: XXXXXXXXXXXXX -MISC1- NOTES 1. The pleader may use the material in one of the three sets of brackets. His choice will depend upon whether he desires to plead the document verbatim, or by exhibit, or according to its legal effect. 2. Under the rules free joinder of claims is permitted. See rules 8(e) and 18. Consequently the claims set forth in each and all of the following forms may be joined with this complaint or with each other. Ordinarily each claim should be stated in a separate division of the complaint, and the divisions should be designated as counts successively numbered. In particular the rules permit alternative and inconsistent pleading. See Form 10. (As amended Jan. 21, 1963, eff. July 1, 1963.) NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT At various places, these Forms (Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 18, 21) allege or refer to damages of 'ten thousand dollars, interest, and costs,' or the like. The Forms were written at a time when the jurisdictional amount in ordinary 'diversity' and 'Federal question' cases was an amount in excess of $3,000, exclusive of interest and costs, so the illustrative amounts set out in the Forms were adequate for jurisdictional purposes. However, U.S.C. Title 28, Sec. 1331 (Federal question; amount in controversy; costs) and Sec. 1332 (Diversity of citizenship; amount in controversy; costs), as amended by Pub. Law 85-554, 72 Stat. 415, July 25, 1958, now require that the amount in controversy, exclusive of interest and costs, be in excess of $10,000. Accordingly the Forms are misleading. They are amended at appropriate places by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. ------DocID 37144 Document 1006 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 4 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 4. Complaint on an Account -STATUTE- 1. Allegation of jurisdiction. 2. Defendant owes plaintiff XXX dollars according to the account hereto annexed as Exhibit A. Wherefore (etc. as in Form 3). -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37145 Document 1007 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 5 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 5. Complaint for Goods Sold and Delivered -STATUTE- 1. Allegation of jurisdiction. 2. Defendant owes plaintiff XXX dollars for goods sold and delivered by plaintiff to defendant between June 1, 1936 and December 1, 1936. Wherefore (etc. as in Form 3). -MISC1- NOTE This form may be used where the action is for an agreed price or for the reasonable value of the goods. (As amended Jan. 21, 1963, eff. July 1, 1963.) NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37146 Document 1008 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 6 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 6. Complaint for Money Lent -STATUTE- 1. Allegation of jurisdiction. 2. Defendant owes plaintiff XXX dollars for money lent by plaintiff to defendant on June 1, 1936. Wherefore (etc. as in Form 3). -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 MENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37147 Document 1009 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 7 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 7. Complaint for Money Paid by Mistake -STATUTE- 1. Allegation of jurisdiction. 2. Defendant owes plaintiff XXX dollars for money paid by plaintiff to defendant by mistake on June 1, 1936, under the following circumstances: (here state the circumstances with particularity - see Rule 9(b)). Wherefore (etc. as in Form 3). -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37148 Document 1010 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 8 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 8. Complaint for Money Had and Received -STATUTE- 1. Allegation of jurisdiction. 2. Defendant owes plaintiff XXX dollars for money had and received from one G. H. on June 1, 1936, to be paid by defendant to plaintiff. Wherefore (etc. as in Form 3). -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37149 Document 1011 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 9 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 9. Complaint for Negligence -STATUTE- 1. Allegation of jurisdiction. 2. On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. Wherefore plaintiff demands judgment against defendant in the sum of XXX dollars and costs. -MISC1- NOTE Since contributory negligence is an affirmative defense, the complaint need contain no allegation of due care of plaintiff. (As amended Jan. 21, 1963, eff. July 1, 1963.) NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37150 Document 1012 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 10 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 10. Complaint for Negligence Where Plaintiff Is Unable To Determine Definitely Whether the Person Responsible Is C. D. or E. F. or Whether Both Are Responsible and Where His Evidence May Justify a Finding of Wilfulness or of Recklessness or of Negligence -STATUTE- A. B., Plaintiff v. Complaint C. D. and E. F., Defendants 1. Allegation of jurisdiction. 2. On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant C. D. or defendant E. F., or both defendants C. D. and E. F. wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. Wherefore plaintiff demands judgment against C. D. or against E. F. or against both in the sum of XXX dollars and costs. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37151 Document 1013 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 11 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 11. Complaint for Conversion -STATUTE- 1. Allegation of jurisdiction. 2. On or about December 1, 1936, defendant converted to his own use ten bonds of the XXXX Company (here insert brief identification as by number and issue) of the value of XXX dollars, the property of plaintiff. Wherefore plaintiff demands judgment against defendant in the sum of XXX dollars, interest, and costs. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37152 Document 1014 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 12 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 12. Complaint for Specific Performance of Contract To Convey Land -STATUTE- 1. Allegation of jurisdiction. 2. On or about December 1, 1936, plaintiff and defendant entered into an agreement in writing a copy of which is hereto annexed as Exhibit A. 3. In accord with the provisions of said agreement plaintiff tendered to defendant the purchase price and requested a conveyance of the land, but defendant refused to accept the tender and refused to make the conveyance. 4. Plaintiff now offers to pay the purchase price. Wherefore plaintiff demands (1) that defendant be required specifically to perform said agreement, (2) damages in the sum of one thousand dollars, and (3) that if specific performance is not granted plaintiff have judgment against defendant in the sum of XXX dollars. -MISC1- NOTE Here, as in Form 3, plaintiff may set forth the contract verbatim in the complaint or plead it, as indicated, by exhibit, or plead it according to its legal effect. Furthermore, plaintiff may seek legal or equitable relief or both even though this was impossible under the system in operation before these rules. (As amended Jan. 21, 1963, eff. July 1, 1963.) NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37153 Document 1015 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 13 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 13. Complaint on Claim for Debt and To Set Aside Fraudulent Conveyance Under Rule 18(b) -STATUTE- A. B., Plaintiff v. Complaint C. D. and E. F., Defendants 1. Allegation of jurisdiction. 2. Defendant C. D. on or about XXXX executed and delivered to plaintiff a promissory note (in the following words and figures: (here set out the note verbatim)); (a copy of which is hereto annexed as Exhibit A); (whereby defendant C. D. promised to pay to plaintiff or order on XXX the sum of five thousand dollars with interest thereon at the rate of XXX percent. per annum). 3. Defendant C. D. owes to plaintiff the amount of said note and interest. 4. Defendant C. D. on or about XXX conveyed all his property, real and personal (or specify and describe) to defendant E. F. for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the note above referred to. Wherefore plaintiff demands: (1) That plaintiff have judgment against defendant C. D. for XXX dollars and interest; (2) that the aforesaid conveyance to defendant E. F. be declared void and the judgment herein be declared a lien on said property; (3) that plaintiff have judgment against the defendants for costs. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37154 Document 1016 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 14 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 14. Complaint for Negligence Under Federal Employer's Liability Act -STATUTE- 1. Allegation of jurisdiction. 2. During all the times herein mentioned defendant owned and operated in interstate commerce a railroad which passed through a tunnel located at XXX and known as Tunnel No. XXX. 3. On or about June 1, 1936, defendant was repairing and enlarging the tunnel in order to protect interstate trains and passengers and freight from injury and in order to make the tunnel more conveniently usable for interstate commerce. 4. In the course of thus repairing and enlarging the tunnel on said day defendant employed plaintiff as one of its workmen, and negligently put plaintiff to work in a portion of the tunnel which defendant had left unprotected and unsupported. 5. By reason of defendant's negligence in thus putting plaintiff to work in that portion of the tunnel, plaintiff was, while so working pursuant to defendant's orders, struck and crushed by a rock, which fell from the unsupported portion of the tunnel, and was (here describe plaintiff's injuries). 6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning XXX dollars per day. By these injuries he has been made incapable of any gainful activity, has suffered great physical and mental pain, and has incurred expense in the amount of XXX dollars for medicine, medical attendance, and hospitalization. Wherefore plaintiff demands judgment against defendant in the sum of XXX dollars and costs. ------DocID 37155 Document 1017 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 15 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 15. Complaint for Damages Under Merchant Marine Act -STATUTE- 1. Allegation of jurisdiction. (If the pleader wishes to invoke the distinctively maritime procedures referred to in Rule 9(h), add the following or its substantial equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).) 2. During all the times herein mentioned defendant was the owner of the steamship XXX and used it in the transportation of freight for hire by water in interstate and foreign commerce. 3. During the first part of (month and year) at XXX plaintiff entered the employ of defendant as an able seaman on said steamship under seamen's articles of customary form for a voyage from XXX ports to the Orient and return at a wage of XXX dollars per month and found, which is equal to a wage of XXX dollars per month as a shore worker. 4. On June 1, 1936, said steamship was about XXX days out of the port of XXX and was being navigated by the master and crew on the return voyage to XXX ports. (Here describe weather conditions and the condition of the ship and state as in an ordinary complaint for personal injuries the negligent conduct of defendant.) 5. By reason of defendant's negligence in thus (brief statement of defendant's negligent conduct) and the unseaworthiness of said steamship, plaintiff was (here describe plaintiff's injuries). 6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning XXX dollars per day. By these injuries he has been made incapable of any gainful activity; has suffered great physical and mental pain, and has incurred expense in the amount of XXX dollars for medicine, medical attendance, and hospitalization. Wherefore plaintiff demands judgment against defendant in the sum of XXX dollars and costs. -SOURCE- (As amended Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT See Advisory Committee's Note to Form 2. ------DocID 37156 Document 1018 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 16 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 16. Complaint for Infringement of Patent -STATUTE- 1. Allegation of jurisdiction. 2. On May 16, 1934, United States Letters Patent No. XX were duly and legally issued to plaintiff for an invention in an electric motor; and since that date plaintiff has been and still is the owner of those Letters Patent. 3. Defendant has for a long time past been and still is infringing those Letters Patent by making, selling, and using electric motors embodying the patented invention, and will continue to do so unless enjoined by this court. 4. Plaintiff has placed the required statutory notice on all electric motors manufactured and sold by him under said Letters Patent, and has given written notice to defendant of his said infringement. Wherefore plaintiff demands a preliminary and final injunction against continued infringement, an accounting for damages, and an assessment of interest and costs against defendant. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT The prayer for relief is amended to reflect the language of the present patent statute, Title 35, U.S.C., Sec. 284 (Damages). ------DocID 37157 Document 1019 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 17 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 17. Complaint for Infringement of Copyright and Unfair Competition -STATUTE- 1. Allegation of jurisdiction. 2. Prior to March, 1936, plaintiff, who then was and ever since has been a citizen of the United States, created and wrote an original book, entitled XXXXXXXXXX. 3. This book contains a large amount of material wholly original with plaintiff and is copyrightable subject matter under the laws of the United States. 4. Between March 2, 1936, and March 10, 1936, plaintiff complied in all respects with the Act of (give citation) and all other laws governing copyright, and secured the exclusive rights and privileges in and to the copyright of said book, and received from the Register of Copyrights a certificate of registration, dated and identified as follows: 'March 10, 1936, Class XXXX, No. XXX.' 5. Since March 10, 1936, said book has been published by plaintiff and all copies of it made by plaintiff or under his authority or license have been printed, bound, and published in strict conformity with the provisions of the Act of XXXX and all other laws governing copyright. 6. Since March 10, 1936, plaintiff has been and still is the sole proprietor of all rights, title, and interest in and to the copyright in said book. 7. After March 10, 1936, defendant infringed said copyright by publishing and placing upon the market a book entitled XXXX, which was copied largely from plaintiff's copyrighted book, entitled XXXXXXXXXX. 8. A copy of plaintiff's copyrighted book is hereto attached as 'Exhibit 1'; and a copy of defendant's infringing book is hereto attached as 'Exhibit 2.' 9. Plaintiff has notified defendant that defendant has infringed the copyright of plaintiff, and defendant has continued to infringe the copyright. 10. After March 10, 1936, and continuously since about XXXX, defendant has been publishing, selling and otherwise marketing the book entitled XXXXXXXXXX, and has thereby been engaging in unfair trade practices and unfair competition against plaintiff to plaintiff's irreparable damage. Wherefore plaintiff demands: (1) That defendant, his agents, and servants be enjoined during the pendency of this action and permanently from infringing said copyright of said plaintiff in any manner, and from publishing, selling, marketing or otherwise disposing of any copies of the book entitled XXXXXXXXXX. (2) That defendant be required to pay to plaintiff such damages as plaintiff has sustained in consequence of defendant's infringement of said copyright and said unfair trade practices and unfair competition and to account for (a) all gains, profits and advantages derived by defendant by said trade practices and unfair competition and (b) all gains, profits, and advantages derived by defendant by his infringement of plaintiff's copyright or such damages as to the court shall appear proper within the provisions of the copyright statutes, but not less than two hundred and fifty dollars. (3) That defendant be required to deliver up to be impounded during the pendency of this action all copies of said book entitled XXXXXXXXXX in his possession or under his control and to deliver up for destruction all infringing copies and all plates, molds, and other matter for making such infringing copies. (4) That defendant pay to plaintiff the costs of this action and reasonable attorney's fees to be allowed to the plaintiff by the court. (5) That plaintiff have such other and further relief as is just. -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT This form, as set out, incorporates amendments made at the same time certain rules of the Federal Rules of Civil Procedure were amended. See Rule 86(b) of such rules. ------DocID 37158 Document 1020 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 18 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 18. Complaint for Interpleader and Declaratory Relief -STATUTE- 1. Allegation of jurisdiction. 2. On or about June 1, 1935, plaintiff issued to G. H. a policy of life insurance whereby plaintiff promised to pay to K. L. as beneficiary the sum of XXX dollars upon the death of G. H. The policy required the payment by G. H. of a stipulated premium on June 1, 1936, and annually thereafter as a condition precedent to its continuance in force. 3. No part of the premium due June 1, 1936, was ever paid and the policy ceased to have any force or effect on July 1, 1936. 4. Thereafter, on September 1, 1936, G. H. and K. L. died as the result of a collision between a locomotive and the automobile in which G. H. and K. L. were riding. 5. Defendant C. D. is the duly appointed and acting executor of the will of G. H.; defendant E. F. is the duly appointed and acting executor of the will of K. L.; defendant X. Y. claims to have been duly designated as beneficiary of said policy in place of K. L. 6. Each of defendants, C. D., E. F., and X. Y. is claiming that the above-mentioned policy was in full force and effect at the time of the death of G. H.; each of them is claiming to be the only person entitled to receive payment of the amount of the policy and has made demand for payment thereof. 7. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which defendant is entitled to be paid the amount of the policy, if it was in force at the death of G. H. Wherefore plaintiff demands that the court adjudge: (1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or any part thereof. (2) That each of the defendants be restrained from instituting any action against plaintiff for the recovery of the amount of said policy or any part thereof. (3) That, if the court shall determine that said policy was in force at the death of G. H., the defendants be required to interplead and settle between themselves their rights to the money due under said policy, and that plaintiff be discharged from all liability in the premises except to the person whom the court shall adjudge entitled to the amount of said policy. (4) That plaintiff recover its costs. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 15197 Document 1021 of 1452------ -CITE- 12 USC Sec. 28 -EXPCITE- TITLE 12 CHAPTER 2 SUBCHAPTER I -HEAD- Sec. 28. Publication of certificate -STATUTE- The association shall cause the certificate issued under section 27 of this title to be published in some newspaper printed in the city or county where the association is located, for at least sixty days next after the issuing thereof; or, if no newspaper is published in such city or county, then in the newspaper published nearest thereto. -SOURCE- (R.S. Sec. 5170.) -COD- CODIFICATION R.S. Sec. 5170 derived from act June 3, 1864, ch. 106, Sec. 18, 13 Stat. 104, which was the National Bank Act. See section 38 of this title. ------DocID 16695 Document 1022 of 1452------ -CITE- 12 USC CHAPTER 28 -EXPCITE- TITLE 12 CHAPTER 28 -HEAD- CHAPTER 28 - EMERGENCY MORTGAGE RELIEF -MISC1- Sec. 2701. Congressional findings and declaration of purpose. 2702. Mortgages eligible for assistance. 2703. Manner of assistance and repayment. (a) Form of assistance. (b) Amount of assistance. (c) Monthly payments; extension of time; report of increase in income. (d) Conditions and terms of repayment; interest rate. (e) Deferral of commencement of repayment; security for repayment. 2704. Insurance for emergency mortgage loans and advances. (a) Institutions eligible. (b) Amount of insurance. (c) Premium charge; amount. (d) Waiver of compliance with rules and regulations; finality and incontestability of payment for loss; transfer of insurance. (e) Maximum aggregate amount of loans and advances insured. 2705. Emergency mortgage relief payments. (a) Direct payments to mortgagee. (b) Mortgages eligible; terms and conditions. (c) Processing of relief payments; power of Secretary. 2706. Emergency Homeowners' Relief Fund. 2707. Authority of Secretary. (a) Rules and regulations. (b) Payment of expenses and charges relating to acquisition, handling, improvement, or disposal of real and personal property. (c) Powers with respect to property rights held by Secretary. 2708. Authorization of appropriations; limitations; expiration date for loans and advances of credit. 2709. Waiver and relaxation by institutions and approved mortgagees of limitations with respect to mortgage delinquencies; notification to Federal supervisory agency prior to foreclosure proceedings. 2710. Reports to Congress; time; contents. 2711. Nonapplicability of other laws. 2712. Federal Deposit Insurance Corporation advances to insured banks. ------DocID 17471 Document 1023 of 1452------ -CITE- 15 USC Sec. 28 -EXPCITE- TITLE 15 CHAPTER 1 -HEAD- Sec. 28. Repealed. Pub. L. 98-620, title IV, Sec. 402(11), Nov. 8, 1984, 98 Stat. 3358 -MISC1- Section, acts Feb. 11, 1903, ch. 544, Sec. 1, 32 Stat. 823; June 25, 1910, ch. 428, 36 Stat. 854; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Apr. 6, 1942, ch. 210, Sec. 1, 56 Stat. 198; June 25, 1948, ch. 646, Sec. 32(a), 62 Stat. 991; May 24, 1949, ch. 139, Sec. 127, 63 Stat. 107; Dec. 21, 1974, Pub. L. 93-528, Sec. 4, 88 Stat. 1708, related to expedition of actions by the United States involving general public importance. EFFECTIVE DATE OF REPEAL Repeal not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. ------DocID 17770 Document 1024 of 1452------ -CITE- 15 USC Sec. 80a-28 -EXPCITE- TITLE 15 CHAPTER 2D SUBCHAPTER I -HEAD- Sec. 80a-28. Face-amount certificate companies -STATUTE- (a) Issuance or sale of certificates It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless - (1) such company, if organized before March 15, 1940, was actively and continuously engaged in selling face-amount certificates on and before that date, and has outstanding capital stock worth upon a fair valuation of assets not less than $50,000; or if organized on or after March 15, 1940, has capital stock in an amount not less than $250,000 which has been bona fide subscribed and paid for in cash; and (2) such company maintains at all times minimum certificate reserves on all its outstanding face-amount certificates in an aggregate amount calculated and adjusted as follows: (A) the reserves for each certificate of the installment type shall be based on assumed annual, semi-annual, quarterly, or monthly reserve payments according to the manner in which gross payments for any certificate year are made by the holder, which reserve payments shall be sufficient in amount, as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, to provide the minimum maturity or face amount of the certificate when due. Such reserve payments may be graduated according to certificate years so that the reserve payment or payments for the first certificate year shall amount to at least 50 per centum of the required gross annual payment for such year and the reserve payment or payments for each of the second to fifth certificate years inclusive shall amount to at least 93 per centum of each such year's required gross annual payment and for the sixth and each subsequent certificate year the reserve payment or payments shall amount to at least 96 per centum of each such year's required gross annual payment: Provided, That such aggregate reserve payments shall amount to at least 93 per centum of the aggregate gross annual payments required to be made by the holder to obtain the maturity of the certificate. The company may at its option take as loading from the gross payment or payments for a certificate year, as and when made by the certificate holder, an amount or amounts equal in the aggregate for such year to not more than the excess, if any, of the gross payment or payments required to be made by the holder for such year, over and above the percentage of the gross annual payment required herein for such year for reserve purposes. Such loading may be taken by the company prior to or after the setting up of the reserve payment or payments for such year and the reserve payment or payments for such year may be graduated and adjusted to correspond with the amount of the gross payment or payments made by the certificate holder for such year less the loading so taken; (B) if the foregoing minimum percentages of the gross annual payments required under the provisions of such certificate should produce reserve payments larger than are necessary at 3 1/2 per centum per annum compounded annually to provide the minimum maturity or face amount of the certificate when due, the reserve shall be based upon reserve payments accumulated as provided under preceding subparagraph (A) of this paragraph except that in lieu of the 3 1/2 per centum rate specified therein, such rate shall be lowered to the minimum rate, expressed in multiples of one-eighth of 1 per centum, which will accumulate such reserve payments to the maturity value when due; (C) if the actual annual gross payment to be made by the certificate holder on any certificate issued prior to or after the effective date of this chapter is less than the amount of any assumed reserve payment or payments for a certificate year, such company shall maintain as a part of such minimum certificate reserves a deficiency reserve equal to the total present value of future deficiencies in the gross payments, calculated at a rate not to exceed 3 1/2 per centum per annum compounded annually; (D) for each certificate of the installment type the amount of the reserve shall at any time be at least equal to (1) the then amount of the reserve payments set up under subparagraphs (A) or (B) of this paragraph; (2) the accumulations on such reserve payments as computed under subparagraphs (A) or (B) of this paragraph; (3) the amount of any deficiency reserve required under subparagraph (C) of this paragraph; and (4) such amount as shall have been credited to the account of each certificate holder in the form of any credit, or any dividend, or any interest in addition to the minimum maturity amount specified in such certificate, plus any accumulations on any amount or amounts so credited, at a rate not exceeding 3 1/2 per centum per annum compounded annually; (E) for each certificate which is fully paid, including any fully paid obligations resulting from or effected upon the maturity of the previously issued certificate, and for each paid-up certificate issued as provided in subsection (f) of this section prior to maturity, the amount of the reserve shall at any time be at least equal to (1) such amount as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, will provide the amount or amounts payable when due and (2) such amount as shall have been credited to the account of each such certificate holder in the form of any credit, or any dividend, or any interest in addition to the minimum maturity amount specified in the certificate, plus any accumulations on any amount or amounts so credited, at a rate not exceeding 3 1/2 per centum per annum compounded annually; (F) for each certificate of the installment type under which gross payments have been made by or credited to the holder thereof covering a payment period or periods or any part thereof beyond the then current payment period as defined by the terms of such certificate, and for which period or periods no reserve has been set up under subparagraph (A) or (B) of this paragraph, an advance payment reserve shall be set up and maintained in the amount of the present value of any such unapplied advance gross payments, computed at a rate not to exceed 3 1/2 per centum per annum compounded annually; (G) such appropriate contingency reserves for death and disability benefits and for reinstatement rights on any such certificate providing for such benefits or rights as the Commission shall prescribe by rule, regulation, or order based upon the experience of face-amount companies in relation to such contingencies. At no time shall the aggregate certificate reserves herein required by subparagraphs (A) to (F) of this paragraph, be less than the aggregate surrender values and other amounts to which all certificate holders may be then entitled. For the purpose of this subsection, no certificate of the installment type shall be deemed to be outstanding if before a surrender value has been attained the holder thereof has been in continuous default in making his payments thereon for a period of one year. (b) Asset requirements prior to sale of certificates It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless such company has, in cash or qualified investments, assets having a value not less than the aggregate amount of the capital stock requirement and certificate reserves as computed under the provisions of subsection (a) of this section. As used in this subsection, 'qualified investments' means investments of a kind which life-insurance companies are permitted to invest in or hold under the provisions of the Code of the District of Columbia as heretofore or hereafter amended, and such other investments as the Commission shall by rule, regulation, or order authorize as qualified investments. Such investments shall be valued in accordance with the provisions of said Code where such provisions are applicable. Investments to which such provisions do not apply shall be valued in accordance with such rules, regulations, or orders as the Commission shall prescribe for the protection of investors. (c) Certificate reserve requirements The Commission shall by rule, regulation, or order, in the public interest or for the protection of investors, require a registered face-amount certificate company to deposit and maintain, upon such terms and conditions as the Commission shall prescribe and as are appropriate for the protection of investors, with one or more institutions having the qualifications required by paragraph (1) of section 80a-26(a) of this title for a trustee of a unit investment trust, all or any part of the investments maintained by such company as certificate reserve requirements under the provisions of subsection (b) of this section: Provided, however, That where qualified investments are maintained on deposit by such company in respect of its liabilities under certificates issued to or held by residents of any State as required by the statute of such State or by any order, regulation, or requirement of such State or any official or agency thereof, the amount so on deposit, but not to exceed the amount of reserves required by subsection (a) of this section for the certificates so issued or held, shall be deducted from the amount of qualified investments that may be required to be deposited hereunder. Assets which are qualified investments under subsection (b) of this section and which are deposited under or as permitted by this subsection, may be used and shall be considered as a part of the assets required to be maintained under the provisions of said subsection (b). (d) Provisions required in certificate It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, unless such certificate contains a provision or provisions to the effect - (1) that, in respect of any certificate of the installment type, during the first certificate year the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the reserve payments as specified in subparagraph (A) or (B) of paragraph (2) of subsection (a) of this section and at the end of such certificate year, a value payable in cash at least equal to 50 per centum of the amount of the gross annual payment required thereby for such year; (2) that, in respect of any certificate of the installment type, at any time after the expiration of the first certificate year and prior to maturity, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by numbered items (1) and (2) of subparagraph (D) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser, but in no event shall such value be less than 50 per centum of the amount of such reserve. The amount of the surrender value for the end of each certificate year shall be set out in the certificate; (3) that, in respect of any certificate of the installment type, the holder of the certificate, upon surrender thereof for cash or upon receipt of a paid-up certificate as provided in subsection (f) of this section, shall be entitled to a value payable in cash equal to the then amount of any advance payment reserve under such certificate required by subparagraph (F) of paragraph (2) of subsection (a) of this section in addition to any other amounts due the holder hereunder; (4) that at any time prior to maturity, in respect of any certificate which is fully paid, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by item (1) of subparagraph (E) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser: Provided, however, That such surrender charge shall not apply as to any obligations of a fully paid type resulting from the maturity of a previously issued certificate. The amount of the surrender value for the end of each certificate year shall be set out in the certificate; (5) that in respect of any certificate, the holder of the certificate, upon maturity, upon surrender thereof for cash or upon receipt of a paid-up certificate as provided in subsection (f) of this section, shall be entitled to a value payable in cash equal to the then amount of the reserve, if any, for such certificate required by item (4) of subparagraph (D) of paragraph (2) of subsection (a) of this section or item (2) of subparagraph (E) of paragraph (2) of said subsection (a) in addition to any other amounts due the holder hereunder. The term 'certificate year' as used in this section in respect of any certificate of the installment type means a period or periods for which one year's payment or payments as provided by the certificate have been made thereon by the holder and the certificate maintained in force by such payments for the time for which the same have been made, and in respect of any certificate which is fully paid or paid-up means any year ending on the anniversary of the date of issuance of the certificate. Any certificate may provide for loans or advances by the company to the certificate holder on the security of such certificate upon terms prescribed therein but at an interest rate not exceeding 6 per centum per annum. The amount of the required reserves, deposits, and the surrender values thereof available to the holder may be adjusted to take into account any unpaid balance on such loans or advances and interest thereon, for the purposes of this subsection and subsections (b) and (c) of this section. Any certificate may provide that the company at its option may, prior to the maturity thereof, defer any payment or payments to the certificate holder to which he may be entitled under this subsection, for a period of not more than thirty days: Provided, That in the event such option is exercised by the company, interest shall accrue on any payment or payments due to the holder, for the period of such deferment at a rate equal to that used in accumulating the reserves for such certificate: And provided further, That the Commission may, by rules and regulations or orders in the public interest or for the protection of investors, make provision for any other deferment upon such terms and conditions as it shall prescribe. (e) Liability of holder to legal action for unpaid amount of certificate It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, which certificate makes the holder liable to any legal action or proceeding for any unpaid amount on such certificate. (f) Optional right to paid up certificate in lieu of cash surrender value It shall be unlawful for any registered face-amount certificate company to issue or sell any face-amount certificate, or to collect or accept any payment on any such certificate issued by such company on or after the effective date of this subchapter, (1) unless such face-amount certificate contains a provision or provisions to the effect that the holder shall have an optional right to receive a paid-up certificate in lieu of the then attained cash surrender value provided therein and in the amount of such value plus accumulations thereon at a rate to be specified in the paid-up certificate equal to that used in computing the reserve on the original certificate under subparagraph (A) or (B) of paragraph (2) of subsection (a) of this section, such paid-up certificate to become due and payable at the end of a period equal to the balance of the term of such original certificate before maturity; and during the period prior to maturity such paid-up certificate shall have a cash value upon surrender thereof equal to the then amount of the reserve therefor; and (2) unless such face-amount certificate contains a further provision or provisions to the effect that if the holder be in continuous default in his payments on such certificate for a period of six months without having exercised his option to receive a paid-up certificate, as herein provided, the company at the expiration of such six months shall pay the surrender value in cash if such value is less than $100 or if such value is $100 or more shall issue such paid-up certificate to such holder and such payment or issuance, plus the payment of all other amounts to which he may be then entitled under the original certificate, shall operate to cancel his original certificate: Provided, That in lieu of the issuance of a new paid-up certificate the original certificate may be converted into a paid-up certificate with the same effect; and (3) unless, where such certificate provides, in the event of default, for the deferment of payments thereon by the holder or of the due dates of such payments or of the maturity date of the certificate, it shall also provide in effect for the right of reinstatement by the holder of the certificate after default and for an option in the holder, at the time of reinstatement, to make up the payment or payments for the default period next preceding such reinstatement with interest thereon not exceeding 6 per centum per annum, with the same effect as if no such default in making such payments had occurred. The term 'default' as used in this subsection shall, without restricting its usual meaning, include a failure to make a payment or payments as and when provided by the certificate. (g) Application of section to company issuing certificates only to holders of previously issued certificates The foregoing provisions of this section shall not apply to a face-amount certificate company which on or before the effective date of this chapter has discontinued the offering of face-amount certificates to the public and issues face-amount certificates only to the holders of certificates previously issued pursuant to an obligation expressed or implied in such certificates. (h) Declaration or payment of dividends It shall be unlawful for any registered face-amount certificate company which does not maintain the minimum certificate reserve on all its outstanding face-amount certificates issued prior to the effective date of this chapter, in an aggregate amount calculated and adjusted as provided in this section to declare or pay any dividends on the shares of such company for or during any calendar year which shall exceed one-third of the net earnings for the next preceding calendar year or which shall exceed 10 per centum of the aggregate net earnings for the next preceding five calendar years, whichever is the lesser amount, or any dividend which shall have been forbidden by the Commission pursuant to the provision of the next sentence of this paragraph. At least thirty days before such company shall declare, pay, or distribute any dividend, it shall give the Commission written notice of its intention to declare, pay, or distribute the same; and if at any time it shall appear to the Commission that the declaration, payment or distribution of any dividend for or during any calendar year might impair the financial integrity of such company or its ability to meet its liabilities under its outstanding face-amount certificates, it may by order forbid the declaration, distribution, or payment of any such dividend. (i) Application of section to certificates issued prior to effective date of section The foregoing provisions of this section shall apply to all face-amount certificates issued prior to the effective date of this subsection; to the collection or acceptance of any payment on such certificates; to the issuance of face-amount certificates to the holders of such certificates pursuant to an obligation expressed or implied in such certificates; to the provisions of such certificates; to the minimum certificate reserves and deposits maintained with respect thereto; and to the assets that the issuer of such certificate was and is required to have with respect to such certificates. With respect to all face-amount certificates issued after the effective date of this subsection, the provisions of this section shall apply except as hereinafter provided. (1) Notwithstanding subparagraph (A) of paragraph (2) of subsection (a) of this section, the reserves for each certificate of the installment type shall be based on assumed annual, semiannual, quarterly, or monthly reserve payments according to the manner in which gross payments for any certificate year are made by the holder, which reserve payments shall be sufficient in amount, as and when accumulated at a rate not to exceed 3 1/2 per centum per annum compounded annually, to provide the minimum maturity or face amount of the certificate when due. Such reserve payments may be graduated according to certificate years so that the reserve payment or payments for the first three certificate years shall amount to at least 80 per centum of the required gross annual payment for such years; the reserve payment or payments for the fourth certificate year shall amount to at least 90 per centum of such year's required gross annual payment; the reserve payment or payments for the fifth certificate year shall amount to at least 93 per centum of such year's gross annual payment; and for the sixth and each subsequent certificate year the reserve payment or payments shall amount to at least 96 per centum of each such year's required gross annual payment: Provided, That such aggregate reserve payments shall amount to at least 93 per centum of the aggregate gross annual payments required to be made by the holder to obtain the maturity of the certificate. The company may at its option take as loading from the gross payment or payments for a certificate year, as and when made by the certificate holder, an amount or amounts equal in the aggregate for such year to not more than the excess, if any, of the gross payment or payments required to be made by the holder for such year, over and above the percentage of the gross annual payment required herein for such year for reserve purposes. Such loading may be taken by the company prior to or after the setting up of the reserve payment or payments for such year and the reserve payment or payments for such year may be graduated and adjusted to correspond with the amount of the gross payment or payments made by the certificate holder for such year less the loading so taken. (2) Notwithstanding paragraphs (1) and (2) of subsection (d) of this section, (A) in respect of any certificate of the installment type, during the first certificate year, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than 80 per centum of the amount of the gross payments made on the certificate; and (B) in respect of any certificate of the installment type, at any time after the expiration of the first certificate year and prior to maturity, the holder of the certificate, upon surrender thereof, shall be entitled to a value payable in cash not less than the then amount of the reserve for such certificate required by clauses (1) and (2) of subparagraph (D) of paragraph (2) of subsection (a) of this section, less a surrender charge that shall not exceed 2 per centum of the face or maturity amount of the certificate, or 15 per centum of the amount of such reserve, whichever is the lesser, but in no event shall such value be less than 80 per centum of the gross payments made on the certificate. The amount of the surrender value for the end of each certificate year shall be set out in the certificate. -SOURCE- (Aug. 22, 1940, ch. 686, title I, Sec. 28, 54 Stat. 829; Dec. 14, 1970, Pub. L. 91-547, Sec. 17, 84 Stat. 1426; Dec. 4, 1987, Pub. L. 100-181, title VI, Sec. 620, 621, 101 Stat. 1262.) -REFTEXT- REFERENCES IN TEXT For the effective date of this subchapter, referred to in subsecs. (a), (b), (d), (e), and (f), see section 80a-52 of this title. For the effective date of this chapter, referred to in subsecs. (a)(2)(C), (g), and (h), see sections 80a-52 and 80b-21 of this title. For the effective date of this subsection, referred to in subsec. (i), as the day upon expiration of 6 months after Dec. 14, 1970, see section 30(3) of Pub. L. 91-547, set out as a note under section 80a-52 of this title. -MISC2- AMENDMENTS 1987 - Subsec. (a)(2)(B). Pub. L. 100-181, Sec. 620, substituted 'paragraph' for 'subsection'. Subsec. (d)(2). Pub. L. 100-181, Sec. 621, inserted 'of' before 'subsection (a)'. 1970 - Subsec. (i). Pub. L. 91-547 added subsec. (i). EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-547 effective on expiration of six months after Dec. 14, 1970, see section 30(3) of Pub. L. 91-547, set out as a note under section 80a-2 of this title. -TRANS- TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, Sec. 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. -CROSS- CROSS REFERENCES Organization of face-amount certificate companies by registered face-amount certificate company, see section 80a-12 of this title. Value as to assets of registered investment companies, definition of, see section 80a-2 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 80a-2, 80a-6, 80a-12 of this title. ------DocID 37163 Document 1025 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE (Form 22 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- (Form 22. Eliminated, eff. July 1, 1963) -STATUTE- Form 22 for motion to bring in third-party defendant, setting out as an exhibit summons and third-party complaint, and for notice of motion, was eliminated and superseded by Forms 22-A and 22-B, setting out summons and complaint against third-party defendant, and motion to bring in third-party defendant, effective July 1, 1963. See Advisory Committee notes under Forms 22-A and 22-B. ------DocID 37164 Document 1026 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 22-A -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 22-A. Summons and Complaint Against Third-Party Defendant -STATUTE- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CIVIL ACTION, FILE NUMBER XX A. B., Plaintiff v. C. D., Defendant and Third-Party Summons Plaintiff v. E. F., Third-Party Defendant To the above-named Third-Party Defendant: You are hereby summoned and required to serve upon XXXX, plaintiff's attorney whose address is XXXX, and upon XXXX, who is attorney for C. D., defendant and third-party plaintiff, and whose address is XXXX, an answer to the third-party complaint which is herewith served upon you within 20 days after the service of this summons upon you exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the third-party complaint. There is also served upon you herewith a copy of the complaint of the plaintiff which you may but are not required to answer. XXXXXXXXXXXX, Clerk of Court. (Seal of District Court) Dated XXXXXXXXXXXX UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CIVIL ACTION, FILE NUMBER XX A. B., Plaintiff v. C. D., Defendant and Third-Party Plaintiff Third-Party v. Complaint E. F., Third-Party Defendant 1. Plaintiff A. B. has filed against defendant C. D. a complaint, a copy of which is hereto attached as 'Exhibit A.' 2. (Here state the grounds upon which C. D. is entitled to recover from E. F., all or part of what A. B. may recover from C. D. The statement should be framed as in an original complaint.) Wherefore C. D. demands judgment against third-party defendant E. F. for all sums (FOOTNOTE 1) that may be adjudged against defendant C. D. in favor of plaintiff A. B. Signed: XXXXXXXXXXXXXXXXX, Attorney for C. D., Third-Party Plaintiff. Address: XXXXXXXXXXXXXXXXX (FOOTNOTE 1) Make appropriate change where C. D. is entitled to only partial recovery-over against E. F. -SOURCE- (Added Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Under the amendment of Rule 14(a), a defendant who files a third-party complaint not later than 10 days after serving his original answer need not obtain leave of court to bring in the third-party defendant by service under Rule 4. Form 22-A is intended for use in these cases. The changes in the form of summons reflect an earlier amendment of Rule 14(a), effective in 1948, making it permissive, rather than mandatory, for the third-party defendant to answer the plaintiff's complaint. See Cooper v. D/S A/S Progress, 188 F.Supp. 578 (E.D.Pa. 1960); 1A Barron & Holtzoff, Federal Practice and Procedure 696 (Wright ed. 1960). Under the amendment of Rule 5(a) requiring, with certain exceptions, that papers be served upon all the parties to the action, the third-party defendant, even if he makes no answer to the plaintiff's complaint, is obliged to serve upon the plaintiff a copy of his answer to the third-party complaint. Similarly, the defendant is obliged to serve upon the plaintiff a copy of the summons and complaint against the third-party defendant. ------DocID 37165 Document 1027 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 22-B -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 22-B. Motion To Bring in Third-Party Defendant -STATUTE- Defendant moves for leave, as third-party plaintiff, to cause to be served upon E. F. a summons and third-party complaint, copies of which are hereto attached as Exhibit X. Signed: XXXXXXXXXXXXXXXX, Attorney for Defendant C. D. Address: XXXXXXXXXXXXXXX NOTICE OF MOTION (Contents the same as in Form 19. The notice should be addressed to all parties to the action.) EXHIBIT X (Contents the same as in Form 22-A.) -SOURCE- (Added Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Form 22-B is intended for use when, under amended Rule 14(a), leave of court is required to bring in a third-party defendant. ------DocID 37166 Document 1028 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 23 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 23. Motion To Intervene as a Defendant Under Rule 24 -STATUTE- (BASED UPON THE COMPLAINT, FORM 16) United States District Court for the Southern District of New York CIVIL ACTION, FILE NUMBER XX A. B., plaintiff v. Motion to inter- C. D., defendant vene as a E. F., applicant for defendant intervention E. F. moves for leave to intervene as a defendant in this action, in order to assert the defenses set forth in his proposed answer, of which a copy is hereto attached, on the ground that he is the manufacturer and vendor to the defendant, as well as to others, of the articles alleged in the complaint to be an infringement of plaintiff's patent, and as such has a defense to plaintiff's claim presenting both questions of law and of fact which are common to the main action. (FOOTNOTE 1) Signed: XXXXXXXXXXXXXX, Attorney for E. F., Applicant for Intervention. Address: XXXXXXXXXXXXX NOTICE OF MOTION (CONTENTS THE SAME AS IN FORM 19) (FOOTNOTE 1) For other grounds of intervention, either of right or in the discretion of the court, see Rule 24(a) and (b). United States District Court for the Southern District of New York CIVIL ACTION, FILE NUMBER XX A. B., plaintiff v. Intervener's Answer C. D., defendant E. F., intervener FIRST DEFENSE Intervener admits the allegations stated in paragraphs 1 and 4 of the complaint; denies the allegations in paragraph 3, and denies the allegations in paragraph 2 in so far as they assert the legality of the issuance of the Letters Patent to plaintiff. SECOND DEFENSE Plaintiff is not the first inventor of the articles covered by the Letters Patent specified in his complaint, since articles substantially identical in character were previously patented in Letters Patent granted to intervener on January 5, 1920. Signed: XXXXXXXXXXXXXXXX, Attorney for E. F., Intervener. Address: XXXXXXXXXXXXXXX -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949.) ------DocID 37167 Document 1029 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 24 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 24. Request for Production of Documents, etc., Under Rule 34 -STATUTE- Plaintiff A. B. requests defendant C. D. to respond within XXX days to the following requests: (1) That defendant produce and permit plaintiff to inspect and to copy each of the following documents: (Here list the documents either individually or by category and describe each of them.) (Here state the time, place, and manner of making the inspection and performance of any related acts.) (2) That defendant produce and permit plaintiff to inspect and to copy, test, or sample each of the following objects: (Here list the objects either individually or by category and describe each of them.) (Here state the time, place, and manner of making the inspection and performance of any related acts.) (3) That defendant permit plaintiff to enter (here describe property to be entered) and to inspect and to photograph, test or sample (here describe the portion of the real property and the objects to be inspected). (Here state the time, place, and manner of making the inspection and performance of any related acts.) Signed: XXXXXXXXXXXXXX, Attorney for Plaintiff. Address: XXXXXXXXXXXXX -SOURCE- (As amended Mar. 30, 1970, eff. July 1, 1970.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT Form 24 is revised to accord with the changes made in Rule 34. ------DocID 37168 Document 1030 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 25 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 25. Request for Admission Under Rule 36 -STATUTE- Plaintiff A. B. requests defendant C. D. within XXXX days after service of this request to make the following admissions for the purpose of this action only and subject to all pertinent objections to admissibility which may be interposed at the trial: 1. That each of the following documents, exhibited with this request, is genuine. (Here list the documents and describe each document.) 2. That each of the following statements is true. (Here list the statements.) Signed: XXXXXXXXXXXXXX, Attorney for Plaintiff. Address: XXXXXXXXXXXXX -SOURCE- (As amended Dec. 27, 1946, eff. Mar. 19, 1948.) ------DocID 37169 Document 1031 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 26 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 26. Allegation of Reason for Omitting Party -STATUTE- When it is necessary, under Rule 19(c), for the pleader to set forth in his pleading the names of persons who ought to be made parties, but who are not so made, there should be an allegation such as the one set out below: John Doe named in this complaint is not made a party to this action (because he is not subject to the jurisdiction of this court); (because he cannot be made a party to this action without depriving this court of jurisdiction). ------DocID 37170 Document 1032 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE (Form 27 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- (Form 27. Abrogated. Dec. 4, 1967, eff. July 1, 1968) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The form of notice of appeal is transferred to the Federal Rules of Appellate Procedure as Form 1. ------DocID 37162 Document 1033 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 21 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaim for Interpleader -STATUTE- DEFENSE Defendant admits the allegations stated in paragraph 1 of the complaint; and denies the allegations stated in paragraph 2 to the extent set forth in the counterclaim herein. COUNTERCLAIM FOR INTERPLEADER 1. Defendant received the sum of XXX dollars as a deposit from E. F. 2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it which he claims to have received from E. F. 3. E. F. has notified the defendant that he claims such deposit, that the purported assignment is not valid, and that he holds the defendant responsible for the deposit. Wherefore defendant demands: (1) That the court order E. F. to be made a party defendant to respond to the complaint and to this counterclaim. (FOOTNOTE 1) (2) That the court order the plaintiff and E. F. to interplead their respective claims. (3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum of money. (4) That the court discharge defendant from all liability in the premises except to the person it shall adjudge entitled to the sum of money. (5) That the court award to the defendant its costs and attorney's fees. (FOOTNOTE 1) Rule 13(h) provides for the court ordering parties to a counterclaim, but who are not parties to the original action, to be brought in as defendants. -SOURCE- (As amended Jan. 21, 1963, eff. July 1, 1963.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. ------DocID 37172 Document 1034 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 29 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 29. Complaint: Condemnation -STATUTE- United States District Court for the Southern District of New York CIVIL ACTION, FILE NUMBER XX United States of America, Plaintiff v. 1,000 Acres of Land in (here insert a general location as 'City of XX' or Complaint 'County of XX'), John Doe et al., and Unknown Owners, Defendants 1. This is an action of a civil nature brought by the United States of America for the taking of property under the power of eminent domain and for the ascertainment and award of just compensation to the owners and parties in interest. (FOOTNOTE 1) 2. The authority for the taking is (here state briefly, as 'the Act of XXX, XXX Stat. XXX, U.S.C., Title XXX, Sec. XXX') (FOOTNOTE 2) . 3. The use for which the property is to be taken is (here state briefly the use, 'as a site for a post-office building'). 4. The interest to be acquired in the property is (here state the interest as 'an estate in fee simple'). 5. The property so to be taken is (here set forth a description of the property sufficient for its identification) or (described in Exhibit A hereto attached and made a part hereof). 6. The persons known to the plaintiff to have or claim an interest in the property (FOOTNOTE 3) are: (Here set forth the names of such persons and the interests claimed.) (FOOTNOTE 4) 7. In addition to the persons named, there are or may be others who have or may claim some interest in the property to be taken, whose names are unknown to the plaintiff and on diligent inquiry have not been ascertained. They are made parties to the action under the designation 'Unknown Owners.' Wherefore the plaintiff demands judgment that the property be condemned and that just compensation for the taking be ascertained and awarded and for such other relief as may be lawful and proper. XXXXXXXXXXXXXXXXX United States Attorney. Address XXXXXXXXXXXXX (Here state an address within the district where the United States Attorney may be served, as 'United States Court House, New York, N. Y.'.) (FOOTNOTE 1) If the plaintiff is not the United States, but is, for example, a corporation invoking the power of eminent domain delegated to it by the state, then this paragraph 1 of the complaint should be appropriately modified and should be preceded by a paragraph appropriately alleging federal jurisdiction for the action, such as diversity. See Form 2. (FOOTNOTE 2) And where appropriate add a citation to any applicable Executive Order. (FOOTNOTE 3) At the commencement of the action the plaintiff need name as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a particular piece of property the plaintiff must add as defendants all persons having or claiming an interest in that property whose names can be ascertained by an appropriate search of the records and also those whose names have otherwise been learned. See Rule 71A(c)(2). (FOOTNOTE 4) The plaintiff should designate, as to each separate piece of property, the defendants who have been joined as owners thereof or of some interest therein. See Rule 71A(c)(2). -SOURCE- (Added May 1, 1951, eff. Aug. 1, 1951.) ------DocID 37173 Document 1035 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 30 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1) -STATUTE- A. B. (describe as a party, or as executor, administrator, or other representative or successor of C. D., the deceased party) suggests upon the record, pursuant to Rule 25(a)(1), the death of C. D. (describe as party) during the pendency of this action. -SOURCE- (Added Jan. 21, 1963, eff. July 1, 1963.) ------DocID 37174 Document 1036 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 31 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 31. Judgment on Jury Verdict -STATUTE- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CIVIL ACTION, FILE NUMBER XX A. B., Plaintiff v. W Judgment C. D., Defendant This action came on for trial before the Court and a jury, Honorable John Marshall, District Judge, presiding, and the issues having been duly tried and the jury having duly rendered its verdict, It is Ordered and Adjudged (that the plaintiff A. B. recover of the defendant C. D. the sum of XX, with interest thereon at the rate of X percent as provided by law, and his costs of action.) (that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C. D. recover of the plaintiff A. B. his costs of action.) Dated at New York, New York, this XX day of XXX, 19X. XXXXXXXXXXXX, Clerk of Court. -MISC1- NOTE 1. This Form is illustrative of the judgment to be entered upon the general verdict of a jury. It deals with the cases where there is a general jury verdict awarding the plaintiff money damages or finding for the defendant, but is adaptable to other situations of jury verdicts. 2. The clerk, unless the court otherwise orders, is required forthwith to prepare, sign, and enter the judgment upon a general jury verdict without awaiting any direction by the court. The form of the judgment upon a special verdict or a general verdict accompanied by answers to interrogatories shall be promptly approved by the court, and the clerk shall thereupon enter it. See Rule 58, as amended. 3. The Rules contemplate a simple judgment promptly entered. See Rule 54(a). Every judgment shall be set forth on a separate document. See Rule 58, as amended. 4. Attorneys are not to submit forms of judgment unless directed in exceptional cases to do so by the court. See Rule 58, as amended. (Added Jan. 21, 1963, eff. July 1, 1963.) ------DocID 37175 Document 1037 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 32 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 32. Judgment on Decision by the Court -STATUTE- United States District Court for the Southern District of New York CIVIL ACTION, FILE NUMBER XX A. B., Plaintiff v. W Judgment C. D., Defendant This action came on for (trial) (hearing) before the Court, Honorable John Marshall, District Judge, presiding, and the issues having been duly (tried) (heard) and a decision having been duly rendered, It is Ordered and Adjudged (that the plaintiff A. B. recover of the defendant C. D. the sum ofXX, with interest thereon at the rate ofXX percent as provided by law, and his costs of action.) (that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C. D. recover of the plaintiff A. B. his costs of action.) Dated at New York, New York, this XX day of XXX, 19X. XXXXXXXXXXXX, Clerk of Court. -MISC1- NOTES 1. This Form is illustrative of the judgment to be entered upon a decision of the court. It deals with the cases of decisions by the court awarding a party only money damages or costs, but is adaptable to other decisions by the court. 2. The clerk, unless the court otherwise orders, is required forthwith, without awaiting any direction by the court, to prepare, sign, and enter the judgment upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied. The form of the judgment upon a decision by the court granting other relief shall be promptly approved by the court, and the clerk shall thereupon enter it. See Rule 58, as amended. 3. See also paragraphs 3-4 of the Explanatory Note to Form 31. (Added Jan. 21, 1963, eff. July 1, 1963.) ------DocID 37176 Document 1038 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 33 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 33. Notice of Right To Consent to the Exercise of Civil Jurisdiction by a Magistrate and Appeal Option -STATUTE- In accordance with the provisions of Title 28, U.S.C. Sec. 636(c), you are hereby notified that the United States magistrates of this district court, in addition to their other duties, upon the consent of all parties in a civil case, may conduct any or all proceedings in a civil case including a jury or nonjury trial, and order the entry of a final judgment. You should be aware that your decision to consent, or not to consent, to the referral of your case to a United States magistrate must be entirely voluntary. Only if all the parties to the case consent to the reference to a magistrate will either the judge or magistrate to whom the case has been assigned be informed of your decision. An appeal from a judgment entered by a magistrate may be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. Alternatively, upon consent of all parties, an appeal from a judgment entered by a magistrate may be taken directly to a district judge. Cases in which an appeal is taken to a district judge may be reviewed by the United States court of appeals for this judicial circuit only by way of petition for leave to appeal. Copies of the Form for the 'Consent to Proceed Before a United States Magistrate' and 'Election of Appeal to a District Judge' are available from the clerk of the court. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983.) ------DocID 37177 Document 1039 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 34 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 34. Consent To Proceed Before a United States Magistrate, Election of Appeal to District Judge, and Order of Reference -STATUTE- UNITED STATES DISTRICT COURT FOR THE XXXXX DISTRICT OF XXXXXXXX XXXXXXXXXXXXXXXX Plaintiff, vs. W Docket No. XXXX Defendant. XXXXXXXXXXXXXXXX CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE In accordance with the provisions of Title 28, U.S.C. Sec. 636(c), the parties to the above-captioned civil matter hereby voluntarily waive their rights to proceed before a judge of the United States district court and consent to have a United States magistrate conduct any and all further proceedings in the case, including trial, and order the entry of a final judgment. XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXX Date ELECTION OF APPEAL TO DISTRICT JUDGE (Do not execute this portion of the Consent Form if the parties desire that the appeal lie directly to the court of appeals.) In accordance with the provisions of Title 28, U.S.C. Sec. 636(c)(4), the parties elect to take any appeal in this case to a district judge. XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXX Date ORDER OF REFERENCE IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate XXXXXX for all further proceedings and the entry of judgment in accordance with Title 28, U.S.C. Sec. 636(c) and the foregoing consent of the parties. XXXXXXXXXXXXXX U.S. District Judge Note: Return this form to the Clerk of the Court only if all parties have consented to proceed before a magistrate. -SOURCE- (Added Apr. 28, 1983, eff. Aug. 1, 1983.) ------DocID 37178 Document 1040 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES The amendments to the Federal Rules of Civil Procedure to unify the civil and admiralty procedure, together with the Supplemental Rules for Certain Admiralty and Maritime Claims, completely superseded the Admiralty Rules, effective July 1, 1966. Accordingly, the latter were rescinded. NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Since their promulgation in 1966, the Supplemental Rules for Certain Admiralty and Maritime Claims have preserved the special procedures of arrest and attachment unique to admiralty law. In recent years, however, these Rules have been challenged as violating the principles of procedural due process enunciated in the United States Supreme Court's decision in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and later developed in Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). These Supreme Court decisions provide five basic criteria for a constitutional seizure of property: (1) effective notice to persons having interests in the property seized, (2) judicial review prior to attachment, (3) avoidance of conclusory allegations in the complaint, (4) security posted by the plaintiff to protect the owner of the property under attachment, and (5) a meaningful and timely hearing after attachment. Several commentators have found the Supplemental Rules lacking on some or all five grounds. E.g., Batiza & Partridge, The Constitutional Challenge to Maritime Seizures, 26 Loy. L. Rev. 203 (1980); Morse, The Conflict Between the Supreme Court Admiralty Rules and Sniadach-Fuentes: A Collision Course?, 3 Fla. St. U.L. Rev. 1 (1975). The federal courts have varied in their disposition of challenges to the Supplemental Rules. The Fourth and Fifth Circuits have affirmed the constitutionality of Rule C. Amstar Corp. v. S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981); Merchants National Bank of Mobile v. The Dredge General G. L. Gillespie, 663 F.2d 1338 (5th Cir. 1981), cert. dismissed, 456 U.S. 966 (1982). However, a district court in the Ninth Circuit found Rule C unconstitutional. Alyeska Pipeline Service Co. v. The Vessel Bay Ridge, 509 F. Supp. 1115 (D. Alaska 1981), appeal dismissed, 703 F.2d 381 (9th Cir. 1983). Rule B(1) has received similar inconsistent treatment. The Ninth and Eleventh Circuits have upheld its constitutionality. Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S. A. de Navegacion, 732 F.2d 1543 (11th Cir. 1984). On the other hand, a Washington district court has found it to be constitutionally deficient. Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978). The constitutionality of both rules was questioned in Techem Chem Co. v. M/T Choyo Maru, 416 F. Supp. 960 (D. Md. 1976). Thus, there is uncertainty as to whether the current rules prescribe constitutionally sound procedures for guidance of courts and counsel. See generally Note, Due Process in Admiralty Arrest and Attachment, 56 Tex. L. Rev. 1091 (1978). Due to the controversy and uncertainty that have surrounded the Supplemental Rules, local admiralty bars and the Maritime Law Association of the United States have sought to strengthen the constitutionality of maritime arrest and attachment by encouraging promulgation of local admiralty rules providing for prompt post-seizure hearings. Some districts also adopted rules calling for judicial scrutiny of applications for arrest or attachment. Nonetheless, the result has been a lack of uniformity and continued concern over the constitutionality of the existing practice. The amendments that follow are intended to provide rules that meet the requirements prescribed by the Supreme Court and to develop uniformity in the admiralty practice. ------DocID 37179 Document 1041 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule A -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule A. Scope of Rules -STATUTE- These Supplemental Rules apply to the procedure in admiralty and maritime claims within the meaning of Rule 9(h) with respect to the following remedies: (1) Maritime attachment and garnishment; (2) Actions in rem; (3) Possessory, petitory, and partition actions; (4) Actions for exoneration from or limitation of liability. These rules also apply to the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory condemnation proceedings. The general Rules of Civil Procedure for the United States District Courts are also applicable to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Certain distinctively maritime remedies must be preserved in unified rules. The commencement of an action by attachment or garnishment has heretofore been practically unknown in federal jurisprudence except in admiralty, although the amendment of Rule 4(e) effective July 1, 1963, makes available that procedure in accordance with state law. The maritime proceeding in rem is unique, except as it has been emulated by statute, and is closely related to the substantive maritime law relating to liens. Arrest of the vessel or other maritime property is an historic remedy in controversies over title or right to possession, and in disputes among co-owners over the vessel's employment. The statutory right to limit liability is limited to owners of vessels, and has its own complexities. While the unified federal rules are generally applicable to these distinctive proceedings, certain special rules dealing with them are needed. Arrest of the person and imprisonment for debt are not included because these remedies are not peculiarly maritime. The practice is not uniform but conforms to state law. See 2 Benedict Sec. 286; 28 U.S.C., Sec. 2007; FRCP 64, 69. The relevant provisions of Admiralty Rules 2, 3, and 4 are unnecessary or obsolete. No attempt is here made to compile a complete and self-contained code governing these distinctively maritime remedies. The more limited objective is to carry forward the relevant provisions of the former Rules of Practice for Admiralty and Maritime Cases, modernized and revised to some extent but still in the context of history and precedent. Accordingly, these Rules are not to be construed as limiting or impairing the traditional power of a district court, exercising the admiralty and maritime jurisdiction, to adapt its procedures and its remedies in the individual case, consistently with these rules, to secure the just, speedy, and inexpensive determination of every action. (See Swift & Co., Packers v. Compania Columbiana Del Caribe, S/A, 339 U.S. 684, (1950); Rule 1). In addition, of course, the district courts retain the power to make local rules not inconsistent with these rules. See Rule 83; cf. Admiralty Rule 44. ------DocID 37180 Document 1042 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule B -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule B. Attachment and Garnishment: Special Provisions -STATUTE- (1) When Available; Complaint, Affidavit, Judicial Authorization, and Process. With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant's goods and chattels, or credits and effects in the hands of garnishees to be named in the process to the amount sued for, if the defendant shall not be found within the district. Such a complaint shall be accompanied by an affidavit signed by the plaintiff or the plaintiff's attorney that, to the affiant's knowledge, or to the best of the affiant's information and belief, the defendant cannot be found within the district. The verified complaint and affidavit shall be reviewed by the court and, if the conditions set forth in this rule appear to exist, an order so stating and authorizing process of attachment and garnishment shall issue. Supplemental process enforcing the court's order may be issued by the clerk upon application without further order of the court. If the plaintiff or the plaintiff's attorney certifies that exigent circumstances make review by the court impracticable, the clerk shall issue a summons and process of attachment and garnishment and the plaintiff shall have the burden on a post-attachment hearing under Rule E(4)(f) to show that exigent circumstances existed. In addition, or in the alternative, the plaintiff may, pursuant to Rule 4(e), invoke the remedies provided by state law for attachment and garnishment or similar seizure of the defendant's property. Except for Rule E(8) these Supplemental Rules do not apply to state remedies so invoked. (2) Notice to Defendant. No judgment by default shall be entered except upon proof, which may be by affidavit, (a) that the plaintiff or the garnishee has given notice of the action to the defendant by mailing to the defendant a copy of the complaint, summons, and process of attachment or garnishment, using any form of mail requiring a return receipt, or (b) that the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4(d) or (i), or (c) that the plaintiff or the garnishee has made diligent efforts to give notice of the action to the defendant and has been unable to do so. (3) Answer. (a) By Garnishee. The garnishee shall serve an answer, together with answers to any interrogatories served with the complaint, within 20 days after service of process upon the garnishee. Interrogatories to the garnishee may be served with the complaint without leave of court. If the garnishee refuses or neglects to answer on oath as to the debts, credits, or effects of the defendant in the garnishee's hands, or any interrogatories concerning such debts, credits, and effects that may be propounded by the plaintiff, the court may award compulsory process against the garnishee. If the garnishee admits any debts, credits, or effects, they shall be held in the garnishee's hands or paid into the registry of the court, and shall be held in either case subject to the further order of the court. (b) By Defendant. The defendant shall serve an answer within 30 days after process has been executed, whether by attachment of property or service on the garnishee. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (1) This preserves the traditional maritime remedy of attachment and garnishment, and carries forward the relevant substance of Admiralty Rule 2. In addition, or in the alternative, provision is made for the use of similar state remedies made available by the amendment of Rule 4(e) effective July 1, 1963. On the effect of appearance to defend against attachment see Rule E(8). The rule follows closely the language of Admiralty Rule 2. No change is made with respect to the property subject to attachment. No change is made in the condition that makes the remedy available. The rules have never defined the clause, 'if the defendant shall not be found within the district,' and no definition is attempted here. The subject seems one best left for the time being to development on a case-by-case basis. The proposal does shift from the marshal (on whom it now rests in theory) to the plaintiff the burden of establishing that the defendant cannot be found in the district. A change in the context of the practice is brought about by Rule 4(f), which will enable summons to be served throughout the state instead of, as heretofore, only within the district. The Advisory Committee considered whether the rule on attachment and garnishment should be correspondingly changed to permit those remedies only when the defendant cannot be found within the state and concluded that the remedy should not be so limited. The effect is to enlarge the class of cases in which the plaintiff may proceed by attachment or garnishment although jurisdiction of the person of the defendant may be independently obtained. This is possible at the present time where, for example, a corporate defendant has appointed an agent within the district to accept service of process but is not carrying on activities there sufficient to subject it to jurisdiction. (Seawind Compania, S.A. v. Crescent Line, Inc., 320 F.2d 580 (2d Cir. 1963)), or where, though the foreign corporation's activities in the district are sufficient to subject it personally to the jurisdiction, there is in the district no officer on whom process can be served (United States v. Cia. Naviera Continental, S.A., 178 F.Supp. 561, (S.D.N.Y. 1959)). Process of attachment or garnishment will be limited to the district. See Rule E(3)(a). Subdivision (2) The former Admiralty Rules did not provide for notice to the defendant in attachment and garnishment proceedings. None is required by the principles of due process, since it is assumed that the garnishee or custodian of the property attached will either notify the defendant or be deprived of the right to plead the judgment as a defense in an action against him by the defendant. Harris v. Balk, 198 U.S. 215 (1905); Pennoyer v. Neff, 95 U.S. 714 (1878). Modern conceptions of fairness, however, dictate that actual notice be given to persons known to claim an interest in the property that is the subject of the action where that is reasonably practicable. In attachment and garnishment proceedings the persons whose interests will be affected by the judgment are identified by the complaint. No substantial burden is imposed on the plaintiff by a simple requirement that he notify the defendant of the action by mail. In the usual case the defendant is notified of the pendency of the proceedings by the garnishee or otherwise, and appears to claim the property and to make his answer. Hence notice by mail is not routinely required in all cases, but only in those in which the defendant has not appeared prior to the time when a default judgment is demanded. The rule therefore provides only that no default judgment shall be entered except upon proof of notice, or of inability to give notice despite diligent efforts to do so. Thus the burden of giving notice is further minimized. In some cases the plaintiff may prefer to give notice by serving process in the usual way instead of simply by mail. (Rule 4(d).) In particular, if the defendant is in a foreign country the plaintiff may wish to utilize the modes of notice recently provided to facilitate compliance with foreign laws and procedures (Rule 4(i)). The rule provides for these alternatives. The rule does not provide for notice by publication because there is no problem concerning unknown claimants, and publication has little utility in proportion to its expense where the identity of the defendant is known. Subdivision (3) Subdivision (a) incorporates the substance of Admiralty Rule 36. The Admiralty Rules were silent as to when the garnishee and the defendant were to answer. See also 2 Benedict ch. XXIV. The rule proceeds on the assumption that uniform and definite periods of time for responsive pleadings should be substituted for return days (see the discussion under Rule C(6), below). Twenty days seems sufficient time for the garnishee to answer (cf. FRCP 12(a)), and an additional 10 days should suffice for the defendant. When allowance is made for the time required for notice to reach the defendant this gives the defendant in attachment and garnishment approximately the same time that defendants have to answer when personally served. NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule B(1) has been amended to provide for judicial scrutiny before the issuance of any attachment or garnishment process. Its purpose is to eliminate doubts as to whether the Rule is consistent with the principles of procedural due process enunciated by the Supreme Court in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); and later developed in Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). Such doubts were raised in Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978); and Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 552 F. Supp. 771 (S.D. Ga. 1982), which was reversed, 732 F.2d 1543 (11th Cir. 1984). But compare Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982), in which a majority of the panel upheld the constitutionality of Rule B because of the unique commercial context in which it is invoked. The practice described in Rule B(1) has been adopted in some districts by local rule. E.g., N.D. Calif. Local Rule 603.3; W.D. Wash. Local Admiralty Rule 15(d). The rule envisions that the order will issue when the plaintiff makes a prima facie showing that he has a maritime claim against the defendant in the amount sued for and the defendant is not present in the district. A simple oder with conclusory findings is contemplated. The reference to review by the 'court' is broad enough to embrace review by a magistrate as well as by a district judge. The new provision recognizes that in some situations, such as when the judge is unavailable and the ship is about to depart from the jurisdiction, it will be impracticable, if not impossible, to secure the judicial review contemplated by Rule B(1). When 'exigent circumstances' exist, the rule enables the plaintiff to secure the issuance of the summons and process of attachment and garnishment, subject to a later showing that the necessary circumstances actually existed. This provision is intended to provide a safety valve without undermining the requirement of preattachment scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before resorting to the exigent-circumstances procedure. Rule B(1) also has been amended so that the garnishee shall be named in the 'process' rather than in the 'complaint.' This should solve the problem presented in Filia Compania Naviera, S.A. v. Petroship, S.A., 1983 A.M.C. 1 (S.D.N.Y. 1982), and eliminate any need for an additional judicial review of the complaint and affidavit when a garnishee is added. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37181 Document 1043 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule C -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule C. Actions in Rem: Special Provisions -STATUTE- (1) When Available. An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto. Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable. Statutory provisions exempting vessels or other property owned or possessed by or operated by or for the United States from arrest or seizure are not affected by this rule. When a statute so provides, an action against the United States or an instrumentality thereof may proceed on in rem principles. (2) Complaint. In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought. (3) Judicial Authorization and Process. Except in actions by the United States for forfeitures for federal statutory violations, the verified complaint and any supporting papers shall be reviewed by the court and, if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel or other property that is the subject of the action shall issue and be delivered to the clerk who shall prepare the warrant and deliver it to the marshal for service. If the property that is the subject of the action consists in whole or in part of freight, or the proceeds of property sold, or other intangible property, the clerk shall issue a summons directing any person having control of the funds to show cause why they should not be paid into court to abide the judgment. Supplemental process enforcing the court's order may be issued by the clerk upon application without further order of the court. If the plaintiff or the plaintiff's attorney certifies that exigent circumstances make review by the court impracticable, the clerk shall issue a summons and warrant for the arrest and the plaintiff shall have the burden on a post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed. In actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances. (4) Notice. No notice other than the execution of the process is required when the property that is the subject of the action has been released in accordance with Rule E(5). If the property is not released within 10 days after execution of process, the plaintiff shall promptly or within such time as may be allowed by the court cause public notice of the action and arrest to be given in a newspaper of general circulation in the district, designated by order of the court. Such notice shall specify the time within which the answer is required to be filed as provided by subdivision (6) of this rule. This rule does not affect the requirements of notice in actions to foreclose a preferred ship mortgage pursuant to the Act of June 5, 1920, ch. 250, Sec. 30, as amended. (FOOTNOTE 1) (FOOTNOTE 1) See References in Text note below. (5) Ancillary Process. In any action in rem in which process has been served as provided by this rule, if any part of the property that is the subject of the action has not been brought within the control of the court because it has been removed or sold, or because it is intangible property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require. (6) Claim and Answer; Interrogatories. The claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee, or attorney is duly authorized to make the claim. At the time of answering the claimant shall also serve answers to any interrogatories served with the complaint. In actions in rem interrogatories may be so served without leave of court. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (1). This rule is designed not only to preserve the proceeding in rem as it now exists in admiralty cases, but to preserve the substance of Admiralty Rules 13-18. The general reference to enforcement of any maritime lien is believed to state the existing law, and is an improvement over the enumeration in the former Admiralty Rules, which is repetitious and incomplete (e.g., there was no reference to general average). The reference to any maritime lien is intended to include liens created by state law which are enforceable in admiralty. The main concern of Admiralty Rules 13-18 was with the question whether certain actions might be brought in rem or also, or in the alternative, in personam. Essentially, therefore, these rules deal with questions of substantive law, for in general an action in rem may be brought to enforce any maritime lien, and no action in personam may be brought when the substantive law imposes no personal liability. These rules may be summarized as follows: 1. Cases in which the plaintiff may proceed in rem and/or in personam: a. Suits for seamen's wages; b. Suits by materialmen for supplies, repairs, etc.; c. Suits for pilotage; d. Suits for collision damages; e. Suits founded on mere maritime hypothecation; f. Suits for salvage. 2. Cases in which the plaintiff may proceed only in personam: a. Suits for assault and beating. 3. Cases in which the plaintiff may proceed only in rem: a. Suits on bottomry bonds. The coverage is complete, since the rules omit mention of many cases in which the plaintiff may proceed in rem or in personam. This revision proceeds on the principle that it is preferable to make a general statement as to the availability of the remedies, leaving out conclusions on matters of substantive law. Clearly it is not necessary to enumerate the cases listed under Item 1, above, nor to try to complete the list. The rule eliminates the provision of Admiralty Rule 15 that actions for assault and beating may be brought only in personam. A preliminary study fails to disclose any reason for the rule. It is subject to so many exceptions that it is calculated to receive rather than to inform. A seaman may sue in rem when he has been beaten by a fellow member of the crew so vicious as to render the vessel unseaworthy. The Rolph, 293 Fed. 269, aff'd 299 Fed. 52 (9th Cir. 1923), or where the theory of the action is that a beating by the master is a breach of the obligation under the shipping articles to treat the seaman with proper kindness. The David Evans, 187 Fed. 775 (D. Hawaii 1911); and a passenger may sue in rem on the theory that the assault is a breach of the contract of passage, The Western States, 159 Fed. 354 (2d Cir. 1908). To say that an action for money damages may be brought only in personam seems equivalent to saying that a maritime lien shall not exist; and that, in turn, seems equivalent to announcing a rule of substantive law rather than a rule of procedure. Dropping the rule will leave it to the courts to determine whether a lien exists as a matter of substantive law. The specific reference to bottomry bonds is omitted because, as a matter of hornbook substantive law, there is no personal liability on such bonds. Subdivision (2). This incorporates the substance of Admiralty Rules 21 and 22. Subdivision (3). Derived from Admiralty Rules 10 and 37. The provision that the warrant is to be issued by the clerk is new, but is assumed to state existing law. There is remarkably little authority bearing on Rule 37, although the subject would seem to be an important one. The rule appears on its face to have provided for a sort of ancillary process, and this may well be the case when tangible property, such as a vessel, is arrested, and intangible property such as freight is incidentally involved. It can easily happen, however, that the only property against which the action may be brought is intangible, as where the owner of a vessel under charter has a lien on subfreights. See 2 Benedict Sec. 299 and cases cited. In such cases it would seem that the order to the person holding the fund is equivalent to original process, taking the place of the warrant for arrest. That being so, it would also seem that (1) there should be some provision for notice, comparable to that given when tangible property is arrested, and (2) it should not be necessary, as Rule 37 provided, to petition the court for issuance of the process, but that it should issue as of course. Accordingly the substance of Rule 37 is included in the rule covering ordinary process, and notice will be required by Rule C(4). Presumably the rules omit any requirement of notice in these cases because the holder of the funds (e.g., the cargo owner) would be required on general principles (cf. Harris v. Balk, 198 U.S. 215 (1905) to notify his obligee (e.g., the charterer); but in actions in rem such notice seems plainly inadequate because there may be adverse claims to the fund (e.g., there may be liens against the subfreights for seamen's wages, etc.). Compare Admiralty Rule 9. Subdivision (4). This carries forward the notice provision of Admiralty Rule 10, with one modification. Notice by publication is too expensive and ineffective a formality to be routinely required. When, as usually happens, the vessel or other property is released on bond or otherwise there is no point in publishing notice; the vessel is freed from the claim of the plaintiff and no other interest in the vessel can be affected by the proceedings. If however, the vessel is not released, general notice is required in order that all persons, including unknown claimants, may appear and be heard, and in order that the judgment in rem shall be binding on all the world. Subdivision (5). This incorporates the substance of Admiralty Rule 9. There are remarkably few cases dealing directly with the rule. In The George Prescott, 10 Fed. Cas. 222 (No. 5,339) (E.D.N.Y. 1865), the master and crew of a vessel libeled her for wages, and other lienors also filed libels. One of the lienors suggested to the court that prior to the arrest of the vessel the master had removed the sails, and asked that he be ordered to produce them. He admitted removing the sails and selling them, justifying on the ground that he held a mortgage on the vessel. He was ordered to pay the proceeds into court. Cf. United States v. The Zarko, 187 F.Supp. 371 (S.D.Cal. 1960), where an armature belonging to a vessel subject to a preferred ship mortgages was in possession of a repairman claiming a lien. It is evident that, though the rule has had a limited career in the reported cases, it is a potentially important one. It is also evident that the rule is framed in terms narrower than the principle that supports it. There is no apparent reason for limiting it to ships and their appurtenances (2 Benedict Sec. 299). Also, the reference to 'third parties' in the existing rule seems unfortunate. In The George Prescott, the person who removed and sold the sails was a plaintiff in the action, and relief against him was just as necessary as if he had been a stranger. Another situation in which process of this kind would seem to be useful is that in which the principal property that is the subject of the action is a vessel, but her pending freight is incidentally involved. The warrant of arrest, and notice of its service, should be all that is required by way of original process and notice; ancillary process without notice should suffice as to the incidental intangibles. The distinction between Admiralty Rules 9 and 37 is not at once apparent, but seems to be this: Where the action was against property that could not be seized by the marshal because it is intangible, the original process was required to be similar to that issued against a garnishee, and general notice was required (though not provided for by the present rule; cf. Advisory Committee's Note to Rule C(3)). Under Admiralty Rule 9 property had been arrested and general notice had been given, but some of the property had been removed or for some other reason could not be arrested. Here no further notice was necessary. The rule also makes provision for this kind of situation: The proceeding is against a vessel's pending freight only; summons has been served on the person supposedly holding the funds, and general notice has been given; it develops that another person holds all or part of the funds. Ancillary process should be available here without further notice. Subdivision (6). Adherence to the practice of return days seems unsatisfactory. The practice varies significantly from district to district. A uniform rule should be provided so that any claimant or defendant can readily determine when he is required to file or serve a claim or answer. A virtue of the return-day practice is that it requires claimants to come forward and identify themselves at an early stage of the proceedings - before they could fairly be required to answer. The draft is designed to preserve this feature of the present practice by requiring early filing of the claim. The time schedule contemplated in the draft is closely comparable to the present practice in the Southern District of New York, where the claimant has a minimum of 8 days to claim and three weeks thereafter to answer. This rule also incorporates the substance of Admiralty Rule 25. The present rule's emphasis on 'the true and bona fide owner' is omitted, since anyone having the right to possession can claim (2 Benedict Sec. 324). NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule C(3) has been amended to provide for judicial scrutiny before the issuance of any warrant of arrest. Its purpose is to eliminate any doubt as to the rule's constitutionality under the Sniadach line of cases. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). This was thought desirable even though both the Fourth and the Fifth Circuits have upheld the existing rule. Amstar Corp. v. S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981); Merchants National Bank of Mobile v. The Dredge General G. L. Gillespie, 663 F.2d 1338 (5th Cir. 1981), cert. dismissed, 456 U.S. 966 (1982). A contrary view was taken by Judge Tate in the Merchants National Bank case and by the district court in Alyeska Pipeline Service Co. v. The Vessel Bay Ridge, 509 F. Supp. 1115 (D. Alaska 1981), appeal dismissed, 703 F.2d 381 (9th Cir. 1983). The rule envisions that the order will issue upon a prima facie showing that the plaintiff has an action in rem against the defendant in the amount sued for and that the property is within the district. A simple order with conclusory findings is contemplated. The reference to review by the 'court' is broad enough to embrace a magistrate as well as a district judge. The new provision recognizes that in some situations, such as when a judge is unavailable and the vessel is about to depart from the jurisdiction, it will be impracticable, if not impossible, to secure the judicial review contemplated by Rule C(3). When 'exigent circumstances' exist, the rule enables the plaintiff to secure the issuance of the summons and warrant of arrest, subject to a later showing that the necessary circumstances actually existed. This provision is intended to provide a safety valve without undermining the requirement of pre-arrest scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before invoking the exigent-circumstances procedure. The foregoing requirements for prior court review or proof of exigent circumstances do not apply to actions by the United States for forfeitures for federal statutory violations. In such actions a prompt hearing is not constitutionally required, United States v. Eight Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), and could prejudice the government in its prosecution of the claimants as defendants in parallel criminal proceedings since the forfeiture hearing could be misused by the defendants to obtain by way of civil discovery information to which they would not otherwise be entitled and subject the government and the courts to the unnecessary burden and expense of two hearings rather than one. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT Act of June 5, 1920, ch. 250, Sec. 30, referred to in subd. (4), is section 30 of act June 5, 1920, ch. 250, 41 Stat. 988, as amended, known as the 'Ship Mortgage Act, 1920', which was classified generally to chapter 25 (Sec. 911 et seq.) of Title 46, Appendix, Shipping, and was repealed by Pub. L. 100-710, title I, Sec. 106(b)(2), Nov. 23, 1988, 102 Stat. 4752, and reenacted by section 102(c) thereof as chapters 301 and 313 of Title 46, Shipping. ------DocID 37182 Document 1044 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule D -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule D. Possessory, Petitory, and Partition Actions -STATUTE- In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property, and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES This carries forward the substance of Admiralty Rule 19. Rule 19 provided the remedy of arrest in controversies involving title and possession in general. See The Tilton, 23 Fed. Cas. 1277 (No. 14, 054) (C.C.D. Mass. 1830). In addition it provided that remedy in controversies between co-owners respecting the employment of a vessel. It did not deal comprehensively with controversies between co-owners, omitting the remedy of partition. Presumably the omission is traceable to the fact that, when the rules were originally promulgated, concepts of substantive law (sometimes stated as concepts of jurisdiction) denied the remedy of partition except where the parties in disagreement were the owners of equal shares. See The Steamboat Orleans, 36 U.S. (11 Pet.) 175 (1837). The Supreme Court has now removed any doubt as to the jurisdiction of the district courts to partition a vessel, and has held in addition that no fixed principle of federal admiralty law limits the remedy to the case of equal shares. Madruga v. Superior Court, 346 U.S. 556 (1954). It is therefore appropriate to include a reference to partition in the rule. ------DocID 37183 Document 1045 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule E -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule E. Actions in Rem and Quasi in Rem: General Provisions -STATUTE- (1) Applicability. Except as otherwise provided, this rule applies to actions in personam with process of maritime attachment and garnishment, actions in rem, and petitory, possessory, and partition actions, supplementing Rules B, C, and D. (2) Complaint; Security. (a) Complaint. In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. (b) Security for Costs. Subject to the provisions of Rule 54(d) and of relevant statutes, the court may, on the filing of the complaint or on the appearance of any defendant, claimant, or any other party, or at any later time, require the plaintiff, defendant, claimant, or other party to give security, or additional security, in such sum as the court shall direct to pay all costs and expenses that shall be awarded against the party by any interlocutory order or by the final judgment, or on appeal by any appellate court. (3) Process. (a) Territorial Limits of Effective Service. Process in rem and of maritime attachment and garnishment shall be served only within the district. (b) Issuance and Delivery. Issuance and delivery of process in rem, or of maritime attachment and garnishment, shall be held in abeyance if the plaintiff so requests. (4) Execution of Process; Marshal's Return; Custody of Property; Procedures for Release. (a) In General. Upon issuance and delivery of the process, or, in the case of summons with process of attachment and garnishment, when it appears that the defendant cannot be found within the district, the marshal shall forthwith execute the process in accordance with this subdivision (4), making due and prompt return. (b) Tangible Property. If tangible property is to be attached or arrested, the marshal shall take it into the marshal's possession for safe custody. If the character or situation of the property is such that the taking of actual possession is impracticable, the marshal shall execute the process by affixing a copy thereof to the property in a conspicuous place and by leaving a copy of the complaint and process with the person having possession or the person's agent. In furtherance of the marshal's custody of any vessel the marshal is authorized to make a written request to the collector of customs not to grant clearance to such vessel until notified by the marshal or a deputy marshal or by the clerk that the vessel has been released in accordance with these rules. (c) Intangible Property. If intangible property is to be attached or arrested the marshal shall execute the process by leaving with the garnishee or other obligor a copy of the complaint and process requiring the garnishee or other obligor to answer as provided in Rules B(3)(a) and C(6); or the marshal may accept for payment into the registry of the court the amount owed to the extent of the amount claimed by the plaintiff with interest and costs, in which event the garnishee or other obligor shall not be required to answer unless alias process shall be served. (d) Directions With Respect to Property in Custody. The marshal may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give notice of such application to any or all of the parties as the court may direct. (e) Expenses of Seizing and Keeping Property; Deposit. These rules do not alter the provisions of Title 28, U.S.C., Sec. 1921, as amended, relative to the expenses of seizing and keeping property attached or arrested and to the requirement of deposits to cover such expenses. (f) Procedure for Release From Arrest or Attachment. Whenever property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt hearing at which the plaintiff shall be required to show why the arrest or attachment should not be vacated or other relief granted consistent with these rules. This subdivision shall have no application to suits for seamen's wages when process is issued upon a certification of sufficient cause filed pursuant to Title 46, U.S.C. Sec. 603 and 604 (FOOTNOTE 1) or to actions by the United States for forfeitures for violation of any statute of the United States. (FOOTNOTE 1) See References in Text note below. (5) Release of Property. (a) Special Bond. Except in cases of seizures for forfeiture under any law of the United States, whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of any appellate court. The parties may stipulate the amount and nature of such security. In the event of the inability or refusal of the parties so to stipulate the court shall fix the principal sum of the bond or stipulation at an amount sufficient to cover the amount of the plaintiff's claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (i) twice the amount of the plaintiff's claim or (ii) the value of the property on due appraisement, whichever is smaller. The bond or stipulation shall be conditioned for the payment of the principal sum and interest thereon at 6 per cent per annum. (b) General Bond. The owner of any vessel may file a general bond or stipulation, with sufficient surety, to be approved by the court, conditioned to answer the judgment of such court in all or any actions that may be brought thereafter in such court in which the vessel is attached or arrested. Thereupon the execution of all such process against such vessel shall be stayed so long as the amount secured by such bond or stipulation is at least double the aggregate amount claimed by plaintiffs in all actions begun and pending in which such vessel has been attached or arrested. Judgments and remedies may be had on such bond or stipulation as if a special bond or stipulation had been filed in each of such actions. The district court may make necessary orders to carry this rule into effect, particularly as to the giving of proper notice of any action against or attachment of a vessel for which a general bond has been filed. Such bond or stipulation shall be indorsed by the clerk with a minute of the actions wherein process is so stayed. Further security may be required by the court at any time. If a special bond or stipulation is given in a particular case, the liability on the general bond or stipulation shall cease as to that case. (c) Release by Consent or Stipulation; Order of Court or Clerk; Costs. Any vessel, cargo, or other property in the custody of the marshal may be released forthwith upon the marshal's acceptance and approval of a stipulation, bond, or other security, signed by the party on whose behalf the property is detained or the party's attorney and expressly authorizing such release, if all costs and charges of the court and its officers shall have first been paid. Otherwise no property in the custody of the marshal or other officer of the court shall be released without an order of the court; but such order may be entered as of course by the clerk, upon the giving of approved security as provided by law and these rules, or upon the dismissal or discontinuance of the action; but the marshal shall not deliver any property so released until the costs and charges of the officers of the court shall first have been paid. (d) Possessory, Petitory, and Partition Actions. The foregoing provisions of this subdivision (5) do not apply to petitory, possessory, and partition actions. In such cases the property arrested shall be released only by order of the court, on such terms and conditions and on the giving of such security as the court may require. (6) Reduction or Impairment of Security. Whenever security is taken the court may, on motion and hearing, for good cause shown, reduce the amount of security given; and if the surety shall be or become insufficient, new or additional sureties may be required on motion and hearing. (7) Security on Counterclaim. Whenever there is asserted a counterclaim arising out of the same transaction or occurrence with respect to which the action was originally filed, and the defendant or claimant in the original action has given security to respond in damages, any plaintiff for whose benefit such security has been given shall give security in the usual amount and form to respond in damages to the claims set forth in such counterclaim, unless the court, for cause shown, shall otherwise direct; and proceedings on the original claim shall be stayed until such security is given, unless the court otherwise directs. When the United States or a corporate instrumentality thereof as defendant is relieved by law of the requirement of giving security to respond in damages it shall nevertheless be treated for the purposes of this subdivision E(7) as if it had given such security if a private person so situated would have been required to give it. (8) Restricted Appearance. An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment whether pursuant to these Supplemental Rules or to Rule 4(e), may be expressly restricted to the defense of such claim, and in that event shall not constitute an appearance for the purposes of any other claim with respect to which such process is not available or has not been served. (9) Disposition of Property; Sales. (a) Actions for Forfeitures. In any action in rem to enforce a forfeiture for violation of a statute of the United States the property shall be disposed of as provided by statute. (b) Interlocutory Sales. If property that has been attached or arrested is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action, or if the expense of keeping the property is excessive or disproportionate, or if there is unreasonable delay in securing the release of property, the court, on application of any party or of the marshal, may order the property or any portion thereof to be sold; and the proceeds, or so much thereof as shall be adequate to satisfy any judgment, may be ordered brought into court to abide the event of the action; or the court may, on motion of the defendant or claimant, order delivery of the property to the defendant or claimant, upon the giving of security in accordance with these rules. (c) Sales, Proceeds. All sales of property shall be made by the marshal or a deputy marshal, or other proper officer assigned by the court where the marshal is a party in interest; and the proceeds of sale shall be forthwith paid into the registry of the court to be disposed of according to law. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivisions (1), (2). Adapted from Admiralty Rule 24. The rule is based on the assumption that there is no more need for security for costs in maritime personal actions than in civil cases generally, but that there is reason to retain the requirement for actions in which property is seized. As to proceedings for limitation of liability see Rule F(1). Subdivision (3). The Advisory Committee has concluded for practical reasons that process requiring seizure of property should continue to be served only within the geographical limits of the district. Compare Rule B(1), continuing the condition that process of attachment and garnishment may be served only if the defendant is not found within the district. The provisions of Admiralty Rule 1 concerning the persons by whom process is to be served will be superseded by FRCP 4(c). Subdivision (4). This rule is intended to preserve the provisions of Admiralty Rules 10 and 36 relating to execution of process, custody of property, seized by the marshal, and the marshal's return. It is also designed to make express provision for matters not heretofore covered. The provision relating to clearance in subdivision (b) is suggested by Admiralty Rule 44 of the District of Maryland. Subdivision (d) is suggested by English Rule 12, Order 75. 28 U.S.C. Sec. 1921 as amended in 1962 contains detailed provisions relating to the expenses of seizing and preserving property attached or arrested. Subdivision (5). In addition to Admiralty Rule 11 (see Rule E(9), the release of property seized on process of attachment or in rem was dealt with by Admiralty Rules 5, 6, 12, and 57, and 28 U.S.C., Sec. 2464 (formerly Rev. Stat. Sec. 941). The rule consolidates these provisions and makes them uniformly applicable to attachment and garnishment and actions in rem. The rule restates the substance of Admiralty Rule 5. Admiralty Rule 12 dealt only with ships arrested on in rem process. Since the same ground appears to be covered more generally by 28 U.S.C., Sec. 2464, the subject matter of Rule 12 is omitted. The substance of Admiralty Rule 57 is retained. 28 U.S.C., Sec. 2464 is incorporated with changes of terminology, and with a substantial change as to the amount of the bond. See 2 Benedict 395 n. 1a; The Lotosland, 2 F. Supp. 42 (S.D.N.Y. 1933). The provision for general bond is enlarged to include the contingency of attachment as well as arrest of the vessel. Subdivision (6). Adapted from Admiralty Rule 8. Subdivision (7). Derived from Admiralty Rule 50. Title 46, U.S.C., Sec. 783 extends the principle of Rule 50 to the Government when sued under the Public Vessels Act, presumably on the theory that the credit of the Government is the equivalent of the best security. The rule adopts this principle and extends it to all cases in which the Government is defendant although the Suits in Admiralty Act contains no parallel provisions. Subdivision (8). Under the liberal joinder provisions of unified rules the plaintiff will be enabled to join with maritime actions in rem, or maritime actions in personam with process of attachment and garnishment, claims with respect to which such process is not available, including nonmaritime claims. Unification should not, however, have the result that, in order to defend against an admiralty and maritime claim with respect to which process in rem or quasi in rem has been served, the claimant or defendant must subject himself personally to the jurisdiction of the court with reference to other claims with respect to which such process is not available or has not been served, especially when such other claims are nonmaritime. So far as attachment and garnishment are concerned this principle holds true whether process is issued according to admiralty tradition and the Supplemental Rules or according to Rule 4(e) as incorporated by Rule B(1). A similar problem may arise with respect to civil actions other than admiralty and maritime claims within the meaning of Rule 9(h). That is to say, in an ordinary civil action, whether maritime or not, there may be joined in one action claims with respect to which process of attachment and garnishment is available under state law and Rule 4(e) and claims with respect to which such process is not available or has not been served. The general Rules of Civil Procedure do not specify whether an appearance in such cases to defend the claim with respect to which process of attachment and garnishment has issued is an appearance for the purposes of the other claims. In that context the question has been considered best left to case-by-case development. Where admiralty and maritime claims within the meaning of Rule 9(h) are concerned, however, it seems important to include a specific provision to avoid an unfortunate and unintended effect of unification. No inferences whatever as to the effect of such an appearance in an ordinary civil action should be drawn from the specific provision here and the absence of such a provision in the general Rules. Subdivision (9). Adapted from Admiralty Rules 11, 12, and 40. Subdivision (a) is necessary because of various provisions as to disposition of property in forfeiture proceedings. In addition to particular statutes, note the provisions of 28 U.S.C., Sec. 2461-65. The provision of Admiralty Rule 12 relating to unreasonable delay was limited to ships but should have broader application. See 2 Benedict 404. Similarly, both Rules 11 and 12 were limited to actions in rem, but should equally apply to attached property. NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT Rule E(4)(f) makes available the type of prompt post-seizure hearing in proceedings under Supplemental Rules B and C that the Supreme Court has called for in a number of cases arising in other contexts. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974). Although post-attachment and post-arrest hearings always have been available on motion, an explicit statement emphasizing promptness and elaborating the procedure has been lacking in the Supplemental Rules. Rule E(4)(f) is designed to satisfy the constitutional requirement of due process by guaranteeing to the shipowner a prompt post-seizure hearing at which he can attack the complaint, the arrest, the security demanded, or any other alleged deficiency in the proceedings. The amendment also is intended to eliminate the previously disparate treatment under local rules of defendants whose property has been seized pursuant to Supplemental Rules B and C. The new Rule E(4)(f) is based on a proposal by the Maritime Law Association of the United States and on local admiralty rules in the Eastern, Northern, and Southern Districts of New York. E.D.N.Y. Local Rule 13; N.D.N.Y. Local Rule 13; S.D.N.Y. Local Rule 12. Similar provisions have been adopted by other maritime districts. E.g., N.D. Calif. Local Rule 603.4; W.D. La. Local Admiralty Rule 21. Rule E(4)(f) will provide uniformity in practice and reduce constitutional uncertainties. Rule E(4)(f) is triggered by the defendant or any other person with an interest in the property seized. Upon an oral or written application similar to that used in seeking a temporary restraining order, see Rule 65(b), the court is required to hold a hearing as promptly as possible to determine whether to allow the arrest or attachment to stand. The plaintiff has the burden of showing why the seizure should not be vacated. The hearing also may determine the amount of security to be granted or the propriety of imposing counter-security to protect the defendant from an improper seizure. The foregoing requirements for prior court review or proof of exigent cirumstances do not apply to actions by the United States for forfeitures for federal statutory violations. In such actions a prompt hearing is not constitutionally required, United States v. Eight Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), and could prejudice the government in its prosecution of the claimants as defendants in parallel criminal proceedings since the forfeiture hearing could be misused by the defendants to obtain by way of civil discovery information to which they would not otherwise be entitled and subject the government and the courts to the unnecessary burden and expense of two hearings rather than one. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT Sections 603 and 604 of Title 46, referred to in subd. (4)(f), were repealed by Pub. L. 98-89, Sec. 4(b), Aug. 26, 1983, 97 Stat. 600, section 1 of which enacted Title 46, Shipping. ------DocID 37184 Document 1046 of 1452------ -CITE- 28 USC Rule F -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS -HEAD- Rule F. Limitation of Liability -STATUTE- (1) Time for Filing Complaint; Security. Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the owner's interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at the owner's option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, the owner's interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if the plaintiff elects to give security, for interest at the rate of 6 percent per annum from the date of the security. (2) Complaint. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer the plaintiff's interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip. (3) Claims Against Owner; Injunction. Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or the owner's property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiff's property with respect to any claim subject to limitation in the action. (4) Notice to Claimants. Upon the owner's compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be filed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at the decedent's last known address, and also to any person who shall be known to have made any claim on account of such death. (5) Claims and Answer. Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the complaint unless the claim has included an answer. (6) Information To Be Given Claimants. Within 30 days after the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant) a list setting forth (a) the name of each claimant, (b) the name and address of the claimant's attorney (if the claimant is known to have one), (c) the nature of the claim, i.e., whether property loss, property damage, death, personal injury etc., and (d) the amount thereof. (7) Insufficiency of Fund or Security. Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff's interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff's interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced. (8) Objections to Claims: Distribution of Fund. Any interested party may question or controvert any claim without filing an objection thereto. Upon determination of liability the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled. (9) Venue; Transfer. The complaint shall be filed in any district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be, but if the vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules. -SOURCE- (Added Feb. 28, 1966, eff. July 1, 1966, and amended Mar. 2, 1987, eff. Aug. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (1). The amendments of 1936 to the Limitation Act superseded to some extent the provisions of Admiralty Rule 51, especially with respect to the time of filing the complaint and with respect to security. The rule here incorporates in substance the 1936 amendment of the Act (46 U.S.C., Sec. 185) with a slight modification to make it clear that the complaint may be filed at any time not later than six months after a claim has been lodged with the owner. Subdivision (2). Derived from Admiralty Rules 51 and 53. Subdivision (3). This is derived from the last sentence of 36 U.S.C. Sec. 185 and the last paragraph of Admiralty Rule 51. Subdivision (4). Derived from Admiralty Rule 51. Subdivision (5). Derived from Admiralty Rules 52 and 53. Subdivision (6). Derived from Admiralty Rule 52. Subdivision (7). Derived from Admiralty Rule 52 and 46 U.S.C., Sec. 185. Subdivision (8). Derived from Admiralty Rule 52. Subdivision (9). Derived from Admiralty Rule 54. The provision for transfer is revised to conform closely to the language of 28 U.S.C. Sec. 1404(a) and 1406(a), though it retains the existing rule's provision for transfer to any district for convenience. The revision also makes clear what has been doubted: that the court may transfer if venue is wrongly laid. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37185 Document 1047 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE -HEAD- FEDERAL RULES OF EVIDENCE -MISC1- (AS AMENDED TO JANUARY 2, 1991) EFFECTIVE DATE AND APPLICATION OF RULES Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1926, provided: 'That the following rules shall take effect on the one hundred and eightieth day (July 1, 1975) beginning after the date of the enactment of this Act (Jan. 2, 1975). These rules apply to actions, cases, and proceedings brought after the rules take effect. These rules also apply to further procedure in actions, cases, and proceedings then pending, except to the extent that application of the rules would not be feasible, or would work injustice, in which event former evidentiary principles apply.' HISTORICAL NOTE The Federal Rules of Evidence were adopted by order of the Supreme Court on Nov. 20, 1972, transmitted to Congress by the Chief Justice on Feb. 5, 1973, and to have become effective on July 1, 1973. Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9, provided that the proposed rules 'shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress'. Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1926, enacted the Federal Rules of Evidence proposed by the Supreme Court, with amendments made by Congress, to take effect on July 1, 1975. The Rules have been amended Oct. 16, 1975, Pub. L. 94-113, Sec. 1, 89 Stat. 576, eff. Oct. 31, 1975; Dec. 12, 1975, Pub. L. 94-149, Sec. 1, 89 Stat. 805; Oct. 28, 1978, Pub. L. 95-540, Sec. 2, 92 Stat. 2046; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 251, 92 Stat. 2673, eff. Oct. 1, 1979; Apr. 30, 1979, eff. Dec. 1, 1980; Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 142, title IV, Sec. 402, 96 Stat. 45, 57, eff. Oct. 1, 1982; Oct. 12, 1984, Pub. L. 98-473, title IV, Sec. 406, 98 Stat. 2067; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7046, 7075, 102 Stat. 4400, 4405; Jan. 26, 1990, eff. Dec. 1, 1990. ARTICLE I. GENERAL PROVISIONS Rule 101. Scope. 102. Purpose and construction. 103. Rulings on evidence. (a) Effect of erroneous ruling. (1) Objection. (2) Offer of proof. (b) Record of offer and ruling. (c) Hearing of jury. (d) Plain error. 104. Preliminary questions. (a) Questions of admissibility generally. (b) Relevancy conditioned on fact. (c) Hearing of jury. (d) Testimony by accused. (e) Weight and credibility. 105. Limited admissibilty. 106. Remainder of or related writings on recorded statements. ARTICLE II. JUDICIAL NOTICE 201. Judicial notice of adjudicative facts. (a) Scope of rule. (b) Kinds of facts. (c) When discretionary. (d) When mandatory. (e) Opportunity to be heard. (f) Time of taking notice. (g) Instructing jury. ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS 301. Presumptions in general in civil actions and proceedings. 302. Applicability of State law in civil actions and proceedings. ARTICLE IV. RELEVANCY AND ITS LIMITS 401. Definition of 'relevant evidence'. 402. Relevant evidence generally admissible; irrelevant evidence inadmissible. 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. 404. Character evidence not admissible to prove conduct; exceptions; other crimes. (a) Character evidence generally. (1) Character of accused. (2) Character of victim. (3) Character of witness. (b) Other crimes, wrongs, or acts. 405. Methods of proving character. (a) Reputation or opinion. (b) Specific instances of conduct. 406. Habit; routine practice. 407. Subsequent remedial measures. 408. Compromise and offers to compromise. 409. Payment of medical and similar expenses. 410. Inadmissibility of pleas, offers of pleas, and related statements. (FOOTNOTE 1) (FOOTNOTE 1) So in original. Does not conform to rule catchline. 411. Liability insurance. 412. Sex offense cases; relevance of victim's past behavior. ARTICLE V. PRIVILEGES 501. General rule. ARTICLE VI. WITNESSES 601. General rule of competency. 602. Lack of personal knowledge. 603. Oath or affirmation. 604. Interpreters. 605. Competency of judge as witness. 606. Competency of juror as witness. (a) At the trial. (b) Inquiry into validity of verdict or indictment. 607. Who may impeach. 608. Evidence of character and conduct of witness. (a) Opinion and reputation evidence of character. (b) Specific instances of conduct. Rule 609. Impeachment by evidence of conviction of crime. (a) General rule. (b) Time limit. (c) Effect of pardon, annulment, or certificate of rehabilitation. (d) Juvenile adjudications. (e) Pendency of appeal. 610. Religious beliefs or opinions. 611. Mode and order of interrogation and presentation. (a) Control by court. (b) Scope of cross-examination. (c) Leading questions. 612. Writing used to refresh memory. 613. Prior statements of witnesses. (a) Examining witness concerning prior statement. (b) Extrinsic evidence of prior inconsistent statement of witness. 614. Calling and interrogation of witnesses by court. (a) Calling by court. (b) Interrogation by court. (c) Objections. 615. Exclusion of witnesses. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY 701. Opinion testimony by lay witnesses. 702. Testimony by experts. 703. Bases of opinion testimony by experts. 704. Opinion on ultimate issue. 705. Disclosure of facts or data underlying expert opinion. 706. Court appointed experts. (a) Appointment. (b) Compensation. (c) Disclosure of appointment. (d) Parties' experts of own selection. ARTICLE VIII. HEARSAY 801. Definitions. (a) Statement. (b) Declarant. (c) Hearsay. (d) Statements which are not hearsay. (1) Prior statement by witness. (2) Admission by party-opponent. 802. Hearsay rule. 803. Hearsay exceptions; availability of declarant immaterial. (1) Present sense impression. (2) Excited utterance. (3) Then existing mental, emotional, or physical condition. (4) Statements for purposes of medical diagnosis or treatment. (5) Recorded recollection. (6) Records of regularly conducted activity. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). (8) Public records and reports. (9) Records of vital statistics. (10) Absence of public record or entry. (11) Records of religious organizations. (12) Marriage, baptismal, and similar certificates. (13) Family records. (14) Records of documents affecting an interest in property. (15) Statements in documents affecting an interest in property. (16) Statements in ancient documents. (17) Market reports, commercial publications. (18) Learned treatises. (19) Reputation concerning personal or family history. (20) Reputation concerning boundaries or general history. (21) Reputation as to character. (22) Judgment of previous conviction. (23) Judgment as to personal, family, or general history, or boundaries. (24) Other exceptions. 804. Hearsay exceptions; declarant unavailable. (a) Definition of unavailability. (b) Hearsay exceptions. (1) Former testimony. (2) Statement under belief of impending death. (3) Statement against interest. (4) Statement of personal or family history. (5) Other exceptions. 805. Hearsay within hearsay. 806. Attacking and supporting credibility of declarant. ARTICLE IX. AUTHENTICATION AND IDENTIFICATION 901. Requirement of authentication or identification. (a) General provision. (b) Illustrations. (1) Testimony of witness with knowledge. (2) Nonexpert opinion on handwriting. (3) Comparison by trier or expert witness. (4) Distinctive characteristics and the like. (5) Voice identification. (6) Telephone conversations. (7) Public records or reports. (8) Ancient documents or data compilation. (9) Process or system. (10) Methods provided by statute or rule. 902. Self-authentication. (1) Domestic public documents under seal. (2) Domestic public documents not under seal. (3) Foreign public documents. (4) Certified copies of public records. (5) Official publications. (6) Newspapers and periodicals. (7) Trade inscriptions and the like. (8) Acknowledged documents. (9) Commercial paper and related documents. (10) Presumptions under Acts of Congress. 903. Subscribing witness' testimony unnecessary. ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS 1001. Definitions. (1) Writings and recordings. (2) Photographs. (3) Original. (4) Duplicate. 1002. Requirement of original. 1003. Admissibility of duplicates. 1004. Admissibility of other evidence of contents. (1) Originals lost or destroyed. (2) Original not obtainable. (3) Original in possession of opponent. (4) Collateral matters. 1005. Public records. 1006. Summaries. 1007. Testimony or written admission of party. 1008. Functions of court and jury. ARTICLE XI. MISCELLANEOUS RULES 1101. Applicability of rules. (a) Courts and magistrates. (b) Proceedings generally. (c) Rule of privilege. (d) Rules inapplicable. (1) Preliminary questions of fact. (2) Grand jury. (3) Miscellaneous proceedings. (e) Rules applicable in part. 1102. Amendments. 1103. Title. AMENDMENTS 1988 - Pub. L. 100-690, title VII, Sec. 7046(b), Nov. 18, 1988, 102 Stat. 4401, substituted 'Sex offense' for 'Rape' in item 412. 1978 - Pub. L. 95-540, Sec. 2(b), Oct. 28, 1978, 92 Stat. 2047, added item 412. 1975 - Pub. L. 94-149, Sec. 1(1)-(8), Dec. 12, 1975, 89 Stat. 805, amended analysis as follows: item 106, substituted 'or' for 'on'; item 301, inserted 'in' after 'general'; item 405(a), inserted 'or opinion' after 'Reputation' and before the period; item 410, substituted 'Inadmissibility of pleas, offers of pleas, and related statements' for 'Offer to plead guilty; nolo contendere; withdrawn plea of guilty'; item 501, substituted 'General rule'; item 608(a), substituted 'Opinion and reputation' for 'Reputation'; item 901(b)(8), substituted 'compilation' for 'compilations'; and item 1101(c), substituted 'Rule' for 'Rules'. ------DocID 37186 Document 1048 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE I -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- ARTICLE I. GENERAL PROVISIONS ------DocID 37187 Document 1049 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 101 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 101. Scope -STATUTE- These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrates, to the extent and with the exceptions stated in rule 1101. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1929; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Rule 1101 specifies in detail the courts, proceedings, questions, and stages of proceedings to which the rules apply in whole or in part. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT United States bankruptcy judges are added to conform this rule with Rule 1101(b) and Bankruptcy Rule 9017. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -CROSS- CROSS REFERENCES Power of Supreme Court to prescribe rules of procedure and evidence, see section 2072 of this title. ------DocID 37188 Document 1050 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 102 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 102. Purpose and Construction -STATUTE- These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1929.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES For similar provisions see Rule 2 of the Federal Rules of Criminal Procedure, Rule 1 of the Federal Rules of Civil Procedure, California Evidence Code Sec. 2, and New Jersey Evidence Rule 5. ------DocID 37189 Document 1051 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 103 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 103. Rulings on Evidence -STATUTE- (a) Effect of erroneous ruling. - Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. (b) Record of offer and ruling. - The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury. - In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain error. - Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a) states the law as generally accepted today. Rulings on evidence cannot be assigned as error unless (1) a substantial right is affected, and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. The objection and the offer of proof are the techniques for accomplishing these objectives. For similar provisions see Uniform Rules 4 and 5; California Evidence Code Sec. 353 and 354; Kansas Code of Civil Procedure Sec. 60-404 and 60-405. The rule does not purport to change the law with respect to harmless error. See 28 U.S.C. Sec. 2111, F.R.Civ.P. 61, F.R.Crim.P. 52, and decisions construing them. The status of constitutional error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241. Subdivision (b). The first sentence is the third sentence of Rule 43(c) of the Federal Rules of Civil Procedure virtually verbatim. Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court. The second sentence is in part derived from the final sentence of Rule 43(c). It is designed to resolve doubts as to what testimony the witness would have in fact given, and, in nonjury cases, to provide the appellate court with material for a possible final disposition of the case in the event of reversal of a ruling which excluded evidence. See 5 Moore's Federal Practice Sec. 43.11 (2d ed. 1968). Application is made discretionary in view of the practical impossibility of formulating a satisfactory rule in mandatory terms. Subdivision (c). This subdivision proceeds on the supposition that a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury. Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, L.Ed.2d 70 (1968). Rule 43(c) of the Federal Rules of Civil Procedure provides: 'The court may require the offer to be made out of the hearing of the jury.' In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), left some doubt whether questions on which an offer is based must first be asked in the presence of the jury. The subdivision answers in the negative. The judge can foreclose a particular line of testimony and counsel can protect his record without a series of questions before the jury, designed at best to waste time and at worst 'to waft into the jury box' the very matter sought to be excluded. Subdivision (d). This wording of the plain error principle is from Rule 52(b) of the Federal Rules of Criminal Procedure. While judicial unwillingness to be constructed by mechanical breakdowns of the adversary system has been more pronounced in criminal cases, there is no scarcity of decisions to the same effect in civil cases. In general, see Campbell, Extent to Which Courts of Review Will Consider Questions Not Properly Raised and Preserved, 7 Wis.L.Rev. 91, 160 (1932); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477 (1958-59); 64 Harv.L.Rev. 652 (1951). In the nature of things the application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error. ------DocID 37190 Document 1052 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 104 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 104. Preliminary Questions -STATUTE- (a) Questions of admissibility generally. - Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. - When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. - Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. - The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. - This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF THE ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations. McCormick Sec. 53; Morgan, Basic Problems of Evidence 45-50 (1962). To the extent that these inquiries are factual, the judge acts as a trier of fact. Often, however, rulings on evidence call for an evaluation in terms of a legally set standard. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions, too, are made by the judge. In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term 'questions,' without attempt at specification. This subdivision is of general application. It must, however, be read as subject to the special provisions for 'conditional relevancy' in subdivision (b) and those for confessions in subdivision (d). If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. The rule provides that the rules of evidence in general do not apply to this process. McCormick Sec. 53, p. 123, n. 8, points out that the authorities are 'scattered and inconclusive,' and observes: 'Should the exclusionary law of evidence, 'the child of the jury system' in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.' This view is reinforced by practical necessity in certain situations. An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence. Thus the content of an asserted declaration against interest must be considered in ruling whether it is against interest. Again, common practice calls for considering the testimony of a witness, particularly a child, in determining competency. Another example is the requirement of Rule 602 dealing with personal knowledge. In the case of hearsay, it is enough, if the declarant 'so far as appears (has) had an opportunity to observe the fact declared.' McCormick, Sec. 10, p. 19. If concern is felt over the use of affidavits by the judge in preliminary hearings on admissibility, attention is directed to the many important judicial determinations made on the basis of affidavits. Rule 47 of the Federal Rules of Criminal Procedure provides: 'An application to the court for an order shall be by motion * * * It may be supported by affidavit.' The Rules of Civil Procedure are more detailed. Rule 43(e), dealing with motions generally, provides: 'When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.' Rule 4(g) provides for proof of service by affidavit. Rule 56 provides in detail for the entry of summary judgment based on affidavits. Affidavits may supply the foundation for temporary restraining orders under Rule 65(b). The study made for the California Law Revision Commission recommended an amendment to Uniform Rule 2 as follows: 'In the determination of the issue aforesaid (preliminary determination), exclusionary rules shall not apply, subject, however, to Rule 45 and any valid claim of privilege.' Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII, Hearsay), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 470 (1962). The proposal was not adopted in the California Evidence Code. The Uniform Rules are likewise silent on the subject. However, New Jersey Evidence Rule 8(1), dealing with preliminary inquiry by the judge, provides: 'In his determination the rules of evidence shall not apply except for Rule 4 (exclusion on grounds of confusion, etc.) or a valid claim of privilege.' Subdivision (b). In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled 'conditional relevancy.' Morgan, Basic Problems of Evidence 45-46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g. evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401. If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. Morgan, supra; California Evidence Code Sec. 403; New Jersey Rule 8(2). See also Uniform Rules 19 and 67. The order of proof here, as generally, is subject to the control of the judge. Subdivision (c). Preliminary hearings on the admissibility of confessions must be conducted outside the hearing of the jury. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Otherwise, detailed treatment of when preliminary matters should be heard outside the hearing of the jury is not feasible. The procedure is time consuming. Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury. Much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect. A great deal must be left to the discretion of the judge who will act as the interests of justice require. Subdivision (d). The limitation upon cross-examination is designed to encourage participation by the accused in the determination of preliminary matters. He may testify concerning them without exposing himself to cross-examination generally. The provision is necessary because of the breadth of cross-examination under Rule 611(b). The rule does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter. See Walder v. United States, 347 U.S. 62 (1954): Simmons v. United States, 390 U.S. 377 (1968): Harris v. New York, 401 U.S. 222 (1971) Subdivision (e). For similar provisions see Uniform Rule 8; California Evidence Code Sec. 406; Kansas Code of Civil Procedure Sec. 60-408; New Jersey Evidence Rule 8(1). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 104(c) as submitted to the Congress provided that hearings on the admissibility of confessions shall be conducted outside the presence of the jury and hearings on all other preliminary matters should be so conducted when the interests of justice require. The Committee amended the Rule to provide that where an accused is a witness as to a preliminary matter, he has the right, upon his request, to be heard outside the jury's presence. Although recognizing that in some cases duplication of evidence would occur and that the procedure could be subject to abuse, the Committee believed that a proper regard for the right of an accused not to testify generally in the case dictates that he be given an option to testify out of the presence of the jury on preliminary matters. The Committee construes the second sentence of subdivision (c) as applying to civil actions and proceedings as well as to criminal cases, and on this assumption has left the sentence unamended. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Under rule 104(c) the hearing on a preliminary matter may at times be conducted in front of the jury. Should an accused testify in such a hearing, waiving his privilege against self-incrimination as to the preliminary issue, rule 104(d) provides that he will not generally be subject to cross-examination as to any other issue. This rule is not, however, intended to immunize the accused from cross-examination where, in testifying about a preliminary issue, he injects other issues into the hearing. If he could not be cross-examined about any issues gratuitously raised by him beyond the scope of the preliminary matters, injustice result. Accordingly, in order to prevent any such unjust result, the committee intends the rule to be construed to provide that the accused may subject himself to cross-examination as to issues raised by his own testimony upon a preliminary matter before a jury. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37191 Document 1053 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 105 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 105. Limited Admissibility -STATUTE- When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES A close relationship exists between this rule and Rule 403 which requires exclusion when 'probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.' The present rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly. The availability and effectiveness of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403. In Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70 (1968), the Court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him. The decision does not, however, bar the use of limited admissibility with an instruction where the risk of prejudice is less serious. Similar provisions are found in Uniform Rule 6; California Evidence Code Sec. 355; Kansas Code of Civil Procedure Sec. 60-406; New Jersey Evidence Rule 6. The wording of the present rule differs, however, in repelling any implication that limiting or curative instructions are sufficient in all situations. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 106 as submitted by the Supreme Court (now Rule 105 in the bill) dealt with the subject of evidence which is admissible as to one party or for one purpose but is not admissible against another party or for another purpose. The Committee adopted this Rule without change on the understanding that it does not affect the authority of a court to order a severence in a multi-defendant case. ------DocID 37192 Document 1054 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 106 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE I -HEAD- Rule 106. Remainder of or Related Writings or Recorded Statements -STATUTE- When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule is an expression of the rule of completeness. McCormick Sec. 56. It is manifested as to depositions in Rule 32(a)(4) of the Federal Rules of Civil Procedure, of which the proposed rule is substantially a restatement. The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. See McCormick Sec. 56; California Evidence Code Sec. 356. The rule does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case. For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37193 Document 1055 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE II -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE II -HEAD- ARTICLE II. JUDICIAL NOTICE ------DocID 37194 Document 1056 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 201 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE II -HEAD- Rule 201. Judicial Notice of Adjudicative Facts -STATUTE- (a) Scope of rule. - This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. - A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When discretionary. - A court may take judicial notice, whether requested or not. (d) When mandatory. - A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. - A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking notice. - Judicial notice may be taken at any stage of the proceeding. (g) Instructing jury. - In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). This is the only evidence rule on the subject of judicial notice. It deals only with judicial notice of 'adjudicative' facts. No rule deals with judicial notice of 'legislative' facts. Judicial notice of matters of foreign law is treated in Rule 44.1 of the Federal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of Criminal Procedure. The omission of any treatment of legislative facts results from fundamental differences between adjudicative facts and legislative facts. Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body. The terminology was coined by Professor Kenneth Davis in his article An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 404-407 (1942). The following discussion draws extensively upon his writings. In addition, see the same author's Judicial Notice, 55 Colum.L. Rev. 945 (1955); Administrative Law Treatise, ch. 15 (1958); A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69 (1964). The usual method of establishing adjudicative facts in through the introduction of evidence, ordinarily consisting of the testimony of witnesses. If particular facts are outside of reasonable controversy, this process is dispensed with as unnecessary. A high degree of indisputability is the essential prerequisite. Legislative facts are quite different. As Professor Davis says: 'My opinion is that judge-made law would stop growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they believe, as distinguished from facts which are 'clearly * * * within the domain of the indisputable.' Facts most needed in thinking about difficult problems of law and policy have a way of being outside the domain of the clearly indisputable.' A System of Judicial Notice Based on Fairness and Convenience, supra, at 82. An illustration is Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), in which the Court refused to discard the common law rule that one spouse could not testify against the other, saying, 'Adverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage.' This conclusion has a large intermixture of fact, but the factual aspect is scarcely 'indisputable.' See Hutchins and Slesinger, Some Observations on the Law of Evidence - Family Relations, 13 Minn.L.Rev. 675 (1929). If the destructive effect of the giving of adverse testimony by a spouse is not indisputable, should the Court have refrained from considering it in the absence of supporting evidence? 'If the Model Code or the Uniform Rules had been applicable, the Court would have been barred from thinking about the essential factual ingredient of the problems before it, and such a result would be obviously intolerable. What the law needs as its growing points is more, not less, judicial thinking about the factual ingredients of problems of what the law ought to be, and the needed facts are seldom 'clearly' indisputable.' Davis, supra, at 83. 'Professor Morgan gave the following description of the methodology of determining domestic law: 'In determining the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. He may reject the propositions of either party or of both parties. He may consult the sources of pertinent data to which they refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with what he has or what the parties present. * * * (T)he parties do no more than to assist; they control no part of the process.' Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 270-271 (1944). This is the view which should govern judicial access to legislative facts. It renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level. It should, however, leave open the possibility of introducing evidence through regular channels in appropriate situations. See Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1934), where the cause was remanded for the taking of evidence as to the economic conditions and trade practices underlying the New York Milk Control Law. Similar considerations govern the judicial use of nonadjudicative facts in ways other than formulating laws and rules. Thayer described them as a part of the judicial reasoning process. 'In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this with competent judgement and efficiency, is imputed to judges and juries as part of their necessary mental outfit.' Thayer, Preliminary Treatise on Evidence 279-280 (1898). As Professor Davis points out, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 73 (1964), every case involves the use of hundreds or thousands of non-evidence facts. When a witness in an automobile accident case says 'car,' everyone, judge and jury included, furnishes, from non-evidence sources within himself, the supplementing information that the 'car' is an automobile, not a railroad car, that it is self-propelled, probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on. The judicial process cannot construct every case from scratch, like Descartes creating a world based on the postulate Cogito, ergo sum. These items could not possibly be introduced into evidence, and no one suggests that they be. Nor are they appropriate subjects for any formalized treatment of judicial notice of facts. See Levin and Levy, Persuading the Jury with Facts Not in Evidence: The Fiction-Science Spectrum, 105 U.Pa.L.Rev. 139 (1956). Another aspect of what Thayer had in mind is the use of non-evidence facts to appraise or assess the adjudicative facts of the case. Pairs of cases from two jurisdictions illustrate this use and also the difference between non-evidence facts thus used and adjudicative facts. In People v. Strook, 347 Ill. 460, 179 N.E. 821 (1932), venue in Cook County had been held not established by testimony that the crime was committed at 7956 South Chicago Avenue, since judicial notice would not be taken that the address was in Chicago. However, the same court subsequently ruled that venue in Cook County was established by testimony that a crime occurred at 8900 South Anthony Avenue, since notice would be taken of the common practice of omitting the name of the city when speaking of local addresses, and the witness was testifying in Chicago. People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551 (1951). And in Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the Supreme Court of North Carolina disapproved the trial judge's admission in evidence of a state-published table of automobile stopping distances on the basis of judicial notice, though the court itself had referred to the same table in an earlier case in a 'rhetorical and illustrative' way in determining that the defendant could not have stopped her car in time to avoid striking a child who suddenly appeared in the highway and that a non-suit was properly granted. Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702 (1964). See also Brown v. Hale, 263 N.C. 176, 139 S.E.2d 210 (1964); Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562 (1964). It is apparent that this use of non-evidence facts in evaluating the adjudicative facts of the case is not an appropriate subject for a formalized judicial notice treatment. In view of these considerations, the regulation of judicial notice of facts by the present rule extends only to adjudicative facts. What, then, are 'adjudicative' facts? Davis refers to them as those 'which relate to the parties,' or more fully: 'When a court or an agency finds facts concerning the immediate parties - who did what, where, when, how, and with what motive or intent - the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. * * * 'Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.' 2 Administrative Law Treatise 353. Subdivision (b). With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy. This tradition of circumspection appears to be soundly based, and no reason to depart from it is apparent. As Professor Davis says: 'The reason we use trial-type procedure, I think, is that we make the practical judgement, on the basis of experience, that taking evidence, subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the parties. The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal's attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both). The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunal's attention.' A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 93 (1964). The rule proceeds upon the theory that these considerations call for dispensing with traditional methods of proof only in clear cases. Compare Professor Davis' conclusion that judicial notice should be a matter of convenience, subject to requirements of procedural fairness. Id., 94. This rule is consistent with Uniform Rule 9(1) and (2) which limit judicial notice of facts to those 'so universally known that they cannot reasonably be the subject of dispute,' those 'so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute,' and those 'capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.' The traditional textbook treatment has included these general categories (matters of common knowledge, facts capable of verification), McCormick Sec. 324, 325, and then has passed on into detailed treatment of such specific topics as facts relating to the personnel and records of the court, Id. Sec. 327, and other governmental facts, Id. Sec. 328. The California draftsmen, with a background of detailed statutory regulation of judicial notice, followed a somewhat similar pattern. California Evidence Code Sec. 451, 452. The Uniform Rules, however, were drafted on the theory that these particular matters are included within the general categories and need no specific mention. This approach is followed in the present rule. The phrase 'propositions of generalized knowledge,' found in Uniform Rule 9(1) and (2) is not included in the present rule. It was, it is believed, originally included in Model Code Rules 801 and 802 primarily in order to afford some minimum recognition to the right of the judge in his 'legislative' capacity (not acting as the trier of fact) to take judicial notice of very limited categories of generalized knowledge. The limitations thus imposed have been discarded herein as undesirable, unworkable, and contrary to existing practice. What is left, then, to be considered, is the status of a 'proposition of generalized knowledge' as an 'adjudicative' fact to be noticed judicially and communicated by the judge to the jury. Thus viewed, it is considered to be lacking practical significance. While judges use judicial notice of 'propositions of generalized knowledge' in a variety of situations: determining the validity and meaning of statutes, formulating common law rules, deciding whether evidence should be admitted, assessing the sufficiency and effect of evidence, all are essentially nonadjudicative in nature. When judicial notice is seen as a significant vehicle for progress in the law, these are the areas involved, particularly in developing fields of scientific knowledge. See McCormick 712. It is not believed that judges now instruct juries as to 'propositions of generalized knowledge' derived from encyclopedias or other sources, or that they are likely to do so, or, indeed, that it is desirable that they do so. There is a vast difference between ruling on the basis of judicial notice that radar evidence of speed is admissible and explaining to the jury its principles and degree of accuracy, or between using a table of stopping distances of automobiles at various speeds in a judicial evaluation of testimony and telling the jury its precise application in the case. For cases raising doubt as to the propriety of the use of medical texts by lay triers of fact in passing on disability claims in administrative proceedings, see Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); Sosna v. Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962). Subdivisions (c) and (d). Under subdivision (c) the judge has a discretionary authority to take judicial notice, regardless of whether he is so requested by a party. The taking of judicial notice is mandatory, under subdivision (d), only when a party requests it and the necessary information is supplied. This scheme is believed to reflect existing practice. It is simple and workable. It avoids troublesome distinctions in the many situations in which the process of taking judicial notice is not recognized as such. Compare Uniform Rule 9 making judicial notice of facts universally known mandatory without request, and making judicial notice of facts generally known in the jurisdiction or capable of determination by resort to accurate sources discretionary in the absence of request but mandatory if request is made and the information furnished. But see Uniform Rule 10(3), which directs the judge to decline to take judicial notice if available information fails to convince him that the matter falls clearly within Uniform Rule 9 or is insufficient to enable him to notice it judicially. Substantially the same approach is found in California Evidence Code Sec. 451-453 and in New Jersey Evidence Rule 9. In contrast, the present rule treats alike all adjudicative facts which are subject to judicial notice. Subdivision (e). Basic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed. The rule requires the granting of that opportunity upon request. No formal scheme of giving notice is provided. An adversely affected party may learn in advance that judicial notice is in contemplation, either by virtue of being served with a copy of a request by another party under subdivision (d) that judicial notice be taken, or through an advance indication by the judge. Or he may have no advance notice at all. The likelihood of the latter is enhanced by the frequent failure to recognize judicial notice as such. And in the absence of advance notice, a request made after the fact could not in fairness be considered untimely. See the provision for hearing on timely request in the Administrative Procedure Act, 5 U.S.C. Sec. 556(e). See also Revised Model State Administrative Procedure Act (1961), 9C U.L.A. Sec. 10(4) (Supp. 1967). Subdivision (f). In accord with the usual view, judicial notice may be taken at any stage of the proceedings, whether in the trial court or on appeal. Uniform Rule 12; California Evidence Code Sec. 459; Kansas Rules of Evidence Sec. 60-412; New Jersey Evidence Rule 12; McCormick Sec. 330, p. 712. Subdivision (g). Much of the controversy about judicial notice has centered upon the question whether evidence should be admitted in disproof of facts of which judicial notice is taken. The writers have been divided. Favoring admissibility are Thayer, Preliminary Treatise on Evidence 308 (1898); 9 Wigmore Sec. 2567; Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law, 69, 76-77 (1964). Opposing admissibility are Keeffe, Landis and Shaad, Sense and Nonsense about Judicial Notice, 2 Stan.L.Rev. 664, 668 (1950); McNaughton, Judicial Notice - Excerpts Relating to the Morgan-Whitmore Controversy, 14 Vand.L.Rev. 779 (1961); Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 279 (1944); McCormick 710-711. The Model Code and the Uniform Rules are predicated upon indisputability of judicially noticed facts. The proponents of admitting evidence in disproof have concentrated largely upon legislative facts. Since the present rule deals only with judicial notice of adjudicative facts, arguments directed to legislative facts lose their relevancy. Within its relatively narrow area of adjudicative facts, the rule contemplates there is to be no evidence before the jury in disproof. The judge instructs the jury to take judicially noticed facts as established. This position is justified by the undesirable effects of the opposite rule in limiting the rebutting party, though not his opponent, to admissible evidence, in defeating the reasons for judicial notice, and in affecting the substantive law to an extent and in ways largely unforeseeable. Ample protection and flexibility are afforded by the broad provision for opportunity to be heard on request, set forth in subdivision (e). Authority upon the propriety of taking judicial notice against an accused in a criminal case with respect to matters other than venue is relatively meager. Proceeding upon the theory that the right of jury trial does not extend to matters which are beyond reasonable dispute, the rule does not distinguish between criminal and civil cases. People v. Mayes, 113 Cal. 618, 45 P. 860 (1896); Ross v. United States, 374 F.2d 97 (8th Cir. 1967). Cf. State v. Main, 94 R.I. 338, 180 A.2d 814 (1962); State v. Lawrence, 120 Utah 323, 234 P.2d 600 (1951). Note on Judicial Notice of Law. By rules effective July 1, 1966, the method of invoking the law of a foreign country is covered elsewhere. Rule 44.1 of the Federal Rules of Civil Procedure; Rule 26.1 of the Federal Rules of Criminal Procedure. These two new admirably designed rules are founded upon the assumption that the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather of the rules of procedure. The Advisory Committee on Evidence, believing that this assumption is entirely correct, proposes no evidence rule with respect to judicial notice of law, and suggests that those matters of law which, in addition to foreign-country law, have traditionally been treated as requiring pleading and proof and more recently as the subject of judicial notice be left to the Rules of Civil and Criminal Procedure. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 201(g) as received from the Supreme Court provided that when judicial notice of a fact is taken, the court shall instruct the jury to accept that fact as established. Being of the view that mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial, the Committee adopted the 1969 Advisory Committee draft of this subsection, allowing a mandatory instruction in civil actions and proceedings and a discretionary instruction in criminal cases. ------DocID 37195 Document 1057 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE III -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE III -HEAD- ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS ------DocID 37196 Document 1058 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 301 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE III -HEAD- Rule 301. Presumptions in General in Civil Actions and Proceedings -STATUTE- In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES This rule governs presumptions generally. See Rule 302 for presumptions controlled by state law and Rule 303 (deleted) for those against an accused in a criminal case. Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it. The same considerations of fairness, policy, and probability which dictate the allocation of the burden of the various elements of a case as between the prima facie case of a plaintiff and affirmative defenses also underlie the creation of presumptions. These considerations are not satisfied by giving a lesser effect to presumptions. Morgan and Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 913 (1937); Morgan, Instructing the Jury upon Presumptions and Burdon of Proof, 47 Harv.L.Rev. 59, 82 1933); Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan.L.Rev. 5 (1959). The so-called 'bursting bubble' theory, under which a presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact, even though not believed, is rejected as according presumptions too 'slight and evanescent' an effect. Morgan and Maguire, supra, at p. 913. In the opinion of the Advisory Committee, no constitutional infirmity attends this view of presumptions. In Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910), the Court upheld a Mississippi statute which provided that in actions against railroads proof of injury inflicted by the running of trains should be prima facie evidence of negligence by the railroad. The injury in the case had resulted from a derailment. The opinion made the points (1) that the only effect of the statute was to impose on the railroad the duty of producing some evidence to the contrary, (2) that an inference may be supplied by law if there is a rational connection between the fact proved and the fact presumed, as long as the opposite party is not precluded from presenting his evidence to the contrary, and (3) that considerations of public policy arising from the character of the business justified the application in question. Nineteen years later, in Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929), the Court overturned a Georgia statute making railroads liable for damages done by trains, unless the railroad made it appear that reasonable care had been used, the presumption being against the railroad. The declaration alleged the death of plaintiff's husband from a grade crossing collision, due to specified acts of negligence by defendant. The jury were instructed that proof of the injury raised a presumption of negligence; the burden shifted to the railroad to prove ordinary care; and unless it did so, they should find for plaintiff. The instruction was held erroneous in an opinion stating (1) that there was no rational connection between the mere fact of collision and negligence on the part of anyone, and (2) that the statute was different from that in Turnipseed in imposing a burden upon the railroad. The reader is left in a state of some confusion. Is the difference between a derailment and a grade crossing collision of no significance? Would the Turnipseed presumption have been bad if it had imposed a burden of persuasion on defendant, although that would in nowise have impaired its 'rational connection'? If Henderson forbids imposing a burden of persuasion on defendants, what happens to affirmative defenses? Two factors serve to explain Henderson. The first was that it was common ground that negligence was indispensable to liability. Plaintiff thought so, drafted her complaint accordingly, and relied upon the presumption. But how in logic could the same presumption establish her alternative grounds of negligence that the engineer was so blind he could not see decedent's truck and that he failed to stop after he saw it? Second, take away the basic assumption of no liability without fault, as Turnipseed intimated might be done ('considerations of public policy arising out of the character of the business'), and the structure of the decision in Henderson fails. No question of logic would have arisen if the statute had simply said: a prima facie case of liability is made by proof of injury by a train; lack of negligence is an affirmative defense, to be pleaded and proved as other affirmative defenses. The problem would be one of economic due process only. While it seems likely that the Supreme Court of 1929 would have voted that due process was denied, that result today would be unlikely. See, for example, the shift in the direction of absolute liability in the consumer cases. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960). Any doubt as to the constitutional permissibility of a presumption imposing a burden of persuasion of the non-existence of the presumed fact in civil cases is laid at rest by Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). The Court unhesitatingly applied the North Dakota rule that the presumption against suicide imposed on defendant the burden of proving that the death of insured, under an accidental death clause, was due to suicide. 'Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide.' 359 U.S. at 443, 79 S.Ct. at 925. 'In a case like this one, North Dakota presumes that death was accidental and places on the insurer the burden of proving that death resulted from suicide.' Id. at 446, 79 S.Ct. at 927. The rational connection requirement survives in criminal cases, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), because the Court has been unwilling to extend into that area the greater-includes-the-lesser theory of Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928). In that case the Court sustained a Kansas statute under which bank directors were personally liable for deposits made with their assent and with knowledge of insolvency, and the fact of insolvency was prima facie evidence of assent and knowledge of insolvency. Mr. Justice Holmes pointed out that the state legislature could have made the directors personally liable to depositors in every case. Since the statute imposed a less stringent liability, 'the thing to be considered is the result reached, not the possibly inartificial or clumsy way of reaching it.' Id. at 94, 48 S.Ct. at 444. Mr. Justice Sutherland dissented: though the state could have created an absolute liability, it did not purport to do so; a rational connection was necessary, but lacking, between the liability created and the prima facie evidence of it; the result might be different if the basis of the presumption were being open for business. The Sutherland view has prevailed in criminal cases by virtue of the higher standard of notice there required. The fiction that everyone is presumed to know the law is applied to the substantive law of crimes as an alternative to complete unenforceability. But the need does not extend to criminal evidence and procedure, and the fiction does not encompass them. 'Rational connection' is not fictional or artificial, and so it is reasonable to suppose that Gainey should have known that his presence at the site of an illicit still could convict him of being connected with (carrying on) the business, United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), but not that Romano should have known that his presence at a still could convict him of possessing it, United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965). In his dissent in Gainey, Mr. Justice Black put it more artistically: 'It might be argued, although the Court does not so argue or hold, that Congress if it wished could make presence at a still a crime in itself, and so Congress should be free to create crimes which are called 'possession' and 'carrying on an illegal distillery business' but which are defined in such a way that unexplained presence is sufficient and indisputable evidence in all cases to support conviction for those offenses. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796. Assuming for the sake of argument that Congress could make unexplained presence a criminal act, and ignoring also the refusal of this Court in other cases to uphold a statutory presumption on such a theory, see Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772, there is no indication here that Congress intended to adopt such a misleading method of draftsmanship, nor in my judgement could the statutory provisions if so construed escape condemnation for vagueness, under the principles applied in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, and many other cases.' 380 U.S. at 84, n. 12, 85 S.Ct. at 766. And the majority opinion in Romano agreed with him: 'It may be, of course, that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. The crime remains possession, not presence, and with all due deference to the judgement of Congress, the former may not constitutionally be inferred from the latter.' 382 U.S. at 144, 86 S.Ct. at 284. The rule does not spell out the procedural aspects of its application. Questions as to when the evidence warrants submission of a presumption and what instructions are proper under varying states of fact are believed to present no particular difficulties. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 301 as submitted by the Supreme Court provided that in all cases a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. The Committee limited the scope of Rule 301 to 'civil actions and proceedings' to effectuate its decision not to deal with the question of presumptions in criminal cases. (See note on (proposed) Rule 303 in discussion of Rules deleted). With respect to the weight to be given a presumption in a civil case, the Committee agreed with the judgement implicit in the Court's version that the socalled 'bursting bubble' theory of presumptions, whereby a presumption vanished upon the appearance of any contradicting evidence by the other party, gives to presumptions too slight an effect. On the other hand, the Committee believed that the Rule proposed by the Court, whereby a presumption permanently alters the burden of persuasion, no matter how much contradicting evidence is introduced - a view shared by only a few courts - lends too great a force to presumptions. Accordingly, the Committee amended the Rule to adopt an intermediate position under which a presumption does not vanish upon the introduction of contradicting evidence, and does not change the burden of persuasion; instead it is merely deemed sufficient evidence of the fact presumed, to be considered by the jury or other finder of fact. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 The rule governs presumptions in civil cases generally. Rule 302 provides for presumptions in cases controlled by State law. As submitted by the Supreme Court, presumptions governed by this rule were given the effect of placing upon the opposing party the burden of establishing the non-existence of the presumed fact, once the party invoking the presumption established the basic facts giving rise to it. Instead of imposing a burden of persuasion on the party against whom the presumption is directed, the House adopted a provision which shifted the burden of going forward with the evidence. They further provided that 'even though met with contradicting evidence, a presumption is sufficient evidence of the fact presumed, to be considered by the trier of fact.' The effect of the amendment is that presumptions are to be treated as evidence. The committee feels the House amendment is ill-advised. As the joint committees (the Standing Committee on Practice and Procedure of the Judicial Conference and the Advisory Committee on the Rules of Evidence) stated: 'Presumptions are not evidence, but ways of dealing with evidence.' This treatment requires juries to perform the task of considering 'as evidence' facts upon which they have no direct evidence and which may confuse them in performance of their duties. California had a rule much like that contained in the House amendment. It was sharply criticized by Justice Traynor in Speck v. Sarver (20 Cal. 2d 585, 128 P. 2d 16, 21 (1942)) and was repealed after 93 troublesome years (Cal. Ev. Code 1965 Sec. 600). Professor McCormick gives a concise and compelling critique of the presumption as evidence rule: * * * * * Another solution, formerly more popular than now, is to instruct the jury that the presumption is 'evidence', to be weighed and considered with the testimony in the case. This avoids the danger that the jury may infer that the presumption is conclusive, but it probably means little to the jury, and certainly runs counter to accepted theories of the nature of evidence. (McCormick, Evidence, 669 (1954); Id. 825 (2d ed. 1972)). For these reasons the committee has deleted that provision of the House-passed rule that treats presumptions as evidence. The effect of the rule as adopted by the committee is to make clear that while evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the burden of persuasion on the existence of the presumed facts. The burden or persuasion remains on the party to whom it is allocated under the rules governing the allocation in the first instance. The court may instruct the jury that they may infer the existence of the presumed fact from proof of the basic facts giving rise to the presumption. However, it would be inappropriate under this rule to instruct the jury that the inference they are to draw is conclusive. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The House bill provides that a presumption in civil actions and proceedings shifts to the party against whom it is directed the burden of going forward with evidence to meet or rebut it. Even though evidence contradicting the presumption is offered, a presumption is considered sufficient evidence of the presumed fact to be considered by the jury. The Senate amendment provides that a presumption shifts to the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption, but it does not shift to that party the burden of persuasion on the existence of the presumed fact. Under the Senate amendment, a presumption is sufficient to get a party past an adverse party's motion to dismiss made at the end of his case-in-chief. If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact. If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the jury that it may presume the existence of the presumed fact from proof of the basic facts. The court may, however, instruct the jury that it may infer the existence of the presumed fact from proof of the basic facts. The Conference adopts the Senate amendment. ------DocID 37197 Document 1059 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 302 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE III -HEAD- Rule 302. Applicability of State Law in Civil Actions and Proceedings -STATUTE- In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES A series of Supreme Court decisions in diversity cases leaves no doubt of the relevance of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to questions of burden of proof. These decisions are Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). They involved burden of proof, respectively, as to status as bona fide purchasers, contributory negligence, and non-accidental death (suicide) of an insured. In each instance the state rule was held to be applicable. It does not follow, however, that all presumptions in diversity cases are governed by state law. In each case cited, the burden of proof question had to do with a substantive element of the claim or defense. Application of the state law is called for only when the presumption operates upon such an element. Accordingly the rule does not apply state law when the presumption operates upon a lesser aspect of the case, i.e. 'tactical' presumptions. The situations in which the state law is applied have been tagged for convenience in the preceding discussion as 'diversity cases.' The designation is not a completely accurate one since Erie applies to any claim or issue having its source in state law, regardless of the basis of federal jurisdiction, and does not apply to a federal claim or issue, even though jurisdiction is based on diversity. Vestal, Erie R.R. v. Tompkins: A Projection, 48 Iowa L.Rev. 248, 257 (1963); Hart and Wechsler, The Federal Courts and the Federal System, 697 (1953); 1A Moore, Federal Practice 0.305(3) (2d ed. 1965); Wright, Federal Courts, 217-218 (1963). Hence the rule employs, as appropriately descriptive, the phrase 'as to which state law supplies the rule of decision.' See A.L.I. Study of the Division of Jurisdiction Between State and Federal Courts, Sec. 2344(c), p. 40, P.F.D. No. 1 (1965). ------DocID 37198 Document 1060 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE IV -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- ARTICLE IV. RELEVANCY AND ITS LIMITS ------DocID 37199 Document 1061 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 401 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 401. Definition of 'Relevant Evidence' -STATUTE- 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Problems of relevancy call for an answer to the question whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence. Thus, assessment of the probative value of evidence that a person purchased a revolver shortly prior to a fatal shooting with which he is charged is a matter of analysis and reasoning. The variety of relevancy problems is coextensive with the ingenuity of counsel in using circumstantial evidence as a means of proof. An enormous number of cases fall in no set pattern, and this rule is designed as a guide for handling them. On the other hand, some situations recur with sufficient frequency to create patterns susceptible of treatment by specific rules. Rule 404 and those following it are of that variety; they also serve as illustrations of the application of the present rule as limited by the exclusionary principles of Rule 403. Passing mention should be made of so-called 'conditional' relevancy. Morgan, Basic Problems of Evidence 45-46 (1962). In this situation, probative value depends not only upon satisfying the basic requirement of relevancy as described above but also upon the existence of some matter of fact. For example, if evidence of a spoken statement is relied upon to prove notice, probative value is lacking unless the person sought to be charged heard the statement. The problem is one of fact, and the only rules needed are for the purpose of determining the respective functions of judge and jury. See Rules 104(b) and 901. The discussion which follows in the present note is concerned with relevancy generally, not with any particular problem of conditional relevancy. Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand. James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this relationship as a 'tendency to make the existence' of the fact to be proved 'more probable or less probable.' Compare Uniform Rule 1(2) which states the crux of relevancy as 'a tendency in reason,' thus perhaps emphasizing unduly the logical process and ignoring the need to draw upon experience or science to validate the general principle upon which relevancy in a particular situation depends. The standard of probability under the rule is 'more * * * probable than it would be without the evidence.' Any more stringent requirement is unworkable and unrealistic. As McCormick Sec. 152, p. 317, says, 'A brick is not a wall,' or, as Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 576 (1956), quotes Professor McBaine, '* * * (I)t is not to be supposed that every witness can make a home run.' Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence. The rule uses the phrase 'fact that is of consequence to the determination of the action' to describe the kind of fact to which proof may properly be directed. The language is that of California Evidence Code Sec. 210; it has the advantage of avoiding the loosely used and ambiguous word 'material.' Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. I. General Provisions), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 10-11 (1964). The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action. Cf. Uniform Rule 1(2) which requires that the evidence relate to a 'material' fact. The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission. Cf. California Evidence Code Sec. 210, defining relevant evidence in terms of tendency to prove a disputed fact. ------DocID 37200 Document 1062 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 402 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible -STATUTE- All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are 'a presupposition involved in the very conception of a rational system of evidence.' Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. For similar provisions see California Evidence Code Sec. 350, 351. Provisions that all relevant evidence is admissible are found in Uniform Rule 7(f); Kansas Code of Civil Procedure Sec. 60-407(f); and New Jersey Evidence Rule 7(f); but the exclusion of evidence which is not relevant is left to implication. Not all relevant evidence is admissible. The exclusion of relevant evidence occurs in a variety of situations and may be called for by these rules, by the Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of Congress, or by constitutional considerations. Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, Article V recognizes a number of privileges; Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirements with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article IX spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings. The Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant. And the effective enforcement of the command, originally statutory and now found in Rule 5(a) of the Rules of Criminal Procedure, that an arrested person be taken without unnecessary delay before a commissioner of other similar officer is held to require the exclusion of statements elicited during detention in violation thereof. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); 18 U.S.C. Sec. 3501(c). While congressional enactments in the field of evidence have generally tended to expand admissibility beyond the scope of the common law rules, in some particular situations they have restricted the admissibility of relevant evidence. Most of this legislation has consisted of the formulation of a privilege or of a prohibition against disclosure. 8 U.S.C. Sec. 1202(f), records of refusal of visas or permits to enter United States confidential, subject to discretion of Secretary of State to make available to court upon certification of need; 10 U.S.C. Sec. 3693, replacement certificate of honorable discharge from Army not admissible in evidence; 10 U.S.C. Sec. 8693, same as to Air Force; 11 U.S.C. Sec. 25(a)(10), testimony given by bankrupt on his examination not admissible in criminal proceedings against him, except that given in hearing upon objection to discharge; 11 U.S.C. Sec. 205(a), railroad reorganization petition, if dismissed, not admissible in evidence; 11 U.S.C. Sec. 403(a), list of creditors filed with municipal composition plan not an admission; 13 U.S.C. Sec. 9(a), census information confidential, retained copies of reports privileged; 47 U.S.C. Sec. 605, interception and divulgence of wire or radio communications prohibited unless authorized by sender. These statutory provisions would remain undisturbed by the rules. The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Examples are evidence obtained by unlawful search and seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); incriminating statement elicited from an accused in violation of right to counsel, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 402 as submitted to the Congress contained the phrase 'or by other rules adopted by the Supreme Court'. To accommodate the view that the Congress should not appear to acquiesce in the Court's judgment that it has authority under the existing Rules Enabling Acts to promulgate Rules of Evidence, the Committee amended the above phrase to read 'or by other rules prescribed by the Supreme Court pursuant to statutory authority' in this and other Rules where the reference appears. ------DocID 37201 Document 1063 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 403 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time -STATUTE- Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15 (1956); Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 Van. L. Rev. 385, 392 (1952); McCormick Sec. 152, pp. 319-321. The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated. Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. 'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmore's view of the common law. 6 Wigmore Sec. 1849. Cf. McCormick Sec. 152, p. 320, n. 29, listing unfair surprise as a ground for exclusion but stating that it is usually 'coupled with the danger of prejudice and confusion of issues.' While Uniform Rule 45 incorporates surprise as a ground and is followed in Kansas Code of Civil Procedure Sec. 60-445, surprise is not included in California Evidence Code Sec. 352 or New Jersey Rule 4, though both the latter otherwise substantially embody Uniform Rule 45. While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of the evidence. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a rule excluding evidence on the ground of surprise would be difficult to estimate. In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 106 (now 105) and Advisory Committee's Note thereunder. The availability of other means of proof may also be an appropriate factor. ------DocID 37202 Document 1064 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 404 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes -STATUTE- (a) Character evidence generally. - Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. - Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; (2) Character of victim. - Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness. - Evidence of the character of a witness, as provided in rules 607, 608, and 609. (b) Other crimes, wrongs, or acts. - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). This subdivision deals with the basic question whether character evidence should be admitted. Once the admissibility of character evidence in some form is established under this rule, reference must then be made to Rule 405, which follows, in order to determine the appropriate method of proof. If the character is that of a witness, see Rules 608 and 610 for methods of proof. Character questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.' Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405, immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as 'circumstantial.' Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof. In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as 'putting his character in issue'), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (3) the character of a witness may be gone into as bearing on his credibility. McCormick Sec. 155-161. This pattern is incorporated in the rule. While its basis lies more in history and experience than in logic as underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutger, L.Rev. 574, 584 (1956); McCormick Sec. 157. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence. The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view. McCormick Sec. 158, p. 334. A similar provision in Rule 608, to which reference is made in paragraph (3), limits character evidence respecting witnesses to the trait of truthfulness or untruthfulness. The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e. evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 581-583 (1956); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 657-658 (1964). Uniform Rule 47 goes farther, in that it assumes that character evidence in general satisfies the conditions of relevancy, except as provided in Uniform Rule 48. The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission in its ultimate rejection of Uniform Rule 47, Id., 615: 'Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.' Much of the force of the position of those favoring greater use of character evidence in civil cases is dissipated by their support of Uniform Rule 48 which excludes the evidence in negligence cases, where it could be expected to achieve its maximum usefulness. Moreover, expanding concepts of 'character,' which seem of necessity to extend into such areas as psychiatric evaluation and psychological testing, coupled with expanded admissibility, would open up such vistas of mental examinations as caused the Court concern in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). It is believed that those espousing change have not met the burden of persuasion. Subdivision (b) deals with a specialized but important application of the general rule excluding circumstantial use of character evidence. Consistently with that rule, evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it. However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition. In this situation the rule does not require that the evidence be excluded. No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403. Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 The second sentence of Rule 404(b) as submitted to the Congress began with the words 'This subdivision does not exclude the evidence when offered'. The Committee amended this language to read 'It may, however, be admissible', the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 This rule provides that evidence of other crimes, wrongs, or acts is not admissible to prove character but may be admissible for other specified purposes such as proof of motive. Although your committee sees no necessity in amending the rule itself, it anticipates that the use of the discretionary word 'may' with respect to the admissibility of evidence of crimes, wrongs, or acts is not intended to confer any arbitrary discretion on the trial judge. Rather, it is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e. prejudice, confusion or waste of time. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37203 Document 1065 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 405 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 405. Methods of Proving Character -STATUTE- (a) Reputation or opinion. - In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. - In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule deals only with allowable methods of proving character, not with the admissibility of character evidence, which is covered in Rule 404. Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue. This treatment is, with respect to specific instances of conduct and reputation, conventional contemporary common law doctrine. McCormick Sec. 153. In recognizing opinion as a means of proving character, the rule departs from usual contemporary practice in favor of that of an earlier day. See 7 Wigmore Sec. 1986, pointing out that the earlier practice permitted opinion and arguing strongly for evidence based on personal knowledge and belief as contrasted with 'the secondhand, irresponsible product of multiplied guesses and gossip which we term 'reputation'.' It seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise. Traditionally character has been regarded primarily in moral overtones of good and bad: chaste, peaceable, truthful, honest. Nevertheless, on occasion nonmoral considerations crop up, as in the case of the incompetent driver, and this seems bound to happen increasingly. If character is defined as the kind of person one is, then account must be taken of varying ways of arriving at the estimate. These may range from the opinion of the employer who has found the man honest to the opinion of the psychiatrist based upon examination and testing. No effective dividing line exists between character and mental capacity, and the latter traditionally has been provable by opinion. According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony. The express allowance of inquiry into specific instances of conduct on cross-examination in subdivision (a) and the express allowance of it as part of a case in chief when character is actually in issue in subdivision (b) contemplate that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. Similarly as to witnesses to the character of witnesses under Rule 608(b). Opinion testimony on direct in these situations ought in general to correspond to reputation testimony as now given, i.e., be confined to the nature and extent of observation and acquaintance upon which the opinion is based. See Rule 701. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 405(a) as submitted proposed to change existing law by allowing evidence of character in the form of opinion as well as reputation testimony. Fearing, among other reasons, that wholesale allowance of opinion testimony might tend to turn a trial into a swearing contest between conflicting character witnesses, the Committee decided to delete from this Rule, as well as from Rule 608(a) which involves a related problem, reference to opinion testimony. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The Senate makes two language changes in the nature of conforming amendments. The Conference adopts the Senate amendments. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37204 Document 1066 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 406 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 406. Habit; Routine Practice -STATUTE- Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES An oft-quoted paragraph, McCormick, Sec. 162, p. 340, describes habit in terms effectively contrasting it with character: 'Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.' Equivalent behavior on the part of a group is designated 'routine practice of an organization' in the rule. Agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion. Again quoting McCormick Sec. 162, p. 341: 'Character may be thought of as the sum of one's habits though doubtless it is more than this. But unquestionably the uniformity of one's response to habit is far greater than the consistency with which one's conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act, surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it.' When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion. Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964). While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated. The rule is consistent with prevailing views. Much evidence is excluded simply because of failure to achieve the status of habit. Thus, evidence of intemperate 'habits' is generally excluded when offered as proof of drunkenness in accident cases, Annot., 46 A.L.R.2d 103, and evidence of other assaults is inadmissible to prove the instant one in a civil assault action, Annot., 66 A.L.R.2d 806. In Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964), testimony as to the religious 'habits' of the accused, offered as tending to prove that he was at home observing the Sabbath rather than out obtaining money through larcency by trick, was held properly excluded; 'It seems apparent to us that an individual's religious practices would not be the type of activities which would lend themselves to the characterization of 'invariable regularity.' (1 Wigmore 520.) Certainly the very volitional basis of the activity raises serious questions as to its invariable nature, and hence its probative value.' Id. at 272. These rulings are not inconsistent with the trend towards admitting evidence of business transactions between one of the parties and a third person as tending to prove that he made the same bargain or proposal in the litigated situation. Slough, Relevancy Unraveled, 6 Kan.L.Rev. 38-41 (1957). Nor are they inconsistent with such cases as Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944), upholding the admission of evidence that plaintiff's intestate had on four other occasions flown planes from defendant's factory for delivery to his employer airline, offered to prove that he was piloting rather than a guest on a plane which crashed and killed all on board while en route for delivery. A considerable body of authority has required that evidence of the routine practice of an organization be corroborated as a condition precedent to its admission in evidence. Slough, Relevancy Unraveled, 5 Kan.L.Rev. 404, 449 (1957). This requirement is specifically rejected by the rule on the ground that it relates to the sufficiency of the evidence rather than admissibility. A similar position is taken in New Jersey Rule 49. The rule also rejects the requirement of the absence of eyewitnesses, sometimes encountered with respect to admitting habit evidence to prove freedom from contributory negligence in wrongful death cases. For comment critical of the requirements see Frank, J., in Cereste v. New York, N.H. & H.R. Co., 231 F.2d 50 (2d Cir. 1956), cert. denied 351 U.S. 951, 76 S.Ct. 848, 100 L.Ed 1475, 10 Vand.L.Rev. 447 (1957); McCormick Sec. 162, p. 342. The omission of the requirement from the California Evidence Code is said to have effected its elimination. Comment, Cal.Ev.Code Sec. 1105. ------DocID 37205 Document 1067 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 407 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 407. Subsequent Remedial Measures -STATUTE- When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that 'because the world gets wiser as it gets older, therefore it was foolish before.' Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R. N.S. 261, 263 (1869). Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rules is broad enough to encompass all of them. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 590 (1956). The second sentence of the rule directs attention to the limitations of the rule. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. In effect it rejects the suggested inference that fault is admitted. Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore Sec. 283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961), an action against an airplane manufacturer for using an allegedly defectively designed alternator shaft which caused a plane crash, upheld the admission of evidence of subsequent design modification for the purpose of showing that design changes and safeguards were feasible. And Powers v. J. B. Michael & Co., 329 F.2d 674 (6th Cir. 1964), an action against a road contractor for negligent failure to put out warning signs, sustained the admission of evidence that defendant subsequently put out signs to show that the portion of the road in question was under defendant's control. The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. Otherwise the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403. For comparable rules, see Uniform Rule 51; California Evidence Code Sec. 1151; Kansas Code of Civil Procedure Sec. 60-451; New Jersey Evidence Rule 51. ------DocID 37206 Document 1068 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 408 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 408. Compromise and Offers to Compromise -STATUTE- Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES As a matter of general agreement, evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim. As with evidence of subsequent remedial measures, dealt with in Rule 407, exclusion may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances. (2) a more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes. McCormick Sec. 76, 251. While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person. The same policy underlies the provision of Rule 68 of the Federal Rules of Civil Procedure that evidence of an unaccepted offer of judgment is not admissible except in a proceeding to determine costs. The practical value of the common law rule has been greatly diminished by its inapplicability to admissions of fact, even though made in the course of compromise negotiations, unless hypothetical, stated to be 'without prejudice,' or so connected with the offer as to be inseparable from it. McCormick Sec. 251, pp. 540-541. An inevitable effect is to inhibit freedom of communication with respect to compromise, even among lawyers. Another effect is the generation of controversy over whether a given statement falls within or without the protected area. These considerations account for the expansion of the rule herewith to include evidence of conduct or statements made in compromise negotiations, as well as the offer or completed compromise itself. For similar provisions see California Evidence Code Sec. 1152, 1154. The policy considerations which underlie the rule do not come into play when the effort is to induce a creditor to settle an admittedly due amount for a lessor sum. McCormick Sec. 251, p. 540. Hence the rule requires that the claim be disputed as to either validity or amount. The final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule. The illustrative situations mentioned in the rule are supported by the authorities. As to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.E.2d 402 (1952), and negativing a contention of lack of due diligence in presenting a claim, 4 Wigmore Sec. 1061. An effort to 'buy off' the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion. McCormick Sec. 251, p. 542. For other rules of similar import, see Uniform Rules 52 and 53; California Evidence Code Sec. 1152, 1154; Kansas Code of Civil Procedure Sec. 60-452, 60-453; New Jersey Evidence Rules 52 and 53. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Under existing federal law evidence of conduct and statements made in compromise negotiations is admissible in subsequent litigation between the parties. The second sentence of Rule 408 as submitted by the Supreme Court proposed to reverse that doctrine in the interest of further promoting non-judicial settlement of disputes. Some agencies of government expressed the view that the Court formulation was likely to impede rather than assist efforts to achieve settlement of disputes. For one thing, it is not always easy to tell when compromise negotiations begin, and informal dealings end. Also, parties dealing with government agencies would be reluctant to furnish factual information at preliminary meetings; they would wait until 'compromise negotiations' began and thus hopefully effect an immunity for themselves with respect to the evidence supplied. In light of these considerations, the Committee recast the Rule so that admissions of liability or opinions given during compromise negotiations continue inadmissible, but evidence of unqualified factual assertions is admissible. The latter aspect of the Rule is drafted, however, so as to preserve other possible objections to the introduction of such evidence. The Committee intends no modification of current law whereby a party may protect himself from future use of his statements by couching them in hypothetical conditional form. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 This rule as reported makes evidence of settlement or attempted settlement of a disputed claim inadmissible when offered as an admission of liability or the amount of liability. The purpose of this rule is to encourage settlements which would be discouraged if such evidence were admissible. Under present law, in most jurisdictions, statements of fact made during settlement negotiations, however, are excepted from this ban and are admissible. The only escape from admissibility of statements of fact made in a settlement negotiation is if the declarant or his representative expressly states that the statement is hypothetical in nature or is made without prejudice. Rule 408 as submitted by the Court reversed the traditional rule. It would have brought statements of fact within the ban and made them, as well as an offer of settlement, inadmissible. The House amended the rule and would continue to make evidence of facts disclosed during compromise negotiations admissible. It thus reverted to the traditional rule. The House committee report states that the committee intends to preserve current law under which a party may protect himself by couching his statements in hypothetical form (See House Report No. 93-650 above). The real impact of this amendment, however, is to deprive the rule of much of its salutary effect. The exception for factual admissions was believed by the Advisory Committee to hamper free communication between parties and thus to constitute an unjustifiable restraint upon efforts to negotiate settlements - the encouragement of which is the purpose of the rule. Further, by protecting hypothetically phrased statements, it constituted a preference for the sophisticated, and a trap for the unwary. Three States which had adopted rules of evidence patterned after the proposed rules prescribed by the Supreme Court opted for versions of rule 408 identical with the Supreme Court draft with respect to the inadmissibility of conduct or statements made in compromise negotiations. (Nev. Rev. Stats. Sec. 48.105; N. Mex. Stats. Anno. (1973 Supp.) Sec. 20-4-408; West's Wis. Stats. Anno. (1973 Supp.) Sec. 904.08). For these reasons, the committee has deleted the House amendment and restored the rule to the version submitted by the Supreme Court with one additional amendment. This amendment adds a sentence to insure that evidence, such as documents, is not rendered inadmissible merely because it is presented in the course of compromise negotiations if the evidence is otherwise discoverable. A party should not be able to immunize from admissibility documents otherwise discoverable merely by offering them in a compromise negotiation. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The House bill provides that evidence of admissions of liability or opinions given during compromise negotiations is not admissible, but that evidence of facts disclosed during compromise negotiations is not inadmissible by virtue of having been first disclosed in the compromise negotiations. The Senate amendment provides that evidence of conduct or statements made in compromise negotiations is not admissible. The Senate amendment also provides that the rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. The House bill was drafted to meet the objection of executive agencies that under the rule as proposed by the Supreme Court, a party could present a fact during compromise negotiations and thereby prevent an opposing party from offering evidence of that fact at trial even though such evidence was obtained from independent sources. The Senate amendment expressly precludes this result. The Conference adopts the Senate amendment. ------DocID 37207 Document 1069 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 409 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 409. Payment of Medical and Similar Expenses -STATUTE- Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The considerations underlying this rule parallel those underlying Rules 407 and 408, which deal respectively with subsequent remedial measures and offers of compromise. As stated in Annot., 20 A.L.R.2d 291, 293: '(G)enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person.' Contrary to Rule 408, dealing with offers of compromise, the present rule does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. This difference in treatment arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature. For rules on the same subject, but phrased in terms of 'humanitarian motives,' see Uniform Rule 52; California Evidence Code Sec. 1152; Kansas Code of Civil Procedure Sec. 60-452; New Jersey Evidence Rule 52. ------DocID 37208 Document 1070 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 410 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements -STATUTE- Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Pub. L. 94-149, Sec. 1(9), Dec. 12, 1975, 89 Stat. 805; Apr. 30, 1979, eff. Dec. 1, 1980.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Withdrawn pleas of guilty were held inadmissible in federal prosecutions in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). The Court pointed out that to admit the withdrawn plea would effectively set at naught the allowance of withdrawal and place the accused in a dilemma utterly inconsistent with the decision to award him a trial. The New York Court of Appeals, in People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35 (1961), reexamined and overturned its earlier decisions which had allowed admission. In addition to the reasons set forth in Kercheval, which was quoted at length, the court pointed out that the effect of admitting the plea was to compel defendant to take the stand by way of explanation and to open the way for the prosecution to call the lawyer who had represented him at the time of entering the plea. State court decisions for and against admissibility are collected in Annot., 86 A.L.R.2d 326. Pleas of nolo contendere are recognized by Rule 11 of the Rules of Criminal Procedure, although the law of numerous States is to the contrary. The present rule gives effect to the principal traditional characteristic of the nolo plea, i.e., avoiding the admission of guilt which is inherent in pleas of guilty. This position is consistent with the construction of Section 5 of the Clayton Act, 15 U.S.C. Sec. 16(a), recognizing the inconclusive and compromise nature of judgments based on nolo pleas. General Electric Co. v. City of San Antonio, 334 F.2d 480 (5th Cir. 1964); Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 323 F.2d 412 (7th Cir. 1963), cert. denied 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659; Armco Steel Corp. v. North Dakota, 376 F.2d 206 (8th Cir. 1967); City of Burbank v. General Electric Co., 329 F.2d 825 (9th Cir. 1964). See also state court decisions in Annot., 18 A.L.R.2d 1287, 1314. Exclusion of offers to plead guilty or nolo has as its purpose the promotion of disposition of criminal cases by compromise. As pointed out in McCormick Sec. 251, p. 543 'Effective criminal law administration in many localities would hardly be possible if a large proportion of the charges were not disposed of by such compromises.' See also People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412 (1963), discussing legislation designed to achieve this result. As with compromise offers generally, Rule 408, free communication is needed, and security against having an offer of compromise or related statement admitted in evidence effectively encourages it. Limiting the exclusionary rule to use against the accused is consistent with the purpose of the rule, since the possibility of use for or against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster. See A.B.A. Standards Relating to Pleas of Guilty Sec. 2.2 (1968). See also the narrower provisions of New Jersey Evidence Rule 52(2) and the unlimited exclusion provided in California Evidence Code Sec. 1153. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 The Committee added the phrase 'Except as otherwise provided by Act of Congress' to Rule 410 as submitted by the Court in order to preserve particular congressional policy judgments as to the effect of a plea of guilty or of nolo contendere. See 15 U.S.C. 16(a). The Committee intends that its amendment refers to both present statutes and statutes subsequently enacted. NOTES OF THE COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 As adopted by the House, rule 410 would make inadmissible pleas of guilty or nolo contendere subsequently withdrawn as well as offers to make such pleas. Such a rule is clearly justified as a means of encouraging pleading. However, the House rule would then go on to render inadmissible for any purpose statements made in connection with these pleas or offers as well. The committee finds this aspect of the House rule unjustified. Of course, in certain circumstances such statements should be excluded. If, for example, a plea is vitiated because of coercion, statements made in connection with the plea may also have been coerced and should be inadmissible on that basis. In other cases, however, voluntary statements of an accused made in court on the record, in connection with a plea, and determined by a court to be reliable should be admissible even though the plea is subsequently withdrawn. This is particularly true in those cases where, if the House rule were in effect, a defendent would be able to contradict his previous statements and thereby lie with impunity (See Harris v. New York, 401 U.S. 222 (1971)). To prevent such an injustice, the rule has been modified to permit the use of such statements for the limited purposes of impeachment and in subsequent perjury or false statement prosecutions. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The House bill provides that evidence of a guilty or nolo contendere plea, of an offer of either plea, or of statements made in connection with such pleas or offers of such pleas, is inadmissible in any civil or criminal action, case or proceeding against the person making such plea or offer. The Senate amendment makes the rule inapplicable to a voluntary and reliable statement made in court on the record where the statement is offered in a subsequent prosecution of the declarant for perjury or false statement. The issues raised by Rule 410 are also raised by proposed Rule 11(e)(6) of the Federal Rules of Criminal Procedure presently pending before Congress. This proposed rule, which deals with the admissibility of pleas of guilty or nolo contendere, offers to make such pleas, and statements made in connection with such pleas, was promulgated by the Supreme Court on April 22, 1974, and in the absence of congressional action will become effective on August 1, 1975. The conferees intend to make no change in the presently-existing case law until that date, leaving the courts free to develop rules in this area on a case-by-case basis. The Conferees further determined that the issues presented by the use of guilty and nolo contendere pleas, offers of such pleas, and statements made in connection with such pleas or offers, can be explored in greater detail during Congressional consideration of Rule 11(e)(6) of the Federal Rules of Criminal Procedure. The Conferees believe, therefore, that it is best to defer its effective date until August 1, 1975. The Conferees intend that Rule 410 would be superseded by any subsequent Federal Rule of Criminal Procedure or Act of Congress with which it is inconsistent, if the Federal Rule of Criminal Procedure or Act of Congress takes effect or becomes law after the date of the enactment of the act establishing the rules of evidence. The conference adopts the Senate amendment with an amendment that expresses the above intentions. 1975 AMENDMENT Pub. L. 94-149 substituted heading reading 'Inadmissibility of Pleas, Offers of Pleas, and Related Statements' for 'Offer to Plead Guilty; Nolo Contendere; Withdrawn Pleas of Guilty'; substituted in first sentence 'provided in this rule' for 'provided by Act of Congress', inserted therein ', and relevant to,' following 'in connection with', and deleted therefrom 'action, case, or' preceding 'proceeding'; added second sentence relating to admissibility of statements in criminal proceedings for perjury or false statements; deleted former second sentence providing that 'This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.'; and deleted former second par. providing that 'This rule shall not take effect until August 1, 1975, and shall be superseded by any amendment to the Federal Rules of Criminal Procedure which is inconsistent with this rule, and which takes effect after the date of the enactment of the Act establishing these Federal Rules of Evidence.' NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT Present rule 410 conforms to rule 11(e)(6) of the Federal Rules of Criminal Procedure. A proposed amendment to rule 11(e)(6) would clarify the circumstances in which pleas, plea discussions and related statements are inadmissible in evidence; see Advisory Committee Note thereto. The amendment proposed above would make comparable changes in rule 410. EFFECTIVE DATE OF 1979 AMENDMENT Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided in part that the effective date of the amendment transmitted to Congress on Apr. 30, 1979, be extended from Aug. 1, 1979, to Dec. 1, 1980. ------DocID 37209 Document 1071 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 411 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 411. Liability Insurance -STATUTE- Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and absence of liability insurance as proof of lack of fault. At best the inference of fault from the fact of insurance coverage is a tennuous one, as is its converse. More important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. McCormick Sec. 168; Annot., 4 A.L.R.2d 761. The rule is drafted in broad terms so as to include contributory negligence or other fault of a plaintiff as well as fault of a defendant. The second sentence points out the limits of the rule, using well established illustrations. Id. For similar rules see Uniform Rule 54; California Evidence Code Sec. 1155; Kansas Code of Civil Procedure Sec. 60-454; New Jersey Evidence Rule 54. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37210 Document 1072 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 412 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IV -HEAD- Rule 412. Sex Offense Cases; Relevance of Victim's Past Behavior -STATUTE- (a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of an offense under chapter 109A of title 18, United States Code, reputation or opinion evidence of the past sexual behavior of an alleged victim of such offense is not admissible. (b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of an offense under chapter 109A of title 18, United States Code, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is - (1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or (2) admitted in accordance with subdivision (c) and is evidence of - (A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or (B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which such offense is alleged. (c)(1) If the person accused of committing an offense under chapter 109A of title 18, United States Code (FOOTNOTE 1) intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim. (FOOTNOTE 1) So in original. Probably should be followed by a comma. (2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue. (3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. (d) For purposes of this rule, the term 'past sexual behavior' means sexual behavior other than the sexual behavior with respect to which an offense under chapter 109A of title 18, United States Code (FOOTNOTE 1) is alleged. -SOURCE- (Added Pub. L. 95-540, Sec. 2(a), Oct. 28, 1978, 92 Stat. 2046, and amended Pub. L. 100-690, title VII, Sec. 7046(a), Nov. 18, 1988, 102 Stat. 4400.) -MISC1- 1988 AMENDMENT Pub. L. 100-690, Sec. 7046(a)(1), substituted 'Sex Offense' for 'Rape' in catchline. Subd. (a). Pub. L. 100-690, Sec. 7046(a)(2), (3), substituted 'an offense under chapter 109A of title 18, United States Code' for 'rape or of assault with intent to commit rate' and 'such offense' for 'such rape or assault'. Subd. (b). Pub. L. 100-690, Sec. 7046(a)(2), (5), substituted 'an offense under chapter 109A of title 18, United States Code' for 'rape or of assault with intent to commit rape' in introductory provisions and 'such offense' for 'rape or assault' in subd. (b)(2)(B). Subds. (c)(1), (d). Pub. L. 100-690, Sec. 7046(a)(4), substituted 'an offense under chapter 109A of title 18, United States Code' for 'rape or assault with intent to commit rape'. EFFECTIVE DATE Section 3 of Pub. L. 95-540 provided that: 'The amendments made by this Act (enacting this rule) shall apply to trials which begin more than thirty days after the date of the enactment of this Act (Oct. 28, 1978).' ------DocID 37211 Document 1073 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE V -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE V -HEAD- ARTICLE V. PRIVILEGES ------DocID 37212 Document 1074 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 501 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE V -HEAD- Rule 501. General Rule -STATUTE- Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.) -MISC1- NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Article V as submitted to Congress contained thirteen Rules. Nine of those Rules defined specific non-constitutional privileges which the federal courts must recognize (i.e. required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Another Rule provided that only those privileges set forth in Article V or in some other Act of Congress could be recognized by the federal courts. The three remaining Rules addressed collateral problems as to waiver of privilege by voluntary disclosure, privileged matter disclosed under compulsion or without opportunity to claim privilege, comment upon or inference from a claim of privilege, and jury instruction with regard thereto. The Committee amended Article V to eliminate all of the Court's specific Rules on privileges. Instead, the Committee, through a single Rule, 501, left the law of privileges in its present state and further provided that privileges shall continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from Rule 26 of the Federal Rules of Criminal Procedure, mandates the application of the principles of the common law as interpreted by the Courts of the United States in the light of reason and experience. The words 'person, government, State, or political subdivision thereof' were added by the Committee to the lone term 'witness' used in Rule 26 to make clear that, as under present law, not only witnesses may have privileges. The Committee also included in its amendment a proviso modeled after Rule 302 and similar to language added by the Committee to Rule 601 relating to the competency of witnesses. The proviso is designed to require the application of State privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), a result in accord with current federal court decisions. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 555-556 n.2 (2nd Cir. 1967). The Committee deemed the proviso to be necessary in the light of the Advisory Committee's view (see its note to Court (proposed) Rule 501) that this result is not mandated under Erie. The rationale underlying the proviso is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason. The Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy. In addition, the Committee considered that the Court's proposed Article V would have promoted forum shopping in some civil actions, depending upon differences in the privilege law applied as among the State and federal courts. The Committee's proviso, on the other hand, under which the federal courts are bound to apply the State's privilege law in actions founded upon a State-created right or defense removes the incentive to 'shop'. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Article V as submitted to Congress contained 13 rules. Nine of those rules defined specific nonconstitutional privileges which the Federal courts must recognize (i.e., required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Many of these rules contained controversial modifications or restrictions upon common law privileges. As noted supra, the House amended article V to eliminate all of the Court's specific rules on privileges. Through a single rule, 501, the House provided that privileges shall be governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience (a standard derived from rule 26 of the Federal Rules of Criminal Procedure) except in the case of an element of a civil claim or defense as to which State law supplies the rule of decision, in which event state privilege law was to govern. The committee agrees with the main thrust of the House amendment: that a federally developed common law based on modern reason and experience shall apply except where the State nature of the issues renders deference to State privilege law the wiser course, as in the usual diversity case. The committee understands that thrust of the House amendment to require that State privilege law be applied in 'diversity' cases (actions on questions of State law between citizens of different States arising under 28 U.S.C. Sec. 1332). The language of the House amendment, however, goes beyond this in some respects, and falls short of it in others: State privilege law applies even in nondiversity. Federal question civil cases, where an issue governed by State substantive law is the object of the evidence (such issues do sometimes arise in such cases); and, in all instances where State privilege law is to be applied, e.g., on proof of a State issue in a diversity case, a close reading reveals that State privilege law is not to be applied unless the matter to be proved is an element of that state claim or defense, as distinguished from a step along the way in the proof of it. The committee is concerned that the language used in the House amendment could be difficult to apply. It provides that 'in civil actions * * * with respect to an element of a claim or defense as to which State law supplies the rule of decision,' State law on privilege applies. The question of what is an element of a claim or defense is likely to engender considerable litigation. If the matter in question constitutes an element of a claim, State law supplies the privilege rule; whereas if it is a mere item of proof with respect to a claim, then, even though State law might supply the rule of decision, Federal law on the privilege would apply. Further, disputes will arise as to how the rule should be applied in an antitrust action or in a tax case where the Federal statute is silent as to a particular aspect of the substantive law in question, but Federal cases had incorporated State law by reference to State law. (For a discussion of reference to State substantive law, see note on Federal Incorporation by Reference of State Law, Hart & Wechsler, The Federal Courts and the Federal System, pp. 491-494 (2d ed. 1973).) Is a claim (or defense) based on such a reference a claim or defense as to which federal or State law supplies the rule of decision? Another problem not entirely avoidable is the complexity or difficulty the rule introduces into the trial of a Federal case containing a combination of Federal and State claims and defenses, e.g. an action involving Federal antitrust and State unfair competition claims. Two different bodies of privilege law would need to be consulted. It may even develop that the same witness-testimony might be relevant on both counts and privileged as to one but not the other. (The problems with the House formulation are discussed in Rothstein, The Proposed Amendments to the Federal Rules of Evidence, 62 Georgetown University Law Journal 125 (1973) at notes 25, 26 and 70-74 and accompanying text.) The formulation adopted by the House is pregnant with litigious mischief. The committee has, therefore, adopted what we believe will be a clearer and more practical guideline for determining when courts should respect State rules of privilege. Basically, it provides that in criminal and Federal question civil cases, federally evolved rules on privilege should apply since it is Federal policy which is being enforced. (It is also intended that the Federal law of privileges should be applied with respect to pendant State law claims when they arise in a Federal question case.) Conversely, in diversity cases where the litigation in question turns on a substantive question of State law, and is brought in the Federal courts because the parties reside in different States, the committee believes it is clear that State rules of privilege should apply unless the proof is directed at a claim or defense for which Federal law supplies the rule of decision (a situation which would not commonly arise.) (While such a situation might require use of two bodies of privilege law, federal and state, in the same case, nevertheless the occasions on which this would be required are considerably reduced as compared with the House version, and confined to situations where the Federal and State interests are such as to justify application of neither privilege law to the case as a whole. If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied. This policy is based on the present rule 43(a) of the Federal Rules of Civil Procedure which provides: In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.) It is intended that the State rules of privilege should apply equally in original diversity actions and diversity actions removed under 28 U.S.C. Sec. 1441(b). Two other comments on the privilege rule should be made. The committee has received a considerable volume of correspondence from psychiatric organizations and psychiatrists concerning the deletion of rule 504 of the rule submitted by the Supreme Court. It should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving any recognition of a psychiatrist-patient, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis. Further, we would understand that the prohibition against spouses testifying against each other is considered a rule of privilege and covered by this rule and not by rule 601 of the competency of witnesses. NOTES OF THE CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 501 deals with the privilege of a witness not to testify. Both the House and Senate bills provide that federal privilege law applies in criminal cases. In civil actions and proceedings, the House bill provides that state privilege law applies 'to an element of a claim or defense as to which State law supplies the rule of decision.' The Senate bill provides that 'in civil actions and proceedings arising under 28 U.S.C. Sec. 1332 or 28 U.S.C. Sec. 1335, or between citizens of different States and removed under 28 U.S.C. Sec. 1441(b) the privilege of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision.' The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to 'an element of a claim or defense.' If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state privilege law applies to that item of proof. Under the provision in the House bill, therefore, state privilege law will usually apply in diversity cases. There may be diversity cases, however, where a claim or defense is based upon federal law. In such instances, Federal privilege law will apply to evidence relevant to the federal claim or defense. See Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173 (1942). In nondiversity jurisdiction civil cases, federal privilege law will generally apply. In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. As Justice Jackson has said: A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 471 (1942) (Jackson, J., concurring). When a federal court chooses to absorb state law, it is applying the state law as a matter of federal common law. Thus, state law does not supply the rule of decision (even though the federal court may apply a rule derived from state decisions), and state privilege law would not apply. See C. A. Wright, Federal Courts 251-252 (2d ed. 1970); Holmberg v. Armbrecht, 327 U.S. 392 (1946); DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9 Wright & Miller, Federal Rules and Procedure Sec. 2408. In civil actions and proceedings, where the rule of decision as to a claim or defense or as to an element of a claim or defense is supplied by state law, the House provision requires that state privilege law apply. The Conference adopts the House provision. ------DocID 37213 Document 1075 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE VI -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- ARTICLE VI. WITNESSES ------DocID 37214 Document 1076 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 601 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 601. General Rule of Competency -STATUTE- Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person. With the exception of the so-called Dead Man's Acts, American jurisdictions generally have ceased to recognize these grounds. The Dead Man's Acts are surviving traces of the common law disqualification of parties and interested persons. They exist in variety too great to convey conviction of their wisdom and effectiveness. These rules contain no provision of this kind. For the reasoning underlying the decision not to give effect to state statutes in diversity cases, see the Advisory Committee's Note to Rule 501. No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Weihofen, Testimonial Competence and Credibility, 34 Geo. Wash.L.Rev. 53 (1965). Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. 2 Wigmore Sec. 501, 509. Standards of moral qualification in practice consist essentially of evaluating a person's truthfulness in terms of his own answers about it. Their principal utility is in affording an opportunity on voir dire examination to impress upon the witness his moral duty. This result may, however, be accomplished more directly, and without haggling in terms of legal standards, by the manner of administering the oath or affirmation under Rule 603. Admissibility of religious belief as a ground of impeachment is treated in Rule 610. Conviction of crime as a ground of impeachment is the subject of Rule 609. Marital relationship is the basis for privilege under Rule 505. Interest in the outcome of litigation and mental capacity are, of course, highly relevant to credibility and require no special treatment to render them admissible along with other matters bearing upon the perception, memory, and narration of witnesses. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 601 as submitted to the Congress provided that 'Every person is competent to be a witness except as otherwise provided in these rules.' One effect of the Rule as proposed would have been to abolish age, mental capacity, and other grounds recognized in some State jurisdictions as making a person incompetent as a witness. The greatest controversy centered around the Rule's rendering inapplicable in the federal courts the so-called Dead Man's Statutes which exist in some States. Acknowledging that there is substantial disagreement as to the merit of Dead Man's Statutes, the Committee nevertheless believed that where such statutes have been enacted they represent State policy which should not be overturned in the absence of a compelling federal interest. The Committee therefore amended the Rule to make competency in civil actions determinable in accordance with State law with respect to elements of claims or defenses as to which State law supplies the rule of decision. Cf. Courtland v. Walston & Co., Inc., 340 F.Supp. 1076, 1087-1092 (S.D.N.Y. 1972). NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 The amendment to rule 601 parallels the treatment accorded rule 501 discussed immediately above. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 601 deals with competency of witnesses. Both the House and Senate bills provide that federal competency law applies in criminal cases. In civil actions and proceedings, the House bill provides that state competency law applies 'to an element of a claim or defense as to which State law supplies the rule of decision.' The Senate bill provides that 'in civil actions and proceedings arising under 28 U.S.C. Sec. 1332 or 28 U.S.C. Sec. 1335, or between citizens of different States and removed under 28 U.S.C. Sec. 1441(b) the competency of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision.' The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to 'an element of a claim or defense.' If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state competency law applies to that item of proof. For reasons similar to those underlying its action on Rule 501, the Conference adopts the House provision. ------DocID 37215 Document 1077 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 602 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 602. Lack of Personal Knowledge -STATUTE- A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES '* * * (T)he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact' is a 'most prevasive manifestation' of the common law insistence upon 'the most reliable sources of information.' McCormick Sec. 10, p. 19. These foundation requirements may, of course, be furnished by the testimony of the witness himself; hence personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 2 Wigmore Sec. 650. It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy. This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable. This rule would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it. The reference to Rule 703 is designed to avoid any question of conflict between the present rule and the provisions of that rule allowing an expert to express opinions based on facts of which he does not have personal knowledge. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37216 Document 1078 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 603 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 603. Oath or Affirmation -STATUTE- Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. As is true generally, affirmation is recognized by federal law. 'Oath' includes affirmation, 1 U.S.C. Sec. 1; judges and clerks may administer oaths and affirmations, 28 U.S.C. Sec. 459, 953; and affirmations are acceptable in lieu of oaths under Rule 43(d) of the Federal Rules of Civil Procedure. Perjury by a witness is a crime, 18 U.S.C. Sec. 1621. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37217 Document 1079 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 604 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 604. Interpreters -STATUTE- An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule implements Rule 43(f) of the Federal Rules of Civil Procedure and Rule 28(b) of the Federal Rules of Criminal Procedure, both of which contain provisions for the appointment and compensation of interpreters. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37218 Document 1080 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 605 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 605. Competency of Judge as Witness -STATUTE- The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES In view of the mandate of 28 U.S.C. Sec. 455 that a judge disqualify himself in 'any case in which he * * * is or has been a material witness,' the likelihood that the presiding judge in a federal court might be called to testify in the trial over which he is presiding is slight. Nevertheless the possibility is not totally eliminated. The solution here presented is a broad rule of incompetency, rather than such alternatives as incompetency only as to material matters, leaving the matter to the discretion of the judge, or recognizing no incompetency. The choice is the result of inability to evolve satisfactory answers to questions which arise when the judge abandons the bench for the witness stand. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and admissibility of his own testimony? Can he be impeached or cross-examined effectively? Can he, in a jury trial, avoid conferring his seal of approval on one side in the eyes of the jury? Can he, in a bench trial, avoid an involvement destructive of impartiality? The rule of general incompetency has substantial support. See Report of the Special Committee on the Propriety of Judges Appearing as Witnesses, 36 A.B.A.J. 630 (1950); cases collected in Annot. 157 A.L.R. 311; McCormick Sec. 68, p. 147; Uniform Rule 42; California Evidence Code Sec. 703; Kansas Code of Civil Procedure Sec. 60-442; New Jersey Evidence Rule 42. Cf. 6 Wigmore Sec. 1909, which advocates leaving the matter to the discretion of the judge, and statutes to that effect collected in Annot. 157 A.L.R. 311. The rule provides an 'automatic' objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector. ------DocID 37219 Document 1081 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 606 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 606. Competency of Juror as Witness -STATUTE- (a) At the trial. - A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. - Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Pub. L. 94-149, Sec. 1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). The considerations which bear upon the permissibility of testimony by a juror in the trial in which he is sitting as juror bear an obvious similarity to those evoked when the judge is called as a witness. See Advisory Committee's Note to Rule 605. The judge is not, however in this instance so involved as to call for departure from usual principles requiring objection to be made; hence the only provision on objection is that opportunity be afforded for its making out of the presence of the jury. Compare Rules 605. Subdivision (b). Whether testimony, affidavits, or statements of jurors should be received for the purpose of invalidating or supporting a verdict or indictment, and if so, under what circumstances, has given rise to substantial differences of opinion. The familiar rubric that a juror may not impeach his own verdict, dating from Lord Mansfield's time, is a gross oversimplification. The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 785, 59 L.Ed. 1300 (1915). On the other hand, simply putting verdicts beyond effective reach can only promote irregularity and injustice. The rule offers an accommodation between these competing considerations. The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment. See Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964). The authorities are in virtually complete accord in excluding the evidence. Fryer, Note on Disqualification of Witnesses, Selected Writings on Evidence and Trial 345, 347 (Fryer ed. 1957); Maguire, Weinstein, et al., Cases on Evidence 887 (5th ed. 1965); 8 Wigmore Sec. 2340 (McNaughton Rev. 1961). As to matters other than mental operations and emotional reactions of jurors, substantial authority refuses to allow a juror to disclose irregularities which occur in the jury room, but allows his testimony as to irregularities occurring outside and allows outsiders to testify as to occurrances both inside and out. 8 Wigmore Sec. 2354 (McNaughton Rev. 1961). However, the door of the jury room is not necessarily a satisfactory dividing point, and the Supreme Court has refused to accept it for every situation. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process. Thus testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382 (1912); a quotient verdict, McDonald v. Pless, 238 U.S. 264 (1915); speculation as to insurance coverage, Holden v. Porter, 495 F.2d 878 (10th Cir.1969), Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir. 1967), cert. denied 389 U.S. 1014; misinterpretations of instructions, Farmers Coop. Elev. Ass'n v. Strand, supra; mistake in returning verdict, United States v. Chereton, 309 F.2d 197 (6th Cir. 1962); interpretation of guilty plea by one defendant as implicating others, United States v. Crosby, 294 F.2d 928, 949 (2d Cir. 1961). The policy does not, however, foreclose testimony by jurors as to prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process. Thus a juror is recognized as competent to testify to statements by the baliff or the introduction of a prejudicial newspaper account into the jury room, Mattox v. United States, 146 U.S. 140 (1892). See also Parker v. Gladden, 385 U.S. 363 (1966). This rule does not purport to specify the substantive grounds for setting aside verdicts for irregularity; it deals only with the competency of jurors to testify concerning those grounds. Allowing them to testify as to matters other than their own inner reactions involves no particular hazard to the values sought to be protected. The rules is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity. See also Rule 6(e) of the Federal Rules of Criminal Procedure and 18 U.S.C. Sec. 3500, governing the secrecy of grand jury proceedings. The present rules does not relate to secrecy and disclosure but to the competency of certain witnesses and evidence. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 As proposed by the Court, Rule 606(b) limited testimony by a juror in the course of an inquiry into the validity of a verdict or indictment. He could testify as to the influence of extraneous prejudicial information brought to the jury's attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room. Under this formulation a quotient verdict could not be attacked through the testimony of a juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury's deliberations. The 1969 and 1971 Advisory Committee drafts would have permitted a member of the jury to testify concerning these kinds of irregularities in the jury room. The Advisory Committee note in the 1971 draft stated that '* * * the door of the jury room is not a satisfactory dividing point, and the Supreme Court has refused to accept it.' The Advisory Committee further commented that - The trend has been to draw the dividing line between testimony as to mental processes, on the one hand, and as to the existence of conditions or occurrences of events calculated improperly to influence the verdict, on the other hand, without regard to whether the happening is within or without the jury room. * * * The jurors are the persons who know what really happened. Allowing them to testify as to matters other than their own reactions involves no particular hazard to the values sought to be protected. The rule is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity. Objective jury misconduct may be testified to in California, Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon, Tennessee, Texas, and Washington. Persuaded that the better practice is that provided for in the earlier drafts, the Committee amended subdivision (b) to read in the text of those drafts. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 As adopted by the House, this rule would permit the impeachment of verdicts by inquiry into, not the mental processes of the jurors, but what happened in terms of conduct in the jury room. This extension of the ability to impeach a verdict is felt to be unwarranted and ill-advised. The rule passed by the House embodies a suggestion by the Advisory Committee of the Judicial Conference that is considerably broader than the final version adopted by the Supreme Court, which embodies long-accepted Federal law. Although forbidding the impeachment of verdicts by inquiry into the jurors' mental processes, it deletes from the Supreme Court version the proscription against testimony 'as to any matter or statement occurring during the course of the jury's deliberations.' This deletion would have the effect of opening verdicts up to challenge on the basis of what happened during the jury's internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge's instructions or that some of the jurors did not take part in deliberations. Permitting an individual to attack a jury verdict based upon the jury's internal deliberations has long been recognized as unwise by the Supreme Court. In McDonald v. Pless, the Court stated: * * * * * (L)et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation - to the destruction of all frankness and freedom of discussion and conference (238 U.S. 264, at 267 (1914)). * * * * * As it stands then, the rule would permit the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex-jurors. Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 606(b) deals with juror testimony in an inquiry into the validity of a verdict or indictment. The House bill provides that a juror cannot testify about his mental processes or about the effect of anything upon his or another juror's mind as influencing him to assent to or dissent from a verdict or indictment. Thus, the House bill allows a juror to testify about objective matters occurring during the jury's deliberation, such as the misconduct of another juror or the reaching of a quotient verdict. The Senate bill does not permit juror testimony about any matter or statement occurring during the course of the jury's deliberations. The Senate bill does provide, however, that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention and on the question whether any outside influence was improperly brought to bear on any juror. The Conference adopts the Senate amendment. The Conferees believe that jurors should be encouraged to be conscientious in promptly reporting to the court misconduct that occurs during jury deliberations. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1975 AMENDMENT Subd. (b). Pub. L. 94-149 substituted 'which' for 'what' in last sentence. ------DocID 37220 Document 1082 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 607 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 607. Who May Impeach -STATUTE- The credibility of a witness may be attacked by any party, including the party calling the witness. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1). Ladd, Impeachment of One's Own Witness - New Developments 4 U.Chi.L.Rev. 69 (1936); McCormick Sec. 38; 3 Wigmore Sec. 896-918. The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability. Cases are collected in 3 Wigmore Sec. 905. Revised Rule 32(a)(1) of the Federal Rules of Civil Procedure allows any party to impeach a witness by means of his deposition, and Rule 43(b) has allowed the calling and impeachment of an adverse party or person identified with him. Illustrative statutes allowing a party to impeach his own witness under varying circumstances are Ill.Rev. Stats.1967, c. 110, Sec. 60; Mass.Laws Annot. 1959, c. 233 Sec. 23; 20 N.M.Stats. Annot. 1953, Sec. 20-2-4; N.Y. CPLR Sec. 4514 (McKinney 1963); 12 Vt.Stats. Annot. 1959, Sec. 1641a, 1642. Complete judicial rejection of the old rule is found in United States v. Freeman, 302 F.2d 347 (2d Cir. 1962). The same result is reached in Uniform Rule 20; California Evidence Code Sec. 785; Kansas Code of Civil Procedure Sec. 60-420. See also New Jersey Evidence Rule 20. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37221 Document 1083 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 608 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 608. Evidence of Character and Conduct of Witness -STATUTE- (a) Opinion and reputation evidence of character. - The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. - Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). In Rule 404(a) the general position is taken that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith, subject, however, to several exceptions, one of which is character evidence of a witness as bearing upon his credibility. The present rule develops that exception. In accordance with the bulk of judicial authority, the inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally. The result is to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive. McCormick Sec. 44. The use of opinion and reputation evidence as means of proving the character of witnesses is consistent with Rule 405(a). While the modern practice has purported to exclude opinion witnesses who testify to reputation seem in fact often to be giving their opinions, disguised somewhat misleadingly as reputation. See McCormick Sec. 44. And even under the modern practice, a common relaxation has allowed inquiry as to whether the witnesses would believe the principal witness under oath. United States v. Walker, 313 F.2d 236 (6th Cir. 1963), and cases cited therein; McCormick Sec. 44, pp. 94-95, n. 3. Character evidence in support of credibility is admissible under the rule only after the witness' character has first been attacked, as has been the case at common law. Maguire, Weinstein, et al., Cases on Evidence 295 (5th ed. 1965); McCormick Sec. 49, p. 105; 4 Wigmore Sec. 1104. The enormous needless consumption of time which a contrary practice would entail justifies the limitation. Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence or misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. McCormick Sec. 49; 4 Wigmore Sec. 1106, 1107. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend Sec. 1108, 1109. As to the use of specific instances on direct by an opinion witness, see the Advisory Committee's Note to Rule 405, supra. Subdivision (b). In conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is an issue in the case, the present rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility. There are, however, two exceptions: (1) specific instances are provable when they have been the subject of criminal conviction, and (2) specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness. (1) Conviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes. (2) Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination of the principal witness himself or of a witness who testifies concerning his character for truthfulness. Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment. The final sentence constitutes a rejection of the doctrine of such cases as People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950), that any past criminal act relevant to credibility may be inquired into on cross-examination, in apparent disregard of the privilege against self-incrimination. While it is clear that an ordinary witness cannot make a partial disclosure of incriminating matter and then invoke the privilege on cross-examination, no tenable contention can be made that merely by testifying he waives his right to foreclose inquiry on cross-examination into criminal activities for the purpose of attacking his credibility. So to hold would reduce the privilege to a nullity. While it is true that an accused, unlike an ordinary witness, has an option whether to testify, if the option can be exercised only at the price of opening up inquiry as to any and all criminal acts committed during his lifetime, the right to testify could scarcely be said to possess much vitality. In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that allowing comment on the election of an accused not to testify exacted a constitutionally impermissible price, and so here. While no specific provision in terms confers constitutional status on the right of an accused to take the stand in his own defense, the existence of the right is so completely recognized that a denial of it or substantial infringement upon it would surely be of due process dimensions. See Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); McCormick Sec. 131; 8 Wigmore Sec. 2276 (McNaughton Rev. 1961). In any event, wholly aside from constitutional considerations, the provision represents a sound policy. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 608(a) as submitted by the Court permitted attack to be made upon the character for truthfulness or untruthfulness of a witness either by reputation or opinion testimony. For the same reasons underlying its decision to eliminate the admissibility of opinion testimony in Rule 405(a), the Committee amended Rule 608(a) to delete the reference to opinion testimony. The second sentence of Rule 608(b) as submitted by the Court permitted specific instances of misconduct of a witness to be inquired into on cross-examination for the purpose of attacking his credibility, if probative of truthfulness or untruthfulness, 'and not remote in time'. Such cross-examination could be of the witness himself or of another witness who testifies as to 'his' character for truthfulness or untruthfulness. The Committee amended the Rule to emphasize the discretionary power of the court in permitting such testimony and deleted the reference to remoteness in time as being unnecessary and confusing (remoteness from time of trial or remoteness from the incident involved?). As recast, the Committee amendment also makes clear the antecedent of 'his' in the original Court proposal. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The Senate amendment adds the words 'opinion or' to conform the first sentence of the rule with the remainder of the rule. The Conference adopts the Senate amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37222 Document 1084 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 609 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 609. Impeachment by Evidence of Conviction of Crime -STATUTE- (a) General rule. - For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (b) Time limit. - Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, or certificate of rehabilitation. - Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. - Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of appeal. - The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES As a means of impeachment, evidence of conviction of crime is significant only because it stands as proof of the commission of the underlying criminal act. There is little dissent from the general proposition that at least some crimes are relevant to credibility but much disagreement among the cases and commentators about which crimes are usable for this purpose. See McCormick Sec. 43; 2 Wright, Federal Practice and Procedure; Criminal Sec. 416 (1969). The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense. This is the view accepted by Congress in the 1970 amendment of Sec. 14-305 of the District of Columbia Code, P.L. 91-358, 84 Stat. 473. Uniform Rule 21 and Model Code Rule 106 permit only crimes involving 'dishonesty or false statement.' Others have thought that the trial judge should have discretion to exclude convictions if the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Law & Soc. Order 1. Whatever may be the merits of those views, this rule is drafted to accord with the Congressional policy manifested in the 1970 legislation. The proposed rule incorporates certain basic safeguards, in terms applicable to all witnesses but of particular significance to an accused who elects to testify. These protections include the imposition of definite time limitations, giving effect to demonstrated rehabilitation, and generally excluding juvenile adjudications. Subdivision (a). For purposes of impeachment, crimes are divided into two categories by the rule: (1) those of what is generally regarded as felony grade, without particular regard to the nature of the offense, and (2) those involving dishonesty or false statement, without regard to the grade of the offense. Provable convictions are not limited to violations of federal law. By reason of our constitutional structure, the federal catalog of crimes is far from being a complete one, and resort must be had to the laws of the states for the specification of many crimes. For example, simple theft as compared with theft from interstate commerce. Other instances of borrowing are the Assimilative Crimes Act, making the state law of crimes applicable to the special territorial and maritime jurisdiction of the United States, 18 U.S.C. Sec. 13, and the provision of the Judicial Code disqualifying persons as jurors on the grounds of state as well as federal convictions, 28 U.S.C. Sec. 1865. For evaluation of the crime in terms of seriousness, reference is made to the congressional measurement of felony (subject to imprisonment in excess of one year) rather than adopting state definitions which vary considerably. See 28 U.S.C. Sec. 1865, supra, disqualifying jurors for conviction in state or federal court of crime punishable by imprisonment for more than one year. Subdivision (b). Few statutes recognize a time limit on impeachment by evidence of conviction. However, practical considerations of fairness and relevancy demand that some boundary be recognized. See Ladd, Credibility Tests - Current Trends, 89 U.Pa.L.Rev. 166, 176-177 (1940). This portion of the rule is derived from the proposal advanced in Recommendation Proposing in Evidence Code, Sec. 788(5), p. 142, Cal.Law Rev.Comm'n (1965), though not adopted. See California Evidence Code Sec. 788. Subdivision (c). A pardon or its equivalent granted solely for the purpose of restoring civil rights lost by virtue of a conviction has no relevance to an inquiry into character. If, however, the pardon or other proceeding is hinged upon a showing of rehabilitation the situation is otherwise. The result under the rule is to render the conviction inadmissible. The alternative of allowing in evidence both the conviction and the rehabilitation has not been adopted for reasons of policy, economy of time, and difficulties of evaluation. A similar provision is contained in California Evidence Code Sec. 788. Cf. A.L.I. Model Penal Code, Proposed Official Draft Sec. 306.6(3)(e) (1962), and discussion in A.L.I. Proceedings 310 (1961). Pardons based on innocence have the effect, of course, of nullifying the conviction ab initio. Subdivision (d). The prevailing view has been that a juvenile adjudication is not usable for impeachment. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of circumstances. By virtue of its informality, frequently diminished quantum of required proof, and other departures from accepted standards for criminal trials under the theory of parens patriae, the juvenile adjudication was considered to lack the precision and general probative value of the criminal conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these characteristics insofar as objectionable, other obstacles remain. Practical problems of administration are raised by the common provisions in juvenile legislation that records be kept confidential and that they be destroyed after a short time. While Gault was skeptical as to the realities of confidentiality of juvenile records, it also saw no constitutional obstacles to improvement. 387 U.S. at 25, 87 S.Ct. 1428. See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967). In addition, policy considerations much akin to those which dictate exclusion of adult convictions after rehabilitation has been established strongly suggest a rule of excluding juvenile adjudications. Admittedly, however, the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore was outspoken in his condemnation of the disallowance of juvenile adjudications to impeach, especially when the witness is the complainant in a case of molesting a minor. 1 Wigmore Sec. 196; 3 Id. Sec. 924a, 980. The rule recognizes discretion in the judge to effect an accommodation among these various factors by departing from the general principle of exclusion. In deference to the general pattern and policy of juvenile statutes, however, no discretion is accorded when the witness is the accused in a criminal case. Subdivision (e). The presumption of correctness which ought to attend judicial proceedings supports the position that pendency of an appeal does not preclude use of a conviction for impeachment. United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949), cert. denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 and 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th Cir. 1964), Contra, Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949). The pendency of an appeal is, however, a qualifying circumstance properly considerable. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 609(a) as submitted by the Court was modeled after Section 133(a) of Public Law 91-358, 14 D.C. Code 305(b)(1), enacted in 1970. The Rule provided that: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment. As reported to the Committee by the Subcommittee, Rule 609(a) was amended to read as follows: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime (1) was punishable by death or imprisonment in excess of one year, unless the court determines that the danger of unfair prejudice outweighs the probative value of the evidence of the conviction, or (2) involved dishonesty or false statement. In full committee, the provision was amended to permit attack upon the credibility of a witness by prior conviction only if the prior crime involved dishonesty or false statement. While recognizing that the prevailing doctrine in the federal courts and in most States allows a witness to be impeached by evidence of prior felony convictions without restriction as to type, the Committee was of the view that, because of the danger of unfair prejudice in such practice and the deterrent effect upon an accused who might wish to testify, and even upon a witness who was not the accused, cross-examination by evidence of prior conviction should be limited to those kinds of convictions bearing directly on credibility, i.e., crimes involving dishonesty or false statement. Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in 1970. The Rule provided: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date. Under this formulation, a witness' entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a)), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction. The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. The Committee was of the view that after ten years following a person's release from confinement (or from the date of his conviction) the probative value of the conviction with respect to that person's credibility diminished to a point where it should no longer be admissible. Rule 609(c) as submitted by the Court provided in part that evidence of a witness' prior conviction is not admissible to attack his credibility if the conviction was the subject of a pardon, annulment, or other equivalent procedure, based on a showing of rehabilitation, and the witness has not been convicted of a subsequent crime. The Committee amended the Rule to provide that the 'subsequent crime' must have been 'punishable by death or imprisonment in excess of one year', on the ground that a subsequent conviction of an offense not a felony is insufficient to rebut the finding that the witness has been rehabilitated. The Committee also intends that the words 'based on a finding of the rehabilitation of the person convicted' apply not only to 'certificate of rehabilitation, or other equivalent procedure,' but also to 'pardon' and 'annulment.' NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 As proposed by the Supreme Court, the rule would allow the use of prior convictions to impeach if the crime was a felony or a misdemeanor if the misdemeanor involved dishonesty or false statement. As modified by the House, the rule would admit prior convictions for impeachment purposes only if the offense, whether felony or misdemeanor, involved dishonesty or false statement. The committee has adopted a modified version of the House-passed rule. In your committee's view, the danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence. Therefore, with respect to defendants, the committee agreed with the House limitation that only offenses involving false statement or dishonesty may be used. By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully. With respect to other witnesses, in addition to any prior conviction involving false statement or dishonesty, any other felony may be used to impeach if, and only if, the court finds that the probative value of such evidence outweighs its prejudicial effect against the party offering that witness. Notwithstanding this provision, proof of any prior offense otherwise admissible under rule 404 could still be offered for the purposes sanctioned by that rule. Furthermore, the committee intends that notwithstanding this rule, a defendant's misrepresentation regarding the existence or nature of prior convictions may be met by rebuttal evidence, including the record of such prior convictions. Similarly, such records may be offered to rebut representations made by the defendant regarding his attitude toward or willingness to commit a general category of offense, although denials or other representations by the defendant regarding the specific conduct which forms the basis of the charge against him shall not make prior convictions admissible to rebut such statement. In regard to either type of representation, of course, prior convictions may be offered in rebuttal only if the defendant's statement is made in response to defense counsel's questions or is made gratuitiously in the course of cross-examination. Prior convictions may not be offered as rebuttal evidence if the prosecution has sought to circumvent the purpose of this rule by asking questions which elicit such representations from the defendant. One other clarifying amendment has been added to this subsection, that is, to provide that the admissibility of evidence of a prior conviction is permitted only upon cross-examination of a witness. It is not admissible if a person does not testify. It is to be understood, however, that a court record of a prior conviction is admissible to prove that conviction if the witness has forgotten or denies its existence. Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness. Rather than exclude all convictions over 10 years old, the committee adopted an amendment in the form of a final clause to the section granting the court discretion to admit convictions over 10 years old, but only upon a determination by the court that the probative value of the conviction supported by specific facts and circumstances, substantially outweighs its prejudicial effect. It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 609 defines when a party may use evidence of a prior conviction in order to impeach a witness. The Senate amendments make changes in two subsections of Rule 609. The House bill provides that the credibility of a witness can be attacked by proof of prior conviction of a crime only if the crime involves dishonesty or false statement. The Senate amendment provides that a witness' credibility may be attacked if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involves dishonesty or false statement, regardless of the punishment. The Conference adopts the Senate amendment with an amendment. The Conference amendment provides that the credibility of a witness, whether a defendant or someone else, may be attacked by proof of a prior conviction but only if the crime: (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted and the court determines that the probative value of the conviction outweighs its prejudicial effect to the defendant; or (2) involved dishonesty or false statement regardless of the punishment. By the phrase 'dishonesty and false statement' the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully. The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement. With regard to the discretionary standard established by paragraph (1) of rule 609(a), the Conference determined that the prejudicial effect to be weighed against the probative value of the conviction is specifically the prejudicial effect to the defendant. The danger of prejudice to a witness other than the defendant (such as injury to the witness' reputation in his community) was considered and rejected by the Conference as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible. Such evidence should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record. The House bill provides in subsection (b) that evidence of conviction of a crime may not be used for impeachment purposes under subsection (a) if more than ten years have elapsed since the date of the conviction or the date the witness was released from confinement imposed for the conviction, whichever is later. The Senate amendment permits the use of convictions older than ten years, if the court determines, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. The Conference adopts the Senate amendment with an amendment requiring notice by a party that he intends to request that the court allow him to use a conviction older than ten years. The Conferees anticipate that a written notice, in order to give the adversary a fair opportunity to contest the use of the evidence, will ordinarily include such information as the date of the conviction, the jurisdiction, and the offense or statute involved. In order to eliminate the possibility that the flexibility of this provision may impair the ability of a party-opponent to prepare for trial, the Conferees intend that the notice provision operate to avoid surprise. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1990 AMENDMENT The amendment to Rule 609(a) makes two changes in the rule. The first change removes from the rule the limitation that the conviction may only be elicited during cross-examination, a limitation that virtually every circuit has found to be inapplicable. It is common for witnesses to reveal on direct examination their convictions to 'remove the sting' of the impeachment. See e.g., United States v. Bad Cob, 560 F.2d 877 (8th Cir. 1977). The amendment does not contemplate that a court will necessarily permit proof of prior convictions through testimony, which might be time-consuming and more prejudicial than proof through a written record. Rules 403 and 611(a) provide sufficient authority for the court to protect against unfair or disruptive methods of proof. The second change effected by the amendment resolves an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than the criminal defendant. See, Green v. Bock Laundry Machine Co., 109 S. Ct. 1981, 490 U.S. 504 (1989). The amendment does not disturb the special balancing test for the criminal defendant who chooses to testify. Thus, the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice - i.e., the danger that convictions that would be excluded under Fed.R.Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes. Although the rule does not forbid all use of convictions to impeach a defendant, it requires that the government show that the probative value of convictions as impeachment evidence outweighs their prejudicial effect. Prior to the amendment, the rule appeared to give the defendant the benefit of the special balancing test when defense witnesses other than the defendant were called to testify. In practice, however, the concern about unfairness to the defendant is most acute when the defendant's own convictions are offered as evidence. Almost all of the decided cases concern this type of impeachment, and the amendment does not deprive the defendant of any meaningful protection, since Rule 403 now clearly protects against unfair impeachment of any defense witness other than the defendant. There are cases in which a defendant might be prejudiced when a defense witness is impeached. Such cases may arise, for example, when the witness bears a special relationship to the defendant such that the defendant is likely to suffer some spill-over effect from impeachment of the witness. The amendment also protects other litigants from unfair impeachment of their witnesses. The danger of prejudice from the use of prior convictions is not confined to criminal defendants. Although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well. The amendment reflects the view that it is desirable to protect all litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant. The amendment reflects a judgment that decisions interpreting Rule 609(a) as requiring a trial court to admit convictions in civil cases that have little, if anything, to do with credibility reach undesirable results. See, e.g., Diggs v. Lyons, 741 F.2d 577 (3d Cir. 1984), cert. denied, 105 S. Ct. 2157 (1985). The amendment provides the same protection against unfair prejudice arising from prior convictions used for impeachment purposes as the rules provide for other evidence. The amendment finds support in decided cases. See, e.g., Petty v. Ideco, 761 F.2d 1146 (5th Cir. 1985); Czaka v. Hickman, 703 F.2d 317 (8th Cir. 1983). Fewer decided cases address the question whether Rule 609(a) provides any protection against unduly prejudicial prior convictions used to impeach government witnesses. Some courts have read Rule 609(a) as giving the government no protection for its witnesses. See, e.g., United States v. Thorne, 547 F.2d 56 (8th Cir. 1976); United States v. Nevitt, 563 F.2d 406 (9th Cir. 1977), cert. denied, 444 U.S. 847 (1979). This approach also is rejected by the amendment. There are cases in which impeachment of government witnesses with prior convictions that have little, if anything, to do with credibility may result in unfair prejudice to the government's interest in a fair trial and unnecessary embarrassment to a witness. Fed.R.Evid. 412 already recognizes this and excluded certain evidence of past sexual behavior in the context of prosecutions for sexual assaults. The amendment applies the general balancing test of Rule 403 to protect all litigants against unfair impeachment of witnesses. The balancing test protects civil litigants, the government in criminal cases, and the defendant in a criminal case who calls other witnesses. The amendment addresses prior convictions offered under Rule 609, not for other purposes, and does not run afoul, therefore, of Davis v. Alaska, 415 U.S. 308 (1974). Davis involved the use of a prior juvenile adjudication not to prove a past law violation, but to prove bias. The defendant in a criminal case has the right to demonstrate the bias of a witness and to be assured a fair trial, but not to unduly prejudice a trier of fact. See generally Rule 412. In any case in which the trial court believes that confrontation rights require admission of impeachment evidence, obviously the Constitution would take precedence over the rule. The probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions. Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded. The amendment continues to divide subdivision (a) into subsections (1) and (2) thus facilitating retrieval under current computerized research programs which distinguish the two provisions. The Committee recommended no substantive change in subdivision (a)(2), even though some cases raise a concern about the proper interpretation of the words 'dishonesty or false statement.' These words were used but not explained in the original Advisory Committee Note accompanying Rule 609. Congress extensively debated the rule, and the Report of the House and Senate Conference Committee states that '(b)y the phrase 'dishonesty and false statement,' the Conference means crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.' The Advisory Committee concluded that the Conference Report provides sufficient guidance to trial courts and that no amendment is necessary, notwithstanding some decisions that take an unduly broad view of 'dishonesty,' admitting convictions such as for bank robbery or bank larceny. Subsection (a)(2) continues to apply to any witness, including a criminal defendant. Finally, the Committee determined that it was unnecessary to add to the rule language stating that, when a prior conviction is offered under Rule 609, the trial court is to consider the probative value of the prior conviction for impeachment, not for other purposes. The Committee concluded that the title of the rule, its first sentence, and its placement among the impeachment rules clearly establish that evidence offered under Rule 609 is offered only for purposes of impeachment. ------DocID 37223 Document 1085 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 610 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 610. Religious Beliefs or Opinions -STATUTE- Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES While the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition. Thus disclosure of affiliation with a church which is a party to the litigation would be allowable under the rule. Cf. Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203 (1938). To the same effect, though less specifically worded, is California Evidence Code Sec. 789. See 3 Wigmore Sec. 936. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37224 Document 1086 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 611 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 611. Mode and Order of Interrogation and Presentation -STATUTE- (a) Control by court. - The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. - Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. - Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). Spelling out detailed rules to govern the mode and order of interrogating witnesses presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain. Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick Sec. 5, the order of calling witnesses and presenting evidence, 6 Wigmore Sec. 1867, the use of demonstrative evidence, McCormick Sec. 179, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances. Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b). Item (3) calls for a judgement under the particular circumstances whether interrogation tactics entail harassment or undue embarrassment. Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion. McCormick Sec. 42. In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the Court pointed out that, while the trial judge should protect the witness from questions which 'go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate,' this protection by no means forecloses efforts to discredit the witness. Reference to the transcript of the prosecutor's cross-examination in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), serves to lay at rest any doubts as to the need for judicial control in this area. The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule. Subdivision (b). The tradition in the federal courts and in numerous state courts has been to limit the scope of cross-examination to matters testified to on direct, plus matters bearing upon the credibility of the witness. Various reasons have been advanced to justify the rule of limited cross-examination. (1) A party vouches for his own witness but only to the extent of matters elicited on direct. Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 675 (8th Cir. 1904), quoted in Maguire, Weinstein, et al., Cases on Evidence 277, n. 38 (5th ed. 1965). But the concept of vouching is discredited, and Rule 607 rejects it. (2) A party cannot ask his own witness leading questions. This is a problem properly solved in terms of what is necessary for a proper development of the testimony rather than by a mechanistic formula similar to the vouching concept. See discussion under subdivision (c). (3) A practice of limited cross-examination promotes orderly presentation of the case. Finch v. Weiner, 109 Conn. 616, 145 A. 31 (1929). While this latter reason has merit, the matter is essentially one of the order of presentation and not one in which involvement at the appellate level is likely to prove fruitful. See for example, Moyer v. Aetna Life Ins. Co., 126 F.2d 141 (3rd Cir. 1942); Butler v. New York Central R. Co., 253 F.2d 281 (7th Cir. 1958); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); Union Automobile Indemnity Ass'n. v. Capitol Indemnity Ins. Co., 310 F.2d 318 (7th Cir. 1962). In evaluating these considerations, McCormick says: 'The foregoing considerations favoring the wide-open or restrictive rules may well be thought to be fairly evenly balanced. There is another factor, however, which seems to swing the balance overwhelmingly in favor of the wide-open rule. This is the consideration of economy of time and energy. Obviously, the wide-open rule presents little or no opportunity for dispute in its application. The restrictive practice in all its forms, on the other hand, is productive in many court rooms, of continual bickering over the choice of the numerous variations of the 'scope of the direct' criterion, and of their application to particular cross-questions. These controversies are often reventilated on appeal, and reversals for error in their determination are frequent. Observance of these vague and ambiguous restrictions is a matter of constant and hampering concern to the cross-examiner. If these efforts, delays and misprisions were the necessary incidents to the guarding of substantive rights or the fundamentals of fair trial, they might be worth the cost. As the price of the choice of an obviously debatable regulation of the order of evidence, the sacrifice seems misguided. The American Bar Association's Committee for the Improvement of the Law of Evidence for the year 1937-38 said this: 'The rule limiting cross-examination to the precise subject of the direct examination is probably the most frequent rule (except the Opinion rule) leading in the trial practice today to refined and technical quibbles which obstruct the progress of the trial, confuse the jury, and give rise to appeal on technical grounds only. Some of the instances in which Supreme Courts have ordered new trials for the mere transgression of this rule about the order of evidence have been astounding. 'We recommend that the rule allowing questions upon any part of the issue known to the witness * * * be adopted. * * *' ' McCormick, Sec. 27, p. 51. See also 5 Moore's Federal Practice 43.10 (2nd ed. 1964). The provision of the second sentence, that the judge may in the interests of justice limit inquiry into new matters on cross-examination, is designed for those situations in which the result otherwise would be confusion, complication, or protraction of the case, not as a matter of rule but as demonstrable in the actual development of the particular case. The rule does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege against self-incrimination. The question is a constitutional one, rather than a mere matter of administering the trial. Under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), no general waiver occurs when the accused testifies on such preliminary matters as the validity of a search and seizure or the admissibility of a confession. Rule 104(d), supra. When he testifies on the merits, however, can he foreclose inquiry into an aspect or element of the crime by avoiding it on direct? The affirmative answer given in Tucker v. United States, 5 F.2d 818 (8th Cir. 1925), is inconsistent with the description of the waiver as extending to 'all other relevant facts' in Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See also Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The situation of an accused who desires to testify on some but not all counts of a multiple-count indictment is one to be approached, in the first instance at least, as a problem of severance under Rule 14 of the Federal Rules of Criminal Procedure. Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Cf. United States v. Baker, 262 F.Supp. 657, 686 (D.D.C. 1966). In all events, the extent of the waiver of the privilege against self-incrimination ought not to be determined as a by-product of a rule on scope of cross-examination. Subdivision (c). The rule continues the traditional view that the suggestive powers of the leading question are as a general proposition undesirable. Within this tradition, however, numerous exceptions have achieved recognition: The witness who is hostile, unwilling, or biased; the child witness or the adult with communication problems; the witness whose recollection is exhausted; and undisputed preliminary matters. 3 Wigmore Sec. Sec. 774-778. An almost total unwillingness to reverse for infractions has been manifested by appellate courts. See cases cited in 3 Wigmore Sec. 770. The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command. The rule also conforms to tradition in making the use of leading questions on cross-examination a matter of right. The purpose of the qualification 'ordinarily' is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the 'cross-examination' of a party by his own counsel after being called by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff. The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only 'an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.' This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration. See, for example, Maryland Casualty Co. v. Kador, 225 F.2d 120 (5th Cir. 1955), and Degelos v. Fidelity and Casualty Co., 313 F.2d 809 (5th Cir. 1963), holding despite the language of Rule 43(b) that an insured fell within it, though not a party in an action under the Louisiana direct action statute. The phrase of the rule, 'witness identified with' an adverse party, is designed to enlarge the category of persons thus callable. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 As submitted by the Court, Rule 611(b) provided: A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination. The Committee amended this provision to return to the rule which prevails in the federal courts and thirty-nine State jurisdictions. As amended, the Rule is in the text of the 1969 Advisory Committee draft. It limits cross-examination to credibility and to matters testified to on direct examination, unless the judge permits more, in which event the cross-examiner must proceed as if on direct examination. This traditional rule facilitates orderly presentation by each party at trial. Further, in light of existing discovery procedures, there appears to be no need to abandon the traditional rule. The third sentence of Rule 611(c) as submitted by the Court provided that: In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions. The Committee amended this Rule to permit leading questions to be used with respect to any hostile witness, not only an adverse party or person identified with such adverse party. The Committee also substituted the word 'When' for the phrase 'In civil cases' to reflect the possibility that in criminal cases a defendant may be entitled to call witnesses identified with the government, in which event the Committee believed the defendant should be permitted to inquire with leading questions. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Rule 611(b) as submitted by the Supreme Court permitted a broad scope of cross-examination: 'cross-examination on any matter relevant to any issue in the case' unless the judge, in the interests of justice, limited the scope of cross-examination. The House narrowed the Rule to the more traditional practice of limiting cross-examination to the subject matter of direct examination (and credibility), but with discretion in the judge to permit inquiry into additional matters in situations where that would aid in the development of the evidence or otherwise facilitate the conduct of the trial. The committee agrees with the House amendment. Although there are good arguments in support of broad cross-examination from perspectives of developing all relevant evidence, we believe the factors of insuring an orderly and predictable development of the evidence weigh in favor of the narrower rule, especially when discretion is given to the trial judge to permit inquiry into additional matters. The committee expressly approves this discretion and believes it will permit sufficient flexibility allowing a broader scope of cross-examination whenever appropriate. The House amendment providing broader discretionary cross-examination permitted inquiry into additional matters only as if on direct examination. As a general rule, we concur with this limitation, however, we would understand that this limitation would not preclude the utilization of leading questions if the conditions of subsection (c) of this rule were met, bearing in mind the judge's discretion in any case to limit the scope of cross-examination (see McCormick on Evidence, Sec. 24-26 (especially 24) (2d ed. 1972)). Further, the committee has received correspondence from Federal judges commenting on the applicability of this rule to section 1407 of title 28. It is the committee's judgment that this rule as reported by the House is flexible enough to provide sufficiently broad cross-examination in appropriate situations in multidistrict litigation. As submitted by the Supreme Court, the rule provided: 'In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions.' The final sentence of subsection (c) was amended by the House for the purpose of clarifying the fact that a 'hostile witness' - that is a witness who is hostile in fact - could be subject to interrogation by leading questions. The rule as submitted by the Supreme Court declared certain witnesses hostile as a matter of law and thus subject to interrogation by leading questions without any showing of hostility in fact. These were adverse parties or witnesses identified with adverse parties. However, the wording of the first sentence of subsection (c) while generally, prohibiting the use of leading questions on direct examination, also provides 'except as may be necessary to develop his testimony.' Further, the first paragraph of the Advisory Committee note explaining the subsection makes clear that they intended that leading questions could be asked of a hostile witness or a witness who was unwilling or biased and even though that witness was not associated with an adverse party. Thus, we question whether the House amendment was necessary. However, concluding that it was not intended to affect the meaning of the first sentence of the subsection and was intended solely to clarify the fact that leading questions are permissible in the interrogation of a witness, who is hostile in fact, the committee accepts that House amendment. The final sentence of this subsection was also amended by the House to cover criminal as well as civil cases. The committee accepts this amendment, but notes that it may be difficult in criminal cases to determine when a witness is 'identified with an adverse party,' and thus the rule should be applied with caution. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37225 Document 1087 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 612 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 612. Writing Used To Refresh Memory -STATUTE- Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either - (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The treatment of writings used to refresh recollection while on the stand is in accord with settled doctrine. McCormick Sec. 9, p. 15. The bulk of the case law has, however, denied the existence of any right to access by the opponent when the writing is used prior to taking the stand, though the judge may have discretion in the matter. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Needelman v. United States, 261 F.2d 802 (5th Cir. 1958), cert. dismissed 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980, rehearing denied 363 U.S. 858, 80 S.Ct. 1606, 4 L.Ed.2d 1739, Annot., 82 A.L.R.2d 473, 562 and 7 A.L.R.3d 181, 247. An increasing group of cases has repudiated the distinction, People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814 (1963); State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957); State v. Hunt, 25 N.J. 514, 138 A.2d 1 (1958); State v. Desolvers, 40 R.I. 89, 100, A. 64 (1917), and this position is believed to be correct. As Wigmore put it, 'the risk of imposition and the need of safeguard is just as great' in both situations. 3 Wigmore Sec. 762, p. 111. To the same effect is McCormick Sec. 9, p. 17. The purpose of the phrase 'for the purpose of testifying' is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. The purpose of the rule is the same as that of the Jencks statute, 18 U.S.C. Sec. 3500: to promote the search of credibility and memory. The same sensitivity to disclosure of government files may be involved; hence the rule is expressly made subject to the statute, subdivision (a) of which provides: 'In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of a subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.' Items falling within the purview of the statute are producible only as provided by its terms, Palermo v. United States, 360 U.S. 343, 351 (1959), and disclosure under the rule is limited similarly by the statutory conditions. With this limitation in mind, some differences of application may be noted. The Jencks statute applies only to statements of witnesses; the rule is not so limited. The statute applies only to criminal cases; the rule applies to all cases. The statute applies only to government witnesses; the rule applies to all witnesses. The statute contains no requirement that the statement be consulted for purposes of refreshment before or while testifying; the rule so requires. Since many writings would qualify under either statute or rule, a substantial overlap exists, but the identity of procedures makes this of no importance. The consequences of nonproduction by the government in a criminal case are those of the Jencks statute, striking the testimony or in exceptional cases a mistrial. 18 U.S.C. Sec. 3500(d). In other cases these alternatives are unduly limited, and such possibilities as contempt, dismissal, finding issues against the offender, and the like are available. See Rule 16(g) of the Federal Rules of Criminal Procedure and Rule 37(b) of the Federal Rules of Civil Procedure for appropriate sanctions. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 As submitted to Congress, Rule 612 provided that except as set forth in 18 U.S.C. 3500, if a witness uses a writing to refresh his memory for the purpose of testifying, 'either before or while testifying,' an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness on it, and to introduce in evidence those portions relating to the witness' testimony. The Committee amended the Rule so as still to require the production of writings used by a witness while testifying, but to render the production of writings used by a witness to refresh his memory before testifying discretionary with the court in the interests of justice, as is the case under existing federal law. See Goldman v. United States, 316 U.S. 129 (1942). The Committee considered that permitting an adverse party to require the production of writings used before testifying could result in fishing expeditions among a multitude of papers which a witness may have used in preparing for trial. The Committee intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37226 Document 1088 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 613 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 613. Prior Statements of Witnesses -STATUTE- (a) Examining witness concerning prior statement. - In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. - Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), laid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness. Abolished by statute in the country of its origin, the requirement nevertheless gained currency in the United States. The rule abolishes this useless impediment, to cross-examination. Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 246-247 (1967); McCormick Sec. 28; 4 Wigmore Sec. 1259-1260. Both oral and written statements are included. The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary. The rule does not defeat the application of Rule 1002 relating to production of the original when the contents of a writing are sought to be proved. Nor does it defeat the application of Rule 26(b)(3) of the Rules of Civil Procedure, as revised, entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily. Subdivision (b). The familiar foundation requirement that an impeaching statement first be shown to the witness before it can be proved by extrinsic evidence is preserved but with some modifications. See Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 247 (1967). The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. Under this procedure, several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement. See Comment to California Evidence Code Sec. 770. Also, dangers of oversight are reduced. See McCormick Sec. 37, p. 68. In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge. Similar provisions are found in California Evidence Code Sec. 770 and New Jersey Evidence Rule 22(b). Under principles of expression unius the rule does not apply to impeachment by evidence of prior inconsistent conduct. The use of inconsistent statements to impeach a hearsay declaration is treated in Rule 806. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37227 Document 1089 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 614 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 614. Calling and Interrogation of Witnesses by Court -STATUTE- (a) Calling by court. - The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (b) Interrogation by court. - The court may interrogate witnesses, whether called by itself or by a party. (c) Objections. - Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). While exercised more frequently in criminal than in civil cases, the authority of the judge to call witnesses is well established. McCormick Sec. 8, p. 14; Maguire, Weinstein, et al., Cases on Evidence 303-304 (5th ed. 1965); 9 Wigmore Sec. 2484. One reason for the practice, the old rule against impeaching one's own witness, no longer exists by virtue of Rule 607, supra. Other reasons remain, however, to justify the continuation of the practice of calling court's witnesses. The right to cross-examine, with all it implies, is assured. The tendency of juries to associate a witness with the party calling him, regardless of technical aspects of vouching, is avoided. And the judge is not imprisoned within the case as made by the parties. Subdivision (b). The authority of the judge to question witnesses is also well established. McCormick Sec. 8, pp. 12-13; Maguire, Weinstein, et al., Cases on Evidence 737-739 (5th ed. 1965); 3 Wigmore Sec. 784. The authority is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse. Subdivision (c). The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures. Compare the 'automatic' objection feature of Rule 605 when the judge is called as a witness. ------DocID 37228 Document 1090 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 615 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VI -HEAD- Rule 615. Exclusion of Witnesses -STATUTE- At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100-690, title VII, Sec. 7075(a), Nov. 18, 1988, 102 Stat. 4405.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. 6 Wigmore Sec. 1837-1838. The authority of the judge is admitted, the only question being whether the matter is committed to his discretion or one of right. The rule takes the latter position. No time is specified for making the request. Several categories of persons are excepted. (1) Exclusion of persons who are parties would raise serious problems of confrontation and due process. Under accepted practice they are not subject to exclusion. 6 Wigmore Sec. 1841. (2) As the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present. Most of the cases have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness. United States v. Infanzon, 235 F.2d 318 (2d Cir. 1956); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); Powell v. United States, 208 F.2d 618 (6th Cir. 1953); Jones v. United States, 252 F.Supp. 781 (W.D.Okl. 1966). Designation of the representative by the attorney rather than by the client may at first glance appear to be an inversion of the attorney-client relationship, but it may be assumed that the attorney will follow the wishes of the client, and the solution is simple and workable. See California Evidence Code Sec. 777. (3) The category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore Sec. 1841, n. 4. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in - he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent's presence is essential. Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs. This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for 'an officer or employee of a party which is not a natural person designated as its representative by its attorney.' It is our understanding that this was the intention of the House committee. It is certainly this committee's construction of the rule. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendment is technical. No substantive change is intended. 1988 AMENDMENT Pub. L. 100-690, which directed amendment of rule by inserting 'a' before 'party which is not a natural person.', could not be executed because the words 'party which is not a natural person.' did not appear. However, the word 'a' was inserted by the intervening amendment by the Court by order dated Apr. 25, 1988, eff. Nov. 1, 1988. ------DocID 37229 Document 1091 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE VII -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- ARTICLE VII. OPINIONS AND EXPERT TESTIMONY ------DocID 37230 Document 1092 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 701 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 701. Opinion Testimony by Lay Witnesses -STATUTE- If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event. Limitation (a) is the familiar requirement of first-hand knowledge or observation. Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. McCormick Sec. 11. Moreover, the practical impossibility of determinating by rule what is a 'fact,' demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. 7 Wigmore Sec. 1919. The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. See Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 415-417 (1952). If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule. The language of the rule is substantially that of Uniform. Rule 56(1). Similar provisions are California Evidence Code Sec. 800; Kansas Code of Civil Procedure Sec. 60-456(a); New Jersey Evidence Rule 56(1). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37231 Document 1093 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 702 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 702. Testimony by Experts -STATUTE- If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness, although there are other techniques for supplying it. Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. See Rules 703 to 705. Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. 'There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.' Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore Sec. 1918. The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by 'knowledge, skill, experience, training or education.' Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called 'skilled' witnesses, such as bankers or landowners testifying to land values. ------DocID 37232 Document 1094 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 703 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 703. Bases of Opinion Testimony by Experts -STATUTE- The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962). Whether he must first relate his observations is treated in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick Sec. 15. A similar provision is California Evidence Code Sec. 801(b). The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved. See Judge Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963) See also Blum et al, The Art of Opinion Research: A Lawyer's Appraisal of an Emerging Service, 24 U.Chi.L.Rev. 1 (1956); Bonynge, Trademark Surveys and Techniques and Their Use in Litigation, 48 A.B.A.J. 329 (1962); Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L.Q. 322 (1960); Annot., 76 A.L.R.2d 919. If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data 'be of a type reasonably relied upon by experts in the particular field.' The language would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied. See Comment, Cal.Law Rev.Comm'n, Recommendation Proposing an Evidence Code 148-150 (1965). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37233 Document 1095 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 704 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 704. Opinion on Ultimate Issue -STATUTE- (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Pub. L. 98-473, title II, Sec. 406, Oct. 12, 1984, 98 Stat. 2067.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called 'ultimate issue' rule is specifically abolished by the instant rule. The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues, as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore Sec. 1920, 1921; McCormick Sec. 12. The basis usually assigned for the rule, to prevent the witness from 'usurping the province of the jury,' is aptly characterized as 'empty rhetoric.' 7 Wigmore Sec. 1920, p. 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the rule. Thus a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standard. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of 'might or could,' rather than 'did,' though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible. Many modern decisions illustrate the trend to abandon the rule completely. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944), whether abortion necessary to save life of patient; Clifford-Jacobs Forging Co. v. Industrial Comm., 19 Ill.2d 236, 166 N.E.2d 582 (1960), medical causation; Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529 (1941), proper method of shoring ditch; Schweiger v. Solbeck, 191 Or. 454, 230 P.2d 195 (1951), cause of landslide. In each instance the opinion was allowed. The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, 'Did T have capacity to make a will?' would be excluded, while the question, 'Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?' would be allowed. McCormick Sec. 12. For similar provisions see Uniform Rule 56(4); California Evidence Code Sec. 805; Kansas Code of Civil Procedures Sec. 60-456(d); New Jersey Evidence Rule 56(3). 1984 AMENDMENT Pub. L. 98-473 designated existing provisions as subd. (a), inserted 'Except as provided in subdivision (b)', and added subd. (b). ------DocID 37234 Document 1096 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 705 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 705. Disclosure of Facts or Data Underlying Expert Opinion -STATUTE- The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The hypothetical question has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case, and as complex and time consuming. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426-427 (1952). While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his opinion on data furnished him at secondhand or observed by him at firsthand. The elimination of the requirement of preliminary disclosure at the trial of underlying facts or data has a long background of support. In 1937 the Commissioners on Uniform State Laws incorporated a provision to this effect in the Model Expert Testimony Act, which furnished the basis for Uniform Rules 57 and 58. Rule 4515, N.Y. CPLR (McKinney 1963), provides: 'Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data * * *,' See also California Evidence Code Sec. 802; Kansas Code of Civil Procedure Sec. 60-456, 60-457; New Jersey Evidence Rules 57, 58. If the objection is made that leaving it to the cross-examiner to bring out the supporting data is essentially unfair, the answer is that he is under no compulsion to bring out any facts or data except those unfavorable to the opinion. The answer assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination. This advance knowledge has been afforded, though imperfectly, by the traditional foundation requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as revised, provides for substantial discovery in this area, obviating in large measure the obstacles which have been raised in some instances to discovery of findings, underlying data, and even the identity of the experts. Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455 (1962). These safeguards are reinforced by the discretionary power of the judge to require preliminary disclosure in any event. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37235 Document 1097 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 706 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VII -HEAD- Rule 706. Court Appointed Experts -STATUTE- (a) Appointment. - The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. (b) Compensation. - Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. (c) Disclosure of appointment. - In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (d) Parties' experts of own selection. - Nothing in this rule limits the parties in calling expert witnesses of their own selection. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern. Though the contention is made that court appointed experts acquire an aura of infallibility to which they are not entitled. Levy, Impartial Medical Testimony - Revisited, 34 Temple L.Q. 416 (1961), the trend is increasingly to provide for their use. While experience indicates that actual appointment is a relatively infrequent occurrence, the assumption may be made that the availability of the procedure in itself decreases the need for resorting to it. The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services. The inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned. Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962); Danville Tobacco Assn. v. Bryant-Buckner Associates, Inc., 333 F.2d 202 (4th Cir. 1964); Sink, The Unused Power of a Federal Judge to Call His Own Expert Witnesses, 29 S.Cal.L.Rev. 195 (1956); 2 Wigmore Sec. 563, 9 Id. Sec. 2484; Annot., 95 A.L.R.2d 383. Hence the problem becomes largely one of detail. The New York plan is well known and is described in Report by Special Committee of the Association of the Bar of the City of New York: Impartial Medical Testimony (1956). On recommendation of the Section of Judicial Administration, local adoption of an impartial medical plan was endorsed by the American Bar Association. 82 A.B.A.Rep. 184-185 (1957). Descriptions and analyses of plans in effect in various parts of the country are found in Van Dusen, A United States District Judge's View of the Impartial Medical Expert System, 322 F.R.D. 498 (1963); Wick and Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins. Counsel J. 115 (1967); and numerous articles collected in Klein, Judicial Administration and the Legal Profession 393 (1963). Statutes and rules include California Evidence Code Sec. 730-733; Illinois Supreme Court Rule 215(d), Ill.Rev.Stat.1969, c. 110A, Sec. 215(d); Burns Indiana Stats. 1956, Sec. 9-1702; Wisconsin Stats.Annot.1958, Sec. 957.27. In the federal practice, a comprehensive scheme for court appointed experts was initiated with the adoption of Rule 28 of the Federal Rules of Criminal Procedure in 1946. The Judicial Conference of the United States in 1953 considered court appointed experts in civil cases, but only with respect to whether they should be compensated from public funds, a proposal which was rejected. Report of the Judicial Conference of the United States 23 (1953). The present rule expands the practice to include civil cases. Subdivision (a) is based on Rule 28 of the Federal Rules of Criminal Procedure, with a few changes, mainly in the interest of clarity. Language has been added to provide specifically for the appointment either on motion of a party or on the judge's own motion. A provision subjecting the court appointed expert to deposition procedures has been incorporated. The rule has been revised to make definite the right of any party, including the party calling him, to cross-examine. Subdivision (b) combines the present provision for compensation in criminal cases with what seems to be a fair and feasible handling of civil cases, originally found in the Model Act and carried from there into Uniform Rule 60. See also California Evidence Code Sec. 730-731. The special provision for Fifth Amendment compensation cases is designed to guard against reducing constitutionally guaranteed just compensation by requiring the recipient to pay costs. See Rule 71A(l) of the Rules of Civil Procedure. Subdivision (c) seems to be essential if the use of court appointed experts is to be fully effective. Uniform Rule 61 so provides. Subdivision (d) is in essence the last sentence of Rule 28(a) of the Federal Rules of Criminal Procedure. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37236 Document 1098 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE VIII -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- ARTICLE VIII. HEARSAY -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES INTRODUCTORY NOTE: THE HEARSAY PROBLEM The factors to be considered in evaluating the testimony of a witness are perception, memory, and narration. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948), Selected Writings on Evidence and Trial 764, 765 (Fryer ed. 1957); Shientag, Cross-Examination - A Judge's Viewpoint, 3 Record 12 (1948); Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 485 (1937), Selected Writings, supra, 756, 757: Weinstein, Probative Force of Hearsay, 46 Iowa L.Rev. 331 (1961). Sometimes a fourth is added, sincerity, but in fact it seems merely to be an aspect of the three already mentioned. In order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify: (1) under oath, (2) in the personal presence of the trier of fact, (3) subject to cross-examination. (1) Standard procedure calls for the swearing of witnesses. While the practice is perhaps less effective than in an earlier time, no disposition to relax the requirement is apparent, other than to allow affirmation by persons with scruples against taking oaths. (2) The demeanor of the witness traditionally has been believed to furnish trier and opponent with valuable clues. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Sahm, Demeanor Evidence: Elusive and Intangible Imponderables, 47 A.B.A.J. 580 (1961), quoting numerous authorities. The witness himself will probably be impressed with the solemnity of the occasion and the possibility of public disgrace. Willingness to falsify may reasonably become more difficult in the presence of the person against whom directed. Rules 26 and 43(a) of the Federal Rules of Criminal and Civil Procedure, respectively, include the general requirement that testimony be taken orally in open court. The Sixth Amendment right of confrontation is a manifestation of these beliefs and attitudes. (3) Emphasis on the basis of the hearsay rule today tends to center upon the condition of cross-examination. All may not agree with Wigmore that cross-examination is 'beyond doubt the greatest legal engine ever invented for the discovery of truth,' but all will agree with his statement that it has become a 'vital feature' of the Anglo-American system. 5 Wigmore Sec. 1367, p. 29. The belief, or perhaps hope, that cross-examination is effective in exposing imperfections of perception, memory, and narration is fundamental. Morgan, Foreword to Model Code of Evidence 37 (1942). The logic of the preceding discussion might suggest that no testimony be received unless in full compliance with the three ideal conditions. No one advocates this position. Common sense tells that much evidence which is not given under the three conditions may be inherently superior to much that is. Moreover, when the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without. The problem thus resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions. The solution evolved by the common law has been a general rule excluding hearsay but subject to numerous exceptions under circumstances supposed to furnish guarantees of trustworthiness. Criticisms of this scheme are that it is bulky and complex, fails to screen good from bad hearsay realistically, and inhibits the growth of the law of evidence. Since no one advocates excluding all hearsay, three possible solutions may be considered: (1) abolish the rule against hearsay and admit all hearsay; (2) admit hearsay possessing sufficient probative force, but with procedural safeguards; (3) revise the present system of class exceptions. (1) Abolition of the hearsay rule would be the simplest solution. The effect would not be automatically to abolish the giving of testimony under ideal conditions. If the declarant were available, compliance with the ideal conditions would be optional with either party. Thus the proponent could call the declarant as a witness as a form of presentation more impressive than his hearsay statement. Or the opponent could call the declarant to be cross-examined upon his statement. This is the tenor of Uniform Rule 63(1), admitting the hearsay declaration of a person 'who is present at the hearing and available for cross-examination.' Compare the treatment of declarations of available declarants in Rule 801(d)(1) of the instant rules. If the declarant were unavailable, a rule of free admissibility would make no distinctions in terms of degrees of noncompliance with the ideal conditions and would exact no liquid pro quo in the form of assurances of trustworthiness. Rule 503 of the Model Code did exactly that, providing for the admissibility of any hearsay declaration by an unavailable declarant, finding support in the Massachusetts act of 1898, enacted at the instance of Thayer, Mass.Gen.L.1932, c. 233 Sec. 65, and in the English act of 1938, St.1938, c. 28, Evidence. Both are limited to civil cases. The draftsmen of the Uniform Rules chose a less advanced and more conventional position. Comment, Uniform Rule 63. The present Advisory Committee has been unconvinced of the wisdom of abandoning the traditional requirement of some particular assurance of credibility as a condition precedent to admitting the hearsay declaration of an unavailable declarant. In criminal cases, the Sixth Amendment requirement of confrontation would no doubt move into a large part of the area presently occupied by the hearsay rule in the event of the abolition of the latter. The resultant split between civil and criminal evidence is regarded as an undesirable development. (2) Abandonment of the system of class exceptions in favor of individual treatment in the setting of the particular case, accompanied by procedural safeguards, has been impressively advocated. Weinstein, The Probative Force of Hearsay, 46 Iowa L.Rev. 331 (1961). Admissibility would be determined by weighing the probative force of the evidence against the possibility of prejudice, waste of time, and the availability of more satisfactory evidence. The bases of the traditional hearsay exceptions would be helpful in assessing probative force. Ladd, The Relationship of the Principles of Exclusionary Rules of Evidence to the Problem of Proof, 18 Minn.L.Rev. 506 (1934). Procedural safeguards would consist of notice of intention to use hearsay, free comment by the judge on the weight of the evidence, and a greater measure of authority in both trial and appellate judges to deal with evidence on the basis of weight. The Advisory Committee has rejected this approach to hearsay as involving too great a measure of judicial discretion, minimizing the predictability of rulings, enhancing the difficulties of preparation for trial, adding a further element to the already over-complicated congeries of pre-trial procedures, and requiring substantially different rules for civil and criminal cases. The only way in which the probative force of hearsay differs from the probative force of other testimony is in the absence of oath, demeanor, and cross-examination as aids in determining credibility. For a judge to exclude evidence because he does not believe it has been described as 'altogether atypical, extraordinary. * * *' Chadbourn, Bentham and the Hearsay Rule - A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv.L.Rev. 932, 947 (1962). (3) The approach to hearsay in these rules is that of the common law, i.e., a general rule excluding hearsay, with exceptions under which evidence is not required to be excluded even though hearsay. The traditional hearsay exceptions are drawn upon for the exceptions, collected under two rules, one dealing with situations where availability of the declarant is regarded as immaterial and the other with those where unavailability is made a condition to the admission of the hearsay statement. Each of the two rules concludes with a provision for hearsay statements not within one of the specified exceptions 'but having comparable circumstantial guarantees of trustworthiness.' Rules 803(24) and 804(b)(6). This plan is submitted as calculated to encourage growth and development in this area of the law, while conserving the values and experience of the past as a guide to the future. CONFRONTATION AND DUE PROCESS Until very recently, decisions invoking the confrontation clause of the Sixth Amendment were surprisingly few, a fact probably explainable by the former inapplicability of the clause to the states and by the hearsay rule's occupancy of much the same ground. The pattern which emerges from the earlier cases invoking the clause is substantially that of the hearsay rule, applied to criminal cases: an accused is entitled to have the witnesses against him testify under oath, in the presence of himself and trier, subject to cross-examination; yet considerations of public policy and necessity require the recognition of such exceptions as dying declarations and former testimony of unavailable witnesses. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68 L.Ed. 462 (1924). Beginning with Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court began to speak of confrontation as an aspect of procedural due process, thus extending its applicability to state cases and to federal cases other than criminal. The language of Snyder was that of an elastic concept of hearsay. The deportation case of Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), may be read broadly as imposing a strictly construed right of confrontation in all kinds of cases or narrowly as the product of a failure of the Immigration and Naturalization Service to follow its own rules. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), ruled that cross-examination was essential to due process in a state contempt proceeding, but in United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953), the court held that it was not an essential aspect of a 'hearing' for a conscientious objector under the Selective Service Act. Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), disclaimed any purpose to read the hearsay rule into the Fourteenth Amendment, but in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), revocation of security clearance without confrontation and cross-examination was held unauthorized, and a similar result was reached in Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). Ascertaining the constitutional dimensions of the confrontation-hearsay aggregate against the background of these cases is a matter of some difficulty, yet the general pattern is at least not inconsistent with that of the hearsay rule. In 1965 the confrontation clause was held applicable to the states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Prosecution use of former testimony given at a preliminary hearing where petitioner was not represented by counsel was a violation of the clause. The same result would have followed under conventional hearsay doctrine read in the light of a constitutional right to counsel, and nothing in the opinion suggests any difference in essential outline between the hearsay rule and the right of confrontation. In the companion case of Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), however, the result reached by applying the confrontation clause is one reached less readily via the hearsay rule. A confession implicating petitioner was put before the jury by reading it to the witness in portions and asking if he made that statement. The witness refused to answer on grounds of self-incrimination. The result, said the Court, was to deny cross-examination, and hence confrontation. True, it could broadly be said that the confession was a hearsay statement which for all practical purposes was put in evidence. Yet a more easily accepted explanation of the opinion is that its real thrust was in the direction of curbing undesirable prosecutorial behavior, rather than merely applying rules of exclusion, and that the confrontation clause was the means selected to achieve this end. Comparable facts and a like result appeared in Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). The pattern suggested in Douglas was developed further and more distinctly in a pair of cases at the end of the 1966 term. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), hinged upon practices followed in identifying accused persons before trial. This pretrial identification was said to be so decisive an aspect of the case that accused was entitled to have counsel present; a pretrial identification made in the absence of counsel was not itself receivable in evidence and, in addition, might fatally infect a courtroom identification. The presence of counsel at the earlier identification was described as a necessary prerequisite for 'a meaningful confrontation at trial.' United States v. Wade, supra, 388 U.S. at p. 236, 87 S.Ct. at p. 1937. Wade involved no evidence of the fact of a prior identification and hence was not susceptible of being decided on hearsay grounds. In Gilbert, witnesses did testify to an earlier identification, readily classifiable as hearsay under a fairly strict view of what constitutes hearsay. The Court, however, carefully avoided basing the decision on the hearsay ground, choosing confrontation instead. 388 U.S. 263, 272, n. 3, 87 S.Ct. 1951. See also Parker v. Gladden, 385 U.S. 363 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), holding that the right of confrontation was violated when the bailiff made prejudicial statements to jurors, and Note, 75, Yale L.J. 1434 (1966). Under the earlier cases, the confrontation clause may have been little more than a constitutional embodiment of the hearsay rule, even including traditional exceptions but with some room for expanding them along similar lines. But under the recent cases the impact of the clause clearly extends beyond the confines of the hearsay rule. These considerations have led the Advisory Committee to conclude that a hearsay rule can function usefully as an adjunct to the confrontation right in constitutional areas and independently in nonconstitutional areas. In recognition of the separateness of the confrontation clause and the hearsay rule, and to avoid inviting collisions between them or between the hearsay rule and other exclusionary principles, the exceptions set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility. See Uniform Rule 63(1) to (31) and California Evidence Code Sec. 1200-1340. ------DocID 37237 Document 1099 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 801 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 801. Definitions -STATUTE- The following definitions apply under this article: (a) Statement. - A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. - A 'declarant' is a person who makes a statement. (c) Hearsay. - 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. - A statement is not hearsay if - (1) Prior statement by witness. - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or (2) Admission by party-opponent. - The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Pub. L. 94-113, Sec. 1, Oct. 16, 1975, 89 Stat. 576; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). The definition of 'statement' assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one. It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of 'statement.' Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The 'Hear-Say' Rule as a 'See-Do' Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c). When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 765-767 (1961). For similar approaches, see Uniform Rule 62(1); California Evidence Code Sec. 225, 1200; Kansas Code of Civil Procedure Sec. 60-459(a); New Jersey Evidence Rule 62(1) Subdivision (c). The definition follows along familiar lines in including only statements offered to prove the truth of the matter asserted. McCormick Sec. 225; 5 Wigmore Sec. 1361, 6 id. Sec. 1766. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. Emich Motors Corp. v. General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev'd on other grounds 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed 534, letters of complaint from customers offered as a reason for cancellation of dealer's franchise, to rebut contention that franchise was revoked for refusal to finance sales through affiliated finance company. The effect is to exclude from hearsay the entire category of 'verbal acts' and 'verbal parts of an act,' in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights. The definition of hearsay must, of course, be read with reference to the definition of statement set forth in subdivision (a). Testimony given by a witness in the course of court proceedings is excluded since there is compliance with all the ideal conditions for testifying. Subdivision (d). Several types of statements which would otherwise literally fall within the definition are expressly excluded from it: (1) Prior statement by witness. Considerable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination concerning it, under oath and in the presence of the trier of fact, should be classed as hearsay. If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem. The hearsay problem arises when the witness on the stand denies having made the statement or admits having made it but denies its truth. The argument in favor of treating these latter statements as hearsay is based upon the ground that the conditions of oath, cross-examination, and demeanor observation did not prevail at the time the statement was made and cannot adequately be supplied by the later examination. The logic of the situation is troublesome. So far as concerns the oath, its mere presence has never been regarded as sufficient to remove a statement from the hearsay category, and it receives much less emphasis than cross-examination as a truth-compelling device. While strong expressions are found to the effect that no conviction can be had or important right taken away on the basis of statements not made under fear of prosecution for perjury, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), the fact is that, of the many common law exceptions to the hearsay rule, only that for reported testimony has required the statement to have been made under oath. Nor is it satisfactorily explained why cross-examination cannot be conducted subsequently with success. The decisions contending most vigorously for its inadequacy in fact demonstrate quite thorough exploration of the weaknesses and doubts attending the earlier statement. State v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939); Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967); People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968). In respect to demeanor, as Judge Learned Hand observed in Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925), when the jury decides that the truth is not what the witness says now, but what he said before, they are still deciding from what they see and hear in court. The bulk of the case law nevertheless has been against allowing prior statements of witnesses to be used generally as substantive evidence. Most of the writers and Uniform Rule 63(1) have taken the opposite position. The position taken by the Advisory Committee in formulating this part of the rule is founded upon an unwillingness to countenance the general use of prior prepared statements as substantive evidence, but with a recognition that particular circumstances call for a contrary result. The judgment is one more of experience than of logic. The rule requires in each instance, as a general safeguard, that the declarant actually testify as a witness, and it then enumerates three situations in which the statement is excepted from the category of hearsay. Compare Uniform Rule 63(1) which allows any out-of-court statement of a declarant who is present at the trial and available for cross-examination. (A) Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Under the rule they are substantive evidence. As has been said by the California Law Revision Commission with respect to a similar provision: 'Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the 'turncoat' witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.' Comment, California Evidence Code Sec. 1235. See also McCormick Sec. 39. The Advisory Committee finds these views more convincing than those expressed in People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968). The constitutionality of the Advisory Committee's view was upheld in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Moreover, the requirement that the statement be inconsistent with the testimony given assures a thorough exploration of both versions while the witness is on the stand and bars any general and indiscriminate use of previously prepared statements. (B) Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally. (C) The admission of evidence of identification finds substantial support, although it falls beyond a doubt in the category of prior out-of-court statements. Illustrative are People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963); California Evidence Code Sec. 1238; New Jersey Evidence Rule 63(1)(c); N.Y. Code of Criminal Procedure Sec. 393-b. Further cases are found in 4 Wigmore Sec. 1130. The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions. The Supreme Court considered the admissibility of evidence of prior identification in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Exclusion of lineup identification was held to be required because the accused did not then have the assistance of counsel. Significantly, the Court carefully refrained from placing its decision on the ground that testimony as to the making of a prior out-of-court identification ('That's the man') violated either the hearsay rule or the right of confrontation because not made under oath, subject to immediate cross-examination, in the presence of the trier. Instead the Court observed: 'There is a split among the States concerning the admissibility of prior extra-judicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 ALR2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at the trial. See 5 ALR2d Later Case Service 1225-1228. * * *' 388 U.S. at 272, n. 3, 87 S.Ct. at 1956. (2) Admissions. Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore Sec. 1048. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility. The rule specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against him: (A) A party's own statement is the classic example of an admission. If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required; the statement need only be relevant to represent affairs. To the same effect in California Evidence Code Sec. 1220. Compare Uniform Rule 63(7), requiring a statement to be made in a representative capacity to be admissible against a party in a representative capacity. (B) Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: 'X is a reliable person and knows what he is talking about.' See McCormick Sec. 246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior. In civil cases, the results have generally been satisfactory. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that 'anything you say may be used against you'; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties. Hence the rule contains no special provisions concerning failure to deny in criminal cases. (C) No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be argued that the agent authorized to make statements to his principal does not speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party's books or records are usable against him, without regard to any intent to disclose to third persons. 5 Wigmore Sec. 1557. See also McCormick Sec. 78, pp. 159-161. In accord is New Jersey Evidence Rule 63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code Sec. 1222 which limit status as an admission in this regard to statements authorized by the party to be made 'for' him, which is perhaps an ambiguous limitation to statements to third persons. Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L. Rev. 855, 860-861 (1961). (D) The tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment. Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, 784 (1961); Martin v. Savage Truck Lines, Inc., 121 F.Supp. 417 (D.D.C. 1054), and numerous state court decisions collected in 4 Wigmore, 1964 Supp., pp. 66-73, with comments by the editor that the statements should have been excluded as not within scope of agency. For the traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347 F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar provisions are found in Uniform Rule 63(9)(a), Kansas Code of Civil Procedure Sec. 60-460(i)(1), and New Jersey Evidence Rule 63(9)(a). (E) The limitation upon the admissibility of statements of co-conspirators to those made 'during the course and in furtherance of the conspiracy' is in the accepted pattern. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. See Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For similarly limited provisions see California Evidence Code Sec. 1223 and New Jersey Rule 63(9)(b). Cf. Uniform Rule 63(9)(b). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Present federal law, except in the Second Circuit, permits the use of prior inconsistent statements of a witness for impeachment only. Rule 801(d)(1) as proposed by the Court would have permitted all such statements to be admissible as substantive evidence, an approach followed by a small but growing number of State jurisdictions and recently held constitutional in California v. Green, 399 U.S. 149 (1970). Although there was some support expressed for the Court Rule, based largely on the need to counteract the effect of witness intimidation in criminal cases, the Committee decided to adopt a compromise version of the Rule similar to the position of the Second Circuit. The Rule as amended draws a distinction between types of prior inconsistent statements (other than statements of identification of a person made after perceiving him which are currently admissible, see United States v. Anderson, 406 F.2d 719, 720 (4th Cir.), cert. denied, 395 U.S. 967 (1969)) and allows only those made while the declarant was subject to cross-examination at a trial or hearing or in a deposition, to be admissible for their truth. Compare United States v. DeSisto, 329 F.2d 929 (2nd Cir.), cert. denied, 377 U.S. 979 (1964); United States v. Cunningham, 446 F.2d 194 (2nd Cir. 1971) (restricting the admissibility of prior inconsistent statements as substantive evidence to those made under oath in a formal proceeding, but not requiring that there have been an opportunity for cross-examination). The rationale for the Committee's decision is that (1) unlike in most other situations involving unsworn or oral statements, there can be no dispute as to whether the prior statement was made; and (2) the context of a formal proceeding, an oath, and the opportunity for cross-examination provide firm additional assurances of the reliability of the prior statement. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Rule 801 defines what is and what is not hearsay for the purpose of admitting a prior statement as substantive evidence. A prior statement of a witness at a trial or hearing which is inconsistent with his testimony is, of course, always admissible for the purpose of impeaching the witness' credibility. As submitted by the Supreme Court, subdivision (d)(1)(A) made admissible as substantive evidence the prior statement of a witness inconsistent with his present testimony. The House severely limited the admissibility of prior inconsistent statements by adding a requirement that the prior statement must have been subject to cross-examination, thus precluding even the use of grand jury statements. The requirement that the prior statement must have been subject to cross-examination appears unnecessary since this rule comes into play only when the witness testifies in the present trial. At that time, he is on the stand and can explain an earlier position and be cross-examined as to both. The requirement that the statement be under oath also appears unnecessary. Notwithstanding the absence of an oath contemporaneous with the statement, the witness, when on the stand, qualifying or denying the prior statement, is under oath. In any event, of all the many recognized exceptions to the hearsay rule, only one (former testimony) requires that the out-of-court statement have been made under oath. With respect to the lack of evidence of the demeanor of the witness at the time of the prior statement, it would be difficult to improve upon Judge Learned Hand's observation that when the jury decides that the truth is not what the witness says now but what he said before, they are still deciding from what they see and hear in court (Di Carlo v. U.S., 6 F.2d 364 (2d Cir. 1925)). The rule as submitted by the Court has positive advantages. The prior statement was made nearer in time to the events, when memory was fresher and intervening influences had not been brought into play. A realistic method is provided for dealing with the turncoat witness who changes his story on the stand (see Comment, California Evidence Code Sec. 1235; McCormick, Evidence, Sec. 38 (2nd ed. 1972)). New Jersey, California, and Utah have adopted a rule similar to this one; and Nevada, New Mexico, and Wisconsin have adopted the identical Federal rule. For all of these reasons, we think the House amendment should be rejected and the rule as submitted by the Supreme Court reinstated. (It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate). As submitted by the Supreme Court and as passed by the House, subdivision (d)(1)(c) of rule 801 made admissible the prior statement identifying a person made after perceiving him. The committee decided to delete this provision because of the concern that a person could be convicted solely upon evidence admissible under this subdivision. The House approved the long-accepted rule that 'a statement by a coconspirator of a party during the course and in furtherance of the conspiracy' is not hearsay as it was submitted by the Supreme Court. While the rule refers to a coconspirator, it is this committee's understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged. United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert. denied 393 U.S. 913 (1968); United States v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 1969). NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 801 supplies some basic definitions for the rules of evidence that deal with hearsay. Rule 801(d)(1) defines certain statements as not hearsay. The Senate amendments make two changes in it. The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and if the statement is inconsistent with his testimony and was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Senate amendment drops the requirement that the prior statement be given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Conference adopts the Senate amendment with an amendment, so that the rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury. Prior inconsistent statements may, of course, be used for impeaching the credibility of a witness. When the prior inconsistent statement is one made by a defendant in a criminal case, it is covered by Rule 801(d)(2). The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. The Senate amendment eliminated this provision. The Conference adopts the Senate amendment. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1975 AMENDMENT Subd. (d)(1). Pub. L. 94-113 added cl. (C). EFFECTIVE DATE OF 1975 AMENDMENT Section 2 of Pub. L. 94-113 provided that: 'This Act (enacting subd. (d)(1)(C)) shall become effective on the fifteenth day after the date of the enactment of this Act (Oct. 16, 1975).' ------DocID 37238 Document 1100 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 802 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 802. Hearsay Rule -STATUTE- Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The provision excepting from the operation of the rule hearsay which is made admissible by other rules adopted by the Supreme Court or by Act of Congress continues the admissibility thereunder of hearsay which would not qualify under these Evidence Rules. The following examples illustrate the working of the exception: -CROSS- FEDERAL RULES OF CIVIL PROCEDURE Rule 4(g): proof of service by affidavit. Rule 32: admissibility of depositions. Rule 43(e): affidavits when motion based on facts not appearing of record. Rule 56: affidavits in summary judgment proceedings. Rule 65(b): showing by affidavit for temporary restraining order. FEDERAL RULES OF CRIMINAL PROCEDURE Rule 4(a): affidavits to show grounds for issuing warrants. Rule 12(b)(4): affidavits to determine issues of fact in connection with motions. CROSS REFERENCES 10 U.S.C. Sec. 7730: affidavits of unavailable witnesses in actions for damages caused by vessel in naval service, or towage or salvage of same, when taking of testimony or bringing of action delayed or stayed on security grounds. 29 U.S.C. Sec. 161(4): affidavit as proof of service in NLRB proceedings. 38 U.S.C. Sec. 5206: affidavit as proof of posting notice of sale of unclaimed property by Veterans Administration. ------DocID 37239 Document 1101 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 803 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial -STATUTE- The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited utterance. - A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (3) Then existing mental, emotional, or physical condition. - A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (4) Statements for purposes of medical diagnosis or treatment. - Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (5) Recorded recollection. - A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. (6) Records of regularly conducted activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). - Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. (8) Public records and reports. - Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (9) Records of vital statistics. - Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) Absence of public record or entry. - To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. (11) Records of religious organizations. - Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Marriage, baptismal, and similar certificates. - Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. (13) Family records. - Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) Records of documents affecting an interest in property. - The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (15) Statements in documents affecting an interest in property. - A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (16) Statements in ancient documents. - Statements in a document in existence twenty years or more the authenticity of which is established. (17) Market reports, commercial publications. - Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. (18) Learned treatises. - To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (19) Reputation concerning personal or family history. - Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. (20) Reputation concerning boundaries or general history. - Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. (21) Reputation as to character. - Reputation of a person's character among associates or in the community. (22) Judgment of previous conviction. - Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgment as to personal, family, or general history, or boundaries. - Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. (24) Other exceptions. - A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939; Pub. L. 94-149, Sec. 1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration. The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with revision where modern developments and conditions are believed to make that course appropriate. In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his statement or be inferable from circumstances. See Rule 602. Exceptions (1) and (2). In considerable measure these two examples overlap, though based on somewhat different theories. The most significant practical difference will lie in the time lapse allowable between event and statement. The underlying theory of Exception (paragraph) (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. Morgan, Basic Problems of Evidence 340-341 (1962). The theory of Exception (paragraph) (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore Sec. 1747, p. 135. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling. While the theory of Exception (paragraph) (2) has been criticized on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication, Hutchins and Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Colum.L.Rev. 432 (1928), it finds support in cases without number. See cases in 6 Wigmore Sec. 1750; Annot., 53 A.L.R.2d 1245 (statements as to cause of or responsibility for motor vehicle accident); Annot., 4 A.L.R.3d 149 (accusatory statements by homicide victims). Since unexciting events are less likely to evoke comment, decisions involving Exception (paragraph) (1) are far less numerous. Illustrative are Tampa Elec. Co. v. Getrost, 151 Fla. 558, 10 So.2d 83 (1942); Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942); and cases cited in McCormick Sec. 273, p. 585, n. 4. With respect to the time element, Exception (paragraph) (1) recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable. Under Exception (paragraph) (2) the standard of measurement is the duration of the state of excitement. 'How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.' Slough, Spontaneous Statements and State of Mind, 46 Iowa L.Rev. 224, 243 (1961); McCormick Sec. 272, p. 580. Participation by the declarant is not required: a nonparticipant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor. Slough, supra; McCormick, supra; 6 Wigmore Sec. 1755; Annot., 78 A.L.R.2d 300. Whether proof of the startling event may be made by the statement itself is largely an academic question, since in most cases there is present at least circumstantial evidence that something of a startling nature must have occurred. For cases in which the evidence consists of the condition of the declarant (injuries, state of shock), see Insurance Co. v. Mosely, 75 U.S. (8 Wall.), 397, 19 L.Ed. 437 (1869); Wheeler v. United States, 93 U.S.A.App. D.C. 159, 211 F.2d 19 (1953); cert. denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir. 1955); Lampe v. United States, 97 U.S.App.D.C. 160, 229 F.2d 43 (1956). Nevertheless, on occasion the only evidence may be the content of the statement itself, and rulings that it may be sufficient are described as 'increasing,' Slough, supra at 246, and as the 'prevailing practice,' McCormick Sec. 272, p. 579. Illustrative are Armour & Co. v. Industrial Commission, 78 Colo. 569, 243 P. 546 (1926); Young v. Stewart, 191 N.C. 297, 131 S.E. 735 (1926). Moreover, under Rule 104(a) the judge is not limited by the hearsay rule in passing upon preliminary questions of fact. Proof of declarant's perception by his statement presents similar considerations when declarant is identified. People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result which would under appropriate circumstances be consistent with the rule. Permissible subject matter of the statement is limited under Exception (paragraph) (1) to description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther. In Exception (paragraph) (2), however, the statement need only 'relate' to the startling event or condition, thus affording a broader scope of subject matter coverage. 6 Wigmore Sec. 1750, 1754. See Sanitary Grocery Co. v. Snead, 67 App.D.C. 129, 90 F.2d 374 (1937), slip-and-fall case sustaining admissibility of clerk's statement, 'That has been on the floor for a couple of hours,' and Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957), upholding admission, on issue of driver's agency, of his statement that he had to call on a customer and was in a hurry to get home. Quick, Hearsay, Excitement, Necessity and the Uniform Rules: A Reappraisal of Rule 63(4), 6 Wayne L.Rev. 204, 206-209 (1960). Similar provisions are found in Uniform Rule 63(4)(a) and (b); California Evidence Code Sec. 1240 (as to Exception (2) only); Kansas Code of Civil Procedure Sec. 60-460(d)(1) and (2); New Jersey Evidence Rule 63(4). Exception (3) is essentially a specialized application of Exception (paragraph) (1), presented separately to enhance its usefulness and accessibility. See McCormick Sec. 265, 268. The exclusion of 'statements of memory or belief to prove the fact remembered or believed' is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind). Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); Maguire, The Hillmon Case - Thirty-three Years After, 38 Harv.L.Rev. 709, 719-731 (1925); Hinton, States of Mind and the Hearsay Rule, 1 U.Chi.L.Rev. 394, 421-423 (1934). The rule of Mutual Life Ins. Co. v. Hillman, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), allowing evidence of intention as tending to prove the doing of the act intended, is of course, left undisturbed. The carving out, from the exclusion mentioned in the preceding paragraph, of declarations relating to the execution, revocation, identification, or terms of declarant's will represents an ad hoc judgment which finds ample reinforcement in the decisions, resting on practical grounds of necessity and expediency rather than logic. McCormick Sec. 271, pp. 577-578; Annot., 34 A.L.R.2d 588, 62 A.L.R.2d 855. A similar recognition of the need for and practical value of this kind of evidence is found in California Evidence Code Sec. 1260. Exception (4). Even those few jurisdictions which have shied away from generally admitting statements of present condition have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patient's strong motivation to be truthful. McCormick Sec. 266, p. 563. The same guarantee of trustworthiness extends to statements of past conditions and medical history, made for purposes of diagnosis or treatment. It also extends to statements as to causation, reasonably pertinent to the same purposes, in accord with the current trend, Shell Oil Co. v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224 (1954); McCormick Sec. 266, p. 564; New Jersey Evidence Rule 63(12)(c). Statements as to fault would not ordinarily qualify under this latter language. Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field. Exception (5). A hearsay exception for recorded recollection is generally recognized and has been described as having 'long been favored by the federal and practically all the state courts that have had occasion to decide the question.' United States v. Kelly, 349 F.2d 720, 770 (2d Cir. 1965), citing numerous cases and sustaining the exception against a claimed denial of the right of confrontation. Many additional cases are cited in Annot., 82 A.L.R.2d 473, 520. The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887). The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed. The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required. McCormick Sec. 277, p. 593; 3 Wigmore Sec. 738, p. 76; Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965). Nevertheless, the absence of the requirement, it is believed, would encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators, or claim adjusters. Hence the example includes a requirement that the witness not have 'sufficient recollection to enable him to testify fully and accurately.' To the same effect are California Evidence Code Sec. 1237 and New Jersey Rule 63(1)(b), and this has been the position of the federal courts. Vicksburg & Meridian R.R. v. O'Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299 (1886); Ahern v. Webb, 268 F.2d 45 (10th Cir. 1959); and see N.L.R.B. v. Hudson Pulp and Paper Corp., 273 F.2d 660, 665 (5th Cir. 1960); N.L.R.B. v. Federal Dairy Co., 297 F.2d 487 (1st Cir. 1962). But cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967). No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate. Multiple person involvement in the process of observing and recording, as in Rathbun v. Brancatella, 93 N.J.L. 222, 107 A. 279 (1919), is entirely consistent with the exception. Locating the exception at this place in the scheme of the rules is a matter of choice. There were two other possibilities. The first was to regard the statement as one of the group of prior statements of a testifying witness which are excluded entirely from the category of hearsay by Rule 801(d)(1). That category, however, requires that declarant be 'subject to cross-examination,' as to which the impaired memory aspect of the exception raises doubts. The other possibility was to include the exception among those covered by Rule 804. Since unavailability is required by that rule and lack of memory is listed as a species of unavailability by the definition of the term in Rule 804(a)(3), that treatment at first impression would seem appropriate. The fact is, however, that the unavailability requirement of the exception is of a limited and peculiar nature. Accordingly, the exception is located at this point rather than in the context of a rule where unavailability is conceived of more broadly. Exception (6) represents an area which has received much attention from those seeking to improve the law of evidence. The Commonwealth Fund Act was the result of a study completed in 1927 by a distinguished committee under the chairmanship of Professor Morgan. Morgan et al., The Law of Evidence: Some Proposals for its Reform 63 (1927). With changes too minor to mention, it was adopted by Congress in 1936 as the rule for federal courts. 28 U.S.C. Sec. 1732. A number of states took similar action. The Commissioners on Uniform State Laws in 1936 promulgated the Uniform Business Records as Evidence Act, 9A U.L.A. 506, which has acquired a substantial following in the states. Model Code Rule 514 and Uniform Rule 63(13) also deal with the subject. Difference of varying degrees of importance exist among these various treatments. These reform efforts were largely within the context of business and commercial records, as the kind usually encountered, and concentrated considerable attention upon relaxing the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type. In their areas of primary emphasis on witnesses to be called and the general admissibility of ordinary business and commercial records, the Commonwealth Fund Act and the Uniform Act appear to have worked well. The exception seeks to preserve their advantages. On the subject of what witnesses must be called, the Commonwealth Fund Act eliminated the common law requirement of calling or accounting for all participants by failing to mention it. United States v. Mortimer, 118 F.2d 266 (2d Cir. 1941); La Porte v. United States, 300 F.2d 878 (9th Cir. 1962); McCormick Sec. 290, p. 608. Model Code Rule 514 and Uniform Rule 63(13) did likewise. The Uniform Act, however, abolished the common law requirement in express terms, providing that the requisite foundation testimony might be furnished by 'the custodian or other qualified witness.' Uniform Business Records as Evidence Act, Sec. 2; 9A U.L.A. 506. The exception follows the Uniform Act in this respect. The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. McCormick Sec. 281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). The model statutes and rules have sought to capture these factors and to extend their impact by employing the phrase 'regular course of business,' in conjunction with a definition of 'business' far broader than its ordinarily accepted meaning. The result is a tendency unduly to emphasize a requirement of routineness and repetitiveness and an insistence that other types of records be squeezed into the fact patterns which give rise to traditional business records. The rule therefore adopts the phrase 'the course of a regularly conducted activity' as capturing the essential basis of the hearsay exception as it has evolved and the essential element which can be abstracted from the various specifications of what is a 'business.' Amplification of the kinds of activities producing admissible records has given rise to problems which conventional business records by their nature avoid. They are problems of the source of the recorded information, of entries in opinion form, of motivation, and of involvement as participant in the matters recorded. Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short 'in the regular course of business.' If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965); Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc., 360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore Sec. 1530a, n. 1, pp. 391-392. The point is not dealt with specifically in the Commonwealth Fund Act, the Uniform Act, or Uniform Rule 63(13). However, Model Code Rule 514 contains the requirement 'that it was the regular course of that business for one with personal knowledge * * * to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record * * *.' The rule follows this lead in requiring an informant with knowledge acting in the course of the regularly conducted activity. Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas. The Commonwealth Fund Act provided only for records of an 'act, transaction, occurrence, or event,' while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added the ambiguous term 'condition.' The limited phrasing of the Commonwealth Fund Act, 28 U.S.C. Sec. 1732, may account for the reluctance of some federal decisions to admit diagnostic entries. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067; England v. United States, 174 F.2d 466 (5th Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir. 1960). In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries. Problems of the motivation of the informant have been a source of difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report made by the since deceased engineer, offered by defendant railroad trustees in a grade crossing collision case, was upheld. The report was not 'in the regular course of business,' not a record of the systematic conduct of the business as a business, said the Court. The report was prepared for use in litigating, not railroading. While the opinion mentions the motivation of the engineer only obliquely, the emphasis on records of routine operations is significant only by virtue of impact on motivation to be accurate. Absence of routineness raises lack of motivation to be accurate. The opinion of the Court of Appeals had gone beyond mere lack of motive to be accurate: the engineer's statement was 'dripping with motivations to misrepresent.' Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942). The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion. Laughlin, Business Records and the Like, 46 Iowa L.Rev. 276, 285 (1961). As Judge Clark said in his dissent, 'I submit that there is hardly a grocer's account book which could not be excluded on that basis.' 129 F.2d at 1002. A physician's evaluation report of a personal injury litigant would appear to be in the routine of his business. If the report is offered by the party at whose instance it was made, however, it has been held inadmissible, Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965), otherwise if offered by the opposite party, Korte v. New York, N.H. & H.R. Co., 191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652. The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctor's report or the accident report were sufficiently routine to justify admissibility. McCormick Sec. 287, p. 604. Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity. Efforts to set a limit are illustrated by Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954), error to admit worksheets made by since deceased deputy collector in preparation for the instant income tax evasion prosecution, and United States v. Ware, 247 F.2d 698 (7th Cir. 1957), error to admit narcotics agents' records of purchases. See also Exception (paragraph) (8), infra, as to the public record aspects of records of this nature. Some decisions have been satisfied as to motivation of an accident report if made pursuant to statutory duty, United States v. New York Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962); Taylor v. Baltimore & O. R. Co., 344 F.2d 281 (2d Cir. 1965), since the report was oriented in a direction other than the litigation which ensued. Cf. Matthews v. United States, 217 F.2d 409 (5th Cir. 1954). The formulation of specific terms which would assure satisfactory results in all cases is not possible. Consequently the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if 'the sources of information or other circumstances indicate lack of trustworthiness.' Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error to admit police records of convictions; Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148, error to admit employees' records of observed business practices of others. The rule includes no requirement of this nature. Wholly acceptable records may involve matters merely observed, e.g. the weather. The form which the 'record' may assume under the rule is described broadly as a 'memorandum, report, record, or data compilation, in any form.' The expression 'data compilation' is used as broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34(a) of the Rules of Civil Procedure. Exception (7). Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Uniform Rule 63(14), Comment. While probably not hearsay as defined in Rule 801, supra, decisions may be found which class the evidence not only as hearsay but also as not within any exception. In order to set the question at rest in favor of admissibility, it is specifically treated here. McCormick Sec. 289, p. 609; Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore Sec. 1531; Uniform Rule 63(14); California Evidence Code Sec. 1272; Kansas Code of Civil Procedure Sec. 60-460(n); New Jersey Evidence Rule 63(14). Exception (8). Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. McCormick Sec. 291. See, for example, 28 U.S.C. Sec. 1733, the relative narrowness of which is illustrated by its nonapplicability to nonfederal public agencies, thus necessitating report to the less appropriate business record exception to the hearsay rule. Kay v. United States, 255 F.2d 476 (4th Cir. 1958). The rule makes no distinction between federal and nonfederal offices and agencies. Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. Wong Wing Foo v. McGrath, 196 F.2d 120 (9th Cir. 1952), and see Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919). As to items (a) and (b), further support is found in the reliability factors underlying records of regularly conducted activities generally. See Exception (paragraph) (6), supra. (a) Cases illustrating the admissibility of records of the office's or agency's own activities are numerous. Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919), Treasury records of miscellaneous receipts and disbursements; Howard v. Perrin, 200 U.S. 71, 26 S.Ct. 195, 50 I.Ed. 374 (1906), General Land Office records; Ballew v. United States, 160 U.S. 187, 16 S.Ct. 263, 40 L.Ed. 388 (1895), Pension Office records. (b) Cases sustaining admissibility of records of matters observed are also numerous. United States v. Van Hook, 284 F.2d 489 (7th Cir. 1960), remanded for resentencing 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821, letter from induction officer to District Attorney, pursuant to army regulations, stating fact and circumstances of refusal to be inducted; T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957), affidavit of White House personnel officer that search of records showed no employment of accused, charged with fraudulently representing himself as an envoy of the President; Minnehaha County v. Kelley, 150 F.2d 356 (8th Cir. 1945); Weather Bureau records of rainfall; United States v. Meyer, 113 F.2d 387 (7th Cir. 1940), cert. denied 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459, map prepared by government engineer from information furnished by men working under his supervision. (c) The more controversial area of public records is that of the so-called 'evaluative' report. The disagreement among the decisions has been due in part, no doubt, to the variety of situations encountered, as well as to differences in principle. Sustaining admissibility are such cases as United States v. Dumas, 149 U.S. 278, 13 S.Ct. 872, 37 L.Ed. 734 (1893), statement of account certified by Postmaster General in action against postmaster; McCarty v. United States, 185 F.2d 520 (5th Cir. 1950), reh. denied 187 F.2d 234, Certificate of Settlement of General Accounting Office showing indebtedness and letter from Army official stating Government had performed, in action on contract to purchase and remove waste food from Army camp; Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3d Cir. 1950), report of Bureau of Mines as to cause of gas tank explosion; Petition of W - , 164 F.Supp. 659 (E.D.Pa.1958), report by Immigration and Naturalization Service investigator that petitioner was known in community as wife of man to whom she was not married. To the opposite effect and denying admissibility are Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944), State Fire Marshal's report of cause of gas explosion; Lomax Transp. Co. v. United States, 183 F.2d 331 (9th Cir. 1950), Certificate of Settlement from General Accounting Office in action for naval supplies lost in warehouse fire; Yung Jin Teung v. Dulles, 229 F.2d 244 (2d Cir. 1956), 'Status Reports' offered to justify delay in processing passport applications. Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer. Annot., 69 A.L.R.2d 1148. Various kinds of evaluative reports are admissible under federal statutes: 7 U.S.C. Sec. 78, findings of Secretary of Agriculture prima facie evidence of true grade of grain; 7 U.S.C. Sec. 210(f), findings of Secretary of Agriculture prima facie evidence in action for damages against stockyard owner; 7 U.S.C. Sec. 292, order by Secretary of Agriculture prima facie evidence in judicial enforcement proceedings against producers association monopoly; 7 U.S.C. Sec. 1622(h), Department of Agriculture inspection certificates of products shipped in interstate commerce prima facie evidence; 8 U.S.C. Sec. 1440(c), separation of alien from military service on conditions other than honorable provable by certificate from department in proceedings to revoke citizenship; 18 U.S.C. Sec. 4245, certificate of Director of Prisons that convicted person has been examined and found probably incompetent at time of trial prima facie evidence in court hearing on competency; 42 U.S.C. Sec. 269(b), bill of health by appropriate official prima facie evidence of vessel's sanitary history and condition and compliance with regulations; 46 U.S.C. Sec. 679, certificate of consul presumptive evidence of refusal of master to transport destitute seamen to United States. While these statutory exceptions to the hearsay rule are left undisturbed, Rule 802, the willingness of Congress to recognize a substantial measure of admissibility for evaluative reports is a helpful guide. Factors which may be of assistance in passing upon the admissibility of evaluative reports include; (1) the timeliness of the investigation, McCormack, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id., (3) whether a hearing was held and the level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944); (4) possible motivation problems suggested by Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt could be added. The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception (paragraph) (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present. In one respect, however, the rule with respect to evaluate reports under item (c) is very specific; they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case. Exception (9). Records of vital statistics are commonly the subject of particular statutes making them admissible in evidence. Uniform Vital Statistics Act, 9C U.L.A. 350 (1957). The rule is in principle narrower than Uniform Rule 63(16) which includes reports required of persons performing functions authorized by statute, yet in practical effect the two are substantially the same. Comment Uniform Rule 63(16). The exception as drafted is in the pattern of California Evidence Code Sec. 1281. Exception (10). The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception (paragraph) (7) with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions (paragraphs) (8) and (9). 5 Wigmore Sec. 1633(6), p. 519. Some harmless duplication no doubt exists with Exception (paragraph) (7). For instances of federal statutes recognizing this method of proof, see 8 U.S.C. Sec. 1284(b), proof of absence of alien crewman's name from outgoing manifest prima facie evidence of failure to detain or deport, and 42 U.S.C. Sec. 405(c)(3), (4)(B), (4)(C), absence of HEW (Department of Health, Education, and Welfare) record prima facie evidence of no wages or self-employment income. The rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry, e.g. People v. Love, 310 Ill. 558, 142 N.E. 204 (1923), certificate of Secretary of State admitted to show failure to file documents required by Securities Law, as well as cases where the absence of a record is offered as proof of the nonoccurrence of an event ordinarily recorded. The refusal of the common law to allow proof by certificate of the lack of a record or entry has no apparent justification, 5 Wigmore Sec. 1678(7), p. 752. The rule takes the opposite position, as do Uniform Rule 63(17); California Evidence Code Sec. 1284; Kansas Code of Civil Procedure Sec. 60-460(c); New Jersey Evidence Rule 63(17). Congress has recognized certification as evidence of the lack of a record. 8 U.S.C. Sec. 1360(d), certificate of Attorney General or other designated officer that no record of Immigration and Naturalization Service of specified nature or entry therein is found, admissible in alien cases. Exception (11). Records of activities of religious organizations are currently recognized as admissible at least to the extent of the business records exception to the hearsay rule, 5 Wigmore Sec. 1523, p. 371, and Exception (paragraph) (6) would be applicable. However, both the business record doctrine and Exception (paragraph) (6) require that the person furnishing the information be one in the business or activity. The result is such decisions as Daily v. Grand Lodge, 311 Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to prove fact, date, and place of baptism, but not age of child except that he had at least been born at the time. In view of the unlikelihood that false information would be furnished on occasions of this kind, the rule contains no requirement that the informant be in the course of the activity. See California Evidence Code Sec. 1315 and Comment. Exception (12). The principle of proof by certification is recognized as to public officials in Exceptions (paragraphs) (8) and (10), and with respect to authentication in Rule 902. The present exception is a duplication to the extent that it deals with a certificate by a public official, as in the case of a judge who performs a marriage ceremony. The area covered by the rule is, however, substantially larger and extends the certification procedure to clergymen and the like who perform marriages and other ceremonies or administer sacraments. Thus certificates of such matters as baptism or confirmation, as well as marriage, are included. In principle they are as acceptable evidence as certificates of public officers. See 5 Wigmore Sec. 1645, as to marriage certificates. When the person executing the certificate is not a public official, the self-authenticating character of documents purporting to emanate from public officials, see Rule 902, is lacking and proof is required that the person was authorized and did make the certificate. The time element, however, may safely be taken as supplied by the certificate, once authority and authenticity are established, particularly in view of the presumption that a document was executed on the date it bears. For similar rules, some limited to certificates of marriage, with variations in foundation requirements, see Uniform Rule 63(18); California Evidence Code Sec. 1316; Kansas Code of Civil Procedure Sec. 60-460(p); New Jersey Evidence Rule 63(18). Exception (13). Records of family history kept in family Bibles have by long tradition been received in evidence. 5 Wigmore Sec. 1495, 1496, citing numerous statutes and decisions. See also Regulations, Social Security Administration, 20 C.F.R. Sec. 404.703(c), recognizing family Bible entries as proof of age in the absence of public or church records. Opinions in the area also include inscriptions on tombstones, publicly displayed pedigrees, and engravings on rings. Wigmore, supra. The rule is substantially identical in coverage with California Evidence Code Sec. 1312. Exception (14). The recording of title documents is a purely statutory development. Under any theory of the admissibility of public records, the records would be receivable as evidence of the contents of the recorded document, else the recording process would be reduced to a nullity. When, however, the record is offered for the further purpose of proving execution and delivery, a problem of lack of first-hand knowledge by the recorder, not present as to contents, is presented. This problem is solved, seemingly in all jurisdictions, by qualifying for recording only those documents shown by a specified procedure, either acknowledgement or a form of probate, to have been executed and delivered. 5 Wigmore Sec. 1647-1651. Thus what may appear in the rule, at first glance, as endowing the record with an effect independently of local law and inviting difficulties of an Erie nature under Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), is not present, since the local law in fact governs under the example. Exception (15). Dispositive documents often contain recitals of fact. Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document. The age of the document is of no significance, though in practical application the document will most often be an ancient one. See Uniform Rule 63(29), Comment. Similar provisions are contained in Uniform Rule 63(29); California Evidence Code Sec. 1330; Kansas Code of Civil Procedure Sec. 60-460(aa); New Jersey Evidence Rule 63(29). Exception (16). Authenticating a document as ancient, essentially in the pattern of the common law, as provided in Rule 901(b)(8), leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. 7 Wigmore Sec. 2145a. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificates, in addition to title documents, citing numerous decisions. Id. Sec. 2145. Since most of these items are significant evidentially only insofar as they are assertive, their admission in evidence must be as a hearsay exception. But see 5 id. Sec. 1573, p. 429, referring to recitals in ancient deeds as a 'limited' hearsay exception. The former position is believed to be the correct one in reason and authority. As pointed out in McCormick Sec. 298, danger of mistake is minimized by authentication requirements, and age affords assurance that the writing antedates the present controversy. See Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961), upholding admissibility of 58-year-old newspaper story. Cf. Morgan, Basic Problems of Evidence 364 (1962), but see id. 254. For a similar provision, but with the added requirement that 'the statement has since generally been acted upon as true by persons having an interest in the matter,' see California Evidence Code Sec. 1331. Exception (17). Ample authority at common law supported the admission in evidence of items falling in this category. While Wigmore's text is narrowly oriented to lists, etc., prepared for the use of a trade or profession, 6 Wigmore Sec. 1702, authorities are cited which include other kinds of publications, for example, newspaper market reports, telephone directories, and city directories. Id. Sec. 1702-1706. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate. For similar provisions, see Uniform Rule 63(30); California Evidence Code Sec. 1340; Kansas Code of Civil Procedure Sec. 60-460(bb); New Jersey Evidence Rule 63(30). Uniform Commercial Code Sec. 2-724 provides for admissibility in evidence of 'reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such (established commodity) market.' Exception (18). The writers have generally favored the admissibility of learned treatises, McCormick Sec. 296, p. 621; Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore Sec. 1692, with the support of occasional decisions and rules, City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939); Lewandowski v. Preferred Risk Mut. Ins. Co., 33 Wis.2d 69, 146 N.W.2d 505 (1966), 66 Mich.L.Rev. 183 (1967); Uniform Rule 63(31); Kansas Code of Civil Procedure Sec. 60-460(ce), but the great weight of authority has been that learned treatises are not admissible as substantive evidence though usable in the cross-examination of experts. The foundation of the minority view is that the hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake. 6 Wigmore Sec. 1692. Sound as this position may be with respect to trustworthiness, there is, nevertheless, an additional difficulty in the likelihood that the treatise will be misunderstood and misapplied without expert assistance and supervision. This difficulty is recognized in the cases demonstrating unwillingness to sustain findings relative to disability on the basis of judicially noticed medical texts. Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962); Cook v. Celebrezze, 217 F.Supp. 366 (W.D.Mo. 1963); Sosna v. Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); and see McDaniel v. Celebrezze, 331 F.2d 426 (4th Cir. 1964). The rule avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if declared. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy. The relevance of the use of treatises on cross-examination is evident. This use of treatises has been the subject of varied views. The most restrictive position is that the witness must have stated expressly on direct his reliance upon the treatise. A slightly more liberal approach still insists upon reliance but allows it to be developed on cross-examination. Further relaxation dispenses with reliance but requires recognition as an authority by the witness, developable on cross-examination. The greatest liberality is found in decisions allowing use of the treatise on cross-examination when its status as an authority is established by any means. Annot., 60 A.L.R.2d 77. The exception is hinged upon this last position, which is that of the Supreme Court, Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63 (1949), and of recent well considered state court decisions, City of St. Petersburg v. Ferguson, 193 So.2d 648 (Fla.App. 1967), cert. denied Fla., 201 So.2d 556; Darling v. Charleston Memorial Community Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965); Dabroe v. Rhodes Co., 64 Wash.2d 431, 392 P.2d 317 (1964). In Reilly v. Pinkus, supra, the Court pointed out that testing of professional knowledge was incomplete without exploration of the witness' knowledge of and attitude toward established treatises in the field. The process works equally well in reverse and furnishes the basis of the rule. The rule does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness. Dabroe v. Rhodes Co., supra. Moreover, the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise. The parallel to the treatment of prior inconsistent statements will be apparent. See Rules 6130(b) and 801(d)(1). Exceptions (19), (20), and (21). Trustworthiness in reputation evidence is found 'when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusion, if any has been formed, is likely to be a trustworthy one.' 5 Wigmore Sec. 1580, p. 444, and see also Sec. 1583. On this common foundation, reputation as to land boundaries, customs, general history, character, and marriage have come to be regarded as admissible. The breadth of the underlying principle suggests the formulation of an equally broad exception, but tradition has in fact been much narrower and more particularized, and this is the pattern of these exceptions in the rule. Exception (paragraph) (19) is concerned with matters of personal and family history. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. 5 Wigmore Sec. 1602. As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. Id. Sec. 1605. All seem to be susceptible to being the subject of well founded repute. The 'world' in which the reputation may exist may be family, associates, or community. This world has proved capable of expanding with changing times from the single uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work, religious affiliation, and social activity, in each of which a reputation may be generated. People v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935); State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677 (1956); Mass.Stat. 1947, c. 410, M.G.L.A. c. 233 Sec. 21A; 5 Wigmore Sec. 1616. The family has often served as the point of beginning for allowing community reputation. 5 Wigmore Sec. 1488. For comparable provisions see Uniform Rule 63(26), (27)(c); California Evidence Code Sec. 1313, 1314; Kansas Code of Civil Procedure Sec. 60-460(x), (y)(3); New Jersey Evidence Rule 63(26), (27)(c). The first portion of Exception (paragraph) (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick Sec. 299, p. 625. The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id., and is designed to facilitate proof of events when judicial notice is not available The historical character of the subject matter dispenses with any need that the reputation antedate the controversy with respect to which it is offered. For similar provisions see Uniform Rule 63(27)(a), (b); California Evidence Code Sec. 1320-1322; Kansas Code of Civil Procedure Sec. 60-460(y), (1), (2); New Jersey Evidence Rule 63(27)(a), (b). Exception (paragraph) (21) recognizes the traditional acceptance of reputation evidence as a means of proving human character. McCormick Sec. 44, 158. The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a). Similar provisions are contained in Uniform Rule 63(28); California Evidence Code Sec. 1324; Kansas Code of Civil Procedure Sec. 60-460(z); New Jersey Evidence Rule 63(28). Exception (22). When the status of a former judgment is under consideration in subsequent litigation, three possibilities must be noted: (1) the former judgment is conclusive under the doctrine of res judicata, either as a bar or a collateral estoppel; or (2) it is admissible in evidence for what it is worth; or (3) it may be of no effect at all. The first situation does not involve any problem of evidence except in the way that principles of substantive law generally bear upon the relevancy and materiality of evidence. The rule does not deal with the substantive effect of the judgment as a bar or collateral estoppel. When, however, the doctrine of res judicata does not apply to make the judgment either a bar or a collateral estoppel, a choice is presented between the second and third alternatives. The rule adopts the second for judgments of criminal conviction of felony grade. This is the direction of the decisions, Annot., 18 A.L.R.2d 1287, 1299, which manifest an increasing reluctance to reject in toto the validity of the law's factfinding processes outside the confines of res judicata and collateral estoppel. While this may leave a jury with the evidence of conviction but without means to evaluate it, as suggested by Judge Hinton, Note 27 Ill.L.Rev. 195 (1932), it seems safe to assume that the jury will give it substantial effect unless defendant offers a satisfactory explanation, a possibility not foreclosed by the provision. But see North River Ins. Co. v. Militello, 104 Colo. 28, 88 P.2d 567 (1939), in which the jury found for plaintiff on a fire policy despite the introduction of his conviction for arson. For supporting federal decisions see Clark, J., in New York & Cuba Mail S.S. Co. v. Continental Cas. Co., 117 F.2d 404, 411 (2d Cir. 1941); Connecticut Fire Ins. Co. v. Farrara, 277 F.2d 388 (8th Cir. 1960). Practical considerations require exclusion of convictions of minor offenses, not became the administration of justice in its lower echelons must be inferior, but because motivation to defend at this level is often minimal or nonexistent. Cope v. Goble, 39 Cal.App.2d 448, 103 P.2d 598 (1940); Jones v. Talbot, 87 Idaho 498, 394 P.2d 316 (1964); Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943); Annot., 18 A.L.R.2d 1287, 1295-1297; 16 Brooklyn L.Rev. 286 (1950); 50 Colum.L.Rev. 529 (1950); 35 Cornell L.Q. 872 (1950). Hence the rule includes only convictions of felony grade, measured by federal standards. Judgments of conviction based upon pleas of nolo contendere are not included. This position is consistent with the treatment of nolo pleas in Rule 410 and the authorities cited in the Advisory Committee's Note in support thereof. While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles. Consequently the exception does not include evidence of the conviction of a third person, offered against the accused in a criminal prosecution to prove any fact essential to sustain the judgment of conviction. A contrary position would seem clearly to violate the right of confrontation. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), error to convict of possessing stolen postage stamps with the only evidence of theft being the record of conviction of the thieves The situation is to be distinguished from cases in which conviction of another person is an element of the crime, e.g. 15 U.S.C. Sec. 902(d), interstate shipment of firearms to a known convicted felon, and, as specifically provided, from impeachment. For comparable provisions see Uniform Rule 63(20); California Evidence Code Sec. 1300; Kansas Code of Civil Procedure Sec. 60-460(r); New Jersey Evidence Rule 63(20). Exception (23). A hearsay exception in this area was originally justified on the ground that verdicts were evidence of reputation. As trial by jury graduated from the category of neighborhood inquests, this theory lost its validity. It was never valid as to chancery decrees. Nevertheless the rule persisted, though the judges and writers shifted ground and began saying that the judgment or decree was as good evidence as reputation. See City of London v. Clerke, Carth. 181, 90 Eng.Rep. 710 (K.B. 1691); Neill v. Duke of Devonshire, 8 App.Cas. 135 (1882). The shift appears to be correct, since the process of inquiry, sifting, and scrutiny which is relied upon to render reputation reliable is present in perhaps greater measure in the process of litigation. While this might suggest a broader area of application, the affinity to reputation is strong, and paragraph (paragraph) (23) goes no further, not even including character. The leading case in the United States, Patterson v. Gaines, 47 U.S. (6 How.) 550, 599, 12 L.Ed. 553 (1847), follows in the pattern of the English decisions, mentioning as illustrative matters thus provable: manorial rights, public rights of way, immemorial custom, disputed boundary, and pedigree. More recent recognition of the principle is found in Grant Bros. Construction Co. v. United States, 232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776 (1914), in action for penalties under Alien Contract Labor Law, decision of board of inquiry of Immigration Service admissible to prove alienage of laborers, as a matter of pedigree; United States v. Mid-Continent Petroleum Corp., 67 F.2d 37 (10th Cir. 1933), records of commission enrolling Indians admissible on pedigree; Jung Yen Loy v. Cahill, 81 F.2d 809 (9th Cir. 1936), board decisions as to citizenship of plaintiff's father admissible in proceeding for declaration of citizenship. Contra, In re Estate of Cunha, 49 Haw. 273, 414 P.2d 925 (1966). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300 (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. After giving particular attention to the question of physical examination made solely to enable a physician to testify, the Committee approved Rule 803(4) as submitted to Congress, with the understanding that it is not intended in any way to adversely affect present privilege rules or those subsequently adopted. Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, 'shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly.' The Committee amended this Rule to add the words 'or adopted by the witness' after the phrase 'shown to have been made', a treatment consistent with the definition of 'statement' in the Jencks Act, 18 U.S.C. 3500. Moreover, it is the Committee's understanding that a memorandum or report, although barred under this Rule, would nonetheless be admissible if it came within another hearsay exception. This last stated principle is deemed applicable to all the hearsay rules. Rule 803(6) as submitted by the Court permitted a record made 'in the course of a regularly conducted activity' to be admissible in certain circumstances. The Committee believed there were insufficient guarantees of reliability in records made in the course of activities falling outside the scope of 'business' activities as that term is broadly defined in 28 U.S.C. 1732. Moreover, the Committee concluded that the additional requirement of Section 1732 that it must have been the regular practice of a business to make the record is a necessary further assurance of its trustworthiness. The Committee accordingly amended the Rule to incorporate these limitations. Rule 803(7) as submitted by the Court concerned the absence of entry in the records of a 'regularly conducted activity.' The Committee amended this Rule to conform with its action with respect to Rule 803(6). The Committee approved Rule 803(8) without substantive change from the form in which it was submitted by the Court. The Committee intends that the phrase 'factual findings' be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this Rule. The Committee approved this Rule in the form submitted by the Court, intending that the phrase 'Statements of fact concerning personal or family history' be read to include the specific types of such statements enumerated in Rule 803(11). NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 The House approved this rule as it was submitted by the Supreme Court 'with the understanding that it is not intended in any way to adversely affect present privilege rules.' We also approve this rule, and we would point out with respect to the question of its relation to privileges, it must be read in conjunction with rule 35 of the Federal Rules of Civil Procedure which provides that whenever the physical or mental condition of a party (plaintiff or defendant) is in controversy, the court may require him to submit to an examination by a physician. It is these examinations which will normally be admitted under this exception. Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, 'shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly.' The House amended the rule to add the words 'or adopted by the witness' after the phrase 'shown to have been made,' language parallel to the Jencks Act (18 U.S.C. Sec. 3500). The committee accepts the House amendment with the understanding and belief that it was not intended to narrow the scope of applicability of the rule. In fact, we understand it to clarify the rule's applicability to a memorandum adopted by the witness as well as one made by him. While the rule as submitted by the Court was silent on the question of who made the memorandum, we view the House amendment as a helpful clarification, noting, however, that the Advisory Committee's note to this rule suggests that the important thing is the accuracy of the memorandum rather than who made it. The committee does not view the House amendment as precluding admissibility in situations in which multiple participants were involved. When the verifying witness has not prepared the report, but merely examined it and found it accurate, he has adopted the report, and it is therefore admissible. The rule should also be interpreted to cover other situations involving multiple participants, e.g., employer dictating to secretary, secretary making memorandum at direction of employer, or information being passed along a chain of persons, as in Curtis v. Bradley (65 Conn. 99, 31 Atl. 591 (1894); see, also Rathbun v. Brancatella, 93 N.J.L. 222, 107 Atl. 279 (1919); see, also McCormick on Evidence, Sec. 303 (2d ed. 1972)). The committee also accepts the understanding of the House that a memorandum or report, although barred under rule, would nonetheless be admissible if it came within another hearsay exception. We consider this principle to be applicable to all the hearsay rules. Rule 803(6) as submitted by the Supreme Court permitted a record made in the course of a regularly conducted activity to be admissible in certain circumstances. This rule constituted a broadening of the traditional business records hearsay exception which has been long advocated by scholars and judges active in the law of evidence The House felt there were insufficient guarantees of reliability of records not within a broadly defined business records exception. We disagree. Even under the House definition of 'business' including profession, occupation, and 'calling of every kind,' the records of many regularly conducted activities will, or may be, excluded from evidence. Under the principle of ejusdem generis, the intent of 'calling of every kind' would seem to be related to work-related endeavors - e.g., butcher, baker, artist, etc. Thus, it appears that the records of many institutions or groups might not be admissible under the House amendments. For example, schools, churches, and hospitals will not normally be considered businesses within the definition. Yet, these are groups which keep financial and other records on a regular basis in a manner similar to business enterprises. We believe these records are of equivalent trustworthiness and should be admitted into evidence. Three states, which have recently codified their evidence rules, have adopted the Supreme Court version of rule 803(6), providing for admission of memoranda of a 'regularly conducted activity.' None adopted the words 'business activity' used in the House amendment. (See Nev. Rev. Stats. Sec. 15.135; N. Mex. Stats. (1973 Supp.) Sec. 20-4-803(6); West's Wis. Stats. Anno. (1973 Supp.) Sec. 908.03(6).) Therefore, the committee deleted the word 'business' as it appears before the word 'activity'. The last sentence then is unnecessary and was also deleted. It is the understanding of the committee that the use of the phrase 'person with knowledge' is not intended to imply that the party seeking to introduce the memorandum, report, record, or data compilation must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum, report, record or data compilation was based. A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge, e.g., in the case of the content of a shipment of goods, upon a report from the company's receiving agent or in the case of a computer printout, upon a report from the company's computer programer or one who has knowledge of the particular record system. In short, the scope of the phrase 'person with knowledge' is meant to be coterminous with the custodian of the evidence or other qualified witness. The committee believes this represents the desired rule in light of the complex nature of modern business organizations. The House approved rule 803(8), as submitted by the Supreme Court, with one substantive change. It excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. The committee accepts the House's decision to exclude such recorded observations where the police officer is available to testify in court about his observation. However, where he is unavailable as unavailability is defined in rule 804(a)(4) and (a)(5), the report should be admitted as the best available evidence. Accordingly, the committee has amended rule 803(8) to refer to the provision of (proposed) rule 804(b)(5) (deleted), which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. The House Judiciary Committee report contained a statement of intent that 'the phrase 'factual findings' in subdivision (c) be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this rule.' The committee takes strong exception to this limiting understanding of the application of the rule. We do not think it reflects an understanding of the intended operation of the rule as explained in the Advisory Committee notes to this subsection. The Advisory Committee notes on subsection (c) of this subdivision point out that various kinds of evaluative reports are now admissible under Federal statutes. 7 U.S.C. Sec. 78, findings of Secretary of Agriculture prima facie evidence of true grade of grain; 42 U.S.C. Sec. 269(b), bill of health by appropriate official prima facie evidence of vessel's sanitary history and condition and compliance with regulations. These statutory exceptions to the hearsay rule are preserved. Rule 802. The willingness of Congress to recognize these and other such evaluative reports provides a helpful guide in determining the kind of reports which are intended to be admissible under this rule. We think the restrictive interpretation of the House overlooks the fact that while the Advisory Committee assumes admissibility in the first instance of evaluative reports, they are not admissible if, as the rule states, 'the sources of information or other circumstances indicate lack of trustworthiness.' The Advisory Committee explains the factors to be considered: * * * * * Factors which may be assistance in passing upon the admissibility of evaluative reports include: (1) the timeliness of the investigation, McCormick, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id.; (3) whether a hearing was held and the level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568 (19th Cir. 1944); (4) possible motivation problems suggested by Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt could be added. * * * * * The committee concludes that the language of the rule together with the explanation provided by the Advisory Committee furnish sufficient guidance on the admissibility of evaluative reports. The proposed Rules of Evidence submitted to Congress contained identical provisions in rules 803 and 804 (which set forth the various hearsay exceptions), admitting any hearsay statement not specifically covered by any of the stated exceptions, if the hearsay statement was found to have 'comparable circumstantial guarantees of trustworthiness.' The House deleted these provisions (proposed rules 803(24) and 804(b)(6)((5))) as injecting 'too much uncertainty' into the law of evidence and impairing the ability of practitioners to prepare for trial. The House felt that rule 102, which directs the courts to construe the Rules of Evidence so as to promote growth and development, would permit sufficient flexibility to admit hearsay evidence in appropriate cases under various factual situations that might arise. We disagree with the total rejection of a residual hearsay exception. While we view rule 102 as being intended to provide for a broader construction and interpretation of these rules, we feel that, without a separate residual provision, the specifically enumerated exceptions could become tortured beyond any reasonable circumstances which they were intended to include (even if broadly construed). Moreover, these exceptions, while they reflect the most typical and well recognized exceptions to the hearsay rule, may not encompass every situation in which the reliability and appropriateness of a particular piece of hearsay evidence make clear that it should be heard and considered by the trier of fact. The committee believes that there are certain exceptional circumstances where evidence which is found by a court to have guarantees of trust worthiness equivalent to or exceeding the guarantees reflected by the presently listed exceptions, and to have a high degree of prolativeness and necessity could properly be admissible. The case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that case was whether the tower of the county courthouse collapsed becuase it was struck by lightning (covered by insurance) or because of structural weakness and deterioration of the structure (not covered). Investigation of the structure revealed the presence of charcoal and charred timbers. In order to show that lightning may not have been the cause of the charring, the insurer offered a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the courthouse while it was under construction. The Court found that the newspaper did not qualify for admission as a business record or an ancient document and did not fit within any other recognized hearsay exception. The court concluded, however, that the article was trustworthy because it was inconceivable that a newspaper reporter in a small town would report a fire in the courthouse if none had occurred. See also United States v. Barbati, 284 F. Supp. 409 (E.D.N.Y. 1968). Because exceptional cases like the Dallas County case may arise in the future, the committee has decided to reinstate a residual exception for rules 803 and 804(b). The committee, however, also agrees with those supporters of the House version who felt that an overly broad residual hearsay exception could emasculate the hearsay rule and the recognized exceptions or vitiate the rationale behind codification of the rules. Therefore, the committee has adopted a residual exception for rules 803 and 804(b) of much narrower scope and applicability than the Supreme Court version. In order to qualify for admission, a hearsay statement not falling within one of the recognized exceptions would have to satisfy at least four conditions. First, it must have 'equivalent circumstantial guarantees of trustworthiness.' Second, it must be offered as evidence of a material fact. Third, the court must determine that the statement 'is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.' This requirement is intended to insure that only statements which have high probative value and necessity may qualify for admission under the residual exceptions. Fourth, the court must determine that 'the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.' It is intended that the residual hearsay exceptions will be used very rarely, an only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule. In order to establish a well-defined jurisprudence, the special facts and circumstances which, in the court's judgment, indicates that the statement has a sufficiently high degree of trustworthiness and necessity to justify its admission should be stated on the record. It is expected that the court will give the opposing party a full and adequate opportunity to contest the admission of any statement sought to be introduced under these subsections. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 803 defines when hearsay statements are admissible in evidence even though the declarant is available as a witness. The Senate amendments make three changes in this rule. The House bill provides in subsection (6) that records of a regularly conducted 'business' activity qualify for admission into evidence as an exception to the hearsay rule. 'Business' is defined as including 'business, profession, occupation and calling of every kind.' The Senate amendment drops the requirement that the records be those of a 'business' activity and eliminates the definition of 'business.' The Senate amendment provides that records are admissible if they are records of a regularly conducted 'activity.' The Conference adopts the House provision that the records must be those of a regularly conducted 'business' activity. The Conferees changed the definition of 'business' contained in the House provision in order to make it clear that the records of institutions and associations like schools, churches and hospitals are admissible under this provision. The records of public schools and hospitals are also covered by Rule 803(8), which deals with public records and reports. The Senate amendment adds language, not contained in the House bill, that refers to another rule that was added by the Senate in another amendment ((proposed) Rule 804(b)(5) - Criminal law enforcement records and reports (deleted)). In view of its action on (proposed) Rule 804(b)(5) (Criminal law enforcement records and reports) (deleted), the Conference does not adopt the Senate amendment and restores the bill to the House version. The Senate amendment adds a new subsection, (24), which makes admissible a hearsay statement not specifically covered by any of the previous twenty-three subsections, if the statement has equivalent circumstantial guarantees of trustworthiness and if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial. The Conference adopts the Seante amendment with an amendment that provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare to contest the use of the statement. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1975 AMENDMENT Exception (23). Pub. L. 94-149 inserted a comma immediately after 'family' in catchline. ------DocID 37240 Document 1102 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 804 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 804. Hearsay Exceptions; Declarant Unavailable -STATUTE- (a) Definition of unavailability. - 'Unavailability as a witness' includes situations in which the declarant - (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. (b) Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. - Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (2) Statement under belief of impending death. - In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (3) Statement against interest. - A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (4) Statement of personal or family history. - (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) Other exceptions. - A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1942; Pub. L. 94-149, Sec. 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff. Oct. 1, 1987; Pub. L. 100-690, title VII, Sec. 7075(b), Nov. 18, 1988, 102 Stat. 4405.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES As to firsthand knowledge on the part of hearsay declarants, see the introductory portion of the Advisory Committee's Note to Rule 803. Subdivision (a). The definition of unavailability implements the division of hearsay exceptions into two categories by Rules 803 and 804(b). At common law the unavailability requirement was evolved in connection with particular hearsay exceptions rather than along general lines. For example, see the separate explication of unavailability in relation to former testimony, declarations against interest, and statements of pedigree, separately developed in McCormick Sec. 234, 257, and 297. However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions. The treatment in the rule is therefore uniform although differences in the range of process for witnesses between civil and criminal cases will lead to a less exacting requirement under item (5). See Rule 45(e) of the Federal Rules of Civil Procedure and Rule 17(e) of the Federal Rules of Criminal Procedure. Five instances of unavailability are specified: (1) Substantial authority supports the position that exercise of a claim of privilege by the declarant satisfies the requirement of unavailability (usually in connection with former testimony). Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950); State v. Stewart, 85 Kan. 404, 116 P. 489 (1911); Annot., 45 A.L.R.2d 1354; Uniform Rule 62(7)(a); California Evidence Code Sec. 240(a)(1); Kansas Code of Civil Procedure Sec. 60-459(g) (1). A ruling by the judge is required, which clearly implies that an actual claim of privilege must be made. (2) A witness is rendered unavailable if he simply refuses to testify concerning the subject matter of his statement despite judicial pressures to do so, a position supported by similar considerations of practicality. Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963); People v. Pickett, 339 Mich. 294, 63 N.W.2d 681, 45 A.L.R.2d 1341 (1954). Contra, Pleau v. State, 255 Wis. 362, 38 N.W.2d 496 (1949). (3) The position that a claimed lack of memory by the witness of the subject matter of his statement constitutes unavailability likewise finds support in the cases, though not without dissent. McCormick Sec. 234, p. 494. If the claim is successful, the practical effect is to put the testimony beyond reach, as in the other instances. In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination. (4) Death and infirmity find general recognition as ground. McCormick Sec. 234, 257, 297; Uniform Rule 62(7)(c); California Evidence Code Sec. 240(a)(3); Kansas Code of Civil Procedure Sec. 60-459(g)(3); New Jersey Evidence Rule 62(6)(c). See also the provisions on use of depositions in Rule 32(a)(3) of the Federal Rules of Civil Procedure and Rule 15(e) of the Federal Rules of Criminal Procedure. (5) Absence from the hearing coupled with inability to compel attendance by process or other reasonable means also satisfies the requirement. McCormick Sec. 234; Uniform Rule 62(7)(d) and (e); California Evidence Code Sec. 240(a)(4) and (5); Kansas Code of Civil Procedure Sec. 60-459(g)(4) and (5); New Jersey Rule 62(6)(b) and (d). See the discussion of procuring attendance of witnesses who are nonresidents or in custody in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied. The rule contains no requirement that an attempt be made to take the deposition of a declarant. Subdivision (b). Rule 803 supra, is based upon the assumption that a hearsay statement falling within one of its exceptions possesses qualities which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor in determining admissibility. The instant rule proceeds upon a different theory: hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statement meets a specified standard. The rule expresses preferences: testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant. The exceptions evolved at common law with respect to declarations of unavailable declarants furnish the basis for the exceptions enumerated in the proposal. The term 'unavailable' is defined in subdivision (a). Exception (1). Former testimony does not rely upon some set of circumstances to substitute for oath and cross-examination, since both oath and opportunity to cross-examine were present in fact. The only missing one of the ideal conditions for the giving of testimony is the presence of trier and opponent ('demeanor evidence'). This is lacking with all hearsay exceptions. Hence it may be argued that former testimony is the strongest hearsay and should be included under Rule 803, supra. However, opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination. Thus in cases under Rule 803 demeanor lacks the significance which it possesses with respect to testimony. In any event, the tradition, founded in experience, uniformly favors production of the witness if he is available. The exception indicates continuation of the policy. This preference for the presence of the witness is apparent also in rules and statutes on the use of depositions, which deal with substantially the same problem. Under the exception, the testimony may be offered (1) against the party against whom it was previously offered or (2) against the party by whom it was previously offered. In each instance the question resolves itself into whether fairness allows imposing, upon the party against whom now offered, the handling of the witness on the earlier occasion. (1) If the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine. Only demeanor has been lost, and that is inherent in the situation. (2) If the party against whom now offered is the one by whom the testimony was offered previously, a satisfactory answer becomes somewhat more difficult. One possibility is to proceed somewhat along the line of an adoptive admission, i.e. by offering the testimony proponent in effect adopts it. However, this theory savors of discarded concepts of witnesses' belonging to a party, of litigants' ability to pick and choose witnesses, and of vouching for one's own witnesses. Cf. McCormick Sec. 246, pp. 526-527; 4 Wigmore Sec. 1075. A more direct and acceptable approach is simply to recognize direct and redirect examination of one's own witness as the equivalent of cross-examining an opponent's witness. Falknor, Former Testimony and the Uniform Rules: A Comment, 38 N.Y.U.L.Rev. 651, n. 1 (1963); McCormick Sec. 231, p. 483. See also 5 Wigmore Sec. 1389. Allowable techniques for dealing with hostile, doublecrossing, forgetful, and mentally deficient witnesses leave no substance to a claim that one could not adequately develop his own witness at the former hearing. An even less appealing argument is presented when failure to develop fully was the result of a deliberate choice. The common law did not limit the admissibility of former testimony to that given in an earlier trial of the same case, although it did require identity of issues as a means of insuring that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented. Modern decisions reduce the requirement to 'substantial' identity. McCormick Sec. 233. Since identity of issues is significant only in that it bears on motive and interest in developing fully the testimony of the witness, expressing the matter in the latter terms is preferable. Id. Testimony given at a preliminary hearing was held in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), to satisfy confrontation requirements in this respect. As a further assurance of fairness in thrusting upon a party the prior handling of the witness, the common law also insisted upon identity of parties, deviating only to the extent of allowing substitution of successors in a narrowly construed privity. Mutuality as an aspect of identity is now generally discredited, and the requirement of identity of the offering party disappears except as it might affect motive to develop the testimony. Falknor, supra, at 652; McCormick Sec. 232, pp. 487-488. The question remains whether strict identity, or privity, should continue as a requirement with respect to the party against whom offered. The rule departs to the extent of allowing substitution of one with the right and opportunity to develop the testimony with similar motive and interest. This position is supported by modern decisions. McCormick Sec. 232, pp. 489-490; 5 Wigmore Sec. 1388. Provisions of the same tenor will be found in Uniform Rule 63(3)(b); California Evidence Code Sec. 1290-1292; Kansas Code of Civil Procedure Sec. 60-460(c)(2); New Jersey Evidence Rule 63(3). Unlike the rule, the latter three provide either that former testimony is not admissible if the right of confrontation is denied or that it is not admissible if the accused was not a party to the prior hearing. The genesis of these limitations is a caveat in Uniform Rule 63(3) Comment that use of former testimony against an accused may violate his right of confrontation. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), held that the right was not violated by the Government's use, on a retrial of the same case, of testimony given at the first trial by two witnesses since deceased. The decision leaves open the questions (1) whether direct and redirect are equivalent to cross-examination for purposes of confrontation, (2) whether testimony given in a different proceeding is acceptable, and (3) whether the accused must himself have been a party to the earlier proceeding or whether a similarly situated person will serve the purpose. Professor Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation. Falknor, supra, at 659-660. The constitutional acceptability of dying declarations has often been conceded. Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Kirby v. United States, 174 U.S. 47, 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Exception (2). The exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally narrow limits. While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present. See 5 Wigmore Sec. 1443 and the classic statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng.Rep. 352, 353 (K.B. 1789). The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide. Thus declarations by victims in prosecutions for other crimes, e.g. a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. An occasional statute has removed these restrictions, as in Colo.R.S. Sec. 52-1-20, or has expanded the area of offenses to include abortions, 5 Wigmore Sec. 1432, p. 224, n. 4. Kansas by decision extended the exception to civil cases. Thurston v. Fritz, 91 Kan. 468, 138 P. 625 (1914). While the common law exception no doubt originated as a result of the exceptional need for the evidence in homicide cases, the theory of admissibility applies equally in civil cases and in prosecutions for crimes other than homicide. The same considerations suggest abandonment of the limitation to circumstances attending the event in question, yet when the statement deals with matters other than the supposed death, its influence is believed to be sufficiently attenuated to justify the limitation. Unavailability is not limited to death. See subdivision (a) of this rule. Any problem as to declarations phrased in terms of opinion is laid at rest by Rule 701, and continuation of a requirement of first-hand knowledge is assured by Rule 602. Comparable provisions are found in Uniform Rule 63 (5); California Evidence Code Sec. 1242; Kansas Code of Civil Procedure Sec. 60-460(e); New Jersey Evidence Rule 63(5). Exception (3). The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. Hileman v. Northwest Engineering Co., 346 F.2d 668 (6th Cir. 1965). If the statement is that of a party, offered by his opponent, it comes in as an admission, Rule 803(d)(2), and there is no occasion to inquire whether it is against interest, this not being a condition precedent to admissibility of admissions by opponents. The common law required that the interest declared against be pecuniary or proprietary but within this limitation demonstrated striking ingenuity in discovering an against-interest aspect. Higham v. Ridgeway, 10 East 109, 103 Eng.Rep. 717 (K.B. 1808); Reg. v. Overseers of Birmingham, 1 B. & S. 763, 121 Eng.Rep. 897 (Q.B. 1861); McCormick, Sec. 256, p. 551, nn. 2 and 3. The exception discards the common law limitation and expands to the full logical limit. One result is to remove doubt as to the admissibility of declarations tending to establish a tort liability against the declarant or to extinguish one which might be asserted by him, in accordance with the trend of the decisions in this country. McCormick Sec. 254, pp. 548-549. Another is to allow statements tending to expose declarant to hatred, ridicule, or disgrace, the motivation here being considered to be as strong as when financial interests are at stake. McCormick Sec. 255, p. 551. And finally, exposure to criminal liability satisfies the against-interest requirement. The refusal of the common law to concede the adequacy of a penal interest was no doubt indefensible in logic, see the dissent of Mr. Justice Holmes in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), but one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945); Band's Refuse Removal, Inc. v. Fairlawn Borough, 62 N.J.Super. 552, 163 A.2d 465 (1960); Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950); Annot., 162 A.L.R. 446. The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations. When the statement is offered by the accused by way of exculpation, the resulting situation is not adapted to control by rulings as to the weight of the evidence and, hence the provision is cast in terms of a requirement preliminary to admissibility. Cf. Rule 406(a). The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication. Ordinarily the third-party confession is thought of in terms of exculpating the accused, but this is by no means always or necessarily the case: it may include statements implicating him, and under the general theory of declarations against interest they would be admissible as related statements. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70 (1968), both involved confessions by codefendants which implicated the accused. While the confession was not actually offered in evidence in Douglas, the procedure followed effectively put it before the jury, which the Court ruled to be error. Whether the confession might have been admissible as a declaration against penal interest was not considered or discussed. Bruton assumed the inadmissibility, as against the accused, of the implicating confession of his codefendant, and centered upon the question of the effectiveness of a limiting instruction. These decisions, however, by no means require that all statements implicating another person be excluded from the category of declarations against interest. Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. See the dissenting opinion of Mr. Justice White in Bruton. On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying. The rule does not purport to deal with questions of the right of confrontation. The balancing of self-serving against dissenting aspects of a declaration is discussed in McCormick Sec. 256. For comparable provisions, see Uniform Rule 63(10): California Evidence Code Sec. 1230; Kansas Code of Civil Procedure Sec. 60-460(j); New Jersey Evidence Rule 63(10). Exception (4). The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility. See 5 Wigmore Sec. 1483. Item (i)((A)) specifically disclaims any need of firsthand knowledge respecting declarant's own personal history. In some instances it is self-evident (marriage) and in others impossible and traditionally not required (date of birth). Item (ii)((B)) deals with declarations concerning the history of another person. As at common law, declarant is qualified if related by blood or marriage. 5 Wigmore Sec. 1489. In addition, and contrary to the common law, declarant qualifies by virtue of intimate association with the family. Id., Sec. 1487. The requirement sometimes encountered that when the subject of the statement is the relationship between two other persons the declarant must qualify as to both is omitted. Relationship is reciprocal. Id., Sec. 1491. For comparable provisions, see Uniform Rule 63 (23), (24), (25); California Evidence Code Sec. 1310, 1311; Kansas Code of Civil Procedure Sec. 60-460(u), (v), (w); New Jersey Evidence Rules 63(23), 63(24), 63(25). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 804(a)(3) was approved in the form submitted by the Court. However, the Committee intends no change in existing federal law under which the court may choose to disbelieve the declarant's testimony as to his lack of memory. See United States v. Insana, 423 F.2d 1165, 1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841 (1970). Rule 804(a)(5) as submitted to the Congress provided, as one type of situation in which a declarant would be deemed 'unavailable', that he be 'absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.' The Committee amended the Rule to insert after the word 'attendance' the parenthetical expression '(or, in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony)'. The amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable. The Committee, however, recognized the propriety of an exception to this additional requirement when it is the declarant's former testimony that is sought to be admitted under subdivision (b)(1). Rule 804(b)(1) as submitted by the Court allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person 'with motive and interest similar' to his had an opportunity to examine the witness. The Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committee's view, is when a party's predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness. The Committee amended the Rule to reflect these policy determinations. Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the bill) proposed to expand the traditional scope of the dying declaration exception (i.e. a statement of the victim in a homicide case as to the cause or circumstances of his believed imminent death) to allow such statements in all criminal and civil cases. The Committee did not consider dying declarations as among the most reliable forms of hearsay. Consequently, it amended the provision to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. This is existing law. At the same time, the Committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment, although noting that this could lead to forum shopping in some instances. Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in the bill) provided as follows: Statement against interest. - A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to exculpate the accused is not admissible unless corroborated. The Committee determined to retain the traditional hearsay exception for statements against pecuniary or proprietary interest. However, it deemed the Court's additional references to statements tending to subject a declarant to civil liability or to render invalid a claim by him against another to be redundant as included within the scope of the reference to statements against pecuniary or proprietary interest. See Gichner v. Antonio Triano Tile and Marble Co., 410 F.2d 238 (D.C. Cir. 1968). Those additional references were accordingly deleted. The Court's Rule also proposed to expand the hearsay limitation from its present federal limitation to include statements subjecting the declarant to criminal liability and statements tending to make him an object of hatred, ridicule, or disgrace. The Committee eliminated the latter category from the subdivision as lacking sufficient guarantees of reliability. See United States v. Dovico, 380 F.2d 325, 327nn.2,4 (2nd Cir.), cert. denied, 389 U.S. 944 (1967). As for statements against penal interest, the Committee shared the view of the Court that some such statements do possess adequate assurances of reliability and should be admissible. It believed, however, as did the Court, that statements of this type tending to exculpate the accused are more suspect and so should have their admissibility conditioned upon some further provision insuring trustworthiness. The proposal in the Court Rule to add a requirement of simple corroboration was, however, deemed ineffective to accomplish this purpose since the accused's own testimony might suffice while not necessarily increasing the reliability of the hearsay statement. The Committee settled upon the language 'unless corroborating circumstances clearly indicate the trustworthiness of the statement' as affording a proper standard and degree of discretion. It was contemplated that the result in such cases as Donnelly v. United States, 228 U.S. 243 (1912), where the circumstances plainly indicated reliability, would be changed. The Committee also added to the Rule the final sentence from the 1971 Advisory Committee draft, designed to codify the doctrine of Bruton v. United States, 391 U.S. 123 (1968). The Committee does not intend to affect the existing exception to the Bruton principle where the codefendant takes the stand and is subject to cross-examination, but believed there was no need to make specific provision for this situation in the Rule, since in that even the declarant would not be 'unavailable'. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Subdivision (a) of rule 804 as submitted by the Supreme Court defined the conditions under which a witness was considered to be unavailable. It was amended in the House. The purpose of the amendment, according to the report of the House Committee on the Judiciary, is 'primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being unavailable.' Under the House amendment, before a witness is declared unavailable, a party must try to depose a witness (declarant) with respect to dying declarations, declarations against interest, and declarations of pedigree. None of these situations would seem to warrant this needless, impractical and highly restrictive complication. A good case can be made for eliminating the unavailability requirement entirely for declarations against interest cases. (Uniform rule 63(10); Kan. Stat. Anno. 60-460(j); 2A N.J. Stats. Anno. 84-63(10).) In dying declaration cases, the declarant will usually, though not necessarily, be deceased at the time of trial. Pedigree statements which are admittedly and necessarily based largely on word of mouth are not greatly fortified by a deposition requirement. Depositions are expensive and time-consuming. In any event, deposition procedures are available to those who wish to resort to them. Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. No purpose is served unless the deposition, if taken, may be used in evidence. Under Civil Rule (a)(3) and Criminal Rule 15(e), a deposition, though taken, may not be admissible, and under Criminal Rule 15(a) substantial obstacles exist in the way of even taking a deposition. For these reasons, the committee deleted the House amendment. The committee understands that the rule as to unavailability, as explained by the Advisory Committee 'contains no requirement that an attempt be made to take the deposition of a declarant.' In reflecting the committee's judgment, the statement is accurate insofar as it goes. Where, however, the proponent of the statement, with knowledge of the existence of the statement, fails to confront the declarant with the statement at the taking of the deposition, then the proponent should not, in fairness, be permitted to treat the declarant as 'unavailable' simply because the declarant was not amendable to process compelling his attendance at trial. The committee does not consider it necessary to amend the rule to this effect because such a situation abuses, not conforms to, the rule. Fairness would preclude a person from introducing a hearsay statement on a particular issue if the person taking the deposition was aware of the issue at the time of the deposition but failed to depose the unavailable witness on that issue. Former testimony. - Rule 804(b)(1) as submitted by the Court allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person 'with motive and interest similar' to his had an opportunity to examine the witness. The House amended the rule to apply only to a party's predecessor in interest. Although the committee recognizes considerable merit to the rule submitted by the Supreme Court, a position which has been advocated by many scholars and judges, we have concluded that the difference between the two versions is not great and we accept the House amendment. The rule defines those statements which are considered to be against interest and thus of sufficient trustworthiness to be admissible even though hearsay. With regard to the type of interest declared against, the version submitted by the Supreme Court included inter alia, statements tending to subject a declarant to civil liability or to invalidate a claim by him against another. The House struck these provisions as redundant. In view of the conflicting case law construing pecuniary or proprietary interests narrowly so as to exclude, e.g., tort cases, this deletion could be misconstrued. Three States which have recently codified their rules of evidence have followed the Supreme Court's version of this rule, i.e., that a statement is against interest if it tends to subject a declarant to civil liability. (Nev. Rev. Stats. Sec. 51.345; N. Mex. Stats. (1973 supp.) Sec. 20-4-804(4); West's Wis. Stats. Anno. (1973 supp.) Sec. 908.045(4).) The committee believes that the reference to statements tending to subject a person to civil liability constitutes a desirable clarification of the scope of the rule. Therefore, we have reinstated the Supreme Court language on this matter. The Court rule also proposed to expand the hearsay limitation from its present federal limitation to include statements subjecting the declarant to statements tending to make him an object of hatred, ridicule, or disgrace. The House eliminated the latter category from the subdivision as lacking sufficient guarantees of reliability. Although there is considerable support for the admissibility of such statements (all three of the State rules referred to supra, would admit such statements), we accept the deletion by the House. The House amended this exception to add a sentence making inadmissible a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused. The sentence was added to codify the constitutional principle announced in Bruton v. United States, 391 U.S. 123 (1968). Bruton held that the admission of the extrajudicial hearsay statement of one codefendant inculpating a second codefendant violated the confrontation clause of the sixth amendment. The committee decided to delete this provision because the basic approach of the rules is to avoid codifying, or attempting to codify, constitutional evidentiary principles, such as the fifth amendment's right against self-incrimination and, here, the sixth amendment's right of confrontation. Codification of a constitutional principle is unnecessary and, where the principle is under development, often unwise. Furthermore, the House provision does not appear to recognize the exceptions to the Bruton rule, e.g. where the codefendant takes the stand and is subject to cross examination; where the accused confessed, see United States v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied 397 U.S. 942 (1907); where the accused was placed at the scene of the crime, see United States v. Zelker, 452 F.2d 1009 (2d Cir. 1971). For these reasons, the committee decided to delete this provision. Note to Subdivision (b)(5). See Note to Paragraph (24), Notes of Committee on the Judiciary, Senate Report No. 93-1277, set out as a note under rule 803 of these rules. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 Rule 804 defines what hearsay statements are admissible in evidence if the declarant is unavailable as a witness. The Senate amendments make four changes in the rule. Subsection (a) defines the term 'unavailability as a witness'. The House bill provides in subsection (a)(5) that the party who desires to use the statement must be unable to procure the declarant's attendance by process or other reasonable means. In the case of dying declarations, statements against interest and statements of personal or family history, the House bill requires that the proponent must also be unable to procure the declarant's testimony (such as by deposition or interrogatories) by process or other reasonable means. The Senate amendment eliminates this latter provision. The Conference adopts the provision contained in the House bill. The Senate amendment to subsection (b)(3) provides that a statement is against interest and not excluded by the hearsay rule when the declarant is unavailable as a witness, if the statement tends to subject a person to civil or criminal liability or renders invalid a claim by him against another. The House bill did not refer specifically to civil liability and to rendering invalid a claim against another. The Senate amendment also deletes from the House bill the provision that subsection (b)(3) does not apply to a statement or confession, made by a codefendant or another, which implicates the accused and the person who made the statement, when that statement or confession is offered against the accused in a criminal case. The Conference adopts the Senate amendment. The Conferees intend to include within the purview of this rule, statements subjecting a person to civil liability and statements rendering claims invalid. The Conferees agree to delete the provision regarding statements by a codefendant, thereby reflecting the general approach in the Rules of Evidence to avoid attempting to codify constitutional evidentiary principles. The Senate amendment adds a new subsection, (b)(6) (now (b)(5)), which makes admissible a hearsay statement not specifically covered by any of the five previous subsections, if the statement has equivalent circumstantial guarantees of trustworthiness and if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial. The Conference adopts the Senate amendment with an amendment that renumbers this subsection and provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare the contest the use of the statement. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. 1975 AMENDMENT Pub. L. 94-149, Sec. 1(12), substituted a semicolon for the colon in catchline. Subd. (b)(3). Pub. L. 94-149, Sec. 1(13), substituted 'admissible' for 'admissable'. 1988 AMENDMENT Subd. (a)(5). Pub. L. 100-690 substituted 'subdivision' for 'subdivisions'. ------DocID 37241 Document 1103 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 805 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 805. Hearsay Within Hearsay -STATUTE- Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES On principle it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception. Thus a hospital record might contain an entry of the patient's age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurances. Or, further to illustrate, a dying declaration may incorporate a declaration against interest by another declarant. See McCormick Sec. 290, p. 611. ------DocID 37242 Document 1104 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 806 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE VIII -HEAD- Rule 806. Attacking and Supporting Credibility of Declarant -STATUTE- When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609. There are however, some special aspects of the impeaching of a hearsay declarant which require consideration. These special aspects center upon impeachment by inconsistent statement, arise from factual differences which exist between the use of hearsay and an actual witness and also between various kinds of hearsay, and involve the question of applying to declarants the general rule disallowing evidence of an inconsistent statement to impeach a witness unless he is afforded an opportunity to deny or explain. See Rule 613(b). The principle difference between using hearsay and an actual witness is that the inconsistent statement will in the case of the witness almost inevitably of necessity in the nature of things be a prior statement, which it is entirely possible and feasible to call to his attention, while in the case of hearsay the inconsistent statement may well be a subsequent one, which practically precludes calling it to the attention of the declarant. The result of insisting upon observation of this impossible requirement in the hearsay situation is to deny the opponent, already barred from cross-examination, any benefit of this important technique of impeachment. The writers favor allowing the subsequent statement. McCormick Sec. 37, p. 69; 3 Wigmore Sec. 1033. The cases, however, are divided. Cases allowing the impeachment include People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946); People v. Rosoto, 58 Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867 (1962); Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897). Contra, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); People v. Hines, 284 N.Y. 93, 29 N.E.2d 483 (1940). The force of Mattox, where the hearsay was the former testimony of a deceased witness and the denial of use of a subsequent inconsistent statement was upheld, is much diminished by Carver, where the hearsay was a dying declaration and denial of use of a subsequent inconsistent statement resulted in reversal. The difference in the particular brand of hearsay seems unimportant when the inconsistent statement is a subsequent one. True, the opponent is not totally deprived of cross-examination when the hearsay is former testimony or a deposition but he is deprived of cross-examining on the statement or along lines suggested by it. Mr. Justice Shiras, with two justices joining him, dissented vigorously in Mattox. When the impeaching statement was made prior to the hearsay statement, differences in the kinds of hearsay appear which arguably may justify differences in treatment. If the hearsay consisted of a simple statement by the witness, e.g. a dying declaration or a declaration against interest, the feasibility of affording him an opportunity to deny or explain encounters the same practical impossibility as where the statement is a subsequent one, just discussed, although here the impossibility arises from the total absence of anything resembling a hearing at which the matter could be put to him. The courts by a large majority have ruled in favor of allowing the statement to be used under these circumstances. McCormick Sec. 37, p. 69; 3 Wigmore Sec. 1033. If, however, the hearsay consists of former testimony or a deposition, the possibility of calling the prior statement to the attention of the witness or deponent is not ruled out, since the opportunity to cross-examine was available. It might thus be concluded that with former testimony or depositions the conventional foundation should be insisted upon. Most of the cases involve depositions, and Wigmore describes them as divided. 3 Wigmore Sec. 1031. Deposition procedures at best are cumbersome and expensive, and to require the laying of the foundation may impose an undue burden. Under the federal practice, there is no way of knowing with certainty at the time of taking a deposition whether it is merely for discovery or will ultimately end up in evidence. With respect to both former testimony and depositions the possibility exists that knowledge of the statement might not be acquired until after the time of the cross-examination. Moreover, the expanded admissibility of former testimony and depositions under Rule 804(b)(1) calls for a correspondingly expanded approach to impeachment. The rule dispenses with the requirement in all hearsay situations, which is readily administered and best calculated to lead to fair results. Notice should be taken that Rule 26(f) of the Federal Rules of Civil Procedure, as originally submitted by the Advisory Committee, ended with the following: '* * * and, without having first called them to the deponent's attention, may show statements contradictory thereto made at any time by the deponent.' This language did not appear in the rule as promulgated in December, 1937. See 4 Moore's Federal Practice 26.01(9), 26.35 (2d ed. 1967). In 1951, Nebraska adopted a provision strongly resembling the one stricken from the federal rule: 'Any party may impeach any adverse deponent by self-contradiction without having laid foundation for such impeachment at the time such deposition was taken.' R.S.Neb. Sec. 25-1267.07. For similar provisions, see Uniform Rule 65; California Evidence Code Sec. 1202; Kansas Code of Civil Procedure Sec. 60-462; New Jersey Evidence Rule 65. The provision for cross-examination of a declarant upon his hearsay statement is a corollary of general principles of cross-examination. A similar provision is found in California Evidence Code Sec. 1203. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277 Rule 906, as passed by the House and as proposed by the Supreme Court provides that whenever a hearsay statement is admitted, the credibility of the declarant of the statement may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Rule 801 defines what is a hearsay statement. While statements by a person authorized by a party-opponent to make a statement concerning the subject, by the party-opponent's agent or by a coconspirator of a party - see rule 801(d)(2)(c), (d) and (e) - are traditionally defined as exceptions to the hearsay rule, rule 801 defines such admission by a party-opponent as statements which are not hearsay. Consequently, rule 806 by referring exclusively to the admission of hearsay statements, does not appear to allow the credibility of the declarant to be attacked when the declarant is a coconspirator, agent or authorized spokesman. The committee is of the view that such statements should open the declarant to attacks on his credibility. Indeed, the reason such statements are excluded from the operation of rule 806 is likely attributable to the drafting technique used to codify the hearsay rule, viz some statements, instead of being referred to as exceptions to the hearsay rule, are defined as statements which are not hearsay. The phrase 'or a statement defined in rule 801(d)(2)(c), (d) and (e)' is added to the rule in order to subject the declarant of such statements, like the declarant of hearsay statements, to attacks on his credibility. (The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B) - the statement by the party-opponent himself or the statement of which he has manifested his adoption - because the credibility of the party-opponent is always subject to an attack on his credibility). NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597 The Senate amendment permits an attack upon the credibility of the declarant of a statement if the statement is one by a person authorized by a party-opponent to make a statement concerning the subject, one by an agent of a party-opponent, or one by a coconspirator of the party-opponent, as these statements are defined in Rules 801(d)(2)(C), (D) and (E). The House bill has no such provision. The Conference adopts the Senate amendment. The Senate amendment conforms the rule to present practice. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37243 Document 1105 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE IX -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IX -HEAD- ARTICLE IX. AUTHENTICATION AND IDENTIFICATION ------DocID 37244 Document 1106 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 901 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IX -HEAD- Rule 901. Requirement of Authentication or Identification -STATUTE- (a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. - By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. - Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. - Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. - Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. - Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. - Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations. - Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. - Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8) Ancient documents or data compilation. - Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9) Process or system. - Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. - Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). Authentication and identification represent a special aspect of relevancy. Michael and Adler, Real Proof, 5 Vand.L.Rev. 344, 362 (1952); McCormick Sec. 179, 185; Morgan, Basic Problems of Evidence 378. (1962). Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved. Wigmore describes the need for authentication as 'an inherent logical necessity.' 7 Wigmore Sec. 2129, p. 564. This requirement of showing authenticity or identity fails in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b). The common law approach to authentication of documents has been criticized as an 'attitude of agnosticism,' McCormick, Cases on Evidence 388, n. 4 (3rd ed. 1956), as one which 'departs sharply from men's customs in ordinary affairs,' and as presenting only a slight obstacle to the introduction of forgeries in comparison to the time and expense devoted to proving genuine writings which correctly show their origin on their face, McCormick Sec. 185, pp. 395, 396. Today, such available procedures as requests to admit and pretrial conference afford the means of eliminating much of the need for authentication or identification. Also, significant inroads upon the traditional insistence on authentication and identification have been made by accepting as at least prima facie genuine items of the kind treated in Rule 902, infra. However, the need for suitable methods of proof still remains, since criminal cases pose their own obstacles to the use of preliminary procedures, unforeseen contingencies may arise, and cases of genuine controversy will still occur. Subdivision (b). The treatment of authentication and identification draws largely upon the experience embodied in the common law and in statutes to furnish illustrative applications of the general principle set forth in subdivision (a). The examples are not intended as an exclusive enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and development in this area of the law. The examples relate for the most part to documents, with some attention given to voice communications and computer print-outs. As Wigmore noted, no special rules have been developed for authenticating chattels. Wigmore, Code of Evidence Sec. 2086 (3rd ed. 1942). It should be observed that compliance with requirements of authentication or identification by no means assures admission of an item into evidence, as other bars, hearsay for example, may remain. Example (1). Example (1) contemplates a broad spectrum ranging from testimony of a witness who was present at the signing of a document to testimony establishing narcotics as taken from an accused and accounting for custody through the period until trial, including laboratory analysis. See California Evidence Code Sec. 1413, eyewitness to signing. Example (2). Example (2) states conventional doctrine as to lay identification of handwriting, which recognizes that a sufficient familiarity with the handwriting of another person may be acquired by seeing him write, by exchanging correspondence, or by other means, to afford a basis for identifying it on subsequent occasions. McCormick Sec. 189. See also California Evidence Code Sec. 1416. Testimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows. Example (3). The history of common law restrictions upon the technique of proving or disproving the genuineness of a disputed specimen of handwriting through comparison with a genuine specimen, by either the testimony of expert witnesses or direct viewing by the triers themselves, is detailed in 7 Wigmore Sec. 1991-1994. In breaking away, the English Common Law Procedure Act of 1854, 17 and 18 Viet., c. 125, Sec. 27, cautiously allowed expert or trier to use exemplars 'proved to the satisfaction of the judge to be genuine' for purposes of comparison. The language found its way into numerous statutes in this country, e.g., California Evidence Code Sec. 1417, 1418. While explainable as a measure of prudence in the process of breaking with precedent in the handwriting situation, the reservation to the judge of the question of the genuineness of exemplars and the imposition of an unusually high standard of persuasion are at variance with the general treatment of relevancy which depends upon fulfillment of a condition of fact. Rule 104(b). No similar attitude is found in other comparison situations, e.g., ballistics comparison by jury, as in Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), or by experts, Annot. 26 A.L.R.2d 892, and no reason appears for its continued existence in handwriting cases. Consequently Example (3) sets no higher standard for handwriting specimens and treats all comparison situations alike, to be governed by Rule 104(b). This approach is consistent with 28 U.S.C. Sec. 1731: '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.' Precedent supports the acceptance of visual comparison as sufficiently satisfying preliminary authentication requirements for admission in evidence. Brandon v. Collins, 267 F.2d 731 (2d Cir. 1959); Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue, 61 F.2d 879 (7th Cir. 1932); Desimone v. United States, 227 F.2d 864 (9th Cir. 1955). Example (4). The characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety. Thus a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him; Globe Automatic Sprinkler Co. v. Braniff, 89 Okl. 105, 214 P. 127 (1923); California Evidence Code Sec. 1421; similarly, a letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one. McCormick Sec. 192; California Evidence Code Sec. 1420. Language patterns may indicate authenticity or its opposite. Magnuson v. State, 187 Wis. 122, 203 N.W. 749 (1925); Arens and Meadow, Psycholinguistics and the Confession Dilemma, 56 Colum.L.Rev. 19 (1956). Example (5). Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting. Cf. Example (2), supra, People v. Nichols, 378 Ill. 487, 38 N.E.2d 766 (1942); McGuire v. State, 200 Md. 601, 92 A.2d 582 (1952); State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935). Example (6). The cases are in agreement that a mere assertion of his identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation and that additional evidence of his identity is required. The additional evidence need not fall in any set pattern. Thus the content of his statements or the reply technique, under Example (4), supra, or voice identification under Example (5), may furnish the necessary foundation. Outgoing calls made by the witness involve additional factors bearing upon authenticity. The calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached. If the number is that of a place of business, the mass of authority allows an ensuing conversation if it relates to business reasonably transacted over the telephone, on the theory that the maintenance of the telephone connection is an invitation to do business without further identification. Matton v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557 (1942); City of Pawhuska v. Crutchfield, 147 Okl. 4. 293 P. 1095 (1930); Zurich General Acc. & Liability Ins. Co. v. Baum, 159 Va. 404, 165 S.E. 518 (1932). Otherwise, some additional circumstance of identification of the speaker is required. The authorities divide on the question whether the self-identifying statement of the person answering suffices. Example (6) answers in the affirmative on the assumption that usual conduct respecting telephone calls furnish adequate assurances of regularity, bearing in mind that the entire matter is open to exploration before the trier of fact. In general, see McCormick Sec. 193; 7 Wigmore Sec. 2155; Annot., 71 A.L.R. 5, 105 id. 326. Example (7). Public records are regularly authenticated by proof of custody, without more. McCormick Sec. 191; 7 Wigmore Sec. 2158, 2159. The example extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected. See California Evidence Code Sec. 1532, 1600. Example (8). The familiar ancient document rule of the common law is extended to include data stored electronically or by other similar means. Since the importance of appearance diminishes in this situation, the importance of custody or place where found increases correspondingly. This expansion is necessary in view of the widespread use of methods of storing data in forms other than conventional written records. Any time period selected is bound to be arbitrary. The common law period of 30 years is here reduced to 20 years, with some shift of emphasis from the probable unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time. The shorter period is specified in the English Evidence Act of 1938, 1 & 2 Geo. 6, c. 28, and in Oregon R.S. 1963, Sec. 41.360(34). See also the numerous statutes prescribing periods of less than 30 years in the case of recorded documents. 7 Wigmore Sec. 2143. The application of Example (8) is not subject to any limitation to title documents or to any requirement that possession, in the case of a title document, has been consistent with the document. See McCormick Sec. 190. Example (9). Example (9) is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X-rays afford a familiar instance. Among more recent developments is the computer, as to which see Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968); Merrick v. United States Rubber Co., 7 Ariz.App. 433, 440 P.2d 314 (1968); Freed, Computer Print-Outs as Evidence, 16 Am.Jur. Proof of Facts 273; Symposium, Law and Computers in the Mid-Sixties, ALI-ABA (1966); 37 Albany L.Rev. 61 (1967). Example (9) does not, of course, foreclose taking judicial notice of the accuracy of the process or system. Example (10). The example makes clear that methods of authentication provided by Act of Congress and by the Rules of Civil and Criminal Procedure or by Bankruptcy Rules are not intended to be superseded. Illustrative are the provisions for authentication of official records in Civil Procedure Rule 44 and Criminal Procedure Rule 27, for authentication of records of proceedings by court reporters in 28 U.S.C. Sec. 753(b) and Civil Procedure Rule 80(c), and for authentication of depositions in Civil Procedure Rule 30(f). ------DocID 37245 Document 1107 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 902 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IX -HEAD- Rule 902. Self-authentication -STATUTE- Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. - A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic public documents not under seal. - A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. (3) Foreign public documents. - A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (4) Certified copies of public records. - A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. - Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and periodicals. - Printed materials purporting to be newspapers or periodicals. (7) Trade inscriptions and the like. - Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. - Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial paper and related documents. - Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. (10) Presumptions under Acts of Congress. - Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1944; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect, sometimes for reasons of policy but perhaps more often because practical considerations reduce the possibility of unauthenticity to a very small dimension. The present rule collects and incorporates these situations, in some instances expanding them to occupy a larger area which their underlying considerations justify. In no instance is the opposite party foreclosed from disputing authenticity. Paragraph (1). The acceptance of documents bearing a public seal and signature, most often encountered in practice in the form of acknowledgments or certificates authenticating copies of public records, is actually of broad application. Whether theoretically based in whole or in part upon judicial notice, the practical underlying considerations are that forgery is a crime and detection is fairly easy and certain. 7 Wigmore Sec. 2161, p. 638; California Evidence Code Sec. 1452. More than 50 provisions for judicial notice of official seals are contained in the United States Code. Paragraph (2). While statutes are found which raise a presumption of genuineness of purported official signatures in the absence of an official seal, 7 Wigmore Sec. 2167; California Evidence Code Sec. 1453, the greater ease of effecting a forgery under these circumstances is apparent. Hence this paragraph of the rule calls for authentication by an officer who has a seal. Notarial acts by members of the armed forces and other special situations are covered in paragraph (10). Paragraph (3) provides a method for extending the presumption of authenticity to foreign official documents by a procedure of certification. It is derived from Rule 44(a)(2) of the Rules of Civil Procedure but is broader in applying to public documents rather than being limited to public records. Paragraph (4). The common law and innumerable statutes have recognized the procedure of authenticating copies of public records by certificate. The certificate qualifies as a public document, receivable as authentic when in conformity with paragraph (1), (2), or (3). Rule 44(a) of the Rules of Civil Procedure and Rule 27 of the Rules of Criminal Procedure have provided authentication procedures of this nature for both domestic and foreign public records. It will be observed that the certification procedure here provided extends only to public records, reports, and recorded documents, all including data compilations, and does not apply to public documents generally. Hence documents provable when presented in original form under paragraphs (1), (2), or (3) may not be provable by certified copy under paragraph (4). Paragraph (5). Dispensing with preliminary proof of the genuineness of purportedly official publications, most commonly encountered in connection with statutes, court reports, rules, and regulations, has been greatly enlarged by statutes and decisions. 5 Wigmore Sec. 1684. Paragraph (5), it will be noted, does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility. Rule 44(a) of the Rules of Civil Procedure has been to the same effect. Paragraph (6). The likelihood of forgery of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them. Establishing the authenticity of the publication may, of course, leave still open questions of authority and responsibility for items therein contained. See 7 Wigmore Sec. 2150. Cf. 39 U.S.C. Sec. 4005(b), public advertisement prima facie evidence of agency of person named, in postal fraud order proceeding; Canadian Uniform Evidence Act, Draft of 1936, printed copy of newspaper prima facie evidence that notices or advertisements were authorized. Paragraph (7). Several factors justify dispensing with preliminary proof of genuineness of commercial and mercantile labels and the like. The risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them. Hence the fairness of this treatment finds recognition in the cases. Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762 (1932), Baby Ruth candy bar; Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325 (1928), loaf of bread; Weiner v. Mager & Throne, Inc., 167 Misc. 338, 3 N.Y.S.2d 918 (1938), same. And see W.Va.Code 1966, Sec. 47-3-5, trade-mark on bottle prima facie evidence of ownership. Contra, Keegan v. Green Giant Co., 150 Me. 283, 110 A.2d 599 (1954); Murphy v. Campbell Soup Co., 62 F.2d 564 (1st Cir. 1933). Cattle brands have received similar acceptance in the western states. Rev.Code Mont.1947, Sec. 46-606; State v. Wolfley, 75 Kan. 406, 89 P. 1046 (1907); Annot., 11 L.R.A. (N.S.) 87. Inscriptions on trains and vehicles are held to be prima facie evidence of ownership or control. Pittsburgh, Ft. W. & C. Ry. v. Callaghan, 157 Ill. 406, 41 N.E. 909 (1895); 9 Wigmore Sec. 2510a. See also the provision of 19 U.S.C. Sec. 1615(2) that marks, labels, brands, or stamps indicating foreign origin are prima facie evidence of foreign origin of merchandise. Paragraph (8). In virtually every state, acknowledged title documents are receivable in evidence without further proof. Statutes are collected in 5 Wigmore Sec. 1676. If this authentication suffices for documents of the importance of those affecting titles, logic scarcely permits denying this method when other kinds of documents are involved. Instances of broadly inclusive statutes are California Evidence Code Sec. 1451 and N.Y.CPLR 4538, McKinney's Consol. Laws 1963. Paragraph (9). Issues of the authenticity of commercial paper in federal courts will usually arise in diversity cases, will involve an element of a cause of action or defense, and with respect to presumptions and burden of proof will be controlled by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Rule 302, supra. There may, however, be questions of authenticity involving lesser segments of a case or the case may be one governed by federal common law. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Cf. United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). In these situations, resort to the useful authentication provisions of the Uniform Commercial Code is provided for. While the phrasing is in terms of 'general commercial law,' in order to avoid the potential complication inherent in borrowing local statutes, today one would have difficulty in determining the general commercial law without referring to the Code. See Williams v. Walker-Thomas-Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445 (1965). Pertinent Code provisions are sections 1-202, 3-307, and 3-510, dealing with third-party documents, signatures on negotiable instruments, protests, and statements of dishonor. Paragraph (10). The paragraph continues in effect dispensations with preliminary proof of genuineness provided in various Acts of Congress. See, for example, 10 U.S.C. Sec. 936, signature, without seal, together with title, prima facie evidence of authenticity of acts of certain military personnel who are given notarial power; 15 U.S.C. Sec. 77f(a), signature on SEC registration presumed genuine; 26 U.S.C. Sec. 6064, signature to tax return prima facie genuine. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Rule 902(8) as submitted by the Court referred to certificates of acknowledgment 'under the hand and seal of' a notary public or other officer authorized by law to take acknowledgments. The Committee amended the Rule to eliminate the requirement, believed to be inconsistent with the law in some States, that a notary public must affix a seal to a document acknowledged before him. As amended the Rule merely requires that the document be executed in the manner prescribed by State law. The Committee approved Rule 902(9) as submitted by the Court. With respect to the meaning of the phrase 'general commercial law', the Committee intends that the Uniform Commercial Code, which has been adopted in virtually every State, will be followed generally, but that federal commercial law will apply where federal commercial paper is involved. See Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). Further, in those instances in which the issues are governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), State law will apply irrespective of whether it is the Uniform Commercial Code. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT These two sentences were inadvertently eliminated from the 1987 amendments. The amendment is technical. No substantive change is intended. ------DocID 37246 Document 1108 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 903 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE IX -HEAD- Rule 903. Subscribing Witness' Testimony Unnecessary -STATUTE- The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The common law required that attesting witnesses be produced or accounted for. Today the requirement has generally been abolished except with respect to documents which must be attested to be valid, e.g. wills in some states. McCormick Sec. 188. Uniform Rule 71; California Evidence Code Sec. 1411; Kansas Code of Civil Procedure Sec. 60-468; New Jersey Evidence Rule 71; New York CPLR Rule 4537. ------DocID 37247 Document 1109 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE X -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS ------DocID 37248 Document 1110 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1001 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1001. Definitions -STATUTE- For purposes of this article the following definitions are applicable: (1) Writings and recordings. - 'Writings' and 'recordings' consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs. - 'Photographs' include still photographs, X-ray films, video tapes, and motion pictures. (3) Original. - An 'original' of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An 'original' of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original'. (4) Duplicate. - A 'duplicate' is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES In an earlier day, when discovery and other related procedures were strictly limited, the misleading named 'best evidence rule' afforded substantial guarantees against inaccuracies and fraud by its insistence upon production of original documents. The great enlargement of the scope of discovery and related procedures in recent times has measurably reduced the need for the rule. Nevertheless important areas of usefulness persist: discovery of documents outside the jurisdiction may require substantial outlay of time and money; the unanticipated document may not practically be discoverable; criminal cases have built-in limitations on discovery. Cleary and Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825 (1966). Paragraph (1). Traditionally the rule requiring the original centered upon accumulations of data and expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to writings. Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments. Paragraph (3). In most instances, what is an original will be self-evident and further refinement will be unnecessary. However, in some instances particularized definition is required. A carbn copy of a contract executed in duplicate becomes an original, as does a sales ticket carbon copy given to a customer. While strictly speaking the original of a photograph might be thought to be only the negative, practicality and common usage require that any print from the negative be regarded as an original. Similarly, practicality and usage confer the status of original upon any computer printout. Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965). Paragraph (4). The definition describes 'copies' produced by methods possessing an accuracy which virtually eliminates the possibility of error. Copies thus produced are given the status of originals in large measure by Rule 1003, infra. Copies subsequently produced manually, whether handwritten or typed, are not within the definition. It should be noted that what is an original for some purposes may be a duplicate for others. Thus a bank's microfilm record of checks cleared is the original as a record. However, a print offered as a copy of a check whose contents are in controversy is a duplicate. This result is substantially consistent with 28 U.S.C. Sec. 1732(b). Compare 26 U.S.C. Sec. 7513(c), giving full status as originals to photographic reproductions of tax returns and other documents, made by authority of the Secretary of the Treasury, and 44 U.S.C. Sec. 399(a), giving original status to photographic copies in the National Archives. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 The Committee amended this Rule expressly to include 'video tapes' in the definition of 'photographs.' ------DocID 37249 Document 1111 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1002 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1002. Requirement of Original -STATUTE- To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The rule is the familiar one requiring production of the original of a document to prove its contents, expanded to include writings, recordings, and photographs, as defined in Rule 1001(1) and (2), supra. Application of the rule requires a resolution of the question whether contents are sought to be proved. Thus an event may be proved by nondocumentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies. For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered. McCormick Sec. 198; 4 Wigmore Sec. 1245. Nor does the rule apply to testimony that books or records have been examined and found not to contain any reference to a designated matter. The assumption should not be made that the rule will come into operation on every occasion when use is made of a photograph in evidence. On the contrary, the rule will seldom apply to ordinary photographs. In most instances a party wishes to introduce the item and the question raised is the propriety of receiving it in evidence. Cases in which an offer is made of the testimony of a witness as to what he saw in a photograph or motion picture, without producing the same, are most unusual. The usual course is for a witness on the stand to identify the photograph or motion picture as a correct representation of events which he saw or of a scene with which he is familiar. In fact he adopts the picture as his testimony, or, in common parlance, uses the picture to illustrate his testimony. Under these circumstances, no effort is made to prove the contents of the picture, and the rule is inapplicable. Paradis, The Celluloid Witness, 37 U.Colo.L. Rev. 235, 249-251 (1965). On occasion, however, situations arise in which contents are sought to be proved. Copyright, defamation, and invasion of privacy by photograph or motion picture falls in this category. Similarly as to situations in which the picture is offered as having independent probative value, e.g. automatic photograph of bank robber. See People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792 (1948) photograph of defendants engaged in indecent act; Mouser and Philbin, Photographic Evidence - Is There a Recognized Basis for Admissibility? 8 Hastings L.J. 310 (1957). The most commonly encountered of this latter group is of course, the X-ray, with substantial authority calling for production of the original. Daniels v. Iowa City, 191 Iowa 811, 183 N.W. 415 (1921); Cellamare v. Third Acc. Transit Corp., 273 App.Div. 260, 77 N.Y.S.2d 91 (1948); Patrick & Tilman v. Matkin, 154 Okl. 232, 7 P.2d 414 (1932); Mendoza v. Rivera, 78 P.R.R. 569 (1955) It should be noted, however, that Rule 703, supra, allows an expert to give an opinion based on matters not in evidence, and the present rule must be read as being limited accordingly in its application. Hospital records which may be admitted as business records under Rule 803(6) commonly contain reports interpreting X-rays by the staff radiologist, who qualifies as an expert, and these reports need not be excluded from the records by the instant rule. The reference to Acts of Congress is made in view of such statutory provisions as 26 U.S.C. Sec. 7513, photographic reproductions of tax returns and documents, made by authority of the Secretary of the Treasury, treated as originals, and 44 U.S.C. Sec. 399(a), photographic copies in National Archives treated as originals. ------DocID 37250 Document 1112 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1003 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1003. Admissibility of Duplicates -STATUTE- A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness. By definition in Rule 1001(4), supra, a 'duplicate' possesses this character. Therefore, if no genuine issue exists as to authenticity and no other reason exists for requiring the original, a duplicate is admissible under the rule. This position finds support in the decisions, Myrick v. United States, 332 F.2d 279 (5th Cir. 1964), no error in admitting photostatic copies of checks instead of original microfilm in absence of suggestion to trial judge that photostats were incorrect; Johns v. United States, 323 F.2d 421 (5th Cir. 1963), not error to admit concededly accurate tape recording made from original wire recording; Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963), not error to admit copy of agreement when opponent had original and did not on appeal claim any discrepancy. Other reasons for requiring the original may be present when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964). And see Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd., 265 F.2d 418, 76 A.L.R.2d 1344 (2d Cir. 1959). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 The Committee approved this Rule in the form submitted by the Court, with the expectation that the courts would be liberal in deciding that a 'genuine question is raised as to the authenticity of the original.' ------DocID 37251 Document 1113 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1004 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1004. Admissibility of Other Evidence of Contents -STATUTE- The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if - (1) Originals lost or destroyed. - All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. - No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. - At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral matters. - The writing, recording, or photograph is not closely related to a controlling issue. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Basically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactory explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused. The rule recognizes no 'degrees' of secondary evidence. While strict logic might call for extending the principle of preference beyond simply preferring the original, the formulation of a hierarchy of preferences and a procedure for making it effective is believed to involve unwarranted complexities. Most, if not all, that would be accomplished by an extended scheme of preferences will, in any event, be achieved through the normal motivation of a party to present the most convincing evidence possible and the arguments and procedures available to his opponent if he does not. Compare McCormick Sec. 207. Paragraph (1). Loss or destruction of the original, unless due to bad faith of the proponent, is a satisfactory explanation of nonproduction. McCormick Sec. 201. Paragraph (2). When the original is in the possession of a third person, inability to procure it from him by resort to process or other judicial procedure is sufficient explanation of nonproduction. Judicial procedure includes subpoena duces tecum as an incident to the taking of a deposition in another jurisdiction. No further showing is required. See McCormick Sec. 202. Paragraph (3). A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original. The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so. McCormick Sec. 203. Paragraph (4). While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick Sec. 200, p. 412, n. 1. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 The Committee approved Rule 1004(1) in the form submitted to Congress. However, the Committee intends that loss or destruction of an original by another person at the instigation of the proponent should be considered as tantamount to loss or destruction in bad faith by the proponent himself. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendments are technical. No substantive change is intended. ------DocID 37252 Document 1114 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1005 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1005. Public Records -STATUTE- The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Public records call for somewhat different treatment. Removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian. As a consequence judicial decisions and statutes commonly hold that no explanation need be given for failure to produce the original of a public record. McCormick Sec. 204; 4 Wigmore Sec. 1215-1228. This blanket dispensation from producing or accounting for the original would open the door to the introduction of every kind of secondary evidence of contents of public records were it not for the preference given certified or compared copies. Recognition of degrees of secondary evidence in this situation is an appropriate quid pro quo for not applying the requirement of producing the original. The provisions of 28 U.S.C. Sec. 1733(b) apply only to departments or agencies of the United States. The rule, however, applies to public records generally and is comparable in scope in this respect to Rule 44(a) of the Rules of Civil Procedure. ------DocID 37253 Document 1115 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1006 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1006. Summaries -STATUTE- The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES The admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury. The rule recognizes this practice, with appropriate safeguards. 4 Wigmore Sec. 1230. ------DocID 37254 Document 1116 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1007 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1007. Testimony or Written Admission of Party -STATUTE- Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Mar. 2, 1987, eff. Oct. 1, 1987.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579 (Exch. 1840), allows proof of contents by evidence of an oral admission by the party against whom offered, without accounting for nonproduction of the original, the risk of inaccuracy is substantial and the decision is at odds with the purpose of the rule giving preference to the original. See 4 Wigmore Sec. 1255. The instant rule follows Professor McCormick's suggestion of limiting this use of admissions to those made in the course of giving testimony or in writing. McCormick Sec. 208, p. 424. The limitation, of course, does not call for excluding evidence of an oral admission when nonproduction of the original has been accounted for and secondary evidence generally has become admissible. Rule 1004, supra. A similar provision is contained in New Jersey Evidence Rule 70(1)(h). NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT The amendment is technical. No substantive change is intended. ------DocID 37255 Document 1117 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1008 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE X -HEAD- Rule 1008. Functions of Court and Jury -STATUTE- When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge. However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue. Levin, Authentication and Content of Writings, 10 Rutgers L.Rev. 632, 644 (1956). The latter portion of the instant rule is designed to insure treatment of these situations as raising jury questions. The decision is not one for uncontrolled discretion of the jury but is subject to the control exercised generally by the judge over jury determinations. See Rule 104(b), supra. For similar provisions, see Uniform Rule 70(2); Kansas Code of Civil Procedure Sec. 60-467(b); New Jersey Evidence Rule 70(2), (3). ------DocID 37256 Document 1118 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE ARTICLE XI -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE XI -HEAD- ARTICLE XI. MISCELLANEOUS RULES ------DocID 37257 Document 1119 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1101 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE XI -HEAD- Rule 1101. Applicability of Rules -STATUTE- (a) Courts and magistrates. - These rules apply to the United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the District Court for the Northern Mariana Islands, the United States courts of appeals, the United States Claims Court, and to United States bankruptcy judges and United States magistrates, in the actions, cases, and proceedings and to the extent hereinafter set forth. The terms 'judge' and 'court' in these rules include United States bankruptcy judges and United States magistrates. (b) Proceedings generally. - These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code. (c) Rule of privilege. - The rule with respect to privileges applies at all stages of all actions, cases, and proceedings. (d) Rules inapplicable. - The rules (other than with respect to privileges) do not apply in the following situations: (1) Preliminary questions of fact. - The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104. (2) Grand jury. - Proceedings before grand juries. (3) Miscellaneous proceedings. - Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise. (e) Rules applicable in part. - In the following proceedings these rules apply to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority: the trial of minor and petty offenses by United States magistrates; review of agency actions when the facts are subject to trial de novo under section 706(2)(F) of title 5, United States Code; review of orders of the Secretary of Agriculture under section 2 of the Act entitled 'An Act to authorize association of producers of agricultural products' approved February 18, 1922 (7 U.S.C. 292), and under sections 6 and 7(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499f, 499g(c)); naturalization and revocation of naturalization under sections 310-318 of the Immigration and Nationality Act (8 U.S.C. 1421-1429); prize proceedings in admiralty under sections 7651-7681 of title 10, United States Code; review of orders of the Secretary of the Interior under section 2 of the Act entitled 'An Act authorizing associations of producers of aquatic products' approved June 25, 1934 (15 U.S.C. 522); review of orders of petroleum control boards under section 5 of the Act entitled 'An Act to regulate interstate and foreign commerce in petroleum and its products by prohibiting the shipment in such commerce of petroleum and its products produced in violation of State law, and for other purposes', approved February 22, 1935 (15 U.S.C. 715d); actions for fines, penalties, or forfeitures under part V of title IV of the Tariff Act of 1930 (19 U.S.C. 1581-1624), or under the Anti-Smuggling Act (19 U.S.C. 1701-1711); criminal libel for condemnation, exclusion of imports, or other proceedings under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392); disputes between seamen under sections 4079, 4080, and 4081 of the Revised Statutes (22 U.S.C. 256-258); habeas corpus under sections 2241-2254 of title 28, United States Code; motions to vacate, set aside or correct sentence under section 2255 of title 28, United States Code; actions for penalties for refusal to transport destitute seamen under section 4578 of the Revised Statutes (46 U.S.C. 679); (FOOTNOTE 1) actions against the United States under the Act entitled 'An Act authorizing suits against the United States in admiralty for damage caused by and salvage service rendered to public vessels belonging to the United States, and for other purposes', approved March 3, 1925 (46 U.S.C. 781-790), as implemented by section 7730 of title 10, United States Code. (FOOTNOTE 1) Repealed and reenacted as 46 U.S.C. 11104(b)-(d) by Pub. L. 98-89, Sec. 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Pub. L. 94-149, Sec. 1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L. 95-598, title II, Sec. 251, 252, Nov. 6, 1978, 92 Stat. 2673; Pub. L. 97-164, title I, Sec. 142, Apr. 2, 1982, 96 Stat. 45; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100-690, title VII, Sec. 7075(c), Nov. 18, 1988, 102 Stat. 4405.) -MISC1- NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES Subdivision (a). The various enabling acts contain differences in phraseology in their descriptions of the courts over which the Supreme Court's power to make rules of practice and procedure extends. The act concerning civil actions, as amended in 1966, refers to 'the district courts * * * of the United States in civil actions, including admiralty and maritime cases. * * *' 28 U.S.C. Sec. 2072, Pub. L. 89-773, Sec. 1, 80 Stat. 1323. The bankruptcy authorization is for rules of practice and procedure 'under the Bankruptcy Act.' 28 U.S.C. Sec. 2075, Pub. L. 88-623, Sec. 1, 78 Stat. 1001. The Bankruptcy Act in turn creates bankruptcy courts of 'the United States district courts and the district courts of the Territories and possessions to which this title is or may hereafter be applicable.' 11 U.S.C. Sec. 1(10), 11(a). The provision as to criminal rules up to and including verdicts applies to 'criminal cases and proceedings to punish for criminal contempt of court in the United States district courts, in the district courts for the districts of the Canal Zone and Virgin Islands, in the Supreme Court of Puerto Rico, and in proceedings before United States magistrates.' 18 U.S.C. Sec. 3771. These various provisions do not in terms describe the same courts. In congressional usage the phrase 'district courts of the United States,' without further qualification, traditionally has included the district courts established by Congress in the states under Article III of the Constitution, which are 'constitutional' courts, and has not included the territorial courts created under Article IV, Section 3, Clause 2, which are 'legislative' courts. Hornbuckle v. Toombs, 85 U.S. 648, 21 L.Ed. 966 (1873). However, any doubt as to the inclusion of the District Court for the District of Columbia in the phrase is laid at rest by the provisions of the Judicial Code constituting the judicial districts, 28 U.S.C. Sec. 81 et seq. creating district courts therein, Id. Sec. 132, and specifically providing that the term 'district court of the United States' means the courts so constituted. Id. Sec. 451. The District of Columbia is included. Id. Sec. 88. Moreover, when these provisions were enacted, reference to the District of Columbia was deleted from the original civil rules enabling act. 28 U.S.C. Sec. 2072. Likewise Puerto Rico is made a district, with a district court, and included in the term. Id. Sec. 119. The question is simply one of the extent of the authority conferred by Congress. With respect to civil rules it seems clearly to include the district courts in the states, the District Court for the District of Columbia, and the District Court for the District of Puerto Rico. The bankruptcy coverage is broader. The bankruptcy courts include 'the United States district courts,' which includes those enumerated above. Bankruptcy courts also include 'the district courts of the Territories and possessions to which this title is or may hereafter be applicable.' 11 U.S.C. Sec. 1(10), 11(a). These courts include the district courts of Guam and the Virgin Islands. 48 U.S.C. Sec. 1424(b), 1615. Professor Moore points out that whether the District Court for the District of the Canal Zone is a court of bankruptcy 'is not free from doubt in view of the fact that no other statute expressly or inferentially provides for the applicability of the Bankruptcy Act in the Zone.' He further observes that while there seems to be little doubt that the Zone is a territory or possession within the meaning of the Bankruptcy Act, 11 U.S.C. Sec. 1(10), it must be noted that the appendix to the Canal Zone Code of 1934 did not list the Act among the laws of the United States applicable to the Zone. 1 Moore's Collier on Bankruptcy 1.10, pp. 67, 72, n. 25 (14th ed. 1967). The Code of 1962 confers on the district court jurisdiction of: '(4) actions and proceedings involving laws of the United States applicable to the Canal Zone; and '(5) other matters and proceedings wherein jurisdiction is conferred by this Code or any other law.' Canal Zone Code, 1962, Title 3, Sec. 141. Admiralty jurisdiction is expressly conferred. Id. Sec. 142. General powers are conferred on the district court, 'if the course of proceeding is not specifically prescribed by this Code, by the statute, or by applicable rule of the Supreme Court of the United States * * *' Id. Sec. 279. Neither these provisions nor Sec. 1(10) of the Bankruptcy Act ('district courts of the Territories and possessions to which this title is or may hereafter be applicable') furnishes a satisfactory answer as to the status of the District Court for the District of the Canal Zone as a court of bankruptcy. However, the fact is that this court exercises no bankruptcy jurisdiction in practice. The criminal rules enabling act specifies United States district courts, district courts for the districts of the Canal Zone and the Virgin Islands, the Supreme Court of the Commonwealth of Puerto Rico, and proceedings before United States commissioners. Aside from the addition of commissioners, now magistrates, this scheme differs from the bankruptcy pattern in that it makes no mention of the District Court of Guam but by specific mention removes the Canal Zone from the doubtful list. The further difference in including the Supreme Court of the Commonwealth of Puerto Rico seems not to be significant for present purposes, since the Supreme Court of the Commonwealth of Puerto Rico is an appellate court. The Rules of Criminal Procedure have not been made applicable to it, as being unneeded and inappropriate, Rule 54(a) of the Federal Rules of Criminal Procedure, and the same approach is indicated with respect to rules of evidence. If one were to stop at this point and frame a rule governing the applicability of the proposed rules of evidence in terms of the authority conferred by the three enabling acts, an irregular pattern would emerge as follows: Civil actions, including admiralty and maritime cases - district courts in the states, District of Columbia, and Puerto Rico. Bankruptcy - same as civil actions, plus Guam and Virgin Islands. Criminal cases - same as civil actions, plus Canal Zone and Virgin Islands (but not Guam). This irregular pattern need not, however, be accepted. Originally the Advisory Committee on the Rules of Civil Procedure took the position that, although the phrase 'district courts of the United States' did not include territorial courts, provisions in the organic laws of Puerto Rico and Hawaii would make the rules applicable to the district courts thereof, though this would not be so as to Alaska, the Virgin Islands, or the Canal Zone, whose organic acts contained no corresponding provisions. At the suggestion of the Court, however, the Advisory Committee struck from its notes a statement to the above effect. 2 Moore's Federal Practice 1.07 (2nd ed. 1967); 1 Barron and Holtzoff, Federal Practice and Procedure Sec. 121 (Wright ed. 1960). Congress thereafter by various enactments provided that the rules and future amendments thereto should apply to the district courts of Hawaii, 53 Stat. 841 (1939), Puerto Rico, 54 Stat. 22 (1940), Alaska, 63 Stat. 445 (1949), Guam, 64 Stat. 384-390 (1950), and the Virgin Islands, 68 Stat. 497, 507 (1954). The original enabling act for rules of criminal procedure specifically mentioned the district courts of the Canal Zone and the Virgin Islands. The Commonwealth of Puerto Rico was blanketed in by creating its court a 'district court of the United States' as previously described. Although Guam is not mentioned in either the enabling act or in the expanded definition of 'district court of the United States,' the Supreme Court in 1956 amended Rule 54(a) to state that the Rules of Criminal Procedure are applicable in Guam. The Court took this step following the enactment of legislation by Congress in 1950 that rules theretofore or thereafter promulgated by the Court in civil cases, admiralty, criminal cases and bankruptcy should apply to the District Court of Guam, 48 U.S.C. Sec. 1424(b), and two Ninth Circuit decisions upholding the applicability of the Rules of Criminal Procedure to Guam. Pugh v. United States, 212 F.2d 761 (9th Cir. 1954); Hatchett v. Guam, 212 F.2d 767 (9th Cir. 1954); Orfield, The Scope of the Federal Rules of Criminal Procedure, 38 U. of Det.L.J. 173, 187 (1960). From this history, the reasonable conclusion is that Congressional enactment of a provision that rules and future amendments shall apply in the courts of a territory or possession is the equivalent of mention in an enabling act and that a rule on scope and applicability may properly be drafted accordingly. Therefore the pattern set by Rule 54 of the Federal Rules of Criminal Procedure is here followed. The substitution of magistrates in lieu of commissioners is made in pursuance of the Federal Magistrates Act, P.L. 90-578, approved October 17, 1968, 82 Stat. 1107. Subdivision (b) is a combination of the language of the enabling acts, supra, with respect to the kinds of proceedings in which the making of rules is authorized. It is subject to the qualifications expressed in the subdivisions which follow. Subdivision (c), singling out the rules of privilege for special treatment, is made necessary by the limited applicability of the remaining rules. Subdivision (d). The rule is not intended as an expression as to when due process or other constitutional provisions may require an evidentiary hearing. Paragraph (1) restates, for convenience, the provisions of the second sentence of Rule 104(a), supra. See Advisory Committee's Note to that rule. (2) While some states have statutory requirements that indictments be based on 'legal evidence,' and there is some case law to the effect that the rules of evidence apply to grand jury proceedings, 1 Wigmore Sec. 4(5), the Supreme Court has not accepted this view. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1965), the Court refused to allow an indictment to be attacked, for either constitutional or policy reasons, on the ground that only hearsay evidence was presented. 'It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change.' Id. at 364. The rule as drafted does not deal with the evidence required to support an indictment. (3) The rule exempts preliminary examinations in criminal cases. Authority as to the applicability of the rules of evidence to preliminary examinations has been meagre and conflicting. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1168, n. 53 (1960); Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. of Pa.L.Rev. 589, 592-593 (1958). Hearsay testimony is, however, customarily received in such examinations. Thus in a Dyer Act case, for example, an affidavit may properly be used in a preliminary examination to prove ownership of the stolen vehicle, thus saving the victim of the crime the hardship of having to travel twice to a distant district for the sole purpose of testifying as to ownership. It is believed that the extent of the applicability of the Rules of Evidence to preliminary examinations should be appropriately dealt with by the Federal Rules of Criminal Procedure which regulate those proceedings. Extradition and rendition proceedings are governed in detail by statute. 18 U.S.C. Sec. 3181-3195. They are essentially administrative in character. Traditionally the rules of evidence have not applied. 1 Wigmore Sec. 4(6). Extradition proceedings are accepted from the operation of the Rules of Criminal Procedure. Rule 54(b)(5) of Federal Rules of Criminal Procedure. The rules of evidence have not been regarded as applicable to sentencing or probation proceedings, where great reliance is placed upon the presentence investigation and report. Rule 32(c) of the Federal Rules of Criminal Procedure requires a presentence investigation and report in every case unless the court otherwise directs. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), in which the judge overruled a jury recommendation of life imprisonment and imposed a death sentence, the Court said that due process does not require confrontation or cross-examination in sentencing or passing on probation, and that the judge has broad discretion as to the sources and types of information relied upon. Compare the recommendation that the substance of all derogatory information be disclosed to the defendant, in A.B.A. Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures Sec. 4.4, Tentative Draft (1967, Sobeloff, Chm.). Williams was adhered to in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), but not extended to a proceeding under the Colorado Sex Offenders Act, which was said to be a new charge leading in effect to punishment, more like the recidivist statutes where opportunity must be given to be heard on the habitual criminal issue. Warrants for arrest, criminal summonses, and search warrants are issued upon complaint or affidavit showing probable cause. Rules 4(a) and 41(c) of the Federal Rules of Criminal Procedure. The nature of the proceedings makes application of the formal rules of evidence inappropriate and impracticable. Criminal contempts are punishable summarily if the judge certifies that he saw or heard the contempt and that it was committed in the presence of the court. Rule 42(a) of the Federal Rules of Criminal Procedure. The circumstances which preclude application of the rules of evidence in this situation are not present, however, in other cases of criminal contempt. Proceedings with respect to release on bail or otherwise do not call for application of the rules of evidence. The governing statute specifically provides: 'Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.' 18 U.S.C.A. Sec. 3146(f). This provision is consistent with the type of inquiry contemplated in A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, Sec. 4.5(b), (c), p. 16 (1968). The references to the weight of the evidence against the accused, in Rule 46(a)(1), (c) of the Federal Rules of Criminal Procedure and in 18 U.S.C.A. Sec. 3146(b), as a factor to be considered, clearly do not have in view evidence introduced at a hearing. The rule does not exempt habeas corpus proceedings. The Supreme Court held in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), that the practice of disposing of matters of fact on affidavit, which prevailed in some circuits, did not 'satisfy the command of the statute that the judge shall proceed 'to determine the facts of the case, by hearing the testimony and arguments.' ' This view accords with the emphasis in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), upon trial-type proceedings, Id. 311, 83 S.Ct. 745, with demeanor evidence as a significant factor, Id. 322, 83 S.Ct. 745, in applications by state prisoners aggrieved by unconstitutional detentions. Hence subdivision (e) applies the rules to habeas corpus proceedings to the extent not inconsistent with the statute. Subdivision (e). In a substantial number of special proceedings, ad hoc evaluation has resulted in the promulgation of particularized evidentiary provisions, by Act of Congress or by rule adopted by the Supreme Court. Well adapted to the particular proceedings, though not apt candidates for inclusion in a set of general rules, they are left undisturbed. Otherwise, however, the rules of evidence are applicable to the proceedings enumerated in the subdivision. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650 Subdivision (a) as submitted to the Congress, in stating the courts and judges to which the Rules of Evidence apply, omitted the Court of Claims and commissioners of that Court. At the request of the Court of Claims, the Committee amended the Rule to include the Court and its commissioners within the purview of the Rules. Subdivision (b) was amended merely to substitute positive law citations for those which were not. NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT Subdivision (a) is amended to delete the reference to the District Court for the District of the Canal Zone, which no longer exists, and to add the District Court for the Northern Mariana Islands. The United States bankruptcy judges are added to conform the subdivision with Rule 1101(b) and Bankruptcy Rule 9017. NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT The amendments are technical. No substantive change is intended. -REFTEXT- REFERENCES IN TEXT The Tariff Act of 1930, referred to in subsec. (e), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified principally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. Part V of title IV of the Tariff Act of 1930 enacted part V (Sec. 1581 et seq.) of subtitle III of chapter 4 of Title 19. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Anti-Smuggling Act (19 U.S.C. 1701-1711), referred to in subsec. (e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517, as amended, which is classified principally to chapter 5 (Sec. 1701 et seq.) of Title 19. For complete classification of this Act to the Code, see section 1711 of Title 19 and Tables. The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392), referred to in subsec. (e), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (Sec. 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables. Section 4578 of the Revised Statutes (46 U.S.C. 679), referred to in subsec. (e), was repealed and reenacted as section 11104(b)-(d) of Title 46, Shipping, by Pub. L. 98-89, Sec. 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500. 'An Act authorizing suits against the United States in admiralty for damage caused by and salvage service rendered to public vessels belonging to the United States, and for other purposes,' approved Mar. 3, 1925 (46 U.S.C. 781-790), referred to in subsec. (e), is act Mar. 3, 1925, ch. 428, 43 Stat. 1112, as amended, known as the 'Public Vessels Act', which is classified generally to chapter 22 (Sec. 781 et seq.) of Title 46, Appendix, Shipping. For complete classification of this Act to the Code, see Short Title note set out under section 781 of Title 46, Appendix, and Tables. 1975 AMENDMENT Subd. (e). Pub. L. 94-149 substituted 'admiralty' for 'admirality'. 1978 AMENDMENT Subd. (a). Pub. L. 95-598, Sec. 252, directed the amendment of this subd. by adding 'the United States bankruptcy courts,' after 'the United States district courts,', which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Pub. L. 95-598, Sec. 251(a), struck out ', referees in bankruptcy,' after 'United States magistrates'. Subd. (b). Pub. L. 95-598, Sec. 251(b), substituted 'title 11, United States Code' for 'the Bankruptcy Act'. -MISC2- 1982 AMENDMENT Subd. (a). Pub. L. 97-164 substituted 'United States Claims Court' for 'Court of Claims' and struck out 'and commissioners of the Court of Claims' after 'these rules include United States magistrates'. 1988 AMENDMENT Subd. (a). Pub. L. 100-690, Sec. 7075(c)(1), which directed amendment of subd. (a) by striking 'Rules' and inserting 'rules', could not be executed because of the intervening amendment by the Court by order dated Apr. 25, 1988, eff. Nov. 1, 1988. Pub. L. 100-690, Sec. 7075(c)(2), substituted 'courts of appeals' for 'Courts of Appeals'. -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pub. L. 101-650, set out as a note under section 631 of this title. -MISC4- EFFECTIVE DATE OF 1978 AMENDMENT Amendment of subds. (a) and (b) of this rule by section 251 of Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Dates note preceding section 101 of the Appendix to Title 11, Bankruptcy. For Bankruptcy Jurisdiction and procedure during transition period, see note preceding section 1471 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. -TRANS- 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 sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse. ------DocID 37258 Document 1120 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1102 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE XI -HEAD- Rule 1102. Amendments -STATUTE- Amendments to the Federal Rules of Evidence may be made as provided in section 2076 (FOOTNOTE 1) of title 28 of the United States Code. (FOOTNOTE 1) Now sections 2072 to 2074 pursuant to Pub. L. 100-702, title IV, Sec. 401(a), (c), Nov. 19, 1988, 102 Stat. 4648-4650. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948.) ------DocID 37259 Document 1121 of 1452------ -CITE- 28 USC APPENDIX - RULES OF EVIDENCE Rule 1103 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF EVIDENCE ARTICLE XI -HEAD- Rule 1103. Title -STATUTE- These rules may be known and cited as the Federal Rules of Evidence. -SOURCE- (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948.) -MISC1- SHORT TITLE OF 1978 AMENDMENT Pub. L. 95-540, Sec. 1, Oct. 28, 1978, 92 Stat. 2046, provided: 'That this Act (enacting rule 412 of these rules and a provision set out as a note under rule 412 of these rules) may be cited as the 'Privacy Protection for Rape Victims Act of 1978'.' ------DocID 37260 Document 1122 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES -HEAD- RULES OF THE SUPREME COURT OF THE UNITED STATES -MISC1- (ADOPTED DECEMBER 5, 1989, EFFECTIVE JANUARY 1, 1990, AS AMENDED TO JANUARY 2, 1991) PART I - THE COURT Rule 1. Clerk. 2. Library. 3. Term. 4. Sessions and Quorum. PART II - ATTORNEYS AND COUNSELORS 5. Admission to the Bar. 6. Argument Pro Hac Vice. 7. Prohibition Against Practice. 8. Disbarment and Disciplinary Action. 9. Appearance of Counsel. PART III - JURISDICTION ON WRIT OF CERTIORARI 10. Considerations Governing Review on Writ of Certiorari. 11. Certiorari to a United States Court of Appeals Before Judgment. 12. Review on Certiorari; How Sought; Parties. 13. Review on Certiorari; Time for Petitioning. 14. Content of the Petition for a Writ of Certiorari. 15. Brief in Opposition; Reply Brief; Supplemental Brief. 16. Disposition of a Petition for a Writ of Certiorari. PART IV - OTHER JURISDICTION 17. Procedure in an Original Action. 18. Appeal from a United States District Court. 19. Procedure on a Certified Question. 20. Procedure on a Petition for an Extraordinary Writ. PART V - MOTIONS AND APPLICATIONS 21. Motions to the Court. 22. Applications to Individual Justices. 23. Stays. PART VI - BRIEFS ON THE MERITS AND ORAL ARGUMENT 24. Brief on the Merits; In General. 25. Brief on the Merits; Time for Filing. 26. The Joint Appendix. 27. The Calendar. 28. Oral Argument. PART VII - PRACTICE AND PROCEDURE 29. Filing and Service of Documents; Special Notifications. 30. Computation and Enlargement of Time. 31. Translations. 32. Models, Diagrams, and Exhibits. 33. Printing Requirements. 34. Form of Typewritten Papers. 35. Death, Substitution, and Revivor; Public Officers. 36. Custody of Prisoners in Habeas Corpus Proceedings. 37. Brief of an Amicus Curiae. 38. Fees. 39. Proceedings In Forma Pauperis. 40. Veterans, Seamen, and Military Cases. PART VIII - DISPOSITION OF CASES 41. Opinions of the Court. 42. Interest and Damages. 43. Costs. 44. Rehearing. 45. Process; Mandates. 46. Dismissing Cases. PART IX - APPLICATION OF TERMS AND EFFECTIVE DATE 47. Term 'State Court'. 48. Effective Date of Amendments. TABLE OF CORRESPONDING SUPREME COURT RULES This table shows the corresponding relationship between the rules effective June 30, 1980, and the rules effective January 1, 1990. --------------------------------------------------------------------- 1980 1990 --------------------------------------------------------------------- 1 1, 7 2-8 2-8 9 17 - 9 10-16 18 17 10 18 11 19 12 20 13 21 14 22 15 23 16 24 19 25 19 26 20 27 20 28 29 29 30 30 26 31 31 32 32 33 33 34 24 35 25 36 37 37 27 38 28 39 34 40 35 41 36 42 21 43 22 44 23 45 38 46 39 47 40 48 41 49 42 50 43 51 44 52 45 53 46 54 47 55 48 ------------------------------- This table shows the corresponding relationship between the rules effective July 1, 1970, and the rules effective June 30, 1980. --------------------------------------------------------------------- 1970 1980 --------------------------------------------------------------------- 1-11 1-11 12 13 13 12 14-16 14-16 17 Omitted 18 44 19 17 20 18 21 19 22 20 23 21 24 22 25 23 26 Omitted 27 44 28 24 29 25 30 26 31 27 32 Omitted 33 28 34 29 35 42 36 30 37 31 38 32 39 33 40 34 41 35 42 36 43 37 44 38 45 38 46 10, 19 47 39 48 40 49 41 50 43 51 44 52 45 53 46 54 47 55 48 56 49 57 50 58 51 59 52 60 53 61 54 62 55 ------------------------------- This table shows corresponding relationship between the rules effective July 1, 1925, the rules effective July 1, 1928, the rules effective Feb. 27, 1939, the rules effective July 1, 1954, the rules effective Oct. 2, 1967, and the rules effective July 1, 1970. -------------------------------------- 1925 1 1926: 1 1939: 1 1954: 1 1967: 1 1970: 1 2 1926: 2 1939: 2 1954: 5, 6, 8 1967: 5, 6, 8 1970: 5, 6, 8 - 1926: 3 1939: 3 1954: 7 1967: 7 1970: 7 3 1926: 4 1939: 4 1954: 2 1967: 2 1970: 2 - 1926: - 1939: 5 1954: 9 1967: 9 1970: 9 4 1926: 5 1939: - 1954: - 1967: - 1970: - 5 1926: 6 1939: 6 1954: 9, 59 1967: 9, 59 1970: 9, 59 6 1926: 7 1939: 7 1954: 16, 20, 24, 1967: 16, 20, 24, 1970: 16, 20, 24, 1926: 1939: 1954: 35, 44 1967: 35, 44 1970: 35, 44 7 1926: 8 1939: 8 1954: - 1967: - 1970: - 8 1926: 9 1939: 9 1954: - 1967: - 1970: - 9 1926: 10 1939: 10 1954: 12 1967: 12 1970: 12 10 1926: 11 1939: 11 1954: 13, 14 1967: 13, 14 1970: 13, 14 - 1926: 12 1939: 12 1954: 15, 16 1967: 15, 16 1970: 15, 16 11 1926: 13 1939: 13 1954: 17, 26, 36 1967: 17, 26, 36 1970: 17, 26, 36 12 1926: 14 1939: 14 1954: 37 1967: 37 1970: 37 13 1926: 15 1939: 15 1954: - 1967: - 1970: - 14 1926: 16 1939: 16 1954: - 1967: - 1970: - 15 1926: 17 1939: 17 1954: 32 1967: 32 1970: 32 16 1926: 18 1939: 18 1954: 38 1967: 38 1970: 38 17 1926: 19 1939: 19 1954: 48 1967: 48 1970: 48 18 1926: 20 1939: 20 1954: 35, 43 1967: 35, 43 1970: 35, 43 19 1926: 21 1939: 21 1954: - 1967: - 1970: - 20 1926: 22 1939: 22 1954: - 1967: - 1970: - 21 1926: 23 1939: 23 1954: - 1967: - 1970: - 22 1926: 24 1939: 24 1954: - 1967: - 1970: - 23 1926: 25 1939: 25 1954: 45 1967: 45 1970: 45 24 1926: 26 1939: 26 1954: 39 1967: 39 1970: 39 25 1926: 27 1939: 27 1954: 40 to 42 1967: 40 to 42 1970: 40 to 42 26 1926: 28 1939: 28 1954: 44 1967: 44 1970: 44 27 1926: 29 1939: 29 1954: 55 1967: 55 1970: 55 28 1926: 30 1939: 30 1954: 56 1967: 56 1970: 56 - 1926: 31 1939: 31 1954: - 1967: - 1970: - 29 1926: 32 1939: 32 1954: 52, 57 1967: 52, 57 1970: 52, 57 30 1926: 33 1939: 33 1954: 58 1967: 58 1970: 58 31 1926: 34 1939: 34 1954: 25, 59 1967: 25, 59 1970: 25, 59 32 1926: 35 1939: 35 1954: 60 1967: 60 1970: 60 33 1926: 36 1939: 36 1954: 18 1967: 18 1970: 18 34 1926: 37 1939: 37 1954: 28 1967: 28 1970: 28 35 1926: 38 1939: 38 1954: 19, 21 to 1967: 19, 21 to 1970: 19, 21 to 1926: 1939: 1954: 24, 27, 36 1967: 24, 27, 36 1970: 24, 27, 36 - 1926: - 1939: 38 1/2 1954: 11, 22 1967: 11, 22 1970: 11, 22 36 1926: 39 1939: 39 1954: 20 1967: 20 1970: 20 37 1926: 40 1939: 40 1954: 28 1967: 28 1970: 28 38 1926: 41 1939: 41 1954: 19 1967: 19 1970: 19 39 1926: 42 1939: 42 1954: 19 1967: 19 1970: 19 40 1926: 43 1939: 43 1954: 25 1967: 25 1970: 25 41 1926: 44 1939: 44 1954: - 1967: - 1970: - 42 1926: 45 1939: 45 1954: 49 1967: 49 1970: 49 - 1926: 46 1939: 46 1954: - 1967: - 1970: - - 1926: 46 1/2 1939: 47 1954: - 1967: - 1970: - - 1926: - 1939: 48 1954: 46 1967: 46 1970: 46 43 1926: 47 1939: 49 1954: 4 1967: 4 1970: 4 44 1926: 48 1939: 50 1954: 3 1967: 3 1970: 3 45 1926: 49 1939: 51 1954: 61 1967: 62 1970: 62 - 1926: - 1939: - 1954: 62 1967: 61 1970: 61 -------------------------------------- ------DocID 37261 Document 1123 of 1452------ -CITE- 28 USC PART I -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART I -HEAD- PART I. THE COURT ------DocID 37262 Document 1124 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART I -HEAD- Rule 1. Clerk -STATUTE- .1. The Clerk shall maintain the Court's records and shall not permit any of them to be removed from the Court building except as authorized by the Court. Any pleading, paper, or brief filed with the Clerk and made a part of the Court's records may not thereafter be withdrawn from the official Court files. After the conclusion of the proceedings in this Court, any original records and papers transmitted to this Court by any other court will be returned to the court from which they were received. .2. The office of the Clerk will be open, except on a federal legal holiday, from 9 a.m. to 5 p.m., Monday through Friday, unless otherwise ordered by the Court or the Chief Justice. See 5 U.S.C. Sec. 6103 for a list of federal legal holidays. -CROSS- CROSS REFERENCES Appointment, removal, and compensation of Clerk of Supreme Court, see section 671 of this title. Court always open, see section 452 of this title. ------DocID 37263 Document 1125 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART I -HEAD- Rule 2. Library -STATUTE- .1. The Court's library is available for use by appropriate personnel of this Court, members of the Bar of this Court, Members of Congress and their legal staffs, and attorneys for the United States, its departments and agencies. .2. The library will be open during such times as the reasonable needs of the Bar may require. Its operation shall be governed by regulations made by the Librarian with the approval of the Chief Justice or the Court. .3. Library books may not be removed from the building, except by a Justice or a member of a Justice's legal staff. -CROSS- CROSS REFERENCES Appointment, compensation, and duties of Supreme Court Librarian, see section 674 of this title. Law Library of Congress - Purchase of books under direction of Chief Justice, see section 135 of Title 2, The Congress. Use and regulation by Supreme Court Justices, see section 137 of Title 2. ------DocID 37264 Document 1126 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART I -HEAD- Rule 3. Term -STATUTE- .1. The Court will hold a continuous annual Term commencing on the first Monday in October. See 28 U.S.C. Sec. 2. At the end of each Term, all cases pending on the docket will be continued to the next Term. .2. The Court at every Term will announce the date after which no case will be called for oral argument at that Term unless otherwise ordered. ------DocID 37265 Document 1127 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 4 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART I -HEAD- Rule 4. Sessions and Quorum -STATUTE- .1. Open sessions of the Court will be held beginning at 10 a.m. on the first Monday in October of each year, and thereafter as announced by the Court. Unless otherwise ordered, the Court will sit to hear arguments from 10 a.m. until noon and from 1 p.m. until 3 p.m. .2. Any six Members of the Court constitute a quorum. See 28 U.S.C. Sec. 1. In the absence of a quorum on any day appointed for holding a session of the Court, the Justices attending, or if no Justice is present, the Clerk or a Deputy Clerk may announce that the Court will not meet until there is a quorum. .3. The Court in appropriate circumstances may direct the Clerk or the Marshal to announce recesses. -CROSS- CROSS REFERENCES Quorum of Supreme Court justices absent, see section 2109 of this title. ------DocID 37266 Document 1128 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART II -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- PART II. ATTORNEYS AND COUNSELORS ------DocID 37267 Document 1129 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 5 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- Rule 5. Admission to the Bar -STATUTE- .1. It shall be requisite for admission to the Bar of this Court that the applicant shall have been admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or of the District of Columbia for the three years immediately preceding the date of application and shall have been free from any adverse disciplinary action whatsoever during that 3-year period, and that the applicant appears to the Court to be of good moral and professional character. .2. Each applicant shall file with the Clerk (1) a certificate from the presiding judge, clerk, or other authorized official of that court evidencing the applicant's admission to practice there and the applicant's current good standing, and (2) a completely executed copy of the form approved by the Court and furnished by the Clerk containing (i) the applicant's personal statement and (ii) the statement of two sponsors (who must be members of the Bar of this Court and who must personally know, but not be related to, the applicant) endorsing the correctness of the applicant's statement, stating that the applicant possesses all the qualifications required for admission, and affirming that the applicant is of good moral and professional character. .3. If the documents submitted demonstrate that the applicant possesses the necessary qualifications, has signed the oath or affirmation, and has paid the required fee, the Clerk will notify the applicant of acceptance by the Court as a member of the Bar and issue a certificate of admission. An applicant who so desires may be admitted in open court on oral motion by a member of the Bar of this Court, provided that all other requirements for admission have been satisfied. .4. Each applicant shall take or subscribe to the following oath or affirmation: I, ......................, do solemnly swear (or affirm) that as an attorney and as a counselor of this Court, I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States. .5. The fee for admission to the Bar and a certificate under seal is $100, payable to the Marshal, U.S. Supreme Court. The Marshal shall maintain the proceeds as a separate fund to be disbursed by the Marshal at the direction of the Chief Justice for the costs of admissions, for the benefit of the Court and the Supreme Court Bar, and for related purposes. .6. The cost for a duplicate certificate of admission to the Bar under seal is $10, payable to the Marshal, U.S. Supreme Court. The proceeds shall be maintained by the Marshal as provided in paragraph .5 of this Rule. ------DocID 37268 Document 1130 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 6 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- Rule 6. Argument Pro Hac Vice -STATUTE- .1. An attorney not admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or of the District of Columbia for the requisite three years, but who is otherwise eligible for admission to practice in this Court under Rule 5.1, may be permitted to argue pro hac vice. .2. An attorney, barrister, or advocate who is qualified to practice in the courts of a foreign state may be permitted to argue pro hac vice. .3. Oral argument pro hac vice will be allowed only on motion of the attorney of record for the party on whose behalf leave is requested. The motion must briefly and distinctly state the appropriate qualifications of the attorney who is to argue pro hac vice. It must be filed with the Clerk, in the form prescribed by Rule 21, no later than the date on which the respondent's or appellee's brief on the merits is due to be filed and must be accompanied by proof of service pursuant to Rule 29. ------DocID 37269 Document 1131 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 7 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- Rule 7. Prohibition Against Practice -STATUTE- .1. The Clerk shall not practice as an attorney or counselor while holding office. .2. No law clerk, secretary to a Justice, or other employee of this Court shall practice as an attorney or counselor in any court or before any agency of government while employed at the Court; nor shall any person after leaving employment in this Court participate, by way of any form of professional consultation or assistance, in any case pending before this Court or in any case being considered for filing in this Court, until two years have elapsed after separation; nor shall a former employee ever participate, by way of any form of professional consultation or assistance, in any case that was pending in this Court during the employee's tenure. -CROSS- CROSS REFERENCES Practice of law by justices, see section 454 of this title. ------DocID 37270 Document 1132 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 8 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- Rule 8. Disbarment and Disciplinary Action -STATUTE- .1. Whenever it is shown to the Court that a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, that member will be suspended from practice before this Court forthwith and will be afforded the opportunity to show cause, within 40 days, why a disbarment order should not be entered. Upon response, or upon the expiration of the 40 days if no response is made, the Court will enter an appropriate order. .2. The Court may, after reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the Bar or for failure to comply with these Rules or any Rule of the Court. ------DocID 37271 Document 1133 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART II -HEAD- Rule 9. Appearance of Counsel -STATUTE- .1. An attorney seeking to file a pleading, motion, or other paper in this Court in a representative capacity must first be admitted to practice before this Court pursuant to Rule 5. The attorney whose name, address, and telephone number appear on the cover of a document being filed will be deemed counsel of record, and a separate notice of appearance need not be filed. If the name of more than one attorney is shown on the cover of the document, the attorney who is counsel of record must be clearly identified. .2. An attorney representing a party who will not be filing a document must enter a separate notice of appearance as counsel of record indicating the name of the party represented. If an attorney is to be substituted as counsel of record in a particular case, a separate notice of appearance must also be entered. ------DocID 37272 Document 1134 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART III -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- PART III. JURISDICTION ON WRIT OF CERTIORARI ------DocID 37273 Document 1135 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 10 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 10. Considerations Governing Review on Writ of Certiorari -STATUTE- .1. A review on writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the Court's discretion, indicate the character of reasons that will be considered: (a) When a United States court of appeals has rendered a decision in conflict with the decision of another United States court of appeals on the same matter; or has decided a federal question in a way in conflict with a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's power of supervision. (b) When a state court of last resort has decided a federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals. (c) When a state court or a United States court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way that conflicts with applicable decisions of this Court. .2. The same general considerations outlined above will control in respect to a petition for a writ of certiorari to review a judgment of the United States Court of Military Appeals. -CROSS- CROSS REFERENCES Review of cases in the courts of appeals, see section 1254 of this title. Review of decisions of the United States Court of Military Appeals, see section 1259 of this title. Review of judgments and decrees of Supreme Court of Puerto Rico, see section 1258 of this title. Review of orders and judgments of courts of appeals reviewing orders of Federal agencies, see section 2350 of this title. Review of State court decisions to be same as review of United States court decisions, see section 2104 of this title. ------DocID 37274 Document 1136 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 11 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 11. Certiorari to a United States Court of Appeals Before Judgment -STATUTE- A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is given in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate settlement in this Court. 28 U.S.C. Sec. 2101(e). ------DocID 37275 Document 1137 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 12 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 12. Review on Certiorari; How Sought; Parties -STATUTE- .1. The petitioner's counsel, who must be a member of the Bar of this Court, shall file, with proof of service as provided by Rule 29, 40 copies of a printed petition for a writ of certiorari, which shall comply in all respects with Rule 14, and shall pay the docket fee prescribed by Rule 38. The case then will be placed on the docket. It shall be the duty of counsel for the petitioner to notify all respondents, on a form supplied by the Clerk, of the date of filing and of the docket number of the case. The notice shall be served as required by Rule 29. .2. Parties interested jointly, severally, or otherwise in a judgment may petition separately for a writ of certiorari; or any two or more may join in a petition. A party who is not shown on the petition for a writ of certiorari to have joined therein at the time the petition is filed with the Clerk may not thereafter join in that petition. When two or more cases are sought to be reviewed on a writ of certiorari to the same court and involve identical or closely related questions, a single petition for a writ of certiorari covering all the cases will suffice. A petition for a writ of certiorari shall not be joined with any other pleading. .3. Not more than 30 days after receipt of the petition for a writ of certiorari, counsel for a respondent wishing to file a cross-petition that would otherwise be untimely shall file, with proof of service as prescribed by Rule 29, 40 printed copies of a cross-petition for a writ of certiorari, which shall comply in all respects with Rule 14, except that materials printed in the appendix to the original petition need not be reprinted, and shall pay the docket fee pursuant to Rule 38. The cover of the petition shall clearly indicate that it is a cross-petition. The cross-petition will then be placed on the docket subject, however, to the provisions of Rule 13.5. It shall be the duty of counsel for the cross-petitioner to notify the cross-respondent, on a form supplied by the Clerk, of the date of docketing and of the docket number of the cross-petition. The notice shall be served as required by Rule 29. A cross-petition for a writ of certiorari may not be joined with any other pleading, and the Clerk shall not accept any pleading so joined. The time for filing a cross-petition may not be extended. .4. All parties to the proceeding in the court whose judgment is sought to be reviewed shall be deemed parties in this Court, unless the petitioner notifies the Clerk of this Court in writing of the petitioner's belief that one or more of the parties below has no interest in the outcome of the petition. A copy of the notice shall be served as required by Rule 29 on all parties to the proceeding below. A party noted as no longer interested may remain a party by promptly notifying the Clerk, with service on the other parties, of an intention to remain a party. All parties other than petitioners shall be respondents, but any respondent who supports the position of a petitioner shall meet the time schedule for filing papers which is provided for that petitioner, except that a response to the petition shall be filed within 20 days after its receipt, and the time may not be extended. .5. The clerk of the court having possession of the record shall retain custody thereof pending notification from the Clerk of this Court that the record is to be certified and transmitted to this Court. When requested by the Clerk of this Court to certify and transmit the record, or any part of it, the clerk of the court having possession of the record shall number the documents to be certified and shall transmit therewith a numbered list specifically identifying each document transmitted. If the record, or stipulated portions thereof, has been printed for the use of the court below, that printed record, plus the proceedings in the court below, may be certified as the record unless one of the parties or the Clerk of this Court otherwise requests. The record may consist of certified copies, but the presiding judge of the lower court who believes that original papers of any kind should be seen by this Court may, by order, make provision for their transport, safekeeping, and return. ------DocID 37276 Document 1138 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 13 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 13. Review on Certiorari; Time for Petitioning -STATUTE- .1. A petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort, a United States court of appeals, or the United States Court of Military Appeals shall be deemed in time when it is filed with the Clerk of this Court within 90 days after the entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court which is subject to discretionary review by the state court of last resort shall be deemed in time when it is filed with the Clerk within 90 days after the entry of the order denying discretionary review. .2. A Justice of this Court, for good cause shown, may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. .3. The Clerk will refuse to receive any petition for a writ of certiorari which is jurisdictionally out of time. .4. The time for filing a petition for a writ of certiorari runs from the date the judgment or decree sought to be reviewed is rendered, and not from the date of the issuance of the mandate (or its equivalent under local practice). However, if a petition for rehearing is timely filed in the lower court by any party in the case, the time for filing the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of the petition for rehearing or the entry of a subsequent judgment. A suggestion made to a United States court of appeals for a rehearing in banc pursuant to Rule 35(b), Federal Rules of Appellate Procedure, is not a petition for rehearing within the meaning of this Rule. .5. A cross-petition for a writ of certiorari shall be deemed in time when it is filed with the Clerk as provided in paragraphs .1, .2, and .4 of this Rule, or in Rule 12.3. However, a cross-petition which, except for Rule 12.3, would be untimely, will not be granted unless a timely petition for a writ of certiorari of another party to the case is granted. .6. An application to extend the time to file a petition for a writ of certiorari must set out the grounds on which the jurisdiction of this Court is invoked, must identify the judgment sought to be reviewed and have appended thereto a copy of the opinion and any order respecting rehearing, and must set forth with specificity the reasons why the granting of an extension of time is thought justified. For the time and manner of presenting the application, see Rules 21, 22, and 30. An application to extend the time to file a petition for a writ of certiorari is not favored. -REFTEXT- REFERENCES IN TEXT Federal Rules of Appellate Procedure, referred to in par. (4), are set out in this Appendix. ------DocID 37277 Document 1139 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 14 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 14. Content of the Petition for a Writ of Certiorari -STATUTE- .1. The petition for a writ of certiorari shall contain, in the order here indicated: (a) The questions presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail. The questions should be short and concise and should not be argumentative or repetitious. They must be set forth on the first page following the cover with no other information appearing on that page. The statement of any question presented will be deemed to comprise every subsidiary question fairly included therein. Only the questions set forth in the petition, or fairly included therein, will be considered by the Court. (b) A list of all parties to the proceeding in the court whose judgment is sought to be reviewed, unless the names of all parties appear in the caption of the case. This listing may be done in a footnote. See also Rule 29.1 for the required listing of parent companies and nonwholly owned subsidiaries. (c) A table of contents and a table of authorities, if the petition exceeds five pages. (d) A reference to the official and unofficial reports of opinions delivered in the case by other courts or administrative agencies. (e) A concise statement of the grounds on which the jurisdiction of this Court is invoked showing: (i) The date of the entry of the judgment or decree sought to be reviewed; (ii) The date of any order respecting a rehearing, and the date and terms of any order granting an extension of time within which to file the petition for a writ of certiorari; (iii) Express reliance upon Rule 12.3 when a cross-petition for a writ of certiorari is filed under that Rule and the date of receipt of the petition for a writ of certiorari in connection with which the cross-petition is filed; and (iv) The statutory provision believed to confer on this Court jurisdiction to review the judgment or decree in question by writ of certiorari. (f) The constitutional provisions, treaties, statutes, ordinances, and regulations involved in the case, setting them out verbatim, and giving the appropriate citation therefor. If the provisions involved are lengthy, their citation alone will suffice at this point and their pertinent text must be set forth in the appendix referred to in subparagraph .1(k) of this Rule. (g) A concise statement of the case containing the facts material to the consideration of the questions presented. (h) If review of a judgment of a state court is sought, the statement of the case shall also specify the stage in the proceedings, both in the court of first instance and in the appellate courts, at which the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed upon by those courts; and such pertinent quotation of specific portions of the record or summary thereof, with specific reference to the places in the record where the matter appears (e.g., ruling on exception, portion of court's charge and exception thereto, assignment of errors) as will show that the federal question was timely and properly raised so as to give this Court jurisdiction to review the judgment on a writ of certiorari. When the portions of the record relied upon under this subparagraph are voluminous, they shall be included in the appendix referred to in subparagraph .1(k) of this Rule. (i) If review of a judgment of a United States court of appeals is sought, the statement of the case shall also show the basis for federal jurisdiction in the court of first instance. (j) A direct and concise argument amplifying the reasons relied on for the allowance of the writ. See Rule 10. (k) An appendix containing, in the following order: (i) The opinions, orders, findings of fact, and conclusions of law, whether written or orally given and transcribed, delivered upon the rendering of the judgment or decree by the court whose decision is sought to be reviewed. (ii) Any other opinions, orders, findings of fact, and conclusions of law rendered in the case by courts or administrative agencies, and, if reference thereto is necessary to ascertain the grounds of the judgment or decree, of those in companion cases. Each document shall include the caption showing the name of the issuing court or agency, the title and number of the case, and the date of entry. (iii) Any order on rehearing, including the caption showing the name of the issuing court, the title and number of the case, and the date of entry. (iv) The judgment sought to be reviewed if the date of its entry is different from the date of the opinion or order required in sub-subparagraph (i) of this subparagraph. (v) Any other appended materials. If what is required by subparagraphs .1(f), (h), and (k) of this Rule to be included in or filed with the petition is voluminous, it may be presented in a separate volume or volumes with appropriate covers. .2. The petition for a writ of certiorari and the appendix thereto, whether in the same or a separate volume, shall be produced in conformity with Rule 33. The Clerk shall not accept any petition for a writ of certiorari that does not comply with this Rule and with Rule 33, except that a party proceeding in forma pauperis may proceed in the manner provided in Rule 39. .3. All contentions in support of a petition for a writ of certiorari shall be set forth in the body of the petition, as provided in subparagraph .1(j) of this Rule. No separate brief in support of a petition for a writ of certiorari will be received, and the Clerk will refuse to file any petition for a writ of certiorari to which is annexed or appended any supporting brief. .4. The petition for a writ of certiorari shall be as short as possible and may not exceed the page limitations set out in Rule 33. .5. The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying the petition. ------DocID 37278 Document 1140 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 15 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 15. Brief in Opposition; Reply Brief; Supplemental Brief -STATUTE- .1. A brief in opposition to a petition for a writ of certiorari serves an important purpose in assisting the Court in the exercise of its discretionary jurisdiction. In addition to other arguments for denying the petition, the brief in opposition should address any perceived misstatements of fact or law set forth in the petition which have a bearing on the question of what issues would properly be before the Court if certiorari were granted. Unless this is done, the Court may grant the petition in the mistaken belief that the issues presented can be decided, only to learn upon full consideration of the briefs and record at the time of oral argument that such is not the case. Counsel are admonished that they have an obligation to the Court to point out any perceived misstatements in the brief in opposition, and not later. Any defect of this sort in the proceedings below that does not go to jurisdiction may be deemed waived if not called to the attention of the Court by the respondent in the brief in opposition. .2. The respondent shall have 30 days (unless enlarged by the Court or a Justice thereof or by the Clerk pursuant to Rule 30.4) after receipt of a petition within which to file 40 printed copies of an opposing brief disclosing any matter or ground as to why the case should not be reviewed by this Court. See Rule 10. The brief in opposition shall comply with Rule 33 and with the requirements of Rule 24 governing a respondent's brief, and shall be served as prescribed by Rule 29. A brief in opposition shall not be joined with any other pleading. The Clerk shall not accept a brief which does not comply with this Rule and with Rule 33, except that a party proceeding in forma pauperis may proceed in the manner provided in Rule 39. If the petitioner is proceeding in forma pauperis, the respondent may file 12 typewritten copies of a brief in opposition prepared in the manner prescribed by Rule 34. .3. A brief in opposition shall be as short as possible and may not exceed the page limitations set out in Rule 33. .4. No motion by a respondent to dismiss a petition for a writ of certiorari will be received. Objections to the jurisdiction of the Court to grant a writ of certiorari may be included in the brief in opposition. .5. Upon the filing of a brief in opposition, the expiration of the time allowed therefor, or an express waiver of the right to file, the petition and brief in opposition, if any, will be distributed by the Clerk to the Court for its consideration. However, if a cross-petition for a writ of certiorari has been filed, distribution of both it and the petition for a writ of certiorari will be delayed until the filing of a brief in opposition by the cross-respondent, the expiration of the time allowed therefor, or an express waiver of the right to file. .6. A reply brief addressed to arguments first raised in the brief in opposition may be filed by any petitioner, but distribution and consideration by the Court under paragraph .5 of this Rule will not be delayed pending its filing. Forty copies of the reply brief, prepared in accordance with Rule 33 and served as prescribed by Rule 29, shall be filed. .7. Any party may file a supplemental brief at any time while a petition for a writ of certiorari is pending calling attention to new cases or legislation or other intervening matter not available at the time of the party's last filing. A supplemental brief must be restricted to new matter. Forty copies of the supplemental brief, prepared in accordance with Rule 33 and served as prescribed by Rule 29, shall be filed. ------DocID 37279 Document 1141 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 16 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART III -HEAD- Rule 16. Disposition of a Petition for a Writ of Certiorari -STATUTE- .1. After consideration of the papers distributed pursuant to Rule 15, the Court will enter an appropriate order. The order may be a summary disposition on the merits. .2. Whenever a petition for a writ of certiorari to review a decision of any court is granted, the Clerk shall enter an order to that effect and shall forthwith notify the court below and counsel of record. The case will then be scheduled for briefing and oral argument. If the record has not previously been filed, the Clerk of this Court shall request the clerk of the court having possession of the record to certify it and transmit it to this Court. A formal writ shall not issue unless specially directed. .3. Whenever a petition for a writ of certiorari to review a decision of any court is denied, the Clerk shall enter an order to that effect and shall forthwith notify the court below and counsel of record. The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice. ------DocID 37280 Document 1142 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART IV -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IV -HEAD- PART IV. OTHER JURISDICTION ------DocID 37281 Document 1143 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 17 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IV -HEAD- Rule 17. Procedure in an Original Action -STATUTE- .1. This Rule applies only to an action within the Court's original jurisdiction under Article III of the Constitution of the United States. See also 28 U.S.C. Sec. 1251 and the Eleventh Amendment to the Constitution of the United States. A petition for an extraordinary writ in aid of the Court's appellate jurisdiction must be filed in accordance with Rule 20. .2. The form of pleadings and motions prescribed by the Federal Rules of Civil Procedure should be followed in an original action to be filed in this Court. In other respects those Rules, when their application is appropriate, may be taken as a guide to procedure in an original action in this Court. .3. The initial pleading in any original action shall be prefaced by a motion for leave to file, and both the pleading and motion must be printed in conformity with Rule 33. A brief in support of the motion for leave to file, which shall also comply with Rule 33, may also be filed with the motion and pleading. Sixty copies of each document, with proof of service as prescribed by Rule 29, are required, except that when an adverse party is a State, service shall be made on both the Governor and the attorney general of that State. .4. The case will be placed on the docket when the motion for leave to file and the pleading are filed with the Clerk. The docket fee provided by Rule 38 must be paid at that time. .5. Within 60 days after the receipt of the motion for leave to file and the pleading, an adverse party may file, with proof of service as prescribed by Rule 29, 60 printed copies of a brief in opposition to the motion. The brief shall comply with Rule 33. When the brief in opposition has been filed, or when the time within which it may be filed has expired, the motion, pleading, and briefs will be distributed to the Court by the Clerk. The Court may thereafter grant or deny the motion, set it down for oral argument, direct that additional pleadings be filed, or require that other proceedings be conducted. .6. A summons issuing out of this Court in an original action shall be served on the defendant 60 days before the return day set out therein. If the defendant does not respond by the return day, the plaintiff may proceed ex parte. .7. Process against a State issued from the Court in an original action shall be served on both the Governor and the attorney general of that State. -REFTEXT- REFERENCES IN TEXT Federal Rules of Civil Procedure, referred to in par. (2), are set out in this Appendix. -CROSS- CROSS REFERENCES Issues of fact in Supreme Court; trial by jury, see section 1872 of this title. ------DocID 37282 Document 1144 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 18 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IV -HEAD- Rule 18. Appeal from a United States District Court -STATUTE- .1. A direct appeal from a decision of a United States district court, when authorized by law, is commenced by filing a notice of appeal with the clerk of the district court within 30 days after the entry of the judgment sought to be reviewed. The time may not be extended. The notice of appeal shall specify the parties taking the appeal, shall designate the judgment, or part thereof, appealed from and the date of its entry, and shall specify the statute or statutes under which the appeal is taken. A copy of the notice of appeal shall be served on all parties to the proceeding pursuant to Rule 29 and proof of service must be filed in the district court with the notice of appeal. .2. All parties to the proceeding in the district court shall be deemed parties to the appeal, but a party having no interest in the outcome of the appeal may so notify the Clerk of this Court and shall serve a copy of the notice on all other parties. Parties interested jointly, severally, or otherwise in the judgment may appeal separately; or any two or more may join in an appeal. .3. Not more than 60 days after the filing of the notice of appeal in the district court, counsel for the appellant shall file, with proof of service as prescribed by Rule 29, 40 printed copies of a statement as to jurisdiction and pay the docket fee prescribed by Rule 38. The jurisdictional statement shall follow, insofar as applicable, the form for a petition for a writ of certiorari prescribed by Rule 14. The appendix must also include a copy of the notice of appeal showing the date it was filed in the district court. The jurisdictional statement and the appendices thereto must be produced in conformity with Rule 33, except that a party proceeding in forma pauperis may proceed in the manner prescribed in Rule 39. A Justice of this Court may, for good cause shown, extend the time for filing a jurisdictional statement for a period not exceeding 60 days. An application to extend the time to file a jurisdictional statement must set out the basis of jurisdiction in this Court, must identify the judgment to be reviewed, must include a copy of the opinion, any order respecting rehearing, and the notice of appeal, and must set forth specific reasons why the granting of an extension of time is justified. For the time and manner of presenting the application, see Rules 21, 22, and 30. An application to extend the time to file a jurisdictional statement is not favored. .4. The clerk of the district court shall retain possession of the record pending notification from the Clerk of this Court that the record is to be certified and transmitted. See Rule 12.5. .5. After a notice of appeal has been filed, but before the case is docketed in this Court, the parties may dismiss the appeal by stipulation filed in the district court, or the district court may dismiss the appeal upon motion of the appellant and notice to all parties. If a notice of appeal has been filed, but the case has not been docketed in this Court within the time prescribed for docketing or any enlargement thereof, the district court may dismiss the appeal upon the motion of the appellee and notice to all parties and may make any order with respect to costs as may be just. If an appellee's motion to dismiss the appeal is not granted, the appellee may have the case docketed in this Court and may seek to have the appeal dismissed by filing a motion pursuant to Rule 21. If the appeal is dismissed, the Court may give judgment for costs against the appellant. .6. Within 30 days after receipt of the jurisdictional statement, the appellee may file 40 printed copies of a motion to dismiss, to affirm, or, in the alternative, to affirm and dismiss. The motion shall comply in all respects with Rules 21 and 33, except that a party proceeding in forma pauperis may proceed in the manner provided in Rule 39. The Court may permit the appellee to defend a judgment on any ground that the law and record permit and that would not expand the relief granted. .7. Upon the filing of the motion, or the expiration of the time allowed therefor, or an express waiver of the right to file, the jurisdictional statement and motion, if any, will be distributed by the Clerk to the Court for its consideration. .8. A brief opposing a motion to dismiss or affirm may be filed by an appellant, but distribution to the Court under paragraph .7 of this Rule will not be delayed pending its receipt. Forty copies, prepared in accordance with Rule 33 and served as prescribed by Rule 29, shall be filed. .9. Any party may file a supplemental brief at any time while a jurisdictional statement is pending, calling attention to new cases, new legislation, or other intervening matter not available at the time of the party's last filing. Forty copies, prepared in accordance with Rule 33 and served as prescribed by Rule 29, shall be filed. .10. After consideration of the papers distributed under this Rule, the Court may summarily dispose of the appeal on the merits, note probable jurisdiction, or postpone jurisdiction to the hearing on the merits. If not disposed of summarily, the case will stand for briefing and oral argument on the merits. If consideration of jurisdiction is postponed, counsel, at the outset of their briefs and at oral argument, shall address the question of jurisdiction. -CROSS- CROSS REFERENCES Direct appeals from decisions of district court of three judges, see section 1253 of this title. Time for appeal and docketing, see section 2101 of this title. ------DocID 37283 Document 1145 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 19 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IV -HEAD- Rule 19. Procedure on a Certified Question -STATUTE- .1. A United States court of appeals may certify to this Court a question or proposition of law concerning which it desires instruction for the proper decision of a case. The certificate submitted shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they must be distinct and definite. .2. When a case is certified by a United States court of appeals, this Court, on application or on its own motion, may consider and decide the entire matter in controversy. See 28 U.S.C. Sec. 1254(2). .3. When a case is certified, the Clerk will notify the respective parties and docket the case. Counsel shall then enter their appearances. After docketing, the certificate shall be submitted to the Court for a preliminary examination to determine whether the case shall be briefed, set for argument, or dismissed. No brief may be filed prior to the preliminary examination of the certificate. .4. If the Court orders that the case be briefed or set for argument, the parties shall be notified and permitted to file briefs. The Clerk of this Court shall then request the clerk of the court from which the case originates to certify the record and transmit it to this Court. Any portion of the record to which the parties wish to direct the Court's particular attention shall be printed in a joint appendix prepared by the appellant in the court below under the procedures provided in Rule 26, but the fact that any part of the record has not been printed shall not prevent the parties or the Court from relying on it. .5. A brief on the merits in a case on certificate shall comply with Rules 24, 25, and 33, except that the brief of the party who is the appellant below shall be filed within 45 days of the order requiring briefs or setting the case for argument. -CROSS- CROSS REFERENCES Review of orders and judgments of courts of appeals reviewing orders of Federal agencies, see section 2350 of this title. ------DocID 37284 Document 1146 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 20 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IV -HEAD- Rule 20. Procedure on a Petition for an Extraordinary Writ -STATUTE- .1. The issuance by the Court of an extraordinary writ authorized by 28 U.S.C. Sec. 1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any writ under that provision, it must be shown that the writ will be in aid of the Court's appellate jurisdiction, that there are present exceptional circumstances warranting the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court. .2. The petition in any proceeding seeking the issuance by this Court of a writ authorized by 28 U.S.C. Sec. 1651(a), 2241, or 2254(a), shall comply in all respects with Rule 33, except that a party proceeding in forma pauperis may proceed in the manner provided in Rule 39. The petition shall be captioned 'In re (name of petitioner)' and shall follow, insofar as applicable, the form of a petition for a writ of certiorari prescribed by Rule 14. All contentions in support of the petition shall be included in the petition. The case will be placed on the docket when 40 printed copies, with proof of service as prescribed by Rule 29 (subject to subparagraph .4(b) of this Rule), are filed with the Clerk and the docket fee is paid. .3. (a) A petition seeking the issuance of a writ of prohibition, a writ of mandamus, or both in the alternative, shall set forth the name and office or function of every person against whom relief is sought and shall set forth with particularity why the relief sought is not available in any other court. There shall be appended to the petition a copy of the judgment or order in respect of which the writ is sought, including a copy of any opinion rendered in that connection, and any other paper essential to an understanding of the petition. (b) The petition shall be served on the judge or judges to whom the writ is sought to be directed and shall also be served on every other party to the proceeding in respect of which relief is desired. The judge or judges and the other parties may, within 30 days after receipt of the petition, file 40 printed copies of a brief or briefs in opposition thereto, which shall comply fully with Rule 15. If the judge or judges who are named respondents do not desire to respond to the petition, they may so advise the Clerk and all parties by letter. All persons served shall be deemed respondents for all purposes in the proceedings in this Court. .4. (a) A petition seeking the issuance of a writ of habeas corpus shall comply with the requirements of 28 U.S.C. Sec. 2241 and 2242, and in particular with the provision in the last paragraph of Sec. 2242 requiring a statement of the 'reasons for not making application to the district court of the district in which the applicant is held.' If the relief sought is from the judgment of a state court, the petition shall set forth specifically how and wherein the petitioner has exhausted available remedies in the state courts or otherwise comes within the provisions of 28 U.S.C. Sec. 2254(b). To justify the granting of a writ of habeas corpus, the petitioner must show exceptional circumstances warranting the exercise of the Court's discretionary powers and must show that adequate relief cannot be obtained in any other form or from any other court. These writs are rarely granted. (b) Proceedings under this paragraph .4 will be ex parte, unless the Court requires the respondent to show cause why the petition for a writ of habeas corpus should not be granted. A response, if ordered, shall comply fully with Rule 15. Neither the denial of the petition, without more, nor an order of transfer to a district court under the authority of 28 U.S.C. Sec. 2241(b), is an adjudication on the merits, and therefore does not preclude further application to another court for the relief sought. .5. When a brief in opposition under subparagraph .3(b) has been filed, when a response under subparagraph .4(b) has been ordered and filed, when the time within which it may be filed has expired, or upon an express waiver of the right to file, the papers will be distributed to the Court by the Clerk. .6. If the Court orders the case to be set for argument, the Clerk will notify the parties whether additional briefs are required, when they must be filed, and, if the case involves a petition for a common law writ of certiorari, that the parties shall proceed to print a joint appendix pursuant to Rule 26. ------DocID 37285 Document 1147 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART V -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART V -HEAD- PART V. MOTIONS AND APPLICATIONS ------DocID 37286 Document 1148 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 21 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART V -HEAD- Rule 21. Motions to the Court -STATUTE- .1. Every motion to the Court shall clearly state its purpose and the facts on which it is based and (except for a motion to dismiss or affirm under Rule 18) may present legal argument in support thereof. No separate brief may be filed. A motion shall be as short as possible and shall comply with any applicable page limits. For an application addressed to a single Justice, see Rule 22. .2. (a) A motion in any action within the Court's original jurisdiction shall comply with Rule 17.3. (b) A motion to dismiss or affirm under Rule 18, a motion to dismiss as moot (or a suggestion of mootness), a motion for permission to file a brief amicus curiae, and any motion the granting of which would be dispositive of the entire case or would affect the final judgment to be entered (other than a motion to docket and dismiss under Rule 18.5 or a motion for voluntary dismissal under Rule 46) shall be printed in accordance with Rule 33 and shall comply with all other requirements of that Rule. Forty copies of the motion shall be filed. (c) Any other motion to the Court may be typewritten in accordance with Rule 34, but the Court may subsequently require the motion to be printed by the moving party in the manner provided by Rule 33. .3. A motion to the Court shall be filed with the Clerk and must be accompanied by proof of service as provided by Rule 29. No motion shall be presented in open court, other than a motion for admission to the Bar, except when the proceeding to which it refers is being argued. Oral argument will not be permitted on any motion unless the Court so directs. .4. A response to a motion shall be made as promptly as possible considering the nature of the relief asked and any asserted need for emergency action, and, in any event, shall be made within 10 days of receipt, unless otherwise ordered by the Court or a Justice or by the Clerk under the provisions of Rule 30.4. A response to a printed motion shall be printed if time permits. In an appropriate case, however, the Court may act on a motion without waiting for a response. ------DocID 37287 Document 1149 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 22 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART V -HEAD- Rule 22. Applications to Individual Justices -STATUTE- .1. An application addressed to an individual Justice shall be submitted to the Clerk, who will promptly transmit it to the Justice concerned. .2. The original and two copies of any application addressed to an individual Justice shall be filed in the form prescribed by Rule 34, and shall be accompanied by proof of service on all parties. .3. The Clerk in due course will advise all counsel concerned, by means as speedy as may be appropriate, of the disposition made of the application. .4. The application shall be addressed to the Justice allotted to the Circuit within which the case arises. When the Circuit Justice is unavailable for any reason, the application addressed to that Justice will be distributed to the Justice then available who is next junior to the Circuit Justice; the turn of the Chief Justice follows that of the most junior Justice. .5. A Justice denying the application will note the denial thereon. Thereafter, unless action thereon is restricted by law to the Circuit Justice or is out of time under Rule 30.2, the party making the application, except in the case of an application for an extension of time, may renew it to any other Justice, subject to the provisions of this Rule. Except when the denial has been without prejudice, a renewed application is not favored. Any renewed application may be made by sending a letter to the Clerk of the Court addressed to another Justice to which must be attached 12 copies of the original application, together with proof of service pursuant to Rule 29. .6. A Justice to whom an application for a stay or for bail is submitted may refer it to the Court for determination. -CROSS- CROSS REFERENCES Allotment of Supreme Court justices to circuits, see section 42 of this title. ------DocID 37288 Document 1150 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 23 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART V -HEAD- Rule 23. Stays -STATUTE- .1. A stay may be granted by a Justice of this Court as permitted by law. .2. A petitioner entitled thereto may present to a Justice of this Court an application to stay the enforcement of the judgment sought to be reviewed on writ of certiorari. 28 U.S.C. Sec. 2101(f). .3. An application for a stay must set forth with particularity why the relief sought is not available from any other court or judge thereof. Except in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested has first been sought in the appropriate court or courts below or from a judge or judges thereof. An application for a stay must identify the judgment sought to be reviewed and have appended thereto a copy of the order and opinion, if any, and a copy of the order, if any, of the court or judge below denying the relief sought, and must set forth with specificity the reasons why the granting of a stay is deemed justified. The form and content of an application for a stay are governed by Rule 22. .4. The judge, court, or Justice granting an application for a stay pending review by this Court may condition the stay on the filing of a supersedeas bond having an approved surety or sureties. The bond shall be conditioned on the satisfaction of the judgment in full, together with any costs, interest, and damages for delay that may be awarded. If a part of the judgment sought to be reviewed has already been satisfied, or is otherwise secured, the bond may be conditioned on the satisfaction of the part of the judgment not otherwise secured or satisfied, together with costs, interest, and damages. -CROSS- CROSS REFERENCES United States, security for costs or damages not required, see section 2408 of this title. ------DocID 37289 Document 1151 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART VI -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT ------DocID 37290 Document 1152 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 24 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- Rule 24. Brief on the Merits; In General -STATUTE- .1. A brief of a petitioner or an appellant on the merits must comply in all respects with Rule 33, and must contain in the order here indicated: (a) The questions presented for review, stated as required by Rule 14. The phrasing of the questions presented need not be identical with that set forth in the petition for a writ of certiorari or the jurisdictional statement, but the brief may not raise additional questions or change the substance of the questions already presented in those documents. At its option, however, the Court may consider a plain error not among the questions presented but evident from the record and otherwise within its jurisdiction to decide. (b) A list of all parties to the proceeding in the court whose judgment is sought to be reviewed, unless the caption of the case in this Court contains the names of all parties. This listing may be done in a footnote. See also Rule 29.1, which requires a list of parent companies and nonwholly owned subsidiaries. (c) A table of contents and a table of authorities, if the brief exceeds five pages. (d) Citations of the opinions and judgments delivered in the courts below. (e) A concise statement of the grounds on which the jurisdiction of this Court is invoked, with citation of the statutory provision and of the time factors upon which jurisdiction rests. (f) The constitutional provisions, treaties, statutes, ordinances, and regulations which the case involves, setting them out verbatim and giving the appropriate citation therefor. If the provisions involved are lengthy, their citation alone will suffice at this point, and their pertinent text, if not already set forth in the petition for a writ of certiorari, jurisdictional statement, or an appendix to either document, shall be set forth in an appendix to the brief. (g) A concise statement of the case containing all that is material to the consideration of the questions presented, with appropriate references to the joint appendix, e.g. (J.A. 12) or to the record, e.g. (R. 12). (h) A summary of the argument, suitably paragraphed, which should be a succinct, but accurate and clear, condensation of the argument actually made in the body of the brief. A mere repetition of the headings under which the argument is arranged is not sufficient. (i) The argument, exhibiting clearly the points of fact and of law being presented and citing the authorities and statutes relied upon. (j) A conclusion, specifying with particularity the relief which the party seeks. .2. The brief filed by a respondent or an appellee must conform to the foregoing requirements, except that no statement of the case need be made beyond what may be deemed necessary to correct any inaccuracy or omission in the statement by the other side. Items required by subparagraphs .1(a), (b), (d), (e), and (f) of this Rule need not be included unless the respondent or appellee is dissatisfied with their presentation by the other side. .3. A brief on the merits shall be as short as possible and shall not exceed the page limitations set out in Rule 33. An appendix to a brief must be limited to relevant material, and counsel are cautioned not to include in an appendix arguments or citations that properly belong in the body of the brief. .4. A reply brief shall conform to those portions of this Rule that are applicable to the brief of a respondent or an appellee, but, if appropriately divided by topical headings, need not contain a summary of the argument. .5. A reference to the joint appendix or to the record set forth in any brief must be accompanied by the appropriate page number. If the reference is to an exhibit, the page numbers at which the exhibit appears, at which it was offered in evidence, and at which it was ruled on by the judge must be indicated, e.g. (Pl.Ex. 14; R.199, 2134). .6. A brief must be compact, logically arranged with proper headings, concise, and free from burdensome, irrelevant, immaterial, and scandalous matter. A brief not complying with this paragraph may be disregarded and stricken by the Court. ------DocID 37291 Document 1153 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 25 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- Rule 25. Brief on the Merits; Time for Filing -STATUTE- .1. Counsel for the petitioner or appellant shall file with the Clerk 40 copies of a brief on the merits within 45 days of the order granting the writ of certiorari or of the order noting or postponing probable jurisdiction. .2. Forty copies of the brief of the respondent or appellee must be filed with the Clerk within 30 days after the receipt of the brief filed by the petitioner or appellant. .3. A reply brief, if any, must be filed within 30 days after receipt of the brief for the respondent or appellee, or must actually be received by the Clerk not later than one week before the date of oral argument, whichever is earlier. Forty copies are required. .4. The periods of time stated in paragraphs .1 and .2 of this Rule may be enlarged as provided in Rule 30. If a case is advanced for hearing, the time for filing briefs on the merits may be abridged as circumstances require pursuant to the order of the Court on its own motion or a party's application. .5. A party desiring to present late authorities, newly enacted legislation, or other intervening matter that was not available in time to have been included in a brief may file 40 printed copies of a supplemental brief, restricted to new matter and otherwise presented in conformity with these Rules, up to the time the case is called for oral argument, or by leave of the Court thereafter. .6. No brief will be received through the Clerk or otherwise after a case has been argued or submitted, except from a party and upon leave of the Court. .7. No brief will be received by the Clerk unless it is accompanied by proof of service as required by Rule 29. ------DocID 37292 Document 1154 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 26 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- Rule 26. The Joint Appendix -STATUTE- .1. Unless the parties agree to use the deferred method allowed in paragraph .4 of this Rule, or the Court so directs, the petitioner or appellant, within 45 days after the entry of the order granting the writ of certiorari, or noting or postponing jurisdiction, shall file 40 copies of a joint appendix, printed as prescribed by Rule 33. The joint appendix shall contain: (1) the relevant docket entries in all the courts below; (2) any relevant pleading, jury instruction, finding, conclusion, or opinion; (3) the judgment, order, or decision sought to be reviewed; and (4) any other parts of the record which the parties particularly wish to bring to the Court's attention. Any of the foregoing items which have already been reproduced in a petition for a writ of certiorari, jurisdictional statement, brief in opposition to a petition for a writ of certiorari, motion to dismiss or affirm, or any appendix to the foregoing complying with Rule 33 need not be reproduced again in the joint appendix. The petitioner or appellant shall serve three copies of the joint appendix on each of the other parties to the proceeding. .2. The parties are encouraged to agree to the contents of the joint appendix. In the absence of agreement, the petitioner or appellant shall, not later than 10 days after receipt of the order granting the writ of certiorari, or noting or postponing jurisdiction, serve on the respondent or appellee a designation of parts of the record to be included in the joint appendix. A respondent or appellee who deems the parts of the record so designated not to be sufficient shall, within 10 days after receipt of the designation, serve upon the petitioner or appellant a designation of additional parts to be included in the joint appendix, and the petitioner or appellant shall include the parts so designated. If the respondent or appellee has been permitted by this Court to proceed in forma pauperis, the petitioner or appellant may seek by motion to be excused from printing portions of the record deemed unnecessary. In making these designations, counsel should include only those materials the Court should examine. Unnecessary designations should be avoided. The record is on file with the Clerk and available to the Justices. Counsel may refer in their briefs and in oral argument to relevant portions of the record not included in the joint appendix. .3. When the joint appendix is filed, the petitioner or appellant shall immediately file with the Clerk a statement of the cost of printing 50 copies and shall serve a copy of the statement on each of the other parties to the proceeding pursuant to Rule 29. Unless the parties otherwise agree, the cost of producing the joint appendix shall initially be paid by the petitioner or appellant; but a petitioner or appellant who considers that parts of the record designated by the respondent or appellee are unnecessary for the determination of the issues presented may so advise the respondent or appellee who then shall advance the cost of printing the additional parts, unless the Court or a Justice otherwise fixes the initial allocation of the costs. The cost of printing the joint appendix shall be taxed as costs in the case, but if a party unnecessarily causes matter to be included in the joint appendix or prints excessive copies, the Court may impose the costs thereof on that party. .4. (a) If the parties agree, or if the Court shall so order, preparation of the joint appendix may be deferred until after the briefs have been filed. In that event, the petitioner or appellant shall file the joint appendix within 14 days after receipt of the brief of the respondent or appellee. The provisions of paragraphs .1, .2, and .3 of this Rule shall be followed, except that the designations referred to therein shall be made by each party when that party's brief is served. (b) If the deferred method is used, the briefs may make reference to the pages of the record involved. In that event, the printed joint appendix must also include in brackets on each page thereof the page number of the record where that material may be found. A party desiring to refer directly to the pages of the joint appendix may serve and file typewritten or page-proof copies of the brief within the time required by Rule 25, with appropriate references to the pages of the record involved. In that event, within 10 days after the joint appendix is filed, copies of the brief in the form prescribed by Rule 33 containing references to the pages of the joint appendix, in place of or in addition to the initial references to the pages of the record involved, shall be served and filed. No other change may be made in the brief as initially served and filed, except that typographical errors may be corrected. .5. The joint appendix must be prefaced by a table of contents showing the parts of the record which it contains, in the order in which the parts are set out therein, with references to the pages of the joint appendix at which each part begins. The relevant docket entries must be set out following the table of contents. Thereafter, the other parts of the record shall be set out in chronological order. When testimony contained in the reporter's transcript of proceedings is set out in the joint appendix, the page of the transcript at which the testimony appears shall be indicated in brackets immediately before the statement which is set out. Omissions in the transcript or in any other document printed in the joint appendix must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted. A question and its answer may be contained in a single paragraph. .6. Exhibits designated for inclusion in the joint appendix may be contained in a separate volume or volumes suitably indexed. The transcript of a proceeding before an administrative agency, board, commission, or officer used in an action in a district court or court of appeals shall be regarded as an exhibit for the purposes of this paragraph. .7. The Court by order may dispense with the requirement of a joint appendix and may permit a case to be heard on the original record (with such copies of the record, or relevant parts thereof, as the Court may require), or on the appendix used in the court below, if it conforms to the requirements of this Rule. .8. For good cause shown, the time limits specified in this Rule may be shortened or enlarged by the Court, by a Justice thereof, or by the Clerk under the provisions of Rule 30.4. ------DocID 37293 Document 1155 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 27 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VI -HEAD- Rule 27. The Calendar -STATUTE- .1. The Clerk shall from time to time prepare calendars of cases ready for argument. A case will not normally be called for argument less than two weeks after the brief of the respondent or appellee is due. .2. The Clerk will advise counsel when they are required to appear for oral argument and will publish a hearing list in advance of each argument session for the convenience of counsel and the information of the public. .3. On the Court's own motion, or on motion of one or more parties, the Court may order that two or more cases, involving what appear to be the same or related questions, be argued together as one case or on any other terms as may be prescribed. -CROSS- CROSS REFERENCES Priority on docket of criminal cases from State court, see section 2102 of this title. ------DocID 37161 Document 1156 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 20 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 20. Answer Presenting Defenses Under Rule 12(b) -STATUTE- FIRST DEFENSE The complaint fails to state a claim against defendant upon which relief can be granted. SECOND DEFENSE If defendant is indebted to plaintiffs for the goods mentioned in the complaint, he is indebted to them jointly with G. H. G. H. is alive; is a citizen of the State of New York and a resident of this district, is subject to the jurisdiction of this court, as to both service of process and venue; can be made a party without depriving this court of jurisdiction of the present parties, and has not been made a party. THIRD DEFENSE Defendant admits the allegation contained in paragraphs 1 and 4 of the complaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and every other allegation contained in the complaint. FOURTH DEFENSE The right of action set forth in the complaint did not accrue within six years next before the commencement of this action. COUNTERCLAIM (Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a complaint. No statement of the grounds on which the court's jurisdiction depends need be made unless the counterclaim requires independent grounds of jurisdiction.) CROSS-CLAIM AGAINST DEFENDANT M. N. (Here set forth the claim constituting a cross-claim against defendant M. N. in the manner in which a claim is pleaded in a complaint. The statement of grounds upon which the court's jurisdiction depends need not be made unless the cross-claim requires independent grounds of jurisdiction.) -MISC1- NOTE The above form contains examples of certain defenses provided for in Rule 12(b). The first defense challenges the legal sufficiency of the complaint. It is a substitute for a general demurrer or a motion to dismiss. The second defense embodies the old plea in abatement; the decision thereon, however, may well provide under Rules 19 and 21 for the citing in of the party rather than an abatement of the action. The third defense is an answer on the merits. The fourth defense is one of the affirmative defenses provided for in Rule 8(c). The answer also includes a counterclaim and a cross-claim. NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT The explanatory note incorporates revisions made by the Advisory Committee at the same time amendments to certain rules of the Federal Rules of Civil Procedure were made. See also rule 12(b), as amended. ------DocID 37295 Document 1157 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART VII -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- PART VII. PRACTICE AND PROCEDURE ------DocID 37296 Document 1158 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 29 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 29. Filing and Service of Documents; Special Notifications -STATUTE- .1. Any pleading, motion, notice, brief, or other document or paper required or permitted to be presented to this Court, or to a Justice, shall be filed with the Clerk. Every document, except a joint appendix or brief amicus curiae, filed by or on behalf of one or more corporations, shall include a list naming all parent companies and subsidiaries (except wholly owned subsidiaries) of each corporation. This listing may be done in a footnote. If there is no parent or subsidiary company to be listed, a notation to this effect shall be included in the document. If a list has been included in a document filed earlier in the particular case, reference may be made to the earlier document and only amendments to the listing to make it currently accurate need to be included in the document currently being filed. .2. To be timely filed, a document must actually be received by the Clerk within the time specified for filing; or be sent to the Clerk by first-class mail, postage prepaid, and bear a postmark showing that the document was mailed on or before the last day for filing; or, if being filed by an inmate confined in an institution, be deposited in the institution's internal mail system on or before the last day for filing and be accompanied by a notarized statement or declaration in compliance with 28 U.S.C. Sec. 1746 setting forth the date of deposit and stating that first-class postage has been prepaid. If the postmark is missing or not legible, the Clerk shall require the person who mailed the document to submit a notarized statement or declaration in compliance with 28 U.S.C. Sec. 1746 setting forth the details of the mailing and stating that the mailing took place on a particular date within the permitted time. A document forwarded through a private delivery or courier service must be received by the Clerk within the time permitted for filing. .3. Any pleading, motion, notice, brief, or other document required by these Rules to be served may be served personally or by mail on each party to the proceeding at or before the time of filing. If the document has been produced under Rule 33, three copies shall be served on each other party separately represented in the proceeding. If the document is typewritten pursuant to Rule 34, service of a single copy on each other party separately represented shall suffice. If personal service is made, it may consist of delivery at the office of counsel of record, either to counsel or to an employee therein. If service is by mail, it shall consist of depositing the document in a United States post office or mailbox, with first-class postage prepaid, addressed to counsel of record at the proper post office address. When a party is not represented by counsel, service shall be made upon the party, personally or by mail. .4. (a) If the United States or any department, office, agency, officer, or employee thereof is a party to be served, service must also be made upon the Solicitor General, Department of Justice, Washington, D.C. 20530. If a response by the Solicitor General is required or permitted within a prescribed period after service, the time does not begin to run until the document actually has been received by the Solicitor General's office. When an agency of the United States is authorized by law to appear on its own behalf as a party, or when an officer or employee of the United States is a party, the agency, officer, or employee must also be served, in addition to the Solicitor General; and if a response is required or permitted within a prescribed period, the time does not begin to run until the document actually has been received by the agency, the officer, the employee, and the Solicitor General's office. (b) In any proceeding in this Court wherein the constitutionality of an Act of Congress is drawn in question, and the United States or any department, office, agency, officer, or employee thereof is not a party, the initial pleading, motion, or paper filed in this Court shall recite that 28 U.S.C. Sec. 2403(a) may be applicable, and the document must be served on the Solicitor General, Department of Justice, Washington, D.C. 20530. In a proceeding from any court of the United States, as defined by 28 U.S.C. Sec. 451, the initial pleading, motion, or paper shall also state whether or not that court, pursuant to 28 U.S.C. Sec. 2403(a), has certified to the Attorney General the fact that the constitutionality of an Act of Congress was drawn into question. (c) In any proceeding in this Court wherein the constitutionality of any statute of a State is drawn into question, and the State or any agency, officer, or employee thereof is not a party, the initial pleading, motion, or paper filed in this Court shall recite that 28 U.S.C. Sec. 2403(b) may be applicable and shall be served upon the attorney general of that State. In a proceeding from any court of the United States, as defined by 28 U.S.C. Sec. 451, the initial pleading, motion, or paper shall state whether or not that court, pursuant to 28 U.S.C. Sec. 2403(b), has certified to the state attorney general the fact that the constitutionality of a statute of that State was drawn into question. .5. Proof of service, when required by these Rules, must accompany the document when it is presented to the Clerk for filing and must be separate from it. Proof of service may be shown by any one of the methods set forth below, and must contain, or be accompanied by, a statement that all parties required to be served have been served, together with a list of the names, addresses, and telephone numbers of counsel indicating the name of the party or parties each counsel represents. It is not necessary that service on each party required to be served be made in the same manner or evidenced by the same proof. (a) By an acknowledgment of service of the document in question, signed by counsel of record for the party served. (b) By a certificate of service of the document in question, reciting the facts and circumstances of service in compliance with the appropriate paragraph or paragraphs of this Rule, and signed by a member of the Bar of this Court representing the party on whose behalf service is made. (c) By a notarized affidavit or declaration in compliance with 28 U.S.C. Sec. 1746, reciting the facts and circumstances of service in accordance with the appropriate paragraph or paragraphs of this Rule, whenever service is made by any person not a member of the Bar of this Court. ------DocID 37297 Document 1159 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 30 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 30. Computation and Enlargement of Time -STATUTE- .1. In computing any period of time prescribed or allowed by these Rules, by order of the Court, or by an applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, a federal legal holiday, or a day on which the Court building has been closed by order of the Court or the Chief Justice, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, a federal legal holiday, or a day on which the Court building has been closed. See 5 U.S.C. Sec. 6103 for a list of federal legal holidays. .2. Whenever a Justice of this Court or the Clerk is empowered by law or these Rules to extend the time for filing any document or paper, an application seeking an extension must be presented to the Clerk within the period sought to be extended. However, an application for an extension of time to file a petition for a writ of certiorari or to docket an appeal must be submitted at least 10 days before the specified final filing date. If received less than 10 days before the final filing date, the application will not be granted except in the most extraordinary circumstances. .3. An application to extend the time within which a party may file a petition for a writ of certiorari or docket an appeal shall be presented in the form prescribed by Rules 13.6 and 18.3, respectively. An application to extend the time within which to file any other document or paper may be presented in the form of a letter to the Clerk setting forth with specificity the reasons why the granting of an extension of time is justified. Any application seeking an extension of time must be presented and served upon all other parties as provided in Rule 22, and, once denied, may not be renewed. .4. An application to extend the time for filing a brief, motion, joint appendix, or other paper, for designating parts of a record to be printed in the appendix, or for complying with any other time limit provided by these Rules (except an application for an extension of time to file a petition for a writ of certiorari, to docket an appeal, to file a reply brief on the merits, to file a petition for rehearing, or to issue a mandate forthwith) shall in the first instance be acted upon by the Clerk, whether addressed to the Clerk, to the Court, or to a Justice. Any party aggrieved by the Clerk's action on an application to extend time may request that it be submitted to a Justice or to the Court. The Clerk shall report action under this Rule to the Court in accordance with instructions that may be issued by the Court. ------DocID 37298 Document 1160 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 31 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 31. Translations -STATUTE- Whenever any record to be transmitted to this Court contains any material written in a foreign language without a translation made under the authority of the lower court, or admitted to be correct, the clerk of the court transmitting the record shall immediately advise the Clerk of this Court to the end that this Court may order that a translation be supplied and, if necessary, printed as a part of the joint appendix. ------DocID 37299 Document 1161 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 32 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 32. Models, Diagrams, and Exhibits -STATUTE- .1. Models, diagrams, and exhibits of material forming part of the evidence taken in a case, and brought to this Court for its inspection, shall be placed in the custody of the Clerk at least two weeks before the case is to be heard or submitted. .2. All models, diagrams, and exhibits of material placed in the custody of the Clerk must be removed by the parties within 40 days after the case is decided. When this is not done, the Clerk shall notify counsel to remove the articles forthwith. If they are not removed within a reasonable time thereafter, the Clerk shall destroy them or make any other appropriate disposition of them. ------DocID 37300 Document 1162 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 33 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 33. Printing Requirements -STATUTE- .1. (a) Except for papers permitted by Rules 21, 22, and 39 to be submitted in typewritten form (see Rule 34), every document filed with the Court must be printed by a standard typographic printing process or be typed and reproduced by offset printing, photocopying, computer printing, or similar process. The process used must produce a clear, black image on white paper. In an original action under Rule 17, 60 copies of every document printed under this Rule must be filed; in all other cases, 40 copies must be filed. (b) The text of every document, including any appendix thereto, produced by standard typographic printing must appear in print as 11-point or larger type with 2-point or more leading between lines. The print size and typeface of the United States Reports from Volume 453 to date are acceptable. Similar print size and typeface should be standard throughout. No attempt should be made to reduce or condense the typeface in a manner that would increase the content of a document. Footnotes must appear in print as 9-point or larger type with 2-point or more leading between lines. A document must be printed on both sides of the page. (c) The text of every document, including any appendix thereto, printed or duplicated by any process other than standard typographic printing shall be done in pica type at no more than 10 characters per inch. The lines must be double spaced. The right-hand margin need not be justified, but there must be a margin of at least three-fourths of an inch. In footnotes, elite type at no more than 12 characters per inch may be used. The document should be printed on both sides of the page, if practicable. It shall not be reduced in duplication. A document which is photographically reduced so that the print size is smaller than pica type will not be received by the Clerk. (d) Whether printed under subparagraph (b) or (c) of this paragraph, every document must be produced on opaque, unglazed paper 6 1/8 by 9 1/4 inches in size, with type matter approximately 4 1/8 by 7 1/8 inches and margins of at least three-fourths of an inch on all sides. The document must be firmly bound in at least two places along the left margin (saddle stitch or perfect binding preferred) so as to make an easily opened volume, and no part of the text shall be obscured by the binding. Spiral and other plastic bindings may not be used. Appendices in patent cases may be duplicated in such size as is necessary to utilize copies of patent documents. .2. Every document must bear on the cover, in the following order, from the top of the page: (1) the number of the case or, if there is none, a space for one; (2) the name of this Court; (3) the Term; (4) the caption of the case as appropriate in this Court; (5) the nature of the proceeding and the name of the court from which the action is brought (e.g., 'Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit'; or, for a merits brief, 'On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit'); (6) the title of the paper (e.g., 'Petition for Writ of Certiorari,' 'Brief for Respondent,' 'Joint Appendix'); (7) the name of the member of the Bar of this Court who is counsel of record for the party concerned, and upon whom service is to be made, with a notation directly thereunder that the attorney is the counsel of record together with counsel's office address and telephone number. (There can be only one counsel of record noted on a single document.) The individual names of other members of the Bar of this Court, or of the Bar of the highest court of a State, and, if desired, their post office addresses, may be added, but counsel of record must be clearly identified. Names of persons other than attorneys admitted to a state Bar may not be listed. The foregoing must be displayed in an appropriate typographic manner and, except for the identification of counsel, may not be set in type smaller than 11-point or uppercase pica. .3. Every document produced under this Rule shall comply with the page limits shown below and shall have a suitable cover consisting of heavy paper in the color indicated. Counsel must be certain that there is adequate contrast between the printing and the color of the cover. --------------------------------------------------------------------- Page Limits ---------------- Type of : Typo- graphic :Typed and : Color of the Document : Printing : Double Spaced : Cover --------------------------------------------------------------------- a. Petition for: : : a Writ of : : : Certiorari : : : (Rule 14.4); : : : Jurisdictional: : : Statement : : : (Rule 18.3); : : : or Petition : : : for an Extra- : : : ordinary Writ : : : (Rule 20.2) : : : : : : : : : : : : : : : : : : : : : :30 :65 :White b. Brief in : : : Opposition : : : (Rule 15.3); : : : Motion to : : : Dismiss or : : : Affirm (Rule : : : 18.6); Brief : : : in Opposition : : : to Mandamus or: : : Prohibition : : : (Rule : : : 20.3(b)); or : : : Response to a : : : Petition for : : : Habeas Corpus : : : (Rule 20.4) : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :30 :65 :Orange c. Reply to : : : Brief in : : : Opposition : : : (Rule 15.6); : : : or Brief : : : Opposing a : : : Motion to : : : Dismiss or : : : Affirm (Rule : : : 18.8) : : : : : : : : : : : : : : : :10 :20 :Tan d. Supplemental: : : Brief (Rules : : : 15.7 and 18.9): : : : : : :10 :20 :Tan e. Brief on the: : : Merits by : : : Petitioner or : : : Appellant : : : (Rule 24.3) : : : : : : : : :Light Blue f. Brief on the: : : Merits by : : : Respondent or : : : Appellee (Rule: : : 24.3) : : : : : : : : : :50 :110 :Light Red g. Reply Brief : : : on the Merits : : : (Rule 24.4) : : : :20 :45 :Yellow h. Brief of an : : : Amicus Curiae : : : at the : : : Petition Stage: : : (Rule 37.2) : : : : : : : : : :20 :45 :Cream i. Brief of an : : : Amicus Curiae : : : on the Merits : : : in Support of : : : the Petitioner: : : or Appellant : : : or in Support : : : of Neither : : : Party (Rule : : : 37.3) : : : : : : : : : : : : : : :Pastel or : : :Pale Green j. Brief of an : : : Amicus Curiae : : : on the Merits : : : in Support of : : : the Respondent: : : or Appellee : : : (Rule 37.3) : : : : : : : : : : : : : : : :30 :65 :Green k. Petition for: : : Rehearing : : : (Rule 44) : : : : : : :10 :20 :Tan ------------------------------- The above page limitations are exclusive of the questions presented page, the subject index, the table of authorities, and the appendix. Verbatim quotations required by Rule 14.1(f), if set forth in the text of the brief rather than the appendix, are also excluded. A motion for leave to file a brief amicus curiae filed pursuant to Rule 37 must be printed with the brief. A document filed by the United States, by any department, office, or agency of the United States, or by any officer or employee of the United States represented by the Solicitor General shall have a gray cover. A joint appendix and any other document shall have a tan cover. In a case filed under the original jurisdiction of the Court, the initial pleading and motion for leave to file and any accompanying brief shall have white covers. A brief in opposition to the motion for leave to file shall have an orange cover; exceptions to the report of a special master shall have a light blue cover, if filed by the plaintiff, and a light red cover, if filed by any other party; and a reply brief to any exceptions shall have a yellow cover. .4. The Court or a Justice, for good cause shown, may grant leave to file a document in excess of the page limits, but these applications are not favored. An application to exceed page limits shall comply in all respects with Rule 22 and must be submitted at least 15 days before the filing date of the document in question, except in the most extraordinary circumstances. .5. Every document which exceeds five pages (other than a single joint appendix) shall, regardless of the method of duplication, contain a table of contents and a table of authorities (i.e., cases alphabetically arranged, constitutional provisions, statutes, textbooks, etc.) with correct references to the pages in the document where they are cited. .6. The body of every document at its close shall bear the name of counsel of record and such other counsel, identified on the cover of the document in conformity with paragraph .2(7) of this Rule, as may be desired. One copy of every motion or application (other than a motion to dismiss or affirm under Rule 18) must in addition be signed by counsel of record at the end thereof. .7. The Clerk shall not accept for filing any document presented in a form not in compliance with this Rule, but shall return it indicating to the defaulting party any failure to comply. The filing, however, shall not thereby be deemed untimely provided that new and proper copies are promptly substituted. If the Court finds that the provisions of this Rule have not been adhered to, it may impose, in its discretion, appropriate sanctions including but not limited to dismissal of the action, imposition of costs, or disciplinary sanction upon counsel. ------DocID 37301 Document 1163 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 34 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 34. Form of Typewritten Papers -STATUTE- .1. Any paper specifically permitted by these Rules to be presented to the Court without being printed shall, subject to Rule 39.3, be typewritten on opaque, unglazed paper 8 1/2 x 11 inches in size and shall be stapled or bound at the upper left-hand corner. The typed matter, except quotations, must be double spaced. Copies, if required, must be produced on the same type of paper. All copies presented to the Court must be legible. .2. The original of any motion or application (except a motion to dismiss or affirm under Rule 18.6) must be signed in manuscript by the party proceeding pro se or by counsel of record who must be a member of the Bar of this Court. ------DocID 37302 Document 1164 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 35 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 35. Death, Substitution, and Revivor; Public Officers -STATUTE- .1. In the event a party dies after filing a notice of appeal to this Court, or after filing a petition for a writ of certiorari, the authorized representative of the deceased party may appear and, upon motion, be substituted as a party to the proceeding. If the representative does not voluntarily become a party, any other party may suggest the death on the record and on motion seek an order requiring the representative to become a party within a designated time. If the representative then fails to become a party, the party so moving, if a respondent or appellee, shall be entitled to have the petition for a writ of certiorari or the appeal dismissed or the judgment vacated for mootness, as may be appropriate. A party so moving who is a petitioner or appellant shall be entitled to proceed as in any other case of nonappearance by a respondent or appellee. The substitution of a representative of the deceased, or the suggestion of death by a party, must be made within six months after the death of the party, or the case shall abate. .2. Whenever a case cannot be revived in the court whose judgment is sought to be reviewed because the deceased party has no authorized representative within the jurisdiction of that court, but does have an authorized representative elsewhere, proceedings shall be conducted as this Court may direct. .3. When a public officer, who is a party to a proceeding in this Court in an official capacity, dies, resigns, or otherwise ceases to hold office, the action does not abate and any successor in office is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. .4. A public officer who is a party to a proceeding in this Court in an official capacity may be described as a party by the officer's official title rather than by name, but the Court may require the name to be added. ------DocID 37303 Document 1165 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 36 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 36. Custody of Prisoners in Habeas Corpus Proceedings -STATUTE- .1. Pending review in this Court of a decision in a habeas corpus proceeding commenced before a court, Justice, or judge of the United States, the person having custody of the prisoner shall not transfer custody to another person unless the transfer is authorized in accordance with the provisions of this Rule. .2. Upon application by a custodian showing a need therefor, the court, Justice, or judge rendering the decision under review may authorize transfer and the substitution of a successor custodian as a party. .3. (a) Pending review of a decision failing or refusing to release a prisoner, the prisoner may be detained in the custody from which release is sought or in other appropriate custody or may be enlarged upon personal recognizance or bail, as may appear fitting to the court, Justice, or judge rendering the decision, or to the court of appeals or to this Court or to a judge or Justice of either court. (b) Pending review of a decision ordering release, the prisoner shall be enlarged upon personal recognizance or bail, unless the court, Justice, or judge rendering the decision, or the court of appeals, or this Court, or a judge or Justice of either court, shall otherwise order. .4. An initial order respecting the custody or enlargement of the prisoner, and any recognizance or surety taken, shall continue in effect pending review in the court of appeals and in this Court unless for reasons shown to the court of appeals or to this Court, or to a judge or Justice of either court, the order is modified or an independent order respecting custody, enlargement, or surety is entered. ------DocID 37304 Document 1166 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 37 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 37. Brief of an Amicus Curiae -STATUTE- .1. An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favored. .2. A brief of an amicus curiae submitted prior to the consideration of a petition for a writ of certiorari or a jurisdictional statement, accompanied by the written consent of all parties, may be filed only if submitted within the time allowed for filing a brief in opposition to the petition for a writ of certiorari or for filing a motion to dismiss or affirm. A motion for leave to file a brief amicus curiae when consent has been refused is not favored. Any such motion must be filed within the time allowed for the filing of the brief amicus curiae, must indicate the party or parties who have refused consent, and must be printed with the proposed brief. The cover of the brief must identify the party supported. .3. A brief of an amicus curiae in a case before the Court for oral argument may be filed when accompanied by the written consent of all parties and presented within the time allowed for the filing of the brief of the party supported, or, if in support of neither party, within the time allowed for filing the petitioner's or appellant's brief. A brief amicus curiae must identify the party supported or indicate whether it suggests affirmance or reversal, and must be as concise as possible. No reply brief of an amicus curiae and no brief of an amicus curiae in support of a petition for rehearing will be received. .4. When consent to the filing of a brief of an amicus curiae in a case before the Court for oral argument is refused by a party to the case, a motion for leave to file indicating the party or parties who have refused consent, accompanied by the proposed brief and printed with it, may be presented to the Court. A motion will not be received unless submitted within the time allowed for the filing of an amicus brief on written consent. The motion shall concisely state the nature of the applicant's interest and set forth facts or questions of law that have not been, or reasons for believing that they will not be, presented by the parties and their relevancy to the disposition of the case. The motion may in no event exceed five pages. A party served with the motion may file an objection thereto concisely stating the reasons for withholding consent which must be printed in accordance with Rule 33. The cover of an amicus brief must identify the party supported or indicate whether it supports affirmance or reversal. .5. Consent to the filing of a brief of an amicus curiae is not necessary when the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States authorized by law to appear on its own behalf when submitted by the agency's authorized legal representative; on behalf of a State, Territory, or Commonwealth when submitted by its Attorney General; or on behalf of a political subdivision of a State, Territory, or Commonwealth when submitted by its authorized law officer. .6. Every brief or motion filed under this Rule must comply with the applicable provisions of Rules 21, 24, and 33 (except that it shall be sufficient to set forth in the brief the interest of the amicus curiae, the argument, the summary of the argument, and the conclusion); and shall be accompanied by proof of service as required by Rule 29. ------DocID 37305 Document 1167 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 38 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 38. Fees -STATUTE- In pursuance of 28 U.S.C. Sec. 1911, the fees to be charged by the Clerk are fixed as follows: (a) For docketing a case on a petition for a writ of certiorari or on appeal or docketing any other proceeding, except a certified question or a motion to docket and dismiss an appeal pursuant to Rule 18.5, $300.00. (b) For filing a petition for rehearing or a motion for leave to file a petition for rehearing, $200.00. (c) For the reproduction and certification of any record or paper, $1.00 per page; and for comparing with the original thereof any photographic reproduction of any record or paper, when furnished by the person requesting its certification, $.50 per page. (d) For a certificate under seal, $25.00. (e) For a check paid to the Court, Clerk, or Marshal which is returned for lack of funds, $35.00. ------DocID 37306 Document 1168 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 39 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 39. Proceedings In Forma Pauperis -STATUTE- .1. A party desiring to proceed in forma pauperis shall file with the pleading a motion for leave to proceed in forma pauperis, together with the party's notarized affidavit or declaration (in compliance with 28 U.S.C. Sec. 1746) in the form prescribed by the Federal Rules of Appellate Procedure, Form 4. See 28 U.S.C. Sec. 1915. If the United States district court or the United States court of appeals has appointed counsel under the Criminal Justice Act of 1964, as amended, the party need not file an affidavit or declaration in compliance with 28 U.S.C. Sec. 1746, but the motion must indicate that counsel was appointed under the Criminal Justice Act. See 18 U.S.C. Sec. 3006A(d)(6). The motion shall also state whether or not leave to proceed in forma pauperis was sought in any other court and, if so, whether leave was granted. .2. The motion, and affidavit or declaration if required, must be filed with the petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, and shall comply in every respect with Rule 21, except that it shall be sufficient to file a single copy. If not received together, the documents will be returned by the Clerk. .3. Every paper or document presented under this Rule must be clearly legible and, whenever possible, must comply with Rule 34. While making due allowance for any case presented under this Rule by a person appearing pro se, the Clerk will refuse to receive any document sought to be filed that does not comply with the substance of these Rules, or when it appears that the document is obviously and jurisdictionally out of time. .4. When the papers required by paragraphs .1 and .2 of this Rule are presented to the Clerk, accompanied by proof of service as prescribed by Rule 29, they are to be placed on the docket without the payment of a docket fee or any other fee. .5. The respondent or appellee in a case filed in forma pauperis may respond in the same manner and within the same time as in any other case of the same nature, except that the filing of 12 copies of a typewritten response, with proof of service as required by Rule 29, will suffice whenever the petitioner or appellant has filed typewritten papers. The respondent or appellee may challenge the grounds for the motion to proceed in forma pauperis in a separate document or in the response itself. .6. Whenever the Court appoints a member of the Bar to serve as counsel for an indigent party in a case set for oral argument, the briefs prepared by that counsel, unless otherwise requested, will be printed under the supervision of the Clerk. The Clerk will also reimburse appointed counsel for any necessary travel expenses to Washington, D.C., and return in connection with the argument. .7. In a case in which certiorari has been granted or jurisdiction has been noted or postponed, this Court may appoint counsel to represent a party financially unable to afford an attorney to the extent authorized by the Criminal Justice Act of 1964, as amended, 18 U.S.C. Sec. 3006A. -REFTEXT- REFERENCES IN TEXT Federal Rules of Appellate Procedure, referred to in par. .1, are set out in this Appendix. The Criminal Justice Act of 1964, referred to in pars. .1 and .7, is Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, which enacted section 3006A of Title 18, Crimes and Criminal Procedure, and provisions set out as notes under section 3006A of Title 18. For complete classification of this Act to the Code, see Short Title note set out under section 3006A of Title 18 and Tables. ------DocID 37307 Document 1169 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VII -HEAD- Rule 40. Veterans, Seamen, and Military Cases -STATUTE- .1. A veteran suing to establish reemployment rights under 38 U.S.C. Sec. 2022, or under any other provision of law exempting a veteran from the payment of fees or court costs, may file a motion to proceed upon typewritten papers under Rule 34, except that the motion shall ask leave to proceed as a veteran, and the affidavit shall set forth the moving party's status as a veteran. .2. A seaman suing pursuant to 28 U.S.C. Sec. 1916 may proceed without the prepayment of fees or costs or furnishing security therefor, but a seaman is not relieved of printing costs nor entitled to proceed on typewritten papers. .3. An accused person petitioning for a writ of certiorari to review a decision of the United States Court of Military Appeals pursuant to 28 U.S.C. Sec. 1259 may proceed without the prepayment of fees or costs or furnishing security therefor and without filing an affidavit of indigency, but is not relieved of the printing requirements under Rule 33 and is not entitled to proceed on typewritten papers except as authorized by the Court on separate motion. ------DocID 37308 Document 1170 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART VIII -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- PART VIII. DISPOSITION OF CASES ------DocID 37309 Document 1171 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 41 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 41. Opinions of the Court -STATUTE- Opinions of the Court will be released by the Clerk in preliminary form immediately upon delivery. Thereafter the Clerk shall cause the opinions of the Court to be issued in slip form and shall deliver them to the Reporter of Decisions who shall prepare them for publication in the preliminary prints and bound volumes of the United States Reports. -CROSS- CROSS REFERENCES Appointment and duties of Supreme Court Reporter, see section 673 of this title. Printing and binding for Supreme Court, see section 676 of this title. Supreme Court reports and digests, printing, binding and distribution, see sections 411 and 412 of this title. ------DocID 37310 Document 1172 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 42 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 42. Interest and Damages -STATUTE- .1. If a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment below was entered. If a judgment is modified or reversed with a direction that a judgment for money be entered below, the mandate will contain instructions with respect to the allowance of interest. Interest will be allowed at the same rate that similar judgments bear interest in the courts of the State in which judgment was entered or was directed to be entered. .2. When a petition for a writ of certiorari, an appeal, or application for other relief is frivolous, the Court may award the respondent or appellee just damages and single or double costs. Damages or costs may be awarded against the petitioner, appellant, or applicant, or against the party's attorney or against both. -CROSS- CROSS REFERENCES Damages and costs on affirmance, Supreme Court, see section 1912 of this title. ------DocID 37311 Document 1173 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 43 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 43. Costs -STATUTE- .1. If a judgment or decree is affirmed by this Court, costs shall be paid by the petitioner or appellant, unless otherwise ordered by the Court. .2. If a judgment or decree is reversed or vacated by this Court, costs shall be allowed to the petitioner or appellant, unless otherwise ordered by the Court. .3. The fees of the Clerk and the costs of printing the joint appendix are the only taxable items in this Court. The cost of the transcript of the record from the court below is also a taxable item, but shall be taxable in that court as costs in the case. The expenses of printing briefs, motions, petitions, or jurisdictional statements are not taxable. .4. In a case involving a certified question, costs shall be equally divided unless otherwise ordered by the Court; but if a decision is rendered on the whole matter in controversy, see Rule 19.2, costs shall be allowed as provided in paragraphs .1 and .2 of this Rule. .5. In a civil action commenced on or after July 18, 1966, costs under this Rule shall be allowed for or against the United States, or an officer or agent thereof, unless expressly waived or otherwise ordered by the Court. See 28 U.S.C. Sec. 2412. .6. When costs are allowed in this Court, the Clerk shall insert an itemization of the costs in the body of the mandate or judgment sent to the court below. The prevailing side shall not submit a bill of costs. .7. If appropriate, the Court may adjudge double costs. ------DocID 37312 Document 1174 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 44 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 44. Rehearing -STATUTE- .1. A petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after the entry of the judgment or decision, unless the time is shortened or enlarged by the Court or a Justice. Forty printed copies, produced in conformity with Rule 33, must be filed (except when the party is proceeding in forma pauperis under Rule 39), accompanied by proof of service as prescribed by Rule 29 and the filing fee required by Rule 38. The petition must briefly and distinctly state its grounds. Counsel must certify that the petition is presented in good faith and not for delay; one copy of the certificate shall bear the manuscript signature of counsel. A petition for rehearing is not subject to oral argument, and will not be granted except at the instance of a Justice who concurred in the judgment or decision and with the concurrence of a majority of the Court. .2. A petition for the rehearing of an order denying a petition for a writ of certiorari shall be filed within 25 days after the date of the order of denial and shall comply with all the form and filing requirements of paragraph .1 of this Rule, including the payment of the filing fee if required, but its grounds must be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented. Counsel must certify that the petition is restricted to the grounds specified in this paragraph and that it is presented in good faith and not for delay. One copy of the certificate shall bear the manuscript signature of counsel or of a party not represented by counsel. A petition without a certificate shall be rejected by the Clerk. The petition is not subject to oral argument. .3. No response to a petition for rehearing will be received unless requested by the Court, but no petition will be granted without an opportunity to submit a response. .4. Consecutive petitions and petitions that are out of time under this Rule will not be received. ------DocID 37313 Document 1175 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 45 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 45. Process; Mandates -STATUTE- .1. All process of this Court shall be in the name of the President of the United States. .2. In a case coming from a state court, the mandate shall issue 25 days after the entry of judgment, unless the time is shortened or enlarged by the Court or a Justice, or unless the parties stipulate that it be issued sooner. The filing of a petition for rehearing, unless otherwise ordered, will stay the mandate until disposition of the petition. If the petition is then denied, the mandate shall issue forthwith. .3. In a case coming from a United States court, a formal mandate will not issue unless specially directed; instead, the Clerk will send the court a copy of the opinion or order of this Court and a certified copy of the judgment (which shall include provisions for the recovery of costs, if any are awarded). In all other respects, the provisions of paragraph .2 of this Rule apply. -CROSS- CROSS REFERENCES Determination by Supreme Court, remand, see section 2106 of this title. Marshal to serve and execute process, see section 672 of this title. Seal and teste of process, see section 1691 of this title. ------DocID 37314 Document 1176 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 46 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART VIII -HEAD- Rule 46. Dismissing Cases -STATUTE- .1. Whenever all parties, at any stage of the proceedings, file with the Clerk an agreement in writing that a case be dismissed, specifying the terms with respect to the payment of costs, and pay to the Clerk any fees that may be due, the Clerk, without further reference to the Court, shall enter an order of dismissal. .2. (a) A petitioner or appellant in a case in this Court may file a motion to dismiss the case, with proof of service as prescribed by Rule 29, and must tender to the Clerk any fees and costs payable. An adverse party may, within 15 days after service thereof, file an objection, limited to the quantum of damages and costs in this Court alleged to be payable, or, in a proper case, to a showing that the moving party does not represent all petitioners or appellants. The Clerk will refuse to receive any objection not so limited. (b) When the objection goes to the standing of the moving party to represent the entire side, the party moving for dismissal, within 10 days thereafter, may file a reply, after which time the matter shall be submitted to the Court for its determination. (c) If no objection is filed, or if upon objection going only to the quantum of damages and costs in this Court, the party moving for dismissal, within 10 days thereafter, tenders the whole of such additional damages and costs demanded, the Clerk, without further reference to the Court, shall enter an order of dismissal. If, after objection as to the quantum of damages and costs in this Court, the moving party does not respond with a tender within 10 days, the Clerk shall report the matter to the Court for its determination. .3. No mandate or other process shall issue on a dismissal under this Rule without an order of the Court. ------DocID 37315 Document 1177 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT PART IX -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IX -HEAD- PART IX. APPLICATION OF TERMS AND EFFECTIVE DATE ------DocID 37316 Document 1178 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 47 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IX -HEAD- Rule 47. Term 'State Court' -STATUTE- The term 'state court' when used in these Rules includes the District of Columbia Court of Appeals and the Supreme Court of the Commonwealth of Puerto Rico. See 28 U.S.C. Sec. 1257 and 1258. References in these Rules to the common law and statutes of a State include the common law and statutes of the District of Columbia and of the Commonwealth of Puerto Rico. ------DocID 37317 Document 1179 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE SUPREME COURT Rule 48 -EXPCITE- TITLE 28 APPENDIX RULES OF THE SUPREME COURT OF THE UNITED STATES PART IX -HEAD- Rule 48. Effective Date of Amendments -STATUTE- These Rules adopted December 5, 1989, shall be effective January 1, 1990. ------DocID 37318 Document 1180 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT -HEAD- RULES OF THE UNITED STATES CLAIMS COURT -MISC1- (EFFECTIVE MARCH 15, 1991, AS REVISED MARCH 14, 1991) GENERAL ORDER NO. 1 General Order No. 1 of the United States Claims Court, October 7, 1982, provided that: 'The United States Claims Court inherits substantially all of the jurisdiction, caseload and grand tradition of the United States Court of Claims. To assure continuity in carrying out the business of the court, and to promote the interests of justice and service to the public, it is ordered as follows: '(1) All published decisions of the United States Court of Claims are accepted as binding precedent for the United States Claims Court, unless and until modified by decisions of the United States Court of Appeals for the Federal Circuit or the United States Supreme Court. '(2) Every order, decision and ruling entered by the trial or appellate divisions of the United States Court of Claims in cases now pending before the United States Claims Court is adopted in its entirety and will be given full force and effect, unless and until a judge of the United States Claims Court determines such order should be modified, amended or rescinded. '(3) The United States Claims Court will be the custodian of all records of the United States Court of Claims. '(4) The United States Claims Court will provide for the publication of all United States Court of Claims decisions which have been certified for publication in the United States Court of Claims Reporter.' GENERAL ORDER NO. 3 IT IS ORDERED that the attached rules (set out below) are adopted as the Rules of the United States Claims Court effective October 1, 1982. October 7, 1982 By the Court Alex Kozinski Chief Judge GENERAL ORDER NO. 9 IT IS ORDERED this date that the attached rules (set out below) are adopted as the Rules of the United States Claims Court effective February 15, 1984. January 27, 1984 By the Court Alex Kozinski Chief Judge GENERAL ORDER NO. 11 IT IS ORDERED this date that the attached rules (set out below) are adopted as the Rules of the United States Claims Court effective November 1, 1985. October 28, 1985 By the Court Alex Kozinski Chief Judge GENERAL ORDER NO. 28 IT IS ORDERED this date that the attached rules (set out below) are adopted as the Rules of the United States Claims Court effective March 15, 1991. March 14, 1991 By the Court Loren A. Smith Chief Judge RULES TITLE I. SCOPE OF RULES - ONE FORM OF ACTION Rule 1. Scope of Rules. (a) Scope. (b) Federal Rules of Civil Procedure. 2. One Form of Action. TITLE II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS 3. Commencement of Action. (a) Complaint; Filing Period. (b) Date of Filing. (c) Copies. 4. Process. (a) Service upon the United States. (b) Copies. (c) Proof and Date of Service. 5. Service and Filing of Other Papers. (a) Service; When Required. (b) Same; How Made. (c) Filing. (d) Filing with the Court Defined. (e) Proof of Service. 6. Time. (a) Computation. (b) Enlargement. (c) Additional Time After Service. (d) When Time Begins To Run. TITLE III. PLEADINGS AND MOTIONS 7. Pleadings Allowed; Form of Motions. (a) Pleadings. (b) Motions and Other Papers. (c) Demurrers, Pleas, Etc., Abolished. 8. General Rules of Pleading. (a) Claims for Relief. (b) Defenses; Form of Denials. (c) Affirmative Defenses. (d) Effect of Failure To Deny. (e) Pleading To Be Concise and Direct; Consistency. (f) Construction of Pleadings. 9. Pleading Special Matters. (a) Capacity. (b) Fraud, Mistake, Condition of the Mind. (c) Conditions Precedent. (d) Official Document or Act. (e) Judgment. (f) Time and Place. (g) Special Damage. (h) Special Matters Required in Complaint. 10. Form of Pleadings. (a) Caption; Names of Parties. (b) Paragraphs; Separate Statements. (c) Adoption by Reference; Exhibits. 11. Signing of Pleadings, Motions, and Other Papers; Sanctions. 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on the Pleadings. (a) When Presented. (b) How Presented. (c) Motion for Judgment on the Pleadings. (d) Preliminary Hearings. (e) Motion for More Definite Statement. (f) Motion To Strike. (g) Consolidation of Defenses in Motion. (h) Waiver of Preservation of Certain Defenses. (i) Suspension of Discovery. 13. Counterclaim. (a) Compulsory Counterclaims. (b) Permissive Counterclaims. (c) Counterclaim Exceeding Opposing Claim. (d) Counterclaim Against the United States (not used). (e) Counterclaim Maturing or Acquired After Pleading. (f) Omitted Counterclaim. (g) Cross-Claim Against Co-Party (not used). (h) Joinder of Additional parties (not used). (i) Separate Trials; Separate Judgments. 14. Third-Party Practice. (a) When Third Parties May Be Brought In. (b) Content of Motion for Notice to Third Parties. (c) Issuance and Service of Notice. (d) Service of Notice by Publication. (e) Contents of Motion for Summons to Third Parties. (f) Issuance and Service of Summons. (g) Pleadings of Third Parties. 15. Amended and Supplemental Pleadings. (a) Amendments. (b) Amendments To Conform to the Evidence. (c) Relation Back of Amendments. (d) Supplemental Pleadings. (e) Form and Filing. 16. Pretrial Conferences; Scheduling; Management. (a) Pretrial Conferences; Objectives. (b) Scheduling and Planning. (c) Subjects To Be Discussed at Pretrial Conferences. (d) Final Pretrial Conference. (e) Pretrial Orders. (f) Sanctions. TITLE IV. PARTIES 17. Parties Plaintiff and Defendant; Capacity. (a) Real Party in Interest. (b) Capacity To Sue or Be Sued. (c) Infants or Incompetent Persons. 18. Joinder of Claims and Remedies. (a) Joinder of Claims. (b) Joinder of Remedies. 19. Joinder of Persons Needed for Just Adjudication. (a) Persons To Be Joined If Feasible. (b) Determination by Court Whenever Joinder Not Feasible. (c) Pleading Reasons for Nonjoinder. (d) Exception of Class Actions. 20. Permissive Joinder of Parties. (a) Permissive Joinder. (b) Separate Trials. 21. Misjoinder and Non-Joinder of Parties. 23. Class Actions. 24. Intervention. (a) Intervention of Right. (b) Permissive Intervention. (c) Procedure. 25. Substitution of Parties. (a) Death. (b) Incompetency. (c) Transfer of Interest. (d) Public Officers; Death or Separation from Office (not used). TITLE V. DEPOSITIONS AND DISCOVERY 26. General Provisions Governing Discovery. (a) Discovery Methods. (b) Discovery Scope and Limits. (c) Protective Orders. (d) Sequence and Timing of Discovery. (e) Supplementation of Responses. (f) Discovery Conference. (g) Signing of Discovery Requests, Responses, and Objections. 27. Discovery To Perfect Complaint or Pending Appeal. (a) Preliminary Complaint. (b) Pending Appeal. (c) Perpetuation by Action (not used). 28. Persons Before Whom Depositions May Be Taken. (a) Within the United States. (b) In Foreign Countries. (c) Disqualification for Interest. (d) Fees. 29. Stipulations Regarding Discovery Procedure. 30. Depositions upon Oral Examination. (a) When Depositions May Be Taken. (b) Notice of Examination: General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. (d) Motion To Terminate or Limit Examination. (e) Submission To Witness; Changes; Signing. (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Completion. (g) Failure To Attend or To Serve Subpoena; Expenses. 31. Depositions upon Written Questions. (a) Serving Questions; Notice. (b) Officer To Take Responses and Prepare Record. (c) Notice of Receipt. 32. Use of Depositions in Court Proceedings. (a) Use of Depositions. (b) Objections to Admissibility. (c) Effect of Taking or Using Depositions (not used). (d) Effect of Errors and Irregularities in Depositions. 33. Interrogatories to Parties. (a) Availability; Procedures for Use. (b) Scope; Use at Trial. (c) Option To Produce Business Records. 34. Production of Documents and Things and Entry upon Land for Inspection and Other Purposes. (a) Scope. (b) Procedure. (c) Persons Not Parties (not used). (d) Calls. 35. Physical and Mental Examination of Persons. (a) Order for Examination. (b) Report of Examining Physician. 36. Requests for Admission. (a) Request for Admission. (b) Effect of Admission. 37. Failure To Make or Cooperate in Discovery; Sanctions. (a) Motion for Order Compelling Discovery. (b) Failure To Comply with Order. (c) Expenses on Failure To Admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. (e) Subpoena of Person in Foreign Country (not used). (f) Expenses Against United States (not used). (g) Failure To Participate in the Framing of a Discovery Plan. TITLE VI. TRIALS 39. Trial. (a) By the Court. (b) Reporting Arrangements; Return of Transcript. 40. Assignment of Cases for Trial. 41. Dismissal of Actions. (a) Voluntary Dismissal; Effect Thereof. (b) Involuntary Dismissal; Effect Thereof. (c) Dismissal of Counterclaim or Third-Party Claim. (d) Costs of Previously Dismissed Action. 42. Consolidation; Separate Trials. (a) Consolidation. (b) Separate Trials. (c) Separate Determination of Liability. 43. Taking of Testimony. (a) Form. (b) Affirmation in Lieu of Oath. (c) Evidence on Motions. (d) Interpreters. 44. Proof of Official Record. (a) Authentication. (b) Lack of Record. (c) Other Proof. (d) Proof of Rules and Regulations. 44.1. Determination of Foreign Law. 45. Subpoena. (a) For Attendance of Witnesses: Form; Issuance. (b) For Production of Documentary Evidence. (c) Service. (d) Subpoena for Taking Depositions; Place of Examination. (e) Subpoena for a Hearing or Trial. (f) Contempt. 46. Exceptions Unnecessary. 52. Findings by the Court. (a) Effect. (b) Amendment. 52.1. Unpublished Opinions. (a) Citation. (b) Request to Publish. 53. Masters. (a) Appointment and Compensation. (b) Reference. (c) Powers. (d) Proceedings. (e) Report. TITLE VII. JUDGMENT 54. Judgments; Costs. (a) Definition; Form. (b) Judgment upon Multiple Claims or Involving Multiple Parties. (c) Demand for Judgment. (d) Costs. 55. Default. (a) Entry. (b) Judgment. (c) Setting Aside Default. (d) Plaintiffs; Counterclaimants. (e) Judgment Against the United States. 56. Summary Judgment. (a) For Claimant. (b) For Defending Party. (c) Motion and Proceedings Thereon. (d) Procedures. (e) Case Not Fully Adjudicated on Motion. (f) Form of Affidavits; Further Testimony; Defense Required. (g) When Affidavits Are Unavailable. (h) Affidavits Made in Bad Faith. 56.1. Review of Decision on the Basis of Administrative Record. (a) Standards. (b) Procedures. 57. Declaratory Judgments. 58. Entry of Judgment. 59. New Trials; Rehearings; Amendment of Judgments; Reconsideration. (a) Grounds. (b) Time for Motion and Response. (c) On Initiative of Court. (d) Motion To Alter or Amend a Judgment. 60. Relief from Judgment or Order. (a) Clerical Mistakes. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 60.1. Remand; Extension or Termination of Stay of Proceedings on Remand; Disposition of Case. (a) Remand. (b) Extension or Termination of Stay of Proceedings on Remand; Disposition of Case. 61. Harmless Error. 62. Stay of Proceedings To Enforce a Judgment. (a) Automatic Stay; Exceptions - Injunctions and Patent Accountings. (b) Stay on Motion for New Trial or for Judgment. (c) Injunction Pending Appeal. (d) Stay upon Appeal. (e) Stay in Favor of the United States or Agency Thereof. (f) Power of Appellate Court Not Limited. (g) Stay of Judgment as to Multiple Claims or Multiple Parties. 63. Disability or Disqualification of a Judge. (a) Disability. (b) Voluntary Disqualification. (c) Affidavit of Bias or Prejudice. TITLE VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS 65. Injunctions. (a) Preliminary Injunction. (b) Temporary Restraining Order; Notice; Hearing; Duration. (c) Security. (d) Form and Scope of Injunction or Restraining Order. (e) Employer and Employee. (f) Procedures. 65.1. Security: Proceedings Against Sureties. (a) Proceedings. (b) Sureties. 68. Offer of Judgment. TITLE IX. APPEALS 72. Notice of Appeal. TITLE X. COURT AND CLERK 77. Court and Clerk. (a) Name. (b) Seal. (c) Court Always Open. (d) Citations. (e) Judicial Power. (f) Assignment of Cases. (g) Signing of Orders for Absent Judges. (h) Trials and Hearings; Orders in Chambers. (i) Clerk's Office and Orders by Clerk. (j) Notice of Orders or Judgments. (k) Fee Schedule. (l) Scheduling Courtrooms. (m) Officers and Employees of the Court; Practice of Law. 77.1. Case Management. (a) Responsibility. (b) Scheduling. 77.2. Clerk Authorized To Act on Certain Motions. (a) Motions Enumerated. (b) Maximum Time Allowable. (c) Denial of Motions for Enlargement. (d) Review by the Court. 77.3. Withdrawal of Papers, Exhibits and In Camera Documents. (a) Temporary Withdrawal. (b) Withdrawal for Trial. (c) Permanent Withdrawal. (d) Physical Exhibits and In Camera Documents. 77.4. Taxation of Costs. (a) Filing Bill of Costs. (b) Objections to Bill of Costs. (c) Costs in Settlements. (d) No Extensions. 78. Motions Day. 79. Books and Records Kept by the Clerk and Entries Therein. (a) Docket. (b) Judgments and Orders. (c) Indices; Calendars. (d) Other Books and Records of the Clerk. 80. Reporter; Record or Transcript as Evidence. (a) Reporter. (b) Preparation of Transcript and Exhibits. (c) Copies of Transcript. (d) Report or Transcript as Evidence. TITLE XI. GENERAL PROVISIONS 81. Attorneys. (a) Attorneys Eligible To Practice. (b) Admission to Practice. (c) Disbarment. (d) Attorneys of Record. (e) Application for Attorneys' Fees and Expenses. 82. Form, Size and Duplication of all Papers. (a) General. (b) Duplication. (c) Form and Size. (d) Date. (e) Telephone Number. 83. Number of Copies. 83.1. Content of Briefs or Memoranda; Length of Briefs or Memoranda. (a) Content of Briefs or Memoranda. (b) Length of Briefs or Memoranda. 83.2. Time for Filing. (a) Responses and Objections. (b) Replies. (c) Motions Under Rules 12(b), 12(c) and 56. (d) Leave of Court. (e) Cross-motions. (f) Reconsideration of Orders. 84. Transfers and Referrals. (a) Transfers from Other Courts. (b) Referral of Cases by the Comptroller General. 85. Title. 86. Effective Date. APPENDICES A. Instructions to Reporters; Forms. B. Procedures for Processing Complaints of Judicial Misconduct Pursuant to 28 U.S.C. Sec. 372(c). C. Procedure in Common Carrier Cases. D. Procedure in Congressional Reference Cases (28 U.S.C. Sec. 1492, 2509). E. Application for Attorneys' Fees Under Equal Access to Justice Act. F. United States Claims Court Rules of Disciplinary Enforcement. G. Procedures Before Trial. H. Motions. I. Bill of Costs. J. Vaccine Rules of the Office of Special Masters of the United States Claims Court. Review of Decisions of Special Masters Rendered Pursuant to the National Vaccine Injury Compensation Program. K. United States Claims Court Cover Sheet. * * * * * The rules of the United States Claims Court are based upon the Federal Rules of Civil Procedure (Fed. R. Civ. P. or the Federal Rules). For ease of reference to rulings in Federal Rules Decisions on comparable rules, chapter titles and rule numbers of the Claims Court rules follow closely the Fed. R. Civ. P. Amendments and additions to the Federal Rules have been made as required to give effect to the jurisdictional differences of the Claims Court. Federal Rules which are not applicable to the Claims Court have been omitted, and subdivisions of the Federal Rules that have not been used, either in amended or supplemented form, are so designated. FEDERAL RULES OF CIVIL PROCEDURE OMITTED Rule 22. Interpleader. 23.1. Derivative Actions by Shareholders. 23.2. Actions Relating to Unincorporated Associations. 38. Jury Trial of Right. 47. Jurors. 48. Juries of Less than Twelve - Majority Verdict. 49. Special Verdicts and Interrogatories. 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict. 51. Instructions to Jury; Objection. 64. Seizure of Person or Property. 66. Receivers Appointed by Federal Courts. 67. Deposit in Court. 69. Execution. 70. Judgment for Specific Acts; Vesting Title. 71. Process in Behalf of and Against Persons Not Parties. 71A. Condemnation of Property. 73. Appeal to a Court of Appeals. 74. Joint Appeals to the Supreme Court or to a Court of Appeals. 75. Record on Appeal to a Court of Appeals. 76. Record on Appeal to a Court of Appeals; Agreed Statement. * * * * * RULES OF THE UNITED STATES CLAIMS COURT The United States Claims Court was created by the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)). It inherited substantially all of the jurisdiction formerly exercised by the United States Court of Claims. Section 139(b)(1) of the Act, 28 U.S.C. Sec. 2503(b), authorizes the United States Claims Court to prescribe rules of practice and procedure for its proceedings. ------DocID 37319 Document 1181 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE I -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE I -HEAD- TITLE I. SCOPE OF RULES - ONE FORM OF ACTION ------DocID 37320 Document 1182 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE I -HEAD- Rule 1. Scope of Rules -STATUTE- (a) Scope. (1) These rules govern all proceedings in actions filed in the United States Claims Court on or after October 1, 1982, and all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending on October 1, 1982, would not be feasible or would work an injustice. In such event the court by order shall adapt the prior procedures of the United States Court of Claims as required. These rules shall be cited as RUSCC. (2) These rules shall be construed to secure the just, speedy, and inexpensive determination of every action. (3) In all cases not provided for by rule, a judge may regulate the applicable practice in any manner not inconsistent with these rules. (b) Federal Rules of Civil Procedure. The Federal Rules applicable to civil actions tried by the court sitting without a jury and in effect on March 1, 1990, have been incorporated in these rules to the extent that they appropriately can be applied to proceedings in this court. ------DocID 37321 Document 1183 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE I -HEAD- Rule 2. One Form of Action -STATUTE- There shall be one form of action to be known as a 'civil action.' ------DocID 37322 Document 1184 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE II -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE II -HEAD- TITLE II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS ------DocID 37323 Document 1185 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE II -HEAD- Rule 3. Commencement of Action -STATUTE- (a) Complaint; Filing Period. A civil action in this court shall be commenced by filing a complaint with the Clerk of the Court. See Rule 77(f)(2). (b) Date of Filing. (1) The records of the clerk, including the date stamped on the complaint, shall be final and conclusive evidence of the date on which a complaint was filed, in the absence of the filing and allowance of a motion under subdivision (b)(2) of this rule. (2)(A) A party plaintiff who contends that the effective date of plaintiff's complaint should properly be a date earlier than that shown by the clerk's records may seek a corrective order from the court by means of a motion. (B) Upon motion of a party plaintiff supported by a proper showing that the clerk's records are factually incorrect, the court will correct the records by order. (C) In a situation where a complaint is stamped by the clerk after the last date allowed by a statute of limitations for the filing of the complaint, if the complaint was received by the clerk through the mail, it may, by order of court, upon motion of the party plaintiff, be deemed to have been filed on the last date allowed if there is a proper showing (i) that the complaint was sent by registered or certified mail, properly addressed to the clerk at 717 Madison Place, N.W., Washington, D.C. 20005, and with return receipt requested; (ii) that it was deposited in the mail sufficiently in advance of the last date allowed for filing to provide for receipt by the clerk on or before such date in the ordinary course of the mail; and (iii) that the party plaintiff as sender exercised no control over the mailing between the deposit of the complaint in the mail and its delivery. (c) Copies. Plaintiff shall file an original and 7 copies of the complaint, the original of which shall be accompanied by the completed cover sheet as shown in Appendix K utilizing the Cover Sheet Information. See Rule 83. ------DocID 37324 Document 1186 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 4 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE II -HEAD- Rule 4. Process -STATUTE- (a) Service upon the United States. Service of the complaint upon the United States shall be made through the delivery by the clerk to the Attorney General, or to an agent designated by authority of the Attorney General, of copies of the complaint in numbers prescribed by subdivision (b) of this rule. (b) Copies. The clerk shall serve on the Attorney General or his designated agent 5 copies of the complaint. (c) Proof and Date of Service. At the time the clerk serves a complaint the clerk shall enter the fact of service on the docket, and such entry shall be prima facie evidence of service. For the purposes of this rule, the date of service shall be the date of filing with the clerk. ------DocID 37325 Document 1187 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 5 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE II -HEAD- Rule 5. Service and Filing of Other Papers -STATUTE- (a) Service; When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. (b) Same; How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party by mailing it to the attorney or party at the last known address or, if no address is known, by leaving it with the clerk. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the attorney's or party's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing, but filing is not. (c) Filing. All papers after the complaint required to be served upon a party shall be filed with the court, except that depositions upon oral examination and notices thereof, written questions, interrogatories, requests for documents, requests for admission, and answers and responses thereto and other related discovery materials shall not be filed unless on order of court. See Rule 83. (d) Filing with the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with chambers, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. All matters are to be brought to the attention of a judge through formal filings rather than by correspondence; letters are not to be directed to a judge unless specifically requested. (e) Proof of Service. (1) Service shall be made by the party, attorney of record or any other person acting under the attorney of record's direction. The person making service shall execute a certificate of service that contains the following information: (A) the day and manner of service; (B) the person and/or entity served; and (C) the method of service employed, e.g., personal, mail, substituted, etc. (2) The certificate of service shall be attached at the end of the original document, including appendices, and copies thereof. If service other than by mail is used and it is impractical to attach the certificate at time of filing, such certificate may be filed subsequently. (3) The certificate may at any time be amended or supplied unless to do so would result in material prejudice to the substantial rights of any party. ------DocID 37326 Document 1188 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 6 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE II -HEAD- Rule 6. Time -STATUTE- (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the clerk's office inaccessible, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(i), legal holiday includes New Year's Day, Inauguration Day, Martin Luther King's Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, or any other day appointed as a holiday by the President or the Congress of the United States. (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) order the period enlarged if request therefor is made by motion showing good cause before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52(b), 59(b) and (d), 60(b) and 77.4, except to the extent and under the conditions stated in them. Every motion for enlargement of time must set forth therein the specific number of additional days requested, the date to which the enlargement is to run, the extent to which the time for the performance of the particular act has been previously enlarged, and the reason or reasons upon which the motion for enlargement is based. Motions for enlargement will not be granted on the basis of nonspecific assertions that counsel has been delayed because of the press of other business. Where a motion for enlargement is based on the occurrence of some unanticipated event, counsel must file the motion promptly upon learning of the event. In general, motions for enlargement must be filed at the earliest practicable time and make a persuasive showing that counsel has been working on the matter diligently or has been prevented from doing so by significant matters beyond counsel's control. Motions for enlargements of time must contain a representation that the moving party has discussed the motion with opposing counsel and a statement whether an opposition will be filed or, if opposing counsel cannot be consulted, an explanation of the efforts made to do so. (c) Additional Time After Service. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a paper, and the service is made other than by hand on the same day, 3 calendar days shall be added to the prescribed period, except that no days shall be added when a date or time limitation is set by a court order. (d) When Time Begins To Run. In computing any period of time prescribed or allowed by these rules, or by order of court, or by any applicable statute, the period of time shall commence to run on the day after the service of a paper or the filing of a court order, unless otherwise particularly specified in these rules. ------DocID 37327 Document 1189 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE III -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- TITLE III. PLEADINGS AND MOTIONS ------DocID 37328 Document 1190 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 7 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 7. Pleadings Allowed; Form of Motions -STATUTE- (a) Pleadings. There shall be a complaint and an answer; and if the answer contains a counterclaim or offset or a plea of fraud, there shall be a reply thereto. There shall be such third-party pleadings as are permitted by Rule 14. No other pleading shall be allowed, except that the court may order a reply to an answer, or a responsive pleading to a third-party complaint or answer. (b) Motions and Other Papers. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought, and shall comply with Appendix H. Any motion, objection, or response may be accompanied by a brief or memorandum, and, if necessary, by supporting affidavits that shall be attached to the motion. Any motion may be accompanied by a proposed order. (2) The rules applicable to captions, and other matters of form of pleadings apply to all motions and other papers provided for by these rules. See Rules 10(a), 82, 83.1. (3) All motions shall be signed in accordance with Rule 11. See Rule 83. (c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used. ------DocID 37329 Document 1191 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 8 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 8. General Rules of Pleading -STATUTE- (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader is entitled. Relief in the alternative or of several different types may be demanded. (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or the pleader may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11. (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. (d) Effect of Failure To Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (e) Pleading To Be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in Rule 11. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. ------DocID 37330 Document 1192 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 9. Pleading Special Matters -STATUTE- (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, a party shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special Damage. When items of special damage are claimed, they shall be specifically stated. (h) Special Matters Required in Complaint. The complaint shall include: (1) Action by Other Tribunal or Body. Any action on the claim taken by Congress or by any department or agency of the United States, or in any judicial proceeding, including any in the Tax Court of the United States. (2) Citations of Statutes, Regulations, Orders. A clear citation of the Act of Congress, regulation of an executive department or agency, or Executive order of the President, where the claim is founded upon such an act, regulation, or order. (3) Contracts or Treaties. If the claim is founded upon a contract or treaty with the United States, a description of the contract or treaty sufficient to identify it. In addition, the plaintiff shall plead the substance of those portions of the contract or treaty on which the plaintiff relies, or shall annex to the complaint a copy of the contract or treaty, indicating the provisions thereof on which the plaintiff relies. (4) Patent Suits. In any patent suit, the claim or claims of the patent or patents alleged to be infringed. (5) Ownership of Claim; Assignment. If the plaintiff is the owner by assignment or other transfer of the claim, in whole or in part, when and upon what consideration the assignment or transfer was made. (6) Tax Refund Suits. In any action for refund of federal tax, for each tax year or period for which a refund is sought, the amount, date, and place of each payment to be refunded; the date and place the return, if any, was filed; the name and address of the taxpayer or taxpayers appearing on the tax return; the date and place the claim for refund was filed; the name and address of the taxpayer or taxpayers appearing on the claim; and the identification number shown on the return for each plaintiff. ------DocID 37331 Document 1193 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 10 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 10. Form of Pleadings -STATUTE- (a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, see Rule 20(a), the United States being designated as the party defendant in every case, but in other pleadings and other papers it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. But see Rule 72. (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes unless otherwise indicated, but the adverse party shall not be deemed to have admitted the truth of the allegations in such exhibit merely because the adverse party has failed to deny them explicitly. ------DocID 37332 Document 1194 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 11 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions -STATUTE- Every pleading, motion, and other paper of a party represented by an attorney shall be signed by or for the attorney of record in the signing attorney's own individual name, whose address and telephone number shall be stated. See Rule 81(d)(2). A party who is not represented by an attorney shall sign the pleading, motion, or other paper and state the party's address. Any stipulation for a money judgment shall be signed by an authorized representative of the Attorney General. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the attorney or party that the attorney or party has read the pleading, motion, or other paper; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. ------DocID 37333 Document 1195 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 12 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on the Pleadings -STATUTE- (a) When Presented. The United States shall file its answer to the complaint within 60 days after the service of the pleading in which the claim is asserted. After service of an answer containing a counterclaim, offset, or plea of fraud, plaintiff shall have 20 days within which to file a reply to the counterclaim, offset or plea of fraud. If a reply to an answer or a responsive pleading to a third-party complaint or answer is ordered by the court, the reply or responsive pleading shall be filed within 20 days after service of the order unless the order otherwise directs. The service of a motion permitted under this rule or Rule 56 alters these periods of time, as follows, unless a different time is fixed by order of the court: (1) if the court denies or partially denies or partially allows the motion or postpones its disposition until the trial on the merits or the motion is withdrawn, the responsive pleading shall be filed within 10 days after notice of the court's action, or the date on which the motion is withdrawn, or by the date the response otherwise would have been due, whichever is later; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be filed within 10 days after the service of the more definite statement. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; (4) failure to state a claim upon which relief can be granted. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (4) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(4) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing the party's responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. (f) Motion To Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon that party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) of this rule on any of the grounds there stated. (h) Waiver of Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person or insufficiency of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) of this rule, or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, and an objection of failure to state a legal defense to a claim, may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. (i) Suspension of Discovery. The filing of a motion pursuant to Rules 12(b), 12(c) or 56 shall not suspend discovery unless for good cause shown on separate motion the court in its discretion so orders. ------DocID 37334 Document 1196 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 13 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 13. Counterclaim -STATUTE- (a) Compulsory Counterclaims. The answer shall state as a counterclaim any claim which, at the time of serving the answer, the defendant has against any plaintiff, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the answer need not state the claim if at the time the action was commenced the claim was the subject of another pending action. (b) Permissive Counterclaims. The answer may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim Against the United States. (Not used.) (e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the defendant after serving its pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (f) Omitted Counterclaim. When the defendant fails to set up a counterclaim through oversight, inadvertence or excusable neglect, or when justice requires, it may by leave of court set up the counterclaim by amendment. (g) Cross-Claim Against Co-Party. (Not used.) (h) Joinder of Additional Parties. (Not used.) (i) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. ------DocID 37335 Document 1197 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 14 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 14. Third-Party Practice -STATUTE- (a) When Third Parties May Be Brought In. (1) The court, on its own motion or on the motion of a party, may notify any person with legal capacity to sue and be sued and who is alleged to have an interest in the subject matter of any pending action to appear as a party and assert an interest, if any, therein. (2) On motion of the United States, the court may summon any third person against whom the United States may be asserting a claim or contingent claim for the recovery of money paid by the United States in respect of the transaction or matter which constitutes the subject matter of the suit to appear as a party and defend the third party's interest, if any, in such suit. (3) A motion made by the plaintiff under subdivision (a)(1) hereof shall be filed at the time the complaint is filed. Copies and service of such a motion shall be as provided in Rules 3(c) and 4. A motion made by the United States under subdivision (a)(1) or (2) hereof shall be filed on or before the date on which the answer is required to be filed. For good cause shown, the court may allow any such motion to be filed at a later time. (b) Content of Motion for Notice to Third Parties. A party desiring to bring in a third party pursuant to subdivision (a)(1) of this rule shall file with the clerk a written motion which shall: (1) state the name and address of such person, if known; (2) if the address of such person is unknown, or if such person resides outside the jurisdiction of the United States, or there is good reason why service on such person cannot be had, be accompanied by an affidavit showing why service cannot be had on such person and stating the last-known address of such person; and (3) set forth the interest which such person appears to have in the action. (c) Issuance and Service of Notice. (1) If the court, on its own motion or on the motion of a party, orders any third person to be notified pursuant to subdivision (a)(1) of this rule, the clerk shall issue an original and 1 copy of the notice for each third person to be notified. The notice shall contain the names of the parties and a statement of the time within which such third person may appear and shall state that in case the third party fails to appear and assert a claim in the subject matter of the action, the claim or interest of the third party therein shall forever be barred. The notice shall indicate that it is accompanied by a copy of the pleadings, which shall be attached by the moving party. (2) Upon the issuance of such notice upon motion of a party, the notice shall be delivered by the clerk to the moving party, who shall at the moving party's expense cause the same to be served on the person to be notified by registered or certified mail, return receipt requested, with the moving party to file with the clerk the return of such service, which return shall include the copy of the notice with return receipt attached. (3) When the court directs the issuance of a notice to a third person on its own motion, each of the existing parties shall, on request of the clerk, deliver to the clerk a sufficient number of copies of pleadings filed by such party to provide the third party to be notified with a copy of each of such pleadings, and the clerk shall forthwith issue such notice as specified in subdivision (c)(1) of this rule and shall forward the same with accompanying copies of the pleadings to the Attorney General for service as provided in subdivision (c)(2) of this rule. (4) When service of the notice required by subdivision (c)(1) of this rule is to be effected upon a third person in a foreign country, service of the notice may be made by the moving party or the court, as required by subdivisions (c)(2) and (3) of this rule, and proof of such service may be made in the manner authorized by Rule 4(i) of the Federal Rules. (d) Service of Notice by Publication. Where, upon motion of a party, the court under subdivision (a)(1) of this rule directs the issuance of a notice to a person upon whom service cannot be had, the moving party shall cause such notice to be published in a newspaper of general circulation in a place designated in the order, for a specified time, not less than once in each of 4 successive weeks. On or before the day of the first publication, the moving party shall send a copy of the notice by registered or certified mail to such person at such person's last-known address and shall file with the clerk an affidavit showing such mailing. The moving party shall procure an affidavit of the publisher showing that publication of the notice has been had as required by the order and shall file such affidavit with the clerk, who shall make an entry on the docket that publication has been had. The affidavit of mailing and the publisher's affidavit, together with the clerk's entry, shall constitute proof of service by publication. Service shall be deemed complete on the date of the last publication. The costs of such service by publication shall be paid by the party at whose instance it was made. (e) Contents of Motion for Summons to Third Parties. When the United States is asserting a claim for damages or other demand against a third person for the recovery of money paid by the United States in respect of the transaction or matter which constitutes the subject matter of any pending action and desires to have such third person brought in pursuant to subdivision (a)(2) of this rule, it shall file a written motion, which shall comply with the requirements of subdivision (b) of this rule and which shall be accompanied by an appropriate pleading setting forth the claim or contingent claim which it is asserting against such third person. (f) Issuance and Service of Summons. If the court, on motion of the United States, summons a third person pursuant to subdivision (a)(2) of this rule to answer a claim or contingent claim asserted by the United States, the clerk shall issue an original and 1 copy of such summons for each person to be summoned. The summons shall contain the names of the parties and a statement of the time within which the party summoned is required to appear and answer. The summons shall also state that the United States is asserting a claim against such person, as described in the accompanying pleading of the United States, and shall further state that if such third person fails to appear and answer the claim asserted by the United States, judgment pro confesso may be entered against such third person upon the claim of the United States to the same extent as if said third person had appeared and admitted the truth of all the allegations made on behalf of the United States. The summons shall indicate that it is accompanied by a copy or copies of all pleadings filed in said action, naming such pleadings which shall be attached by the moving party. Upon issuance of the summons, the clerk shall deliver the summons to the Attorney General for personal service and the return of such service shall be made directly to the clerk. (g) Pleadings of Third Parties. Within 40 days after service upon a third person of a notice or summons issued pursuant to this rule, such person may file a complaint setting forth the person's interest, if any, in the subject matter of the action and the nature of the person's claim against the United States, or an answer, or both, which pleadings shall comply with the requirements of these rules with respect to the filing of original complaints and answers, except that only an original and 2 copies of a complaint are to be filed with proof of service. ------DocID 37336 Document 1198 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 15 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 15. Amended and Supplemental Pleadings -STATUTE- (a) Amendments. A party may amend the party's own pleadings once as a matter of course at any time before a response is served or, if the response is one to which no further pleading is permitted and the action has not been scheduled for trial, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's own pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. (b) Amendments To Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. (d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statements of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. (e) Form and Filing. Every amendment to a pleading shall (1) include so much of the prior pleading as may be required to show clearly how the pleading is to stand amended; (2) comply with the rules for caption, designation, and signature; (3) carry designation as the first, second, or subsequent amended pleading; and (4) comply with the requirements of Rules 82 and 83, except that upon a proper showing, by motion filed with the court or during pretrial conference or at trial, that the proposed amendments are minor in character or of such brevity as to warrant the use of pasters or interlineation, the court may waive the requirements of this subdivision (e)(4) of this rule. ------DocID 37337 Document 1199 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 16 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE III -HEAD- Rule 16. Pretrial Conferences; Scheduling; Management -STATUTE- (a) Pretrial Conferences; Objectives. (1) All procedures before trial shall be governed by Appendix G. (2) In any action, the court in its discretion by appropriate order may direct the attorneys for the parties and any unrepresented parties to confer and/or exchange: (i) lists containing the names and addresses of all witnesses they respectively expect to call at trial; (ii) lists of the documentary exhibits which they respectively intend to offer at trial; (iii) written statements of material matters of fact as to which they respectively believe there is no substantial controversy; (iv) written statements of issues of fact and law they respectively believe are in dispute; and (v) such other matters as may be directed by the court. (3) In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference, or conferences, before trial or to arrange a telephone conference, or conferences for such purposes as: (i) expediting the disposition of the action; (ii) establishing early and continuing control so that the case will not be protracted because of lack of management; (iii) discouraging wasteful pretrial activities; (iv) improving the quality of the trial through more thorough preparation; (v) facilitating the settlement of the case; and (vi) such other matters as may aid in the disposition of the action. (b) Scheduling and Planning. After the initial status report or conference, the court shall enter a scheduling order that limits the time: (1) to join other parties and to amend the pleadings; (2) to file and hear motions; and (3) to complete discovery. The scheduling order also may include: (4) the date or dates for conferences before trial, a final pretrial conference, and trial; and (5) any other matters appropriate in the circumstances of the case. (c) Subjects To Be Discussed at Pretrial Conferences. The participants at any conference under this rule may consider and take action with respect to: (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence; (4) the avoidance of unnecessary proof and of cumulative evidence; (5) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial; (6) the advisability of referring matters to a master; (7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute; (8) the form and substance of the pretrial order; (9) the disposition of pending motions; (10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and (11) such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. (d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including the program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. (e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken, except that after the final pretrial conference the court may recite the contents of its order, other than scheduling matters, on the record. The pretrial order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. (f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the court, upon motion or its own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the court shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorneys' fees, unless the court finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. GENERAL ORDER NO. 13 The United States Claims Court is sensitive to rising litigation costs and the delay often inherent in the traditional judicial resolution of complex legal claims. While the mandates of due process inevitably place limits on how expeditious a trial of a complex issue can be, there are no such limits when parties voluntarily seek noncompulsory settlements. Since justice delayed is justice denied, it is an obligation of this court to further the settlement process in all ways consistent with the ultimate guarantee of a fair and complete hearing to those disputes that cannot be resolved by mutual consent. Courts are institutions of last resort and while preserving that 'last resort' as a sacred trust, they should insure its use only when other methods of dispute resolution have failed. In response to these concerns, the court is implementing two methods of Alternative Dispute Resolution: Settlement Judges and Mini-Trials. The methods to be used in the Claims Court are described in the 'Notice to Counsel' attached to this Order. IT IS ORDERED, effective this date, that the Notice to Counsel shall be distributed as follows: (1) to counsel for all parties in cases currently pending before the Claims Court, and (2) to counsel for all parties in cases filed after the date of this Order. April 15, 1987 By the Court Loren A. Smith Chief Judge NOTICE TO COUNSEL ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES In response to rising litigation costs and the delay often inherent in the traditional judicial resolution of complex legal claims, the United States Claims Court is implementing two methods of alternative dispute resolution (ADR) for use in appropriate cases. The Claims Court encourages all reasonable avenues toward settlement of disputes, including the usual dialogue between the trial judge and counsel. Implementation by the court of these ADR methods does not preclude use by the parties of other ADR techniques which do not require court involvement. The ADR methods outlined below are both voluntary and flexible, and should be employed early in the litigation process in order to minimize discovery. Both parties must agree to use the procedures. Because these procedures are designed to promote settlement and involve the application of judicial resources, however, the court views their use as most appropriate where the parties anticipate a lengthy discovery period followed by a protracted trial. These requirements typically will be met where the amount in controversy is greater than $100,000 and trial is expected to last more than one week. When both counsel agree and wish to employ one of the ADR methods offered, they should notify the presiding judge of their intent as early as possible in the proceedings, or concurrently with submission of the Joint Preliminary Status Report required by Appendix G. The presiding judge will consider counsels' request and make the final decision whether to refer the case to ADR. If ADR is considered appropriate, the presiding judge will refer the case to the Office of the Clerk for assignment to a Claims Court judge who will preside over the ADR procedure adopted. The ADR judge will exercise ultimate authority over the form and function of each method within the general guidelines adopted by the court. Accordingly, the parties will promptly meet with the assigned ADR judge to establish a schedule and procedures for the technique chosen. Should either of these techniques fail to produce a satisfactory settlement, the case will be returned to the presiding judge's docket. Except as allowed by Federal Rule of Evidence 408, all representations made in the course of the selected ADR proceeding are confidential and may not be used for any reason in subsequent litigation. I. Settlement Judge In many circumstances, settlement can be fostered by a frank, in-depth discussion of the strengths and weaknesses of each party's case before a neutral advisor. Although this alternative can be used successfully at any stage of the litigation, it is suggested that it be adopted as early in the process as feasible to eliminate unnecessary cost and delay. Moreover, the agenda for these meetings with the settlement judge should remain flexible to accommodate the requirements of the individual cases. Through this ADR method, the parties will gain the benefit of a judicial assessment of their settlement positions, without jeopardizing their ability to obtain an 'impartial' resolution of their case by the presiding judge should settlement not be reached. II. Mini-Trial The mini-trial is a highly flexible, expedited procedure where each party presents an abbreviated version of its case to a neutral advisor (a judge other than the presiding judge), who then assists the parties to negotiate a settlement. Because the mini-trial similarly is designed to eliminate unnecessary cost and delay, it should be adopted before extensive discovery commences. This ADR technique, however, should be employed only in those cases which involve factual disputes and are governed by well-established principles of law. Cases which present novel issues of law or where witness credibility is a major factor are handled more effectively by traditional judicial methods. Although the procedures for each mini-trial should be designed to meet the needs of the individual case, the following guidelines are appropriate in most circumstances: (a) Time Frame - The mini-trial should be governed by strict time limitations. The entire process, including discovery and trial, should conclude within one to three months. (b) Participants - Each party should be represented by an individual with authority to make a final recommendation as to settlement and may be represented by counsel. The participation of senior management/agency officials (principals) with first-hand knowledge of the underlying dispute is highly recommended. (c) Discovery - Any discovery conducted should be expedited, limited in scope where feasible, and scheduled to conclude at least two weeks prior to the mini-trial. Counsel bear a special responsibility to conduct discovery expeditiously and voluntarily in a mini-trial situation. Any discovery disputes which the parties cannot resolve will be handled by the mini-trial judge. Discovery taken for the purpose of the mini-trial may be used in further judicial proceedings if settlement is not achieved. (d) Pre-Hearing Matters - At the close of discovery, the parties should meet with the mini-trial judge for a pre-hearing conference. The parties normally should provide for exchange of brief written submittals summarizing the parties' positions and narrowing the issues in advance of the hearing. The submittal should include a discussion of both entitlement and damages. Contemporaneously with the exchange of the written submittals, the parties should finalize any stipulations needed for the hearing and, where applicable, exchange witness lists and exhibits. The parties also should establish final procedures for the hearing. (e) Hearing - The hearing itself is informal and should generally not exceed one day. The parties may structure their case to include examination of witnesses, the use of demonstrative evidence, and oral argument by counsel. Because the rules of evidence and procedure will not apply, witnesses will be permitted to relate their testimony in the narrative, objections will not be permitted, and a transcript of the hearing will not be made. The role of the mini-trial judge similarly is flexible and may provide for active questioning of witnesses. Each party should present a closing statement to facilitate the post-hearing settlement discussions. (f) Post-Hearing Settlement Discussions - At the conclusion of the informal hearing, the principals and/or counsel meet to discuss resolution of the dispute. The mini-trial judge may play an active role in the discussions, or be available to render an advisory opinion concerning the merits of the claim. III. Comment The court welcomes further input from the bar and general public on this Notice to Counsel and General Order No. 13. This input will be considered, along with the initial practical experience under the Order in a continuing effort to further the effective administration of justice. ------DocID 37338 Document 1200 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE IV -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- TITLE IV. PARTIES ------DocID 37339 Document 1201 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 17 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 17. Parties Plaintiff and Defendant; Capacity -STATUTE- (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (b) Capacity To Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. A partnership or other unincorporated association which has no capacity by law of its state may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States. The capacity to sue or be sued of a representative appointed by a judicial tribunal shall be determined by the order of the judicial tribunal appointing or authorizing the representative and the law of the state or other authority under which the judicial tribunal exercises jurisdiction. (c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative the infant or incompetent may sue by the infant's or incompetent's next friend or by a guardian ad litem. ------DocID 37340 Document 1202 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 18 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 18. Joinder of Claims and Remedies -STATUTE- (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, or third-party claim, may join, either as independent or as alternate claims, as many claims as the party has against an opposing party. (b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. ------DocID 37341 Document 1203 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 19 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 19. Joinder of Persons Needed for Just Adjudication -STATUTE- (a) Persons To Be Joined If Feasible. Subject to, and in the manner provided for by Rule 14, a person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if: (1) in the person's absence complete relief cannot be accorded among those already parties; or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made an involuntary plaintiff. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) of this rule cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measure, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) of this rule who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to provisions of Rule 23. ------DocID 37342 Document 1204 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 20 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 20. Permissive Joinder of Parties -STATUTE- (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. A plaintiff need not be interested in obtaining all the relief demanded. Where two or more plaintiffs demand separate judgments, the complaint shall state the judgment demanded by each plaintiff, shall list the plaintiffs alphabetically in the caption on the basis of surnames where individuals are involved, and shall assign to each plaintiff demanding a separate judgment a number to be used as a distinguishing subnumeral, e.g., (1), (2), etc., to the docket number of the case. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief. (1) To add additional plaintiff(s) to a pending action, counsel for plaintiff(s) shall file a Notice of Additional Plaintiff(s), listing the plaintiff(s). The notice shall utilize the caption of the original complaint. The plaintiff(s) to be added shall be listed alphabetically in the notice and assigned a subnumeral that continues the subnumerals of the complaint or preceding amended complaint, so that the subnumerals are consecutive throughout. (2) The written consent of these individuals added to any pending action brought under the Fair Labor Standards Act shall accompany the notice. (b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense, and may order separate trials or make other orders to prevent delay or prejudice. -REFTEXT- REFERENCES IN TEXT The Fair Labor Standards Act, referred to in subd. (a)(2), probably means the Fair Labor Standards Act of 1938, act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified principally to chapter 8 (Sec. 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables. ------DocID 37343 Document 1205 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 21 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 21. Misjoinder and Non-Joinder of Parties -STATUTE- Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. To add plaintiffs, see Rule 20(a)(1)-(2). ------DocID 37344 Document 1206 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 23 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 23. Class Actions -STATUTE- A motion to certify a class action shall be filed with the complaint and comply with Rule 3(c), with service to be made as provided in Rule 4. The court shall determine in each case whether a class action may be maintained and under what terms and conditions. ------DocID 37345 Document 1207 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 24 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 24. Intervention -STATUTE- (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (c) Procedure. A person desiring to intervene shall file with the court a motion to intervene. The motion shall: (1) state the grounds therefor; (2) be accompanied by a pleading setting forth the claim or defense for which intervention is sought; and (3) be served in accordance with Rule 5. The same procedure shall be followed when a statute of the United States gives a right to interevene. ------DocID 37346 Document 1208 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 25 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IV -HEAD- Rule 25. Substitution of Parties -STATUTE- (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and shall be served as provided in Rule 5. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. (2) In the event of the death of one or more of the plaintiffs in an action in which the right sought to be enforced survives only to the surviving plaintiffs, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties. (b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party's representative. (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. (d) Public Officers; Death or Separation from Office. (Not used.) ------DocID 37347 Document 1209 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE V -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- TITLE V. DEPOSITIONS AND DISCOVERY ------DocID 37348 Document 1210 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 26 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 26. General Provisions Governing Discovery -STATUTE- (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; requests for admission; and calls. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The frequency or extent of use of the discovery methods set forth in subdivision (a) of this rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, the limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) of this rule. (2) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(3) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including that other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (3) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(3)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result: (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(3)(A)(ii) and (b)(3)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(3)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(3)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, see Appendix G 8, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party's response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement the party's response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the expert witness' testimony. (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (f) Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court may do so upon motion by the attorney for any party if the motion includes: (1) A statement of the issues as they then appear; (2) A proposed plan and schedule of discovery; (3) Any limitations proposed to be placed on discovery; (4) Any other proposed orders with respect to discovery; and (5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and each party's attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion. Following the discovery conference, the court may enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires. Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16. (g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by the attorney of record in such attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that the attorney or party has read the request, response, or objection and that to the best of the attorney's or party's knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of these rules, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. ------DocID 37349 Document 1211 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 27 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 27. Discovery To Perfect Complaint or Pending Appeal -STATUTE- (a) Preliminary Complaint. (1) Complaint. When a plaintiff cannot state a case with the requisite particularity without an examination of documents or things or other information in the possession of the United States, and the plaintiff has been unable upon application to obtain a sufficient examination of such documents or things or other information, such plaintiff may file a complaint stating the plaintiff's claim as far as is in the plaintiff's power. The complaint shall state specifically: (A) that it is filed under this rule; (B) the subject matter of a claim cognizable by this court, with as much particularity as plaintiff can provide; and (C) a description of the documents or things or other information required as definite as plaintiff can provide. Within 30 days after filing such preliminary complaint, plaintiff shall file a motion for leave to take depositions upon oral examination or written questions, to submit requests for admission or written interrogatories, or for production of documents or things or permission to enter upon land or other property for inspection and other purposes, or such combination thereof as may be needed to obtain from the proper department or agency of the United States such documents or things or other information as may be deemed necessary. (2) Order. If plaintiff's motion is allowed, the court by order shall designate the persons whose depositions may be taken, the subject matter of the examination, and whether the depositions shall be taken on oral examination or written interrogatories. The order shall specify the extent of other discovery permitted, and a date for completion of all discovery thereunder. (3) Amended Complaint. Plaintiff shall file an amended complaint within 30 days after the discovery has been completed. Defendant need not respond to a preliminary complaint filed under this rule, but shall answer or otherwise respond to the amended complaint in accordance with these rules for answering an original complaint. If plaintiff's motion is not allowed, or if an amended complaint is not filed after the requested documents or things or other information is furnished or obtained, defendant shall file such responsive pleading or motion within such time as the court may direct. (b) Pending Appeal. If an appeal has been taken from a judgment of the court or before the taking of an appeal if the time therefor has not expired, on motion the court may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in this court. The party who desires to perpetuate the testimony may file a motion for leave to take the depositions that shows (1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each and (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions. (c) Perpetuation by Action. (Not used.) ------DocID 37160 Document 1212 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 19 -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 19. Motion To Dismiss, Presenting Defenses of Failure To State a Claim, of Lack of Service of Process, of Improper Venue, and of Lack of Jurisdiction Under Rule 12(b) -STATUTE- The defendant moves the court as follows: 1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted. 2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a) that the defendant is a corporation organized under the laws of Delaware and was not and is not subject to service of process within the Southern District of New York, and (b) that the defendant has not been properly served with process in this action, all of which more clearly appears in the affidavits of M. N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively. 3. To dismiss the action on the ground that it is in the wrong district because (a) the jurisdiction of this court is invoked solely on the ground that the action arises under the Constitution and laws of the United States and (b) the defendant is a corporation incorporated under the laws of the State of Delaware and is not licensed to do or doing business in the Southern District of New York, all of which more clearly appears in the affidavits of K. L. and V. W. hereto annexed as Exhibits C and D, respectively. 4. To dismiss the action on the ground that the court lacks jurisdiction because the amount actually in controversy is less than ten thousand dollars exclusive of interest and costs. Signed: XXXXXXXXXXXXXX Attorney for Defendant. Address: XXXXXXXXXXXXX Notice of Motion To: XXXXXXXXXXXXXX Attorney for Plaintiff. XXXXXXXXXXXXXXXX Please take notice, that the undersigned will bring the above motion on for hearing before this Court at Room XX, United States Court House, Foley Square, City of New York, on the XXX day ofXXXX, 193X, at 10 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard. Signed: XXXXXXXXXXXXXX Attorney for Defendant. Address: XXXXXXXXXXXXX -SOURCE- (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961.) -MISC1- NOTES 1. The above motion and notice of motion may be combined and denominated Notice of Motion. See Rule 7(b). 2. As to paragraph 3, see U.S.C., Title 28, Sec. 1391 (Venue generally), subsections (b) and (c). 3. As to paragraph 4, see U.S.C., Title 28, Sec. 1331 (Federal question; amount in controversy; costs), as amended by P. L. 85-554, 72 Stat. 415, July 25, 1958, requiring that the amount in controversy, exclusive of interest and costs, be in excess of $10,000. ------DocID 37351 Document 1213 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 29 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 29. Stipulations Regarding Discovery Procedure -STATUTE- Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, except that stipulations extending the time provided in Rules 33, 34 and 36 for responses to discovery may be made only with the approval of the court. ------DocID 37352 Document 1214 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 30 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 30. Depositions upon Oral Examination -STATUTE- (a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the complaint upon the United States. Leave is not required (1) if the United States has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Notice of Examination: General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) Leave of court is not required for the taking of a deposition by the plaintiff if the notice (A) states that the person to be examined is more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless the person's deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and the attorney's signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If the party shows that when the party was served with notice under subdivision (b)(2) of this rule the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party. (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic or electronic means. The stipulation or order shall designate the person before whom the deposition shall be taken and the manner of recording, preserving and filing the deposition and may include other provisions to ensure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a transcription made at the party's own expense. Any objections under subdivision (c), any changes made by the witness, the witness' signature identifying the deposition as the witness' own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e) of this rule, and the certification of the officer required by subdivision (f) of this rule shall be set forth in a writing to accompany a deposition recorded by non-stenographic means. (5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which each person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. Subdivision (b)(6) of this rule does not preclude taking a deposition by any other procedure authorized in these rules. (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(b)(1) and 45(d), a deposition taken by telephone is taken at the place where the deponent is to answer questions propounded to him. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and such party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Motion To Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If it is impractical to make such a motion personally or in writing, the moving party or deponent may do so by telephone, provided the opposing party has a fair opportunity to participate. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (e) Submission To Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of submission to the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Completion. (1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. The officer shall securely seal the deposition in an envelope endorsed with the title of the action and marked 'Deposition of (here insert name of witness)' and shall have it delivered or mailed by registered or certified mail to the party taking the deposition. Unless otherwise ordered by the court, the deposition shall not be filed with the court. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to and returned with the deposition, pending final disposition of the case. (2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (3) The party taking the deposition shall serve prompt notice of the receipt of the deposition to all other parties. (g) Failure To Attend or To Serve Subpoena; Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by such other party and such other party's attorney in attending, including reasonable attorneys' fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because such party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by such other party and such other party's attorney in attending, including reasonable attorneys' fees. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (c), are set out in this Appendix. ------DocID 37353 Document 1215 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 31 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 31. Depositions upon Written Questions -STATUTE- (a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time. (b) Officer To Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e) and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and deliver or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer. (c) Notice of Receipt. When the deposition is received, the party taking it shall promptly give notice thereof to all other parties. ------DocID 37354 Document 1216 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 32 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 32. Use of Depositions in Court Proceedings -STATUTE- (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Federal Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions, in addition to Appendix G 16, governing the use of depositions as substantive evidence: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing and the judge after timely request has refused to authorize a subpoena to the witness or to set a trial in closer proximity to the place of residence of the witness, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any State and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the Federal Rules of Evidence. (b) Objections to Admissibility. Subject to the provisions of Rules 28(b) and 32(d)(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (c) Effect of Taking or Using Depositions. (Not used.) (d) Effect of Errors and Irregularities in Depositions. (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to Taking of Deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized. (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, delivered or mailed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (a), are set out in this Appendix. ------DocID 37355 Document 1217 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 33 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 33. Interrogatories to Parties -STATUTE- (a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon the United States after service of the complaint. The form of interrogatories is governed by Appendix G 7. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers and objections, if any, within 30 days after the service of the interrogatories, except that the defendant may serve answers or objections within 45 days after service of the complaint upon the defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the Federal Rules of Evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. (c) Option To Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (b), are set out in this Appendix. ------DocID 37356 Document 1218 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 34 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 34. Production of Documents and Things and Entry upon Land for Inspection and Other Purposes -STATUTE- (a) Scope. Any party may serve on any other party a request: (1) to produce and permit the party making the request, or someone acting on such party's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). (b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon the United States after service of the complaint. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that the United States may serve a response within 45 days after service of the complaint. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (c) Persons Not Parties. (Not Used.) (d) Calls. (1) Issuance. Pursuant to 28 U.S.C. Sec. 2507(a), the court at any time (A) may call upon any department or agency of the United States for any information or papers it deems necessary to be filed with the clerk within a specified time, or (B) in any case appropriate for a computation by a department or agency of the United States, the court, upon the motion of a party or on its own motion, may issue a call for the computation. Within 30 days after the clerk has served notice of the filing of the computation, each party shall file with the clerk its acceptance or rejection of the computation. A rejection shall be accompanied by a statement of the reasons therefor. (2) Refusal of Compliance. The head of any department or agency of the United States may refuse to comply with such a call when, in the head of the department's or agency's opinion, compliance will be injurious to the public interest. Such refusal may be made known by a communication signed by the head of the department or agency and filed with the clerk. ------DocID 37357 Document 1219 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 35 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 35. Physical and Mental Examination of Persons -STATUTE- (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (b) Report of Examining Physician. (1) If requested by the party against whom an order is made under subdivision (a) of this rule or the person examined, the party causing the examination to be made shall deliver to the other party or the person examined a copy of a detailed written report of the examining physician setting out the physician's findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude the physician's testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) Subdivision (b) of this rule applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. Subdivision (b) of this rule does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. ------DocID 37358 Document 1220 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 36 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 36. Requests for Admission -STATUTE- (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to facts including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon the United States after service of the complaint. The form of requests for admission and answers is governed by Appendix G 7. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, the defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the complaint. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the party's answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the answering party states that the answering party has made reasonable inquiry and that the information known or readily obtainable by the answering party is insufficient to enable the answering party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(d), deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the party's action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding. ------DocID 37359 Document 1221 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 37 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE V -HEAD- Rule 37. Failure To Make or Cooperate in Discovery; Sanctions -STATUTE- (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Appropriate Court. (Not Used.) (2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. See Appendix G 8. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before the proponent applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c). (3) Evasive or Incomplete Answer. For purposes of subdivision (a) of this rule, an evasive or incomplete answer is to be treated as a failure to answer. (4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorneys' fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure To Comply with Order. (1) Sanctions Against a Deponent. If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of court. (2) Sanctions Against a Party. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court may make such orders in regard to the failure as are just and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings unless the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring the party to produce another for examination, such orders as are listed in paragraphs (A), (B) and (C) of subdivision (b) of this rule, unless the party failing to comply shows that the party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising such party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on Failure To Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay such party the reasonable expenses incurred in making that proof, including reasonable attorneys' fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising such party or both to pay the reasonable expenses, including attorneys' fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c). (e) Subpoena of Person in Foreign Country. (Not used.) (f) Expenses Against United States. (Not used.) (g) Failure To Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or such party's attorney to pay to any other party the reasonable expenses, including attorneys' fees, caused by the failure. ------DocID 37360 Document 1222 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE VI -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- TITLE VI. TRIALS ------DocID 37361 Document 1223 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 39 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 39. Trial -STATUTE- (a) By the Court. All contested issues of fact and law shall be tried at a location selected by the court. (b) Reporting Arrangements; Return of Transcript. (1) Record of Proceedings. The court will by contract furnish a reporter to take down the trial proceedings and transcribe the same in any trial held in any State of the United States or the District of Columbia. Unless otherwise ordered by the court for good cause shown, the court will not furnish a reporter at any trial held at any other place. (2) Reporter; Control. The reporter shall be under the jurisdiction and control of the judge. (3) Return of Transcript and Exhibits. Unless otherwise ordered by the judge, the reporter shall file the transcript of trial proceedings, including the exhibits admitted in evidence or designated to accompany the transcript, with the clerk within 30 days after the conclusion of the trial session at which such proceedings were had. The filing may be accomplished by personal delivery of the transcript and exhibits to the clerk's office or by enclosing them in a packet and transmitting them to the Clerk, United States Claims Court, 717 Madison Place, N.W., Washington, D.C. 20005, in sufficient time for the transcript and exhibits to be filed within the prescribed period. The obligation for the filing of the transcript and exhibits within the prescribed period rests upon the reporter. ------DocID 37362 Document 1224 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 40. Assignment of Cases for Trial -STATUTE- Assignment of cases for trial is the responsibility of the judge to whom the case is assigned, and may be made (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the court deems expedient. All trials shall be scheduled by the judge by order filed with the clerk. Precedence shall be given to actions entitled thereto by any statute of the United States. ------DocID 37363 Document 1225 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 41 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 41. Dismissal of Actions -STATUTE- (a) Voluntary Dismissal; Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of an order under Rule 23 and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (A) by filing a notice of dismissal at any time before service of the answer or a response, whichever first occurs, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in this court or in any court of the United States an action based on or including the same claim. (2) By Order of Court. Except as provided in paragraph (1) of subdivision (a) of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by the United States prior to the service upon it of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal; Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, the court may dismiss on its own motion or defendant may move for dismissal of an action or any claim. After the plaintiff has completed the presentation of the plaintiff's evidence, defendant, without waiving its right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under subdivision (b) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (c) Dismissal of Counterclaim or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a response is served or, if there is none, before the introduction of evidence at the trial or hearing. (d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. ------DocID 37364 Document 1226 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 42 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 42. Consolidation; Separate Trials -STATUTE- (a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, counterclaims, third-party claims, or issues. (c) Separate Determination of Liability. Upon stipulation of the parties, approved by the court, or upon order of the court, a trial may be limited to the issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery, if any, for further proceedings. In any case, whether or not a stipulation or order has been made under subdivision (c) of this rule, the court, upon determining that a party is entitled to recover, may reserve determination of the amount of the recovery for further proceedings. Any motion for reconsideration shall be filed not later than 10 days after a separate determination of liability. ------DocID 37365 Document 1227 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 43 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 43. Taking of Testimony -STATUTE- (a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules or the Federal Rules of Evidence. (b) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (c) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposition. (d) Interpreters. The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct and may be taxed ultimately as costs, in the discretion of the court. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (a), are set out in this Appendix. ------DocID 37366 Document 1228 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 44 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 44. Proof of Official Record -STATUTE- (a) Authentication. (1) Domestic. An official record kept within the United States, or any State, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by such officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of such officer's office. (2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced as provided in any treaty or federal statute or by an official publication thereof or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the attesting person or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (A) admit an attested copy without final certification or (B) permit the foreign official record to be evidenced by an attested summary with or without a final certification. (b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law. (d) Proof of Rules and Regulations. In a trial, or in making or opposing a motion, a party relying on a rule or regulation shall submit the full authentic text thereof for inclusion in the record, unless it is published in the Federal Register or in the Code of Federal Regulations. A rule or regulation so furnished need not be certified. The court may require the appropriate party to furnish the full authentic texts of additional rules or regulations not published in the Federal Register or in the Code of Federal Regulations. ------DocID 37367 Document 1229 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 44.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 44.1. Determination of Foreign Law -STATUTE- A party who intends to raise an issue concerning the law of a foreign country shall give notice in the party's pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in text, are set out in this Appendix. ------DocID 37368 Document 1230 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 45 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 45. Subpoena -STATUTE- (a) For Attendance of Witnesses: Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. (b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (c) Service. A subpoena may be served by the marshal, the marshal's deputy, or any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to such person the fees for one day's attendance and the mileage allowed by law. See 28 U.S.C. Sec. 1821. When the subpoena is issued on behalf of the United States, fees and mileage need not be tendered. (d) Subpoena for Taking Depositions; Place of Examination. (1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of subpoenas for the persons named or described therein. Proof of service may be made by filing with the clerk a copy of the notice together with a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition. (2) A person to whom a subpoena for the taking of a deposition is directed may be required to attend at any place within 100 miles from the place where that person resides, is employed or transacts business in person, or is served, or at such other convenient place as is fixed by an order of the court. (e) Subpoena for a Hearing or Trial. (1) At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place that is within 100 miles of the place of the hearing or trial specified in the subpoena; but the court upon proper application and good cause shown may authorize the service of a subpoena at any other place. (2) A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in 28 U.S.C. Sec. 1783. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon such person may be deemed a contempt of the court. ------DocID 37369 Document 1231 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 46 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 46. Exceptions Unnecessary -STATUTE- Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the party's grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. ------DocID 37370 Document 1232 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 52 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 52. Findings by the Court -STATUTE- (a) Effect. In all actions tried upon the facts, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b). (b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. The question of the sufficiency of the evidence to support the findings may be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment. ------DocID 37371 Document 1233 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 52.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 52.1. Unpublished Opinions. -STATUTE- (a) Citation. Unpublished opinions and orders of the court are binding on the parties, but have no precedential effect. Opinions and orders designated as unpublished shall not be employed as authority by this court and may not be cited by counsel as authority, except in support of a claim of res judicata, collateral estoppel, or law of the case. (b) Request to Publish. Any person deeming an unpublished opinion or order to be of precedential value may file within 90 days of its issuance a Request for Publication. ------DocID 37372 Document 1234 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 53 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VI -HEAD- Rule 53. Masters -STATUTE- (a) Appointment and Compensation. The court in which any action is pending may appoint a special master therein, subject to the approval of the chief judge. As used in these rules the word 'master' includes a referee, an auditor, an examiner, and an assessor. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The master shall not retain the master's report as security for the master's compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (b) Reference. A reference to a master shall be the exception and not the rule. Save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. (c) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order. The master may require the production before the master of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury. (d) Proceedings. (1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the master's report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment. (2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. (3) Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs. (e) Report. (1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk and unless otherwise directed by the order of reference, and shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing. (2) Acceptance of Report. The court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report, any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (3) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. (4) Draft Report. Before filing the report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (c), are set out in this Appendix. ------DocID 37373 Document 1235 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE VII -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- TITLE VII. JUDGMENT ------DocID 37374 Document 1236 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 54 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 54. Judgments; Costs -STATUTE- (a) Definition; Form. Judgment as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, or the record of prior proceedings. (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all parties. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. (d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as a matter of course to the prevailing party in any action not dismissed for lack of subject matter jurisdiction, unless the court otherwise directs; but costs against the United States shall be imposed only to the extent permitted by law. See Rule 77.4. ------DocID 37375 Document 1237 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 55 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 55. Default -STATUTE- (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter such party's default. (b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person. (2) By the Court. In all other cases, the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, such party or, if appearing by representative, such party's representative, shall be served with written notice of the application for judgment at least 3 days prior to the hearing, if any, on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). (d) Plaintiffs; Counterclaimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). (e) Judgment Against the United States. No judgment by default shall be entered against the United States unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. ------DocID 37376 Document 1238 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 56 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 56. Summary Judgment -STATUTE- (a) For Claimant. A party seeking to recover upon a claim or counterclaim, or to obtain a declaratory judgment may, at any time after the expiration of 60 days from the commencement of the action in this court or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in such party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim or counterclaim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in such party's favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (d) Procedures. The following procedures shall be followed with respect to motions for summary judgment other than in actions seeking review of a decision on the basis of an administrative record: (1) The moving or cross-moving party shall file, together with its motion, a separate document entitled Proposed Findings of Uncontroverted Fact. This document shall contain concise, separately numbered paragraphs setting forth all of the material facts upon which the party bases its motion and as to which the party believes there is no genuine dispute. Each paragraph shall contain citations to the opposing party's pleadings or to documentary evidence, such as affidavits or exhibits, filed with the motion or otherwise part of the record in the case. (2) The opposing party shall file, together with its opposition or cross-motion, a separate document entitled Statement of Genuine Issues. This document shall respond by reference to specific paragraph numbers to those proposed findings of uncontroverted fact as to which it claims there is a genuine dispute. The party shall state the precise nature of its disagreement and give its version of the events, supported by record citations. The opposing party may also file proposed findings of uncontroverted fact as to any relevant matters not covered by the moving party's statement. (3) The parties may dispense with the documents called for in subdivision (d)(1)-(2) of this rule if they file, no later than the time of the initial motion, a comprehensive stipulation of all of the material facts upon which they intend to rely. In determining any motion for summary judgment, the court will, absent persuasive reason to the contrary, deem the material facts claimed and adequately supported by the moving party to be established, except to the extent that such material facts are included in the Statement of Genuine Issues and are controverted by affidavit or other written or oral evidence. (e) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (f) Form of Affidavits; Further Testimony; Defense Required. See Appendix H 1. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of such party's pleading, but such party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If such party does not so respond, summary judgment, if appropriate, shall be entered against such party. (g) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that such party cannot for reasons stated present by affidavit facts essential to justify such party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. ------DocID 37377 Document 1239 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 56.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 56.1. Review of Decision on the Basis of Administrative Record. -STATUTE- (a) Standards. Rule 56(a)-(b) apply. (b) Procedures. (1) The moving or cross-moving party shall file, together with its motion, a separate document entitled Statement of Facts setting forth the facts necessary to resolve the issues presented on review. This document shall contain concise, separately numbered paragraphs setting forth all of the facts upon which the party bases its motion and which are supported by the record. Each paragraph shall contain citations to the opposing party's pleadings or to documentary evidence in the record. (2) The opposing party shall file, together with its cross-motion, a separate document entitled Counter-Statement of Facts. This document shall respond, by reference to specific paragraph numbers, to those statements of facts with which the party disagrees. The party shall state the precise nature of its disagreement and give its version of the events supported by record citations. The opposing party may also file Proposed Additional Facts as to any relevant matters not covered by the moving party's statement to which the movant shall respond. ------DocID 37378 Document 1240 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 57 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 57. Declaratory Judgments -STATUTE- The procedure for obtaining a declaratory judgment pursuant to 28 U.S.C. Sec. 1491(a) and 1507 shall be in accordance with these rules. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. ------DocID 37379 Document 1241 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 58 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 58. Entry of Judgment -STATUTE- Subject to the provisions of Rule 54(b): (1) upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course. ------DocID 37380 Document 1242 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 59 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 59. New Trials; Rehearings; Amendment of Judgments; Reconsideration -STATUTE- (a) Grounds. (1) A new trial or rehearing or reconsideration may be granted to all or any of the parties and on all or part of the issues, for any of the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States. On a motion under this rule, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (2) The court, at any time while a suit is pending before it, or after proceedings for review have been instituted, or within 2 years after the final disposition of the suit, may grant the United States a new trial and stay the payment of any judgment upon satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done the United States. (b) Time for Motion and Response. Except as provided in subdivision (a)(2) of this rule, a motion filed pursuant to this rule shall be filed not later than 10 days after the entry of the judgment. No response to such a motion may be filed. However, the court will not rule in favor of such a motion without first requesting by order a response to it. (c) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial or rehearing for any reason for which it might have granted a new trial or rehearing on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial or rehearing, timely filed, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor. (d) Motion To Alter or Amend a Judgment. A motion to alter or amend the judgment shall be filed not later than 10 days after entry of the judgment. ------DocID 37381 Document 1243 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 60 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 60. Relief from Judgment or Order -STATUTE- (a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under subdivision (b) of this rule does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action or relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. ------DocID 37382 Document 1244 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 60.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 60.1. Remand; Extension or Termination of Stay of Proceedings on Remand; Disposition of Case -STATUTE- (a) Remand. (1) Issuance of Remand Order. At the request of a party or on its own motion, the court may in any case within its jurisdiction by order remand appropriate matters to any administrative or executive body or official with such direction as may be deemed proper and just. (2) Content of Remand Order. An order of remand shall (A) delineate the area of further consideration or action deemed warranted on the remand, and (B) fix the extent to which, and the duration of the period, not to exceed 6 months, during which court proceedings shall be stayed. (3) Service of Order. A certified copy of any order issued pursuant to this rule shall be served by the clerk on the administrative or executive body or official to whom the order is directed. A copy of the order shall be served on each party in conformity with Rule 5. (4) Transmittal of Administrative Record. Following service of the order as provided for in this rule, the clerk shall transmit the administrative record, if any, to the Department of Justice for return to the administrative or executive body or official to whom the order of remand is directed. (5) Advice of Administrative Action. In every case in which an order of remand is entered pursuant to this rule, the attorney of record for the party so designated in the order of remand shall report to the court the status of proceedings on remand at intervals of 90 days or less, beginning with the date of the order. (b) Extension or Termination of Stay of Proceedings on Remand; Disposition of Case. (1) Extension. If the administrative or executive body or official has not, during the period of stay provided for in an order of remand pursuant to subdivision (a) of this rule, rendered a decision on the matter remanded, the party to whom opportunity was afforded to obtain further administrative consideration shall, by motion pursuant to Rule 6, request an extension of the stay of proceedings, or, by motion pursuant to Rule 7, request the initiation of proceedings toward otherwise disposing of the case. (2) Disposition at Administrative Level. If, during the period of the stay of proceedings as provided for in a remand order, the parties dispose of the case at the administrative level, the plaintiff shall file a motion to dismiss the case with prejudice. (3) Decision on Remand. Upon completion of proceedings pursuant to an order of remand under subdivision (a) of this rule, the administrative or executive body or official to whom the order was directed shall forward to the clerk for filing 4 copies of the decision or final action on remand. A copy of such decision or action shall be served on each party by the clerk. (4) Action by the Parties. Within 30 days after the filing of a decision or final action pursuant to subdivision (3) of this rule, each party shall file with the clerk a notice, indicating whether or not the decision or final action on remand affords a satisfactory basis for disposition of the claim at the administrative level, or whether further proceedings before the court are deemed required, and, if such proceedings are desired, what those proceedings should be. A copy of such notice shall be served on each adverse party in conformity with Rule 5. Thereafter, the court will enter an order prescribing the procedure to be followed, either specially or pursuant to the rules of the court, or take such other action as may be deemed appropriate. ------DocID 37383 Document 1245 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 61 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 61. Harmless Error -STATUTE- No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. ------DocID 37384 Document 1246 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 62 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 62. Stay of Proceedings To Enforce a Judgment -STATUTE- (a) Automatic Stay; Exceptions - Injunctions and Patent Accountings. Except as stated herein, no proceedings shall be taken for enforcement of a judgment until the expiration of 10 days after its entry. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction, or a judgment or order directing an accounting in an action pursuant to 28 U.S.C. Sec. 1498, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal. (b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b). (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. (d) Stay upon Appeal. When an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. (e) Stay in Favor of the United States or Agency Thereof. When an appeal is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant. (f) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered. (g) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. ------DocID 37385 Document 1247 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 63 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VII -HEAD- Rule 63. Disability or Disqualification of a Judge -STATUTE- (a) Disability. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that such other judge cannot perform those duties because such other judge did not preside at the trial or for any other reason, such other judge may in such other judge's discretion grant a new trial. (b) Voluntary Disqualification. A judge shall withdraw from a case when required by 28 U.S.C. Sec. 455, and, at any time, may withdraw from a case if otherwise such judge deems such judge disqualified by bias or prejudice. (c) Affidavit of Bias or Prejudice. (1) Whenever a party to any proceeding makes and files an affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against such party or in favor of any adverse party, such judge, if such judge determines that the affidavit is sufficient and timely, shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The ruling of the judge shall be by order. (2) The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed as soon as practicable after the facts upon which the affidavit is based become known to the party, but not less than 10 days before a scheduled trial date, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. ------DocID 37386 Document 1248 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE VIII -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VIII -HEAD- TITLE VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS ------DocID 37387 Document 1249 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 65 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VIII -HEAD- Rule 65. Injunctions -STATUTE- (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (2) Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. (b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or such party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the attorney's claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if such party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States, or of an officer or agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Employer and Employee. These rules do not modify any statute of the United States relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee. (f) Procedures. (1) An application for a temporary restraining order and/or preliminary injunction shall be filed with the clerk along with the complaint, unless the complaint has been filed previously. The application shall be accompanied by the proposed order(s), affidavits, supporting memoranda, and other documents upon which plaintiff intends to rely. The application shall also be accompanied by a statement of plaintiff's attorney that the attorney has hand delivered or caused to be hand delivered 2 copies of each of the foregoing documents to the office of the attorney in charge of the Commercial Litigation Branch, Civil Division, Department of Justice, Room 9030, Todd Building, 550 11th Street, N.W., Washington, D.C. 20530. (2) If plaintiff's attorney knows the name and address of the apparently successful bidder, plaintiff's attorney shall give the attorney notice by telephone or telegram of the intended filing of the application, shall provide the apparently successful bidder with a copy of its application, served on the same day by hand delivery, facsimile, or overnight carrier, and shall certify in the application whether or not the plaintiff's attorney has done so, or state that the apparently successful bidder is unknown. With respect to notice to interested parties, see Rule 14(a). (3) The apparently successful bidder may enter an appearance at any hearing on the application for temporary restraining order if it advises the court of its intention to move to intervene pursuant to Rule 24(a)(2) or has moved to intervene before the hearing. (4) The clerk promptly will inform the parties personally or by telephone of the judge to whom the case has been assigned and the time and place for the hearing, if any, on the application for the restraining order. (5) Except in an emergency, the court will not consider ex parte applications for a temporary restraining order. ------DocID 37388 Document 1250 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 65.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VIII -HEAD- Rule 65.1. Security: Proceedings Against Sureties -STATUTE- (a) Proceedings. Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known. (b) Sureties. Acceptable sureties on bonds shall be those bonding companies holding certificates of authority from the Secretary of the Treasury. See the latest U.S. Treasury Dept. Circ. 570. When a court decision provides for the giving of security, the clerk will furnish counsel with the appropriate bond form. ------DocID 37389 Document 1251 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 68 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE VIII -HEAD- Rule 68. Offer of Judgment -STATUTE- At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the defending party's offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof, and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. ------DocID 37390 Document 1252 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE IX -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IX -HEAD- TITLE IX. APPEALS ------DocID 37391 Document 1253 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 72 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE IX -HEAD- Rule 72. Notice of Appeal -STATUTE- Review of a decision of this court shall be obtained by filing an original and 4 copies of a notice of appeal with the clerk within the time and manner prescribed for appeals to United States courts of appeals from United States district courts as provided for in Rule 4(a) of the Federal Rules of Appellate Procedure, together with the fee provided in Rule 77(k)(2) of the Rules of the United States Claims Court. All parties participating in the appeal shall be named in the caption or their names included in an attachment. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Appellate Procedure, referred to in text, are set out in this Appendix. ------DocID 37392 Document 1254 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE X -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- TITLE X. COURT AND CLERK ------DocID 37393 Document 1255 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 77 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 77. Court and Clerk -STATUTE- (a) Name. The name of the court, as fixed by 28 U.S.C. Sec. 171, is the United States Claims Court. (b) Seal. The seal of the court shall be the American eagle, similar to that represented in the arms of the United States, engraved on a circular piece of brass or steel, with these words in the margin: 'United States Claims Court' on the upper part and 'Reipublicae Civibusque' in the other part of the margin. Writs and process of this court shall be under the seal of the court and signed by the clerk. (c) Court Always Open. The court will not hold formal terms, but shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning process, and of making and directing all interlocutory motions, orders, and rules. The office of the clerk is open from the hours 8:45 a.m. to 5:15 p.m. on business days. A night box is provided for filing with the office of the clerk between the hours of 5:15 p.m. and 12:00 midnight on any business day for papers due that day. The night box will be locked promptly at midnight of each business day. The box is attached to the gate at the garage entrance on H Street. It is suggested that counsel telephone the clerk's office by 9:30 a.m. of the next day as to receipt, (202) 633-7261. (d) Citations. Decisions published by the United States Court of Claims may be cited as statements of substantive law applicable to actions in this court. (e) Judicial Power. The judicial power of the United States Claims Court with respect to any action, suit, or proceeding, except congressional reference cases, shall be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges. (f) Assignment of Cases. (1) After the complaint has been served on the United States, or after recusal or disqualification of a judge to whom a case has been assigned, the case shall be assigned forthwith to a judge on the basis of random selection by the clerk, except that related cases shall be assigned to the judge who has been assigned the earliest case filed. With the consent of the judge to whom a case has been assigned, the chief judge may reassign any case if the judge deems such action necessary for the efficient administration of justice. (2) At the time a complaint is filed, or as soon as known thereafter, the attorney shall file and serve on all parties who have appeared a Notice of Related Case(s), stating whether any pending, or previous action in any court or board of contract appeals and the action being filed appear: (A) to arise from the same or substantially identical transactions, happenings or events; or (B) to call for determination of the same or substantially identical questions; or (C) likely for other reasons to entail substantial duplication of labor if heard by different judges. It shall be the continuing duty of the attorney in any case to bring promptly to the attention of the court, by the filing of a Notice of Related Case(s), all facts which in the opinion of the attorney appear relevant to a determination whether such action and one or more pending actions, under the criteria and procedures set forth in this subdivision, should be heard by the same judge. (g) Signing of Orders for Absent Judges. If the judge to whom the action is assigned is not available and there is an emergency necessitating an order, the matter shall be presented to the chief judge, or in the chief judge's absence, to another judge designated by the chief judge. (h) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any other place designated by order or with the consent of all parties affected thereby. (i) Clerk's Office and Orders by Clerk. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and the following holidays: New Year's Day, Inauguration Day, Martin Luther King's Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All motions and applications in the clerk's office for issuing process, process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but the clerk's action may be suspended or altered or rescinded by the court upon cause shown. (j) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear and shall make a note in the docket of the service. Such service is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure. (k) Fee Schedule. (1) Fees for services rendered by the clerk are payable in advance; all checks are to be made payable to 'Clerk, United States Claims Court.' (2) Fees are: --------------------------------------------------------------------- --------------------------------------------------------------------- Admission to practice and $30.00 certificate thereof Duplicate certificate of $5.00 admission or certificate of good standing Filing complaint $120.00 Filing intervening complaint $120.00 Certifying any document or paper $5.00 Reproducing any record, entry or $.50 per page other paper for a maximum of 50 pages Filing Notice of Appeal $105.00 (includes $5.00 notice of appeal and $100.00 Court of Appeals fees) Receipt of monthly listing of $10.00 court orders and opinions ------------------------------- Such other fees as authorized by the Judicial Conference of the United States, except that no fees are to be charged for services rendered on behalf of the United States. (l) Scheduling Courtrooms. The clerk shall schedule the use of courtrooms in Washington, D.C., and shall be responsible for all arrangements for courtrooms and other facilities required by the court at locations other than in Washington, D.C. (m) Officers and Employees of the Court; Practice of Law. No person serving as a judge or in any other position with this court shall practice as an attorney or counselor in any court or before any agency of the United States, or otherwise engage in the practice of law, while continuing in that position, except when such person represents such person or some member of such person's immediate family; and neither a judge nor a secretary, law clerk or other person occupying a position with that judge, after separating from a position with this court, shall ever participate, by way of any form of professional consultation or assistance to anyone other than the court, in any case pending on that judge's docket during such person's term of service. -REFTEXT- REFERENCES IN TEXT The Federal Rules of Appellate Procedure, referred to in subd. (j), are set out in this Appendix. GENERAL ORDER NO. 7 The United States Claims Court Advisory Council is established to advise the judges on matters pertaining to the administration of the court and its relationship to the bar and the public. The council shall operate as follows: A. Organization (1) The council shall consist of 17 members who shall serve staggered three-year terms. The chief judge shall fill any vacancies. (2) The chief judge may also appoint a senior adviser to the council who shall serve at the discretion of the chief judge. (3) The chief judge shall designate one of the judges in active service as a liaison member between the court and the council. (4) The council shall meet at such times and places as agreed upon by the members. All members of the council, including the senior adviser and the liaison member, may attend these meetings and participate in the discussions. The chief judge shall provide facilities at the court to accommodate meetings of the council. (5) Council members shall elect a chairman and other officers, designate committees and take all other steps appropriate to the conduct of the council's business. Each member, except the liaison member and senior adviser, shall be entitled to vote on matters before the council. B. Relationship to the court (1) The council may consider any matters its members deem relevant to the operation of the court. The council may transmit its recommendations to the court informally or formally by letter from the chairman to the chief judge. (2) The council shall promptly consider and make a recommendation on any matter referred to it by the court. (3) The court may consider any recommendation of the council and take such action as it deems appropriate. April 5, 1983 BY THE COURT Alex Kozinski Chief Judge ------DocID 37394 Document 1256 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 77.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 77.1. Case Management -STATUTE- (a) Responsibility. Case management is the responsibility of the judge to whom the case is assigned, with the assistance of the clerk, where appropriate. Each judge shall manage assigned cases so as to provide for the prompt dispatch of business. The judge may determine motions and cases on the merits without oral argument upon written statements of reasons in support and opposition. In the absence of the judge to whom a case is assigned, the chief judge, or, in the chief judge's absence, a delegate of the chief judge, may act on behalf of the assigned judge. (b) Scheduling. (1) All conferences, oral argument, trials, and other appearances shall be scheduled by the judge by order filed with the clerk. In an emergency, the judge may schedule conferences with counsel for the parties by such informal directions as may be appropriate. (2) Each judge may establish regular times and places at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but each judge at any time or place and on such notice, if any, as any judge considers reasonable may make orders for the advancement, conduct, and hearing of actions. ------DocID 37395 Document 1257 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 77.2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 77.2. Clerk Authorized To Act on Certain Motions -STATUTE- (a) Motions Enumerated. Any motion for enlargement of time to answer or respond to the complaint, for substitution of counsel, for the permanent withdrawal of papers or exhibits theretofore filed by the parties, or for waiver of duplication requirements, which requires action by the court, may be acted upon by the clerk of the court if (1) the motion states that opposing counsel has no objection, (2) no opposition to the motion has been timely filed, or (3) opposing counsel files a consent. (b) Maximum Time Allowable. In acting on motions for enlargement of time under subdivision (a) of this rule, the total enlargement of time allowed by the clerk with respect to any matter shall not exceed 30 days. (c) Denial of Motions for Enlargement. The clerk may deny forthwith a motion requesting an enlargement of time if it requires action by the court, and fails to comply with the provisions of Rule 6(b); provided, that the denial shall state specifically that it is without prejudice to the filing, within 10 days after service of such denial, of a renewed motion for enlargement complying with the provisions of Rule 6(b). (d) Review by the Court. Any action taken under this rule may be suspended, altered, or rescinded by the court for cause shown or sua sponte. ------DocID 37396 Document 1258 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 77.3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 77.3. Withdrawal of Papers, Exhibits and In Camera Documents -STATUTE- (a) Temporary Withdrawal. The attorney of record for either party, or a party not represented by an attorney, may, except where the court otherwise directs, temporarily withdraw papers and exhibits on file in the clerk's office for a period not to exceed 30 days; provided, that upon notice from the clerk, the attorney or party may be required to return such papers and exhibits before the expiration of the 30-day period. The attorney or party withdrawing such papers and exhibits shall be required to sign and leave with the clerk a proper receipt describing the papers and exhibits so withdrawn. (b) Withdrawal for Trial. The reporter engaged to transcribe the evidence may temporarily withdraw all papers and exhibits for use during any trial session. Upon the withdrawal of papers and exhibits for trial, the reporter shall sign a blanket receipt for such papers and exhibits, and they shall remain in the reporter's custody until returned to the clerk's office. (c) Permanent Withdrawal. No papers or exhibits shall be permanently withdrawn from the clerk's office except on motion for good cause shown and upon such terms as the court may order. (d) Physical Exhibits and In Camera Documents. All physical exhibits and in camera documents will be disposed of by the clerk after notice to the parties unless withdrawn by a party within 90 days after the final disposition of the case. ------DocID 37397 Document 1259 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 77.4 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 77.4. Taxation of Costs -STATUTE- (a) Filing Bill of Costs. A prevailing party may request the clerk to tax allowable costs by filing a Bill of Costs as set forth in Appendix I within 30 days after the date of the entry of judgment. (b) Objections to Bill of Costs. (1) An adverse party may object to the Bill of Costs or any item claimed therein by filing objections within 14 days after the service of the Bill of Costs. Within 7 days after service of the objections, the prevailing party may file a reply. Unless a conference is scheduled by the clerk, the taxation of costs or any disallowance will be made by the clerk on the record. (2) A party may request the court to review the clerk's action by filing a motion within 5 days after action by the clerk. The court's review of the clerk's action will be made on the existing record unless otherwise ordered. (c) Costs in Settlements. The clerk will not tax costs on any action terminated by settlement wherein the judgment is entered pursuant to Rule 68 or is dismissed pursuant to Rule 41(a). Settlement agreements must resolve any issue relating to costs. In the absence of special agreement, parties will bear their own costs. (d) No Extensions. No extensions of time under this rule will be permitted and the failure of a prevailing party to timely file a Bill of Costs shall constitute a waiver of any claim for costs. ------DocID 37398 Document 1260 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 78 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 78. Motions Day -STATUTE- A judge may establish by order in any case regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of. ------DocID 37399 Document 1261 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 79 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 79. Books and Records Kept by the Clerk and Entries Therein -STATUTE- (a) Docket. The clerk shall keep a book known as 'docket' of such form and style as may be prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, and shall enter therein each action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the folio of the docket whereon the first entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, except for subpoenas, all appearances, orders, and judgments shall be entered chronologically in the docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. (b) Judgments and Orders. The clerk shall keep, in such form and manner as the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States may prescribe, a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept. (c) Indices; Calendars. Suitable indices of the docket and of every judgment and order referred to in subdivision (b) of this rule shall be kept by the clerk under the direction of the court. (d) Other Books and Records of the Clerk. The clerk shall also keep such other books and records as may be required from time to time by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. ------DocID 37400 Document 1262 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 80 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE X -HEAD- Rule 80. Reporter; Record or Transcript as Evidence -STATUTE- (a) Reporter. The clerk, as authorized by the Director of the Administrative Office of the United States Courts, by negotiated contract, will arrange for reporting services for all trial proceedings, and any other proceedings that require a verbatim transcript, held by the court. (b) Preparation of Transcript and Exhibits. The preparation of the transcript of trial proceedings, including the exhibits, shall be in conformity with the Instructions to Reporters and Forms contained in Appendix A of these rules. (c) Copies of Transcript. The parties may obtain copies of the transcript from the reporter at prices fixed in the reporting contract. (d) Report or Transcript as Evidence. Whenever the testimony of a witness at a trial or hearing which was reported is admissible in evidence at a later trial, it may be proved by the transcript thereof as duly certified and filed. ------DocID 37401 Document 1263 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT TITLE XI -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- TITLE XI. GENERAL PROVISIONS ------DocID 37402 Document 1264 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 81 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 81. Attorneys -STATUTE- (a) Attorneys Eligible To Practice. Only attorneys who are members of the bar of this court and who comply with these rules may enter an appearance, file pleadings, and practice in this court. All attorneys who were members in good standing of the bar of the United States Court of Claims are eligible to practice herein. As to the requirement for signing all papers, see Rule 81(d)(2). (b) Admission to Practice. (1) Qualifications; Oath. Any person of good moral character who has been admitted to practice in the Supreme Court of the United States, or the highest court of any state, territory, possession, or the District of Columbia, or the United States Court of Appeals for the Federal Circuit and is in good standing therein, may be admitted to practice in this court upon oral motion or by verified application, as provided in this rule, and upon taking or subscribing to the following oath: I, XXXXX, do solemnly swear (or affirm) that I will support the Constitution of the United States and that I will demean myself in an upright manner as an attorney of this court, so help me God. (2) Upon Oral Motion. (A) In Washington, D.C.: An oral motion for admission may be made by a member of the bar of this court before any judge, and the judge or the clerk shall administer the oath; (B) Outside Washington, D.C.: An oral motion for admission may be made by a member of the bar of this court before a judge outside Washington, D.C., who shall administer the oath. As a preliminary to the motion, the attorney who moves the admission shall submit to the judge the appropriate form obtained from the judge and completed by the applicant. In the absence of an oral motion for admission in conformity with this subdivision, the applicant may advise the judge of the applicant's qualifications as set forth in subdivision (b)(1) of this rule. Upon consideration thereof, and upon representation by the attorney that such attorney will promptly apply to the clerk for admission by verified application as provided in subdivision (b)(3) of this rule, the judge may permit the applicant to participate in the particular proceeding. (3) By Verified Application. Without need for appearing in person, admission may be made upon presentation to the clerk of a verified application form, which may be obtained from the clerk, showing that the applicant is possessed of the qualifications described in subdivision (b)(1) of this rule. The application shall be accompanied by: (A) a certificate of a judge or of the clerk of any of the courts specified in subdivision (b)(1) of this rule that the applicant is a member of the bar of such court and is in good standing therein; (B) two letters or signed statements of members of the bar of this court or of the Supreme Court of the United States, not related to the applicant, stating that the applicant is personally known to them, that the applicant possesses all the qualifications required for admission to the bar of this court, that they have examined the applicant's application, and that they affirm that the applicant's personal and professional character and standing are good; and (C) an oath in the form prescribed in subdivision (b)(1) of this rule, signed by the applicant and administered by an officer authorized to administer oaths in the state, territory, possession, or the District of Columbia, where the oath is administered, or as permitted by 28 U.S.C. Sec. 1746. (4) Fee for Admission. Unless the applicant is an attorney representing the United States before this court, an admission fee as provided for in Rule 77(k)(2) shall be paid in advance in cash or by check payable to 'Clerk, United States Claims Court.' (5) Admission of Foreign Attorneys. An attorney, barrister, or advocate who is qualified to practice in the highest court of any foreign state may be specially admitted for purposes limited to a particular case. Such attorney, barrister or advocate shall not, however, be authorized to act as attorney of record. In the case of such applicants, the oath shall not be required and there shall be no fee. Such admission shall be only on written motion of a member of the bar of this court, filed with the clerk at least 3 days prior to the consideration of the motion by the court. (c) Disbarment. Superseded by Appendix F effective May 7, 1984. (d) Attorneys of Record. (1) One for Each Party. There shall be but one attorney of record for a party in any case at any one time, and such attorney of record shall be an individual (and not a firm) who has been admitted to practice before this court. Any other attorneys assisting the attorney of record shall be designated as of counsel. (2) Authorization To Sign Filings. Any other attorney who is a member of the bar of this court and who is a member or is an employee of the law firm listed as of counsel; agency; or department of the attorney of record may sign any filing in the attorney of record's name. An attorney who signs the name of the attorney of record shall so indicate by adding following the name of the attorney of record: 'by (the signing attorney's own name).' Authorization to sign filings shall not relieve the attorney of record from the provisions of Rule 11. (3) Appearance. For parties other than the United States, the attorney of record shall include on the initial pleading or paper said attorney's name, address, and telephone number. For the United States the attorney who is to appear as the attorney of record shall file with the clerk and serve on all other parties a notice of appearance setting forth the identical information. The attorneys of record for all parties shall promptly file with the clerk and serve on all other parties a notice of any change in address. (4) Change by Parties Other than the United States. A party other than the United States may by leave of court on motion change the party's attorney at any time. The motion may be signed by said party in person or by the newly designated attorney accompanied by an affidavit of appointment executed by such attorney. If the consent of the previous attorney of record is annexed to or endorsed on the motion, substitution shall be accomplished by an appropriate entry on the docket by the clerk. When the motion is not thus shown to have the consent of the previous attorney, such attorney shall be served with the motion, and shall have 14 days to show cause why the motion should not be allowed. (5) Change by the United States: A new notice of appearance shall be filed and served on all parties by the United States whenever a case is reassigned to another attorney. (6) Withdrawal of Attorney. No attorney of record for a plaintiff or a third party may withdraw such attorney's appearance except by leave of the court on motion and after notice is served on such attorney's client. (7) Death of Attorney. If the attorney of record dies, a suggestion of such attorney's death shall be made, and a motion to substitute another attorney admitted to practice before this court may be made by the plaintiff. (8) Pro Se. An individual may represent oneself or a member of one's immediate family as a party before the court. Any other party, however, must be represented by an attorney who is admitted to practice in this court. A corporation may only be represented by counsel. The terms counsel or attorney in these rules shall include pro se litigants. (e) Application for Attorneys' Fees and Expenses. (1) Applications. Applications for fees and expenses shall be filed with the clerk within 30 days after final judgment, as defined in 28 U.S.C. Sec. 2412(d)(2)(G) for the payment of money, or for the dismissal of the complaint, or of a final order in a renegotiation case determining the amount, if any, of excessive profits, or of a declaratory judgment pursuant to 28 U.S.C. Sec. 1491 or 1507. Any application subject to 28 U.S.C. Sec. 2412(d) shall include the information required by that section and any claim for fees and expenses incurred in the prosecution of the application, and shall include the completed form as shown in Appendix E to these rules. The application and supporting statements shall be under oath. Each item shall be separately stated and supported. (2) Response and Reply. The responding party shall have 28 days from the service of an application pursuant to subdivision (e)(1) of this rule to file a response, to which plaintiff may reply within 14 days after service of the response. (3) Proceedings. After the filing of an application, and response and reply, if any, the judge will enter an order prescribing the procedure to be followed, either specially or pursuant to the rules of the court, or take such other action as may be deemed appropriate. GENERAL ORDER NO. 5 To assure that motions for admission to the bar of the court are heard on a regular basis, it is ordered as follows: (1) Motions for admission will be heard every Thursday which is not a legal holiday as defined by RUSCC 6(a). (2) Applicants for admission must appear in the clerk's office no later than 9:30 a.m. to pay the admission fee and fill out the necessary papers. See RUSCC 81(b). (3) Motions will be heard promptly at 10:00 a.m. in Courtroom No. 4, Room 501, National Courts Building, 717 Madison Place, N.W., Washington, D.C. 20005. December 20, 1982 By the Court Alex Kozinski Chief Judge ------DocID 37403 Document 1265 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 82 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 82. Form, Size and Duplication of all Papers -STATUTE- (a) General. All papers to be filed with the clerk shall be duplicated and filed in conformity with these rules as to methods of duplication, form, size, and number of copies. The clerk shall refuse to file any paper which is not in substantial conformity with this rule or not in clear type. (b) Duplication. All requirements of duplication may be satisfied by the use of any photocopy method capable of producing a clear black image on white paper, but not including ordinary carbon copy, provided, that in each instance the duplication shall conform to the requirements of subdivision (c) of this rule as to paper, size, form, and pagination. (c) Form and Size. All papers pursuant to the provisions of this rule shall be duplicated on pages not exceeding 8 1/2 by 11 inches, with type matter on all papers other than exhibits to be of letter quality not exceeding 6 1/2 by 8 1/2 inches. Papers duplicated shall be double spaced, except that quoted and indented material and footnotes may be single spaced, and, if covering both sides of the sheet, shall be duplicated on paper of sufficient quality that the duplication process does not bleed through the sheet; shall be bound or attached on the left margin and unfolded, in book form; and shall have legible margins when bound or attached. Such pages need not be justified on the right margin. The first page of each separate document shall be numbered 1. Page numbers shall be in large, distinct type and shall appear in the bottom center margin of the page. (d) Date. Each paper shall bear the date it is signed on the signature page. (e) Telephone Number. The telephone number (including area code) of the attorney of record must appear beneath the signature line of every pleading or other paper. ------DocID 37404 Document 1266 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 83 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 83. Number of Copies -STATUTE- Except as provided in Rule 3(c), the parties shall file an original and 2 copies of each other paper required by these rules to be filed with the clerk. In congressional reference cases, an original and 4 copies of each such paper shall be filed. All copies shall be identical, or otherwise conformed, to the original. ------DocID 37405 Document 1267 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 83.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 83.1. Content of Briefs or Memoranda; Length of Briefs or Memoranda -STATUTE- (a) Content of Briefs or Memoranda. (1) Initial Brief or Memorandum. Except in briefs or memoranda of 10 pages or less or pretrial filings under Appendix G, the first brief or memorandum due, normally the plaintiff's brief or memorandum, shall contain, under proper headings and arranged in the following order: (A) a table of contents or index, including the specific contents of any appendix or appendices to the brief or memorandum, listing the various items in the appendix, including the number and description of every item and exhibit which is being reproduced, together with the number of the page at which the item appears. See also subdivision (G) of Rule 83.1(a)(1); (B) a table of constitutional provisions, treaties, statutes, regulations, and cases cited, giving the volume and page in the official edition where they may be found, and arranging the cases in alphabetical order. All U.S. Claims Court orders and opinions published in the United States Claims Court Reporter shall be cited to that reporter; (C) a succinct statement of the questions involved, setting forth each question separately; (D) a concise statement of the case, containing all that is material to the consideration of the questions presented, with appropriate reference to specific findings, the stipulation of facts, or other pertinent portions of the record, and setting out verbatim in the brief or memorandum or in an appendix thereto the pertinent portions of constitutional provisions, treaties, statutes, and regulations, as well as the texts of all administrative decisions directly involved in the case, unless previously reproduced in or as an exhibit to the complaint; the appendix or appendices to the brief or memorandum shall be numbered consecutively within themselves so as to enable the court more easily to find and read the material in the appendix or appendices; (E) the argument, exhibiting clearly the points of fact and of law being presented, and citing the authorities relied upon; (F) a conclusion, indicating the relief sought; and (G) if an appendix is used, there shall be, at the beginning of the brief or memorandum itself, a table of contents or index listing the various items in the appendix, including the number and description of every exhibit which is being reproduced, together with the number of the page of the appendix at which the item begins. (2) Opposing Brief or Memorandum. An opposing or answering brief or memorandum, normally the defendant's brief or memorandum, shall conform to the requirements set out in subdivision (a)(1) of this rule, except that the items referred to in subdivisions (C) and (D) of that subdivision need not be included unless the party is dissatisfied with the presentation by the other side. (3) Reply Brief or Memorandum. A reply brief or memorandum shall conform to the requirements of subdivision (a)(2) of this rule. (4) General. Briefs or memoranda must be compact, concise, logically arranged, and free from burdensome, irrelevant, immaterial, and scandalous matter. Briefs or memoranda not complying with this rule may be disregarded by the court. (b) Length of Briefs or Memoranda. (1) Except by leave of the court on motion, principal briefs or memoranda shall not exceed 40 pages by any process of duplicating or copying, exclusive of (A) pages containing tables of contents, citations to constitutional provisions, treaties, statutes, regulations, and cases, and (B) any appendix setting out verbatim the pertinent portions of constitutional provisions, treaties, statutes, regulations, agency or board decisions, court decisions, excerpts from transcripts of testimony, and documentary exhibits. (2) Except by leave of the court on motion, reply briefs or memoranda shall not exceed 20 pages by any process of duplication or copying or 30 pages where an opposition to a motion is included. (3) A brief or memorandum previously filed may not be incorporated by reference; any such incorporation will be disregarded. A party wishing to rely upon a previously filed brief or memorandum may do so by reproducing in an appendix either (A) excerpts thereof now relied upon, or (B) the entire brief or memorandum. In either event, the party shall identify the total number of pages considered pertinent in a footnote which is to appear on the first page of the brief or memorandum. The pages so identified shall be included in the maximum allowable length set forth in subdivisions (1) and (2) of this rule. (4) A motion for leave to exceed the page limitation set forth in subdivisions (1) or (2) of this rule shall be filed with the clerk prior to the duplication of the brief or memorandum and at least 10 days in advance of the date for the filing of the brief or memorandum, and shall show good cause therefor. A response to such a motion for leave shall not be permitted. ------DocID 37406 Document 1268 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 83.2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 83.2. Time for Filing -STATUTE- (a) Responses and Objections. Unless otherwise provided in these rules or by order of the court, responses or objections to written motions shall be filed within 14 days after service of the motion. (b) Replies. Replies to responses or objections shall be filed within 7 days after service of the response or objection. (c) Motions Under Rules 12(b), 12(c) and 56. Responses to these motions shall be filed within 28 days after service of the motion and replies thereto within 14 days of the service of the response. (d) Leave of Court. If the subject filing is pursuant to leave of court on motion by a party, time for any response runs from date of filing and not date of service. (e) Cross-motions. Where the responding party files a cross-motion, it shall be contained in the same document as the response to the original motion; the response to the cross-motion shall be contained in the same document as the reply subject to page limitations in Rule 83.1(b)(2). Where a cross-motion is filed, the parties shall have the same times to respond and to reply to the cross-motion as to an original motion. (f) Reconsideration of Orders. A motion for reconsideration of an order shall be filed not later than 10 days after the date thereof. No response may be filed to a motion for rehearing or reconsideration. However, the court will not rule in favor of such a motion without first requesting by order a response to it. ------DocID 37407 Document 1269 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 84 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 84. Transfers and Referrals -STATUTE- (a) Transfers from Other Courts. (1) Filing and Fee. When the transfer of a case from another court to this court is permitted by law, the case shall be filed in this court upon the receipt by the clerk of a certified copy of the record made in the other court, including the order of that court granting the transfer. The clerk shall serve a notice of this filing on the parties as provided in Rule 5. Where all required fees in the other court are shown to have been paid, no filing fee will be required. (2) Complaint; Copies. Eight copies of the complaint, containing the necessary changes in the caption and duplicated in conformity with Rule 82, filed in the other court shall be filed with the clerk within 28 days after the filing required in subdivision (a)(1) of this rule. In lieu thereof and within the same time period, an original and 7 copies of an amended complaint may be filed in conformity with the rules of this court setting forth the claim or claims transferred. Service will be made on the United States as provided in Rule 4. (3) Procedure. After the filing and service as provided for in subdivision (a)(2) of this rule, all further proceedings shall be in accordance with the rules prescribed for cases filed in this court in the first instance. (b) Referral of Cases by the Comptroller General. (1) Service of Notice; Time for Response. Upon the filing of a case referred to the court by the Comptroller General, the clerk shall serve a notice, as provided in Rule 5, on each person whose name and address are shown by the papers transmitted and who appears to be interested in the subject matter of the reference, which notice shall set forth the filing of the reference and state that the person notified appears to have an interest therein and that such person shall have 90 days after such service within which to appear and assert such person's claim by filing a complaint in accordance with Rule 3. At the same time, the clerk shall forward a copy of each such notice to the Attorney General. (2) Procedure After Notice. After the service of notice upon the interested person or persons, all further proceedings for the disposition of the case shall be in accordance with the rules prescribed herein for other cases. (3) Failure of Party To Appear. If no interested plaintiff appears and files his complaint within the time specified in the notice served by the clerk, the case shall be submitted to the court upon the papers filed and upon such evidence, if any, as may be produced by the Attorney General. ------DocID 37408 Document 1270 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 85 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 85. Title -STATUTE- These rules may be known as the Rules of the United States Claims Court. ------DocID 37409 Document 1271 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT Rule 86 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT TITLE XI -HEAD- Rule 86. Effective Date -STATUTE- These rules as revised are effective on March 1, 1991. ------DocID 37410 Document 1272 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX A -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX A -HEAD- APPENDIX A -MISC1- INSTRUCTIONS TO REPORTERS; FORMS Reference is made to Rules 39(b) and 80(b) for reporting arrangements, including the requirement for the recording of proceedings, the control of the reporter, and the return of the transcript and exhibits. The following instructions and forms are intended to guide reporters in preparing the transcripts of testimony taken and proceedings had before the judges of the United States Claims Court. 1. Caption Page. There shall be stated on the caption page: (a) the style of the cause in which the testimony is taken; (b) the place and date of its taking; (c) the identity of the party by whom each witness is called; (d) the name of the judge; and (e) the appearances of counsel. See Form A. 2. Testimony. It shall appear in the transcript of the proceedings and testimony by whom each witness was examined and cross-examined. At the top of each page shall appear the name of the witness and the nature of his examination, such as Roe-direct, Roe-cross, Roe-redirect. 3. Preparation of Transcript. The reporter shall transcribe all testimony on nontransparent white paper, either 8 1/2 inches wide by 11 inches long, or 8 inches wide by 10 1/2 inches long, bound on the left margin. The pages shall be numbered consecutively, with a minimum of 25 lines per page. It is not necessary for the witnesses to sign the transcripts of their testimony. 4. Exhibits. All exhibits offered by either of the parties shall bear the caption and number of the case, the exhibit numbers, in figures, whether for plaintiff or defendant unless the court provides for the offering parties to otherwise designate their exhibits, and the number of sheets in each exhibit. All exhibits admitted in evidence or designated to accompany the transcript shall accompany and be filed with the transcript of the testimony, but shall not be affixed thereto. 5. Certificate of Reporter. The reporter shall append to the transcript of the testimony a certificate similar to Form B. The certificate shall be signed by the reporter. 6. Index. At the beginning of each volume of the transcript of testimony, there shall be an index containing: (a) the names of the witnesses examined, citing the pages of the transcript where direct, cross-, redirect, or recross-examination of the respective witnesses began; and (b) the exhibits in the case, first for the plaintiff and then for the defendant, with a brief statement of the nature of each of the exhibits and with references to the pages of the transcript where said respective exhibits were (1) offered and (2) received in evidence. In addition, upon the preparation of the final transcript, where the number of pages exceeds 500, a master index containing the same information shall be prepared and bound separately. FORM A IN THE UNITED STATES CLAIMS COURT NO. XXX JOHN DOE, PLAINTIFF V. THE UNITED STATES, DEFENDANT Chicago, Illinois, Monday, XXXXXX, 19XX, 10 a.m. TESTIMONY FOR PLAINTIFF (OR DEFENDANT) The parties met, pursuant to notice of the court, at the time above stated, in Room 1614, United States Courthouse and Federal Building, Chicago, Illinois. Present: Hon. A. B. See, Judge; John A. Jones, Esq., counsel for plaintiff; and William B. Smith, Esq., counsel for defendant. Testimony on behalf of the plaintiff (or defendant) was taken as follows: Richard Roe, a witness produced on behalf of the plaintiff (or defendant), having first been duly sworn by said court, was examined, and in answer to interrogatories testified as follows: Q. State your name, etc. A. XXXXXXXXXXXXXXXXXXXX. Q. Have you, etc.? A. XXXXXXXXXXXXXXXXXXXX. FORM B CERTIFICATE OF REPORTER I, X. Y. Zee, reporter, hereby certify that at the time and place aforesaid, I did cause to be taken down and transcribed the proceedings in this case, including the questions propounded to and the answers given by said witnesses so called by plaintiff (or defendant), and that the foregoing record is a correct transcript of the proceedings and testimony so had therein. In witness whereof I have hereunto set my hand this day of , 19 . (Signed) X. Y. Zee, Reporter, 200 Equitable Building, Chicago, Ill. ------DocID 37411 Document 1273 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX B -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX B -HEAD- APPENDIX B -MISC1- PROCEDURES FOR PROCESSING COMPLAINTS OF JUDICIAL MISCONDUCT PURSUANT TO 28 U.S.C. SEC. 372(C) 1. Any person alleging that a judge of this court has engaged in conduct prejudicial to the effective and expeditious administration of the business of the court or alleging that such a judge is unable to discharge all the duties of office by reason of mental or physical disability may file with the clerk a written complaint, original plus 3 copies, containing a brief statement of the facts constituting such conduct. 2. Upon receipt of a complaint filed under 1, the clerk shall promptly transmit such complaint to the chief judge of this court, or, if the conduct complained of is that of the chief judge, to that judge in regular active service next senior in date of commission, for purposes of these procedures only, included in the term chief judge. The clerk shall simultaneously transmit a copy of the complaint to the judge whose conduct is the subject of the complaint. 3. (a) After expeditiously reviewing a complaint, the chief judge by written order stating the chief judge's reasons, may: (1) dismiss the complaint, if the chief judge finds it to be (i) not in conformity with 1, (ii) directly related to the merits of a decision or procedural ruling, or (iii) frivolous; or (2) conclude the proceeding if the chief judge finds that appropriate corrective action has been taken. (b) The chief judge shall transmit copies of the chief judge's written order to the complainant and to the judge whose conduct is the subject of the complaint. 4. If the chief judge does not enter an order under 3, such judge shall promptly: (a) appoint the chief judge and two judges of this court to a special committee to investigate the facts and allegations contained in the complaint; (b) certify the complaint and any other documents pertaining thereto to each member of such committee; and (c) provide written notice to the complainant and the judge whose conduct is the subject of the complaint of the action taken under this paragraph. 5. Each committee appointed under 4 shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the chief judge for the court. Such report shall present both the findings of the investigation and the committee's recommendations for necessary and appropriate action by the court. 6. Upon receipt of a report filed under 5, the court by majority vote: (a) may conduct any additional investigation which it considers to be necessary; (b) shall take such action as is appropriate to ensure the effective and expeditious administration of the business of the court, including, but not limited to, any of the following actions: (1) reporting to the United States Court of Appeals for the Federal Circuit a recommendation for removal pursuant to the procedures and standards provided by 28 U.S.C. Sec. 176; (2) ordering that, on a temporary basis for a time certain, no further cases be assigned to any judge whose conduct is the subject of a complaint; (3) censuring or reprimanding such judge, by means of private communication; (4) censuring or reprimanding such judge, by means of public announcement; or (5) ordering such other action as it considers appropriate under the circumstances; and (c) shall immediately provide written notice to the complainant and to such judge of the action taken under this paragraph. 7. In conducting any investigation under this Appendix B, the court, or a special committee appointed under 4, shall have full subpoena powers as provided in 28 U.S.C. Sec. 332(d). 8. A complainant or judge aggrieved by a final order of the chief judge under 3 may petition the court for review thereof. A complainant or judge aggrieved by an action by the court under 6 may petition the Judicial Conference of the United States for review thereof. 9. (a) Adequate prior notice of any investigation will be given in writing to the judge whose conduct is the subject of the complaint. (b) The judge whose conduct is the subject of the complaint will be afforded an opportunity to appear (in person or by counsel) at proceedings conducted by the committee or court, to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to present argument orally. (c) These procedures are a matter of public record, and any such rule promulgated by the court may be modified by the Judicial Conference. 10. No judge whose conduct is the subject of an investigation shall serve upon a special committee appointed under 4, or as a member of the court pursuant to 5, until all related proceedings under this paragraph have been finally terminated. 11. No person shall be granted the right to intervene or to appear as amicus curiae in any proceeding before the court. 12. All papers, documents, and records or proceedings related to investigations under this Appendix B shall be confidential and shall not be disclosed by any person in any proceeding unless: (a) the court releases any such material; or (b) authorized in writing by the judge who is the subject of the complaint or by the chief judge of this court. 13. Each written order to implement any action under 6(b), which is issued by the court, shall be made available to the public through the clerk. Unless contrary to the interests of justice, each order issued under this paragraph shall be accompanied by written reasons therefor. ------DocID 37412 Document 1274 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX C -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX C -HEAD- APPENDIX C -MISC1- PROCEDURE IN COMMON CARRIER CASES CONTENTS I. CARRIER'S REQUEST FOR ADMISSION OF FACTS 1. Time for Filing Request. 2. Form and Content of Request: (A) Duplication. (B) Copies; Filing; Service. (C) Signature of Attorney. (D) Numbered Paragraphs; Material Facts. (E) Attachments. (F) Nature of Dispute; Statement of Issues. (G) Schedule: Claim for Transportation of Property: (1) List of Carrier's Bills in Dispute. (2) Detail for Each Bill of Lading. (3) Computation for Typical Bill of Lading. (H) Certification and Signature of Carrier: Property. (I) Schedule: Claim for Transportation of Passengers: (1) List of Carrier's Bills in Dispute. (2) Detail: Each Transportation Request or Warrant. (J) Certification and Signature of Carrier: Passengers. 3. Plaintiff's Noncompliance: Consequences. II. DEFENDANT'S RESPONSE 4. Time for Filing; Order. 5. Copies; Service; Signature. 6. Agreement; Modification; Denial. 7. Defendant's Statement of Issues. 8. Verification of Carrier's Computations. 9. Schedule: Defendant's Basis for Applicable Charges. 10. Failure To Deny or Respond Within Specified Time: Consequences. 11. Qualified Denial of Facts Available to Defendant: Consequences. 12. Relation to Pleadings; Time for Filing Answer or Counterclaim. III. ACCEPTANCE OF RESPONSE; PRETRIAL; JUDGMENT 13. Plaintiff's Acceptance of Response. 14. Pretrial Conference; Fixing Amount of Recovery. 15. Entry of Judgment. IV. CASES WITHIN PRIMARY JURISDICTION OF INTERSTATE COMMERCE COMMISSION 16. Referral to Interstate Commerce Commission: Defendant's Motion for. 17. Plaintiff's Response to Defendant's Motion for Referral. 18. Referral to Interstate Commerce Commission: Plaintiff's Motion for. 19. Defendant's Response to Plaintiff's Motion for Referral. 20. Effect of Filing Referral Motion. 21. Failure To File Referral Motion in Specified Time: Consequences. I. CARRIER'S REQUEST FOR ADMISSION OF FACTS 1. Time for Filing Request. In every suit filed by a common carrier for the recovery of freight and/or passenger transportation charges, the carrier shall, at the time the complaint is filed or within 30 days thereafter, file with the clerk a request for admission by the defendant of the genuineness of any relevant documents described in and exhibited with the request and of the truth of the material matters of fact relied on by the carrier for recovery in the action. 2. Form and Content of Request. The request shall conform to the following requirements: (A) Duplication. The request, with accompanying schedules and documents, may be typewritten, or may be printed, or otherwise mechanically reproduced from a typewritten original, provided that all copies filed with the clerk shall be clearly legible and that the words and figures shown therein shall be in large enough type to be read without difficulty. (B) Copies; Filing; Service. If the request accompanies the complaint, copies and service of such request shall be as provided in Rules 3(c) and 4. If the request is filed subsequent to the filing of the complaint, copies and service of such request shall be as provided in Rules 5, and 83, except that 5 copies shall be served on the defendant in lieu of a copy. (C) Signature of Attorney. The request shall be signed by the attorney of record for the plaintiff. (D) Numbered Paragraphs; Material Facts. The statements contained therein shall be properly separated and numbered and shall consist of specific statements of material facts which the plaintiff expects to prove as opposed to general allegations of the kind used in pleadings. (E) Attachments. There shall be attached to the request copies of any contracts, letters, or other documents, excluding tariffs and other documents referred to in the schedules required by 2(G) and 2(I), which plaintiff proposes to offer in evidence, in order that the genuineness of such documents may be admitted by the defendant and the necessity of calling a witness to identify the same may be avoided. (F) Nature of Dispute; Statement of Issues. The statement in the request shall be sufficiently explicit to show the nature of the dispute and the specific reason or reasons why the plaintiff believes it is entitled to recover higher rates or charges than those allowed by the Government. The word 'dispute' as used in the preceding sentence, means the shipment or shipments with respect to which the General Accounting Office or other agency of the Government determined that the carrier's charges had been overpaid or refused to pay the carrier's supplemental bills covering such shipments, rather than subsequent shipments which are not in dispute except for the fact that the overpayments determined as to the shipments in dispute have been deducted from the amount of the carrier's bills covering such subsequent shipments. In order to show the nature of the dispute there shall be attached to or included in plaintiff's request a statement of the issues which, with respect to each group of the carrier's bills involving the same issue, shall consist of a brief narrative statement of such issue with a reference to (1) court decisions involving the same issue, or (2) the tariffs or other authority relied upon by plaintiff, and the tariffs or other authority which plaintiff believes defendant relied upon in making deductions for claimed overpayments to the carrier or in refusing to pay the carrier's supplemental bills for claimed undercharges. (G) Schedule: Claim for Transportation of Property. Where the claim is for the recovery of charges for the transportation of property for the Government, there shall be attached to the request a detailed schedule, prepared by or under the supervision of the general auditor, comptroller, or other principal accounting officer of the carrier. The schedule shall contain the following factual information: (1) List of Carrier's Bills in Dispute. The number of each of the carrier's bills for the shipments in dispute, as distinguished from the number of a subsequent bill from which the GSA made a deduction following its determination of an overpayment on the bill in dispute. (2) Detail for Each Bill of Lading. For each bill of lading in dispute, covered by each bill referred to in (1), the following facts: (a) the number and symbol of each bill of lading; (b) the date of the shipment; (c) the origin and the destination of the shipment; (d) a description of the commodity or commodities shipped, including a description of the packing where this affects the rate; (e) car number and initial; (f) the weight of the shipment, including the minimum carload weight when greater than the actual weight; (g) when the shipment in dispute consists of one or more carloads of mixed commodities, a description of the different commodities, and the respective weight thereof loaded in each car, including minimum carload weights where such weights affect the rates; (h) the rates claimed for each article in the shipment and for any accessorial services; (i) the total freight charges on each bill of lading; (j) amounts refunded by carrier, if any, and the dates thereof; (k) if the overpayment determined by GSA or other agency has been deducted from the carrier's subsequent bill or bills, the number of such subsequent bill or bills, the amount deducted, and the date thereof; (l) the total amount paid the carrier; (m) the balance due; (n) a specific reference to the item or items in designated tariffs authorizing the charges claimed, including the classification rating if necessary, and authorization for any accessorial charges claimed; or to a Sec. 22 quotation; (o) the Government file reference number as obtained from GSA notice of overcharge, the Certificate of Indebtedness, or other document issued by the GSA, or, in the event there is no GSA reference number, the name of the Government paying agency and bureau, the disbursing office voucher number, and the date of payment; (p) if the shipment in dispute consists in whole or in part of a through transit movement, (1) the through assessable charges from the original point of shipment to the final destination, including a description of the commodity, the transited weight, the through rate, the tariff or special authority for the through rate used, and, if local tonnage is involved, the weight thereof, the points between which local tonnage moved, and the rates and charges assessed against such tonnage; (2) details of the net amounts paid to and beyond the transit station, including references to the 'inbound' and 'outbound' shipments by bill of lading number and symbol; date of shipment, origin and destination, weight rate, and the net amounts paid to the respective 'inbound' and 'outbound' carriers, naming them and identifying the bill numbers on which such payments were made; and (3) the balance due, i.e., the difference between the through assessable charges, including the charges on local tonnage, if any, and the respective net amounts paid on the inbound and outbound shipments; and (q) a brief statement as to the basis for the claim or other brief statement which the carrier deems necessary to explain the peculiarities of the shipment. (3) Computation for Typical Bill of Lading. Following the listing of the information herein required with respect to each group of carrier's bills involving the same issue or basis of freight charge computation, the carrier shall either (i) include in the schedule a computation of the freight charges for that bill of lading, setting forth the basis or formula used, and referring to the specific items in particular tariffs or other authority which it relied upon for that purpose, or (ii) attach a worksheet showing such computation and information with respect to each typical bill of lading. (H) Certification and Signature of Carrier: Property. The schedule shall be certified by the general auditor, comptroller, or principal accounting officer of the carrier, as follows: I, XXXXXXXXX, the XXXXXXXXXX (Name) (Title) XXXXXXXX, of the XXXXXXXXXXX (Name of Carrier) XXXXXXXXXXXXXXXXXXXXXXX , do hereby certify that the above and foregoing schedule has been prepared from the books and records of said company for use in a suit in the United States Claims Court, entitled XXXXXX v. The United States, No. XX, and that to the best of my knowledge, information, and belief the matters contained therein are true and correct. To certify which, witness my hand at XXXXXXXXXXX this XXX day of XXXXXX, 19XX. XXXXXXXXXXXXXXXXXXXXXXXXXXX (Signature of auditor, comptroller, or principal accounting officer.) (I) Schedule: Claim for Transportation of Passengers. Where the claim is for the recovery of charges for the transportation of passengers for account of the Government, there shall be attached to the request a schedule, prepared by or under the supervision of the general auditor, comptroller, or other principal accounting officer of the carrier. The schedule shall contain the following factual information: (1) List of Carriers' Bills in Dispute. The number of each of the carrier's bills in dispute, as distinguished from the number of a subsequent bill from which the GSA made a deduction following its determination of an overpayment on the bill in dispute. (2) Detail: Each Transportation Request or Warrant. For each transportation request or warrant in dispute, covered by each bill referred to in (1) the following facts: (a) the symbol and number of each Government transportation request or warrant in dispute; (b) the date of service; (c) the origin and destination of the travel; (d) the class or type of service; (e) whether the travel was one way or round trip; (f) the number of the special movement, if any; (g) the route of travel; (h) the number of persons that traveled; (i) the gross per capita fare; (j) the assessable passenger charges; (k) the amount paid, and by what Government office and where located; (l) amounts refunded by carrier, if any, and the dates thereof, and the Government office to which refunded and where located; (m) where an overpayment was determined by the Government and deducted from a carrier's subsequent bill, the number of such subsequent bill, the amount of the deduction, and the date thereof; (n) the total amount paid, and by what Government office and where located; (o) the balance due; (p) the tariff reference and item or special rate authority; (q) the Government file reference; and (r) a brief statement as to the basis for the claim, including, where appropriate, a brief explanation showing the extent to which the ticket issued by the carrier was not used, and the value of the unused part of the ticket. (J) Certification and Signature of Carrier: Passengers. The schedule covering the transportation of passengers shall be certified in the same manner as provided in (2)(H), except that where a request includes schedules pertaining to claims for both the transportation of passengers and freight, one certification shall suffice for all schedules. 3. Plaintiff's Noncompliance: Consequences. In the event a plaintiff in any action within the purview of this Appendix fails or refuses to comply with the provisions hereof, the judge may (1) refuse to allow it to support designated claims or prohibit it from introducing in evidence designated documents or items of testimony, or (2) take other appropriate action, which may include a dismissal of the complaint or any part thereof. II. DEFENDANT'S RESPONSE 4. Time for Filing; Order. Promptly after the filing of the plaintiff's request, the judge to whom the case is assigned shall, by order filed with the clerk, fix a reasonable time within which the defendant shall file its response to the request. A copy of such order shall be served on the parties as provided in Rule 5. 5. Copies; Service; Signature. The defendant's response shall consist of an original and two copies to be filed with the clerk and with service to be made on plaintiff as provided in Rule 5. The response shall be signed by defendant's attorney of record and shall comply with the terms of 2(A). 6. Agreement; Modification; Denial. The defendant shall file such response within the time fixed by the order, agreeing to the separate items of fact, modifying the same in accordance with the facts known by the defendant, specifically denying the same, or setting forth in detail the reasons why it cannot truthfully admit or deny designated portions of the request. 7. Defendant's Statement of Issues. If defendant does not agree with plaintiff's statement of the issues, it shall attach to or include in the response its statement of the issues, which, with respect to each group of the carrier's bills involving the same issue, shall consist of a brief narrative statement of the issue, as defendant contends, with reference to (1) a court decision involving the same issue, or (2) the tariffs or other authority relied upon by defendant. 8. Verification of Carrier's Computations. If the defendant finds that the schedule attached to plaintiff's request, or any portion affecting the amount claimed, is incorrect on the basis of the tariffs, Sec. 22 quotations, or other authority relied on by plaintiff in its request, there shall be attached to the response a schedule prepared by the defendant, setting forth the facts and figures as to the amount of freight charges which defendant asserts would be due on each carrier's bill if the court holds that the tariffs or other authorities relied on by plaintiff in its request are applicable, and showing how the defendant arrived at any changes or corrections in the amounts claimed by plaintiff. 9. Schedule: Defendant's Basis for Applicable Charges. If the defendant claims that the tariffs, Sec. 22 quotations, or other authority relied on by plaintiff are inapplicable with respect to any of the carrier's bills listed in plaintiff's request, there shall be attached to the response a schedule prepared by the defendant, setting forth the facts and figures in detail as to the amount of freight or passenger charges defendant claims is due on each disputed carrier's bill and containing a specific reference to the item or items in designated tariffs, Sec. 22 quotations, or other authority relied on by defendant in support of its contention. The schedule shall also comply with the terms of 2(G)(3). 10. Failure To Deny or Respond Within Specified Time: Consequences. Except where the response details the reasons why the defendant cannot admit or deny a particular statement in the request, any fact not so modified or denied in the response shall be deemed admitted, and the failure of the defendant to file its response within the time specified by the judge shall be taken as an admission of all of the facts as set forth in the request. 11. Qualified Denial of Facts Available to Defendant: Consequences. Where the request sets forth any facts that are within the knowledge of the General Services Administration or of the department or agency of the defendant for which the transportation was performed - and these specifically include but are not limited to the facts and figures which plaintiff, by this order, is directed to include in its schedules - a response stating that defendant cannot truthfully admit or deny such facts, or a denial based on a lack of knowledge by defendant's attorney of record, shall be deemed an admission thereof, provided, that such a response shall not be deemed an admission if accompanied by the sworn statement of the official in charge of the records that a search has been made for the necessary documents or information and that the documents or information cannot be found. 12. Relation to Pleadings; Time for Filing Answer or Counterclaim. In all cases to which this procedure applies, the time for filing defendant's answer and any counterclaim asserted by it may, without regard to the provisions of RUSCC 12 and 13, be contemporaneous with the date fixed by the judge for filing defendant's response to plaintiff's request, provided, however, that the period of limitations provided by 49 U.S.C. Sec. 16(3)(d) within which the defendant may file a counterclaim is not extended by any rule set forth in this Appendix or by any order. At its option, the defendant may include the response in its answer or counterclaim, which pleadings, nevertheless, shall otherwise comply with the rules applicable to them. III. ACCEPTANCE OF RESPONSE; PRETRIAL; JUDGMENT 13. Plaintiff's Acceptance of Response. If a plaintiff is willing to accept the amount shown to be due it in defendant's response, or, where a counterclaim has been filed, is willing to accept the net amount shown to be due plaintiff in the response after deducting the amount of defendant's counterclaim, plaintiff's attorney of record shall sign and file with the clerk within 30 days an original typewritten and 2 copies of a statement entitled Plaintiff's Acceptance of the Amount Defendant Admits is Due, stating therein that the response shows that a specified sum is due plaintiff or, where a counterclaim has been filed, that the response shows that the net amount of the counterclaim is a specified sum, and that plaintiff consents to the entry of judgment in the amount specified in favor of plaintiff in full settlement and satisfaction of all claims asserted in the complaint and request for admission of facts. 14. Pretrial Conference; Fixing Amount of Recovery. When plaintiff does not file an acceptance of the amount shown to be due in the response, a pretrial conference shall be held for the purpose of (1) resolving all issues and recording an agreement for the entry of judgment or for a dismissal of the complaint or any part thereof, or (2) segregating the carrier's bills in dispute from those not in controversy and fixing the amount that either party would be entitled to recover in the event of a decision in its favor, and/or (3) taking any other action that may aid in the prompt disposition of the suit. 15. Entry of Judgment. Where all material issues are disposed of through the filing by plaintiff of its acceptance of the amount shown to be due in defendant's response, or at a pretrial conference, or by the defendant's failure to file its response within the time fixed by the judge, judgment may be entered without further proceedings. IV. CASES WITHIN PRIMARY JURISDICTION OF INTERSTATE COMMERCE COMMISSION 16. Referral to Interstate Commerce Commission: Defendant's Motion for. In any suit subject to the terms of this order, if defendant contends, whether on the basis of the freight charge computations used by plaintiff or on the basis of the freight charge computations used by defendant, that any of the carrier's bills listed in the request raise issues within the primary jurisdiction of the Interstate Commerce Commission and intends to move the court to refer such issues to that agency, defendant shall file the motion with the clerk at the time fixed for the filing of its response under this order. The motion shall contain: (1) an identification of the carrier's bills involved unless all the bills in suit are included in the motion; (2) a description of the commodities shipped and a statement respecting any other factors which are pertinent to the issues covered by the motion; (3) a reference to the applicable tariffs and a copy of the pertinent provisions thereof; (4) a precise statement of the issue or issues to be referred; and (5) a statement as to whether the Interstate Commerce Commission has construed the cited tariffs in prior decisions or has clarified the facts underlying them, citing the pertinent decisions, if any. 17. Plaintiff's Response to Defendant's Motion for Referral. Plaintiff's response to the motion shall be filed within 30 days after service of the motion, and shall state whether plaintiff concurs in the motion. If plaintiff contends that the Interstate Commerce Commission has construed the tariffs referred to in defendant's motion or has clarified the factors underlying them in previous decisions, the response shall cite such decision. 18. Referral to Interstate Commerce Commission: Plaintiff's Motion for. If plaintiff, in any case subject to the terms of this order, contends that any of the carrier's bills in suit raise issues within the primary jurisdiction of the Interstate Commerce Commission and intends to move the court to refer such issues to that agency, plaintiff's motion shall be filed not later than 30 days from the date defendant's response is filed and shall conform to the requirements of 16. 19. Defendant's Response to Plaintiff's Motion for Referral. Defendant's response to plaintiff's motion shall conform to the requirements of 17. 20. Effect of Filing Referral Motion. The trial of any case subject to the terms of this order in which a motion for referral is filed shall be deferred until final action on the motion. 21. Failure To File Referral Motion in Specified Time: Consequences. The failure of either party to file, within the time prescribed above, a motion requesting the court to refer a pending case or any part thereof to the Interstate Commerce Commission may be deemed good cause for denying any such motion thereafter filed. ------DocID 37413 Document 1275 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX D -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX D -HEAD- APPENDIX D -MISC1- PROCEDURE IN CONGRESSIONAL REFERENCE CASES (28 U.S.C. SEC. 1492, 2509) 1. Purpose. The Federal Courts Improvement Act of 1982, amended 28 U.S.C. Sec. 1492 and 2509, to authorize either House of Congress to refer bills to the chief judge of the United States Claims Court for investigation and report to the appropriate House. Procedures promulgated by the chief judge applicable to such congressional reference cases are specified herein. The RUSCC, to the extent feasible, are to be applied in congressional reference cases. 2. Service of notice. Upon referral of a bill to the chief judge by either House of the Congress, the clerk shall docket the reference and serve a notice, as provided in Rule 5, on each person whose name and address is shown by the papers transmitted and who appears to have an interest in the subject matter of the reference. The notice shall set forth the filing of the reference and state that the person notified appears to have an interest therein and that such person shall have 90 days within which to file a complaint. The clerk shall forward a copy of each such notice to the Attorney General. 3. Complaint. Any person served with notice who desires to assert a claim may do so by filing a complaint in accordance with RUSCC 3(c), 8 and 9 (or a preliminary complaint under RUSCC 27(a)) of the rules of the court, except that the complaint shall be captioned as provided in 6. 4. Failure of party to appear. If no interested person files a complaint within the time specified in the notice served by the clerk, the case may be reported upon the papers filed and upon such evidence, if any, as may be produced by the Attorney General. 5. Hearing officer; review panel. Upon the filing of a complaint, the chief judge by order will designate a judge of the court to serve as hearing officer and a panel of three judges to serve as a reviewing body. One of the review panel members will be designated by the chief judge as presiding officer of the panel. 6. Captions. All pleadings, motions, and any other papers of the parties, and all subpoenas, orders and reports of a hearing officer and review panel, shall be captioned as follows: CONGRESSIONAL REFERENCE TO THE UNITED STATES CLAIMS COURT XXXXX CONGRESSIONAL REFERENCE NO. XXX XXXXX 7. Subpoenas. Each hearing officer and each review panel shall have authority to do and perform any acts which may be necessary or proper for the efficient performance of their duties, including the power of subpoena and the power to administer oaths and affirmations. Subpoenas requiring travel of more than 100 miles to place of trial must have attached thereto an order of approval by the hearing officer. 8. Hearing officer report. The hearing officer shall conduct such proceedings and utilize such rules of the United States Claims Court as may be required to determine the facts, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. The hearing officer shall find the facts specially. The hearing officer's findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the hearing officer to judge the credibility of witnesses. The hearing officer shall append to the findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant. The report shall be filed with the clerk, and served by the clerk on the parties. 9. Acceptance or exceptions. Within 30 days after service of the report, each party shall file either (a) a notice of intention to except to the report or (b) a notice accepting the report. 10. Review panel consideration and report. The findings and conclusions of the hearing officer, together with the record of the case, shall be considered by the review panel. When a party or parties have filed a notice of intention to except, the presiding officer by order shall establish a schedule for the parties to file briefs on exceptions to the hearing officer's findings and conclusions and requests for oral argument before the panel. The chief judge will entertain no appeals or requests for review of any rulings or actions by a hearing officer or a review panel. No case shall be returned to the hearing officer unless so ordered by the review panel. On the basis of the entire record, the panel, by majority vote, shall adopt or modify the findings or the conclusions of the hearing officer and shall file its report with the clerk, for service on the parties. 11. Rehearing. Within 10 days after service of the report of the review panel, any party may file a motion for rehearing to alter or amend the report. The motion shall state with particularity any contention of law or fact which the movant believes has been overlooked or misapprehended, and shall contain argument in support thereof. Oral argument in support of the motion shall not be permitted. No response to a motion for rehearing is required, but will be considered if filed within 10 days from the date the motion for rehearing is served. No time extension shall be allowed for filing such a response. If the motion for rehearing is granted, the review panel shall take such further action as in its discretion may be required by the circumstances of the particular case. 12. Transmittal to Congress. When all proceedings are concluded, the report of the review panel shall be transmitted by the chief judge to the appropriate House of Congress. 13. Admission to practice. Any attorney representing a claimant in a congressional reference case may file and appear as attorney of record in the proceeding if such attorney is a member of the bar of the United States Claims Court or, if not, upon certification to the clerk that such attorney is a member in good standing of the bar of the highest court of any state in the Union or the District of Columbia. Any claimant, except a corporation, in a congressional reference case may proceed pro se. 14. Filing fees. Filing fees as set by RUSCC 77(k) are required in congressional reference cases. *** ILLUSTRATIONS OR TABLE DATA OMITTED *** ------DocID 37414 Document 1276 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT App. E -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX D -HEAD- App. E -STATUTE- APPENDIX E *** ILLUSTRATIONS OR TABLE DATA OMITTED *** ADMINISTRATIVE AGENCY CODES (Use the following abbreviations for the U.S. Government Agency involved in claim (Item 5)) --------------------------------------------------------------------- --------------------------------------------------------------------- BENEFITS REVIEW BOARD BRB CIVIL AERONAUTICS BOARD CAB CIVIL SERVICE COMMISSION (U.S.) CSC CONSUMER PRODUCTS SAFETY CPSC COMMISSION COPYRIGHT ROYALTY TRIBUNAL CRT DEPARTMENT OF AGRICULTURE AGRI DEPARTMENT OF COMMERCE COMM DEPARTMENT OF DEFENSE DOD DEPARTMENT OF EDUCATION EDUC DEPARTMENT OF ENERGY DOE DEPARTMENT OF HEALTH, EDUCATION & HEW WELFARE DEPARTMENT OF HEALTH & HUMAN HHS SERVICES DEPARTMENT OF HOUSING & URBAN HUD DEVELOPMENT DEPARTMENT OF INTERIOR DOI DEPARTMENT OF JUSTICE DOJ DEPARTMENT OF LABOR (Except OSHA) LABR DEPARTMENT OF TRANSPORTATION, TRAN NATIONAL TRANSPORTATION SAFETY BOARD DEPARTMENT OF THE TREASURY TREA (Except IRS) DRUG ENFORCEMENT AGENCY DEA ENVIRONMENTAL PROTECTION AGENCY EPA EQUAL EMPLOYMENT OPPORTUNITY EEOC COMMISSION FEDERAL AVIATION AGENCY FAA FEDERAL COAL MINE SAFETY BOARD FCMS FEDERAL COMMUNICATIONS COMMISSION FCC FEDERAL DEPOSIT INSURANCE FDIC CORPORATION FEDERAL ELECTION COMMISSION FEC FEDERAL ENERGY AGENCY FEA FEDERAL ENERGY REGULATORY FERC COMMISSION FEDERAL HOME LOAN BANK BOARD FHLB FEDERAL LABOR RELATIONS AUTHORITY FLRA FEDERAL MARITIME BOARD FMBD FEDERAL MARITIME COMMISSION FMC FEDERAL MINE SAFETY & HEALTH MSHA ADMINISTRATION FEDERAL MINE SAFETY & HEALTH MSHR REVIEW COMMISSION FEDERAL RESERVE SYSTEM FRS FEDERAL TRADE COMMISSION FTC FOOD & DRUG ADMINISTRATION FDA GENERAL SERVICES ADMINISTRATION GSA IMMIGRATION & NATURALIZATION INS SERVICE INTERNAL REVENUE SERVICE (Except IRS TAX COURT) INTERSTATE COMMERCE COMMISSION ICC MERIT SYSTEMS PROTECTION BOARD MSPB NATIONAL LABOR RELATIONS BOARD NLRB NUCLEAR REGULATORY COMMISSION NRC OCCUPATIONAL SAFETY & HEALTH OSHA ADMINISTRATION OCCUPATIONAL SAFETY & HEALTH OSHC REVIEW COMMISSION OFFICE OF MANAGEMENT & BUDGET OMB OFFICE OF PERSONNEL MANAGEMENT OPM OFFICE OF WORKERS COMPENSATION OWCP PROGRAM PATENT OFFICE PATO POSTAL RATE COMMISSION (U.S.) PRC POSTAL SERVICE (U.S.) USPS RR RETIREMENT BOARD RRRB SECURITIES & EXCHANGE COMMISSION SEC SMALL BUSINESS ADMINISTRATION SBA TAX COURT, INTERNAL REVENUE TXC SERVICE ------------------------------- *** ILLUSTRATIONS OR TABLE DATA OMITTED *** ------DocID 37415 Document 1277 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX F -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX F -HEAD- APPENDIX F -MISC1- UNITED STATES CLAIMS COURT RULES OF DISCIPLINARY ENFORCEMENT The United States Claims Court, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it, or admitted for the purpose of a particular proceeding pursuant to RUSCC 81(b)(5), promulgates the following Rules of Disciplinary Enforcement superseding all of its other rules pertaining to disciplinary enforcement heretofore promulgated. Rule I. Attorneys Convicted of Crimes A. Upon the filing with the court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the court has been convicted in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined, the court shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of a disciplinary proceeding to be commenced upon such conviction. A copy of such order shall immediately be served upon the attorney. Upon good cause shown, the court may set aside such order when it appears in the interest of justice so to do. B. The term serious crime shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a serious crime. C. A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction. D. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the court shall, in addition to suspending that attorney in accordance with the provisions of this Appendix, refer the matter to counsel for the institution of a disciplinary proceeding before the court in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded. E. Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a serious crime, the court may refer the matter to counsel for whatever action counsel may deem warranted, including the institution of a disciplinary proceeding before the court; provided, however, that the court may in its discretion make no reference with respect to convictions for minor offenses. F. An attorney suspended under the provisions of this Appendix will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed. Rule II. Discipline Imposed by Other Courts; Disbarment on Consent or Representation in Other Courts A. Any attorney admitted to practice before the court shall, upon being subjected to public discipline by any other court of the United States or District of Columbia, or by a court of any state, territory, commonwealth or possession of the United States, promptly inform the clerk of such action. B. Any attorney admitted to practice before the court shall, upon being disbarred on consent or resigning from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the clerk of such disbarment on consent or resignation. C. Upon the filing of a certified copy of a judgment or order demonstrating that an attorney admitted to practice before the court has been disciplined by another court or upon accepting disbarment on consent or resignation, the court shall forthwith issue a notice directed to the attorney containing: 1. a copy of the judgment or order from the other court or a copy of the communication indicating disbarment on consent or resignation; and 2. an order to show cause directing that the attorney inform the court within 30 days after service of that order upon the attorney, personally or by mail of any claim by the attorney predicated upon the grounds set forth in E. That the imposition of the identical discipline by the court would be unwarranted and the reasons therefor. D. In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in the court shall be deferred until such stay expires. E. Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of C, the court shall impose the identical discipline unless the respondent-attorney demonstrates, or the court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears: 1. that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or 2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or 3. that the imposition of the same discipline by the court would result in grave injustice; or 4. that the misconduct established is deemed by the court to warrant substantially different discipline. Where the court determines that any of said elements exist, it shall enter such other order as it deems appropriate. F. In all other respects, a final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in the court. G. The court may at any stage appoint counsel to prosecute the disciplinary proceedings. Rule III. Standards for Professional Conduct A. For misconduct defined in this Appendix and after notice and opportunity to be heard, any attorney admitted to practice before the court may be disbarred, suspended from practice before the court, publicly reprimanded, or subjected to such other disciplinary action as the circumstances may warrant. B. Acts or omissions by an attorney admitted to practice before the court, individually or in concert with any other person or persons, which violate the Code of Professional Responsibility adopted by the court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship. The Code of Professional Responsibility adopted by the court is the American Bar Association Model Rules of Professional Conduct, as amended from time to time by the Association, except as otherwise provided by specific rule of the court. Rule IV. Disciplinary Proceedings A. When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before the court shall come to the attention of a judge of the court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by this Appendix, the judge shall refer the matter to the chief judge for determination whether the matter should be referred to counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate. B. Should counsel conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent-attorney because sufficient evidence is not present, or because there is pending another proceeding against the respondent-attorney the disposition of which in the judgment of the counsel should be awaited before further action by the court is considered or for any other valid reason, counsel shall file with the court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or otherwise setting forth the reasons therefor. C. To initiate formal disciplinary proceedings, counsel shall obtain an order of the court upon a showing of probable cause requiring the respondent-attorney to show cause within 30 days after service of that order upon that attorney, personally, or by mail, why the attorney should not be disciplined. D. Upon the respondent-attorney's answer to the order to show cause, if any issue of fact is raised or the respondent-attorney wishes to be heard in mitigation, the chief judge shall set the matter for prompt hearing before one or more judges of the court. Rule V. Disbarment on Consent While Under Disciplinary Investigation or Prosecution A. Any attorney admitted to practice before the court who is the subject of an investigation into or a pending proceeding involving allegations of misconduct may consent to disbarment, but only by delivering to the court an affidavit stating that the attorney desires to consent to disbarment and that: 1. the attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting; 2. the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth; 3. the attorney acknowledges that the material facts so alleged are true; and 4. the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself. B. Upon receipt of the required affidavit, the court shall enter an order disbarring the attorney. C. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this Appendix shall not be publicly disclosed or made available for use in any other proceeding except upon order of the court. Rule VI. Reinstatement A. After Disbarment or Suspension. An attorney suspended for three months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than three months or disbarred may not resume practice until reinstated by order of the court, except as provided in Rule I F of the Appendix. B. Time of Application Following Disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least one year from the effective day of the disbarment. C. Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under this Appendix shall be filed with the chief judge of the court. Upon receipt of the petition, the chief judge shall promptly refer the petition to counsel and shall assign the matter for prompt hearing before one or more judges of the court. The judge or judges assigned to the matter shall within 30 days after referral schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that the petitioner has the moral qualifications, competency and learning in the law required for admission to practice law before the court and that the petitioner's resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest. D. Deposit for Costs of Proceeding. Petitions for reinstatement under this Appendix shall be accompanied by an advance cost deposit in an amount to be set from time to time by the court to cover anticipated costs of the reinstatement proceeding. E. Conditions of Reinstatement. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate the petitioner, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for 5 years or more, reinstatement may be conditioned, in the discretion of the judge or judges before whom the matter is heard, upon the furnishing of proof of competency and learning in law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment. F. Successive Petitions. No petition for reinstatement under this Appendix shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person. Rule VII. Attorneys Specially Admitted Whenever an attorney applies to be admitted or is admitted to the court for purposes of a particular proceeding pursuant to RUSCC 81(b)(5), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon the court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding. Rule VIII. Service of Papers and Other Notices A. Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the respondent-attorney at such attorney's last known address. If service by registered or certified mail is ineffective, the court shall enter an order as appropriate to effect service. B. Service of any other papers or notices required by this Appendix shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at such attorney's last known address or the respondent-attorney at the address indicated in the most recent pleading or other document filed in the course of any proceeding. Rule IX. Appointment of Counsel The court shall appoint as counsel one or more members of the bar of the court to investigate allegations of misconduct or to prosecute disciplinary proceedings under this Appendix, provided, however, that the respondent-attorney may move to disqualify an attorney so appointed who is or has been engaged as an adversary of the respondent-attorney in any matter. Counsel, once appointed, may not resign unless permission to do so is given by the court. Rule X. Payment of Fees and Costs At the conclusion of any disciplinary investigation or prosecution, if any, under this Appendix, counsel may make application to the court for an order awarding reasonable fees and reimbursing costs expended in the course of such disciplinary investigation or prosecution. Any such order shall be submitted to the clerk who shall pay the amount required thereunder from the funds collected pursuant to Rule XI E. Rule XI. Duties of the Clerk A. Upon being informed that an attorney admitted to practice before the court has been convicted of any crime, the clerk shall determine whether the clerk in which such conviction occurred has forwarded a certificate of such conviction to the court. If a certificate has not been so forwarded, the clerk shall promptly obtain a certificate and file it with the court. B. Upon being informed that an attorney admitted to practice before the court has been subjected to discipline by another court, the clerk shall determine whether a certified copy of the disciplinary judgment or order has been filed with the court, and, if not, the clerk shall promptly obtain a certified copy of the disciplinary judgment or order and file it with the court. C. Whenever it appears that any person disbarred or suspended or censured or disbarred on consent by the court is admitted to practice law in any other jurisdiction or before any other court, the clerk shall, within 10 days of that disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence address of the defendant or respondent-attorney. D. The clerk shall, likewise, notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before the court. E. The clerk shall utilize a portion of the fee for admission required by RUSCC 81(b)(4) to defray the payment of fees and costs under Rule X of this Appendix and any other costs incurred by the administration of this Appendix. Rule XII. Jurisdiction Nothing contained in this Appendix shall be construed to deny to the court such powers as are necessary for the court to maintain control over proceedings conducted before it, such as proceedings for contempt, issuance of public reprimands, or imposition of fines of not more than $1,000.00. ------DocID 37416 Document 1278 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX G -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX G -HEAD- APPENDIX G -MISC1- PROCEDURES BEFORE TRIAL I. GENERAL 1. The judge may modify these procedures as appropriate in the circumstances of the case, or the parties may suggest such modification of these procedures. II. EARLY MEETING OF COUNSEL 2. Within 15 days after the date defendant's answer is served or 15 days after a reply to a counterclaim is served, plaintiff's counsel shall communicate with defense counsel, and the counsel shall confer: a. To initiate preparation of the joint preliminary status report pursuant to 3-4, and b. Unless exempted by 6, to: (1) identify each party's factual and legal contentions; (2) discuss each party's discovery needs and discovery schedule, including providing access to documents that are to be the subject of discovery, e.g., determine what is needed; the objections, if any, to supplying it; and where it is available, with follow-up letters to provide a record. Agreement to informal discovery is encouraged; and (3) discuss settlement of the action. Participating counsel shall be counsel of record and such other attorneys as are necessary so that participating counsel for each party are knowledgeable about the case and the identity of witnesses and location of documents. III. JOINT PRELIMINARY STATUS REPORT 3. No later than 30 days after the early meeting of counsel, the parties shall file with the clerk a Joint Preliminary Status Report, signed by both parties, setting forth answers to the following questions. Separate views may be set forth on any point on which parties cannot agree. a. Does the court have jurisdiction over the action? b. Should the case be consolidated with any other case and the reasons therefor; c. Should trial of liability and damages be bifurcated and the reasons therefor; d. Should further proceedings in this case be deferred pending consideration of another case before this court or any other tribunal and the reasons therefor; e. In cases other than tax refund actions, will a remand or suspension be sought and the reasons therefor and the proposed duration; f. Will additional parties be joined and, if so, a statement describing such parties, their relationship to the case, and the efforts to effect joinder and the schedule proposed to effect joinder; g. Does either party intend to file a motion pursuant to RUSCC 12(b), 12(c) or 56 and, if so, a schedule for the intended filing; h. What are the relevant issues? i. What is the likelihood of settlement? j. Do the parties anticipate proceeding to trial. Does any party or do the parties jointly, request expedited trial scheduling, see 6b, and, if so, the reasons why the case is appropriate therefor. A request for expedited trial scheduling is generally appropriate when the parties anticipate that discovery, if any, can be completed within a 90-day period, the case may be tried within 3 days, no dispositive motion is anticipated, and a bench ruling is sought. The requested place of trial shall be stated. Before such a request is made, the parties shall confer specifically on this subject; k. Is there any other information of which the court should be aware at this time? 4. If discovery is required, the Joint Preliminary Status Report should set forth a proposed discovery plan, see 6b, including a proposed deadline. 5. The Joint Preliminary Status Report shall be deferred indefinitely if on or before the date the Joint Preliminary Status Report is due a dispositive motion addressing all issues is filed. 6. Scheduling Orders. a. In Standard Cases. After the Joint Preliminary Status Report is filed or after a status conference is held after the report is filed, the judge promptly shall enter the scheduling order called for by RUSCC 16(b). If the judge does not accept the parties' proposed discovery deadline, the judge shall set a deadline or take other appropriate action to monitor the progress of discovery until a deadline can be set. Scheduling of the pretrial conference, 9, and submissions due in 11-15 may be scheduled at a later time. b. In Expedited Trial Cases. If the judge grants a request for expedited trial scheduling, a scheduling order shall be entered promptly. The scheduling order shall set a deadline for discovery, the date for the pretrial conference, and the trial date. A date shall be set for trial to commence as soon as practicable. Except by agreement of the parties or leave of court, each party shall be limited to 5 discovery depositions and 30 interrogatories, including subparts. Within 30 days after issuance of the scheduling order, each party shall deliver to the other a list of all witnesses and exhibits described in 10a, b. These lists may be supplemented pursuant to RUSCC 26(e)(1). The meeting of counsel called for by 10 shall be held not later than 7 days before the pretrial conference. The filings required by 12 and 13 shall be filed by the date of the pretrial conference. The requirements of 9, 11 and 14 shall not apply. IV. DISCOVERY 7. Form of Interrogatories, Requests for Admission, Responses. A party shall number interrogatories and requests for admission sequentially without repeating the numbers it has used in any prior set of interrogatories or requests for admission. Each interrogatory and request for admission shall be started at the top of a new page. Answers or objections must be typed by the opposing party on the page containing the interrogatory or request for admission. If additional space is required, the answering party may add pages immediately succeeding the page on which the interrogatory or request for admission is written, denominating the pages by the same number but adding a sequential letter designation, e.g., 10a, 10b, etc. By counsel's signature to the answers and pursuant to RUSCC 11, counsel for the responding party shall certify that counsel has made diligent effort to provide answers to all portions of interrogatories or requests for admission not specifically objected to. 8. Discovery Motions. A motion to compel or protect from discovery shall contain a statement by the movant that the parties have consulted in good faith to resolve the matters in dispute. V. PRETRIAL CONFERENCE 9. Scheduling. Prior to or promptly upon the close of discovery, the judge shall enter a pretrial scheduling order. The judge shall also set the dates by which the memoranda called for by 11-15 are due. The attorneys appearing at the pretrial conference shall be the attorneys who will try the case, are thoroughly familiar with it, and are authorized to act for their principals. 10. Meeting of Counsel. No later than 60 days before the pretrial conference, counsel for the parties shall: a. Exchange all exhibits to be used at trial, unless previously exchanged, except those to be used for impeachment. Failure to list an exhibit or to amend the list to add an exhibit at the earliest possible practicable time, if the existence or relevance of the exhibit did not become apparent until after exchange of the exhibit list, shall result, absent a showing of a compelling reason for the failure, in an exclusion of the exhibit at trial. Each exhibit shall be identified by an exhibit number and description. b. Exchange a final list of names and addresses of witnesses, including expert witnesses and telephone numbers of third-party witnesses to be called at trial, except those to be used for impeachment, unless previously exchanged. Failure of a party to list a witness, or to amend the list to add a witness at the earliest practicable time if the existence or relevance of the witness did not become apparent until after the exchange of the witness list, shall result, absent agreement of the parties or a showing of a compelling reason for the failure, in the exclusion of that witness' testimony at trial. Any witness whose identity has not been previously disclosed shall be subject to discovery. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony. If expert witnesses are to be called, the parties shall exchange a short narrative statement of the qualifications of the expert, if this information has not already been obtained through discovery. If reports of experts to be called at trial have been prepared, and not yet exchanged, they shall be exchanged by this date, but shall not take the place of the narrative statement. The parties shall also confer in order: c. To disclose to opposing counsel the intention to file a motion pursuant to 16 leave to file transcript of deposition for introduction at trial; d. To resolve, if possible, any objections to the admission of oral or documentary evidence; e. To disclose to opposing counsel all contentions as to applicable facts and law, unless previously disclosed; f. To engage in good-faith, diligent efforts to stipulate and agree to facts about which the parties know, or have reason to know, there can be no dispute for the purpose of simplifying the issues at trial; and g. To exhaust all possibilities of settlement. 11. Memorandum of Contentions of Fact and Law. Unless the judge orders the filing of simultaneous memoranda or requires filing of proposed findings of fact, see 11a-b, in addition to the other memoranda called for, no later than 45 days before the pretrial conference, plaintiff shall file a Memorandum of Contentions of Fact and Law containing a summary of plaintiff's basic factual contentions together with any applicable legal authority. The memorandum shall contain a full but concise exposition of plaintiff's theory of the case and a statement in narrative form of what plaintiff expects to prove. The memorandum shall also address all anticipated legal questions, including evidentiary problems, that plaintiff expects may arise during the course of trial. If plaintiff believes bifurcation of issues for trial is appropriate, the memorandum shall contain a request therefor, together with a statement of reasons. No later than 21 days before the pretrial conference, defendant shall file its responsive memorandum with the same form and contents as plaintiff's. a. Plaintiff's Proposed Findings of Fact. The judge may order plaintiff to file proposed findings of fact in lieu of the memorandum of factual contentions. Each proposed finding shall be listed on a separate page. b. Defendant's Proposed Findings of Fact. If the judge orders proposed findings of fact, defendant shall respond to each of plaintiff's proposed findings on the same page. Defendant may propose additional findings of fact, on a separate page, to which plaintiff shall respond on the same page. 12. Witness List. a. Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of witnesses to be called at trial, other than those to be used exclusively for impeachment. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony and the time needed for direct examination. Absent agreement of the parties or a showing of a compelling reason for the failure timely to identify the witness, no witness, expert or otherwise, will be permitted to testify, other than for impeachment, who has not been identified in time to allow the witness' deposition to be taken or the substance of the witness' knowledge ascertained, or, in the case of an expert, to allow the facts relief upon and opinions held by the expert to be obtained by RUSCC 26(b)(3)(A) or deposition. b. Any party intending to present substantive evidence by way of deposition testimony, other than as provided by Federal Rules of Evidence 801(d), shall serve and file a separate motion for leave to file the transcript of this testimony. The motion shall show cause why the deposition testimony should be admitted and identify specifically the portions of the transcript the party intends to use at trial. If the motion is granted, only those portions of the transcript may be filed. 13. Exhibit List. Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of exhibits it expects to offer at trial, other than those to be used exclusively for impeachment. In addition, any party intending to introduce more than 50 document exhibits shall provide as to each document, following its description, a short synopsis of the relevant portion of its contents and a brief statement of the document's significance to issues at trial. For multiple-page documents, reference shall be made to specific page numbers. 14. Stipulations. The judge may direct the parties before or after the pretrial conference to file a stipulation setting forth all matters to which the parties stipulate. 15. Issues of Fact and Law. No later than the date for filing the defendant's Memorandum of Contentions of Fact and Law, the parties shall also file a joint statement setting forth the issues of fact and the issues of law to be resolved by the court. Issues should be set forth in sufficient detail to enable the court to resolve the case in its entirety by addressing each of the issues listed. The statement of issues shall control the admissibility of evidence at trial and evidence will be deemed to be irrelevant unless it pertains to one or more of the issues. 16. Responses. The parties are expected to cooperate in the preparation of the documents specified in 11-15. Any responses to matters raised by the opposing party should therefore be included in each party's initial submission. However, if anything new or unexpected is discovered, it may be addressed in a brief response which must be filed under cover of motion for leave immediately upon learning of it. VII. OTHER MATTERS 17. Post-Trial Briefing. The judge may order the filing of post-trial briefs. Post-trial briefing is not a matter of right. ------DocID 37417 Document 1279 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX H -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX H -HEAD- APPENDIX H -MISC1- MOTIONS 1. Factual Matters. Factual representations, other than those pertaining to procedural aspects of the case which are personally known to the signatory attorney, will be disregarded unless supported by: a. A witness' affidavit or a declaration under penalty of perjury, pursuant to 28 U.S.C. Sec. 1746, attached to the motion or found in the pleadings or elsewhere in the record; b. The transcript of a deposition or of trial testimony; c. The testimony of a witness who appears at the hearing on the motion; d. Any of the other submissions referred to in RUSCC 56(c); or e. Any other evidence that would be admissible at trial. 2. Oral Argument. Oral argument ordinarily shall be heard on all contested motions, other than motions to amend, for enlargement, to shorten time limits, to file documents out of time or in excess of page limits, to reschedule oral arguments, to substitute counsel, or to reconsider matters, as to which one of the parties requests to be heard by so stating in its initial brief. ------DocID 37418 Document 1280 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX I -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX I -HEAD- APPENDIX I -MISC1- IN THE UNITED STATES CLAIMS COURT BILL OF COSTS XXXXXXXXXXXXXX No. XXXXXX vs. THE UNITED STATES Judgment with costs having been entered in the above-entitled action on the XXX day of XXXXXX, 199X, against XXXXXX, the clerk is requested to tax the following as costs: --------------------------------------------------------------------- --------------------------------------------------------------------- Fees of the clerk $XXXXXX Fees of the reporter for all or XXXXXX any part of the trial or hearing transcript necessarily obtained for use in the case Fees for witnesses; for statutory XXXXXX fees, see 28 U.S.C. Sec. 1821 (attach itemized listing) Costs for certification or XXXXXX duplication of papers necessarily obtained for use in case, provide number of copies, total pages and cost per page* Costs incident to taking of XXXXXX depositions (if not of record, then attach statement as to need) Costs pursuant to FRAP 39(e) XXXXXX Other costs (itemize on XXXXXX attachment) Total $XXXXXX ------------------------------- *Allowable duplication costs are restricted to briefs on dispositive matters for a total of 5 copies; additional copies allowable where third parties are present. CERTIFICATION State/District of XXXXXXXX, ss. County of XXXXXXXXXXXX, I certify under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed and that a copy hereof was this day mailed to XXXXXXXXXXXXXX with postage fully prepaid thereon. Executed on XXXXXX (Date) (28 U.S.C. Sec. 1746) XXXXXXXXXXXXXXXXXXX (Signature of Attorney of Record) XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX (Address) ------DocID 37419 Document 1281 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT APPENDIX J -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX J -HEAD- APPENDIX J -MISC1- VACCINE RULES OF THE OFFICE OF SPECIAL MASTERS OF THE UNITED STATES CLAIMS COURT TITLE I. SCOPE OF RULES - COMMENCEMENT OF PROCEEDINGS 1. Scope of Rules. These rules govern all proceedings before the United States Claims Court Office of Special Masters pursuant to the National Vaccine Injury Compensation Program established by 42 U.S.C. Sec. 300aa-10 (West Supp. 1990) (Vaccine Act). These rules are to be cited as the Vaccine Rules. In all matters not specifically provided for by the Vaccine Rules, the special master may regulate the applicable practice, consistent with these rules and with the purpose of the Vaccine Act, to decide cases promptly and efficiently. The RUSCC apply only to the extent referenced. 2. Commencement of Proceedings. (a) Petition. A proceeding for compensation under the Vaccine Act shall be commenced by the filing of a petition, accompanied by the documents required under 42 U.S.C. Sec. 300aa-11(c) and the Vaccine Rules, in the United States Claims Court. Petitioner shall forward an original and 2 copies of the petition, by mail or other delivery, to Clerk, United States Claims Court, 717 Madison Place, N.W., Washington, D.C. 20005. (b) Fee. The petition shall be accompanied by a $120.00 filing fee. (c) Service upon Respondent. (1) Petitioner shall serve one copy of the petition and accompanying documents upon the Secretary of Health and Human Services, by first class or certified mail, c/o Director, Bureau of Health Professionals, 5600 Fishers Lane, Suite 8-05, Rockville, Maryland 20857. An executed certificate of such service shall accompany the petition filed with the clerk. (2) The clerk shall serve one copy of the petition on the Attorney General. (d) Content of the Petition. (1) The petition shall set forth a short and plain statement of the grounds for an award of compensation. The petition shall set forth to whom, when and where the vaccine in question was administered and further shall describe specifically the alleged injury. If an injury within the Vaccine Act's Vaccine Injury Table, 42 U.S.C. Sec. 300aa-14(a), is claimed, the particular injury shall be set forth. The petition shall also contain a specific demand for relief to which petitioner asserts entitlement or a statement that such demand will be deferred pursuant to 42 U.S.C. Sec. 300aa-11(e). (2) Only one petition may be filed with respect to each administration of a vaccine. (e) Documents Required with the Petition. (1) As required by 42 U.S.C. Sec. 300aa-11(c), every petition shall be accompanied by the following: (i) medical records and detailed affidavit(s) supporting all elements of the allegations made in the petition. If petitioner's claim does not rely on medical records alone, but is based in part on the observations or testimony of any persons, the substance of each person's proposed testimony in the form of an affidavit executed by the affiant must accompany the petition. (ii) All available physician and hospital records relating to (1) the vaccination itself; (2) the injury or death, including, if applicable, any autopsy reports or death certificate; (3) any post-vaccination treatment of the injured person, including all in-patient and out-patient records, provider notes, test results and medication records; and, if the person was younger than 5 years old when vaccinated, (4) the mother's pregnancy and delivery and the infant's lifetime, including physicians' and nurses' notes and test results and all well baby visit records, as well as, growth charts, until the date of the vaccination. (iii) If any records required by the rules are not submitted, an affidavit detailing the efforts made to obtain such records and the reasons for their unavailability. (2) If filed on behalf of a deceased person, or if filed by someone other than the injured person or a parent of an injured minor, the petition shall also be accompanied by documents establishing the authority to file the petition in a representative capacity or a statement explaining when such documentation will be available. (3) All documents accompanying the petition shall be assembled into one or more bound volumes or three-ring notebooks. Each bound volume or notebook must contain the caption of the case and a table of contents, and all pages of all documents shall be numbered consecutively. (4) Petitions not accompanied by all the documents required by statute and the Vaccine Rules, or an affidavit explaining why any missing required documents are unavailable, will not be filed by the clerk. TITLE II. PROCEEDINGS BEFORE THE SPECIAL MASTER 3. Role of the Special Master - Generally. (a) Assignment. Once a petition has been filed by the clerk, the case shall be assigned by the chief special master to a special master to conduct proceedings in accordance with the Vaccine Rules. All proceedings prior to the issuance of the special master's decision are to be conducted exclusively by the special master. (b) Duties. The special master shall be responsible for conducting all proceedings, including requiring such evidence as may be appropriate, in order to prepare a decision, including findings of fact and conclusions of law, determining whether an award of compensation should be made under the Vaccine Act and the amount of any such award. The special master shall determine the nature of the proceedings, with the goal of making the proceedings expeditious, flexible, and less adversarial, while at the same time affording each party a full and fair opportunity to present its case and creating a record sufficient to allow review of the special master's decision. (c) Absence; Reassignment. In the absence of the special master to whom a case is assigned, the chief special master may act on behalf of the assigned special master, or designate another special master to act. When necessary, the chief special master may reassign a case to another special master. 4. Respondent's Review and Report. (a) Respondent's Review of Completeness of the Records. Within 30 days of the filing of a petition, respondent shall review the medical and other records to determine whether, in respondent's view, all records necessary to enable respondent to evaluate the merits of the claim have been supplied with the petition. If respondent's representatives considers (FOOTNOTE 1) that relevant records are missing, petitioner's counsel shall immediately be notified. If the parties disagree about the completeness of the records filed or the relevance of requested records, either party may request that the special master resolve the matter. If the special master concludes that records called for by Vaccine Rule 2(e) have not been submitted, the petition may be subject to dismissal, without prejudice, under Vaccine Rule 21(c). (FOOTNOTE 1) So in original. (b) Respondent's Report. Within 90 days after the filing of the petition, respondent shall file a report that shall set forth a full and complete statement of respondent's position as to why an award should or should not be granted. The report shall contain respondent's medical analysis of petitioner's claims. It shall also present any legal arguments that respondent may have in opposition to the petition. General denials are not sufficient. 5. Informal Review and Tentative Findings and Conclusions. The special master shall schedule an off-the-record conference to be held within 30 days of the filing of respondent's report pursuant to Vaccine Rule 4(b). At this conference, after affording the parties an opportunity to address each other's positions, the special master will review the materials submitted, evaluate the respective positions, and orally present tentative findings and conclusions. If necessary, the special master shall schedule a subsequent status conference to be held within 15 days at which petitioner and respondent shall advise whether either party requests further proceedings, including filing of dispositive motions or a hearing, or whether the special master should enter a decision consistent with the tentative findings and conclusions. 6. Status Conferences. The special master shall conduct conferences from time to time in order to expedite the processing of the case. The conferences will be informal in nature and ordinarily will be conducted by telephone conference call. Either party may request a status conference at any time. At such conferences, counsel for both parties will have the opportunity to propose procedures by which to process the case in the least adversarial, most efficient way possible. 7. Discovery. There shall be no discovery as a matter of right. (a) Informal Discovery Preferred. The informal and cooperative exchange of information is the ordinary and preferred practice. (b) Formal Discovery. If a party considers that informal discovery is not sufficient, that party may seek to utilize the discovery procedures provided in RUSCC 26-36 by filing a motion indicating the discovery sought and stating with particularity the reasons therefor, including an explanation why informal techniques have not been sufficient. Such a motion may also be made orally at a status conference. (c) Subpoena. When necessary, the special master upon request by a party may instruct the clerk, upon receipt of a copy of a notice to take a deposition together with proof of service, to issue a subpoena for the taking of a deposition with or without the production of documents. In so doing, the procedures of RUSCC 45 shall apply. 8. Taking of Evidence and Argument; Decision. (a) General. The special master in each case, based on the specific circumstances thereof, shall determine the format for taking evidence and hearing argument. The particular format for each case will be ordered after consultation with the parties. (b) Evidence. In receiving evidence, the special master will not be bound by common law or statutory rules of evidence. The special master will consider all relevant, reliable evidence, governed by principles of fundamental fairness to both parties. Evidence may be taken in the form of documents, affidavits, oral testimony at a hearing in person or via telephone; or even, in appropriate circumstances, video tape. Sworn written testimony may be submitted in lieu of oral testimony. (c) Argument. Argument may be received by telephone conference call or at a hearing or in written submissions. The special master may establish requirements for such filings, e.g., contents or page limitations, as appropriate. (d) Decision Without Evidentiary Hearing. The special master may decide a case on the basis of written filings without an evidentiary hearing. In addition, the special master may decide a case on summary judgment, adopting procedures set forth in RUSCC 56 modified to the needs of the case. (e) Hearing. When necessary, the special master may conduct an evidentiary hearing. The special master will determine the format for such a hearing. The special master may permit testimony at such a hearing via telephone. The special master may permit direct examination of a witness or may permit or require that the direct testimony be submitted in written form. The special master may question a witness and may, on request, permit questioning by opposing counsel. The clerk, on request, may issue a subpoena requiring the attendance of a witness at such hearing. 9. Suspension of Proceedings. (a) General. On the motion of a party, for good cause shown, the special master may suspend proceedings on the petition. The special master shall grant one such suspension for 30 days on the motion of either party. Further motions by either party for the suspension may be granted, totalling not more than 150 additional days, in the special master's discretion. (b) Effect. Such periods of suspension shall be excluded for purposes of the time limitations of 42 U.S.C. Sec. 300aa-12(d)(3) and Vaccine Rules 4(b) and 10. (c) Transition Rule. All periods of suspension prior to December 20, 1989, shall be excluded pursuant to Vaccine Rule 9(b). However, if such periods of suspension total more than 90 days in a given case, in computing the 180-day limit of Vaccine Rule 9(a), only 90 of such days shall be counted. 10. Special Master's Decision. (a) General. The special master shall issue a final decision determining whether or not an award of compensation shall be made, and, if so, the amount thereof. This decision shall be filed within 240 days of the date on which the petition was filed, exclusive of periods of suspension pursuant to Vaccine Rule 9. (b) Certain Retrospective Cases. In cases in which the vaccination in question occurred prior to October 1, 1988, and in which the vaccine recipient is not deceased, the special master shall defer ruling on the limited issue of the amount of any compensation for lost earnings and pain and suffering, 42 U.S.C. Sec. 300aa-15(a)(3) and (4), and combine that ruling with the decision under Vaccine Rule 13. TITLE III. JUDGMENT AND FURTHER PROCEEDINGS 11. Judgment. (a) In Absence of Motion for Review. In the absence of the filing of a motion for review within 30 days of the filing of the special master's decision, or if prior to the expiration of such period each party files a notice stating that it will not seek such review, the clerk shall forthwith enter judgment in accordance with the special master's decision. (b) Stipulation for Judgment. Any stipulation for a money judgment shall be signed by authorized representatives of the Secretary of Health and Human Services and the Attorney General. 12. Election. (a) General. When no motion for review by the Claims Court of a decision pursuant to Vaccine Rule 10 is filed by either party, see RUSCC Appendix J, Review of Decision of Special Masters rendered pursuant to the National Vaccine Injury Compensation Program, petitioner shall, within 90 days after the entry of judgment, file with the clerk an election in writing either (1) to accept the judgment or (2) to file a civil action for damages for the alleged injury or death. Upon failure to file an election within the time prescribed, petitioner shall be deemed to have filed an election to accept the judgment. (b) Declining Award. An election to decline an award of compensation may be accompanied by a motion for the limited compensation provided by 42 U.S.C. Sec. 300aa-15(f)(2). If such a motion has not been filed by the time the election is filed, petitioner will be deemed to have waived that limited compensation. Such motion shall be forwarded to the special master for a decision thereon. The decision of the special master on the motion shall be considered a separate decision for purposes of Vaccine Rules 11 and 18. 13. Attorneys' Fees and Costs. Any request for attorneys' fees and costs pursuant to 42 U.S.C. Sec. 300aa-15(e) shall be filed no later than 21 days following the filing of an election pursuant to Vaccine Rule 12. The clerk shall forward the fee request to the special master to whom the case was assigned for consideration and decision. The decision of the special master on the fee request shall be considered a separate decision for purposes of Vaccine Rules 11 and 18. TITLE IV. GENERAL PROVISIONS 14. Attorneys. (a) Attorneys Eligible to Practice. Only attorneys who are members of the bar of the United States Claims Court and who comply with the Vaccine Rules may enter an appearance, file pleadings, and practice before the Office of Special Masters. The clerk's office will not accept for filing any pleading, motion, or other paper that is not signed by the attorney of record in the case or by member of this bar authorized to sign the attorney of record's name on the attorney of record's behalf. For admission to the bar of the court, RUSCC 81(b) shall apply. (b) Attorneys of Record. There shall be but one attorney of record for a party in any case at any one time, and such attorney of record shall be an individual, and not a firm, who has been admitted to practice before the Claims Court. Any other attorneys assisting the attorney of record shall be designated as of counsel. The attorney of record shall include on all filings the attorney's name, address, and telephone number. The attorney of record for each party shall promptly file with the clerk a notice of any change in address. (c) Change of Attorneys. RUSCC 81(d) shall apply. (d) Pro Se. An individual may represent himself or herself or a member of the individual's immediate family as a party before the Office of Special Masters. Any other party, however, must be represented by an attorney who is admitted to practice before the Claims Court. The terms counsel or attorney in the Vaccine Rules shall include pro se litigants. 15. Third Parties. No person may intervene in a vaccine injury compensation proceeding. However, the special master shall afford all interested persons an opportunity to submit relevant written information. Such information may be submitted within 60 days of publication of notice of the petition in the Federal Register, or later with leave of the special master. 16. Caption of All Filings. The petition and other filings before the Office of Special Masters shall be captioned with the appropriate title, as follows: In The United States Claims Court Office of Special Masters --------------------------------------------------------------------- --------------------------------------------------------------------- ---------------------- ) ) , ) Petitioner(s), ) v. ) No. XXV ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) ) Respondent ) ) ---------------------- ------------------------------- (TITLE OF FILING) XXXXXXXX 17. Filing and Service of Papers After the Petition. (a) Filing with the Clerk Defined. All pleadings and other papers required to be filed with the clerk by the Vaccine Rules or by order of the special master shall be forwarded to the clerk of the court at the address noted in Vaccine Rule 2. A document is filed with the Office of Special Masters when actually received and marked filed by the clerk, not when mailed. All matters shall be brought to the attention of the Office of Special Masters through filings with the clerk rather than by correspondence. (b) Service. A copy of every document filed by any party with the clerk shall be served on the opposing party's attorney or the opposing party pro se, if no appearance of attorney has been entered. A certificate of service showing date of service shall be appended to the original and copies thereof. (c) Date. Each filing shall bear on the signature page the date on which it is signed. (d) Number of Copies. The parties shall file an original and 2 copies of each paper required by the Vaccine Rules to be filed with the clerk. 18. Availability of Filings. (a) General. All filings with the clerk pursuant to the Vaccine Rules are to be made available only to the special master, judge, and parties, with the exception of certain court-produced documents as set forth in part (b) of this rule. (b) Decisions and Certain Substantive Orders. All decisions of special masters, and any other substantive orders of a special master that the special master designates to be of precedential value, will be made available to the public, unless the document contains (1) trade secret or commercial or financial information that is privileged and confidential or (2) medical or similar information, the disclosure of which would constitute a clearly unwarranted invasion of privacy. When such a decision or designated substantive order is filed with the clerk, the petitioner will be afforded 14 days to identify and move to delete such information prior to disclosure of the document. If, upon review, the special master agrees that the identified material fits the above description, such material shall be deleted for the purpose of public access. 19. Time. (a) Computation. In computing any period of time, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a federal holiday or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the clerk's office inaccessible, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. Service by mail is complete upon mailing, but filing is not. (b) Enlargement. Motions for enlargement of time may be granted for good cause shown. A motion shall set forth the reason or reasons upon which the motion is based. Such motion must contain a representation that the moving party has discussed the motion with opposing counsel and a statement whether an opposition will be filed or, if opposing counsel cannot be consulted, an explanation of the efforts made to do so. (c) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act within a prescribed period after the service of a paper, and the service is made by mail, 3 calendar days shall be added to the prescribed period, unless the special master orders otherwise. 20. Motions. (a) Motions. A motion to the special master, unless made orally, shall be made in writing, shall state with particularity the grounds therefor, shall set forth the relief or order sought, and shall be filed with the clerk. Any motion, objection, or response may be accompanied by a memorandum, and, if necessary, by supporting affidavits. Any motion may be accompanied by a proposed order. (b) Responses and Replies. Unless otherwise provided by the special master, any response or objection to a written motion shall be filed within 14 days after service of the motion, and any reply shall be filed within 7 days after service of the response or objection. (c) Oral Argument. Oral argument on a motion may be scheduled by the special master. A party desiring oral argument on a motion shall so request in the motion or response. 21. Dismissal of Petitions. (a) Voluntary Dismissal; Effect Thereof. A petition may be dismissed by petitioner without order of the special master (1) by filing a notice of dismissal at any time before service of respondent's report or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the proceeding. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal may, in the discretion of the special master, be deemed to operate as an adjudication upon the merits when filed by a petitioner who has previously dismissed the same claim in the Office of Special Masters of the Claims Court or in the court itself. (b) Failure To Prosecute or Participate. If petitioner fails to prosecute, the petition may be dismissed pursuant to Vaccine Rule 21(c). No judgment shall be entered against respondent despite any failure of participation unless petitioner introduces evidence establishing a right to compensation. (c) Involuntary Dismissal. For failure of petitioner to prosecute or to comply with the Vaccine Rules or any order of the special master, the special master may dismiss a petition or any claim therein. REVIEW OF DECISIONS OF SPECIAL MASTERS RENDERED PURSUANT TO THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM I. GENERAL The following procedures apply to motions filed with the United States Claims Court seeking review of decisions from the Office of Special Masters of the United States Claims Court in actions filed pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. Sec. 300aa-10 (West Supp. 1990). These rules will be issued as Appendix J to the RUSCC. The RUSCC apply except as provided hereinafter. II. OBTAINING REVIEW OF A DECISION BY A SPECIAL MASTER 1. Motion for Review and Objections. To obtain review of a special master's decision, within 30 days after the date on which the decision is filed, a party must file with the clerk a motion for review of the decision. No extensions of time under this rule will be permitted, and the failure of a party to timely file such a motion shall constitute a waiver of the right to obtain review. 2. Memorandum of Objections. The motion for review must be accompanied by a memorandum of numbered objections to the decision. This memorandum must fully and specifically state and support each objection to the decision. The memorandum shall cite specifically to the record created by the special master, e.g., to specific page numbers of the transcript, exhibits, etc., and should also fully set forth any legal argument the party desires to present to the reviewing judge. The memorandum shall be limited to 20 pages and must conform to the provisions of RUSCC 82. 3. Response. a. If a motion for review is filed, the other party may file a response thereto within 30 days of the filing of the motion. No extensions of time under this rule will be permitted, and the failure of a party timely to file such a response shall constitute a waiver of the right to respond. The response shall be in memorandum form and shall fully respond to each numbered objection. The memorandum shall cite specifically to the record created by the special master, e.g., to specific page numbers of the transcript, exhibits, etc., and should also fully set forth any legal argument the party desires to present to the reviewing judge. The memorandum shall be limited to 20 pages and must conform to the provisions of RUSCC 82. b. If both parties file motions for review, each party may file a response to the other party's motion. III. JUDGE'S REVIEW 4. Assignment. When a motion for review is filed with the clerk, the case will be assigned to a Claims Court judge to conduct the review. 5. Review. The assigned judge shall undertake a review of the objections raised and may thereafter: a. uphold the findings of fact and conclusions of law and sustain the special master's decision; b. set aside any finding of fact or conclusion of law found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue the judge's own decision; or c. remand the case to the special master for further action in accordance with the judge's direction. 6. Time for Review. The judge shall complete the review within 120 days of the last date for the filing of a response under 3, excluding any days the case is before a special master on remand. If the judge remands the case to a special master, the total period for any remands shall not exceed 90 days. 7. Withdrawal of Petition. If the judge fails to direct entry of judgment within 420 days, excluding any periods of suspension pursuant to Vaccine Rule 9 or remands pursuant to 5c, after the date on which a petition was filed, the petitioner may file a notice withdrawing the petition. Such a notice shall be filed within 90 days after the expiration of the 420-day period. IV. JUDGMENT AND FURTHER PROCEEDINGS 8. Judgment. a. After Review. After review and decision by a judge, the clerk shall forthwith enter judgment in accordance with the judge's decision. b. Stipulation for Judgment. Any stipulation for a money judgment shall be signed by authorized representatives of the Secretary of Health and Human Services and the Attorney General. 9. Reconsideration. If a party seeks reconsideration of a judge's decision, RUSCC 59 shall apply. 10. Notice of Appeal. Review of a Claims Court judgment by the United States Court of Appeals for the Federal Circuit may be obtained by filing with the clerk of the Federal Circuit a petition for review within 60 days of the date of the entry of judgment. 11. Election. a. General. After judgment on the merits is entered pursuant to 8a, the petitioner shall within 90 days file with the clerk an election in writing either (1) to accept the judgment or (2) to file a civil action for damages for the alleged injury or death. Upon failure to file an election within the time prescribed, the petitioner shall be deemed to have filed an election to accept judgment. b. Declining Award. An election to decline an award of compensation may be accompanied by a motion for the limited compensation provided by 42 U.S.C. Sec. 300aa-15(f)(2). If such a motion has not been filed by the time the election is filed, the petitioner will be deemed to have waived that limited compensation. Such motion shall be forwarded to the special master for a decision thereon. The decision of the special master on the motion shall be considered a separate decision for purposes of 1, 6, 8a and 13, except that, upon review of such a decision, the time limitations of 6-7 shall not apply, and memoranda filed pursuant to 2-3 shall be limited to 20 pages. c. When Appeal Is Taken. If a petition for review is taken to the Federal Circuit, the election is to be made within 90 days of the issuance of the appellate court's mandate or of a subsequent judgment of the Claims Court if the appellate court should order a remand. 12. Attorneys' Fees and Costs. Any request for attorneys' fees and costs pursuant to 42 U.S.C. Sec. 300aa-15(e) shall be filed no later than 21 days following the filing of an election pursuant to 11a. The clerk shall forward the fee request to the special master to whom the case was assigned for consideration and decision. The decision of the special master on the fee request shall be considered a separate decision for purposes of 1, 6, 8a and 13, except that upon review of a fee decision, the time limitations of 6-7 shall not apply, and memoranda filed pursuant to 2-3 shall be limited to 15 pages. 13. Availability of Filings. a. General. All filings with the clerk pursuant to these rules are to be made available only to the court and parties with the exception of certain court-produced documents as set forth in b. b. Decisions and Certain Substantive Orders. All decisions of the court and any other substantive orders which the court designates to be of precedential value, will be made available to the public unless the document contains (1) trade secret or commercial or financial information that is privileged and confidential or (2) medical or similar information, the disclosure of which would constitute a clearly unwarranted invasion of privacy. When such a decision or designated substantive order is filed with the clerk, the petitioner will be afforded 14 days to identify and move to delete such information prior to disclosure of the document. If, upon review, the court agrees that the identified material fits the above description, such material shall be deleted from public access. *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37420 Document 1282 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT App. K -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX J -HEAD- App. K. In the U.S. Claims Court - Cover Sheet *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37421 Document 1283 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT App. K -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX J -HEAD- App. K. Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37422 Document 1284 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CLAIMS COURT App. K -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES CLAIMS COURT APPENDIX J -HEAD- App. K. Page 3 ------DocID 37423 Document 1285 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE -HEAD- RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE -MISC1- (EFFECTIVE NOVEMBER 1, 1980, AS AMENDED TO JANUARY 2, 1991) TITLE I - SCOPE OF RULES - ONE FORM OF ACTION Rule 1. Scope of Rules. 2. One Form of Action. TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF SUMMONS, PLEADINGS, MOTIONS AND ORDERS 3. Commencement of Action. (a) Commencement. (b) Filing Fee - Information Statement. (c) Complaint Fee. (d) Amendment of Summons. (e) Notice to Interested Parties. (f) Precedence of Action. 4. Service of Summons and Complaint. (a) Summons - Service by the Clerk. (b) Summons and Complaint - Service by Plaintiff. (c) Service. (d) Summons and Complaint - Person To Be Served. (e) Return. (f) Amendment of Proof of Service. (g) Alternative Provisions for Service in a Foreign Country. (h) Summons and Complaint - Time Limit for Service. 5. Service and Filing of Pleadings and Other Papers. (a) Service - When Required. (b) Service - How Made. (c) Service - Numerous Defendants. (d) Filing - When Required. (e) Filing - How Made. (f) Filing of Summons and Complaint by Mail. (g) Proof of Service. 6. Time. (a) Computation. (b) Extension. (c) Additional Time After Service by Mail. TITLE III - PLEADINGS AND MOTIONS 7. Pleadings Allowed - Consultation - Oral Argument - Response Time - Show Cause Order - Form of Motions. (a) Pleadings. (b) Motions - Consultation. (c) Oral Argument. (d) Time to Respond. (e) Order to Show Cause. (f) Form of Motions and Other Papers. (g) Dispositive Motions Defined. 8. General Rules of Pleading. (a) Claims for Relief. (b) New Grounds. (c) Defenses - Form of Denials. (d) Affirmative Defenses. (e) Effect of Failure to Deny. (f) Pleading To Be Concise and Direct - Consistency. (g) Construction of Pleadings. 9. Pleading Special Matters. (a) Capacity. (b) Fraud, Mistake, Condition of the Mind. (c) Conditions Precedent. (d) Official Document or Act. (e) Judgment. (f) Time and Place. (g) Special Damage. 10. Form of Pleadings. (a) Caption - Names of Parties. (b) Paragraphs - Separate Statements. (c) Adoption by Reference - Exhibits. 11. Signing of Pleadings, Motions or Other Papers - Sanctions. 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on the Pleadings. (a) When Presented. (b) How Presented. (c) Motion for Judgment on the Pleadings. (d) Preliminary Hearings. (e) Motion for More Definite Statement. (f) Motion To Strike. (g) Consolidation of Defenses in Motion. (h) Waiver or Preservation of Certain Defenses. 13. Counterclaim and Cross-Claim. (a) Counterclaims. (b) Counterclaim Exceeding Opposing Claim. (c) Counterclaim Against the United States. (d) Counterclaim Maturing or Acquired After Pleading. (e) Omitted Counterclaim. (f) Cross-Claim Against Co-Party. (g) Joinder of Additional Parties. (h) Separate Trials - Separate Judgments. 14. Third-Party Practice. (a) When Defendant May Bring in Third Party. (b) When Plaintiff May Bring in Third Party. 15. Amended and Supplemental Pleadings. (a) Amendments. (b) Amendments To Conform to the Evidence. (c) Relation Back of Amendments. (d) Supplemental Pleadings. 16. Postassignment Conferences - Scheduling - Management. (a) Postassignment Conferences - Objectives. (b) Scheduling and Planning. (c) Subjects to be Discussed at Postassignment Conferences. (d) Final Postassignment Conference. (e) Orders. (f) Sanctions. TITLE IV - PARTIES 17. Parties Plaintiff and Defendant - Capacity. (a) Real Party in Interest. (b) Capacity To Sue or Be Sued. (c) Infants or Incompetent Persons. 18. Joinder of Claims and Remedies. (a) Joinder of Claims. (b) Joinder of Remedies. 19. Joinder of Persons Needed for Just Adjudication. (a) Persons To Be Joined if Feasible. (b) Determination by Court Whenever Joinder Not Feasible. (c) Pleading Reasons for Nonjoinder. (d) Exception of Class Actions. 20. Permissive Joinder of Parties. (a) Permissive Joinder. (b) Separate Trials. 21. Misjoinder and Nonjoinder of Parties. 22. Reserved. 23. Class Actions. (a) Prerequisites to a Class Action. (b) Class Actions Maintainable. (c) Determination by Order Whether Class Action To Be Maintained - Notice - Judgment - Actions Conducted Partially as Class Actions. (d) Orders in Conduct of Actions. (e) Dismissal or Compromise. 23.1. Actions Relating to Unincorporated Associations. 24. Intervention. (a) Intervention of Right. (b) Permissive Intervention. (c) Procedure. 25. Substitution of Parties. (a) Death. (b) Incompetency. (c) Transfer of Interest. (d) Public Officers - Death or Separation From Office. TITLE V - DEPOSITIONS AND DISCOVERY 26. General Provisions Governing Discovery. (a) Discovery Methods. (b) Discovery Scope and Limits. (c) Protective Orders. (d) Sequence and Timing of Discovery. (e) Supplementation of Responses. (f) Discovery Conference. (g) Signing of Discovery Requests, Responses, and Objections. (h) Costs. 27. Depositions Before Action or Pending Appeal. (a) Before Action. (b) Pending Appeal. (c) Perpetuation by Action. 28. Persons Before Whom Depositions May Be Taken - Commissions and Letters Rogatory. (a) Within the United States. (b) In Foreign Countries. (c) Commissions and Letters Rogatory - How Issued - When Issued - Interrogatories - Objections to Interrogatories. (d) Commissions and Letters Rogatory - To Whom Issued - Taking of Testimony - Use of Testimony. (e) Return, Notice, Filing of Deposition. (f) Disqualification for Interest. 29. Stipulations Regarding Discovery Procedure. 30. Depositions Upon Oral Examination. (a) When Depositions May Be Taken. (b) Notice of Examination - General Requirements - Special Notice - Nonstenographic Recording - Production of Documents and Things - Deposition of Organization - Deposition by Telephone. (c) Examination and Cross-Examination - Record of Examination - Oath - Objections. (d) Motion To Terminate or Limit Examination. (e) Submission to Witness - Changes - Signing. (f) Certification and Filing by Officer - Exhibits - Copies - Notice of Filing. (g) Failure to Attend or to Serve Subpoena - Expenses. 31. Deposition Upon Written Questions. (a) Serving Questions - Notice. (b) Officer To Take Responses and Prepare Record. (c) Notice of Filing. 32. Use of Depositions in Court Proceedings. (a) Use of Depositions. (b) Objections to Admissibility. (c) Effect of Errors and Irregularities in Depositions. 33. Interrogatories to Parties. (a) Availability - Procedures for Use. (b) Scope - Use at Trial. (c) Option To Produce Business Records. 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes. (a) Scope. (b) Procedure. 35. Physical and Mental Examination of Persons. (a) Order for Examination. (b) Report of Examining Physician. 36. Requests for Admission. (a) Request for Admission. (b) Effect of Admission. 37. Failure To Make or Cooperate in Discovery - Sanctions. (a) Motion for Order Compelling Discovery. (b) Failure To Comply With Order. (c) Expenses on Failure to Admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. (e) Subpoena of Person in Foreign Country. (f) Failure to Participate in the Framing of a Discovery Plan. TITLE VI - TRIALS 38. Jury Trial of Right. (a) Right Preserved. (b) Demand. (c) Demand Specification of Issues. (d) Waiver. 39. Trial by Jury or by the Court. (a) By Jury. (b) By the Court. (c) Advisory Jury and Trial by Consent. 40. Request for Trial. (a) Request. (b) Designation. (c) Premarking Exhibits. 41. Dismissal of Actions. (a) Voluntary Dismissal - Effect Thereof. (b) Involuntary Dismissal - Effect Thereof. (c) Insufficiency of Evidence. (d) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. (e) Costs of Previously Dismissed Action. 42. Consolidation - Separate Trials. (a) Consolidation. (b) Separate Trials. 43. Taking of Testimony. (a) Form. (b) Affirmation in Lieu of Oath. (c) Evidence on Motions. (d) Interpreters. (e) Documents Specially Admissible. 44. Proof of Official Record. (a) Authentication. (b) Lack of Record. (c) Other Proof. 44.1. Determination of Foreign Law. 45. Subpoena. (a) For Attendance of Witnesses - Form - Issuance. (b) For Production of Documentary Evidence. (c) Service. (d) Subpoena for Taking Depositions - Place of Examination. (e) Subpoena for a Hearing or Trial. (f) Contempt. 46. Exceptions Unnecessary. 47. Jurors. (a) Numbers of Jurors. (b) Examination of Jurors. (c) Alternate Jurors. 48. Stipulation as to Juries - Majority Verdict. 49. Special Verdicts and Interrogatories. (a) Special Verdicts. (b) General Verdict Accompanied by Answer to Interrogatories. 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict. (a) Motion for Directed Verdict - When Made - Effect. (b) Motion for Judgment Notwithstanding the Verdict. (c) Motion for Judgment Notwithstanding the Verdict - Conditional Rulings on Grant of Motion. (d) Motion for Judgment Notwithstanding the Verdict - Denial of Motion. 51. Instructions to Jury - Objection. 52. Findings by the Court. (a) Effect. (b) Amendment. 53. Masters. (a) Appointment and Compensation. (b) Reference. (c) Powers. (d) Proceedings. (e) Report. TITLE VII - JUDGMENT 54. Judgments. (a) Definition - Form. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. (c) Demand for Judgment. 55. Default. (a) Entry. (b) Judgment. (c) Setting Aside Default. (d) Plaintiffs, Counterclaimants, Cross-Claimants. (e) Judgment Against the United States. 56. Summary Judgment. (a) For Claimant. (b) For Defending Party. (c) When Leave Is Required. (d) Motion and Proceedings Thereon. (e) Case Not Fully Adjudicated on Motion. (f) Form of Affidavits - Further Testimony - Defense Required. (g) When Affidavits Are Unavailable. (h) Affidavits Made in Bad Faith. (i) Annexation of Statement. 56.1. Judgment Upon an Agency Record. (a) Motion for Judgment. (b) Cross-Motions. (c) Briefs. (d) Time to Respond. (e) Hearing. (f) Partial Judgment. 57. Declaratory Judgments. 58. Entry of Judgments, Decrees or Final Orders. 58.1. Stipulated Judgment on Agreed Statement of Facts - General Requirements. 59. New Trials - Rehearings - Amendment of Judgments. (a) Grounds. (b) Time for Motion. (c) Time for Serving Affidavits. (d) On Initiative of Court. (e) Motion To Alter or Amend a Judgment. 60. Relief From Judgment or Order. (a) Clerical Mistakes. (b) Mistakes, Inadvertence, Excusable Neglect - Newly Discovered Evidence - Fraud, Etc. 61. Harmless Error. 62. Stay of Proceedings To Enforce a Judgment. (a) Automatic Stay - Exceptions - Injunctions. (b) Stay on Motion for New Trial or Rehearing, or for Judgment. (c) Injunction Pending Appeal. (d) Stay Upon Appeal. (e) Stay in Favor of the United States or Agency Thereof. (f) Stay According to State Law. (g) Stay of Judgment as to Multiple Claims or Multiple Parties. TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS 63. Contempt. 64. Seizure of Person or Property. 65. Injunctions. (a) Preliminary Injunction. (b) Temporary Restraining Order - Notice - Hearing - Duration. (c) Security. (d) Form and Scope of Injunction or Restraining Order. 65.1. Security - Proceedings Against Sureties. 66. Receivers Appointed by Federal Courts. 67. Deposit in Court. 67.1. Deposit in Court Pursuant to Rule 67. (a) Order for Deposit - Interest Bearing Account. (b) Orders Directing Investment of Funds by Clerk. 68. Attorney's Fees and Expenses. (a) Time for Filing. (b) Content of Application. (c) Response and Reply. 69. Execution. (a) In General. (b) Against Certain Public Officers. TITLE IX - FILING OF OFFICIAL DOCUMENTS 70. Documents in an Action Described in 28 U.S.C. 1581(a) or (b). 71. Documents in an Action Described in 28 U.S.C. 1581(c) or (f). (a) Actions Described in 28 U.S.C. 1581(c). (b) Alternative Procedure in an Action Described in 28 U.S.C. 1581(c). (c) Confidential or Privileged Information in an Action Described in 28 U.S.C. 1581(c). (d) Documents in an Action Described in 28 U.S.C. 1581(f). (e) Documents Filed - Copies. (f) Filing of the Record With the Clerk of the Court - What Constitutes. 72. Documents in All Other Actions Based Upon the Agency Record. (a) Documents Furnished in All Other Actions Based Upon the Agency Record. (b) Stipulations. (c) Documents Filed - Copies. 73. Time for Filing Documents - Notice of Filing. (a) Time. (b) Notice. TITLE X - ATTORNEYS 74. Admission to Practice. (a) Qualifications. (b) Procedure. (c) Admission of Foreign Attorneys. (d) Pro Hac Vice Applications. (e) Disbarment or Other Disciplinary Action. 75. Practice - Appearance - Substitution of Attorneys - Withdrawal of Attorney - Notification of Changes. (a) Practice. (b) Appearances. (c) Substitution of Attorneys. (d) Withdrawal of Attorney. (e) Notification of Changes. 76. Amicus Curiae. TITLE XI - THE COURT AND CLERK 77. Sessions of the Court. (a) Court Always Open. (b) Trials and Proceedings - Orders in Chambers. (c) Place of Trials or Hearings. (d) Assignment and Reassignment of Actions. (e) Judge and Court - Defined. 77.1. Judicial Conference. (a) Purpose. (b) Composition. (c) Registration Fee. 78. Motion Part. (a) Motion Part - Establishment. (b) Motion Part - Referral. (c) Motion Part - Emergency Matters. 79. Books and Records Kept by the Clerk and Entries Therein. (a) Civil Docket. (b) Judgments and Orders. (c) Notice of Orders or Judgments. 80. Papers, Exhibits and Other Material. (a) Custody and Control. (b) Inspection. (c) Withdrawal. (d) Return and Removal. (e) Photostatic Copies. (f) Reporting of Proceedings. (g) Transcript of Proceedings. (h) Fees for Transcripts. 81. Papers Filed - Conformity - Form, Size, Copies. (a) Conformity Required. (b) Means of Production. (c) Caption and Signing. (d) Numbering of Pages. (e) Designation of Originals. (f) Pleadings and Other Papers. (g) Status of Action. (h) Confidential Information. (i) Briefs - Trial and Pretrial Memoranda. (j) Content - Moving Party's Brief. (k) Content - Respondent's Brief. (l) Content - Reply Brief. (m) General. 82. Clerk's Office and Orders by the Clerk. (a) Business Hours and Address. (b) Motions, Orders and Judgments. (c) Clerk - Definition. (d) Filing of Papers. TITLE XII - COURT CALENDARS 83. Reserve Calendar. (a) Reserve Calendar. (b) Removal. (c) Dismissal for Lack of Prosecution. (d) Notice. 84. Suspension Calendar. (a) Suspension Calendar. (b) Test Case Defined. (c) Suspension Criteria. (d) Motion for Suspension. (e) Time. (f) Effect of Suspension. (g) Removal From Suspension. 85. Suspension Disposition Calendar. (a) Suspension Disposition Calendar. (b) Time - Notice. (c) Removal. (d) Dismissal for Lack of Prosecution. 86. Joined Issue Calendar. (a) Joined Issue Calendar. (b) Dismissal. (c) Notice. 87. Forms. 88. Title. 89. Effective Date. (a) Effective Date of Original Rules. (b) Effective Date of Amendments. (c) Effective Date of Amendment. (d) Effective Date of Amendments. (e) Effective Date of Amendments. (f) Effective Date of Amendments. (g) Effective Date of Amendments. (h) Effective Date of Amendments. (i) Effective Date of Amendments. (j) Effective Date of Amendments. APPENDIX OF FORMS ------DocID 37424 Document 1286 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE I -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE I -HEAD- TITLE I - SCOPE OF RULES - ONE FORM OF ACTION ------DocID 37425 Document 1287 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE I -HEAD- Rule 1. Scope of Rules -STATUTE- These rules govern the procedure in the United States Court of International Trade. They shall be construed to secure the just, speedy, and inexpensive determination of every action. When a procedural question arises which is not covered by these rules, the court may prescribe the procedure to be followed in any manner not inconsistent with these rules. The court may refer for guidance to the rules of other courts. The rules shall not be construed to extend or limit the jurisdiction of the court. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37426 Document 1288 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE I -HEAD- Rule 2. One Form of Action -STATUTE- There shall be one form of action to be known as a 'civil action.' (FOOTNOTE 1) (FOOTNOTE 1) Designation of Certain Pre-October 1, 1970 Actions. The following designations shall apply to actions arising prior to October 1, 1970: (1) Appeal for Reappraisement: An action arising pursuant to section 501 or 516(a) of the Tariff Act of 1930 (19 U.S.C. 1501 or 1516), as effective prior to October 1, 1970, and forwarded to the court pursuant to section 501 or 516(c) of said Act, shall be known as an appeal for reappraisement. (2) Protest: An action arising pursuant to section 514 or 516(b) of the Tariff Act of 1930 (19 U.S.C. 1514 or 1516), as effective prior to October 1, 1970, and forwarded to the court pursuant to section 515 or 516(c) of that Act (19 U.S.C. 1515 or 1516) shall be known as a protest. ------DocID 37427 Document 1289 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE II -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE II -HEAD- TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF SUMMONS, PLEADINGS, MOTIONS AND ORDERS ------DocID 37428 Document 1290 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE II -HEAD- Rule 3. Commencement of Action -STATUTE- (a) Commencement. A civil action is commenced by filing concurrently with the clerk of the court a summons and complaint except that the following civil actions are commenced by filing a summons only: (1) An action described in 28 U.S.C. Sec. 1581(a) or (b). (2) An action described in 28 U.S.C. Sec. 1581(c) to contest a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930. (FOOTNOTE 1) (FOOTNOTE 1) PRACTICE COMMENT: As provided in Section 516A(a)(2) of the Tariff Act of 1930, a complaint shall be filed within 30 days after the filing of the summons. See Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986). (b) Filing Fee. When an action is commenced, a $120 filing fee shall be paid to the clerk of the court, except that a $25 filing fee shall be paid when the action is one described in 28 U.S.C. Sec. 1581(d)(1). (c) Information Statement. When an action is commenced, the party commencing the action shall file the original and one copy of a completed Information Statement on the form shown in Form 5 in the Appendix of Forms. (d) Amendment of Summons. The court may allow a summons to be amended at any time, in its discretion and upon such terms as it deems just, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the amendment is allowed. (e) Notice to Interested Parties. In an action described in 28 U.S.C. Sec. 1581(c), the plaintiff, as provided in section 516A(d) of the Tariff Act of 1930, shall notify every interested party who was a party to the administrative proceeding of the commencement of the action, by mailing a copy of the summons at the time the action is commenced, or promptly thereafter, by certified or registered mail, return receipt requested, to each such party at the address last known in the administrative proceeding. (f) Precedence of Action. Unless the court, upon motion for good cause or upon its own initiative, determines otherwise in a particular action, the following actions shall be given precedence, in the following order, over other actions pending before the court, and expedited in every way: (1) An action seeking temporary or preliminary injunctive relief; (2) An action involving the exclusion of perishable merchandise or the redelivery of such merchandise; (3) An action described in 28 U.S.C. Sec. 1581(c) to contest a determination under section 516A of the Tariff Act of 1930; (4) An action described in 28 U.S.C. Sec. 1581(a) to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930, involving the exclusion or redelivery of merchandise; (5) An action described in 28 U.S.C. Sec. 1581(b) to contest a decision of the Secretary of the Treasury under section 516 of the Tariff Act of 1930. -SOURCE- (As amended July 21, 1986, eff. Oct. 1, 1986; Dec. 3, 1986, eff. Mar. 1, 1987.) -MISC1- PRACTICE COMMENT For the appropriate summons form and number of copies to be filed, refer to Forms 1 to 4 of the Appendix of Forms. Information Statement forms, as shown in Form 5, are available upon request from the office of the clerk. As prescribed by Rule 5(e), a summons or a summons and complaint may be filed by delivery or by mailing. The filing is completed when received, except that when the method of mailing prescribed by Rule 5(g) is used, the summons or summons and complaint are deemed filed as of the date of mailing. To provide information to assist a judge in determining whether there is reason for disqualification upon the grounds of a financial interest, under 28 U.S.C. Sec. 455, a completed 'Disclosure Statement' form, available upon request from the office of the clerk, must be filed by certain corporations, trade associations, and others appearing as parties, intervenors, or amicus curiae. A copy of the 'Disclosure Statement' form is shown in Form 13 of the Appendix of Forms. Internal inconsistencies exist within the provisions of the Customs Courts Act of 1980 with respect to the method of commencing two kinds of actions. The two kinds are described in 28 U.S.C. Sec. 1581(d), adjustment assistance actions, and 28 U.S.C. Sec. 1581(g), customhouse broker license actions. Both of these are included among those actions which are, pursuant to 28 U.S.C. Sec. 2632(a), to be commenced by filing concurrently a summons and complaint with the clerk of the court as prescribed by the rules of the court. The rules of the court require the plaintiff to cause concurrent service of the summons and complaint to be made. (See Rules 3(a) and 4(b)). The inconsistency pertaining to adjustment assistance actions appears in 19 U.S.C. Sec. 2395, which requires the clerk of the court, instead of the plaintiff, to serve a copy of the summons and complaint upon the Secretary of Labor or Secretary of Commerce as the case may be. The inconsistency pertaining to customhouse broker license actions appears in 19 U.S.C. Sec. 1641(b), which provides that an action is commenced by filing 'a written petition' in the court and further provides that a copy of the petition is to be 'transmitted by the clerk of the court to the Secretary of the Treasury. . . .' Until such time as the matter is resolved, the preferred procedure to achieve uniformity and consistency and to minimize the ambiguity created by these inconsistent statutory provisions is to follow the provisions in Title 28. (In one unreported case, James A. Barnhart v. United States, Court No. 81-3-00328, the court directed plaintiff to comply with the requirements of 28 U.S.C. Sec. 2632(a) by filing a summons and complaint notwithstanding the fact that plaintiff had complied with the requirements of 19 U.S.C. Sec. 1641(b) by filing a petition.) -REFTEXT- REFERENCES IN TEXT Sections 515, 516, and 516A of the Tariff Act of 1930, referred to in subds. (a)(2), (e), and (f)(3) to (5), are classified to sections 1515, 1516, 1516a, respectively, of Title 19, Customs Duties. ------DocID 37429 Document 1291 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 4 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE II -HEAD- Rule 4. Service of Summons and Complaint -STATUTE- (a) Summons - Service by the Clerk. In any action required to be commenced by filing a summons only, service of the summons shall be made by the clerk of the court as follows: (1) Upon the United States, by serving the Attorney General of the United States, by delivering or by mailing a copy of the summons to the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice. (2) When the action is described in 28 U.S.C. Sec. 1581(a) or (b), the clerk shall, in addition to the service prescribed by paragraph (1) of this subdivision (a), also serve the Secretary of the Treasury by mailing a copy of the summons to the district director for the customs district in which the protest was denied or in which the liquidation of an entry is contested and to the Assistant Chief Counsel for International Trade Litigation, United States Customs Service. (3) When the action is described in 28 U.S.C. Sec. 1581(b), the clerk shall, in addition to the service prescribed in paragraphs (1) and (2) of this subdivision (a), also mail a copy of the summons to the consignee or agent of the consignee involved in each entry included in the action. (4) When the action is described in 28 U.S.C. Sec. 1581(c) and contests a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930, the clerk shall, in addition to the service prescribed in paragraph (1) of this subdivision (a), also mail a copy of the summons: to the Secretary, United States International Trade Commission, when a determination of that Commission is contested; and to the General Counsel, Department of Commerce, when a determination of that Department is contested. (5) After making service as prescribed in this subdivision (a), the clerk shall return a copy of the summons, together with proof of service and a receipt for payment of the filing fee, to the person who filed the summons. (b) Summons and Complaint - Service by Plaintiff. In any action required to be commenced by the concurrent filing of a summons and complaint, the plaintiff shall cause service of the summons and complaint to be made in accordance with this rule. (c) Service. (1)(A) A summons and complaint shall, except as provided in subparagraphs (B) and (C) of this paragraph, be served by any person who is not a party and is not less than 18 years of age. (B) A summons and complaint shall, at the request of the party seeking service or such party's attorney, be served by a United States marshal or deputy United States marshal, or by a person specially appointed by the court for that purpose, only - (i) on behalf of a party authorized to proceed in forma pauperis pursuant to 28 U.S.C. Sec. 1915, (ii) on behalf of the United States or an officer or agency of the United States, or (iii) pursuant to an order issued by the court stating that a United States marshal or deputy United States marshal, or a person specially appointed for that purpose, is required to serve the summons and complaint in order that service be properly effected in that particular action. (C) A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (3) of subdivision (d) of this rule - (i) pursuant to the law of the State in which service is made for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State, or (ii) by mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment which shall be substantially in the form set forth in Form 14 of the Appendix of Forms and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3). (D) Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons and complaint. (E) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation. (2) The court shall freely make special appointments to serve summonses and complaints under paragraph (1)(B) of this subdivision of this rule. (d) Summons and Complaint - Person To Be Served. The summons and complaint shall be served together as follows: (1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service. (2) Upon an infant or an incompetent person, by serving the summons and complaint in the manner prescribed by the law of the state or place in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state or place. (3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service, and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. (4) Upon the United States, by serving the Attorney General of the United States, by delivering or by mailing by registered or certified mail, return receipt requested, a copy of the summons and complaint to the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice. (5) Upon an officer or agency of the United States, by serving the United States, and by delivering or by mailing by registered or certified mail, return receipt requested, a copy of the summons and complaint to such officer or agency. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision (d). (6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. (e) Return. The person serving the process shall make proof of service thereof to the clerk of the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States marshal or deputy United States marshal, such person shall make affidavit thereof. If service is made under subdivision (c)(1)(C)(ii) of this rule, return shall be made by the sender's filing with the clerk of the court the acknowledgment received pursuant to such subdivision. Failure to make proof of service does not affect the validity of the service. (f) Amendment of Proof of Service. The court may allow proof of service of a summons or complaint to be amended at any time, in its discretion and upon such terms as it deems just, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the amendment is allowed. (g) Alternative Provisions for Service in a Foreign Country. (1) Manner. Whenever a statute of the United States or an order of court thereunder provides for service of a summons and complaint, or of a notice, or of an order in lieu of a summons and complaint, upon a party not an inhabitant of or found within the United States, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service and service is to be effected upon a party in a foreign country, it is sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of this court or by the foreign court. (2) Return. Proof of service may be made as prescribed by subdivision (e) of this rule, or by the law of the foreign country, or by order of this court. When service is made pursuant to paragraph (1)(D) of this subdivision (g), proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to this court. (h) Summons and Complaint - Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the action is commenced and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (g) of this rule. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT The clerk is authorized by Rule 4(a) to make service of the summons only in those actions commenced by a summons, i.e., actions described in 28 U.S.C. Sec. 1581(a) or (b), and only those actions described in 28 U.S.C. Sec. 1581 (c) which contest a determination listed in section 516A(a)(2) of the Tariff Act of 1930. In all other actions, including those actions described in 28 U.S.C. Sec. 1581(c) which contest a determination listed in section 516A(a)(1) of the Tariff Act of 1930, the plaintiff is required by Rule 4(b) to effect concurrent service of the summons and complaint. The notice and acknowledgment of service as prescribed by Rule 4(c)(1)(C)(ii) shall be substantially in the form set forth in Form 14 of the Appendix of Forms. -REFTEXT- REFERENCES IN TEXT Section 516A of the Tariff Act of 1930, referred to in subd. (a)(4), is classified to section 1516a of Title 19, Customs Duties. ------DocID 37430 Document 1292 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 5 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE II -HEAD- Rule 5. Service and Filing of Pleadings and Other Papers -STATUTE- (a) Service - When Required. Unless otherwise prescribed by these rules, or by order of the court, every pleading and other paper shall be served upon each of the parties. (b) Service - How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon the party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of the court. Delivery is made by: handing a copy to the attorney or to the party; or leaving it at the attorney's or party's office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. (c) Service - Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties, and that the filing of any such pleadings and service thereof upon the plaintiff constitute due notice of it to the parties. A copy of every order shall be served upon the parties in such manner and form as the court directs. (d) Filing - When Required. All pleadings and other papers required to be served upon a party shall be filed with the court immediately after service, unless otherwise prescribed by these rules, or by order of the court. Depositions upon oral examinations and interrogatories, requests for documents, requests for admission, other discovery documents, and answers and responses thereto shall not be filed unless by order of the court on motion or on its own initiative, or for use in the proceeding. (e) Filing - How Made. The filing of pleadings and other papers with the court shall be made by filing them with the clerk of the court, except that the judge to whom an action is assigned, or a matter is referred, may permit pleadings and other papers pertaining thereto to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Filing with the clerk of the court shall be made by delivery or by mailing to: The Clerk of the Court, United States Court of International Trade, One Federal Plaza, New York, New York 10007; or by delivery to the clerk at places other than New York City when the papers pertain to an action being tried or heard at that place. Filing is completed when received, except that a pleading or other paper mailed by registered or certified mail properly addressed to the clerk of the court, with the proper postage affixed and return receipt requested, shall be deemed filed as of the date of mailing. (f) Filing of Summons and Complaint by Mail. When an action is commenced by the filing of a summons only, or the concurrent filing of a summons and complaint, and the filing is made by mail as prescribed by these rules, the mailing shall be by registered or certified mail, return receipt requested, properly addressed to the clerk of the court, with the proper postage affixed. (g) Proof of Service. Unless otherwise prescribed by these rules, or by order of the court, papers presented for filing shall contain an acknowledgment of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, certified by the person who made service. Proof of service may appear on or be affixed to the paper filed. The clerk may, for good cause shown, permit papers to be filed without acknowledgment or proof of service but shall require proof to be filed promptly thereafter. -SOURCE- (As amended Jan. 1, 1982; July 28, 1988, eff. Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT When the clerk concludes that exigencies so require, he may permit a pleading or paper to be filed by facsimile transmission or similar process. Service by such process may be made with the consent of the party to be served. Registered or certified mail, return receipt requested, must be used, as prescribed in Rule 5(f), when an action is commenced by the filing of a summons only, or the concurrent filing of a summons and complaint, and the filing is made by mail. When a party is represented in an action by more than one attorney of record, the party shall designate only one attorney of record to serve, file and receive service of pleadings and other papers on behalf of the party. When service is to be made upon a party represented by an attorney, service shall be made upon the attorney of record, unless otherwise ordered by the court. When proof of service is made in the form of a statement, as prescribed in Rule 5(h), and the person served is an attorney, the statement shall identify the name of the party represented by the attorney served. ------DocID 37431 Document 1293 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 6 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE II -HEAD- Rule 6. Time -STATUTE- (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, (FOOTNOTE 2) or when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. (FOOTNOTE 2) As used in these rules, 'legal holiday' includes: New Year's Day, January 1; Martin Luther King's Birthday, third Monday in January; Washington's Birthday, third Monday in February; Memorial Day, last Monday in May; Independence Day, July 4; Labor Day, first Monday in September; Columbus Day, second Monday in October; Veterans Day, November 11; Thanksgiving Day, fourth Thursday in November; Christmas Day, December 25; and any other day designated as a holiday by the President or the Congress of the United States. (b) Extension. (1) When by these rules or by a notice given thereunder or by order of the court, an act is required or allowed to be done at or within a specified time, the court may upon motion, for good cause shown, order the period extended; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them. (2) The motion for extension of time must set forth the specific number of additional days requested, the date to which the extension is to run, the extent to which the time for the performance of the particular act has been previously extended, and the reason or reasons upon which the motion is based. The motion shall be filed prior to the expiration of the period allowed for the performance of the act to which the motion relates (including any previous extension of time); except, when for good cause shown, the delay in filing was the result of excusable neglect or circumstances beyond the control of the party. (3) No disposition shall be made until the court acts upon the motion for extension of time. (c) Additional Time After Service by Mail. Whenever a party has the right or obligation to do some act or take some proceeding within a prescribed or allowed period after the service of a pleading, motion, or other paper upon the party, and the service is made by mail, 5 days shall be added to the prescribed or allowed period. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985, eff. Oct. 1, 1985; Apr. 28, 1987, eff. June 1, 1987; July 28, 1988, eff. Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991.) ------DocID 37432 Document 1294 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE III -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- TITLE III - PLEADINGS AND MOTIONS ------DocID 37433 Document 1295 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 7 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 7. Pleadings Allowed - Consultation - Oral Argument - Response Time - Show Cause Order - Form of Motions -STATUTE- (a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. (b) Motions - Consultation. Before a motion for an extension of time as prescribed in Rule 6(b), or a motion for an order compelling discovery as prescribed in Rule 37(a), is made, the moving party shall consult with opposing counsel to attempt to reach agreement, in good faith, on the issues involved in the motion. If the court finds that counsel willfully refused to consult, or, having consulted, willfully refused to attempt to reach agreement in good faith, the court may impose such sanctions as it deems proper. (c) Oral Argument. Upon motion of a party, or upon its own initiative, the court may direct oral argument on a motion at a time and place designated as prescribed in Rule 77(c). A motion for oral argument on a motion shall be filed no later than 20 days after service of the response to the motion, or 20 days after the expiration of the period of time allowed for service of a response. (d) Time To Respond. Unless otherwise prescribed by these rules, or by order of the court, a response to a motion shall be served within 10 days after service of such motion, except that a response to a dispositive motion shall be served within 30 days after service of such motion. The moving party shall have 10 days after service of the response to a dispositive motion to serve a reply. (e) Order To Show Cause. No order to show cause to bring on a motion shall be granted except upon a clear and specific showing by affidavit of good and specific reasons why procedure other than regular motion is necessary or why the time to respond should be shortened. (f) Form of Motions and Other Papers. (1) An application to the court for an order shall be by motion, properly designated, which, unless made during a hearing or trial, shall be in writing and shall state, with particularity, the grounds therefor. Motions which require consultation between counsel before being made as prescribed by subdivision (b) of this rule shall describe the reasonable effort made to reach agreement on the issues involved in the motion through consultation with opposing counsel, without the intervention of the court, and shall also recite the date and time of such consultation, as well as the names of all persons participating. All motions shall set forth the relief or order sought, and shall be accompanied by a proposed order. (2) The rules applicable to the captions, signing, and other matters of form of pleadings apply to all motions and other papers prescribed by these rules. (3) All motions shall be signed in accordance with Rule 11. (g) Dispositive Motions Defined. Dispositive motions include: motions for judgment on the pleadings; motions for summary judgment; motions for judgment upon an agency record; motions to dismiss an action; and any other motion for a final determination of an action. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT A schedule, agreed to by the parties, suitable for attachment to a decision of the court, shall be filed at the time an action is submitted to the court for final determination upon a dispositive motion or upon the conclusion of a trial. The schedule should indicate (1) when one action is involved, the ports of entry, protest and entry numbers, (2) when consolidated actions are involved, the ports of entry, court numbers, protest and entry numbers, and (3) when joined actions are involved, the ports of entry, court numbers, plaintiffs, protest and entry numbers. Cases should be arranged according to port of entry, in numerical order. ------DocID 37434 Document 1296 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 8 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 8. General Rules of Pleading -STATUTE- (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. (b) New Grounds. A party who wishes the court to consider any new ground in support of a civil action described in 28 U.S.C. Sec. 1581(a) shall aver the new ground in accordance with this rule and, as provided in 28 U.S.C. Sec. 2638, shall also aver that the new ground: (1) applies to the same merchandise that was the subject of the protest; and (2) is related to the same administrative decision that was contested in the protest. (c) Defenses - Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11. (d) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, discharge in bankruptcy, duress, estoppel, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (e) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (f) Pleading To Be Concise and Direct - Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in Rule 11. (g) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37435 Document 1297 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 9. Pleading Special Matters -STATUTE- (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. (d) Official Document or Act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special Damage. When items of special damage are claimed, they shall be specifically stated. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37436 Document 1298 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 10 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 10. Form of Pleadings -STATUTE- (a) Caption - Names of Parties. Every pleading shall contain a caption setting forth the name of this court, the title of the action, the court number, and a designation as in Rule 7(a). In the caption of the summons and the complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. (b) Paragraphs - Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (c) Adoption by Reference - Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes. ------DocID 37437 Document 1299 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 11 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 11. Signing of Pleadings, Motions or Other Papers - Sanctions -STATUTE- Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address and telephone number shall be stated. Every pleading, motion, and other paper of the United States shall be signed by an attorney authorized to do so on behalf of the Assistant Attorney General, Civil Division, Department of Justice. A pleading, motion, or other paper of an agency of the United States, authorized by statute to represent itself in judicial proceedings, may be signed by an attorney authorized to do so on behalf of the agency. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address and telephone number. Except when otherwise specifically prescribed by rule or statute, pleadings or other papers need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37438 Document 1300 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 12 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 12. Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on the Pleadings -STATUTE- (a) When Presented. The United States, or an officer or agency thereof, shall serve an answer to the complaint, or to a cross-claim, or a reply to a counterclaim, within 60 days after the service upon the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice, of the pleading in which the claim is asserted; except that, in an action described in 28 U.S.C. Sec. 1581(f), involving an application for an order to make confidential information available under section 777(c)(2) of the Tariff Act of 1930, the answer shall be served within 10 days after the service of the summons and complaint. For good cause shown, the court in any action may order a different period of time. Any other defendant shall serve an answer within 20 days after the service of the complaint upon that defendant. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after the notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of the summons and complaint, (5) failure to state a claim upon which relief can be granted, (6) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside of the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(6) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. (f) Motion To Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) of this rule on any of the grounds there stated. (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of the summons and complaint is waived (A) if omitted from a motion in the circumstances described in subdivision (g) of this rule, or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) -REFTEXT- REFERENCES IN TEXT Section 777(c)(2) of the Tariff Act of 1930, referred to in subd. (a), is classified to section 1677f(c)(2) of Title 19, Customs Duties. ------DocID 37439 Document 1301 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 13 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 13. Counterclaim and Cross-Claim -STATUTE- (a) Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if (1) the claim involves the imported merchandise that is the subject matter of the civil action, or (2) the claim is to recover upon a bond or customs duties relating to such merchandise. (b) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (c) Counterclaim Against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof. (d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (e) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. (f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party, if (1) the claim involves the imported merchandise that is the subject matter of the civil action, or (2) the claim is to recover upon a bond or customs duties relating to such merchandise. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (g) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20. (h) Separate Trials - Separate Judgments. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37440 Document 1302 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 14 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 14. Third-Party Practice -STATUTE- (a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make any defenses to the third-party plaintiff's claim as provided in Rule 12, and any counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff, if (1) the claim involves the imported merchandise that is the subject matter of the civil action, or (2) the claim is to recover upon a bond or customs duties relating to such merchandise. The plaintiff may assert any claim against the third-party defendant, if (1) the claim involves the imported merchandise that is the subject matter of the civil action, or (2) the claim is to recover upon a bond or customs duties relating to such merchandise, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or for a separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. (b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third-party to be brought in under circumstances which under this rule would entitle a defendant to do so. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37441 Document 1303 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 15 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 15. Amended and Supplemental Pleadings -STATUTE- (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been noticed for trial, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders. (b) Amendments To Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of the summons and complaint to the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant. (d) Supplemental Pleadings. Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statements of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. -SOURCE- (As amended Jan. 1, 1982; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37442 Document 1304 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 16 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE III -HEAD- Rule 16. Postassignment Conferences - Scheduling - Management -STATUTE- (a) Postassignment Conferences - Objectives. In any action, the judge to whom the action is assigned may, in the discretion of that judge, direct the attorneys for the parties and any unrepresented parties to appear for a conference or conferences for such purposes as (1) expediting the disposition of the action; (2) establishing early and continuing control so that the action will not be protracted because of lack of management; (3) discouraging wasteful activities; (4) improving the quality of the proceedings for the final disposition of the action through more thorough preparation; and (5) facilitating the settlement of the action. (b) Scheduling and Planning. Except when the judge to whom the action is assigned finds that a scheduling order will not aid in the disposition of the action and enters an order to that effect, together with a statement of reasons and facts upon which the order is based, the judge shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file and hear motions; and (3) to complete discovery. The scheduling order also may include (4) the date or dates for conferences before submission of the action for final disposition, a final postassignment conference, and trial or submission of a dispositive motion; and (5) any other matters appropriate in the circumstances of the action. The scheduling order, or the order that a scheduling order will not aid in the disposition of the action, shall issue as soon as practicable but in no event more than 90 days after the action is assigned. A schedule shall not be modified except by leave of the judge upon a showing of good cause. (c) Subjects to be Discussed at Postassignment Conferences. The participants at any conference under this rule may consider and take action with respect to (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence; (4) the avoidance of unnecessary proof and of cumulative evidence; (5) the identification of witnesses and documents, the need and schedule for filing and exchanging briefs, and the date or dates for further conferences and for submission of the action for final disposition; (6) the advisability of referring matters to a master; (7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute; (8) the form and substance of the scheduling or postassignment conference order; (9) the disposition of pending motions; (10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (11) access to confidential or privileged information contained in an administrative record, which is the subject of the action; and (12) such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any postassignment conference shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. (d) Final Postassignment Conference. Any final postassignment conference shall be held as close to the time of submission of the action for final disposition as reasonable under the circumstances. The participants at any such conference shall formulate a plan for submission of the action for final disposition. At least one of the attorneys on behalf of each of the parties and any unrepresented parties shall participate in the conference. (e) Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final postassignment conference shall be modified only to prevent manifest injustice. (f) Sanctions. If a party or party's attorney fails to obey a scheduling or postassignment conference order, or if no appearance is made on behalf of a party at a scheduling or postassignment conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2), (3), and (4). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT The attorneys for the parties and any unrepresented parties are expected to consult prior to a postassignment conference. The consultations should pertain to such matters as: access to the confidential portions of the administrative record, if any; the definition of the issues; whether discovery is necessary or permissible; and, the establishment of a proposed discovery schedule, if it is agreed that discovery will be conducted. ------DocID 37443 Document 1305 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE IV -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- TITLE IV - PARTIES ------DocID 37444 Document 1306 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 17 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 17. Parties Plaintiff and Defendant - Capacity -STATUTE- (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (b) Capacity To Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases, capacity to sue or be sued shall be determined by the law of the appropriate state except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by 28 U.S.C. Sec. 754 and 959(a). (c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37445 Document 1307 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 18 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 18. Joinder of Claims and Remedies -STATUTE- (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party, except that in an action described in 28 U.S.C. Sec. 1581(a), a party may join claims only if they involve a common issue. (b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37446 Document 1308 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 19 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 19. Joinder of Persons Needed for Just Adjudication -STATUTE- (a) Persons To Be Joined if Feasible. A person shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (A) as a practical matter impair or impede the person's ability to protect that interest, or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) of this rule cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) of this rule who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37447 Document 1309 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 20 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 20. Permissive Joinder of Parties -STATUTE- (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. (b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37448 Document 1310 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 21 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 21. Misjoinder and Nonjoinder of Parties -STATUTE- Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. ------DocID 37449 Document 1311 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 22 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 22. Reserved ------DocID 37450 Document 1312 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 23 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 23. Class Actions -STATUTE- (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. (c) Determination by Order Whether Class Action To Be Maintained - Notice - Judgment - Actions Conducted Partially as Class Actions. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. (2) In any class action maintained under subdivision (b)(3) of this rule, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel. (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2) of this rule, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3) of this rule, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) of this rule was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. (d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. (e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37451 Document 1313 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 23.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 23.1. Actions Relating to Unincorporated Associations -STATUTE- An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e). ------DocID 37452 Document 1314 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 24 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 24. Intervention -STATUTE- (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT To provide information to assist a judge in determing whether there is reason for disqualification upon the grounds of a financial interest, under 28 U.S.C. Sec. 455, a completed 'Disclosure Statement' form, available upon request from the office of the clerk, must be filed by certain corporations, trade associations, and others appearing as parties, intervenors, or amicus curiae. A copy of the 'Disclosure Statement' form is shown in Form 13 of the Appendix of Forms. Permissive intervention in this court is subject to the statutory provisions of 28 U.S.C. Sec. 2631(j). ------DocID 37453 Document 1315 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 25 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IV -HEAD- Rule 25. Substitution of Parties -STATUTE- (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and shall be served on the parties as provided in Rule 5 and upon the persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. (2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties. (b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party's representative. (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. (d) Public Officers - Death or Separation From Office. (1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) A public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name; but the court may require the officer's name to be added. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37454 Document 1316 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE V -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- TITLE V - DEPOSITIONS AND DISCOVERY ------DocID 37455 Document 1317 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 26 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 26. General Provisions Governing Discovery -STATUTE- (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court as prescribed by these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c). (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. (3) Trial Preparation - Materials. Subject to the provisions of paragraph (4) of this subdivision (b), a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this subdivision (b) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial preparation - Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of paragraph (1) of this subdivision (b) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subparagraph (4)(C) of this subdivision (b), concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial, and who is not expected to be called as a witness at trial, only as provided in Rule 35(b), or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subparagraphs (4)(A)(ii) and (4)(B) of this subdivision (b); and (ii) with respect to discovery obtained under subparagraph (4)(A)(ii) of this subdivision (b) the court may require, and with respect to discovery obtained under subparagraph (4)(B) of this subdivision (b) the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (c) Protective Orders. Upon its own initiative, or upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden, delay or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony. (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (f) Discovery Conference. At any time after the filling of a complaint the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: (1) A statement of the issues as they then appear; (2) A proposed plan and schedule of discovery; (3) Any limitations proposed to be placed on discovery; (4) Any other proposed orders with respect to discovery; and (5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and each party's attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion. Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires. Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a postassignment conference authorized by Rule 16. (g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address and telephone number shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state the party's address and telephone number. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. (h) Costs. All costs, charges, and expenses incident to taking depositions shall be borne by the party making application for the same unless otherwise provided for by stipulation or by order of the court. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37456 Document 1318 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 27 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 27. Depositions Before Action or Pending Appeal -STATUTE- (a) Before Action. (1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in this court may file a verified petition. The petition shall be entitled in the name of the petitioner and shall show: (A) that the petitioner expects to be a party to an action cognizable in this court but is presently unable to bring it or cause it to be brought, (B) the subject matter of the expected action and the petitioner's interest therein, (C) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, (D) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (E) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing, the notice shall be served in the manner provided in Rule 4 for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner prescribed by Rule 4, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(c) apply. (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character prescribed by Rules 34 and 35. (4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules, it may be used in any other action involving the same subject matter subsequently brought, in accordance with the provisions of Rule 32(a). (b) Pending Appeal. If an appeal has been taken from a judgment or before the taking of an appeal if the time therefor has not expired, the court may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take depositions, upon the same notice and service thereof as if the action was pending. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character prescribed by Rules 34 and 35, thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in court. (c) Perpetuation by Action. This rule does not limit the power of this court to entertain an action to perpetuate testimony. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37159 Document 1319 of 1452------ -CITE- 28 USC APPENDIX - RULES OF CIVIL PROCEDURE Form 18-A -EXPCITE- TITLE 28 APPENDIX FEDERAL RULES OF CIVIL PROCEDURE APPENDIX OF FORMS -HEAD- Form 18-A. Notice and Acknowledgment for Service by Mail -STATUTE- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK CIVIL ACTION, FILE NUMBER XX A. B., Plaintiff Notice and Acknowledgment v. W of Receipt of Summons C.D., Defendant and Complaint NOTICE To: (insert the name and address of the person to be served.) The enclosed summons and complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure. You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days. You must sign and date the acknowledgment. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within 20 days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law. If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. I declare, under penalty of perjury, that this Notice and Acknowledgment of Receipt of Summons and Complaint will have been mailed on (insert date). XXXXXXXXXXXXXXXXXXXXX Signature XXXXXXXXXXXXXXXXXXXXX Date of Signature ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare, under penalty of perjury, that I received a copy of the summons and of the complaint in the above-captioned matter at (insert address). XXXXXXXXXXXXXXXXXXXXX Signature XXXXXXXXXXXXXXXXXXXXX Relationship to Entity/Authority to Receive Service of Process XXXXXXXXXXXXXXXXXXXXX Date of Signature -SOURCE- (Added Pub. L. 97-462, Sec. 3, Jan. 12, 1983, 96 Stat. 2528, and amended Apr. 29, 1985, eff. Aug. 1, 1985.) -MISC1- EFFECTIVE DATE Form 18-A effective 45 days after Jan. 12, 1983, see section 4 of Pub. L. 97-462, set out as an Effective Date of 1983 Amendment note under section 2071 of this title. ------DocID 37458 Document 1320 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 29 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 29. Stipulations Regarding Discovery Procedure -STATUTE- Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may be made only with the approval of the court. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37459 Document 1321 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 30 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 30. Depositions Upon Oral Examination -STATUTE- (a) When Depositions May Be Taken. After service of the complaint, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the complaint upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(7) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Notice of Examination - General Requirements - Special Notice - Nonstenographic Recording - Production of Documents and Things - Deposition of Organization - Deposition by Telephone. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The person so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(4) does not preclude taking a deposition by any other procedure authorized in these rules. (5) The parties may stipulate in writing, or the court may upon motion order, that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party's own expense. Any objections under subdivision (c) of this rule, any changes made by the witness, the witness' signature identifying the deposition as the witness' own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e) of this rule, and the certification of the officer required by subdivision (f) of this rule shall be set forth in a writing to accompany a deposition recorded by nonstenographic means. (6) The parties may stipulate in writing, or the court may order, that a deposition be taken by telephone. For the purposes of this rule and Rule 28(a), a deposition taken by telephone is taken at the place where the deponent is to answer questions propounded to the deponent. (7) Leave of court is not required for the taking of a deposition by the plaintiff if the notice (A) states that the person to be examined is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless the person's deposition is taken before expiration of the 30-day period prescribed by subdivision (a) of this rule, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and the attorney's signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when the party was served with notice under this subdivision (b)(7) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party. (c) Examination and Cross-Examination - Record of Examination - Oath - Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(5) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition; and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Motion To Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, delay, embarrass, or oppress the deponent or party, the court may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of the taking of the deposition as prescribed by Rule 26(c). If the order terminates the examination, it shall be resumed thereafter only upon the order of the court. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion. (e) Submission to Witness - Changes - Signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer, with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to the witness, the officer shall sign it and state on the record the fact of the waiver, or of the illness or absence of the witness, or the fact of the refusal to sign, together with the reasons, if any, given therefor; and the deposition may then be used as fully as though signed, unless, on a motion to suppress under Rule 32(c)(4), the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (f) Certification and Filing by Officer - Exhibits - Copies - Notice of Filing. (1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. The officer shall then securely seal the deposition in an envelope indorsed with the title of the action and marked: 'Deposition of (here insert name of witness)' and shall promptly file it with the clerk of the court or send it by registered or certified mail to the clerk for filing and give prompt notice of its filing to the party taking the deposition. Documents and things produced for inspection during the examination of the witness, shall, upon request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. (2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (3) The party taking the deposition shall give prompt notice of its filing to all other parties. (g) Failure to Attend or to Serve Subpoena - Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (c), are set out in this Appendix. ------DocID 37460 Document 1322 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 31 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 31. Deposition Upon Written Questions -STATUTE- (a) Serving Questions - Notice. After service of the complaint, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(4). Within 30 days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within 10 days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may for cause shown enlarge or shorten the time. (b) Officer To Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e) and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer. (c) Notice of Filing. When the deposition is filed, the party taking it shall promptly give notice thereof to all other parties. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37461 Document 1323 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 32 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 32. Use of Depositions in Court Proceedings (FOOTNOTE 1) -STATUTE- (FOOTNOTE 1) As provided in 28 U.S.C. Sec. 2641(a), the Federal Rules of Evidence apply to all actions in this court, except as provided in 28 U.S.C. Sec. 2639 and 2641(b), or the rules of the court. (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(4) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; (B) that the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exists as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the officer to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the Federal Rules of Evidence. (b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (c)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (c) Effect of Errors and Irregularities in Depositions. (1) As to notice. All errors and irregularities in the notice for taking deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to taking of deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at the time. (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized. (4) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (a), are set out in this Appendix. ------DocID 37462 Document 1324 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 33 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 33. Interrogatories to Parties -STATUTE- (a) Availability - Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after filing of the complaint and upon any other party with or after service of the summons and complaint upon that party. Each interrogatory shall be answered separately and fully in writting under oath, unless it is objected to, in which event the reasons for objections shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. (b) Scope - Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a postassignment conference or other later time. (c) Option To Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37463 Document 1325 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 34 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes -STATUTE- (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). (b) Procedure. The request may, without leave of court, be served upon the plaintiff after filing of the complaint and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected by either individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37464 Document 1326 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 35 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 35. Physical and Mental Examination of Persons -STATUTE- (a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (b) Report of Examining Physician. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examining physician setting out the physician's findings, including the results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that such party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just; and if a physician fails or refuses to make a report, the court may exclude the physician's testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37465 Document 1327 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 36 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 36. Requests for Admission -STATUTE- (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after filing of the complaint, and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon that defendant. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders determine that final disposition of the request be made at a postassignment conference or at a designated time prior to trial. The provisions of Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a postassignment scheduling or conference order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37466 Document 1328 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 37 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE V -HEAD- Rule 37. Failure To Make or Cooperate in Discovery - Sanctions -STATUTE- (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) Motion. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(4) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c). (2) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (3) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure To Comply With Order. If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of court. If a party or an officer, director, or managing agent of a party or person designated under Rule 30(b)(4) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35 or if a party fails to obey an order entered under Rule 26(f), the court may make such orders in regard to the failure as are just, and among others the following: (1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence. (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. (4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders; except an order to submit to a physical or mental examination. (5) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (1), (2) and (3) of this subdivision (b), unless the party failing to comply shows that that party is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit. (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(4) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions (b)(1), (b)(2) and (b)(3) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c). (e) Subpoena of Person in Foreign Country. A subpoena may be issued as provided in 28 U.S.C. Sec. 1783, under the circumstances and conditions therein stated. (f) Failure to Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37467 Document 1329 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE VI -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- TITLE VI - TRIALS ------DocID 37468 Document 1330 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 38 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 38. Jury Trial of Right -STATUTE- (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. (b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party. (c) Demand - Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. (d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37469 Document 1331 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 39 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 39. Trial by Jury or by the Court -STATUTE- (a) By Jury. When trial by jury has been demanded as prescribed by Rule 38, the action shall be so designated. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or (2) the court upon motion or on its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States. (b) By the Court. Issues not demanded for trial by jury as prescribed by Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. (c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion or on its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of the parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. ------DocID 37470 Document 1332 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 40 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 40. Request for Trial -STATUTE- (a) Request. At any time after issue is joined in an action, unless the court otherwise directs, any party who desires to try an action shall: (1) confer with the opposing party or parties to attempt to reach agreement as to the time and place of trial, and (2) serve upon the opposing party or parties, and file with the court, a request for trial which shall be substantially in the form set forth in Form 6 in the Appendix of Forms. The request shall be served and filed at least 30 days prior to the requested date of trial, or upon a showing of good cause, at a reasonable time prior to the requested date of trial. A party who opposes the request shall serve and file its opposition within 10 days after service of the request, unless a shorter period is directed by the court. In all instances where a trial is requested to be held at a location other than or in addition to the courthouse at One Federal Plaza, New York, New York, all other parties shall serve and file a response within 10 days after the service of the request, unless a shorter period is directed by the court. (b) Designation. The court shall designate the date and place for trial, as prescribed in Rule 77(c)(1) or (2), and shall give reasonable notice thereof to the parties. (c) Premarking Exhibits. All exhibits and documents which are intended to be introduced in evidence are to be marked for identification and exhibited to opposing counsel prior to trial or court proceeding. -SOURCE- (As amended Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT To implement the authority conferred upon the chief judge by 28 U.S.C. Sec. 253(b) and 256(a), and for the convenience of parties, there is set out in the instructions for Form 6, in the Appendix of Forms, a list of tentative dockets and the procedures to be followed in connection with trials or oral arguments of dispositive motions at places other than New York City. A schedule, agreed to by the parties, suitable for attachment to a decision of the court, shall be filed at the time an action is submitted to the court for final determination upon a dispositive motion or upon the conclusion of a trial. The schedule should indicate (1) when one action is involved, the ports of entry, protest and entry numbers, (2) when consolidated actions are involved, the ports of entry, court numbers, protest and entry numbers, and (3) when joined actions are involved, the ports of entry, court numbers, plaintiffs, protest and entry numbers. Cases should be arranged according to port of entry, in numerical order. ------DocID 37471 Document 1333 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 41 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 41. Dismissal of Actions -STATUTE- (a) Voluntary Dismissal - Effect Thereof. (1) By Plaintiff - By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (A) by filing a notice of dismissal which shall be substantially in the form set forth in Form 7 of the Appendix of Forms at any time before service by the adverse party of an answer or motion for summary judgment, whichever occurs first, or (B) by filing a stipulation of dismissal, which shall be substantially in the form set forth in Form 8 of the Appendix of Forms, signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision (a), an action shall not be dismissed by the plaintiff unless upon order of the court, and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal - Effect Thereof. (1) Actions on the Reserve Calendar or the Suspension Disposition Calendar or the Joined Issue Calendar are subject to dismissal for lack of prosecution at the expiration of the applicable period of time as prescribed by Rules 83, 85 and 86. (2) Whenever it appears that an action is not being prosecuted with due diligence, the court may upon its own initiative after notice, or upon motion of a defendant, order the action dismissed for lack of prosecution. (3) For failure of the plaintiff to comply with these rules or with any order of the court, a defendant may move that the action be dismissed. (4) A dismissal under this subdivision (b) operates as a dismissal upon the merits, unless the court otherwise directs. (c) Insufficiency of Evidence. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the judgment shall be supported by either a statement of findings of fact and conclusions of law or an opinion stating the reasons and facts upon which the judgment is based. A dismissal under this subdivision (c) operates as a dismissal upon the merits, unless the court otherwise directs. (d) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subdivision (a)(1) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (e) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37472 Document 1334 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 42 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 42. Consolidation - Separate Trials -STATUTE- (a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated under a consolidated complaint; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. ------DocID 37473 Document 1335 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 43 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 43. Taking of Testimony (FOOTNOTE 1) -STATUTE- (FOOTNOTE 1) As provided in 28 U.S.C. Sec. 2641(a), the Federal Rules of Evidence apply to all actions in this court, except as provided in 28 U.S.C. Sec. 2639 and 2641(b), or the rules of the court. (a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress, or by these rules, or by the Federal Rules of Evidence. (b) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (c) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposition. (d) Interpreters. The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. (e) Documents Specially Admissible. (1) Reports - Depositions - Affidavits. In addition to other admissible evidence, when the value of merchandise or any of its components is in issue, reports or depositions of consuls, customs officers, and other officers of the United States and depositions and affidavits of other persons whose attendance cannot reasonably be had, may be admitted in evidence, as provided in 28 U.S.C. Sec. 2639(c), when served upon the opposing party in accordance with this rule. (2) Service. A copy of any report, deposition or affidavit described in paragraph (1) of this subdivision (e), which is intended to be offered in evidence, shall be served on the opposing party with the request for trial. A party other than the party serving the request for trial shall serve a copy of any report, deposition or affidavit which that party intends to offer in evidence upon the opposing party within 15 days after service of the request for trial. Timely service of copies of such documents may be waived or the time extended upon consent, or by order of the court for good cause shown. (3) Objections. Objections to the admission of such documents in evidence may be made at the trial. (4) Pricelists - Catalogs. When the value of merchandise is in issue, pricelists and catalogs may be admitted into evidence when duly authenticated, relevant, and material. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subd. (a), are set out in this Appendix. ------DocID 37474 Document 1336 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 44 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 44. Proof of Official Record -STATUTE- (a) Authentication. (1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer's office. (2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (A) admit an attested copy without final certification or (B) permit the foreign official record to be evidenced by an attested summary with or without a final certification. (b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37475 Document 1337 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 44.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 44.1. Determination of Foreign Law -STATUTE- A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) -REFTEXT- REFERENCES IN TEXT The Federal Rules of Evidence, referred to in text, are set out in this Appendix. ------DocID 37476 Document 1338 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 45 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 45. Subpoena -STATUTE- (a) For Attendance of Witnesses - Form - Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. (b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (c) Service. A subpoena may be served by a United States marshal, by a deputy marshal, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. (d) Subpoena for Taking Depositions - Place of Examination. (1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for issuance by the clerk of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition. (2) A person to whom a subpoena for the taking of a deposition is directed may be required to attend at any place within 100 miles from the place where that person resides, is employed or transacts business in person, or is served, or at such other convenient place as is fixed by an order of court. (e) Subpoena for a Hearing or Trial. (1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within 100 miles of the place of the hearing or trial specified in the subpoena; and, when a statute of the United States provides therefor, or when the interests of justice may require, the court upon proper application and cause shown may authorize the service of a subpoena at any other place. (2) A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in 28 U.S.C. Sec. 1783. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of court. -SOURCE- (As amended June 19, 1985, eff. Oct. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991.) ------DocID 37477 Document 1339 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 46 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 46. Exceptions Unnecessary -STATUTE- Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37478 Document 1340 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 47 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 47. Jurors -STATUTE- (a) Number of Jurors. A jury shall consist of six persons, unless a greater number is specified in the local rules of the district court for the judicial district in which the case is to be tried. (b) Examination of Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. (c) Alternate Jurors. The court may direct that not more than four jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, two peremptory challenges if three or four alternate jurors are to be impanelled, and three peremptory challenges if five or six alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror. -SOURCE- (As amended July 21, 1986, eff. Oct. 1, 1986.) ------DocID 37479 Document 1341 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 48 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 48. Stipulation as to Juries - Majority Verdict -STATUTE- The parties may stipulate that the jury shall consist of any number less than the number of jurors otherwise required under Rule 47(a), or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. -SOURCE- (As amended July 21, 1986, eff. Oct. 1, 1986.) ------DocID 37480 Document 1342 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 49 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 49. Special Verdicts and Interrogatories -STATUTE- (a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. (b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37481 Document 1343 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 50 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict -STATUTE- (a) Motion for Directed Verdict - When Made - Effect. A party who moves for a directed verdict at the close of evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. (b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with the party's motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. (c) Motion for Judgment Notwithstanding the Verdict - Conditional Rulings on Grant of Motion. (1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. (2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 30 days after entry of the judgment notwithstanding the verdict. (d) Motion for Judgment Notwithstanding the Verdict - Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that this court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing this court to determine whether a new trial shall be granted. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT Rule 50(b) permits a party simultaneously to move for a new trial and for judgment notwithstanding the verdict. The time for filing a motion for a new trial in the court, 30 days, is governed by 28 U.S.C. Sec. 2646. To avoid confusion and inefficiency, Rule 50(b) provides the same 30-day filing period for any motion filed thereunder. In contrast, Rule 50(b) of the Federal Rules of Civil Procedure provides a 10-day period. However, motions for new trials in courts in which the Federal Rules of Civil Procedure apply are not subject to 28 U.S.C. Sec. 2646. Rule 50(c)(2) provides a 30-day period within which to move for a new trial pursuant to Rule 59. The corresponding period provided by Rule 50(c)(2) of the Federal Rules of Civil Procedure is 10 days. The lengthier period to file such a motion in the court is mandated by 28 U.S.C. Sec. 2646. ------DocID 37482 Document 1344 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 51 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 51. Instructions to Jury - Objection -STATUTE- At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37483 Document 1345 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 52 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 52. Findings by the Court -STATUTE- (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of this court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. (b) Amendment. Upon motion of a party, or upon its own motion, made not later than 30 days after the date of entry of the judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made an objection in this court to such findings or has made a motion to amend them or a motion for judgment. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985, eff. Oct. 1, 1985.) ------DocID 37484 Document 1346 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 53 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VI -HEAD- Rule 53. Masters -STATUTE- (a) Appointment and Compensation. The court, with the concurrence of a majority of all the judges, may appoint one or more standing masters, and a judge, to whom an action is assigned, may appoint a special master therein. As used in these rules, the word 'master' includes a referee, an auditor, an examiner, a commissioner, and an assessor. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody and control of the court, as the court may direct. The master shall not retain the master's report as security for the master's compensation, but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. (c) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order. The master may require the production before the master of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury. (d) Proceedings. (1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment. (2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be punished as for a contempt and be subject to the consequences, penalties, and remedies provided in Rules 37 and 45. (3) Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs. (e) Report. (1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing. (2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 7. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. The master's findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report. (4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. (5) Draft Report. Before filing the master's report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37485 Document 1347 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE VII -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- TITLE VII - JUDGMENT ------DocID 37486 Document 1348 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 54 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 54. Judgments -STATUTE- (a) Definition - Form. 'Judgment' as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37487 Document 1349 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 55 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 55. Default -STATUTE- (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as prescribed by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. (b) Judgment. Judgment by default may be entered as follows: In all cases the party entitled to a judgment by default shall apply to the court therefor. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with 10-days written notice of the application for judgment. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside as prescribed by Rule 60(b). (d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). (e) Judgment Against the United States. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37488 Document 1350 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 56 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 56. Summary Judgment -STATUTE- (a) For Claimant. A party seeking to recover upon a claim, counterclaim or cross-claim, or to obtain a declaratory judgment, may, at any time after the expiration of the initial time within which to file an answer or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim, counterclaim or cross-claim is asserted, or a declaratory judgment is sought, may, at any time after the filing of a complaint, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. (c) When Leave Is Required. A motion for summary judgment may not be filed by any party, except by order of the court upon motion, (1) after the action has been set for trial, or (2) after the filing of a stipulation of the parties or a pretrial memorandum containing all of the material facts, or (3) after the filing of his response to a motion for summary judgment by an adverse party. (d) Motion and Proceedings Thereon. A hearing upon a motion may be requested as prescribed by Rule 7(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (e) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (f) Form of Affidavits - Further Testimony - Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith, except that all papers and documents which are part of the official record of the action pursuant to Title IX of these rules may be referred to in an affidavit without attaching copies, and shall be considered by the court without additional certification. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. (i) Annexation of Statement. Upon any motion for summary judgment, there shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37489 Document 1351 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 56.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 56.1. Judgment Upon an Agency Record -STATUTE- (a) Motion for Judgment. After issue is joined in any action in which a party believes that the determination of the court is to be made solely upon the basis of the record made before an agency, that party may move for judgment in its favor upon all or any part of the agency determination. (b) Cross-Motions. When a motion for judgment upon an agency record is filed by a party, an opposing party shall not file a cross-motion for judgment upon an agency record. If the court determines that judgment ought to be entered in favor of an opposing party, it may enter judgment in favor of that party, notwithstanding the absence of a cross-motion. (c) Briefs. (1) In addition to the other requirements prescribed by these rules, the briefs submitted on the motion, either contesting or supporting the agency determination, shall include a statement setting forth in separate numbered paragraphs: (A) The administrative determination sought to be reviewed with appropriate reference to the Federal Register; and (B) The issues of law presented together with the reasons for contesting or supporting the administrative determination, specifying how the determination may be arbitrary, capricious, an abuse of discretion, not otherwise in accordance with law, unsupported by substantial evidence; or, how the determination may be unwarranted by the facts to the extent that the agency may or may not have considered facts which, as a matter of law, should or should not have been properly considered. (2) The brief shall include the authorities relied upon and the conclusions of law deemed warranted by the authorities. All references to the administrative record shall be made by citing the portions of the record to the factual or legal issues raised. Citations shall be by page number of the transcript, if any, and by specific identification of exhibits together with the relevant page number. (d) Time to Respond. A response to a motion for judgment upon an agency record shall be served within 30 days after service of the motion. The moving party shall have 10 days after service of the response to the motion to serve a reply. No other papers or briefs shall be allowed, except by leave of court. (e) Hearing. Upon motion of a party, or upon its own initiative, the court may direct oral argument on a motion for judgment upon an agency record at a time and place designated as prescribed in Rule 77(c). (f) Partial Judgment. After considering a motion filed under this rule, the court may grant judgment in whole or in part in favor of any party. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) -MISC1- PRACTICE COMMENT An action in which the determination of the court is to be made solely upon the basis of a record made before an agency shall be submitted for determination pursuant to this rule unless the court otherwise directs. As required by Rule 81(l), a reply brief in an action submitted for determination pursuant to this rule shall be confined to rebutting matters contained in the brief of the responding party. ------DocID 37490 Document 1352 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 57 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 57. Declaratory Judgments -STATUTE- The procedure for obtaining a declaratory judgment pursuant to 28 U.S.C. Sec. 2201, shall be in accordance with these rules and the right to trial by jury may be demanded under the circumstances and in the manner prescribed by Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for declaratory judgment. ------DocID 37491 Document 1353 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 58 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 58. Entry of Judgments, Decrees or Final Orders -STATUTE- Subject to the provisions of Rule 54(b), a judgment, decree or final order shall be entered upon every final decision from which an appeal lies, except an order of dismissal either pursuant to Rule 41(b)(1), or in an unassigned action pursuant to Rule 41(b)(2). Every such judgment, decree or final order shall be set forth on a separate document, signed by the court, and promptly entered by the clerk. A judgment, decree or final order is effective only when so set forth and entered as prescribed by Rule 79(a). Proposed forms of judgments, decrees or final orders shall not be submitted except upon direction of the court, or as required by these rules. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37492 Document 1354 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 58.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 58.1. Stipulated Judgment on Agreed Statement of Facts - General Requirements -STATUTE- An action described in 28 U.S.C. Sec. 1581(a) or (b) may be stipulated for judgment, at any time without brief or complaint or formal amendment of any pleading, by filing with the clerk of the court a stipulation for judgment on agreed statement of facts, signed by the parties or their attorneys, together with a proposed stipulated judgment. Within 5 days after a proposed stipulation for judgment on agreed statement of facts is served upon the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice, the plaintiff shall advise the court in writing of the date of that service. The proposed stipulated judgment on agreed statement of facts shall be substantially in the form set forth in Form 9 of the Appendix of Forms. -SOURCE- (Added Jan. 1, 1982.) ------DocID 37493 Document 1355 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 59 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 59. New Trials - Rehearings - Amendment of Judgments -STATUTE- (a) Grounds. A new trial or rehearing may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury or in an action finally determined, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial or rehearing shall be served and filed not later than 30 days after the entry of the judgment or order. (c) Time for Serving Affidavits. When a motion for a new trial or rehearing is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days by order of the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. (d) On Initiative of Court. Not later than 30 days after the entry of the judgment or order the court on its own initiative may order a new trial or rehearing for any reason for which it might have granted a new trial or rehearing on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial or rehearing, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor. (e) Motion To Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 30 days after the entry of the judgment. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT Rule 59(b) provides for a 30-day period within which to move for a new trial or rehearing. In contrast, Rule 59(b) of the Federal Rules of Civil Procedure provides for a 10-day period. The lengthier period is required by 28 U.S.C. Sec. 2646, a statute not applicable to the district courts. ------DocID 37494 Document 1356 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 60 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 60. Relief From Judgment or Order -STATUTE- (a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after such notice, if any, as the court directs. After an appeal is filed, such mistakes may be corrected with leave of the appellate court. (b) Mistakes, Inadvertence, Excusable Neglect - Newly Discovered Evidence - Fraud, Etc. On motion of a party or upon its own initiative and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in 28 U.S.C. Sec. 1655, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37495 Document 1357 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 61 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 61. Harmless Error -STATUTE- No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. ------DocID 37496 Document 1358 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 62 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VII -HEAD- Rule 62. Stay of Proceedings To Enforce a Judgment -STATUTE- (a) Automatic Stay - Exceptions - Injunctions. Except as stated herein or as otherwise ordered by the court, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 30 days after its entry. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal. (b) Stay on Motion for New Trial or Rehearing, or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of a judgment or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or rehearing or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b). (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. If the judgment appealed from is rendered by a three-judge panel, no such order shall be made except (1) by such court sitting in open court or (2) by the assent of all judges of such court evidenced by their signatures to the order. (d) Stay Upon Appeal. When an appeal is taken, the appellant, by giving a supersedeas bond, may obtain a stay subject to the exception contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. (e) Stay in Favor of the United States or Agency Thereof. When an appeal is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant. (f) Stay According to State Law. In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state. (g) Stay of Judgment as to Multiple Claims or Multiple Parties. When the court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT The court-ordered exception to the 30-day automatic stay under subdivision (a) is intended to permit timely enforcement of judgments in cases involving perishable merchandise, or where time is otherwise shown to be of the essence. ------DocID 37497 Document 1359 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE VIII -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS ------DocID 37498 Document 1360 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 63 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 63. Contempt -STATUTE- A proceeding to adjudicate a person in civil contempt of court, including a case provided for in Rule 37(b), shall be commenced by the service of a motion or order to show cause. The affidavit upon which the motion or order to show cause is based shall set out with particularity the misconduct complained of, the claim, if any, for damages occasioned thereby, and such evidence as to the amount of damages as may be available to the moving party. A reasonable counsel fee, necessitated by the contempt proceeding, may be included as an item of damage. Where the alleged contemnor has appeared in the action by an attorney, the notice of motion or order to show cause and the papers upon which it is based may be served upon the contemnor's attorney; otherwise service shall be made personally, in the manner provided for the service of a complaint. If an order to show cause is sought, such order may, upon necessity shown therefor, embody a direction to a United States marshal to arrest the alleged contemnor and hold him in bail in an amount fixed by the order, conditioned for the contemnor's appearance at the hearing, and further conditioned that the alleged contemnor will be thereafter amenable to all orders of the court for surrender. If the alleged contemnor puts in issue the alleged misconduct or the damages thereby occasioned, the alleged contemnor shall, upon demand therefor, be entitled to have oral evidence taken thereon, either before the court or before a master appointed by the court. When by law such alleged contemnor is entitled to a trial by jury, the alleged contemnor shall make written demand therefor on or before the return day or adjourned day of the application; otherwise the alleged contemnor will be deemed to have waived a trial by jury. In the event the alleged contemnor is found to be in contempt of court, an order shall be made and entered (1) reciting or referring to the verdict or findings of fact upon which the adjudication is based; (2) setting forth the amount of the damages to which the complainant is entitled; (3) fixing the fine, if any, imposed by the court, which fine shall include the damages found, and naming the person to whom such fine shall be payable; (4) stating any other conditions, the performance whereof will operate to purge the contempt; and (5) directing the arrest of the contemnor by a United States marshal, and confinement until the performance of the condition fixed in the order and the payment of the fine, or until the contemnor be otherwise discharged pursuant to law. The order shall specify the place of confinement. No party shall be required to pay or to advance to the marshal any expenses for the upkeep of the prisoner. Upon such an order, no person shall be detained in prison by reason of nonpayment of the fine for a period exceeding 6 months. A certified copy of the order committing the contemnor shall be sufficient warrant to the marshal for the arrest and confinement. The aggrieved party shall also have the same remedies against the property of the contemnor as if the order awarding the fine were a final judgment. In the event the alleged contemnor shall be found not guilty of the charges, the alleged contemnor shall be discharged from the proceeding. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37499 Document 1361 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 64 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 64. Seizure of Person or Property -STATUTE- At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the appropriate state law existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated, and regardless of whether the remedy by the appropriate state procedure is ancillary to an action or must be obtained by an independent action. ------DocID 37500 Document 1362 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 65 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 65. Injunctions -STATUTE- (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (b) Temporary Restraining Order - Notice - Hearing - Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37501 Document 1363 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 65.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 65.1. Security - Proceedings Against Sureties -STATUTE- Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known. The bond, stipulation, or other undertaking must be secured by a corporate surety holding a certificate of authority from the Secretary of the Treasury. Except as otherwise provided by law, where the amount has been fixed by a judge, all bonds, stipulations, or other undertakings, shall be approved by the judge. -SOURCE- (As amended Jan. 1, 1982; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT Circular No. 570, 'Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies', is published annually, as of July 1, in the Federal Register, under Fiscal Service, Bureau of Government Financial Operations. Interim changes in the circular are published in the Federal Register as they occur. Copies of the circular may be obtained from: Audit Staff, Bureau of Government Financial Operations, Department of the Treasury, Washington, D.C. 20226, Telephone: (202) 634-5010. ------DocID 37502 Document 1364 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 66 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 66. Receivers Appointed by Federal Courts -STATUTE- An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the district courts. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules. ------DocID 37503 Document 1365 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 67 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 67. Deposit in Court -STATUTE- In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of 28 U.S.C. Sec. 2041, 2042 and 2043; or any like statute. The fund shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff. Oct. 1, 1986.) ------DocID 37504 Document 1366 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 67.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 67.1. Deposit in Court Pursuant to Rule 67 -STATUTE- (a) Order for Deposit - Interest Bearing Account. Whenever a party seeks a court order for money to be deposited by the clerk in an interest-bearing account, the party shall file, by delivery or by mailing by certified mail, return receipt requested, the proposed order with the clerk or financial deputy who will inspect the proposed order for proper form and content and compliance with this rule prior to signature by the judge for whom the order is prepared. The proposed order shall be substantially in the form set forth in Form 16 of the Appendix of Forms. (b) Orders Directing Investment of Funds by Clerk. Any order obtained by a party or parties in an action that directs the clerk to invest in an interest-bearing account or instrument funds deposited in the registry of the court pursuant to 28 U.S.C. Sec. 2041 shall include the following: (1) the amount to be invested; (2) the name of the depository approved by the Treasurer of the United States as a depository in which funds may be deposited; (3) a designation of the type of account or instrument in which the funds shall be invested; (4) wording which directs the clerk to deduct from the income earned on the investment a fee, consistent with that authorized by the Judicial Conference of the United States and set by the Director of the Administrative Office, equal to the first 45 days of income earned on the investment, whenever such income becomes available for deduction from the investment so held and without further order of the court. -SOURCE- (Added Oct. 3, 1990, eff. Jan. 1, 1991.) ------DocID 37505 Document 1367 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 68 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 68. Attorney's Fees and Expenses -STATUTE- (a) Time for Filing. The court may award attorney's fees and expenses where authorized by law. Applications must be filed within 30 days after the date of entry by the court of a final judgment. (b) Content of Application. Each application for attorney's fees and expenses as provided for in subdivision (a) shall contain a citation to the authority which authorizes an award, and shall indicate the manner in which the prerequisites for an award have been fulfilled. In addition, each application shall contain a statement, under oath, which specifies: (1) the nature of each service rendered; (2) the amount of time expended in rendering each type of service; and (3) the customary charge for each type of service rendered. (c) Response and Reply. The responding party shall have 30 days from the date of service of the application to file a response. No other papers or briefs shall be allowed, except as the court, upon its own initiative, shall direct. -SOURCE- (Added Oct. 3, 1984, eff. Jan. 1, 1985.) -MISC1- PRACTICE COMMENT An application for attorney's fees and expenses shall be substantially in the form set forth in Form 15 of the Appendix of Forms. ------DocID 37506 Document 1368 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 69 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE VIII -HEAD- Rule 69. Execution -STATUTE- (a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which execution is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules, or in the manner provided by the practice of the state in which execution is sought. (b) Against Certain Public Officers. When a judgment has been entered against a collector or other officer of revenue under the circumstances stated in 28 U.S.C. Sec. 2006, and when the court has given the certificate of probable cause for the officer's act as provided in that statute, execution shall not issue against the officer or the officer's property but the final judgment shall be satisfied as provided in such statute. -SOURCE- (As amended July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37507 Document 1369 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE IX -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IX -HEAD- TITLE IX - FILING OF OFFICIAL DOCUMENTS ------DocID 37508 Document 1370 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 70 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IX -HEAD- Rule 70. Documents in an Action Described in 28 U.S.C. Sec. 1581(a) or (b) -STATUTE- Upon service of the summons on the Secretary of the Treasury, the appropriate customs officer shall forthwith transmit the following items, if they exist, to the clerk of the court, as part of the official record of the civil action: (1) consumption or other entry and the entry summary; (2) commercial invoice; (3) special customs invoice; (4) copy of protest or petition; (5) copy of denial, in whole or in part, of the protest or petition; (6) importer's exhibits; (7) official and other representative samples; (8) any official laboratory reports; and (9) copy of any bond relating to the entry. If any of the items do not exist in a particular action, an affirmative statement to that effect shall be transmitted to the clerk of the court as part of the official record. ------DocID 37509 Document 1371 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 71 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IX -HEAD- Rule 71. Documents in an Action Described in 28 U.S.C. Sec. 1581(c) or (f) -STATUTE- (a) Actions Described in 28 U.S.C. Sec. 1581(c). Unless the alternative procedure prescribed by subdivision (b) of this rule is followed, in an action described in 28 U.S.C. Sec. 1581(c), within 40 days after the date of service of the complaint on the administering authority established to administer title VII of the Tariff Act of 1930 or the United States International Trade Commission, the administering authority or the Commission shall file with the clerk of the court the items specified in paragraphs (1) and (2) of this subdivision (a), if they exist, and the certified list specified in paragraph (3) of this subdivision (a), as part of the official record of the civil action. (1) A copy of all information presented to or obtained by the administering authority or the Commission during the course of the administrative proceedings, including all governmental memoranda pertaining to the case and the record of ex parte meetings required to be maintained by section 777(a)(3) of the Tariff Act of 1930. (2) A copy of the determination and the facts and conclusions of law upon which such determination was based, all transcripts or records of conferences or hearings, and all notices published in the Federal Register. (3) A certified list of all items specified in paragraphs (1) and (2) of this subdivision (a). (b) Alternative Procedure in an Action Described in 28 U.S.C. Sec. 1581(c). As an alternative to the procedures prescribed in subdivision (a) of this rule in an action described in 28 U.S.C. Sec. 1581(c): (1) Within 40 days after the date of service of the complaint upon the administering authority or the International Trade Commission, the administering authority or the Commission may file with the clerk of the court a certified list of all items described in subdivisions (a)(1) and (a)(2) of this rule, along with a copy of the documents which the parties have designated will constitute the agency record. The administering authority or the International Trade Commission shall serve a copy of the certified list upon the plaintiff forthwith. (2) The agency shall retain the remainder of the record. All parts of the record shall be a part of the record on review for all purposes. (3) Upon request to the agency by a party, or by the court, at any time, any part of the record retained by the agency shall be filed by the agency with the clerk of the court forthwith, notwithstanding any prior stipulation or designations under paragraph (1) of this subdivision (b). (c) Confidential or Privileged Information in an Action Described in 28 U.S.C. Sec. 1581(c). In an action described in 28 U.S.C. Sec. 1581(c), any document, comment, or information that is accorded confidential or privileged status by the agency whose action is being contested and that is required to be filed with the clerk of the court, shall be filed under seal. Any such document, comment, or information shall be accompanied by a nonconfidential description of the nature of the material being transmitted. (d) Documents in an Action Described in 28 U.S.C. Sec. 1581(f). In an action described in 28 U.S.C. Sec. 1581(f), within 15 days after the date of service of the summons and complaint on the administering authority or the International Trade Commission, the administering authority or the Commission shall file, with the clerk of the court, under seal, the confidential information involved, together with pertinent parts of the record, which shall be accompanied by a nonconfidential description of the nature of the information being filed, as part of the official court record of the action. (e) Documents Filed - Copies. Certified copies of the original papers in the agency proceeding may be filed. (f) Filing of the Record With the Clerk of the Court - What Constitutes. The filing of the record shall be as prescribed by subdivision (a) of this rule, unless the parties follow the alternative procedure prescribed by subdivision (b) of this rule. In the latter event, if the parties have designated only parts of the record for filing, or if the parties stipulate to the filing of only a certified list, the filing of the designated parts of the record or certified list shall constitute filing of the record. -SOURCE- (As amended Oct. 3, 1990, eff. Jan. 1, 1991.) -MISC1- PRACTICE COMMENT The court has established Security Procedures for Safeguarding Confidential Information in the Custody and Control of the Clerk. These procedures apply to confidential information or privileged information received by the court and may include: trade secrets, commercial or financial information, and information provided to the United States by foreign governments or foreign businesses or persons. These procedures do not pertain to national security information. Section 11(a) of Security Procedures regulates the transmittal of confidential information to and from the clerk by government agencies and private parties. A copy of Section 11(a) is available upon request from, and is posted in, the Office of the Clerk. -REFTEXT- REFERENCES IN TEXT The Tariff Act of 1930, referred to in subd. (a), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended. Title VII of the Tariff Act of 1930 is classified generally to subtitle IV (Sec. 1671 et seq.) of chapter 4 of Title 19, Customs Duties. Section 777(a)(3) of the Tariff Act of 1930 is classified to section 1677f(a)(3) of Title 19. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. ------DocID 37510 Document 1372 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 72 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IX -HEAD- Rule 72. Documents in All Other Actions Based Upon the Agency Record -STATUTE- (a) Documents Furnished in All Other Actions Based Upon the Agency Record. Unless the alternative procedure prescribed by subdivision (b) of this rule is followed, in all actions in which judicial review is upon the basis of the record made before an agency, other than those actions described in Rules 70 and 71, within 40 days after the service of the summons and complaint upon the agency, the agency shall file with the clerk of the court the items specified in paragraphs (1), (2) and (3) of this subdivision (a), if they exist, and the certified list specified in paragraph (4) of this subdivision (a), as part of the official record of the civil action. (1) A copy of the contested determination and the findings or report upon which such determination was based. (2) A copy of any reported hearings or conferences conducted by the agency. (3) Any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency's action. The agency shall identify and file under seal any document, comment, or other information obtained on a confidential basis, including a nonconfidential description of the nature of such confidential document, comment or information. (4) A certified list of all items specified in paragraphs (1), (2) and (3) of this subdivision (a). (b) Stipulations. The parties may stipulate that fewer documents, comments, or other information than those specified in subdivision (a) of this rule shall be filed with the clerk of the court. The agency shall retain the remainder of the record. All parts of the record shall be part of the record on review for all purposes. Upon request to the agency by a party, or by the court, at any time, any part of the record retained by the agency shall be filed by the agency with the clerk of the court forthwith, notwithstanding any prior stipulation or designation under this subdivision. (c) Documents Filed - Copies. Certified copies of the original papers in the agency proceeding may be filed. ------DocID 37511 Document 1373 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 73 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE IX -HEAD- Rule 73. Time for Filing Documents - Notice of Filing -STATUTE- (a) Time. Upon motion of a party for good cause shown, or upon its own initiative, the court may shorten or extend the times for filing prescribed in the rules of this title. (b) Notice. The clerk shall give notice to all parties of the date on which the record is filed. ------DocID 37512 Document 1374 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE X -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE X -HEAD- TITLE X - ATTORNEYS ------DocID 37513 Document 1375 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 74 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE X -HEAD- Rule 74. Admission to Practice (FOOTNOTE 1) -STATUTE- (FOOTNOTE 1) An attorney admitted to practice before the United States Customs Court shall be deemed to be admitted to practice before the United States Court of International Trade. (a) Qualifications. An attorney of good moral character who has been admitted to practice before the Supreme Court of the United States, the highest court of any state, the District of Columbia, a territory or possession, any United States court of appeals, or any United States district court, and is in good standing therein, may be admitted to practice before this court. (b) Procedure. (1) An applicant for admission shall file with the clerk a completed application, on the form shown in Form 10 of the Appendix of Forms, to be provided by the clerk. (2) The applicant shall be admitted either (A) upon oral motion by a member of the bar of this court or of the Supreme Court of the United States, before a judge of this court who will administer the following oath: I, XXXXXX, do solemnly swear (or affirm) that I will faithfully conduct myself as an attorney and counselor at law of this court uprightly and according to law, and that I will support the Constitution of the United States, so help me God. or (B) upon the filing of a certificate of a judge or of the clerk of any of the courts specified in subdivision (a) of this rule stating that the applicant is a member of the bar of such court and is in good standing therein. (3) The applicant shall pay to the clerk a fee of $25, and shall be entitled to a certificate of admission. The clerk, as trustee, shall deposit the fee in a special account in a bank designated by the court and shall make expenditures from the special account as directed by the court. (c) Admission of Foreign Attorneys. An attorney, barrister, or advocate who is qualified to practice at the bar of the court of any foreign state which extends a like privilege to members of the bar of this court may be specially admitted for purposes limited to a particular action. The applicant shall not, however, be authorized to act as attorney of record. In the case of such an applicant, the oath shall not be required and there shall be no fee. Such admission shall be granted only on motion of a member of the bar of this court. (d) Pro Hac Vice Applications. An attorney who is eligible for admission to practice under subdivision (a) of this rule, and who has been retained to appear in a particular action by a legal services program may, upon written application and in the discretion of the court, be permitted to specially appear and participate in the particular action. A pro hac vice applicant shall state under penalty of perjury (i) the attorney's residence and office address, (ii) the court to which the applicant has been admitted to practice and the date of admission thereof, (iii) that the applicant is in good standing and eligible to practice in said court, (iv) that the applicant is not currently suspended or disbarred in any other court, and (v) if the applicant has concurrently or within the year preceding the current application made any pro hac vice application to this court, the title and the number of each action wherein such application was made, the date of the application, and whether or not the application was granted. If the pro hac vice application is granted, the attorney is subject to the jurisdiction of the court with respect to the attorney's conduct to the same extent as a member of the bar of this court, and no application fee is required. (e) Disbarment or Other Disciplinary Action. (1) Initiation of Proceedings. When a certificate is received from the clerk of any court, or a complaint supported by an affidavit filed with the clerk of this court, setting forth any of the following facts concerning a member of the bar of this court: (A) that the attorney has resigned from the bar of the Supreme Court of the United States or any other federal court, or from any court of record of any state, territory, or possession; (B) that he has been disbarred, suspended from practice or censured in the Supreme Court of the United States or any other federal court, or in any court of record of any state, territory, or possession; (C) that he has been convicted of a crime involving moral turpitude; or (D) that he has been guilty of dishonest or unethical conduct; the clerk of this court shall forthwith deliver such certificate or complaint to the chief judge of this court. (2) Sufficiency. The chief judge shall preliminarily examine such certificate or complaint and rule upon its sufficiency prima facie. If the chief judge deems the facts insufficient on their face to warrant disciplinary action, the chief judge shall so advise the complainant and the attorney named. (3) Investigation and Prosecution. Where the certificate or complaint is deemed sufficient prima facie, the chief judge shall appoint a committee, consisting of three members of the bar of this court, to which the certificate or complaint shall be referred. It shall then be the duty of the committee to investigate the facts involved in such resignation, disbarment or suspension from practice or other facts alleged in the certificate or complaint. If, in the committee's judgment, probable cause for disbarment, suspension, or disciplinary action exists, it shall then be the duty of the committee to proceed against the attorney by an order signed by the chief judge setting forth the charges against the attorney and requiring the attorney, within 30 days after service of the order upon the attorney by delivery or by registered or certified mail, return receipt requested, to show cause as to why disciplinary action should not be taken. (4) Appearance. The attorney named in the order to show cause may appear in person and may be represented by an attorney and shall have the right to file any answer which, in the attorney's opinion, the proceedings may warrant. (5) Hearing and Report. The chief judge shall designate three judges of the court who shall hear the matter, after due notice to the attorney named in the order, and who shall then report their findings of facts and conclusions of law together with their recommendations to the full court. (6) Action by the Court. The full court, after consideration of the record, may enter an order disbarring, suspending or otherwise disciplining such member of the bar, or dismissing the proceedings, or making such other disposition of the case as may be warranted by the record. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) ------DocID 37514 Document 1376 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 75 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE X -HEAD- Rule 75. Practice - Appearance - Substitution of Attorneys - Withdrawal of Attorney - Notification of Changes -STATUTE- (a) Practice. Only an attorney admitted to the bar of the court may practice before the court, except that an individual may represent himself in an action. An attorney who is employed or retained by the United States, or an agency or officer thereof, may enter an appearance, file pleadings, and practice in this court in cases in which the United States or the agency is a party. (b) Appearances. (1) Except for an individual (not a corporation, partnership, organization or other legal entity) appearing pro se, each party and amicus curiae must appear through an attorney authorized to practice before the court. If a summons, pleading or other paper provided for in these rules bears the name, address and telephone number of a member of the bar of this court, the attorney shall be recognized as the attorney of record and no separate notice of appearance shall be required of the attorney. Provided, however, that an attorney representing the United States, or an agency or officer thereof, who is not otherwise admitted to practice before the court, shall serve a separate notice of appearance as prescribed by paragraph (2) of this subdivision (b). (2) In all other instances, an attorney authorized to appear in an action shall serve a separate notice of appearance for each action. The notice shall be substantially in the form as set forth in Form 11 of the Appendix of Forms. An appearance may be made by an individual attorney or a firm of attorneys. If the appearance is made by a firm of attorneys the individual attorney responsible for the litigation shall be designated. (c) Substitution of Attorneys. A party who desires to substitute an attorney may do so by serving a notice of substitution upon the prior attorney of record and the other parties. The notice shall be substantially in the form as set forth in Form 12 of the Appendix of Forms. If the prior attorney of record wishes to be heard by the court on the substitution, that attorney may, by motion, request such relief as the attorney deems appropriate. (d) Withdrawal of Attorney. An attorney of record may withdraw an appearance only by order of the court, upon motion served upon the attorney's client and the other parties. (e) Notification of Changes. Whenever there is any change in the name of an attorney of record, the attorney's address or telephone number, prompt written notice shall be served upon the other parties. -SOURCE- (As amended July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT When a party is represented in an action by more than one attorney of record, the party shall designate only one attorney of record to serve, file and receive service of pleadings and other papers on behalf of the party. ------DocID 37515 Document 1377 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 76 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE X -HEAD- Rule 76. Amicus Curiae -STATUTE- The filing of a brief by an amicus curiae may be allowed upon a motion made as prescribed by Rule 7, or at the request of the court. The brief may be conditionally filed with the motion. The motion for leave shall identify the interest of the applicant and shall state the reasons why an amicus curiae is desirable. An amicus curiae shall file its brief within the time allowed the party whose position the amicus curiae brief will support unless the court for cause shown shall grant leave for later filing. In that event the court shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. -MISC1- PRACTICE COMMENT To provide information to assist a judge in determining whether there is reason for disqualification upon the grounds of a financial interest, under 28 U.S.C. Sec. 455, a completed 'Disclosure Statement' form, available upon request from the office of the clerk, must be filed by certain corporations, trade associations, and others appearing as parties, intervenors, or amicus curiae. A copy of the 'Disclosure Statement' form is shown in Form 13 of the Appendix of Forms. ------DocID 37516 Document 1378 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE XI -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- TITLE XI - THE COURT AND CLERK ------DocID 37517 Document 1379 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 77 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 77. Sessions of the Court -STATUTE- (a) Court Always Open. The court shall be deemed always open and in continuous session for transacting judicial business on all business days throughout the year. Emergency matters may be presented to and heard by the court at any time. (b) Trials and Proceedings - Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers with or without the attendance of the clerk or other court officials. (c) Place of Trials or Hearings. (1) In New York City. The judge to whom an action is assigned may designate the date of any trial or hearing to be held in, or continued to, New York City. (2) Other Than New York City. The chief judge may, as authorized by 28 U.S.C. Sec. 253(b) and 256(a), designate the place and date of any trial or hearing to be held at, or continued to, any place other than New York City within the jurisdiction of the United States. (3) Foreign Countries. The chief judge may, as authorized by 28 U.S.C. Sec. 256(b), authorize a judge to preside at any evidentiary hearing in a foreign country. (d) Photography, Tape Recording and Broadcasting. The taking of photographs, or the use of recording devices in the courtroom or its environs, or radio or television broadcasting from the courtroom or its environs, in connection with judicial proceedings is prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings. Environs as used in this rule, shall include: (1) the entire United States Court of International Trade Courthouse at One Federal Plaza, New York, New York; and (2) any place within the jurisdiction of the United States where a judge may preside at a trial or hearing pursuant to 28 U.S.C. Sec. 256(a). (e) Assignment and Reassignment of Actions. (1) Assignment to Single Judge. All actions shall be assigned by the chief judge to a single judge, except as prescribed in paragraph (2) of this subdivision (d). (2) Assignment to Three-Judge Panel. An action may be assigned by the chief judge to a three-judge panel either upon motion, or upon the chief judge's own initiative, when the chief judge finds that the action raises an issue of the constitutionality of an Act of Congress, a proclamation of the President, or an Executive order; or has broad or significant implications in the administration or interpretation of the law. (3) Time of Assignment. Actions shall be assigned by the chief judge as follows: in an action commenced under 28 U.S.C. Sec. 1581(a) or (b), upon a request for trial or submission of a dispositive motion; in all other actions, upon joinder of issue or submission of a dispositive motion; in any action, at any time, upon motion for good cause shown or upon the chief judge's own initiative. (4) Reassignment. An action may be reassigned by the chief judge upon the death, resignation, retirement, illness or disqualification of the judge to whom it was assigned, or upon other special circumstances warranting reassignment. (5) Disability of a Judge. If by reason of death, sickness or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of facts and conclusions of law are filed, then the action may be reassigned by the chief judge to another judge who may perform those duties; but if the other judge is satisfied that such other judge cannot perform those duties because such other judge did not preside at the trial or for any other reason, such other judge may in such other judge's discretion grant a new trial. (f) Judge and Court - Defined. The word 'judge' as used in these rules means the single judge or three-judge panel to whom an action is assigned or a matter is referred. The word 'court' as used in these rules means, unless the context of a particular rule clearly indicates otherwise, the single judge or three-judge panel to whom an action is assigned or a matter is referred. -SOURCE- (As amended, Apr. 28, 1987, eff. June 1, 1987; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT To implement the authority conferred upon the chief judge by 28 U.S.C. Sec. 253(b) and 256(a), and for the convenience of parties, there is set out in the instructions for Form 6, in the Appendix of Forms, a list of tentative dockets and the procedures to be followed in connection with trials or oral arguments of dispositive motions at places other than New York City. ------DocID 37518 Document 1380 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 77.1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 77.1. Judicial Conference -STATUTE- (a) Purpose. The chief judge is authorized to summon annually the judges of the court to a judicial conference, at a time and place the chief judge designates, for the purpose of considering the business of the court and improvements in the administration of justice in the court. The chief judge shall preside at the conference. (b) Composition. All members of the bar of this court may be members of the conference and participate in its discussions and deliberations. (c) Registration Fee. A registration fee shall be paid by attendees of the conference, and shall be applied to the payment of the expenses of the conference, as approved by the chief judge. -SOURCE- (Added July 21, 1986, eff. Oct. 1, 1986.) ------DocID 37519 Document 1381 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 78 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 78. Motion Part -STATUTE- (a) Motion Part - Establishment. A Motion Part is established for hearing and determining all motions in actions which have not been assigned to a judge or proceedings which are not otherwise provided for in these rules. (b) Motion Part - Referral. The clerk shall refer motions ready for disposition to the Motion Part judge for hearing and determination. The Motion Part judge shall: determine the motion; or refer the motion to another judge who previously determined a related motion in the action; or refer the matter to the chief judge with a recommendation that the action be assigned to a judge. (c) Motion Part - Emergency Matters. (1) An emergency matter is one which because of special circumstances requires extraordinary priority and immediate disposition. (2) The Motion Part judge will be available, on call, to hear and determine an emergency matter at any time. (3) The clerk shall refer to the Motion Part judge any emergency matter arising in an unassigned action, or in an assigned action when the assigned judge is unavailable. (4) The Motion Part judge shall dispose of the emergency matter only to the extent necessary to meet the emergency, and the action shall otherwise be continued for disposition by the judge to whom the action has been or will be assigned. (5) If the Motion Part judge decides that an emergency matter should not be determined, for lack of emergency or other reason, he shall refer the matter for determination in the ordinary course. ------DocID 37520 Document 1382 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 79 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 79. Books and Records Kept by the Clerk and Entries Therein -STATUTE- (a) Civil Docket. The clerk shall keep a book known as a 'Civil Docket,' on one or more looseleaf sheets for each action, and shall enter therein each action filed with the court. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the sheet of the Civil Docket whereon the first entry of the actions is made. All papers filed with the clerk and all judgments and orders shall be entered chronologically in the Civil Docket on the sheet assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed and the substance of each judgment or order. The entry of an order or judgment shall show the date the entry is made. When in an action, trial by jury has been properly demanded or ordered, the clerk shall enter the word 'jury' on the sheet assigned to that action. (b) Judgments and Orders. The clerk shall keep as a permanent record a 'Judgment and Order Book' in which there shall be filed, in serially-numbered chronological sequence in looseleaf binders, a correct copy of every final judgment or appealable order, together with all opinions, decisions, or findings of fact and conclusions of law upon which it is based, and any other order which the court may direct to be kept. Every such final judgment or appealable order shall, from time to time but no less frequently than annually, be permanently bound. (c) Notice of Orders or Judgments. (1) Upon the entry of a judgment, the clerk shall, by delivery or by mailing, serve upon each party and, if appropriate, the district director of the customs district in which the action arose, a notice of entry of the judgment, together with a copy of the judgment, opinion, decision, or findings of fact and conclusions of law upon which it is based. (2) Upon the entry of an order, the clerk shall serve upon each party, by delivery or by mailing, a notice of entry of the order, together with a copy of the order and any accompanying memorandum. (3) Lack of notice of the entry by the clerk does not affect the time to appeal or relieve, or authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure or by the rules of the United States Court of Appeals for the Federal Circuit. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37521 Document 1383 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 80 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 80. Papers, Exhibits and Other Material -STATUTE- (a) Custody and Control. All papers, exhibits and other material filed with or transmitted to the court shall be retained by the clerk of the court, under the clerk's custody and control except when required by the court. When requested by an attorney for a party, papers, exhibits and other material may be transmitted by the clerk to an appropriate customs officer. Notice of the request shall be given to all other parties by the party filing the request. (b) Inspection. Any person may inspect all papers, exhibits and other material in an action except where restricted by statute or by order of the court. Unless otherwise directed by the court, entry papers, invoices and laboratory reports shall be available only to the party to whose merchandise the papers, invoices and reports relate, or to the attorney of record for that party, or to an attorney for the United States, or an officer of the United States Customs Service. (c) Withdrawal. (1) Any person may withdraw the papers, exhibits and other material, which that person is authorized to inspect as prescribed in subdivision (b) of this rule, to a designated place in the court. The papers, exhibits and other material shall be returned to the office of the clerk no later than the close of business on the day of withdrawal. Upon request of a party, the clerk may permit papers, exhibits and other material to be withdrawn to a designated place in the offices of the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice, for not more than 30 days, provided that they shall be returned immediately to the office of the clerk upon notice from the clerk. (2) Whenever any person withdraws papers, exhibits and other material, that person shall sign and leave with the clerk a receipt describing what has been withdrawn. (d) Return and Removal. When a judgment or order of the court has become final, papers, exhibits, and other material transmitted to the court pursuant to 28 U.S.C. Sec. 2635, shall be returned by the clerk, together with a copy of the judgment or order, to the agency from which they were transmitted. All exhibits shall be removed from the custody of the clerk by the party who filed them within 60 days after the judgment or order of the court has become final. A party who fails to comply with this requirement shall be notified by the clerk that, if the exhibits are not removed within 30 days after the date of the notice, the clerk may dispose of them as the clerk may see fit. Any expense or cost pertaining to the removal of exhibits as prescribed by this rule shall be borne by the party who filed them. (e) Reporting of Proceedings. Each session of the court and every other proceeding designated by order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, as prescribed by regulations promulgated by the Judicial Conference of the United States and subject to the discretion and approval of the judge. Proceedings to be recorded include: all proceedings in open court unless the parties, with the approval of the judge, shall agree specifically to the contrary; and such other proceedings as a judge may direct, or as may be required by rule or order of the court, or as may be requested by any party to the proceeding. The court reporter or other individual designated to produce the record shall attach an official certificate to the original shorthand notes or other original records so taken and promptly file them with the clerk of the court who shall preserve them in the public records of the court for not less than ten years. (f) Transcript of Proceedings. The court reporter or other individual designated to produce the record shall transcribe and certify such parts of the record of proceedings as may be required by rule or order of the court or direction of a judge. Upon the request of any party to the proceeding which has been so recorded, who has agreed to pay the fee therefor, or of a judge of the court, the court reporter or other individual designated to produce the record shall promptly transcribe the original records of the requested parts of the proceedings and attach to the transcript an official certificate, and deliver the certified transcript to the clerk of the court for the public records of the court. The certified transcript in the Office of the Clerk shall be open during office hours to inspection by any person without charge, except where restricted by statute or order of the court. (g) Fees. Except as otherwise provided by these rules, the clerk shall collect in advance from the parties such fees for services as are consistent with the 'Judicial Conference Schedule of Additional Fees for the United States District Courts.' (1) Reproductions. Reproductions of original records may be given to any person who is authorized to inspect original records as prescribed in subdivision (b) of this rule. (2) Transcripts. The clerk of the court may require any party requesting a transcript to prepay the estimated fee in advance except for transcripts that are to be paid for by the United States. -SOURCE- (As amended Jan. 1, 1982; Jan. 1, 1983; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT From time to time, the Judicial Conference of the United States establishes fees for services performed by the clerk. The rates applicable at any time are available, upon request, from and are posted in the Office of the Clerk. ------DocID 37522 Document 1384 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 81 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 81. Papers Filed - Conformity - Form, Size, Copies -STATUTE- (a) Conformity Required. All papers filed with the court shall be produced, duplicated, and filed in conformity with these rules as to means of production, methods of duplication, form and size, and number of copies. (b) Means of Production. All papers shall be plainly and legibly typewritten or otherwise produced by any duplicating or copying process. (c) Caption and Signing. All papers shall bear a caption in conformity with Rule 7 and shall be signed in conformity with Rule 11. (d) Numbering of Pages. The pages of each paper shall be numbered consecutively, commencing with the number 1. (e) Designation of Originals. When multiple copies of a paper are filed, one shall be designated as the original by the party. (f) Pleadings and Other Papers. Unless otherwise provided by these rules, all papers shall be filed in duplicate, only the original of which need be signed. Pleadings and other papers shall be 8 1/2 by 11 inches in size. Pages shall be numbered on the bottom portion thereof and bound or attached on the top margin. Typed matter shall be double spaced except quoted material which may be indented and single spaced, and except titles, schedules, tables, graphs, columns of figures, and other interspersed material which are more readable in a form other than double spaced. (g) Status of Action. Papers filed after an action has been commenced shall identify, with respect to each action affected by the papers, the court number assigned to the action, the court calendar on which the action is listed; and, if the action has been assigned, the name of the judge to whom the action has been assigned or reassigned. (h) Confidential Information. (1) If a party deems it necessary to refer in a pleading, motion, brief or other paper to confidential or privileged information, two sets of the pleadings, motions, briefs or other papers shall be filed. (a) Confidential Set. One set of the pleadings, motions, briefs or other papers shall be labeled 'Confidential' on the cover page and be filed with the clerk of the court. In addition, each page containing confidential material shall bear a legend so indicating. (b) Nonconfidential Set. The second set of pleadings, motions, briefs or other papers shall be labeled 'Nonconfidential' on the cover page and be filed with the clerk of the court. In addition, each page of the 'nonconfidential' set from which confidential or privileged information has been deleted shall bear a legend so stating. (2) Each party to the action shall be served with one copy of the 'nonconfidential' pleading, motion, brief or other paper, and, when permitted by an applicable protective order, one copy of the 'confidential' pleading, motion, brief or other paper, in accordance with Rule 5. (3) Non-Availability to the Public. The 'confidential' set of pleadings, motions, briefs or other papers filed with the court shall be available only to authorized court personnel and shall not be made available to the public. (i) Briefs - Trial and Pretrial Memoranda. Briefs, trial and pretrial memoranda shall be filed in duplicate and shall be 8 1/2 by 11 inches in size. Pages shall be numbered on the bottom portion thereof and bound or attached on the left margin. Typed matter shall be double spaced, except quoted material which may be indented and single spaced, and except titles, schedules, tables, graphs, columns of figures, and other interspersed material which are more readable in a form other than double spaced. (j) Content - Moving Party's Brief. The brief of the moving party shall contain under proper headings and arranged in the following order: (1) a table of contents; (2) a table of statutes, regulations, and cases cited, giving the volume and page in the official editions where they may be found, and arranging the cases in alphabetical order; (3) in an action involving a specific importation, a brief description of the merchandise, country of origin and of exportation, date of exportation, date of entry, and port of entry; (4)(A) in actions involving classification, the verbatim paragraph or paragraphs or item or items of the tariff statute under which the merchandise was assessed, and the verbatim paragraph or paragraphs or item or items under which it is claimed that the merchandise is properly dutiable, together with any other verbatim pertinent statutory provisions or regulations; (B) in actions involving valuation, the statutory basis of appraisement and the unit of value at which the merchandise was appraised, and the claimed statutory basis of value and unit of value, together with the verbatim pertinent statutory provisions; (5) the questions presented for decision, including all subsidiary questions involved; (6) a concise statement of facts relevant to the issues with a specific citation to the page or pages in the record or exhibits supporting each such material fact; (7) a summary of argument, which shall be succinct, but accurate and clear, condensation of the contentions made in the body of the brief; (8) an argument, exhibiting clearly the contentions of the party with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, exhibits, and pages of the record relied upon; (9) a short conclusion stating the relief sought. (k) Content - Respondent's Brief. The brief of the respondent shall conform to the requirements prescribed in subdivision (j) of this rule, except that no statement of the facts need be made beyond what may be deemed necessary to correct any inaccuracies or omissions in the moving party's brief, and except that items (3), (4) and (5) need not be included unless the respondent is dissatisfied with their presentation by the moving party. (l) Content - Reply Brief. A reply brief shall be confined to rebutting matters contained in the brief of the respondent. (m) General. Briefs must be compact, concise, logically arranged, and free from burdensome, irrelevant, immaterial and scandalous matter. Briefs not complying with this rule may be disregarded by the court. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) -MISC1- PRACTICE COMMENT All decisions of the United States Court of International Trade are published in: slip opinion form; the Customs Bulletin; and the official reports of the United States Court of International Trade. Certain decisions will also be published in the Federal Supplement or the Federal Rules Decisions. The rules of citation for papers filed in the court are as follows: 1. Slip Opinions When citing a slip opinion, one should cite the slip opinion number, together with the volume number of the official reports, if available, and full date of publication. This form is used until the opinion appears in full in the United States Court of International Trade Reports (CIT). Examples Carlisle Tire and Rubber Co. v. United States, 5 CIT XX, Slip Op. 83-43 (May 18, 1983); OR, if the volume number is not available, XX CIT XX, Slip Op. 83-43 (May 18, 1983). 2. Published Opinions After an opinion appears in the official CIT reports, Federal Supplement (F.Supp.), or Federal Rules Decisions (F.R.D.), the slip opinion is no longer used, and the citation is to the official reports, and unofficial reports, if available, together with the year of publication. One should not cite the Customs Bulletin and Decisions in any event. Example American Shack Co. v. United States, 1 CIT 1 (1980). If the opinion is also published in F.Supp. or F.R.D., citation of these reporters should follow the citation of the official reports. Examples Zenith Radio Corp. v. United States, 1 CIT 53, 505 F.Supp. 216 (1980) (or 99 F.R.D. 100 (1980)); NOT, 1 CIT 53, Slip Op. 80-10, 505 F.Supp. 216 (1980). 3. Customs Court Opinions The form of citation for opinions of the United States Customs Court remains the same. Examples Labay Int'l, Inc. v. United States, 83 Cust. Ct. 152, C.D. 4834 (1979); OR, if there is a F.Supp. or F.R.D. cite, Alberta Gas Chems., Inc. v. United States, 84 Cust. Ct. 217, C.R.D. 80-1, 483 F.Supp. 303 (1980). 4. Abstracts Abstracts of decisions not supported by an opinion should be numbered, published, and cited. These abstracts include decisions and judgments on agreed statements of facts, on motions for summary judgments, and on motions for judgments on the pleadings in only classification and valuation cases. Examples Uniroyal, Inc. v. United States, 84 Cust. Ct. 275, Abs. P80/59 (1980); Nichimen Co. v. United States, 1 CIT 234, Abs. R81/20 (1981). 5. Decisions of the Board of General Appraisers Citation of the decisions of the Board of General Appraisers should be as follows: Example In re Pickhardt & Kuttroff, T.D. 20,728, 1 Treas. Dec. 373 (1897). 6. Court of Customs Appeals Opinions Citation of the opinions of the Court of Customs Appeals (Ct. Cust. App.) should be as follows: Example Kahlen v. United States, 2 Ct. Cust. App. 206 (1911). 7. Court of Customs and Patent Appeals Citation of opinions of the Court of Customs and Patent Appeals (CCPA) should be as follows: Examples Coro, Inc. v. United States, 41 CCPA 215, C.A.D. 554 (1954); OR, if there is an F.2d cite, United States v. Mabay Chem. Corp., 65 CCPA 53, C.A.D. 1206, 576 F.2d 368 (1978). 8. Court of Appeals for the Federal Circuit Due to the discontinuation of the CCPA Reports, all Federal Circuit opinions should be by F.2d cite or, if not available, by case number unless the Federal Circuit decides to publish its opinions in a successor to the CCPA reporter. Examples Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380 (Fed. Cir. 1983), OR, if the F.2d cite is not available, Jarvis Clark Co. v. United States, No. 83-1106 (Fed. Cir. May 2, 1984); NOT, Jarvis Clark Co. v. United States, Appeal No. 83-1106, Slip Op. (C.A.F.C. May 2, 1984). 9. Statutes Citation of statutes of the United States should include both the popular name of the act and the title and section of the United States Code. a) Citation of a statute as it appears in a sentence in text. Example Plaintiff moves for certification pursuant to section 222(3) of the Trade Act of 1974, 19 U.S.C. Sec. 2272(3) (1982). b) Citation standing alone. Example Trade Act of 1974, Sec. 222(3), 19 U.S.C. Sec. 2272(3) (1982). 10. Rules Citation of the rules of this court and its predecessor court, the Customs Court, should be as follows: a) Rules of the United States Court of International Trade Example USCIT R. 56 b) Rules of the United States Customs Court Example Cust. Ct. R. 4.6 11. Miscellaneous Ellipsis (. . .) Pursuant to rule 5.3 of A Uniform System of Citation, when a word or words are omitted from quoted material it should be indicated by an ellipsis (. . .), and not asterisks (* * *). For further rules of citation, reference may be made to A Uniform System of Citations (The Harvard Law Review Association). For punctuation, capitalization, abbreviations, and other matters of style, reference may be made to the U. S. Government Printing Office Style Manual. Assistance in citing recent decisions of this court may be obtained from the court librarian (212-264-2816). The court has established Security Procedures for Safeguarding Confidential Information in the Custody and Control of the Clerk. These procedures apply to confidential information or privileged information received by the court and may include: trade secrets, commercial or financial information, and information provided to the United States by foreign governments or foreign businesses or persons. These procedures do not pertain to national security information. Section 11(a) of the Security Procedures regulates the transmittal of confidential information to and from the clerk by government agencies and private parties. A copy of Section 11(a) is available upon request from, and is posted in, the Office of the Clerk. ------DocID 37523 Document 1385 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 82 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XI -HEAD- Rule 82. Clerk's Office and Orders by the Clerk -STATUTE- (a) Business Hours and Address. The office of the clerk shall be open between 9:00 a.m. and 4:00 p.m. on all days except Saturdays, Sundays, and legal holidays, (FOOTNOTE 1) at: (FOOTNOTE 1) As used in these rules, 'legal holidays' include: New Year's Day, January 1; Martin Luther King's Birthday, third Monday in January; Washington's Birthday, third Monday in February; Memorial Day, last Monday in May; Independence Day, July 4; Labor Day, first Monday in September; Columbus Day, second Monday in October; Veterans Day, November 11; Thanksgiving Day, fourth Thursday in November; Christmas Day, December 25; and any other day designated as a holiday by the President or the Congress of the United States. Office of the Clerk of the Court United States Court of International Trade One Federal Plaza New York, New York 10007 (212) 264-2800 (b) Motions, Orders and Judgments. The clerk may dispose of the following types of motions and sign the following types of orders and judgments without submission to the court, but the clerk's action may be suspended, altered or rescinded by the court for good cause shown: (1) Motions on consent in unassigned cases extending the time within which to plead, move or respond. (2) Motions on consent in unassigned cases for the discontinuance or dismissal of the action. (3) Orders of dismissal upon notice as prescribed by Rule 41(a)(1) and 41(b)(2). (4) Stipulated judgments on agreed statements of facts as prescribed by Rule 58.1. (5) Orders of dismissal for lack of prosecution as prescribed by Rules 83(c), 85(d), and 86(b). (c) Clerk - Definition. The words 'clerk' or 'clerk of the court' as used in these rules include a deputy clerk designated by the clerk to perform services of the kind provided for in these rules. (d) Filing of Papers. The clerk shall not accept for filing any pleading, motion, brief or other paper, or shall return without further processing a paper which has been filed, which does not comply with the procedural requirements of the rules or practice of the court. A party aggrieved by such action may move to compel the clerk to accept the paper for filing. -SOURCE- (As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985, eff. Oct. 1, 1985; July 28, 1988, eff. Nov. 1, 1988.) -MISC1- PRACTICE COMMENT Included among, but not limited to, the kinds of papers the clerk may not accept for filing pursuant to subdivision (d) of this rule, for failing to conform with the procedural requirements of the rules or practice of the court, are the following: replies to non-dispositive motions without leave of court; discovery documents presented contrary to Rule 5(d); papers not signed as required by Rule 11; papers which do not correctly identify the status of actions as required by Rule 81(g); papers presented by an attorney who is not the attorney of record; and, papers presented after periods prescribed by the rules or orders of the court. ------DocID 37524 Document 1386 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE TITLE XII -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- TITLE XII - COURT CALENDARS ------DocID 37525 Document 1387 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 83 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 83. Reserve Calendar -STATUTE- (a) Reserve Calendar. A Reserve Calendar is established on which any action commenced by the filing of a summons shall be placed when the action is commenced. An action may remain on the Reserve Calendar for a 12-month period. The applicable 12-month period shall run from the last day of the month in which the action is commenced until the last day of the 12th month thereafter. (b) Removal. An action may be removed from the Reserve Calendar upon (1) assignment, (2) filing of a complaint, (3) granting of a motion for consolidation pursuant to Rule 42, (4) granting of a motion for suspension under a test case pursuant to Rule 84, or (5) filing of a stipulation for judgment on agreed statement of facts pursuant to Rule 58.1. (c) Dismissal for Lack of Prosecution. An action not removed from the Reserve Calendar within the 12-month period shall be dismissed for lack of prosecution and the clerk shall enter an order of dismissal without further direction from the court unless a motion is pending. If a pending motion is denied and less than 10 days remain in which the action may remain on the Reserve Calendar, the action shall remain on the Reserve Calendar for 10 days from the date of entry of the order denying the motion. (d) Notice. At least 30 days prior to the expiration of the 12-month period, the clerk shall notify the parties in writing that the action shall be dismissed in accordance with subdivision (c) of this rule unless removed from the Reserve Calendar within the applicable time period. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37526 Document 1388 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 84 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 84. Suspension Calendar -STATUTE- (a) Suspension Calendar. A Suspension Calendar is established on which an action described in 28 U.S.C. Sec. 1581(a) and (b) may be suspended, by order of the court, pending the final determination of a test case. (b) Test Case Defined. A test case is one which (1) has been so designated by order of the court upon a motion for test case designation made after issue is joined, or (2) has been submitted to the court for decision. (c) Suspension Criteria. An action may be suspended under a test case if the action involves an issue of fact or a question of law which is to be the same as an issue of fact or question of law involved in the test case. (d) Motion for Suspension. A motion for suspension shall include, in addition to the requirements of Rule 7, (1) the title and court number of the action for which suspension is requested, (2) the title and court number of the test case, and (3) a concise statement of the issue of fact or question of law alleged to be the same in both actions. (e) Time. A motion for suspension may be made at any time, and may be joined with a motion for designation of a test case as prescribed by subdivision (b) of this rule. (f) Effect of Suspension. An order suspending an action shall stay all further proceedings and filing of papers in the suspended action unless the court otherwise directs. (g) Removal From Suspension. A suspended action may be removed from the Suspension Calendar only upon a motion for removal. A motion for removal may be granted solely for the purpose of moving the action toward final disposition. An order granting a motion for removal shall specify the terms, conditions and period of time within which the action shall be finally disposed. ------DocID 37527 Document 1389 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 85 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 85. Suspension Disposition Calendar -STATUTE- (a) Suspension Disposition Calendar. A Suspension Disposition Calendar is established on which an action which was suspended under a test case shall be placed after the test case is finally determined, dismissed or discontinued. (b) Time - Notice. An action may remain on the Suspension Disposition Calendar for a period to be established by the judge to whom the action was assigned, or by the judge who decided the test case. This period shall not exceed 18 months from the time the action is placed on the Suspension Disposition Calendar. The clerk shall notify the parties of the date on which the action will be dismissed for lack of prosecution unless removed from the Suspension Disposition Calendar. (c) Removal. An action may be removed from the Suspension Disposition Calendar upon: (1) filing of a complaint, (2) filing of a demand for an answer when a complaint previously was filed, (3) granting of a motion for consolidation pursuant to Rule 42, (4) granting of a motion for suspension under another test case pursuant to Rule 84, (5) filing of a stipulation for judgment on agreed statement of facts pursuant to Rule 58.1, (6) granting of a dispositive motion, (7) filing of a request for trial, or (8) granting of a motion for removal. (d) Dismissal for Lack of Prosecution. An action not removed from the Suspension Disposition Calendar within the established period shall be dismissed for lack of prosecution, and the clerk shall enter an order of dismissal without further direction of the court, unless a motion is pending. If a pending motion is denied and less than 10 days remain in which the action may remain on the Suspension Disposition Calendar, the action shall remain on the Suspension Disposition Calendar for 10 days from the date of entry of the order denying the motion. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37528 Document 1390 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 86 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 86. Joined Issue Calendar -STATUTE- (a) Joined Issue Calendar. A Joined Issue Calendar is established on which an unassigned action shall be placed when issue is joined. An action may remain on the Joined Issue Calendar for a 6-month period. The applicable 6-month period shall run from the last day of the month in which the answer was filed until the last day of the 6th month thereafter. (b) Dismissal. At the expiration of the applicable 6-month period an unassigned action on the Joined Issue Calendar shall be dismissed for lack of prosecution, and the clerk shall enter an order of dismissal without further direction from the court unless a motion is pending. (c) Notice. At least 30 days prior to the entry of an order of dismissal, the clerk shall send notice to the parties informing them that the action will be dismissed as prescribed by this rule. -SOURCE- (As amended Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37529 Document 1391 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 87 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 87. Forms -STATUTE- The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate. -SOURCE- (Added Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37530 Document 1392 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 88 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 88. Title -STATUTE- These rules may be known and cited as the Rules of the United States Court of International Trade. -SOURCE- (Added Oct. 3, 1984, eff. Jan. 1, 1985.) ------DocID 37531 Document 1393 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Rule 89 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE TITLE XII -HEAD- Rule 89. Effective Date -STATUTE- (a) Effective Date of Original Rules. These rules shall take effect on November 1, 1980, the effective date of the Customs Courts Act of 1980. They govern all proceedings in actions commenced thereafter and then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work an injustice, in which event the former procedure applies. However, when a party is required or has been requested prior to the effective date of these rules to perform an act, pursuant to the Rules of the United States Customs Court in effect prior to the effective date of these rules, the act may still be performed in accordance with the rules in effect prior to the effective date of these rules. (b) Effective Date of Amendments. The amendments adopted by the court on November 4, 1981, shall take effect on January 1, 1982. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (c) Effective Date of Amendment. The amendment adopted by the court on December 29, 1982, shall take effect on January 1, 1983. It governs all proceedings in actions brought after it takes effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in a particular action pending when the amendment takes effect would not be feasible or would work injustice, in which event the former procedure applies. (d) Effective Date of Amendments. (1) The amendments adopted by the court on October 3, 1984, shall take effect on January 1, 1985. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except as provided for in paragraph (2) of this subdivision. (2)(A) Rule 16 shall apply to all actions assigned on or after the effective date of these amendments and may apply to any action assigned before the effective date at the discretion of the judge to whom the action is assigned. (B) As to pending actions, the amendments apply, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure applies. (e) Effective Date of Amendments. The amendments adopted by the court on June 19, 1985, shall take effect on October 1, 1985. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (f) Effective Date of Amendments. The amendments adopted by the court on July 21, 1986, shall take effect on October 1, 1986. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (g) Effective Date of Amendments. The amendments adopted by the court on December 3, 1986, shall take effect on March 1, 1987. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (h) Effective Date of Amendments. The amendments adopted by the court on April 28, 1987, shall take effect on June 1, 1987. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (i) Effective Date of Amendments. The amendments adopted by the court on July 28, 1988, shall take effect on November 1, 1988. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (j) Effective Date of Amendments. The amendments adopted by the court on October 3, 1990, shall take effect on January 1, 1991. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. -SOURCE- (Added Oct. 3, 1984, eff. Jan. 1, 1985, and amended June 19, 1985, eff. Oct. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; Dec. 3, 1986, eff. Mar. 1, 1987; Apr. 28, 1987, eff. June 1, 1987; July 28, 1988, eff. Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991.) ------DocID 37532 Document 1394 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- APPENDIX OF FORMS -MISC1- General Instructions Specific Instructions Complaint Allegations --------------------------------------------------------------------- Forms Rule --------------------------------------------------------------------- 1 Summons in 28 U.S.C. 3(a)(1) Sec. 1581(a) 2 Summons in 28 U.S.C. 3(a)(1) Sec. 1581(b) 3 Summons in 28 U.S.C. 3(a)(2) Sec. 1581(c) 4 General Summons 3(a) 5 Information Statement 3(b) 6 Request for Trial 40(a) 7 Notice of Dismissal 41(a)(1)(A) 8 Stipulation of 41(a)(1)(B) Dismissal 9 Stipulated Judgment 58.1 on Agreed Statement of Facts 10 Application for 74(b) Admission 11 Notice of Appearance 75(b)(2) 12 Substitution of 75(c) Attorney 13 Disclosure of Practice Comment to Corporate Rules 3, 24, 76 Affiliations and Financial Interest 14 Notice and 4(c)(1)(C)(ii) Acknowledgment of Receipt of Summons and Complaint 15 Application for Fees 68 and Other Expenses Pursuant to the Equal Access to Justice Act. 28 U.S.C. Sec. 2412(d), Title II of Public Law 96- 481, 94 STAT. 2325 and USCIT R. 68 16 Order of Deposit and 67.1 Investment ------------------------------- GENERAL INSTRUCTIONS 1. The forms contained in this Appendix of Forms are intended for use as samples, except for those forms which, when required, are to be obtained from the office of the clerk, viz., Forms 5, 10 and 13. 2. No attempt is made to furnish a manual of forms; and the forms are limited in number. For other forms, reference may be made when appropriate to the Appendix of Forms to the Federal Rules of Civil Procedure. 3. Except when otherwise indicated, each pleading and other paper must have a caption similar to that of the summons, with the designation of the particular paper substituted for the word, 'Summons.' 4. In the caption of the summons and of the complaint, all parties must be named; but in other pleadings and papers, it is sufficient to name the first party on either side, with an appropriate indication of other parties. 5. A motion must contain a designation below the caption indicating the nature of the motion, e.g., 'DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.' A response to a motion, or a reply to a response when allowed, must contain a similar designation. 6. Papers filed after an action is commenced must set out to the right of the caption: the court number assigned to the action; the court calendar (Reserve, Suspension, Suspension Disposition, or Joined Issue Calendar) on which the action is listed; and, if the action has been assigned, the name of the judge to whom it is assigned. 7. Each pleading or other paper is to be signed in his individual name by at least one attorney of record. The attorney's name is to be followed by his mailing address and telephone number. If the attorney of record is a firm of attorneys, the firm name, and the name of the individual attorney responsible for the litigation, must appear on every pleading or other paper. A party represented by more than one attorney of record must designate only one attorney of record to serve, file and receive service of pleadings and other papers on behalf of the party. If an individual is not represented by an attorney, the signature, mailing address, and telephone number of the individual are required in place of those of an attorney. 8. When a summons, pleading or other paper includes a schedule of actions, the schedule must: a. not list both assigned and unassigned actions; b. not include actions assigned to more than one judge; c. list the actions in numerical order; d. indicate the court calendar, if any, in which the action is pending; and e. list the protest or customs numbers in numerical order. SPECIFIC INSTRUCTIONS Form 1 This form of summons is to be used only in those actions described in 28 U.S.C. Sec. 1581(a). The summons must be filed together with a $10 filing fee and a completed Information Statement (Form 5). The summons form (copies of which may be obtained from the office of the clerk) consists of three pages. The first page is to be completed with the required information pertaining to the denied protest. The second page is to be completed with the required information pertaining to the administrative decision contested in the action. The third page is to be completed with a schedule of protests, listed in numerical order, when more than one denied protest is included in the action. When the action includes protests denied at one port of entry, the original and four copies of the summons must be filed. When the action includes protests denied at more than one port of entry, an additional copy of the summons must be filed at the same time for the protests denied at each such additional port of entry. Form 2 This form of summons is to be used only in those actions described in 28 U.S.C. Sec. 1581(b). The summons must be filed together with a $10 filing fee and a completed Information Statement (Form 5). The summons form (copies of which may be obtained from the office of the clerk) consists of two pages. The first page is to be completed with the required information pertaining to the entry involved in the action. The second page is to be completed with the required information pertaining to the administrative decision contested in the action. When the action includes entries involving one consignee and one port of entry, the original and five copies of the summons must be filed. When the action includes entries involving more than one consignee or more than one port of entry, an additional copy of the summons must be filed at the same time for each such additional consignee and each such additional port of entry. Form 3 This form of summons is to be used only in those actions described in 28 U.S.C. Sec. 1581(c). It is to be used both: (1) when the action is commenced by filing a summons only (i.e., to contest a determination listed in section 516A(a)(2) or (3) of the Tariff Act of 1930); and (2) when the action is commenced by filing concurrently a summons and a complaint (i.e., to contest a determination listed in section 516A(a)(1) of the Tariff Act of 1930). The summons must be filed together with a $50 filing fee, a completed Information Statement (Form 5) and a completed Disclosure of Corporate Affiliations and Financial Interest (Form 13). When the clerk of the court is required to make service of the summons (i.e., those actions commenced by filing a summons only), the original and one copy of the summons must be filed with an additional copy for each defendant to be served; and the back of the summons must list the complete name and mailing address of each defendant to be served. When the plaintiff is required to make service of the summons (i.e., those actions commenced by filing concurrently a summons and a complaint), the original and one copy of the summons must be filed with proof of service. Before making service of the summons, plaintiff must obtain a court number from the office of the clerk and endorse the number on the summons. For this purpose, a court number may be assigned to the action and obtained by telephone request. (As amended July 21, 1986, eff. Oct. 1, 1986.) Form 4 This form of summons is to be used in all actions other than those actions in which the form of summons to be used is Form 1, 2, or 3. The original and one copy of the summons must be filed with proof of service, a $50 filing fee, and a completed Information Statement (Form 5). Before making service of the summons, plaintiff must obtain a court number from the office of the clerk and endorse the number on the summons. For this purpose, a court number may be assigned to the action and obtained by telephone request. Form 5 The Information Statement, which must be filed when an action is commenced, is a form available from the office of the clerk. The original and one copy of the completed Information Statement must be filed. The information supplied by a plaintiff on an Information Statement is to be used solely for administrative purposes by the office of the clerk, and is not to be used to supply, modify, limit or expand information otherwise required to be supplied, or contained in the summons, pleadings or other papers. Form 6 The original and one copy of a Request for Trial must be filed after service as prescribed in Rule 40(a). After receipt of a Request for Trial and any opposition, the court will designate the date and place for trial. As prescribed in Rule 77(c), the judge to whom the action is assigned will designate the date of the trial to be held at, or continued to, New York City; and the chief judge will designate the place and date of the trial to be held at, or continued to, any place other than New York City. To implement the authority conferred upon the chief judge by 28 U.S.C. Sec. 253(b) and 256(a), and for the convenience of parties in requesting trials at places other than New York City, there is set out below a list of tentative dockets, arranged according to the 11 Judicial Circuits of the United States, showing the months for which trials may be requested within each Judicial Circuit at any place where a United States District Court is located. In addition, upon request of a party showing that the interests of justice, economy or efficiency will be served, the chief judge may designate a trial to be held at a time or place different from those which are listed below. After receipt of a request for a trial at a place other than New York City and any opposition to the request, the chief judge may issue an order. The order, which will set the place and date of, and designate a judge to preside at, the trial will be issued to the parties by the clerk of the court at least 15 days before the scheduled date, or such shorter time as the chief judge may deem reasonable. Tentative Dockets --------------------------------------------------------------------- Federal Judicial Months Circuit --------------------------------------------------------------------- FIRST: (Maine, March September Massachusetts, New Hampshire, Rhode Island, Puerto Rico) SECOND: April October (Connecticut, New York, Vermont) THIRD: (Delaware, February August New Jersey, Pennsylvania, Virgin Islands) FOURTH: (Maryland, January July North Carolina, South Carolina, Virginia, West Virginia) FIFTH: (Alabama, January July Florida, Georgia, Louisiana, Mississippi, Texas, Canal Zone) SIXTH: (Kentucky, May November Michigan, Ohio, Tennessee) SEVENTH: (Illinois, May November Indiana, Wisconsin) EIGHTH: (Arkansas, June December Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota) NINTH: (Alaska, February August Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) TENTH: (Colorado, April October Kansas, New Mexico, Oklahoma, Utah, Wyoming) DISTRICT OF COLUMBIA March September ------------------------------- Form 7 A Notice of Dismissal which, as prescribed by Rule 41(a)(1)(A), may be filed by plaintiff at any time before service of an answer or motion for summary judgment, must be substantially in the form set forth in Form 7, and must include for each action noticed for dismissal: the court number; the court calendar (Reserve, Suspension, Suspension Disposition, or Joined Issue Calendar); the customs number or the protest number; and the port of entry. A Notice of Dismissal may include, on an attached schedule, more than one action, provided that all the actions listed on the schedule are pending in the same court calendar and arose from the same port of entry. When more than one port of entry is involved in the action, an additional copy of the notice of dismissal, together with a separate schedule, must be filed for each additional port of entry. Form 8 A Stipulation of Dismissal which, as prescribed by Rule 41(a)(1)(B), may be filed by plaintiff, must be substantially in the form set forth in Form 8, and must include for each action stipulated for dismissal: the court number; the court calendar (Reserve, Suspension, Suspension Disposition, or Joined Issue Calendar); the customs number or the protest number; and the port of entry. A Stipulation of Dismissal may include, on an attached schedule, more than one action, provided that all the actions listed on the schedule are pending in the same court calendar and arose from the same port of entry. When more than one port of entry is involved in the action, an additional copy of the stipulation of dismissal, together with a separate schedule, must be filed for each such additional port of entry. Form 9 As prescribed in Rule 58.1, an action described in 28 U.S.C. Sec. 1581(a) or (b) may be stipulated for judgment on an agreed statement of facts. The plaintiff must notify the office of the clerk in writing of the fact that a proposed stipulation for judgment on agreed facts has been submitted within 5 days after the proposed stipulation for judgment on agreed facts is served upon the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice. If the stipulation for judgment involves a valuation issue, it shall, whenever practicable, in addition to other information required by law, contain the following: (1) the name or invoice description of the merchandise; (2) the statutory basis of appraisement and the amount of the appraised value or the equivalent thereof; (3) the statutory basis under which the merchandise is claimed to be dutiable; (4) the claimed dutiable value; (5) a statement that the protest was filed, and the action commenced, within the time provided by law, and that all liquidated duties have been paid; however, if an appeal for reappraisement is involved, there shall be a statement that the appeal was filed within the time provided by law; and (6) a statement of the facts necessary to bring the merchandise within the claimed statutory basis of value. If the stipulation for judgment involves an issue other than a valuation issue, it shall, wherever practicable, in addition to other information required by law, contain the following: (1) the name or invoice description of the merchandise; (2) the tariff description under which the merchandise was classified; (3) the tariff paragraph or item number, including all modifications and amendments thereof, under which the merchandise was classified, and the rate of duty imposed; (4) the tariff description under which the merchandise is claimed to be classifiable; (5) the tariff paragraph or item number, including all modifications and amendments thereof, under which the merchandise is claimed to be classifiable, and the rate of duty claimed to be applicable; (6) a statement that the protest was filed, and the action commenced within the time provided by law, and that all liquidated duties have been paid; (7) a statement of facts sufficient to bring the merchandise within the claimed statutory provision; and (8) if the stipulation for judgment involves an issue other than the classification of, or rate of duty chargeable upon, an importation: (i) a statement identifying the nature of the protested decision, (ii) a concise statement of the claim or claims made with regard to the disputed decision, and the relief requested by plaintiff, and (iii) a concise statement of facts sufficient to sustain the aforesaid claims as a matter of law. The proposed stipulated judgment on agreed statement of facts shall be substantially in the form set forth in Form 9, with appropriate additions and deletions if the action does not involve valuation or classification. COMPLAINT ALLEGATIONS The forms of allegations set out below are intended to indicate the allegations which should be included in the particular civil actions. Actions Described in 28 U.S.C. Sec. 1581(a) or (b) (a) General: The complaint in a civil action should set forth: (1) a statement of the basis of the court's jurisdiction; (2) a statement of plaintiff's standing in the action; (3) a statement that the protest was timely filed; (4) a statement, when appropriate, that all liquidated duties have been paid; (5) a description of the merchandise involved; (6) a specification of the contested customs decision or decisions; and (7) a demand for judgment for the relief to which plaintiff deems himself entitled. (b) Value: If the contested customs decision involves the value of merchandise, the complaint should also set forth: (1) the date and country of exportation; (2) a statement of the appraised value or values; (3) a statement of the claimed statutory basis or bases of value; (4) a statement of the amount or amounts of the unit value claimed to be the correct value or values, or a statement of how the claimed value may be computed; and (5) concise allegations of plaintiff's contentions of fact and law in support of the above. (c) Classification: If the contested customs decision involves the classification of merchandise, the complaint should also set forth: (1) the tariff paragraph or item number of the statute, including all modifications and amendments thereof, under which the merchandise was classified, and the rate of duty imposed; (2) the tariff description and the paragraph or item number of the statute, including all modifications and amendments thereof, under which the merchandise is claimed to be properly subject to classification, and the rate of duty claimed to be applicable; and (3) concise allegations of plaintiff's contentions of fact and law in support of the above. (d) Other: If the contested customs decision involves any other administrative decision, the complaint should also set forth: (1) a statement of the nature of the alleged error in the decision; and (2) concise allegations of plaintiff's contentions of fact and law in support of plaintiff's position. *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37533 Document 1395 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37534 Document 1396 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37535 Document 1397 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 1 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37536 Document 1398 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37537 Document 1399 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 2 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37538 Document 1400 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 3 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37539 Document 1401 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 3 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 3 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37540 Document 1402 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 4 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 4 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37541 Document 1403 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 5 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 5 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37542 Document 1404 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 6 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 6 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37543 Document 1405 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 7 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 7 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37544 Document 1406 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 7 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 7 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37545 Document 1407 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 8 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 8 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37546 Document 1408 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 8 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 8 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37547 Document 1409 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37548 Document 1410 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37549 Document 1411 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 3 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37550 Document 1412 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 4 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37551 Document 1413 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 5 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37552 Document 1414 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 9 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 9 -STATUTE- Page 6 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37553 Document 1415 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 10 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 10 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37554 Document 1416 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 11 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 11 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37555 Document 1417 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 12 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 12 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** -STATUTE- SAVE PAGE FOR ILLUSTRATION ------DocID 37556 Document 1418 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 13 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 13 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37557 Document 1419 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 13 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 13 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37558 Document 1420 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 14 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 14 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37559 Document 1421 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 14 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 14 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37560 Document 1422 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 15 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 15 -STATUTE- Page 1 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37561 Document 1423 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 15 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 15 -STATUTE- Page 2 *** ILLUSTRATIONS OR TABLE DATA OMITTED *** SAVE PAGE FOR ILLUSTRATION ------DocID 37562 Document 1424 of 1452------ -CITE- 28 USC APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE Form 16 -EXPCITE- TITLE 28 APPENDIX RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE APPENDIX OF FORMS -HEAD- Form 16 ------DocID 38488 Document 1425 of 1452------ -CITE- 30 USC Sec. 28 -EXPCITE- TITLE 30 CHAPTER 2 -HEAD- Sec. 28. Mining district regulations by miners: location, recordation, and amount of work; marking of location on ground; records; annual labor or improvements on claims pending issue of patent; co-owner's succession in interest upon delinquency in contributing proportion of expenditures; tunnel as lode expenditure -STATUTE- The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims made after May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year. On all claims located prior to the 10th day of May 1872, $10 worth of labor shall be performed or improvements made each year, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. Upon the failure of any one of several coowners to contribute his proportion of the expenditures required hereby, the coowners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures. The period within which the work required to be done annually on all unpatented mineral claims located since May 10, 1872, including such claims in the Territory of Alaska, shall commence at 12 o'clock meridian on the 1st day of September succeeding the date of location of such claim. Where a person or company has or may run a tunnel for the purposes of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since May 10, 1872; and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by this section. On all such valid claims the annual period ending December 31, 1921, shall continue to 12 o'clock meridian July 1, 1922. -SOURCE- (R.S. Sec. 2324; Feb. 11, 1875, ch. 41, 18 Stat. 315; Jan. 22, 1880, ch. 9, Sec. 2, 21 Stat. 61; Aug. 24, 1921, ch. 84, 42 Stat. 186; Aug. 23, 1958, Pub. L. 85-736, Sec. 1, 72 Stat. 829.) -COD- CODIFICATION R.S. Sec. 2324 derived from act May 10, 1872, ch. 152, Sec. 5, 17 Stat. 92. -MISC3- AMENDMENTS 1958 - Pub. L. 85-736 changed period for doing annual assessment work on unpatented mineral claims, substituting '1st day of September' for '1st day of July'. ADMISSION OF ALASKA AS STATE Admission of Alaska into the Union was accomplished Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85-508, July 7, 1958, 72 Stat. 339, set out as notes preceding section 21 of Title 48, Territories and Insular Possessions. ASSESSMENT WORK YEARS, 1957-58 AND 1958-59 Section 2 of Pub. L. 85-736 provided that the period commencing in 1957 for the performance of annual assessment work under this section shall end at 12 o'clock meridian on the 1st day of July 1958, and the period commencing in 1958 for the performance of such annual assessment work shall commence at 12 o'clock meridian on the 1st day of July 1958, and shall continue to 12 o'clock meridian on Sept. 1, 1959. -CROSS- CROSS REFERENCES Alaska, annual labor or improvements on mining claims, see section 49e of this title. Extension of time for annual assessment work on lands containing valuable source material, see note under section 541a of this title. Michigan, Minnesota and Wisconsin mineral lands, see section 48 of this title. Temporary deferment of annual assessment work on mining claims, see section 28b et seq. of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 24, 28-1, 28b, 29, 33, 37, 38, 39, 40, 42, 46, 47, 48, 49, 102, 541b of this title; title 16 section 460mm-1; title 25 section 640d-10; title 43 sections 1712, 1714, 1732; title 50 App. section 565. ------DocID 38489 Document 1426 of 1452------ -CITE- 30 USC Sec. 28-1 -EXPCITE- TITLE 30 CHAPTER 2 -HEAD- Sec. 28-1. Inclusion of certain surveys in labor requirements of mining claims; conditions and restrictions -STATUTE- The term 'labor', as used in the third sentence of section 28 of this title, shall include, without being limited to, geological, geochemical and geophysical surveys conducted by qualified experts and verified by a detailed report filed in the county office in which the claim is located which sets forth fully (a) the location of the work performed in relation to the point of discovery and boundaries of the claim, (b) the nature, extent, and cost thereof, (c) the basic findings therefrom, and (d) the name, address, and professional background of the person or persons conducting the work. Such surveys, however, may not be applied as labor for more than two consecutive years or for more than a total of five years on any one mining claim, and each such survey shall be nonrepetitive of any previous survey on the same claim. -SOURCE- (Pub. L. 85-876, Sec. 1, Sept. 2, 1958, 72 Stat. 1701.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 28-2 of this title; title 16 section 460mm-1; title 43 section 1744. ------DocID 38490 Document 1427 of 1452------ -CITE- 30 USC Sec. 28-2 -EXPCITE- TITLE 30 CHAPTER 2 -HEAD- Sec. 28-2. Definitions -STATUTE- As used in section 28-1 of this title, (a) The term 'geological surveys' means surveys on the ground for mineral deposits by the proper application of the principles and techniques of the science of geology as they relate to the search for and discovery of mineral deposits; (b) The term 'geochemical surveys' means surveys on the ground for mineral deposits by the proper application of the principles and techniques of the science of chemistry as they relate to the search for and discovery of mineral deposits; (c) The term 'geophysical surveys' means surveys on the ground for mineral deposits through the employment of generally recognized equipment and methods for measuring physical differences between rock types or discontinuities in geological formations; (d) The term 'qualified expert' means an individual qualified by education or experience to conduct geological, geochemical or geophysical surveys, as the case may be. -SOURCE- (Pub. L. 85-876, Sec. 2, Sept. 2, 1958, 72 Stat. 1701.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 16 section 460mm-1. ------DocID 39094 Document 1428 of 1452------ -CITE- 30 USC CHAPTER 28 -EXPCITE- TITLE 30 CHAPTER 28 -HEAD- CHAPTER 28 - MATERIALS AND MINERALS POLICY, RESEARCH, AND DEVELOPMENT -MISC1- Sec. 1601. Congressional statement of findings; 'materials' defined. 1602. Congressional declaration of policies. 1603. Implementation of policies. 1604. Program administration. (a) President; preparation of plan and submission to Congress of report. (b) Director of Office of Science and Technology Policy; coordination, etc., activities. (c) Secretary of Commerce; consultative, etc., requirements; identification and assessment activities. (d) Secretary of Defense and other Cabinet members; assessment, etc., activities. (e) Secretary of the Interior; initiation of actions; report. (f) Secretary of the Interior; collection, evaluation, and analysis activities concerning information. 1605. Applicability to other statutory national mining and minerals policies. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 1803, 1804 of this title. ------DocID 39707 Document 1429 of 1452------ -CITE- 33 USC Sec. 28 -EXPCITE- TITLE 33 CHAPTER 1 SUBCHAPTER II -HEAD- Sec. 28. Crum River; old channel at mouth, Delaware Bay -STATUTE- After the channel of the Crum River where the same empties into the Delaware River has been changed, diverted, and straightened under the authority given to Alba B. Johnson and Samuel M. Vauclain and the Baldwin Locomotive Works by Act July 27, 1916, chapter 260, the said Crum River, as so straightened, shall be a public navigable stream, and the course and channel of the said river, as it existed July 27, 1916, from the right-of-way of the Philadelphia and Reading Railway Company to the low-water line in the Delaware River shall be abandoned and vacated when the above-mentioned new channel shall have been completed to a depth of four feet at mean low water, with a bottom width of sixty-two feet and width of one hundred feet at mean low-water level: Provided, That the Government shall have such right, title, and interest in and to the bed of said new channel as will assure the public the right to the perpetual use of said channel for all the purposes of navigation and commerce. -SOURCE- (July 27, 1916, ch. 260, Sec. 1, 39 Stat. 393.) -REFTEXT- REFERENCES IN TEXT Act July 27, 1916, chapter 260, referred to in text, is act July 27, 1916, ch. 260, 39 Stat. 393, which is classified to sections 7, 25, 28, 38, 424, and 648 to 650 of this title. For complete classification of this Act to the Code, see Tables. -COD- CODIFICATION Section is from a provision of section 1 of act July 27, 1916, popularly known as the 'Rivers and Harbors Appropriation Act of 1916'. The portion of that section authorizing the changing, diverting, and straightening of the channel of the river has been omitted as temporary and executed. ------DocID 40663 Document 1430 of 1452------ -CITE- 33 USC CHAPTER 28 -EXPCITE- TITLE 33 CHAPTER 28 -HEAD- CHAPTER 28 - POLLUTION CASUALTIES ON THE HIGH SEAS: UNITED STATES INTERVENTION -MISC1- Sec. 1471. Definitions. 1472. Grave and imminent danger from oil pollution casualties to coastline or related interests of United States; Federal nonliability for Federal preventive measures on the high seas. 1473. Consultations and determinations respecting creation of hazards to human health, etc.; criteria for determinations respecting grave and imminent dangers of major harmful consequences to United States coastline or related interests. 1474. Federal intervention actions. 1475. Consultation procedure. 1476. Emergencies. 1477. Reasonable measures; considerations. 1478. Personal, flag state, and foreign state considerations. 1479. Federal liability for unreasonable damages. (a) Payment of compensation. (b) Jurisdiction. (c) Burden of proof. 1480. Notification by Secretary of State. 1481. Violations; penalties. 1482. Consultation for nomination and nomination of experts, negotiators, etc.; proposal of amendments to list of substances other than convention oil; Presidential acceptance of amendments. (a) Nomination of experts and proposal of amendments to list of substances. (b) Consultations for designation or nomination of negotiators, etc., provided for by convention and protocol. (c) Presidential acceptance of amendments to list of substances other than convention oil in accordance with protocol. 1483. Foreign government ships; immunity. 1484. Interpretation and administration; other right, duty, privilege, or immunity and other remedy unaffected. 1485. Rules and regulations. 1486. Oil Spill Liability Trust Fund. 1487. Effective date. -SECREF- CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 2702, 2703, 2704 of this title; title 42 section 9611. ------DocID 41073 Document 1431 of 1452------ -CITE- 35 USC CHAPTER 28 -EXPCITE- TITLE 35 PART III CHAPTER 28 -HEAD- CHAPTER 28 - INFRINGEMENT OF PATENTS -MISC1- Sec. 271. Infringement of patent. 272. Temporary presence in the United States. ------DocID 41163 Document 1432 of 1452------ -CITE- 36 USC Sec. 28 -EXPCITE- TITLE 36 CHAPTER 2 -HEAD- Sec. 28. Annual report -STATUTE- On or before the 1st day of April of each year the said Boy Scouts of America shall make and transmit to Congress a report of its proceedings for the year ending December 31 preceding. -SOURCE- (June 15, 1916, ch. 148, Sec. 8, 39 Stat. 229; Aug. 30, 1964, Pub. L. 88-504, Sec. 4(1), 78 Stat. 636.) -MISC1- AMENDMENTS 1964 - Pub. L. 88-504 struck out ', including a full, complete, and itemized report of receipts and expenditures, of whatever kind' after 'December 31 preceding'. ------DocID 41677 Document 1433 of 1452------ -CITE- 36 USC CHAPTER 28 -EXPCITE- TITLE 36 CHAPTER 28 -HEAD- CHAPTER 28 - NATIONAL MUSIC COUNCIL -MISC1- Sec. 661. Corporation created. 662. Completion of organization. 663. Objects and purposes of Corporation. 664. Powers of Corporation. 665. Principal office; territorial scope of activities; agent for service of process. 666. Membership; voting rights. 667. Governing body; composition; tenure. 668. Officers. 669. Distribution of income or assets to members; loans. 670. Nonpolitical nature of Corporation. 671. Liability for acts of officers and agents. 672. Prohibition against issuance of stock or payment of dividends. 673. Books and records; inspection. 674. Repealed. 675. Use of assets on dissolution or liquidation. 676. Exclusive right to name, seals, emblems, and badges. 677. Agents for service of process. 678. Acquisition of assets and liabilities of existing corporation. 679. Effective date. 680. Reservation of right to amend or repeal chapter. ------DocID 43575 Document 1434 of 1452------ -CITE- 38 USC APPENDIX - RULES OF COURT OF VETERANS APPEALS Rule 28 -EXPCITE- TITLE 38 APPENDIX -HEAD- Rule 28. Briefs -STATUTE- (a) Appellant's Brief. The appellant's brief must contain the appropriate headings and, in this order: (1) a table of contents, with page references; (2) a table of cases (alphabetically listed), statutes, and other authorities cited, with references to the page of the brief where they are cited, unless the case is expedited under Rule 47; (3) a statement of the issues; (4) a statement of the case, showing briefly the nature of the case, the course of proceedings, the result below, and the facts relevant to the issues, with appropriate references to the record; (5) an argument, beginning with a summary, and containing the appellant's contentions with respect to the issues and the reasons for them, with citations to the authorities and parts of the record relied on; and (6) a short conclusion stating the precise relief sought. (b) Secretary's Brief. (1) The Secretary's brief must conform to the requirements of subsection (a) of this rule, but a statement of the issues or of the case need not be made unless the Secretary is dissatisfied with the appellant's statement. (2) If the Secretary wishes to confess error as to any issue or issues raised by appellant, but not as to all the issues raised, and the relief the Secretary deems appropriate as to the confession of error is different from that sought by the appellant, the Secretary shall include a statement of concession in the brief and identify the relief thereunder that is deemed appropriate. (c) Reply Brief. The appellant may file a brief in reply to the Secretary's brief. No further briefs may be filed except with the Court's permission. (d) References to the Record. References in the briefs to the record must be to the pages as transmitted by the Secretary. Commonly understood abbreviations may be used. (e) Reproduction of Materials. If determination of the issues requires the study of statutes, rules, regulations, or other material, relevant parts must be reproduced in the brief or in an appendix at the end, or they may be supplied to the Court in pamphlet form. (f) Length of Briefs. Except by permission of the Court, or as limited by Rule 47 (Expedited Briefs), the principal briefs may not exceed 25 pages and reply briefs may not exceed 15 pages, not counting the table of contents; the table of cases, statutes, and other authorities; and any appendix containing statutes, rules, regulations, etc. (g) Multiple Appellants. In cases involving more than one appellant, including consolidated cases, any number may join in a single brief, and any appellant may adopt by reference any part of the brief of another. Appellants may similarly join in reply briefs. (h) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after the party's brief has been filed or after oral argument but before the decision, a party shall promptly advise the Clerk, by letter, with a copy to all other parties, setting forth the citations. If the authority is not readily available in a Reporter system, the party shall provide the Clerk with a copy. The letter must refer to the page of the brief or to a point argued orally to which each citation pertains, and the letter must without argument state the reasons for the supplemental citations. Any response must be made promptly and must be similarly limited. (i) An unrepresented appellant may file an informal brief on the form prescribed by the Court. All other briefs must conform to the requirements of these rules. ------DocID 43829 Document 1435 of 1452------ -CITE- 40 USC Sec. 28 to 30a -EXPCITE- TITLE 40 CHAPTER 1 -HEAD- Sec. 28 to 30a. Omitted -COD- CODIFICATION Section 28, acts Feb. 4, 1874, ch. 22, 18 Stat. 14; June 20, 1874, ch. 328, 18 Stat. 88; Feb. 26, 1925, ch. 339, Sec. 3, 43 Stat. 983; Ex. Or. No. 6166, Sec. 2, eff. June 10, 1933; Mar. 2, 1934, ch. 38, 48 Stat. 389, related to telegraph lines connecting the Capitol with various departments in Washington. Section 29, acts Mar. 7, 1874, ch. 50, 18 Stat. 20, restricted use of telegraph lines to certain authorized persons. Section 30, acts Mar. 3, 1879, ch. 182, 20 Stat. 388; Feb. 26, 1925, ch. 339, Sec. 3, 43 Stat. 983; Ex. Or. No. 6166, Sec. 2, eff. June 10, 1933; Mar. 2, 1934, ch. 38, 48 Stat. 389, related to sale of condemned materials or lines. Section 30a, acts Dec. 20, 1928, ch. 39, title I, 45 Stat. 1048; Mar. 15, 1930, ch. 289, title I, 46 Stat. 358; Feb. 23, 1931, ch. 277, title I, 46 Stat. 1235; July 5, 1932, ch. 430, title I, 47 Stat. 596; Mar. 3, 1933, ch. 212, title I, 47 Stat. 1506; Mar. 15, 1934, ch. 70, title I, 48 Stat. 442, authorized Secretary of the Treasury to contract for telephone service in public buildings under the control of Treasury Department. ------DocID 44609 Document 1436 of 1452------ -CITE- 41 USC Sec. 28 to 34 -EXPCITE- TITLE 41 CHAPTER 1 -HEAD- Sec. 28 to 34. Omitted -COD- CODIFICATION Section 28, act June 16, 1934, ch. 553, Sec. 1, 48 Stat. 974, related to adjustment and settlement of claims by persons who entered into contracts with the United States prior to Aug. 10, 1933 and claim loss due to compliance with codes of fair competition. Section 29, act June 16, 1934, ch. 553, Sec. 2, 48 Stat. 975, related to amount allowed for settlement. Section 30, act June 16, 1934, ch. 553, Sec. 3, 48 Stat. 975, related to limitation on the amount of profits. Section 31, act June 16, 1934, ch. 553, Sec. 4, 48 Stat. 975, related to time for presentment of claims. Section 32, act June 16, 1934, ch. 553, Sec. 5, 48 Stat. 975, authorized appropriations for settlement of claims. Section 33, act June 16, 1934, ch. 553, Sec. 6, 48 Stat. 975, related to procedure for settlement of claims and reservation of right to prosecute for fraud and criminal conduct. Section 34, act Aug. 29, 1935, ch. 815, 49 Stat. 990, provided that bids made subject to codes of fair competition prior to Aug. 29, 1935 should not be rejected where bidder agreed to be subject to Acts of Congress requiring observance of minimum wages, maximum hours, or limitations as to age of employees in performance of contracts, with Federal agencies. ------DocID 44777 Document 1437 of 1452------ -CITE- 42 USC Sec. 28 to 43 -EXPCITE- TITLE 42 CHAPTER 1 SUBCHAPTER I -HEAD- Sec. 28 to 43. Repealed. July 1, 1944, ch. 373, title XIII, Sec. 1313, 58 Stat. 714 -MISC1- Section 28, acts July 1, 1902, ch. 1370, Sec. 3, 32 Stat. 712; Aug. 14, 1912, ch. 288, Sec. 1, 37 Stat. 309; July 9, 1918, ch. 143, ch. XV, Sec. 3, 40 Stat. 886, provided divisions under Assistant Surgeons General and the rank, pay, and allowances of said Assistants. See sections 206, 207, and 210 of this title. Section 28a, act Apr. 9, 1930, ch. 125, Sec. 10(c), 46 Stat. 152, provided for a chief of the narcotics division. See section 206 of this title. Section 29, acts July 1, 1902, ch. 1370, Sec. 7, 32 Stat. 713; Aug. 14, 1912, ch. 288, Sec. 1, 37 Stat. 309, provided for conferences with State and Territorial boards of health. See section 242n of this title. Section 30, acts July 1, 1902, ch. 1370, Sec. 8, 32 Stat. 714; Aug. 14, 1912, ch. 288, Sec. 1, 37 Stat. 309, provided for compilation of mortality, morbidity, and vital statistics. See section 242k(g) of this title. Section 31, act June 5, 1920, ch. 235, Sec. 1, 41 Stat. 883, provided that officers of Service could make allotments of their pay. See section 704 of Title 37, Pay and Allowances of the Uniformed Services. Section 32, act Mar. 6, 1920, ch. 94, Sec. 1, 41 Stat. 507, provided for purchase of quartermaster supplies by officers of Service. See section 210 of this title. Section 33, act Mar. 4, 1921, ch. 161, Sec. 1, 41 Stat. 1378, provided for limitations on expenditure of appropriations. See section 227 of this title. Section 33a, act May 14, 1935, ch. 110, 49 Stat. 229, provided for covering into Treasury moneys collected for treatment of foreign seamen and other pay patients. See section 221 of this title. Section 34, acts July 1, 1902, ch. 1370, Sec. 1, 32 Stat. 712; Aug. 14, 1912, ch. 288, Sec. 2, 37 Stat. 309; Apr. 9, 1930, ch. 125, Sec. 10(a), 46 Stat. 152, provided for titles for officers of the Service. See section 207 of this title. Section 35, act Apr. 9, 1930, ch. 125, Sec. 10(a), 46 Stat. 152, provided titles for officers other than medical officers of Service. See section 207 of this title. Section 36, act Apr. 9, 1930, ch. 125, Sec. 10(a), 46 Stat. 152, provided titles for officers in grade of Assistant Surgeons General. See section 206 of this title. Section 37, acts Apr. 9, 1930, ch. 125, Sec. 9, 46 Stat. 151; Nov. 11, 1943, ch. 298, Sec. 7, 57 Stat. 588, provided for promotions, pay and allowances, and severance from Service of commissioned officers. See sections 209 et seq. of this title. Section 38, act Apr. 9, 1930, ch. 125, Sec. 4, 46 Stat. 150, provided for appointment and grades of medical, dental, sanitary engineer, and pharmacist officers. See section 209 of this title. Section 39, Apr. 9, 1930, ch. 125, Sec. 5, 46 Stat. 150, provided for number, pay and allowances, and service credits for pay purposes of medical, dental, sanitary engineer, and pharmacist officers. See sections 209 et seq. of this title. Section 40, act Apr. 9, 1930, ch. 125, Sec. 11, 46 Stat. 152, provided for appointment and qualifications of employees other than commissioned officers. See section 209 of this title. Section 41, act Apr. 9, 1930, ch. 125, Sec. 7, 46 Stat. 151, provided for appointment of persons other than commissioned officers for scientific research. See section 209 of this title. Section 42, act Apr. 9, 1930, ch. 125, Sec. 12, 46 Stat. 152, provided for medical and hospital services to officers disabled by sickness or injury. See sections 213 and 248 of this title. Section 43, act Mar. 3, 1919, ch. 98, Sec. 3, 40 Stat. 1303, related to transfer of property and equipment to Service. Act Mar. 4, 1921, ch. 156, 41 Stat. 1365, formerly cited to section 43, was repealed by act Aug. 10, 1956, ch. 1041, Sec. 53, 70A Stat. 641. RENUMBERING AND REPEAL OF REPEALING ACT Section 1313, formerly Sec. 611, of act July 1, 1944, which repealed these sections, was renumbered Sec. 711 by act Aug. 13, 1946, ch. 958, Sec. 5, 60 Stat. 1049; Sec. 713 by act Feb. 28, 1948, ch. 83, Sec. 9(b), 62 Stat. 47; Sec. 813 by act July 30, 1956, ch. 779, Sec. 3(b), 70 Stat. 720; Sec. 913 by Pub. L. 88-581, Sec. 4(b), Sept. 4, 1964, 78 Stat. 919; Sec. 1013 by Pub. L. 89-239, Sec. 3(b), Oct. 6, 1965, 79 Stat. 931; Sec. 1113 by Pub. L. 91-572, Sec. 6(b), Dec. 24, 1970, 84 Stat. 1506; Sec. 1213 by Pub. L. 92-294, Sec. 3(b), May 16, 1972, 86 Stat. 137; Sec. 1313 by Pub. L. 93-154, Sec. 2(b)(2). Nov. 16, 1973, 87 Stat. 604, and was repealed by Pub. L. 93-222, Sec. 7(b), Dec. 29, 1973, 87 Stat. 936. ------DocID 45194 Document 1438 of 1452------ -CITE- 42 USC Sec. 290cc-28 -EXPCITE- TITLE 42 CHAPTER 6A SUBCHAPTER III-A Part C -HEAD- Sec. 290cc-28. Requirement of reports by States -STATUTE- (a) In general The Secretary may not make payments under section 290cc-21 of this title unless the State involved agrees that, by not later than January 31 of each fiscal year, the State will prepare and submit to the Secretary a report in such form and containing such information as the Secretary determines (after consultation with the Comptroller General of the United States, the National Institute of Mental Health, the National Institute on Alcohol Abuse and Alcoholism, and the National Institute on Drug Abuse) to be necessary for - (1) securing a record and a description of the purposes for which amounts received under section 290cc-21 of this title were expended during the preceding fiscal year and of the recipients of such amounts; and (2) determining whether such amounts were expended in accordance with the provisions of this part. (b) Availability to public of reports The Secretary may not make payments under section 290cc-21 of this title unless the State involved agrees to make copies of the reports described in subsection (a) of this section available for public inspection. (c) Evaluations by Comptroller General The Comptroller General of the United States in cooperation with the National Institute of Mental Health, shall evaluate at least once every 3 years the expenditures of grants under this part by eligible entities in order to ensure that expenditures are consistent with the provisions of this part, and shall include in such evaluation recommendations regarding changes needed in program design or operations. -SOURCE- (July 1, 1944, ch. 373, title V, Sec. 528, as added July 22, 1987, Pub. L. 100-77, title VI, Sec. 611(3), 101 Stat. 520, and amended Nov. 4, 1988, Pub. L. 100-607, title VIII, Sec. 812(b), 102 Stat. 3170; Nov. 7, 1988, Pub. L. 100-628, title VI, Sec. 612(b), 102 Stat. 3243; Nov. 18, 1988, Pub. L. 100-690, title II, Sec. 2614(a), 102 Stat. 4239; Aug. 16, 1989, Pub. L. 101-93, Sec. 5(t)(1), 103 Stat. 615; Nov. 29, 1990, Pub. L. 101-645, title V, Sec. 511, 104 Stat. 4730.) -MISC1- AMENDMENTS 1990 - Pub. L. 101-645 amended section generally, substituting provisions relating to requirement of reports by States for provisions relating to determination of amount of allotments. 1989 - Subsec. (a)(1). Pub. L. 101-93 directed that subsec. (a)(1) of this section as similarly amended by title VIII of Pub. L. 100-607 and title VI of Pub. L. 100-628 be amended to read as if the amendments made by title VI of Pub. L. 100-628 had not been enacted. See 1988 Amendment note below. 1988 - Subsec. (a)(1). Pub. L. 100-690 substituted 'the Commonwealth of the Northern Mariana Islands' for 'the Northern Mariana Islands'. Pub. L. 100-607 and Pub. L. 100-628 made identical amendments, amending par. (1) generally. Prior to amendment, par. (1) read as follows: '$275,000; and'. EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by Pub. L. 100-690 effective immediately after enactment of Pub. L. 100-607, which was approved Nov. 4, 1988, see section 2600 of Pub. L. 100-690, set out as a note under section 242m of this title. Amendment by Pub. L. 100-628 effective Nov. 7, 1988, see section 631 of Pub. L. 100-628, set out as a note under section 256 of this title. Amendment by Pub. L. 100-607 effective Nov. 4, 1988, see section 831 of Pub. L. 100-607, set out as a note under section 256 of this title. ------DocID 45434 Document 1439 of 1452------ -CITE- 42 USC Sec. 300a-21 to 300a-28 -EXPCITE- TITLE 42 CHAPTER 6A SUBCHAPTER VIII-A Part A -HEAD- Sec. 300a-21 to 300a-28. Repealed. Pub. L. 97-35, title IX, Sec. 955(b), title XXI, Sec. 2193(f), Aug. 13, 1981, 95 Stat. 592, 828 -MISC1- Section 300a-21, Pub. L. 95-626, title VI, Sec. 601, Nov. 10, 1978, 92 Stat. 3595, set forth Congressional findings and declaration of purpose with respect to grant program. Section 300a-22, Pub. L. 95-626, title VI, Sec. 602, Nov. 10, 1978, 92 Stat. 3595; Pub. L. 96-88, title V, Sec. 509(b), Oct. 17, 1979, 93 Stat. 695, defined terms 'Secretary', 'eligible person', 'eligible grant recipient', 'core services', 'supplemental services', 'adolescent parent'. Section 300a-23, Pub. L. 95-626, title VI, Sec. 603, Nov. 10, 1978, 92 Stat. 3596, set forth authority to make grants. Section 300a-24, Pub. L. 95-626, title VI, Sec. 604, Nov. 10, 1978, 92 Stat. 3597, set forth authorized uses for grants. Section 300a-25, Pub. L. 95-626, title VI, Sec. 605, Nov. 10, 1978, 92 Stat. 3597, set forth provisions respecting priorities, amounts, and duration of grants. Section 300a-26, Pub. L. 95-626, title VI, Sec. 606, Nov. 10, 1978, 92 Stat. 3598, set forth application, etc., requirements for grant approval. Section 300a-27, Pub. L. 95-626, title VI, Sec. 607, Nov. 10, 1978, 92 Stat. 3601; Pub. L. 97-35, title XXI, Sec. 2193(a)(2), Aug. 13, 1981, 95 Stat. 827, authorized appropriations from fiscal year ending Sept. 30, 1979, through fiscal year ending Sept. 30, 1982. Section 300a-28, Pub. L. 95-626, title VI, Sec. 608, Nov. 10, 1978, 92 Stat. 3601, set forth prohibition respecting use of funds to pay for performance of abortion. See section 300z et seq. of this title. EFFECTIVE DATE OF REPEAL Section 955(b) of Pub. L. 97-35 provided that the repeal of sections 300a-21 to 300a-28 of this title is effective Oct. 1, 1981. For effective date, savings, and transitional provisions relating to the repeal of sections 321a-21 to 321a-28 of this title by section 2193(f) of Pub. L. 97-35, and relating to the amendment of section 300a-27 of this title by section 2193(a)(2) of Pub. L. 97-35, see section 2194 of Pub. L. 97-35, set out as a note under section 701 of this title. STUDY OF ADOLESCENT PREGNANCY; REPORT NOT LATER THAN NOVEMBER 10, 1979 Pub. L. 95-626, title VIII, Sec. 801, Nov. 10, 1978, 92 Stat. 3602, which provided for a study of the problem of adolescent pregnancies and the effectiveness of existing programs and a report, was repealed by section 955(b) of Pub. L. 97-35. ------DocID 45670 Document 1440 of 1452------ -CITE- 42 USC Sec. 300aa-28 -EXPCITE- TITLE 42 CHAPTER 6A SUBCHAPTER XIX Part 2 subpart c -HEAD- Sec. 300aa-28. Manufacturer recordkeeping and reporting -STATUTE- (a) General rule Each vaccine manufacturer of a vaccine set forth in the Vaccine Injury Table or any other vaccine the administration of which is mandated by the law or regulations of any State, shall, with respect to each batch, lot, or other quantity manufactured or licensed after December 22, 1987 - (1) prepare and maintain records documenting the history of the manufacturing, processing, testing, repooling, and reworking of each batch, lot, or other quantity of such vaccine, including the identification of any significant problems encountered in the production, testing, or handling of such batch, lot, or other quantity, (2) if a safety test on such batch, lot, or other quantity indicates a potential imminent or substantial public health hazard is presented, report to the Secretary within 24 hours of such safety test which the manufacturer (or manufacturer's representative) conducted, including the date of the test, the type of vaccine tested, the identity of the batch, lot, or other quantity tested, whether the batch, lot, or other quantity tested is the product of repooling or reworking of previous batches, lots, or other quantities (and, if so, the identity of the previous batches, lots, or other quantities which were repooled or reworked), the complete test results, and the name and address of the person responsible for conducting the test, (3) include with each such report a certification signed by a responsible corporate official that such report is true and complete, and (4) prepare, maintain, and upon request submit to the Secretary product distribution records for each such vaccine by batch, lot, or other quantity number. (b) Sanction Any vaccine manufacturer who intentionally destroys, alters, falsifies, or conceals any record or report required under paragraph (1) or (2) of subsection (a) of this section shall - (1) be subject to a civil penalty of up to $100,000 per occurrence, or (2) be fined $50,000 or imprisoned for not more than 1 year, or both. Such penalty shall apply to the person who intentionally destroyed, altered, falsified, or concealed such record or report, to the person who directed that such record or report be destroyed, altered, falsified, or concealed, and to the vaccine manufacturer for which such person is an agent, employee, or representative. Each act of destruction, alteration, falsification, or concealment shall be treated as a separate occurrence. -SOURCE- (July 1, 1944, ch. 373, title XXI, Sec. 2128, as added Nov. 14, 1986, Pub. L. 99-660, title III, Sec. 311(a), 100 Stat. 3777, and amended Dec. 22, 1987, Pub. L. 100-203, title IV, Sec. 4302(b)(1), 101 Stat. 1330-221.) -COD- CODIFICATION In subsec. (a), 'December 22, 1987' substituted for 'the effective date of this subpart' on authority of section 323 of Pub. L. 99-660, as amended, set out as an Effective Date note under section 300aa-1 of this title. -MISC3- AMENDMENTS 1987 - Subsec. (a). Pub. L. 100-203 substituted 'effective date of this subpart' for 'effective date of this part'. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 300aa-33 of this title. ------DocID 45768 Document 1441 of 1452------ -CITE- 42 USC Sec. 300ff-28 -EXPCITE- TITLE 42 CHAPTER 6A SUBCHAPTER XXIV Part B -HEAD- Sec. 300ff-28. Distribution of funds -STATUTE- (a) Special projects of national significance (1) In general Of the amount appropriated under section 300ff-30 of this title for each fiscal year, the Secretary shall use not to exceed 10 percent of such amount to establish and administer a special projects of national significance program to award direct grants to public and nonprofit private entities including community-based organizations to fund special programs for the care and treatment of individuals with HIV disease. (2) Grants The Secretary shall award grants under subsection (a) of this section based on - (A) the need to assess the effectiveness of a particular model for the care and treatment of individuals with HIV disease; (B) the innovative nature of the proposed activity; and (C) the potential replicability of the proposed activity in other similar localities or nationally. (3) Special projects Special projects of a national significance may include those that are designed to - (A) establish a system designed to increase the number of health care facilities willing and able to serve low-income individuals and families with HIV disease; (B) deliver drug abuse treatment and HIV health care services at a single location, through either an outpatient or residential facility; (C) provide support and respite care for participants in family-based care networks critical to the delivery of comprehensive HIV care in the minority community; (D) deliver an enhanced spectrum of comprehensive health care and support services to underserved hemophilia populations, including minorities and those in rural and underserved areas, utilizing established networks of hemophilia diagnostic and treatment centers and community-based outreach systems; (E) deliver HIV health care and support services to Indians with HIV disease and their families; (F) improve the provision of HIV health care and support services to individuals and families with HIV disease located in rural areas; (G) deliver HIV health care and support services to homeless individuals and families with HIV disease; and (H) deliver HIV health care and support services to individuals with HIV disease who are incarcerated. (b) Amount of grant to State (1) Minimum allotment Subject to the extent of amounts made available under section 300ff-30 of this title, the amount of a grant to be made under this part for - (A) each of the several States and the District of Columbia for a fiscal year shall be the greater of - (i) $100,000, and (ii) an amount determined under paragraph (2); and (B) each territory of the United States, as defined in paragraph 3, (FOOTNOTE 1) shall be an amount determined under paragraph (2). (FOOTNOTE 1) So in original. Probably should be paragraph '(3),'. (2) Determination (A) Formula The amount referred to in paragraph (1)(A)(ii) for a State and paragraph (1)(B) for a territory of the United States shall be the product of - (i) an amount equal to the amount appropriated under section 300ff-30 of this title for the fiscal year involved; and (ii) the ratio of the distribution factor for the State or territory to the sum of the distribution factors for all the States or territories. (B) Distribution factor As used in subparagraph (A)(ii), the term 'distribution factor' means - (i) in the case of a State, the product of - (I) the number of cases of acquired immune deficiency syndrome in the State, as indicated by the number of cases reported to and confirmed by the Secretary for the 2 most recent fiscal years for which such data are available; and (II) the cube root of the ratio (based on the most recent available data) of - (aa) the average per capita income of individuals in the United States (including the territories); to (bb) the average per capita income of individuals in the State; and (ii) in the case of a territory of the United States the number of additional cases of such syndrome in the specific territory, as indicated by the number of cases reported to and confirmed by the Secretary for the 2 most recent fiscal years for which such data is available. (3) Definitions As used in this subsection - (A) the term 'State' means each of the 50 States, the District of Columbia and the Commonwealth of Puerto Rico; and (B) the term 'territory of the United States' means the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands. (c) Allocation of assistance by States (1) Consortia In a State that has reported 1 percent or more of all AIDS cases reported to and confirmed by the Centers for Disease Control in all States, not less than 50 percent of the amount received by the State under a grant awarded under this part shall be utilized for the creation and operation of community-based comprehensive care consortia under section 300ff-23 of this title, in those areas within the State in which the largest number of individuals with HIV disease reside. (2) Allowances Prior to allocating assistance under this subsection, a State shall consider the unmet needs of those areas that have not received financial assistance under part A of this subchapter. (3) Planning and evaluations A State may not use in excess of 5 percent of amounts received under a grant awarded under this part for planning and evaluation activities. (4) Administration A State may not use in excess of 5 percent of amounts received under a grant awarded under this part for administration, accounting, reporting, and program oversight functions. (5) Construction A State may not use amounts received under a grant awarded under this part to purchase or improve land, or to purchase, construct, or permanently improve (other than minor remodeling) any building or other facility, or to make cash payments to intended recipients of services. (d) Expedited distribution (1) In general Not less than 75 percent of the amounts received under a grant awarded to a State under this part shall be obligated to specific programs and projects and made available for expenditure not later than - (A) in the case of the first fiscal year for which amounts are received, 150 days after the receipt of such amounts by the State; and (B) in the case of succeeding fiscal years, 120 days after the receipt of such amounts by the State. (2) Public comment Within the time periods referred to in paragraph (1), the State shall invite and receive public comment concerning methods for the utilization of such amounts. (e) Reallocation Any amounts appropriated in any fiscal year and made available to a State under this part that have not been obligated as described in subsection (d) of this section shall be repaid to the Secretary and reallotted to other States in proportion to the original grants made to such States. -SOURCE- (July 1, 1944, ch. 373, title XXVI, Sec. 2618, as added Aug. 18, 1990, Pub. L. 101-381, title II, Sec. 201, 104 Stat. 595.) ------DocID 47275 Document 1442 of 1452------ -CITE- 42 USC CHAPTER 28 -EXPCITE- TITLE 42 CHAPTER 28 -HEAD- CHAPTER 28 - AREA REDEVELOPMENT PROGRAM ------DocID 51960 Document 1443 of 1452------ -CITE- 43 USC CHAPTER 28 -EXPCITE- TITLE 43 CHAPTER 28 -HEAD- CHAPTER 28 - MISCELLANEOUS PROVISIONS RELATING TO PUBLIC LANDS -MISC1- SUBCHAPTER I - PATENTS FOR PRIVATE LAND CLAIMS Sec. 1151 to 1156. Repealed. SUBCHAPTER II - DISPOSITION OF SUSPENDED ENTRIES AND CLAIMS; INVALID AND DEFECTIVE CLAIMS AND PATENTS THEREFOR 1161. 'Suspended entries of public lands' and 'suspended preemption land claims'. 1162. Adjudications as to suspended entries; approval. 1163. Patents surrendered and new ones issued. 1164. Extent of foregoing provisions. 1165. Suspension of entries for correction of clerical errors; patents. 1166. Limitations of suits to annul patents. 1167. Entries and final proofs, made out of proper district, confirmed. SUBCHAPTER III - SALES OF ISOLATED TRACTS 1171 to 1177. Repealed. SUBCHAPTER IV - TIMBER CULTURE 1181. Repeal of laws. SUBCHAPTER V - OREGON AND CALIFORNIA RAILROAD AND COOS BAY WAGON ROAD GRANT LANDS 1181a. Conservation management by Department of the Interior; permanent forest production; sale of timber; subdivision. 1181b. Cooperative agreements with other agencies or private owners for coordinated administration. 1181c. Repealed. 1181d. Leasing of lands for grazing; disposition of moneys; rules and regulations covering grazing lands. 1181e. Rules and regulations generally; consultation and agreements with other agencies regarding fire regulations. 1181f. Oregon and California land-grant fund; annual distribution of moneys. 1181f-1. Coos Bay Wagon Road grant fund; annual payments; appraisal and assessment of land and timber; computation of payments. 1181f-2. Appraisal of land and timber; manner and frequency; computation of amounts upon basis of last appraisement; deduction of appraisement expenses. 1181f-3. Additional sum from surplus for meeting payments due from insufficient annual receipts; maximum aggregate of decennial payments; covering of excess receipts into general fund of Treasury. 1181f-4. Amount available for administration of Coos Bay Wagon Road grant lands under sections 1181a to 1181f of this title; covering of unused receipts into general fund of Treasury. 1181g. Unselected and unpatented odd-numbered sections as revested grant lands; administration as national-forest lands; revenues; prohibition against disposition or exchange. 1181h. Exchange of jurisdiction between Secretaries; conditions; publication in Federal Register. 1181i. Designation of national-forest areas within counties; disposition of revenues; approval by court. 1181j. Appropriations to carry out sections 1181h and 1181i. SUBCHAPTER VI - DISPOSAL OF MATERIALS ON PUBLIC LANDS 1185 to 1188. Transferred. SUBCHAPTER VII - EVIDENCES OF TITLE 1191 to 1193. Repealed. SUBCHAPTER VIII - INDIAN LANDS 1195. Negotiations for cession of lands. 1196. Classification and appraisement of unallotted and unreserved lands. 1197. Agreements with Indians not affected. 1198. Condemnation of Sioux lands for dam purposes; negotiation of contracts. 1199. Provisions to be included in contracts for condemnation of Sioux lands for dam purposes. 1200. Judicial determination where compensation for condemnation of Sioux lands for dam purposes rejected. 1200a. Preparation of appraisal schedule in determining just compensation for condemnation of Sioux lands for dam purposes; contents; transmittal to tribal representatives. 1200b. Inclusion of other provisions in contracts for condemnation of Sioux lands for dam purposes. 1200c. Submission of contracts and reports covering disagreements on condemnation of Sioux lands for dam purposes; ratification; effect. 1200d. Effect of condemnation of Sioux lands for dam purposes on construction of Fort Randall Dam. 1200e. Authorization of appropriations for relocating certain Sioux tribe members after condemnation of lands for dam purposes; conditions; title to lands acquired. SUBCHAPTER IX - ENFORCEMENT OF PROVISIONS 1201. Power of Secretary or designated officer. SUBCHAPTER X - OATHS IN CERTAIN LAND MATTERS 1211. Elimination of oaths for written statements; discretion of Secretary of the Interior. 1212. Unsworn written statements subject to penalties of presenting false claims. SUBCHAPTER XI - WISCONSIN RIVER AND LAKE LAND TITLES 1221. Issuance of patents; application. 1222. Notice of opening of lands to purchase. 1223. Valid existing rights unaffected. SUBCHAPTER XII - MOVING EXPENSES RESULTING FROM ACQUISITION OF LANDS BY SECRETARY OF THE INTERIOR 1231 to 1234. Repealed. SUBCHAPTER XIII - STATE CONTROL OF NOXIOUS PLANTS ON GOVERNMENT LANDS 1241. Control of noxious plants on Government lands; State programs; terms of entry. 1242. Reimbursement of States for expenses. 1243. Authorization of appropriations. ------DocID 52696 Document 1444 of 1452------ -CITE- 45 USC Sec. 28 -EXPCITE- TITLE 45 CHAPTER 1 -HEAD- Sec. 28. Rules and instructions as to inspection -STATUTE- Each railroad subject to sections 22 to 29 and 31 to 34 of this title shall file its rules and instructions for the inspection of locomotive boilers with the chief inspector within three months after February 17, 1911, and such rules and instructions shall become obligatory upon such railroad: Provided, however, That if any railroad subject to said sections shall fail to file its rules and instructions the director of locomotive inspection shall prepare rules and instructions not inconsistent herewith for the inspection of locomotive boilers, to be observed by such railroad; which rules and instructions, a copy thereof being served upon the president, general manager, or general superintendent of such railroad, shall be obligatory, and a violation thereof punished as hereinafter provided: Provided also, That such railroad may from time to time change the rules and regulations herein provided for, but such change shall not take effect and the new rules and regulations be in force until the same shall have been filed with and approved by the Secretary of Transportation. The director of locomotive inspection shall also make all needful rules, regulations, and instructions not inconsistent herewith for the conduct of his office and for the government of the district inspectors: Provided, however, That all such rules and instructions shall be approved by the Secretary of Transportation before they take effect. -SOURCE- (Feb. 17, 1911, ch. 103, Sec. 5, 36 Stat. 914; Apr. 22, 1940, ch. 124, Sec. 1, 54 Stat. 148; Oct. 15, 1966, Pub. L. 89-670, Sec. 6(e)(1)(E), 80 Stat. 939; June 22, 1988, Pub. L. 100-342, Sec. 14(4), 102 Stat. 633.) -COD- CODIFICATION Provision of this section for the holding of hearings and approval by the Interstate Commerce Commission with reference to the rules and instruction filed by the carriers within three months after Feb. 17, 1911, and provision for the modification of such filed rules and instructions as required by the Commission, have been omitted as executed. -MISC3- AMENDMENTS 1988 - Pub. L. 100-342 substituted 'railroad' for 'common carrier' before 'may from time to time' and substituted 'railroad' for 'carrier' wherever appearing. 1940 - Act Apr. 22, 1940, substituted 'director of locomotive inspection' for 'chief inspector' in two places. -TRANS- TRANSFER OF FUNCTIONS 'Secretary of Transportation' substituted in text for 'Interstate Commerce Commission' pursuant to Pub. L. 89-670, which created Department of Transportation and transferred powers, duties, and functions of Interstate Commerce Commission and of Chairman, members, offices, and officers thereof relating to safety appliances and equipment on railroad engines and cars and protection of employees and travelers to Secretary of Transportation. See section 1655(e)(1)(E) of Title 49, Appendix, Transportation. Offices of director of locomotive inspection, assistant directors of locomotive inspection, and district inspectors of locomotives, together with function of director of locomotive inspection with respect to dividing territory comprising several States and District of Columbia into 50 locomotive boiler-inspection districts, abolished and all other functions transferred to Interstate Commerce Commission by Reorg. Plan No. 3 of 1965, eff. July 27, 1965, 30 F.R. 9351, 79 Stat. 1320, set out under section 22 of this title. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 22, 23, 29, 30, 34 of this title; title 49 App. section 1655. ------DocID 53979 Document 1445 of 1452------ -CITE- 46 USC APPENDIX - SHIPPING CHAPTER 28 -EXPCITE- TITLE 46 APPENDIX CHAPTER 28 -HEAD- CHAPTER 28 - CARRIAGE OF GOODS BY SEA -MISC1- Sec. 1300. Bills of lading subject to chapter. 1301. Definitions. 1302. Duties and rights of carrier. 1303. Responsibilities and liabilities of carrier and ship. (1) Seaworthiness. (2) Cargo. (3) Contents of bill. (4) Bill as prima facie evidence. (5) Guaranty of statements. (6) Notice of loss or damage; limitation of actions. (7) 'Shipped' bill of lading. (8) Limitation of liability for negligence. 1304. Rights and immunities of carrier and ship. (1) Unseaworthiness. (2) Uncontrollable causes of loss. (3) Freedom from negligence. (4) Deviations. (5) Amount of liability; valuation of cargo. (6) Inflammable, explosive, or dangerous cargo. 1305. Surrender of rights; increase of liabilities; charter parties; general average. 1306. Special agreement as to particular goods. 1307. Agreement as to liability prior to loading or after discharge. 1308. Rights and liabilities under other provisions. 1309. Discrimination between competing shippers. 1310. Weight of bulk cargo. 1311. Liabilities before loading and after discharge; effect on other laws. 1312. Scope of chapter; 'United States'; 'foreign trade'. 1313. Suspension of provisions by President. 1314. Effective date; retroactive effect. 1315. Short title. ------DocID 54081 Document 1446 of 1452------ -CITE- 47 USC Sec. 28 -EXPCITE- TITLE 47 CHAPTER 2 -HEAD- Sec. 28. Penalties not to bar suits for damages -STATUTE- The penalties provided in this chapter for the breaking or injury of a submarine cable shall not be a bar to a suit for damages on account of such breaking or injury. -SOURCE- (Feb. 29, 1888, ch. 17, Sec. 8, 25 Stat. 42.) ------DocID 54325 Document 1447 of 1452------ -CITE- 48 USC Sec. 28 -EXPCITE- TITLE 48 CHAPTER 2 -HEAD- Sec. 28. Repealed. Dec. 16, 1930, ch. 14, Sec. 1, 46 Stat. 1029 -MISC1- Section, act June 6, 1900, ch. 786, Sec. 17, 31 Stat. 328, related to residence, term of office, and removal from office of notaries public. ------DocID 55733 Document 1448 of 1452------ -CITE- 49 USC APPENDIX - TRANSPORTATION CHAPTER 28 -EXPCITE- TITLE 49, APPENDIX CHAPTER 28 -HEAD- CHAPTER 28 - NATIONAL TRANSPORTATION SAFETY BOARD -MISC1- Sec. 1901. Congressional findings. 1902. National Transportation Safety Board. (a) Establishment. (b) Organization. (c) General. 1903. General provisions. (a) Duties of Board. (b) Powers of Board. (c) Use of reports as evidence. (d) Judicial review. 1904. Annual report. 1905. Public access to information. (a) General. (b) Exception. (c) Public disclosure of cockpit voice recorder recordings and transcriptions. (d) Use of cockpit voice recorder recordings and transcriptions in judicial proceedings. 1906. Response to Board recommendations. (a) Secretary's duty to respond; contents of response; publication; public availability of copies. (b) Annual report to Congress. 1907. Authorization of appropriations. ------DocID 56293 Document 1449 of 1452------ -CITE- 50 USC CHAPTER 28 -EXPCITE- TITLE 50 CHAPTER 28 -HEAD- CHAPTER 28 - STATUS OF ARMED FORCES PERSONNEL APPOINTED TO SERVICE ACADEMIES ------DocID 56394 Document 1450 of 1452------ -CITE- 50 USC APPENDIX - WAR AND NATIONAL DEFENSE Sec. 28 -EXPCITE- TITLE 50 APPENDIX TRADING WITH THE ENEMY ACT OF 1917 ACT OCT -HEAD- Sec. 28. 'Unallocated interest fund' defined -STATUTE- As used in this Act (sections 1 to 6, 7 to 39, and 41 to 44 of this Appendix), the term 'unallocated interest fund' means the sum of (1) the earnings and profits accumulated prior to March 4, 1923, and attributable to investments and reinvestments under section 12 (section 12 of this Appendix) by the Secretary of the Treasury, plus (2) the earnings and profits accumulated on or after March 4, 1923, in respect of the earnings and profits referred to in clause (1) of this section. -SOURCE- (Oct. 6, 1917, ch. 106, Sec. 28, as added Mar. 10, 1928, ch. 167, Sec. 15, 45 Stat. 274.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 25, 26 of this Appendix; title 28 section 2680. ------DocID 56624 Document 1451 of 1452------ -CITE- 50 USC APPENDIX - WAR AND NATIONAL DEFENSE ACT JUNE 28, 1944, CH -EXPCITE- TITLE 50 APPENDIX MISCELLANEOUS PROVISIONS AFFECTING MILITARY ESTABLISHMENT ACT JUNE 28, 1944, CH -HEAD- ACT JUNE 28, 1944, CH. 306, 58 STAT. 624 ------DocID 56687 Document 1452 of 1452------ -CITE- 50 USC APPENDIX - WAR AND NATIONAL DEFENSE ACT JUNE 28, 1940, CH -EXPCITE- TITLE 50 APPENDIX WAR AND DEFENSE CONTRACT ACTS ACT JUNE 28, 1940, CH -HEAD- ACT JUNE 28, 1940, CH. 440, 54 STAT. 676 ------End Document Listing------ Thank You For Using I-SEARCH.