-CITE-

28 USC CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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 Repealed.]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 Repealed.]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.

-End-

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28 USC Sec. 2101 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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 Appeals for the Armed Forces

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; Pub. L. 98-209, Sec. 10(b), Dec. 6, 1983, 97

Stat. 1406; Pub. L. 100-352, Sec. 5(b), June 27, 1988, 102 Stat.

663; Pub. L. 103-337, div. A, title IX, Sec. 924(d)(1)(C), Oct. 5,

1994, 108 Stat. 2832.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Secs. 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, Secs. 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,

Secs. 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, Secs. 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

1994 - Subsec. (g). Pub. L. 103-337 substituted "Court of Appeals

for the Armed Forces" for "Court of Military Appeals".

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

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 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2350 of this title.

-End-

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28 USC Sec. 2102 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

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28 USC Sec. 2103 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

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28 USC Sec. 2104 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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; Pub. L. 100-352, Sec.

5(d)(1), June 27, 1988, 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.

-End-

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28 USC Sec. 2105 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

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28 USC Sec. 2106 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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., Secs. 344, 876, 877 (R.S.

Sec. 701; Mar. 3, 1891, ch. 517, Secs. 10, 11, 26 Stat. 829; Mar.

3, 1911, ch. 231, Secs. 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.

-End-

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28 USC Sec. 2107 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-HEAD-

Sec. 2107. Time for appeal to court of appeals

-STATUTE-

(a) Except as otherwise provided in this section, no appeal shall

bring any judgment, order or decree in an action, suit or

proceeding of a civil nature before a court of appeals for review

unless notice of appeal is filed, within thirty days after the

entry of such judgment, order or decree.

(b) In any such action, suit or proceeding in which the United

States or an officer or agency thereof is a party, the time as to

all parties shall be sixty days from such entry.

(c) The district court may, upon motion filed not later than 30

days after the expiration of the time otherwise set for bringing

appeal, extend the time for appeal upon a showing of excusable

neglect or good cause. In addition, if the district court finds -

(1) that a party entitled to notice of the entry of a judgment

or order did not receive such notice from the clerk or any party

within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after

entry of the judgment or order or within 7 days after receipt of

such notice, whichever is earlier, reopen the time for appeal for a

period of 14 days from the date of entry of the order reopening the

time for appeal.

(d) This section shall not apply to bankruptcy matters or other

proceedings under Title 11.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 963; May 24, 1949, ch. 139, Secs.

107, 108, 63 Stat. 104; Pub. L. 95-598, title II, Sec. 248, Nov. 6,

1978, 92 Stat. 2672; Pub. L. 102-198, Sec. 12, Dec. 9, 1991, 105

Stat. 1627.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Secs. 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

1991 - Pub. L. 102-198 designated first and second pars. as

subsecs. (a) and (b), respectively, added subsec. (c), designated

fifth par. as subsec. (d), and struck out third and fourth pars.

which read as follows:

"In any action, suit or proceeding in admiralty, the notice of

appeal shall be filed within ninety days after the entry of the

order, judgment or decree appealed from, if it is a final decision,

and within fifteen days after its entry if it is an interlocutory

decree.

"The district court may extend the time for appeal not exceeding

thirty days from the expiration of the original time herein

prescribed, upon a showing of excusable neglect based on failure of

a party to learn of the entry of the judgment, order or decree."

1978 - Pub. L. 95-598 directed the amendment of section by

inserting "or the bankruptcy court" after "district court" and by

striking out the final paragraph, which amendment did not become

effective pursuant to section 402(b) of Pub. L. 95-598, as amended,

set out as an Effective Date note preceding section 101 of Title

11, Bankruptcy.

1949 - Act May 24, 1949, restored, in third par., the 15-day

limitation of time within which to appeal from an interlocutory

order in admiralty, and in fourth par., substituted "The district

court may" for "The district court, in any such action, suit, or

proceeding, may" and corrected spelling of "excusable".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 15 section 29; title 21

section 848.

-End-

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28 USC Sec. 2108 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

-CITE-

28 USC Sec. 2109 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

-CITE-

28 USC Sec. 2110 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

-CITE-

28 USC Sec. 2111 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

-CITE-

28 USC Sec. 2112 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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; 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,

4583, 4634; title 15 sections 21, 45, 57a, 78y, 79x, 80a-42,

80b-13, 687e, 717r, 1193, 1262, 1474, 1710, 1825, 2060, 2618, 3416;

title 16 sections 773f, 825l, 1536, 1858, 2437, 3142, 3373, 5010,

5507; title 19 sections 81r, 1677f; title 20 sections 1234g, 1412,

1416, 7217a, 7711, 7884; title 21 sections 346a, 348, 355, 360g,

360kk, 371; title 22 section 1631f; title 25 sections 4161, 4237;

title 26 section 3310; title 27 section 204; title 29 sections 160,

210, 660, 667, 727, 2937; title 30 sections 816, 1462; title 31

section 1263; title 33 section 921; title 39 section 3628; title 42

sections 263a, 263b, 291h, 504, 1316, 1320a-7a, 1320a-8, 2022,

3027, 3785, 5311, 5405, 6306, 6869, 7525, 8412, 9152, 15028; title

43 sections 355, 1349; title 46 App. section 1181; title 47 section

402; title 49 section 46110.

-End-

-CITE-

28 USC Sec. 2113 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 133 - REVIEW - MISCELLANEOUS PROVISIONS

-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.

-End-

-CITE-

28 USC PART VI - PARTICULAR PROCEEDINGS 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

-HEAD-

PART VI - PARTICULAR PROCEEDINGS

-MISC1-

Chap. Sec.

151. Declaratory Judgments 2201

153. Habeas Corpus 2241

154. Special habeas corpus procedures in capital cases 2261.(!1)

155. Injunctions; Three-Judge Courts 2281

157. Surface Transportation Board Orders; Enforcement and

Review 2321

158. Orders of Federal Agencies; Review 2341

159. Interpleader 2361

161. United States as Party Generally 2401

163. Fines, Penalties and Forfeitures 2461

165. United States Court of Federal Claims Procedure 2501

[167. Repealed.]

169. Court of International Trade Procedure 2631

171. Tort Claims Procedure 2671

173. Attachment in Postal Suits 2710

[175. Repealed.]

176. Federal Debt Collection Procedure 3001

178. Professional and Amateur Sports Protection 3701

179. Judicial Review of Certain Actions by Presidential

Offices 3901

180. Assumption of Certain Contractual Obligations 4001

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

2000 - Pub. L. 106-310, div. B, title XXXIV, Sec. 3405(c)(2),

Oct. 17, 2000, 114 Stat. 1221, struck out item for chapter 175

"Civil Commitment and Rehabilitation of Narcotic Addicts".

1998 - Pub. L. 105-304, title IV, Sec. 406(b), Oct. 28, 1998, 112

Stat. 2905, added item for chapter 180.

1996 - Pub. L. 104-331, Sec. 3(e), Oct. 26, 1996, 110 Stat. 4071,

added item for chapter 179.

Pub. L. 104-132, title I, Sec. 107(b), Apr. 24, 1996, 110 Stat.

1226, as amended Pub. L. 104-294, title VI, Sec. 605(k), Oct. 11,

1996, 110 Stat. 3510, added item for chapter 154.

1995 - Pub. L. 104-88, title III, Sec. 305(c)(2), Dec. 29, 1995,

109 Stat. 945, which directed amendment of the item for chapter 157

in the table of chapters of this title by substituting "Surface

Transportation Board" for "Interstate Commerce Commission", was

executed by making the substitution in the table of chapters for

this part to reflect the probable intent of Congress.

1992 - Pub. L. 102-572, title IX, Sec. 902(b)(1), Oct. 29, 1992,

106 Stat. 4516, substituted "United States Court of Federal Claims"

for "United States Claims Court" in item for chapter 165.

Pub. L. 102-559, Sec. 2(b), Oct. 28, 1992, 106 Stat. 4228,

substituted "Procedure" for "Procedures" in item for chapter 176

and added item for chapter 178.

1990 - Pub. L. 101-647, title XXXVI, Sec. 3302 [3612], Nov. 29,

1990, 104 Stat. 4964, added item for chapter 176.

1982 - Pub. L. 97-164, title I, Secs. 139(o)(1), 140, Apr. 2,

1982, 96 Stat. 44, substituted "United States Claims Court

Procedure" for "Court of Claims Procedure" in item for chapter 165

and struck out item for chapter 167 "Court of Customs and Patent

Appeals Procedure".

1980 - Pub. L. 96-417, title V, Sec. 501(25), Oct. 10, 1980, 94

Stat. 1742, substituted "Court of International Trade Procedure"

for "Customs Court Procedure" in item for chapter 169.

1966 - Pub. L. 89-793, title VI, 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.

-FOOTNOTE-

(!1) So in original.

-End-