28 U.S.C. § 2106 — Determination

Page 510 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2102 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2023 AMENDMENT Amendment by Pub. L. 118–31(a) effective on the date that is one year after Dec. 22, 2023, and applicable with respect to any action of the United States Court of Ap- peals for the Armed Forces in granting or refusing to grant a petition for review submitted to such Court for the first time on or after Dec. 22, 2023, with provisions for inapplicability to pending decisions, finality of de- cisions before effective date, and requiring Supreme Court to prescribe rules to carry out subsection (g) of this section by the effective date specified, see section 533(b) of Pub. L. 118–31, set out as a note under section 867a of Title 10, Armed Forces. 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 effec- tive date or affect right to review or manner of review- ing judgment or decree of court which was entered be- fore 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. § 2102. Priority of criminal case on appeal from State court Criminal cases on review from State courts shall have priority, on the docket of the Su- preme 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 pub- lic importance. (June 25, 1948, ch. 646, 62 Stat. 962.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 351 (Mar. 3, 1911, ch. 231, § 253, 36 Stat. 1160; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54). Changes were made in phraseology. [§ 2103. Repealed. Pub. L. 100–352, § 5(c), June 27, 1988, 102 Stat. 663] Section, acts June 25, 1948, ch. 646, 62 Stat. 962; Sept. 19, 1962, Pub. L. 87–669, § 1, 76 Stat. 556, provided that ap- peal from State court or from a United States court of appeals improvidently taken be regarded as petition for writ of certiorari. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective ninety days after June 27, 1988, ex- cept 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. § 2104. Reviews of State court decisions A review by the Supreme Court of a judgment or decree of a State court shall be conducted in the same manner and under the same regula- tions, and shall have the same effect, as if the judgment or decree reviewed had been rendered in a court of the United States. (June 25, 1948, ch. 646, 62 Stat. 962; Pub. L. 100–352, § 5(d)(1), June 27, 1988, 102 Stat. 663.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 871 (R.S., § 1003). Words ‘‘An appeal to’’ were substituted for ‘‘writs of error from’’, in view of the abolition of the writ of error. Changes were made in phraseology. Editorial Notes 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 Su- preme 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 ap- pealed from had been rendered in a court of the United States.’’ Statutory Notes and Related Subsidiaries 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 effec- tive date or affect right to review or manner of review- ing judgment or decree of court which was entered be- fore such effective date, see section 7 of Pub. L. 100–352, set out as a note under section 1254 of this title. § 2105. Scope of review; abatement There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction. (June 25, 1948, ch. 646, 62 Stat. 963.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 879 (R.S. § 1011; Feb. 18, 1875, ch. 80, § 1, 18 Stat. 318). The revised language is substituted for the provisions of section 879 of title 28, U.S.C., 1940 ed., to avoid any construction that matters of fact are not reviewable in nonjury cases. Such section 879 related to review upon a writ of error which applied only to actions at law. (See Rule 52(a) of the Federal Rules of Civil Procedure limiting the review of questions of fact which renders unnecessary any statutory limitation.) Rule 7(c) of the Federal Rules of Civil Procedure abol- ished all pleas, and the rules adopted the motion as a substitute therefor. Words ‘‘matters in abatement’’ were, therefore, sub- stituted for the abolished ‘‘plea in abatement’’ and ‘‘plea to the jurisdiction.’’ Changes were made in phraseology. § 2106. Determination The Supreme Court or any other court of ap- pellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances. (June 25, 1948, ch. 646, 62 Stat. 963.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 344, 876, 877 (R.S. § 701; Mar. 3, 1891, ch. 517, §§ 10, 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, §§ 231, 236, 237, 291, 36 Stat. 1156, 1167; Dec. 23, 1914, ch. 2, 38 Stat. 790; Sept. 16, 1916, ch. 448, § 2, 39 Stat. 726; Feb. 17, 1922, ch. 54, 42 Stat. 366; Feb. 13, 1925, Page 511 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2107 ch. 229, § 1, 43 Stat. 937; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54). Section consolidates part of section 344 of title 28, U.S.C., 1940 ed., with sections 876 and 877 of said title. Other provisions of said section 344 are incorporated in sections 1257 and 2103 of this title. Words ‘‘or a court of appeals’’ were inserted after ‘‘Supreme Court’’ upon authority of United States v. Illi- nois 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 As- surance Society of U.S. v. Commissioner of Internal Rev- enue, 1944, 64 S.Ct. 722, 321 U.S. 560, 88 L.Ed. 927. Revised section will also permit a remand by the Su- preme Court to a court of appeals inasmuch as such lat- ter court then would be a lower court. The revised sec- tion 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 in- ferior 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. § 2107. Time for appeal to court of appeals (a) Except as otherwise provided in this sec- tion, 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, the time as to all parties shall be 60 days from such entry if one of the parties is— (1) the United States; (2) a United States agency; (3) a United States officer or employee sued in an official capacity; or (4) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the United States, including all instances in which the United States represents that officer or em- ployee when the judgment, order, or decree is entered or files the appeal for that officer or employee. (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 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal. (d) This section shall not apply to bankruptcy matters or other proceedings under Title 11. (June 25, 1948, ch. 646, 62 Stat. 963; May 24, 1949, ch. 139, §§ 107, 108, 63 Stat. 104; Pub. L. 95–598, title II, § 248, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 102–198, § 12, Dec. 9, 1991, 105 Stat. 1627; Pub. L. 111–16, § 6(3), May 7, 2009, 123 Stat. 1608; Pub. L. 112–62, § 3, Nov. 29, 2011, 125 Stat. 757.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 227a, 230, and sec- tion 1142 of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3, 1891, ch. 517, § 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, § 129, 36 Stat. 1134; Feb. 13, 1925, ch. 229, § 8(c), 43 Stat. 940; Feb. 28, 1927, ch. 228, 44 Stat. 1261; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; Feb. 10, 1939, ch. 2, § 1142, 53 Stat. 165; Oct. 21, 1942, ch. 619, title V, § 504(a), (c), 56 Stat. 957). Section consolidates sections 227a and 230 of title 28, U.S.C., 1940 ed., with section 1142 of title 26, U.S.C., 1940 ed., Internal Revenue Code. Other provisions of such section 227a are incorporated in section 1292 of this title. Section 227a of title 28, U.S.C., 1940 ed., provided a time limit of 30 days for appeals from patent-infringe- ment decisions, and section 230 of title 28, U.S.C., 1940 ed., permitted 3 months for appeals generally. The re- vised section adopts the 30-day limit in conformity with recommendations of members of the Judicial Con- ference 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 de- cision of The Tax Court. The second paragraph of the revised section reduces this to 60 days for reasons ex- plained 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 na- ture’’ 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 allow- ance 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 ‘‘tak- ing’’ an appeal, do not affect the time limitation pre- scribed by section 230 of title 28, U.S.C., 1940 ed. Word ‘‘order’’ was added, in two places, after ‘‘judg- ment’’ 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 sec- tion 48 of title 11, U.S.C., 1940 ed., Bankruptcy, and other sections of that title regulating appellate proce- dure in bankruptcy matters. The third paragraph was inserted to conform to the existing practice in Admiralty upon the recommenda- tion of the Committee on the Federal Courts of the New York County Lawyers Association.