28 U.S.C. § 2461 — Mode of recovery

Page 610 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2416 1 So in original. ‘‘(b) Any right of action on claims covered by such legislation or report shall be barred unless the com- plaint is filed within 3 years after the date of submis- sion of such legislation or legislative report to Con- gress.’’ LEGISLATIVE PROPOSALS RESPECTING APPROPRIATENESS OF RESOLUTION BY LITIGATION OF UNRESOLVED IN- DIAN CLAIMS Pub. L. 96–217, § 2, Mar. 27, 1980, 94 Stat. 126, 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 re- solve 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 Attor- ney General believes are not appropriate to resolve by litigation.’’ § 2416. Time for commencing actions brought by the United States—Exclusions 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 Common- wealth of Puerto Rico; or (b) the defendant is exempt from legal proc- ess 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 cir- cumstances; or (d) the United States is in a state of war de- clared pursuant to article I, section 8, of the Constitution of the United States. (Added Pub. L. 89–505, § 1, July 18, 1966, 80 Stat. 305.) CHAPTER 163—FINES, PENALTIES AND FORFEITURES Sec. 2461. Mode of recovery. 2462. Time for commencing proceedings. 2463. Property taken under revenue law not re- pleviable. 2464. Security; special bond. 2465. Return of property to claimant; liability for wrongful seizure; attorney fees, costs, and interest. 2466. Fugitive disentitlement. 2467. Enforcement of foreign judgment. Editorial Notes AMENDMENTS 2000—Pub. L. 106–185, §§ 4(b), 14(b), 15(b), Apr. 25, 2000, 114 Stat. 213, 219, 221, substituted ‘‘Return of property to claimant; liability for wrongful seizure; attorney fees, costs, and interest’’ for ‘‘Return of property to claimant; certificate of reasonable cause; liability for wrongful seizure’’ in item 2465 and added items 2466 and 2467. § 2461. Mode of recovery (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 re- covered in a civil action. (b) Unless otherwise provided by Act of Con- gress, whenever a forfeiture of property is pre- scribed 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 admi- ralty 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. (c) If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is au- thorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Pro- cedure. If the defendant is convicted of the of- fense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case pursuant to to 1 the Federal Rules of Criminal Procedure and section 3554 of title 18, United States Code. The procedures in section 413 of the Controlled Sub- stances Act (21 U.S.C. 853) apply to all stages of a criminal forfeiture proceeding, except that subsection (d) of such section applies only in cases in which the defendant is convicted of a violation of such Act. (June 25, 1948, ch. 646, 62 Stat. 974; Pub. L. 106–185, § 16, Apr. 25, 2000, 114 Stat. 221; Pub. L. 109–177, title IV, § 410, Mar. 9, 2006, 120 Stat. 246.) HISTORICAL AND REVISION NOTES Subsection (a) was drafted to clarify a serious ambi- guity in existing law and is based upon rulings of the Supreme Court. Numerous sections in the United States Code prescribe civil fines, penalties, and pecu- niary forfeitures for violation of certain sections with- out specifying the mode of recovery or enforcement thereof. See, for example, section 567 of title 12, U.S.C., 1940 ed., Banks and Banking, section 64 of title 14, U.S.C., 1940 ed., Coast Guard, and section 180 of title 25, U.S.C., 1940 ed., Indians. Compare section 1 (21) of title 49, U.S.C., 1940 ed., Transportation. A civil fine, penalty, or pecuniary forfeiture is recov- erable 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 enforce- able 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 convic- tion. The collection of civil fines and penalties, how- ever, may not be had under the Federal Rules of Crimi- nal 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 sec- tion 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 there- under, as to execution in civil actions.) Subsection (b) was drafted to cover the subject of for- feiture of property generally. Sections in the United States Code specifically providing a mode of enforce- ment of forfeiture of property for their violation and other procedural matters will, of course, govern and Page 611 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2461 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 sum- mary procedure, sell at public auction, without pre- vious 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 admi- ralty 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 incor- porated. Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (c), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. The Controlled Substances Act, referred to in subsec. (c), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§ 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. AMENDMENTS 2006—Subsec. (c). Pub. L. 109–177 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘If a forfeiture of property is authorized in con- nection with a violation of an Act of Congress, and any person is charged in an indictment or information with such violation but no specific statutory provision is made for criminal forfeiture upon conviction, the Gov- ernment may include the forfeiture in the indictment or information in accordance with the Federal Rules of Criminal Procedure, and upon conviction, the court shall order the forfeiture of the property in accordance with the procedures set forth in section 413 of the Con- trolled Substances Act (21 U.S.C. 853), other than sub- section (d) of that section.’’ 2000—Subsec. (c). Pub. L. 106–185 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–185 applicable to any for- feiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106–185, set out as a note under section 1324 of Title 8, Aliens and Nationality. FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT Pub. L. 101–410, Oct. 5, 1990, 104 Stat. 890, as amended by Pub. L. 104–134, title III, § 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321–373; Pub. L. 105–362, title XIII, § 1301(a), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 114–74, title VII, § 701(b), Nov. 2, 2015, 129 Stat. 599, 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 vio- lations 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 infla- tion; ‘‘(3) by reducing the impact of civil monetary pen- alties, 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 Govern- ment 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 pro- vided by Federal law; or ‘‘(ii) has a maximum amount provided for by Fed- eral law; and ‘‘(B) is assessed or enforced by an agency pursu- ant to Federal law; and ‘‘(C) is assessed or enforced pursuant to an admin- istrative 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. (a) IN GENERAL.—Not later than July 1, 2016, and not later than January 15 of every year thereafter, and subject to subsections (c) and (d), the head of each agency shall— ‘‘(1) in accordance with subsection (b), adjust each civil monetary penalty provided by law within the ju- risdiction of the Federal agency, except for any pen- alty (including any addition to tax and additional amount) under the Internal Revenue Code of 1986 [26 U.S.C. 1 et seq.] or the Tariff Act of 1930 [19 U.S.C. 1202 et seq.], by the inflation adjustment described under section 5 of this Act; and ‘‘(2) publish each such adjustment in the Federal Register. ‘‘(b) PROCEDURES FOR ADJUSTMENTS.— ‘‘(1) CATCH UP ADJUSTMENT.—For the first adjust- ment made under subsection (a) after the date of en- actment of the Federal Civil Penalties Inflation Ad- justment Act Improvements Act of 2015 [Nov. 2, 2015]— Page 612 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2462 ‘‘(A) the head of an agency shall adjust civil mon- etary penalties through an interim final rule- making; and ‘‘(B) the adjustment shall take effect not later than August 1, 2016. ‘‘(2) SUBSEQUENT ADJUSTMENTS.—For the second ad- justment made under subsection (a) after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and each adjustment thereafter, the head of an agency shall adjust civil monetary penalties and shall make the adjustment notwithstanding section 553 of title 5, United States Code. ‘‘(c) EXCEPTION.—For the first adjustment made under subsection (a) after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Im- provements Act of 2015, the head of an agency may ad- just the amount of a civil monetary penalty by less than the otherwise required amount if— ‘‘(1) the head of the agency, after publishing a no- tice of proposed rulemaking and providing an oppor- tunity for comment, determines in a final rule that— ‘‘(A) increasing the civil monetary penalty by the otherwise required amount will have a negative economic impact; or ‘‘(B) the social costs of increasing the civil mone- tary penalty by the otherwise required amount out- weigh the benefits; and ‘‘(2) the Director of the Office of Management and Budget concurs with the determination of the head of the agency under paragraph (1). ‘‘(d) OTHER ADJUSTMENTS MADE.—If a civil monetary penalty subject to a cost-of-living adjustment under this Act is, during the 12 months preceding a required cost-of-living adjustment, increased by an amount greater than the amount of the adjustment required under subsection (a), the head of the agency is not re- quired to make the cost-of-living adjustment for that civil monetary penalty in that year. ‘‘COST-OF-LIVING ADJUSTMENTS OF CIVIL MONETARY PENALTIES ‘‘SEC. 5. (a) ADJUSTMENT.—The inflation adjustment under section 4 shall be determined by increasing the maximum civil monetary penalty or the range of min- imum and maximum civil monetary penalties, as appli- cable, for each civil monetary penalty by the cost-of- living adjustment. Any increase determined under this subsection shall be rounded to the nearest multiple of $1. ‘‘(b) DEFINITION.— ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), for purposes of subsection (a), the term ‘cost-of- living adjustment’ means the percentage (if any) for each civil monetary penalty by which— ‘‘(A) the Consumer Price Index for the month of October preceding the date of the adjustment, ex- ceeds ‘‘(B) the Consumer Price Index for the month of October 1 year before the month of October referred to in subparagraph (A). ‘‘(2) INITIAL ADJUSTMENT.— ‘‘(A) IN GENERAL.—Subject to subparagraph (C), for the first inflation adjustment under section 4 made by an agency after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 [Nov. 2, 2015], the term ‘cost-of-living adjustment’ means the percent- age (if any) for each civil monetary penalty by which the Consumer Price Index for the month of October, 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of such civil monetary penalty was established or adjusted under a provision of law other than this Act. ‘‘(B) APPLICATION OF ADJUSTMENT.—The cost-of- living adjustment described in subparagraph (A) shall be applied to the amount of the civil mone- tary penalty as it was most recently established or adjusted under a provision of law other than this Act. ‘‘(C) MAXIMUM ADJUSTMENT.—The amount of the increase in a civil monetary penalty under subpara- graph (A) shall not exceed 150 percent of the amount of that civil monetary penalty on the date of enactment of the Federal Civil Penalties Infla- tion Adjustment Act Improvements Act of 2015. ‘‘SEC. 6. Any increase under this Act in a civil mone- tary penalty shall apply only to civil monetary pen- alties, including those whose associated violation pre- dated such increase, which are assessed after the date the increase takes effect. ‘‘SEC. 7. IMPLEMENTATION AND OVERSIGHT ENHANCE- MENTS ‘‘(a) OMB GUIDANCE.—Not later than February 29, 2016, not later than December 15, 2016, and December 15 of every year thereafter, the Director of the Office of Management and Budget shall issue guidance to agen- cies on implementing the inflation adjustments re- quired under this Act. ‘‘(b) AGENCY FINANCIAL REPORTS.—The head of each agency shall include in the Agency Financial Report submitted under OMB Circular A–136, or any successor thereto, information about the civil monetary pen- alties within the jurisdiction of the agency, including the adjustment of the civil monetary penalties by the head of the agency under this Act. ‘‘(c) GAO REVIEW.—The Comptroller General of the United States shall annually submit to Congress a re- port assessing the compliance of agencies with the in- flation adjustments required under this Act, which may be included as part of another report submitted to Con- gress.’’ [Pub. L. 104–134, title III, § 31001(s)(2), Apr. 26, 1996, 110 Stat. 1321–373, which provided that the first adjustment of a civil monetary penalty made pursuant to the amendment by § 31001(s)(1) of Pub. L. 104–134 (amending Pub. L. 101–410, set out above) could not exceed 10 per- cent of the penalty, was repealed by Pub. L. 114–74, title VII, § 701(c), Nov. 2, 2015, 129 Stat. 601.] [For authority of the Director of the Office of Man- agement and Budget to consolidate reports required under the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101–410, set out above, to be sub- mitted between Jan. 1, 1995, and Sept. 30, 1997, or to ad- just their frequency and due dates, see section 404 of Pub. L. 103–356, set out as a note under section 501 of Title 31, Money and Finance.] § 2462. Time for commencing proceedings Except as otherwise provided by Act of Con- gress, an action, suit or proceeding for the en- forcement of any civil fine, penalty, or for- feiture, pecuniary or otherwise, shall not be en- tertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the prop- erty is found within the United States in order that proper service may be made thereon. (June 25, 1948, ch. 646, 62 Stat. 974.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 791 (R.S. § 1047). Changes were made in phraseology. § 2463. Property taken under revenue law not re- pleviable All property taken or detained under any rev- enue law of the United States shall not be repleviable, but shall be deemed to be in the cus- tody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. (June 25, 1948, ch. 646, 62 Stat. 974.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 747 (R.S. § 934).