28 U.S.C. § 2109 — Quorum of Supreme Court justices absent

Page 512 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2108 The time for appeal to the Court of Customs and Pat- ent 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., Pat- ents, and Rule 25 of the Rules of such court, and, in cus- toms 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., re- stores the former 15-day limitation of time within which to appeal from an interlocutory order in admi- ralty. 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. Editorial Notes AMENDMENTS 2011—Subsec. (b). Pub. L. 112–62 added subsec. (b) and struck out former subsec. (b) which read as follows: ‘‘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.’’ 2009—Subsec. (c). Pub. L. 111–16 substituted ‘‘within 14 days’’ for ‘‘within 7 days’’ in concluding provisions. 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 ex- cusable 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 sec- tion by inserting ‘‘or the bankruptcy court’’ after ‘‘dis- trict court’’ and by striking out the final par., which amendment did not become effective pursuant to sec- tion 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’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 112–62, § 4, Nov. 29, 2011, 125 Stat. 757, provided that: ‘‘The amendment made by this Act [amending this section] shall take effect on December 1, 2011.’’ EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–16 effective Dec. 1, 2009, see section 7 of Pub. L. 111–16, set out as a note under section 109 of Title 11, Bankruptcy. FINDINGS Pub. L. 112–62, § 2, Nov. 29, 2011, 125 Stat. 756, provided that: ‘‘Congress finds that— ‘‘(1) section 2107 of title 28, United States Code, and rule 4 of the Federal Rules of Appellate Procedure provide that the time to appeal for most civil actions is 30 days, but that the appeal time for all parties is 60 days when the parties in the civil action include the United States, a United States officer, or a United States agency; ‘‘(2) the 60-day period should apply if one of the par- ties is— ‘‘(A) the United States; ‘‘(B) a United States agency; ‘‘(C) a United States officer or employee sued in an official capacity; or ‘‘(D) 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; ‘‘(3) section 2107 of title 28, United States Code, and rule 4 of the Federal Rules of Appellate Procedure (as amended to take effect on December 1, 2011, in ac- cordance with section 2074 of that title) should uni- formly apply the 60-day period to those civil actions relating to a Federal officer or employee sued in an individual capacity for an act or omission occurring in connection with Federal duties; ‘‘(4) the civil actions to which the 60-day periods should apply include all civil actions in which a legal officer of the United States represents the relevant officer or employee when the judgment or order is en- tered or in which the United States files the appeal for that officer or employee; and ‘‘(5) the application of the 60-day period in section 2107 of title 28, United States Code, and rule 4 of the Federal Rules of Appellate Procedure— ‘‘(A) is not limited to civil actions in which rep- resentation of the United States is provided by the Department of Justice; and ‘‘(B) includes all civil actions in which the rep- resentation of the United States is provided by a Federal legal officer acting in an official capacity, such as civil actions in which a Member, officer, or employee of the Senate or the House of Representa- tives is represented by the Office of Senate Legal Counsel or the Office of General Counsel of the House of Representatives.’’ § 2108. Proof of amount in controversy Where the power of any court of appeals to re- view a case depends upon the amount or value in controversy, such amount or value, if not other- wise satisfactorily disclosed upon the record, may be shown and ascertained by the oath of a party to the case or by other competent evi- dence. (June 25, 1948, ch. 646, 62 Stat. 963.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 231 (Feb. 13, 1925, ch. 229, § 9, 43 Stat. 941). Words ‘‘or in the Supreme Court’’ were omitted. Sec- tion 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 Is- lands 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., § 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. § 2109. Quorum of Supreme Court justices absent If a case brought to the Supreme Court by di- rect appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice Page 513 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2112 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 de- cision of such court shall be final and conclu- sive. In the event of the disqualification or dis- ability 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 de- termined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court. (June 25, 1948, ch. 646, 62 Stat. 963.) 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, § 2, 32 Stat. 823; Mar. 3, 1911, ch. 231, § 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 be- cause of the absence of a quorum of qualified justices.’’ It includes direct appeals in criminal cases under sec- tion 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 des- ignation of circuit judges from other circuits in case of insufficient circuit judges being available in the cir- cuit. 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 con- stituted 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 ap- peal 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 litiga- tion in which appellate review has been had and further review by the Supreme Court is impossible for lack of a quorum of qualified justices. [§ 2110. Repealed. Pub. L. 97–164, title I, § 136, Apr. 2, 1982, 96 Stat. 41] Section, acts June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, § 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. Statutory Notes and Related Subsidiaries 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. § 2111. Harmless error On the hearing of any appeal or writ of certio- rari in any case, the court shall give judgment after an examination of the record without re- gard to errors or defects which do not affect the substantial rights of the parties. (Added May 24, 1949, ch. 139, § 110, 63 Stat. 105.) HISTORICAL AND REVISION NOTES 1949 ACT Incorporates in title 28, U.S.C., as section 2111 there- of, 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. § 2112. Record on review and enforcement of agency orders (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 agen- cy, 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 determina- tion 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 offi- cer concerned receives, from the persons insti-