28 U.S.C. § 1871 — Fees

Page 477 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1871 (June 25, 1948, ch. 646, 62 Stat. 953; Pub. L. 86–282, Sept. 16, 1959, 73 Stat. 565.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 424 (Mar. 3, 1911, ch. 231, § 287, 36 Stat. 1166). Provisions of section 424 of title 28, U.S.C., 1940 ed., relating to the number of peremptory challenges in criminal cases were deleted as superseded by Rule 24 of the Federal Rules of Criminal Procedure. The last sentence of the first paragraph was added to permit the same flexibility in the matter of challenges in civil cases as is permitted in criminal cases by said Rule 24. Words ‘‘without aid of triers’’ at end of section 424 of title 28, U.S.C., 1940 ed., were omitted as surplusage. Changes were made in phraseology. Editorial Notes AMENDMENTS 1959—Pub. L. 86–282 substituted ‘‘may’’ for ‘‘shall’’ after ‘‘several plaintiffs’’, and ‘‘, or the court may allow’’ for ‘‘. If there is more than one defendant the court may allow the defendants’’. § 1871. Fees (a) Grand and petit jurors in district courts appearing pursuant to this chapter shall be paid the fees and allowances provided by this section. The requisite fees and allowances shall be dis- bursed on the certificate of the clerk of court in accordance with the procedure established by the Director of the Administrative Office of the United States Courts. Attendance fees for ex- tended service under subsection (b) of this sec- tion shall be certified by the clerk only upon the order of a district judge. (b)(1) A juror shall be paid an attendance fee of $50 per day for actual attendance at the place of trial or hearing. A juror shall also be paid the attendance fee for the time necessarily occupied in going to and returning from such place at the beginning and end of such service or at any time during such service. (2) A petit juror required to attend more than ten days in hearing one case may be paid, in the discretion of the trial judge, an additional fee, not exceeding $10 more than the attendance fee, for each day in excess of ten days on which he is required to hear such case. (3) A grand juror required to attend more than forty-five days of actual service may be paid, in the discretion of the district judge in charge of the particular grand jury, an additional fee, not exceeding $10 more than the attendance fee, for each day in excess of forty-five days of actual service. (4) A grand or petit juror required to attend more than ten days of actual service may be paid, in the discretion of the judge, the appro- priate fees at the end of the first ten days and at the end of every ten days of service there- after. (5) Certification of additional attendance fees may be ordered by the judge to be made effec- tive commencing on the first day of extended service, without reference to the date of such certification. (c)(1) A travel allowance not to exceed the maximum rate per mile that the Director of the Administrative Office of the United States Courts has prescribed pursuant to section 604(a)(7) of this title for payment to supporting court personnel in travel status using privately owned automobiles shall be paid to each juror, regardless of the mode of transportation actu- ally employed. The prescribed rate shall be paid for the distance necessarily traveled to and from a juror’s residence by the shortest practical route in going to and returning from the place of service. Actual mileage in full at the pre- scribed rate is payable at the beginning and at the end of a juror’s term of service. (2) The Director shall promulgate rules regu- lating interim travel allowances to jurors. Dis- tances traveled to and from court should coin- cide with the shortest practical route. (3) Toll charges for toll roads, bridges, tunnels, and ferries shall be paid in full to the juror in- curring such charges. In the discretion of the court, reasonable parking fees may be paid to the juror incurring such fees upon presentation of a valid parking receipt. Parking fees shall not be included in any tabulation of mileage cost al- lowances. (4) Any juror who travels to district court pur- suant to summons in an area outside of the con- tiguous forty-eight States of the United States shall be paid the travel expenses provided under this section, or actual reasonable transportation expenses subject to the discretion of the district judge or clerk of court as circumstances indi- cate, exercising due regard for the mode of transportation, the availability of alternative modes, and the shortest practical route between residence and court. (5) A grand juror who travels to district court pursuant to a summons may be paid the travel expenses provided under this section or, under guidelines established by the Judicial Con- ference, the actual reasonable costs of travel by aircraft when travel by other means is not fea- sible and when certified by the chief judge of the district court in which the grand juror serves. (d)(1) A subsistence allowance covering meals and lodging of jurors shall be established from time to time by the Director of the Administra- tive Office of the United States Courts pursuant to section 604(a)(7) of this title, except that such allowance shall not exceed the allowance for supporting court personnel in travel status in the same geographical area. Claims for such al- lowance shall not require itemization. (2) A subsistence allowance shall be paid to a juror when an overnight stay is required at the place of holding court, and for the time nec- essarily spent in traveling to and from the place of attendance if an overnight stay is required. (3) A subsistence allowance for jurors serving in district courts outside of the contiguous forty-eight States of the United States shall be allowed at a rate not to exceed that per diem al- lowance which is paid to supporting court per- sonnel in travel status in those areas where the Director of the Administrative Office of the United States Courts has prescribed an in- creased per diem fee pursuant to section 604(a)(7) of this title. (e) During any period in which a jury is or- dered to be kept together and not to separate, the actual cost of subsistence shall be paid upon the order of the court in lieu of the subsistence allowances payable under subsection (d) of this Page 478 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1871 section. Such allowance for the jurors ordered to be kept separate or sequestered shall include the cost of meals, lodging, and other expenditures ordered in the discretion of the court for their convenience and comfort. (f) A juror who must necessarily use public transportation in traveling to and from court, the full cost of which is not met by the transpor- tation expenses allowable under subsection (c) of this section on account of the short distance traveled in miles, may be paid, in the discretion of the court, the actual reasonable expense of such public transportation, pursuant to the methods of payment provided by this section. Jurors who are required to remain at the court beyond the normal business closing hour for de- liberation or for any other reason may be trans- ported to their homes, or to temporary lodgings where such lodgings are ordered by the court, in a manner directed by the clerk and paid from funds authorized under this section. (g) The Director of the Administrative Office of the United States Courts shall promulgate such regulations as may be necessary to carry out his authority under this section. (June 25, 1948, ch. 646, 62 Stat. 953; May 24, 1949, ch. 139, § 97, 63 Stat. 103; July 14, 1949, ch. 333, 63 Stat. 411; Pub. L. 85–299, Sept. 7, 1957, 71 Stat. 618; Pub. L. 89–165, Sept. 2, 1965, 79 Stat. 645; Pub. L. 90–274, § 102(a), Mar. 27, 1968, 82 Stat. 62; Pub. L. 95–572, § 5, Nov. 2, 1978, 92 Stat. 2454; Pub. L. 101–650, title III, § 314(b), Dec. 1, 1990, 104 Stat. 5115; Pub. L. 102–572, title IV, § 402, Oct. 29, 1992, 106 Stat. 4511; Pub. L. 110–406, § 3(a), Oct. 13, 2008, 122 Stat. 4292; Pub. L. 115–141, div. E, title III, § 307(a), Mar. 23, 2018, 132 Stat. 556.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 600, 600a, 600b, 608, and sections 11–1512 and 11–1513 of the D.C. Code, 1940 ed., (R.S. §§ 236, 323; Apr. 26, 1926, ch. 183, §§ 1, 2, 44 Stat. 323; May 17, 1932, ch. 190, 47 Stat. 158; Oct. 13, 1941, ch. 431, § 2, 55 Stat. 736). Section consolidates section 600 of title 28, U.S.C., 1940 ed., and sections 11–1512 and 11–1513 of the D.C. Code, 1940 ed., with part of section 608 of title 28, U.S.C., 1940 ed. The remainder of such section 608, relating to payment of witnesses’ compensation, is the basis of sec- tion 1825 of this title. Words ‘‘place of service’’ were substituted for ref- erences to attendance at court, in view of the earlier reference to service before commissioners. The Advisory Committee to the House Committee on Revision of the Laws in revision of this title, rec- ommends a careful study of the compensation of wit- nesses and jurors. Furthermore, provision should be made for the subsistence of jurors and witnesses serv- ing at such distance from their homes as precludes daily travel to and from the court. Changes were made in phraseology. 1949 ACT This section incorporates in section 1871 of title 28, U.S.C., with changes in phraseology, the provisions of act of June 25, 1948 (ch. 652, 62 Stat. 1016), which became law subsequent to the enactment of the revision. Editorial Notes AMENDMENTS 2018—Subsec. (b)(1). Pub. L. 115–141 substituted ‘‘$50’’ for ‘‘$40’’. 2008—Subsec. (b)(2). Pub. L. 110–406 substituted ‘‘ten days’’ for ‘‘thirty days’’ in two places. 1992—Subsec. (c)(5). Pub. L. 102–572 added par. (5). 1990—Subsec. (b). Pub. L. 101–650 substituted ‘‘$40’’ for ‘‘$30’’ in par. (1) and ‘‘$10’’ for ‘‘$5’’ in pars. (2) and (3). 1978—Subsecs. (a) to (g). Pub. L. 95–572, in revising text, substituted subsecs. (a) to (g) for prior five un- numbered paragraphs, and among other changes, de- leted reference to fees for service before United States commissioners, now provided for in chapter 43 (section 631 et seq.) of this title relating to United States mag- istrates; increased to $30 from $20 allowance for actual attendance; continued the discretionary additional fee for extended service, increasing to forty-five from thir- ty days the basic service requirement; generalized trav- el allowance provisions in place of 10 cents per mile travel allowance from residence to place of service when commencing and terminating service and any necessary daily or interim travel, not to exceed a sub- sistence allowance of $16 per day; and deleted provision for same fees for service in districts courts for districts of Guam and Canal Zone as provided for services in other Federal district courts as covered in definition of ‘‘district court of the United States’’ in section 1869(f) of this title. 1968—Pub. L. 90–274 increased from $10 to $20 the per diem allowance for grand and petit jurors, increased from $14 to $25 the fee for extra days in cases requiring attendance in excess of 30 days, increased from $10 to $16 the daily subsistence rate when travel appears im- practicable, increased from $10 to $20 per day the limit after which payment of fees by the marshal must be on the certificate of the trial judge, provided for the al- lowance of amounts expended for tolls, for toll roads, for toll tunnels, and for toll bridges, and directed that grand and petit jurors in the district courts for the dis- tricts of Guam and the Canal Zone receive the same fees and allowances provided for grand and petit jurors in other district courts of the United States. 1965—Pub. L. 89–165 increased from $7 to $10 the per diem allowance for grand and petit jurors, increased from $10 to $14 the fee for extra days in cases requiring attendance in excess of 30 days, prohibited payment for interim or daily travel at the 10-cent-per-mile rate in excess of the subsistence allowance which would have been paid if he had remained at the place of holding court overnight or during temporary recess, increased from $7 to $10 the daily subsistence rate when travel daily appears impracticable, and increased from $7 to $10 per day the limit after which payment of fees by the marshal must be on the certificate of the trial judge. 1957—Pub. L. 85–299 increased from 7 to 10 cents per mile and $5 to $7 per day the mileage and subsistence allowances of grand and petit jurors. 1949—Act July 14, 1949, increased the per diem fee paid jurors from $5 to $7, provided for per diem fee pay- ments not to exceed $10 for each day in excess of thirty days, increased the mileage payment from 5 cents per mile to 7 cents, and provided for the certification of the judge in cases where the jury fee is in excess of $7 per diem. Act May 24, 1949, increased jury fees and mileage and subsistence allowances. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–141, div. E, title III, § 307(b), Mar. 23, 2018, 132 Stat. 556, provided that: ‘‘The amendment made in subsection (a) [amending this section] shall take effect 45 days after the date of enactment of this Act [Mar. 23, 2018].’’ EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–406, § 3(b), Oct. 13, 2008, 122 Stat. 4292, pro- vided that: ‘‘The amendments made by this section [amending this section] shall take effect on October 1, 2009.’’ Page 479 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1875 EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Jan. 1, 1993, see section 1101(a) of Pub. L. 102–572, set out as a note under section 905 of Title 2, The Congress. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–572 applicable with respect to any grand or petit juror serving on or after the six- tieth day following Nov. 2, 1978, see section 7(b) of Pub. L. 95–572, set out as an Effective Date note under sec- tion 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90–274, set out as a note under section 1861 of this title. REFRESHMENT OF JURORS Pub. L. 101–162, title IV, Nov. 21, 1989, 103 Stat. 1012, provided: ‘‘That for fiscal year 1990 and hereafter, funds appropriated under this heading [COURTS OF APPEALS, DISTRICT COURTS AND OTHER JUDICIAL SERVICES and FEES OF JURORS AND COMMISSIONERS] shall be available for refreshment of jurors.’’ § 1872. Issues of fact in Supreme Court In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried by a jury. (June 25, 1948, ch. 646, 62 Stat. 953.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 343 (Mar. 3, 1911, ch. 231, § 235, 36 Stat. 1156). Changes were made in phraseology. § 1873. Admiralty and maritime cases In any case of admiralty and maritime juris- diction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party de- mands it. (June 25, 1948, ch. 646, 62 Stat. 953.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 770 (R.S. §§ 566, 648; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167). Words ‘‘and Territories’’ following words ‘‘in different States’’ were omitted as obsolete. The act of February 26, 1845, ch. 20, 5 Stat. 726, from which this language was derived was intended primarily to cover the Great Lakes regions. The first sentence of section 770 of title 28, U.S.C., 1940 ed., providing generally for the right of jury trials in district courts, was omitted as covered by Rule 38 of the Federal Rules of Civil Procedure. Changes were made in phraseology. § 1874. Actions on bonds and specialties In all actions to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, wherein the forfeiture, breach, or nonperformance appears by default or confes- sion of the defendant, the court shall render judgment for the plaintiff for such amount as is due. If the sum is uncertain, it shall, upon re- quest of either party, be assessed by a jury. (June 25, 1948, ch. 646, 62 Stat. 953.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 785 (R.S. § 961). Word ‘‘actions’’ was substituted for ‘‘all suits brought,’’ in view of Rule 2 of the Federal Rules of Civil Procedure. For the same reason, words ‘‘according to equity,’’ after ‘‘to recover so much as is due,’’ were omitted. Words ‘‘or upon demurrer,’’ after ‘‘default or confes- sion of the defendant,’’ were omitted in view of Federal Rules of Civil Procedure, Rule 7(c), abolishing demur- rers. Changes were made in phraseology. § 1875. Protection of jurors’ employment (a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attend- ance in connection with such service, in any court of the United States. (b) Any employer who violates the provisions of this section— (1) shall be liable for damages for any loss of wages or other benefits suffered by an em- ployee by reason of such violation; (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and (3) shall be subject to a civil penalty of not more than $5,000 for each violation as to each employee, and may be ordered to perform com- munity service. (c) Any individual who is reinstated to a posi- tion of employment in accordance with the pro- visions of this section shall be considered as having been on furlough or leave of absence dur- ing his period of jury service, shall be reinstated to his position of employment without loss of seniority, and shall be entitled to participate in insurance or other benefits offered by the em- ployer pursuant to established rules and prac- tices relating to employees on furlough or leave of absence in effect with the employer at the time such individual entered upon jury service. (d)(1) An individual claiming that his em- ployer has violated the provisions of this section may make application to the district court for the district in which such employer maintains a place of business and the court shall, upon find- ing probable merit in such claim, appoint coun- sel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid to the extent pro- vided by section 3006A of title 18, United States Code. (2) In any action or proceeding under this sec- tion, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney’s fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing em- ployee, where such costs were expended by the court pursuant to paragraph (1) of this sub- section. The court may award a prevailing em- ployer a reasonable attorney’s fee as part of the