NOTES TO RULE 81
HISTORY: (Amended Apr. 3, 1941; Mar. 19, 1948; Oct. 20, 1949; Aug. 1, 1951; July 1, 1963; July 1, 1966; July 1, 1968; July 1, 1971; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
Paragraph (1): Compare the enabling act, act of June 19, 1934, USC, Title 28, formerly § 723b (now § 2072) (Rules in actions at law; Supreme Court authorized to make) and formerly § 723c (now § 2072) (Union of equity and action at law rules; power of Supreme Court). For the application of these rules in bankruptcy and copyright proceedings, see Orders xxxvi and xxxvii in Bankruptcy and Rule 1 of Rules of Practice and Procedure under § 25 of the copyright act, act of March 4, 1909, USC, Title 17, § 25 (now § 101) (Infringement and rules of procedure).
For examples of statutes which are preserved by paragraph (2) see: USC, Title 8, ch 9 (Naturalization); Title 28, former ch 14 (Habeas corpus); Title 28, former §§ 377a--377c (Quo warranto); and such forfeiture statutes as USC, Title 7, former § 116 (Misbranded seeds, confiscation), and Title 21, formerly § 14 (now § 334(b)) (Pure Food and Drug Act--condemnation of adulterated or misbranded food; procedure). See also 443 Cans of Frozen Eggs Product v U. S. 226 US 172, 33 S Ct 50, 57 L Ed 174 (1912).
For examples of statutes which under paragraph (7) will continue to govern procedure in condemnation cases, see USC, Title 40, § 258 (Condemnation of realty for sites for public building, etc., procedure); USC, Title 16, § 831x (Condemnation by Tennessee Valley Authority); USC, Title 40, § 120 (Acquisition of lands for public use in District of Columbia); Title 40, ch 7 (Acquisition of lands in District of Columbia for use of United States; condemnation).
Note to Subdivision (b).
Some statutes which will be affected by this subdivision are:
USC, Title 7: § 222 (Federal Trade Commission powers adopted for enforcement of stockyards Act) (By reference to Title 15, § 49)
USC, Title 15:
§ 49 (Enforcement of Federal Trade Commission orders
and antitrust laws)
§ 77t(c) (Enforcement of Securities and Exchange Commission orders and Securities
Act of 1933)
§ 78u(f) (Same; Securities Exchange Act of 1934)
§ 79r(g) (Same; Public Utility Holding Company Act of 1935)
USC, Title 16:
§ 820 (Proceedings in equity for revocation or to
prevent violations of license of Federal Power Commission licensee)
§ 825m(b) (Mandamus to compel compliance with Federal Water Power Act, etc.)
USC, Title 19: § 1333(c) (Mandamus to compel compliance with orders of Tariff Commission, etc.)
USC, Title 28, former:
§ 377 (Power to issue writs)
§ 572 (Fees, attorneys, solicitors and proctors)
§ 778 (Death of parties; substitution of executor or administrator).
Compare Rule 25(a) (Substitution of parties; death), and the note thereto.
USC, Title 33: § 495 (Removal of bridges over navigable waters)
USC, Title 45:
§ 88 (Mandamus against Union Pacific Railroad Company)
§ 153(p) (Mandamus to enforce orders of Adjustment Board under Railway Labor
Act)
§ 185 (Same; National Air Transport Adjustment Board) (By reference to § 153)
USC, Title 47:
§ 11 (Powers of Federal Communications Commission)
§ 401(a) (Enforcement of Federal Communications Act and orders of Commission)
§ 406 (Same; compelling furnishing of facilities; mandamus)
USC, Title 49:
§ 19a(1) (Mandamus to compel compliance with Interstate
Commerce Act)
§ 20(9) (Jurisdiction to compel compliance with interstate commerce laws
by mandamus)
For comparable provisions in state practice see Ill Rev Stat (1937), ch 110, § 179; Calif Code Civ Proc (Deering, 1937) § 802.
Note to Subdivision (c).
Such statutes as the following dealing with the removal of actions are substantially continued and made subject to these rules:
USC, Title 28, former:
§ 71 (Removal of suits from state courts)
§ 72 (Same; procedure)
§ 73 (Same; suits under grants of land from different states)
§ 74 (Same; causes against persons denied civil rights)
§ 75 (Same; petitioner in actual custody of state court)
§ 76 (Same; suits and prosecutions against revenue officers)
§ 77 (Same; suits by aliens)
§ 78 (Same; copies of records refused by clerk of state court)
§ 79 (Same; previous attachment bonds or orders)
§ 80 (Same; dismissal or remand)
§ 81 (Same; proceedings in suits removed)
§ 82 (Same; record; filing and return)
§ 83 (Service of process after removal)
USC, Title 28, formerly § 72 (now §§ 1446, 1447), supra, however, is modified by shortening the time for pleading in removed actions.
Note to Subdivision (e).
The last sentence of this subdivision modifies USC, Title 28, formerly § 725 (now § 1652) (Laws of States as rules of decision) in so far as that statute has been construed to govern matters of procedure and to exclude state judicial decisions relative thereto.
Notes of Advisory Committee on 1946 Amendments to Rules.
Note to Subdivision (a).
Despite certain dicta to the contrary, Lynn v United States, CCA 5th, 1940, 110 F2d 586; Mount Tivy Winery, Inc. v Lewis, ND Cal 1942, 42 F Supp 636, it is manifest that the rules apply to actions against the United States under the Tucker Act [28 USC, formerly §§ 41(20), 250, 251, 254, 257, 258, 287, 289, 292, 761--765 (now §§ 791, 1346, 1401, 1402, 1491, 1493, 1496, 1501, 1503, 2071, 2072, 2411, 2412, 2501, 2506, 2509, 2510)]. See United States to use of Foster Wheeler Corp. v American Surety Co. of New York, ED NY 1939, 25 F Supp 700; Boerner v United States, ED NY 1939, 26 F Supp 769; United States v Gallagher, CCA 9th, 1945, 151 F2d 556. Rules 1 and 81 provide that the rules shall apply to all suits of a civil nature, whether cognizable as cases at law or in equity, except those specifically excepted; and the character of the various proceedings excepted by express statement in Rule 81, as well as the language of the rules generally, shows that the term "civil action" [Rule 2] includes actions against the United States. Moreover, the rules in many places expressly make provision for the situation wherein the United States is a party as either plaintiff or defendant. See Rules 4(d)(4), 12(a), 13(d), 25(d), 37(f), 39(c), 45(c), 54(d), 55(e), 62(e), and 65(c). In United States v Sherwood, 1941, 312 US 584, 85 L Ed 1058, 61 S Ct 767, the Solicitor General expressly conceded in his brief for the United States that the rules apply to Tucker Act cases. The Solicitor General stated: "The Government, of course, recognizes that the Federal Rules of Civil Procedure apply to cases brought under the Tucker Act." (Brief for the United States, p 31). Regarding Lynn v United States, supra, the Solicitor General said: "In Lynn v United States . . . the Circuit Court of Appeals for the Fifth Circuit went beyond the Government's contention there, and held that an action under the Tucker Act is neither an action at law nor a suit in equity and, seemingly, that the Federal Rules of Civil Procedure are, therefore, inapplicable. We think the suggestion is erroneous. Rules 4(d), 12(a), 39(c), and 55(e) expressly contemplate suits against the United States, and nothing in the enabling Act (48 Stat 1064, 28 USC formerly §§ 723b, 723c (now § 2072) suggests that the Rules are inapplicable to Tucker Act proceedings, which in terms are to accord with court rules and their subsequent modifications (Sec 4, Act of March 3, 1887, 24 Stat 505, 28 USC, formerly § 761 (now §§ 2071, 2072))." (Brief for the United States, p 31, n 17.)
United States v Sherwood, supra, emphasizes, however, that the application of the rules in Tucker Act cases affects only matters of procedure and does not operate to extend jurisdiction. See also Rule 82. In the Sherwood case, the New York Supreme Court, acting under § 795 of the New York Civil Practice Act, made an order authorizing Sherwood, as a judgment creditor, to maintain a suit under the Tucker Act to recover damages from the United States for breach of its contract with the judgment debtor, Kaiser, for construction of a post office building. Sherwood brought suit against the United States and Kaiser in the District Court for the Eastern District of New York. The question before the United States Supreme Court was whether a United States District Court had jurisdiction to entertain a suit against the United States wherein private parties were joined as parties defendant. It was contended that either the Federal Rules of Civil Procedure or the Tucker Act, or both, embodied the consent of the United States to be sued in litigations in which issues between the plaintiff and third persons were to be adjudicated. Regarding the effect of the Federal Rules, the Court declared that nothing in the rules, so far as they may be applicable in Tucker Act cases, authorized the maintenance of any suit against the United States to which it had not otherwise consented. The matter involved was not one of procedure but of jurisdiction, the limits of which were marked by the consent of the United States to be sued. The jurisdiction thus limited is unaffected by the Federal Rules of Civil Procedure.
Subdivision (a)(2).
The added sentence makes it clear that the rules have not superseded the requirements of USC Title 28, formerly § 466 (now § 2253). Schenk v Plummer, CCA 9th 1940, 113 F2d 726.
For correct application of the rules in proceedings for forfeiture of property for violation of a statute of the United States, such as under USC Title 22, § 405 (seizure of war materials intended for unlawful export) or USC Title 21, § 334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21, USC § 14, Pure Food and Drug Act), see Reynal v United States, CCA 5th, 1945, 153 F2d 929; United States v 108 Boxes of Cheddar Cheese, SD Iowa 1943, 3 FRD 40.
Subdivision (a)(3).
The added sentence makes it clear that the rules apply to appeals from proceedings to enforce administrative subpoenas. See Perkins v Endicott Johnson Corp. CCA 2d 1942, 128 F2d 208, affd on other grounds, 1943, 317 US 501, 87 L Ed 424, 63 S Ct 339; Walling v News Printing, Inc. CCA 3d, 1945, 148 F2d 57; McCrone v United States, 1939, 307 US 61, 83 L Ed 1108, 59 S Ct 685. And, although the provision allows full recognition of the fact that the rigid application of the rules in the proceedings themselves may conflict with the summary determination desired, Goodyear Tire & Rubber Co. v National Labor Relations Board, CCA 6th, 1941, 122 F2d 450; Cudahy Packing Co. v National Labor Relations Board, CCA 10th, 1941, 117 F2d 692, it is drawn so as to permit application of any of the rules in the proceedings whenever the district court deems them helpful. See, e. g., Peoples Natural Gas Co. v Federal Power Commission, App DC 1942, 127 F2d 153, cert den 1942, 316 US 700, 86 L Ed 1769, 62 S Ct 1298; Martin v Chandis Securities Co. CCA 9th, 1942, 128 F2d 731. Compare the application of the rules in summary proceedings in bankruptcy under General Order 37. See 1 Collier on Bankruptcy, 14th ed by Moore and Oglebay, 326--327; 2 Collier, op cit supra, 1401--1402; 3 Collier, op cit supra, 228--231; 4 Collier, op cit supra, 1199--1202.
Subdivision (a)(6).
Section 405 of USC, Title 8 originally referred to in the last sentence of paragraph (6), has been repealed and former § 738 (now § 1451), USC, Title 8, has been enacted in its stead. The last sentence of paragraph (6) has, therefore, been amended in accordance with this change. The sentence has also been amended so as to refer directly to the statute regarding the provision of time for answer, thus avoiding any confusion attendant upon a change in the statute.
That portion of subdivision (a)(6) making the rules applicable to proceedings for enforcement or review of compensation orders under the Longshoremen's and Harbor Workers' Compensation Act [33 USC §§ 901 et seq.] was added by an amendment made pursuant to order of the Court, December 28, 1939, effective three months subsequent to the adjournment of the 76th Congress, January 3, 1941.
Subdivision (c).
The change in subdivision (c) effects more speedy trials in removed actions. In some states many of the courts have only two terms a year. A case, if filed 20 days before a term, is returnable to that term, but if filed less than 20 days before a term, is returnable to the following term, which convenes six months later. Hence, under the original wording of Rule 81(c), where a case is filed less than 20 days before the term and is removed within a few days but before answer, it is possible for the defendant to delay interposing his answer or presenting his defenses by motion for six months or more. The rule as amended prevents this result.
Subdivision (f).
The use of the phrase "the United States or an officer or agency thereof" in the rules (as e. g., in Rule 12(a) and amended Rule 73(a)) could raise the question of whether "officer" includes a collector of internal revenue, a former collector, or the personal representative of a deceased collector, against whom suits for tax refunds are frequently instituted. Difficulty might ensue for the reason that a suit against a collector or his representative has been held to be a personal action. Sage v United States, 1919, 250 US 33, 63 L Ed 828, 39 S Ct 415; Smietanka v Indiana Steel Co. 1921, 257 US 1, 66 L Ed 99, 42 S Ct 1; United States v Nunnally Investment Co. 1942, 316 US 258, 86 L Ed 1455, 62 S Ct 1064, 140 ALR 792. The addition of subdivision (f) to Rule 81 dispels any doubts on the matter and avoids further litigation.
Notes of Advisory Committee on 1949 Amendments to Rules.
The amendment effective October 1949 substituted the words "United States District Court" for the words "District Court of the United States" in the last sentence of subdivision (a)(1) and in the first and third sentences of subdivision (e). The amendment substituted the words "United States district courts" for "district courts of the United States" in subdivision (a)(4) and (5) and in the first sentence of subdivision (c).
The amendment effective October 20, 1949, also made the following changes:
In subdivision (a)(1), the reference to "Title 17, USC" was substituted for the reference to "the Act of March 4, 1909, ch 320, § 25 (35 Stat 1081), as amended, USC, Title 17, § 25."
In subdivision (a)(2), the reference to "Title 28, USC, § 2253" was substituted for "USC, Title 28, § 466."
In subdivision (a)(3), the reference in the first sentence to "Title 9, USC," was substituted for "the Act of February 12, 1925, ch 213 (43 Stat 883), USC, Title 9".
In subdivision (a)(5), the words "as amended" were inserted after the parenthetical citation of "(49 Stat 453)," and after the citations of "Title 29, §§ 159 and 160," former references to subdivisions "(e), (g), and (i)" were deleted.
In subdivision (a)(6), after the words "These rules" at the beginning of the first sentence, the following words were deleted: "do not apply to proceedings under the Act of September 13, 1888, ch 1015, § 13 (25 Stat 479), as amended, USC, Title 8, § 282, relating to deportation of Chinese; they". Also in the first sentence, after the parenthetical citation of "44 Stat 1434, 1436)," the words "as amended" were added. In the last sentence, the words "October 14, 1940, ch 876, § 338 (54 Stat 1158)" were inserted in lieu of the words "June 29, 1906, ch 3592, § 15 (34 Stat 601), as amended."
In subdivision (c), the word "all" originally appearing in the first sentence between the words "govern" and "procedure" was deleted. In the third sentence, the portion beginning with the words "20 days after the receipt" and including all the remainder of that sentence was substituted for the following language: "the time allowed for answer by the law of the state or within 5 days after the filing of the transcript of the record in the district court of the United States, whichever period is longer, but in any event within 20 days after the filing of the transcript". In the fourth or last sentence, after the words at the beginning of the sentence, "If at the time of removal all necessary pleadings have been," the word "served" was inserted in lieu of the word "filed," and the concluding words of the sentence, "petition for removal is filed if he is the petitioner," together with the final clause immediately following, were substituted for the words "record of the action is filed in the district court of the United States."
Notes of Advisory Committee on 1963 Amendments to Rules.
Subdivision (a)(4).
This change reflects the transfer of functions from the Secretary of Commerce to the Secretary of the Interior made by 1939 Reorganization Plan No. II, § 4(e), 53 Stat 1433.
Subdivision (a)(6).
The proper current reference is to the 1952 statute superseding the 1940 statute.
Subdivision (c).
Most of the cases have held that a party who has made a proper express demand for jury trial in the State court is not required to renew the demand after removal of the action. Zakoscielny v Waterman Steamship Corp., 16 FRD 314 (D Md 1954); Talley v American Bakeries Co., 15 FRD 391 (ED Tenn 1954); Rehrer v Service Trucking Co. 15 FRD 113 (D Del 1953); 5 Moore's Federal Practice para. 38.39 [3] (2d ed 1951); 1 Barron & Holtzoff, Federal Practice & Procedure § 132 (Wright ed 1960). But there is some authority to the contrary. Petsel v Chicago, B. & Q. R. Co. 101 F Supp 1006 (SD Iowa 1951); Nelson v American Nat. Bank & Trust Co. 9 FRD 680 (ED Tenn 1950). The amendment adopts the preponderant view.
In order still further to avoid unintended waivers of jury trial, the amendment provides that where by State law applicable in the court from which the case is removed a party is entitled to jury trial without making an express demand, he need not make a demand after removal. However, the district court for calendar or other purposes may on its own motion direct the parties to state whether they demand a jury, and the court must make such a direction upon the request of any party. Under the amendment a district court may find it convenient to establish a routine practice of giving these directions to the parties in appropriate cases.
Subdivision (f).
The amendment recognizes the change of nomenclature made by Treasury Dept. Order 150-26(2), 18 Fed Reg 3499 (1953).
Notes of Advisory Committee on 1966 Amendments to Rules.
See Note to Rule 1, supra.
Statutory proceedings to forfeit property for violation of the laws of the United States, formerly governed by the admiralty rules, will be governed by the unified and supplemental rules. See Supplemental Rule A.
Upon the recommendation of the judges of the United States District Court for the District of Columbia, the Federal Rules of Civil Procedure are made applicable to probate proceedings in that court. The exception with regard to adoption proceedings is removed because the court no longer has jurisdiction of those matters; and the words "mental health" are substituted for "lunacy" to conform to the current characterization in the District.
The purpose of the amendment to paragraph (3) is to permit the deletion from Rule 73(a) of the clause "unless a shorter time is provided by law." The 10 day period fixed for an appeal under 45 USC § 159 is the only instance of a shorter time provided for appeals in civil cases. Apart from the unsettling effect of the clause, it is eliminated because its retention would preserve the 15 day period heretofore allowed by 28 USC § 2107 for appeals from interlocutory decrees in admiralty, it being one of the purposes of the amendment to make the time for appeals in civil and admiralty cases uniform under the unified rules. See Advisory Committee's Note to subdivision (a) of Rule 73.
As to a special problem arising under Rule 25 (Substitution of parties) in actions for refund of taxes, see the Advisory Committee's Note to the amendment of Rule 25(d), effective July 19, 1961; and 4 Moore's Federal Practice para. 25.09 at 531 (2d ed 1950).
Notes of Advisory Committee on 1968 Amendments to Rules.
The amendments eliminate inappropriate references to appellate procedure.
Notes of Advisory Committee on 1971 Amendments to Rules.
Title 28, USC, § 2243 now requires that the custodian of a person detained must respond to an application for a writ of habeas corpus "within three days unless for good cause additional time, not exceeding twenty days, is allowed." The amendment increases to forty days the additional time that the district court may allow in habeas corpus proceedings involving persons in custody pursuant to a judgment of a state court. The substantial increases in the number of such proceedings in recent years has placed a considerable burden on state authorities. Twenty days has proved in practice too short a time in which to prepare and file the return in many such cases. Allowance of additional time should, of course, be granted only for good cause.
While the time allowed in such a case for the return of the writ may not exceed forty days, this does not mean that the state must necessarily be limited to that period of time to provide for the federal court the transcript of the proceedings of a state trial or plenary hearing if the transcript must be prepared after the habeas corpus proceeding has begun in the federal court.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on December 1991 prospective amendment of Rule.
This revision is a companion to the concurrent amendment to Rule 4 of the Federal Rules of Appellate Procedure. The purpose of the revisions is to permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment. See, e.g. Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054 (11th Cir. 1986); Ashby Enterprises, Ltd. v. Weitzman, Dym & Associates, 780 F.2d 1043 (D.C. Cir. 1986); In re OPM Leasing Services, Inc., 769 F.2d 911 (2d Cir. 1985); Spika v. Village of Lombard, Ill., 763 F.2d 282 (7th Cir. 1985); Hall v. Community Mental Health Center of Beaver County, 772 F.2d 42 (3d Cir. 1985); Wilson v. Atwood v. Stark, 725 F.2d 255 (5th Cir. en banc), cert dismissed, 105 S.Ct. 17 (1984); Case v. BASF Wyandotte, 727 F.2d 1034 (Fed. Cir. 1984), cert. denied, 105 S.Ct. 386 (1984); Hensley v. Chesapeake & Ohio R.R.Co., 651 F.2d 226 (4th Cir. 1981); Buckeye Cellulose Corp. v. Electric Construction Co., 569 F.2d 1036 (8th Cir. 1978).
Failure to receive notice may have increased in frequency with the growth in the caseload in the clerks' offices. The present strict rule imposes a duty on counsel to maintain contact with the court while a case is under submission. Such contact is more difficult to maintain if counsel is outside the district, as is increasingly common, and can be a burden to the court as well as counsel.
The effect of the revisions is to place a burden on prevailing parties who desire certainty that the time for appeal is running. Such parties can take the initiative to assure that their adversaries receive effective notice. An appropriate procedure for such notice is provided in Rule 5.
The revised rule lightens the responsibility but not the workload of the clerk's offices, for the duty of that office to give notice of entry of judgment must be maintained.
Notes of Advisory Committee on 2001 amendments to Rules.
Former Copyright Rule 1 made the Civil Rules applicable to copyright proceedings except to the extent the Civil Rules were inconsistent with Copyright Rules. Abrogation of the Copyright Rules leaves the Civil Rules fully applicable to copyright proceedings. Rule 81(a)(1) is amended to reflect this change.
The District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. 91-358, 84 Stat. 473, transferred mental health proceedings formerly held in the United States District Court for the District of Columbia to local District of Columbia courts. The provision that the Civil Rules do not apply to these proceedings is deleted as superfluous.
The reference to incorporation of the Civil Rules in the Federal Rules of Bankruptcy Procedure has been restyled.
Notes of Advisory Committee on 2002 amendments to Rules.
This amendment brings Rule 81(a)(2) into accord with the Rules Governing ò 2254 and ò 2255 proceedings. In its present form, Rule 81(a)(2) includes return-time provisions that are inconsistent with the provisions in the Rules Governing òò 2254 and 2255. The inconsistency should be eliminated, and it is better that the time provisions continue to be set out in the other rules without duplication in Rule 81. Rule 81 also directs that the writ be directed to the person having custody of the person detained. Similar directions exist in the ò 2254 and ò 2255 rules, providing additional detail for applicants subject to future custody. There is no need for partial duplication in Rule 81.
The provision that the civil rules apply to the extent that practice is not set forth in the ò 2254 and ò 2255 rules dovetails with the provisions in Rule 11 of the ò 2254 rules and Rule 12 of the ò2255 rules.