§ 797. Recall of retired commissioners.

(a) Any commissioner who has retired from regular active service under the Civil Service Retirement Act shall be known and designated as a senior commissioner and may perform duties as a commissioner when recalled pursuant to subsection (b) of this section.

(b) The United States Court of Claims, whenever it deems such action advisable, may recall any senior commissioner, with the latter's acquiescence, to perform such duties as a commissioner and for such period of time as the court may specify.

(c) Any senior commissioner performing duties pursuant to this section shall not be counted as a commissioner for purposes of the number of commissioner positions authorized by section 792 of this title.

(d) Any senior commissioner, while performing duties pursuant to this section, shall be paid the same allowances for travel and other expenses as a commissioner in active service. He shall also receive from the Court of Claims supplemental pay in an amount sufficient, when added to his civil service retirement annuity, to equal the salary of a commissioner in active service for the same period or periods of time. Such supplemental pay shall be paid in the same manner as the salary of a commissioner. (Added Pub. L. 92-375, § 2, Aug. 10, 1972, 86 Stat. 529.)

REFERENCES IN TEXT

The Civil Service Retirement Act, referred to in subsec. (a), is classified to section 8331 et seq. of Title 5, Government Organization and Employees.

Chapter 57.-GENERAL PROVISIONS APPLICABLE TO COURT OFFICERS AND EMPLOYEES

Sec.

951. Oath of office of clerks and deputies.

953. Administration of oaths and acknowledgments. 954. Death of clerk; duties of deputies.

955. Practice of law restricted.

956. Powers and duties of clerks and deputies.

957. Clerks ineligible for certain offices.

958. Persons ineligible as receivers.

959. Trustees and receivers suable; management; State laws.

960. Tax liability.

961. Office expenses of clerks. 963. Courts defined.

AMENDMENTS

1972-Pub. L. 92-310, title II, § 206 (e)(2), (f) (2), June 6, 1972, 86 Stat. 203, struck out item 952, and eliminated words "and remedies against" which preceded "deputies" in item 954.

§ 952. Repealed. Pub. L. 92-310, title II, § 206(e)(1), June 6, 1972, 86 Stat. 203.

Section, act June 25, 1948, ch. 646, 62 Stat. 926, related to bonds of clerks and deputies.

§ 954. Death of clerk; duties of deputies.

Upon the death of any clerk of court, his deputy or deputies shall execute the duties of the deceased clerk in his name until his successor is appointed and qualifies.

The compensation of a deceased clerk of the Supreme Court may be paid to his personal representatives until his successor is appointed and qualifies. (As amended June 6, 1972, Pub. L. 92-310, title II, § 206 (f), 86 Stat. 203.)

AMENDMENTS

1972-Pub. L. 92-310 eliminated words "and remedies against" which preceded "deputies" in the section catchline, and repealed provisions which related to the default or misfeasance of a deputy in connection with the bond of a deceased clerk of a Federal court.

Part IV.-JURISDICTION AND VENUE

Chapter 81.-SUPREME COURT

§ 1254. Courts of appeals; certiorari; appeal; certified questions.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 section 438; title 7 section 136m; title 15 sections 1913, 2060; title 20 sections 1070c-3, 1132a-7, 1135b-7; title 26 section 6363; title 29 sections 660, 667; title 31 section 1263; title 42 section 504.

Chapter 85.-DISTRICT COURTS; JURISDICTION § 1331. Federal question; amount in controversy;

costs.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 15 section 2072.

§ 1338. Patents, plant variety protection, copyrights, trade-marks, and unfair competition.

(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.

§ 1346. United States as defendant.

(f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States. (As amended Oct. 25, 1972, Pub. L. 92-562, § 1, 86 Stat. 1176.)

AMENDMENTS

1972-Subsec. (f). Pub. L. 92-562 added subsec. (f). SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2409a of this title.

§ 1347. Partition action where United States is joint

tenant.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2409a of this title.

Chapter 87.-DISTRICT COURTS; VENUE

§ 1402. United States as defendant.

(d) Any civil action under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States shall be brought in the district court of the district where the property is located or, if located in different districts, in any of such districts. (As amended Oct. 25, 1972, Pub. L. 92-562, § 2, 86 Stat. 1176.)

AMENDMENTS

1972 Subsec. (d). Pub. L. 92-562 added subsec. (d).

§ 1407. Multidistrict litigation.

RULES OF PROCEDURE OF THE JUDICIAL PANEL OF MULTIDISTRICT LITIGATION

Effective September 1, 1970

As amended to December 31, 1972

RULE 1. DEFINITIONS

As used in these Rules "Panel" means all available but not less than four members of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, Title 28, United States Code.

"Clerk" means the person or official appointed by the Panel to act as Clerk of the Panel and shall include those deputized by the Clerk to perform or assist in the performance of his duties.

"Chairman" means the Chairman of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, or the member of the Panel designated by the Panel to act as Chairman in the absence or inability of the appointed Chairman.

A "tag-along case" refers to a civil action apparently sharing common questions of fact with actions previously transferred under Section 1407 and which was filed or came to the attention of the Panel after the initial hearing before it.

RULE 2. PLACE OF KEEPING RECORDS AND FILES The records and files of the Panel shall be kept by the Clerk in the offices of the Panel. Records and files may be temporarily removed to such places at such time as the Panel or the Chairman of the Panel shall direct.

RULE 3. ADMISSION TO PRACTICE BEFORE PANEL Every member in good standing of the Bar of any district court of the United States is entitled without condition to practice before the Judicial Panel on Multidistrict Litigation. Any attorney of record in any action transferred under section 1407 is entitled to practice in any district court of the Unted States to which such action is transferred.

RULE 4. PLACE AND MANNER OF FILING OF PAPERS (a) All papers filed for consideration by the Panel shall be filed with the Clerk of the Panel by mailing to the Clerk, Judicial Panel on Multidistrict Litigation, c/o Supreme Court Building, Washington, D.C. 20544, or by delivering to the office of the Panel, Room 610, Export-Import Bank Building, 811 Vermont Avenue, N.W., Washington, D.C.

(b) An original and nine copies of each paper, other than a motion for extension of time, a certificate of service or a notice of opposition, shall be filed with the Clerk.

(c) When papers are filed, the Clerk shall endorse thereon the date of filing.

RULE 5. SERVICE OF PAPERS FILED

(a) Papers filed with the Clerk shall be accompanied by proof of service on all other parties in all actions involved in the litigation. Service and proof of service shall be made as provided in Rules 5 and 6 of the Federal Rules of Civil Procedure. The proof of service shall indicate the name and address of each person served and shall indicate the party rep

resented by each. The original proof of service shall be filed with the Clerk of the Panel and a copy sent to each person included on the service list.

(b) Within ten days of receipt of a motion to transfer, an order to show cause or a conditional transfer order, each party shall notify the Clerk of the Panel, in writing, of the name and address of the attorney designated to receive service of all pleadings, notices, orders and other papers relating to practice before the Judicial Panel on Multidistrict Litigation. Only one attorney shall be designated for each party. Any party not represented by counsel will be served by mailing such pleadings to that party's last known address.

(c) The Clerk of the Panel will prepare and distribute to all counsel a "Panel Service List" containing the names and addresses of the designated attorneys and the party or parties they represent and the names and addresses of all parties not represented by counsel.

(d) If following transfer of any group of multidistrict litigation, the transferee court appoints liaison counsel, this rule will be satisfied by serving each party in each affected action and all liaison counsel.

RULE 6. MOTION PRACTICE

All requests for action by the Panel shall be made by written motion. Every motion shall be accompanied by a brief in support thereof in which the factual and legal contentions of the movant shall be concisely stated in separate portions of the brief with citation of applicable authorities. See Rule 28, Federal Rules of Appellate Procedure. Within fifteen days after filing of a motion, the opposing party or parties shall file and serve a brief in opposition thereto. The movant may, within five days after filing of a brief in opposition, file a brief in reply.

RULE 7. FORM OF PAPERS FILED

(a) Averments in any motion seeking action by the Panel shall be made in numbered paragraphs, each of which shall be limited, as far as practicable, to a statement of a single factual averment. Responses to averments in motions shall be made in numbered paragraphs, each of which shall correspond to the number of the paragraph of the motion to which the responsive paragraph is directed. Each responsive paragraph shall admit or deny wholly or in part the averment of the motion, and shall contain the respondent's version of subject matter when the averment or the motion is not wholly admitted.

(b) Each document filed shall be flat and unfolded, shall be plainly written, typed in double space, printed or prepared by means of a duplicating process, without erasures or interlineations which materially deface it, on opaque, unglazed, white paper approximately 81⁄2 x 11 inches in size with numbered lines, and shall be secured on the left margin. Each shall bear the caption, descriptive title and number, if any, of the action or proceeding in which it is filed, and on the final page thereof shall contain the name, address and telephone number of the attorney in active charge of the case.

RULE 8. SUBMISSION OF PROOF OF FACTS

So far as practicable and consistent with the purposes of Section 1407 the offering of oral testimony before the Panel shall be avoided. Accordingly, oral testimony shall not be received except upon notice motion and order of the Panel expressly providing for it. Proof may be submitted as provided in the Federal Rules of Civil Procedure.

RULE 9. EXHIBITS

(a) Exhibits submitted to the Panel may be returned to or withdrawn by counsel or a party on order of the Chairman of the Panel.

(b) The Clerk shall permit only the parties to the action or their counsel to examine or copy exhibits in his custody without a special order of the Chairman of the Panel.

RULE 10. FAILURE TO COMPLY WITH RULES Documents which fail to comply with the provisions of these Rules shall be filed by the Clerk, subject to being stricken by the Panel on its own initiative or motion of a party.

RULE 11. SHOW CAUSE ORDERS When transfer of multidistrict litigation is being considered on the initiative of the Panel pursuant to 28 U.S.C. § 1407 (c) (i), an order will be entered by the Clerk directing the parties to show cause why the actions should not be transferred for consolidated or coordinated pretrial proceedings. At the discretion of the Panel, a hearing may be set at the time the show cause order is entered. Any party may file a response to the show cause order and an accompanying brief within fifteen days of the filing of said order unless otherwise provided for in the order. Within five days of receipt of a party's response or brief, any party may file a reply brief limited to new matters. Responses and replies thereto shall be filed and served in conformity with Rules 4, 5, 6 and 7 of these Rules.

RULE 12. CONDITIONAL TRANSFER ORDERS

(a) Upon learning of the pendency of a tag-along case the Clerk of the Panel shall as soon as practical enter an order transferring it to the previouslydesignated transferee court on the basis of the prior hearing or hearings and for the reasons expressed in previous opinions and orders in the litigation. The Clerk of the Panel shall distribute this order to counsel for all parties in the litigation but shall withhold sending it to the clerk of the transferee court for fifteen days from the entry thereof to afford all parties the opportunity to oppose the transfer.

(b) Any party opposing the transfer shall file a Notice of Opposition with the Clerk of the Panel within the fifteen-day period. If a Notice of Opposition is received by the Clerk of the Panel within fifteen days, the Clerk shall not transmit said order to the clerk of the transferee court until further order of the Panel.

(c) Within fifteen days of the filing of its Notice of Opposition, the opposing party shall file and serve on all parties a motion to vacate the conditional transfer order and brief in support thereof. The Clerk shall set the motion for hearing at the next

session of the Panel. Failure to file and serve a motion and brief shall be deemed withdrawal of the opposition and the Clerk shall forthwith transmit the order to the clerk of the transferee court.

(d) Conditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee court.

(e) Motions to vacate orders of the Panel and responses thereto shall be governed by Rules 4, 5, 6, 7 and 8 of these Rules.

(f) The fact that one or more of the defendants in a tag-along case has not been served with the complaint and summons as required by Rule 4 of the Federal Rules of Civil Procedure does not preclude transfer of such action under section 1407 but can be submitted by such a defendant as the basis for opposing the proposed transfer. The inability of the Clerk of the Panel to serve a conditional transfer order on all defendants or their counsel shall not render the transfer of the action void but can be submitted by such a defendant as the basis for remanding the claim against said defendant. However, the Clerk shall vacate any conditional transfer order which has not been served on substantially all of the parties.

(g) Tag-along cases filed in the transferee district require no action on the part of the Judicial Panel and requests for inclusion of such cases in coordinated or consolidated pretrial proceedings should be made to the transferee judge.

RULE 13. HEARINGS

(a) Hearings shall be held as ordered by the Judicial Panel on Multidistrict Litigation. No action will be transferred over the objection of any party unless a hearing has been held.

(b) Except for leave of the Panel on a showing of good cause, only those parties who have filed a motion or written response to a motion or order shall be permitted to appear before the Panel and present argument with respect to the proposed transfer.

(c) The Panel shall convene whenever and whereever desirable or necessary in the judgment of the Chairman or of four members of the Panel. The Chairman shall determine which matters shall be set for hearing at each session and the Clerk shall give notice to counsel for all parties involved in the litigation of the time, place and subject matter of such hearing.

(d) Counsel for those supporting transfer under section 1407 and counsel for those opposing such transfer are to confer separately prior to the hearing for the purpose of organizing their arguments and selecting spokesmen to present all views without duplication.

(e) Unless otherwise ordered by the Panel, one hour will be allotted to each case or group of cases. The time shall be divided equally among those favoring and those opposing transfer. Counsel for the moving party when a single motion to transfer has been filed or counsel for the common party where more than one motion has been filed or where the matter is being considered on the initiative of the Panel will generally be heard first except in hearings on tag-along cases wherein the objecting party will be heard first.

(f) The issuance of a show cause or hearing order does not affect or suspend orders and discovery proceedings in the district courts in which the cases are pending.

RULE 14. MOTIONS FOR EXTENSIONS OF TIME

Any motion or application for an extension of time to file a pleading or perform an act required by these Rules may be acted upon by the Clerk, whether addressed to him, to the Panel or to a Judge thereof. Any party aggrieved by the Clerk's action on such motion or application may submit its objections to the Panel for consideration by the Panel.

RULE 15. TERMINATION AND REMAND

In the absence of unusual circumstances,

(a) Actions terminated in the transferee court by valid judgment, including but not limited to summary judgment, judgment of dismissal and judgment upon stipulation, shall not be remanded by the Panel and shall be dismissed by the transferee court. The clerk of the transferee court shall send a copy of the order terminating the action to the Clerk of the Panel and to the clerk of the transferor court but shall retain the original files and records unless otherwise directed by the transferee judge or by the Panel.

(b) Each transferred action that has not been terminated in the transferee court will be remanded to the transferor district for trial, unless ordered transferred by the transferee judge to the transferee or other district under 28 U.S.C. § 1404 (a) or 28 U.S.C. § 1406. In the event that the transferee judge transfers an action under 28 U.S.C. §§ 1404(a) or 1406, an order of remand shall not be necessary to authorize further proceedings including trial.

(c) The Panel shall consider remand of each transferred action or any separable claim, crossclaim or third-party claim at or before the conclusion of coordinated or consolidated pretrial proceedings on

(i) motion of any party;

(ii) suggestion of the transferee court; or,

(iii) its own initiative, by entry of an order to show cause, a conditional remand order or other appropriate order.

(d) If remand is sought by motion of a party, the motion shall be accompanied by:

(i) An affidavit reciting that all common discovery and other pretrial proceedings have been completed in the action sought to be remanded and that all orders of the transferee court have been satisfactorily complied with or that remand is otherwise appropriate; and

(ii) A copy of the transferee court's final pretrial order, where such order has been entered. Motions to remand and responses thereto shall be governed by Rules 4, 5, 6, 7 and 8 of these Rules.

(e) When an order to show cause why an action or actions should not be remanded is entered pursuant to paragraph (iii) of Rule 15(c), any party may file a response and accompanying brief within fifteen days of the filing of said order unless otherwise provided for in the order. Within five days of receipt of a party's response or brief, any party may file a reply brief limited to new matters. Responses and replies

shall be filed and served in conformity with Rules 4, 5, 6, 7 and 8 of these Rules.

(f) Conditional Remand Orders

(i) When the Panel has been advised by the transferee judge that pretrial proceedings in the litigation assigned to him are concluded or that remand of an action or actions is otherwise appropriate, an order may be entered by the Clerk of the Panel remanding the action or actions to the transferor court. The Clerk of the Panel shall distribute a copy of the order to each party to the litigation but, in order to afford all parties the opportunity to oppose remand, shall not send the order to the clerk of the transferee court for fifteen days from the entry thereof.

(ii) Any party opposing the remand shall file a Notice of Opposition with the Clerk of the Panel within the fifteen-day period. If a Notice of Opposition is received by the Clerk of the Panel within this period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee court until further order of the Panel.

(iii) Within fifteen days of the filing of its Notice of Opposition, the opposing party shall file and serve on all parties a motion to vacate the conditional remand order and brief in support thereof. Any party desiring to respond shall serve and file an answering brief on all parties within fifteen days after service of said motion to vacate. Unless otherwise ordered by the Panel, the Clerk of the Panel shall set the motion for hearing at the next session of the Panel. Failure to file and serve a motion and brief shall be deemed a withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee court.

(iv) Conditional remand orders do not become effective unless and until they are filed with the clerk of the transferee court.

(v) Motions to vacate such orders of the Panel and responses thereto shall be governed by Rules 4, 5, 6, 7 and 8 of these Rules.

(g) Upon receipt of an order to remand from the Clerk of the Panel, the parties shall furnish forthwith to the transferee clerk a stipulation or designation of the contents of the record to be remanded and furnish the transferee clerk all necessary copies of any pleading or other matter filed so as to enable the transferee clerk to comply with the order of remand.

RULE 16. TRANSFER OF FILES

(a) Upon receipt of a certified copy of a transfer order from the clerk of the transferee court, the Iclerk of the transferor court shall forward to the clerk of the transferee court the complete original file and a certified copy of the docket sheet for each transferred action.

(b) If an appeal is pending, or a notice of appeal has been filed or leave to appeal has been sought under 28 U.S.C. § 1292(b) in any action included in an order of transfer, the clerk of the transferor court shall retain the original file and shall prepare and transmit to the clerk of the transferee court a certified copy of all papers contained in the original file and a certified copy of the docket sheet.

(c) If the transfer order provides for the separation and simultaneous remand of any claim, crossclaim, counterclaim, or third-party claim, the clerk of the transferor court shall retain the original file and shall prepare and transmit to the clerk of the transferee court a certified copy of the docket sheet and copies of all papers except those relating exclusively to separated and remanded claims.

(d) Upon receipt of an order to remand from the Clerk of the Panel, the transferee court shall prepare and send to the clerk of the transferor court or the court designated pursuant to Rule 15(b) the following:

(i) a certified copy of the individual docket sheet for each action being remanded.

(ii) a certified copy of the master docket sheet, if applicable.

(iii) the entire file for each action being remanded.

(iv) a certified copy of the final pretrial order, if applicable.

(v) a "record on remand" to be composed of those parts of the files and records produced during coordinated or consolidated pretrial proceedings which have been stipulated to or designated by counsel as being necessary for any or all proceedings to be conducted following remand. It shall be the responsibility of counsel originally preparing or filing any document to be included in the "record on remand" to furnish on request sufficient copies to the clerk of the transferee court.

(e) The Clerk of the Panel shall be notified when any files have been transmitted pursuant to this Rule.

Chapter 89.-DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

§ 1446. Procedure for removal.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 25 section 670.

Chapter 91.-COURT OF CLAIMS

§ 1491. Claims against United States generally; actions involving Tennessee Valley Authority. The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appro

priate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.

Nothing herein shall be construed to give the Court of Claims jurisdiction in suits against, or founded on actions of, the Tennessee Valley Authority, nor to amend or modify the provisions of the Tennessee Valley Authority Act of 1933, as amended, with respect to suits by or against the Authority. (As amended Aug. 29, 1972, Pub. L. 92-415, § 1, 86 Stat. 652.)

AMENDMENTS

1972-Pub. L. 92-415 added provisions authorizing the court to issue orders directing restoration to office or position, placement in appropriate duty or retirement status and correction of applicable records and to issue such orders to any United States official and to remand appropriate matters to administrative and executive bodies with proper directions.

EFFECTIVE DATE OF 1972 AMENDMENT

Section 2 of Pub. L. 92-415 provided that: "This Act [amending this section] shall be applicable to all judicial proceedings pending on or instituted after the date of its enactment [Aug. 29, 1972]."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2409a of this title. § 1502. Treaty cases.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 26 section 7422. § 1505. Indian claims.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 25 section 702.

Part V.-PROCEDURE

Chapter 121.-JURIES; TRIAL BY JURY

§ 1863. Plan for random jury selection.

(b) Among other things, such plan shall

*

(4) provide for a master jury wheel (or a device similar in purpose and function) into which the names of those randomly selected shall be placed. The plan shall fix a minimum number of names to be placed initially in the master jury wheel, which shall be at least one-half of 1 per centum of the total number of persons on the list used as a source of names for the district or division; but if this number of names is believed to be cumbersome and unnecessary, the plan may fix a smaller number of names to be placed in the master wheel, but in no event less than one thousand. The chief judge of the district court, or such other district court judge as the plan may provide, may order additional names to be placed in the master jury wheel from time to time as necessary. The plan shall provide for periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years.

(As amended Apr. 6, 1972, Pub. L. 92-269, § 2, 86 Stat. 117.)