§ 2101. — Supreme Court; time for appeal or certiorari; docketing; stay.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2101]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 133--REVIEW--MISCELLANEOUS PROVISIONS
Sec. 2101. Supreme Court; time for appeal or certiorari;
docketing; stay
(a) A direct appeal to the Supreme Court from any decision under
section 1253 of this title, holding unconstitutional in whole or in
part, any Act of Congress, shall be taken within thirty days after the
entry of the interlocutory or final order, judgment or decree. The
record shall be made up and the case docketed within sixty days from the
time such appeal is taken under rules prescribed by the Supreme Court.
(b) Any other direct appeal to the Supreme Court which is authorized
by law, from a decision of a district court in any civil action, suit or
proceeding, shall be taken within thirty days from the judgment, order
or decree, appealed from, if interlocutory, and within sixty days if
final.
(c) Any other appeal or any writ of certiorari intended to bring any
judgment or decree in a civil action, suit or proceeding before the
Supreme Court for review shall be taken or applied for within ninety
days after the entry of such judgment or decree. A justice of the
Supreme Court, for good cause shown, may extend the time for applying
for a writ of certiorari for a period not exceeding sixty days.
(d) The time for appeal or application for a writ of certiorari to
review the judgment of a State court in a criminal case shall be as
prescribed by rules of the Supreme Court.
(e) An application to the Supreme Court for a writ of certiorari to
review a case before judgment has been rendered in the court of appeals
may be made at any time before judgment.
(f) In any case in which the final judgment or decree of any court
is subject to review by the Supreme Court on writ of certiorari, the
execution and enforcement of such judgment or decree may be stayed for a
reasonable time to enable the party aggrieved to obtain a writ of
certiorari from the Supreme Court. The stay may be granted by a judge of
the court rendering the judgment or decree or by a justice of the
Supreme Court, and may be conditioned on the giving of security,
approved by such judge or justice, that if the aggrieved party fails to
make application for such writ within the period allotted therefor, or
fails to obtain an order granting his application, or fails to make his
plea good in the Supreme Court, he shall answer for all damages and
costs which the other party may sustain by reason of the stay.
(g) The time for application for a writ of certiorari to review a
decision of the United States Court of Appeals for the Armed Forces
shall be as prescribed by rules of the Supreme Court.
(June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, Sec. 106,
63 Stat. 104; Pub. L. 98-209, Sec. 10(b), Dec. 6, 1983, 97 Stat. 1406;
Pub. L. 100-352, Sec. 5(b), June 27, 1988, 102 Stat. 663; Pub. L. 103-
337, div. A, title IX, Sec. 924(d)(1)(C), Oct. 5, 1994, 108 Stat. 2832.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., Secs. 47, 47a, 349a, 350, 380,
380a, 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, Sec. 2, 32 Stat. 1167; Mar. 3, 1911, ch. 231, Secs. 210, 266,
291, 36 Stat. 1150, 1162, 1167; Mar. 4, 1913, ch. 160, 37 Stat. 1013;
Oct. 22, 1913, ch. 32, 38 Stat. 220; Sept. 6, 1916, ch. 448, Sec. 6, 39
Stat. 727; Feb. 13, 1925, ch. 229, Secs. 1, 8 (a, b, d), 43 Stat. 938,
940; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54; June 7, 1934, ch. 426,
48 Stat. 936; Aug. 24, 1937, ch. 754, Secs. 2, 3, 50 Stat. 752; June 9,
1944, ch. 239, 58 Stat. 272).
Section consolidates section 350 of title 28, U.S.C., 1940 ed., with
those portions of sections 47, 47a, 349a, 380, and 380a, of said title
28, section 29, of title 15, U.S.C., 1940 ed., and section 45 of title
49, U.S.C., 1940 ed., respective time for taking direct appeal. (For
disposition of other provisions of said sections, see Distribution
Table.)
Subsection (a) of the revised section is derived from sections 349a
and 380a of title 28, U.S.C., 1940 ed. The phrase ``under rules
prescribed by the Supreme Court'' was substituted for the phrase ``under
such rules as may be prescribed by the proper courts'' which appeared in
both such sections. The Supreme Court by its revised rules 10-13 has
made adequate provision for filing record and docketing case. (See
Revised Rules of the Supreme Court following section 354 of title 28,
U.S.C., 1940 ed.)
Subsection (b) is in accord with sections 47 and 47a of title 28,
U.S.C., 1940 ed., and 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.
Subsection (c), with respect to the time for taking other appeals or
petitioning for a writ of certiorari, substitutes, as more specific, the
words ``ninety days'' for the words ``three months'' contained in
section 350 of title 28, U.S.C., 1940 ed. The provision in said section
350 for allowance of additional time was retained, notwithstanding the
language of the Supreme Court in Comm'r v. Bedford's Estate, 1945, 65
S.Ct. 1157, 1159, 325 U.S. 283, 89 L.Ed. 1611, to the effect that the 3
months' period is ``more than ample * * * to determine whether to seek
further review''.
In subsection (c), words ``in a civil action, suit, or proceeding''
were added because section 350 of title 28, U.S.C., 1940 ed., was
superseded as to criminal cases by Federal Rules of Criminal Procedure,
Rule 39(a)(2), (b)(2).
Words ``or the United States Court of Appeals for the District of
Columbia'' in section 350 of title 28, U.S.C., 1940 ed., were omitted as
covered by ``court of appeals'' in subsection (d) of this revised
section.
Words in section 350 of title 28, U.S.C., 1940 ed., ``excepting that
writs of certiorari to the Supreme Court of the Philippine Islands may
be granted where application therefor is made within six months'', were
omitted as obsolete, in view of the independence of the Philippines
recognized by section 1240 of title 48, U.S.C., 1940 ed., Territories
and Insular Possessions.
Subsection (e) relates only to supersedeas or stay of execution of
judgments sought to be reviewed in the Supreme Court on writ of
certiorari. Supersedeas or stay of proceedings taken to the Supreme
Court by appeal from courts of appeals, or direct appeals from a
district court or three-judge courts, is governed by Rule 62 of the
Federal Rules of Civil Procedure.
Changes were made in phraseology.
1949 Act
This section clarifies the meaning of subsection (c) of section 2101
of title 28, U.S.C. At present, such subsection, after the words,
``ninety days after entry of such judgment or decree'', reads, ``unless,
upon application for writ of certiorari, for good cause, the Supreme
Court or a justice thereof allows an additional time not exceeding sixty
days.''
The new subsection (d) of section 2101 supplies an omission in
revised title 28, U.S.C., and confirms the authority of the Supreme
Court to regulate the time for seeking review of State criminal cases.
The other amendment merely renumbers subsections (d) and (e) of such
section 2101 as subsections (e) and (f), respectively.
Amendments
1994--Subsec. (g). Pub. L. 103-337 substituted ``Court of Appeals
for the Armed Forces'' for ``Court of Military Appeals''.
1988--Subsec. (a). Pub. L. 100-352 substituted ``section 1253'' for
``sections 1252, 1253, and 2282''.
1983--Subsec. (g). Pub. L. 98-209 added subsec. (g).
1949--Subsec. (c). Act May 24, 1949, Sec. 106(a), clarified the
allowance of an additional 60 days in which to apply for a writ of
certiorari.
Subsecs. (d) to (f). Act May 24, 1949, Sec. 106(b), added subsec.
(d) and redesignated former subsecs. (d) and (e) as (e) and (f),
respectively.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-352 effective ninety days after June 27,
1988, except that such amendment not to apply to cases pending in
Supreme Court on such effective date or affect right to review or manner
of reviewing judgment or decree of court which was entered before such
effective date, see section 7 of Pub. L. 100-352, set out as a note
under section 1254 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 98-209 effective on first day of eighth
calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of
Pub. L. 98-209, set out as a note under section 801 of Title 10, Armed
Forces.
Section Referred to in Other Sections
This section is referred to in section 2350 of this title.
