§ 2106. — Determination.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2106]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 133--REVIEW--MISCELLANEOUS PROVISIONS
Sec. 2106. Determination
The Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or
order of a court lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be just
under the circumstances.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Secs. 344, 876, 877 (R.S.
Sec. 701; Mar. 3, 1891, ch. 517, Secs. 10, 11, 26 Stat. 829; Mar. 3,
1911, ch. 231, Secs. 231, 236, 237, 291, 36 Stat. 1156, 1167; Dec. 23,
1914, ch. 2, 38 Stat. 790; Sept. 16, 1916, ch. 448, Sec. 2, 39 Stat.
726; Feb. 17, 1922, ch. 54, 42 Stat. 366; Feb. 13, 1925, ch. 229,
Sec. 1, 43 Stat. 937; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54).
Section consolidates part of section 344 of title 28, U.S.C., 1940
ed., with sections 876 and 877 of said title. Other provisions of said
section 344 are incorporated in sections 1257 and 2103 of this title.
Words ``or a court of appeals'' were inserted after ``Supreme
Court'' upon authority of United States v. Illinois Surety Co., C.C.A.
1915, 226 F. 653, affirmed 37 S.Ct. 614, 244 U.S. 376, 61 L.Ed. 1206,
wherein it was held that this section also applied to the courts of
appeals in view of section 11 of the Circuit Court of Appeals Act of
Mar. 3, 1891, ch. 517, 28 Stat. 829.
The revised section will cover instances where the Supreme Court
remands a case to the highest court of a State and to the United States
Tax Court. It will also cover a remand of a case to the Court of Claims
or the Court of Customs and Patent Appeals. For authority to remand a
case to The Tax Court, see Equitable Life Assurance Society of U.S. v.
Commissioner of Internal Revenue, 1944, 64 S.Ct. 722, 321 U.S. 560, 88
L.Ed. 927.
Revised section will also permit a remand by the Supreme Court to a
court of appeals inasmuch as such latter court then would be a lower
court. The revised section is in conformity with numerous holdings of
the Supreme Court to the effect that such a remand may be made. See
especially, Maryland Casualty Co. v. United States, 1929, 49 S.Ct. 484,
279 U.S. 792, 73 L.Ed. 960; Krauss Bros. Co. v. Mellon, 1928, 48 S.Ct.
358, 276 U.S. 386, 72 L.Ed. 620 and Buzyuski v. Luckenbach S. S. Co.,
1928, 48 S.Ct. 440, 277 U.S. 226, 72 L.Ed. 860.
The last sentence of section 876 of title 28, U.S.C., 1940 ed.,
providing that the Supreme Court should not issue execution but should
send a special mandate to the inferior court to award execution, was
omitted. See rule 34 of the revised rules of the Supreme Court relating
to Mandates, and section 1651 of this title authorizing the Supreme
Court to issue all writs necessary in aid of its jurisdiction.
Changes were made in phraseology.
