§ 2461. — Mode of recovery.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 28USC2461]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 163--FINES, PENALTIES AND FORFEITURES
Sec. 2461. Mode of recovery
(a) Whenever a civil fine, penalty or pecuniary forfeiture is
prescribed for the violation of an Act of Congress without specifying
the mode of recovery or enforcement thereof, it may be recovered in a
civil action.
(b) Unless otherwise provided by Act of Congress, whenever a
forfeiture of property is prescribed as a penalty for violation of an
Act of Congress and the seizure takes place on the high seas or on
navigable waters within the admiralty and maritime jurisdiction of the
United States, such forfeiture may be enforced by libel in admiralty but
in cases of seizures on land the forfeiture may be enforced by a
proceeding by libel which shall conform as near as may be to proceedings
in admiralty.
(c) If a forfeiture of property is authorized in connection with a
violation of an Act of Congress, and any person is charged in an
indictment or information with such violation but no specific statutory
provision is made for criminal forfeiture upon conviction, the
Government may include the forfeiture in the indictment or information
in accordance with the Federal Rules of Criminal Procedure, and upon
conviction, the court shall order the forfeiture of the property in
accordance with the procedures set forth in section 413 of the
Controlled Substances Act (21 U.S.C. 853), other than subsection (d) of
that section.
(June 25, 1948, ch. 646, 62 Stat. 974; Pub. L. 106-185, Sec. 16, Apr.
25, 2000, 114 Stat. 221.)
Historical and Revision Notes
Subsection (a) was drafted to clarify a serious ambiguity in
existing law and is based upon rulings of the Supreme Court. Numerous
sections in the United States Code prescribe civil fines, penalties, and
pecuniary forfeitures for violation of certain sections without
specifying the mode of recovery or enforcement thereof. See, for
example, section 567 of title 12, U.S.C., 1940 ed., Banks and Banking,
section 64 of title 14, U.S.C., 1940 ed., Coast Guard, and section 180
of title 25, U.S.C., 1940 ed., Indians. Compare section 1 (21) of title
49, U.S.C., 1940 ed., Transportation.
A civil fine, penalty, or pecuniary forfeiture is recoverable in a
civil action. United States ex rel. Marcus v. Hess et al., 1943, 63
S.Ct. 379, 317 U.S. 537, 87 L.Ed. 433, rehearing denied 63 S.Ct. 756,
318 U.S. 799, 87 L.Ed. 1163; Hepner v. United States, 1909, 29 S.Ct.
474, 213 U.S. 103, 53 L.Ed. 720, and cases cited therein.
Forfeiture of bail bonds in criminal cases are enforceable by
procedure set out in Rule 46 of the Federal Rules of Criminal Procedure.
If the statute contemplates a criminal fine, it can only be
recovered in a criminal proceeding under the Federal Rules of Criminal
Procedure, after a conviction. The collection of civil fines and
penalties, however, may not be had under the Federal Rules of Criminal
Procedure, Rule 54(b)(5), but enforcement of a criminal fine imposed in
a criminal case may be had by execution on the judgment rendered in such
case, as in civil actions. (See section 569 of title 18, U.S.C., 1940
ed., Crimes and Criminal Procedure, incorporated in section 3565 of H.R.
1600, 80th Congress, for revision of the Criminal Code. See also Rule 69
of Federal Rules of Civil Procedure and Advisory Committee Note
thereunder, as to execution in civil actions.)
Subsection (b) was drafted to cover the subject of forfeiture of
property generally. Sections in the United States Code specifically
providing a mode of enforcement of forfeiture of property for their
violation and other procedural matters will, of course, govern and
subsection (b) will not affect them. It will only cover cases where no
mode of recovery is prescribed.
Words ``Unless otherwise provided by enactment of Congress'' were
inserted at the beginning of subsection (b) to exclude from its
application instances where a libel in admiralty is not required. For
example, under sections 1607, 1609, and 1610 of title 19, U.S.C., 1940
ed., Customs Duties, the collector of customs may, by summary procedure,
sell at public auction, without previous declaration of forfeiture or
libel proceedings, any vessel, etc., under $1,000 in value in cases
where no claim for the same is filed or bond given as required by
customs laws.
Rule 81 of the Federal Rules of Civil Procedure makes such rules
applicable to the appeals in cases of seizures on land. (See also 443
Cans of Frozen Egg Product v. United States, 1912, 33 S.Ct. 50, 226 U.S.
172, 57 L.Ed. 174, and Eureka Productions v. Mulligan, C.C.A. 1940, 108
F.2d 760.) The proceeding, which resembles a suit in admiralty in that
it is begun by a libel, is, strictly speaking, an ``action at law'' (The
Sarah, 1823, 8 Wheat. 391, 21 U.S. 391, 5 L.Ed. 644; Morris's Cotton,
1869, 8 Wall. 507, 75 U.S. 507, 19 L.Ed. 481; Confiscation cases, 1873,
20 Wall. 92, 87 U.S. 92, 22 L.Ed. 320; Eureka Productions v. Mulligan,
supra), even though the statute may direct that the proceedings conform
to admiralty as near as may be. In re Graham, 1870, 10 Wall. 541, 19
L.Ed. 981, and 443 Cans of Frozen Egg Product v. United States, supra.
Subsection (b) is in conformity with Rule 21 of the Supreme Court
Admiralty Rules, which recognizes that a libel may be filed upon seizure
for any breach of any enactment of Congress, whether on land or on the
high seas or on navigable waters within the admiralty and maritime
jurisdiction of the United States. Such rule also permits an information
to be filed, but is rarely, if ever, used at present. Consequently,
``information'' has been omitted from the text and only ``libel'' is
incorporated.
References in Text
The Federal Rules of Criminal Procedure, referred to in subsec. (c),
are set out in the Appendix to Title 18, Crimes and Criminal Procedure.
Amendments
2000--Subsec. (c). Pub. L. 106-185 added subsec. (c).
Effective Date of 2000 Amendment
Amendment by Pub. L. 106-185 applicable to any forfeiture proceeding
commenced on or after the date that is 120 days after Apr. 25, 2000, see
section 21 of Pub. L. 106-185, set out as a note under section 1324 of
Title 8, Aliens and Nationality.
Federal Civil Penalties Inflation Adjustment
Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by Pub. L.
104-134, title III, Sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373;
Pub. L. 105-362, title XIII, Sec. 1301(a), Nov. 10, 1998, 112 Stat.
3293, provided that:
``short title
``Section 1. This Act may be cited as the `Federal Civil Penalties
Inflation Adjustment Act of 1990'.
``findings and purpose
``Sec. 2. (a) Findings.--The Congress finds that--
``(1) the power of Federal agencies to impose civil monetary
penalties for violations of Federal law and regulations plays an
important role in deterring violations and furthering the policy
goals embodied in such laws and regulations;
``(2) the impact of many civil monetary penalties has been and
is diminished due to the effect of inflation;
``(3) by reducing the impact of civil monetary penalties,
inflation has weakened the deterrent effect of such penalties; and
``(4) the Federal Government does not maintain comprehensive,
detailed accounting of the efforts of Federal agencies to assess and
collect civil monetary penalties.
``(b) Purpose.--The purpose of this Act is to establish a mechanism
that shall--
``(1) allow for regular adjustment for inflation of civil
monetary penalties;
``(2) maintain the deterrent effect of civil monetary penalties
and promote compliance with the law; and
``(3) improve the collection by the Federal Government of civil
monetary penalties.
``definitions
``Sec. 3. For purposes of this Act, the term--
``(1) `agency' means an Executive agency as defined under
section 105 of title 5, United States Code, and includes the United
States Postal Service;
``(2) `civil monetary penalty' means any penalty, fine, or other
sanction that--
``(A)(i) is for a specific monetary amount as provided by
Federal law; or
``(ii) has a maximum amount provided for by Federal law; and
``(B) is assessed or enforced by an agency pursuant to
Federal law; and
``(C) is assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts; and
``(3) `Consumer Price Index' means the Consumer Price Index for
all-urban consumers published by the Department of Labor.
``civil monetary penalty inflation adjustment reports
``Sec. 4. The head of each agency shall, not later than 180 days
after the date of enactment of the Debt Collection Improvement Act of
1996 [Apr. 26, 1996], and at least once every 4 years thereafter--
``(1) by regulation adjust each civil monetary penalty provided
by law within the jurisdiction of the Federal agency, except for any
penalty (including any addition to tax and additional amount) under
the Internal Revenue Code of 1986 [26 U.S.C. 1 et seq.], the Tariff
Act of 1930 [19 U.S.C. 1202 et seq.], the Occupational Safety and
Health Act of 1970 [29 U.S.C. 651 et seq.], or the Social Security
Act [42 U.S.C. 301 et seq.], by the inflation adjustment described
under section 5 of this Act; and
``(2) publish each such regulation in the Federal Register.
``cost-of-living adjustments of civil monetary penalties
``Sec. 5. (a) Adjustment.--The inflation adjustment under section 4
shall be determined by increasing the maximum civil monetary penalty or
the range of minimum and maximum civil monetary penalties, as
applicable, for each civil monetary penalty by the cost-of-living
adjustment. Any increase determined under this subsection shall be
rounded to the nearest--
``(1) multiple of $10 in the case of penalties less than or
equal to $100;
``(2) multiple of $100 in the case of penalties greater than
$100 but less than or equal to $1,000;
``(3) multiple of $1,000 in the case of penalties greater than
$1,000 but less than or equal to $10,000;
``(4) multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
``(5) multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
``(6) multiple of $25,000 in the case of penalties greater than
$200,000.
``(b) Definition.--For purposes of subsection (a), the term `cost-
of-living adjustment' means the percentage (if any) for each civil
monetary penalty by which--
``(1) the Consumer Price Index for the month of June of the
calendar year preceding the adjustment, exceeds
``(2) the Consumer Price Index for the month of June of the
calendar year in which the amount of such civil monetary penalty was
last set or adjusted pursuant to law.
``Sec. 6. Any increase under this Act in a civil monetary penalty
shall apply only to violations which occur after the date the increase
takes effect.''
[Pub. L. 104-134, title III, Sec. 31001(s)(2), Apr. 26, 1996, 110
Stat. 1321-373, provided that: ``The first adjustment of a civil
monetary penalty made pursuant to the amendment made by paragraph (1)
[amending Pub. L. 101-410, set out above] may not exceed 10 percent of
such penalty.'']
[For authority of the Director of the Office of Management and
Budget to consolidate reports required under the Federal Civil Penalties
Inflation Adjustment Act of 1990, Pub. L. 101-410, set out above, to be
submitted between Jan. 1, 1995, and Sept. 30, 1997, or to adjust their
frequency and due dates, see section 404 of Pub. L. 103-356, set out as
a note under section 501 of Title 31, Money and Finance.]
