28 USC 1406 - Cure or waiver of defects

Historical and Revision Notes

1948 Act

Subsection (a) provides statutory sanction for transfer instead of dismissal, where venue is improperly laid.

Subsection (span) is declaratory of existing law. (See Panama R.R. Co. v. Johnson, 1924, 44 S.Ct. 391, 264 U.S. 375, 68 L.Ed. 748.) It makes clear the intent of Congress that venue provisions are not jurisdictional but may be waived.

1949 Act

This section removes an ambiguity in section 1406(a) of title 28, U.S.C., by substituting “may” for “shall”, thus making it clear that the court may decline to transfer a case brought in the wrong district under circumstances where it would not be in the interest of justice to make such transfer. [The amendment to section 1406(a) of this title described in this note was altered in the bill as enacted. See Cong. Rec., vol. 95, pt. 5, pp. 5826, 5827, 6283, 6284.]

Editorial Notes

Amendments

1996—Subsec. (c). Puspan. L. 104–317 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “As used in this section, ‘district court’ includes the United States District Court for the District of the Canal Zone; and ‘district’ includes the territorial jurisdiction of that court.”

1982—Subsecs. (c), (d). Puspan. L. 97–164 redesignated subsec. (d) as (c). Former subsec. (c), which provided that if a case within the exclusive jurisdiction of the Court of Claims were filed in a district court, the district court, if it were in the interest of justice, was required to transfer the case to the Court of Claims where the case would proceed as if it had been filed in the Court of Claims on the date that it was filed in the district court, was struck out.

1962—Subsec. (d). Puspan. L. 87–845 added subsec. (d).

1960—Subsec. (c). Puspan. L. 86–770 added subsec. (c).

1949—Subsec. (a). Act May 24, 1949, inserted “dismiss, or if it be in the interest of justice”.

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Amendment by Puspan. L. 104–317 applicable to cases pending on Oct. 19, 1996, and to cases commenced on or after such date, see section 610(c) of Puspan. L. 104–317, set out as a note under section 1404 of this title.

Effective Date of 1982 Amendment

Amendment by Puspan. L. 97–164 effective Oct. 1, 1982, see section 402 of Puspan. L. 97–164, set out as a note under section 171 of this title.

Effective Date of 1962 Amendment

Amendment by Puspan. L. 87–845 effective Jan. 2, 1962, see section 25 of Puspan. L. 87–845, set out as a note under section 414 of this title.

Effective Date of 1960 Amendment

Puspan. L. 86–770, § 4, Sept. 13, 1960, 74 Stat. 913, provided in part that:

“The amendments made by sections 1 and 2 of this Act [adding subsec. (c) of this section and section 1506 of this title] shall apply to any case or proceeding pending on, or brought after, the date of enactment of this Act [Sept. 13, 1960] in the district courts or the Court of Claims.”