A-39105, OCTOBER 26, 1931, 11 COMP. GEN. 157

A-39105: Oct 26, 1931

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UNITED STATES COURTS-EMPLOYMENT OF RELATIVES OF JUDGES NO PERSON WHO IS RELATED TO A JUDGE OF THE COURT WITHIN THE DEGREE MENTIONED IN SECTION 67 OF THE JUDICIAL CODE. SUCH EMPLOYEES ARE NEVERTHELESS IN THE PERFORMANCE OF DUTIES OF THE COURT PURSUANT TO ITS ASSIGNMENT. I WOULD LIKE TO HAVE YOUR OPINION ON THE FOLLOWING: SECTION 192 OF THE JUDICIAL CODE (U.S. UNDER THIS AUTHORITY FIVE STENOGRAPHIC CLERKS HAVE BEEN APPOINTED. ARE SERVING. EACH OF WHOM ACT IN THE CAPACITY OF PRIVATE CLERKS AND SECRETARIES TO THE JUDGES TO WHOM THEY ARE ASSIGNED. THERE HAVE BEEN ALSO APPOINTED. WHOSE SALARIES HAVE BEEN FIXED BY THE COURT. FOR WHOM APPROPRIATIONS ARE REGULARLY MADE. SEC. 126) PROVIDES THAT "NO PERSON SHALL BE APPOINTED TO OR EMPLOYED IN ANY OFFICE OF DUTY IN ANY COURT WHO IS RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE DEGREE OF FIRST COUSIN TO THE JUDGE OF SUCH COURT.'.

A-39105, OCTOBER 26, 1931, 11 COMP. GEN. 157

UNITED STATES COURTS-EMPLOYMENT OF RELATIVES OF JUDGES NO PERSON WHO IS RELATED TO A JUDGE OF THE COURT WITHIN THE DEGREE MENTIONED IN SECTION 67 OF THE JUDICIAL CODE, ACT OF MARCH 3, 1911, 36 STAT. 1105, MAY BE EMPLOYED AS STENOGRAPHIC CLERK OR MESSENGER UNDER THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS. THE COURT MAY ASSIGN INDIVIDUAL CLERKS AND MESSENGERS TO DUTY WITH INDIVIDUAL JUSTICES, BUT SUCH EMPLOYEES ARE NEVERTHELESS IN THE PERFORMANCE OF DUTIES OF THE COURT PURSUANT TO ITS ASSIGNMENT.

COMPTROLLER GENERAL MCCARL TO HON. WILLIAM J. GRAHAM, PRESIDING JUDGE, UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, OCTOBER 26, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 14, 1931, AS FOLLOWS:

INQUIRY HAS BEEN MADE OF ME, AND I WOULD LIKE TO HAVE YOUR OPINION ON THE FOLLOWING:

SECTION 192 OF THE JUDICIAL CODE (U.S. CODE, TITLE 28, SEC. 305) PROVIDES FOR THE APPOINTMENT BY THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, OF "FIVE STENOGRAPHIC CLERKS * * * AND SUCH OTHER EMPLOYEES AS MAY BE APPROPRIATED FOR BY CONGRESS.'

UNDER THIS AUTHORITY FIVE STENOGRAPHIC CLERKS HAVE BEEN APPOINTED, AND ARE SERVING, EACH OF WHOM ACT IN THE CAPACITY OF PRIVATE CLERKS AND SECRETARIES TO THE JUDGES TO WHOM THEY ARE ASSIGNED, EACH CLERK DOING THE WORK OF SOME ONE PARTICULAR JUDGE.

THERE HAVE BEEN ALSO APPOINTED, UNDER THE GENERAL PROVISION, FIVE MESSENGERS, WHOSE SALARIES HAVE BEEN FIXED BY THE COURT, WITH THE APPROVAL OF THE BUREAU OF THE BUDGET, AND FOR WHOM APPROPRIATIONS ARE REGULARLY MADE.

SECTION 67 OF THE JUDICIAL CODE (U.S. CODE, TITLE 28, SEC. 126) PROVIDES THAT "NO PERSON SHALL BE APPOINTED TO OR EMPLOYED IN ANY OFFICE OF DUTY IN ANY COURT WHO IS RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE DEGREE OF FIRST COUSIN TO THE JUDGE OF SUCH COURT.'

THE QUESTION ARISES WHETHER ANY PERSON WHO IS RELATED WITHIN THE DEGREE MENTIONED IN THE STATUTE MAY BE EMPLOYED BY THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, AS MESSENGER OR STENOGRAPHIC CLERK.

I HAVE BEEN UNOFFICIALLY ADVISED THAT THE MATTER HAS BEEN UNDER CONSIDERATION BY YOUR OFFICE, AND THAT SOME OPINION HAS BEEN PREPARED RELATIVE TO SECRETARIES AND LAW CLERKS OF FEDERAL JUDGES.

IF IT MAY BE DONE, I WOULD BE GLAD TO HAVE YOUR OPINION AS TO WHETHER ANY APPOINTMENT, SUCH AS INDICATED IN THIS LETTER, MAY LAWFULLY BE MADE BY OUR COURT.

SECTION 192 OF THE JUDICIAL CODE, CHAPTER 8, ENTITLED " THE COURT OF CUSTOMS APPEALS," ACT OF MARCH 3, 1911, 36 STAT. 1144, PROVIDES IN PART AS FOLLOWS:

IN ADDITION TO THE CLERK, THE COURT MAY APPOINT AN ASSISTANT CLERK AT A SALARY OF TWO THOUSAND DOLLARS PER ANNUM, FIVE STENOGRAPHIC CLERKS AT A SALARY OF ONE THOUSAND SIX HUNDRED DOLLARS PER ANNUM EACH, ONE STENOGRAPHIC REPORTER AT A SALARY OF TWO THOUSAND FIVE HUNDRED DOLLARS PER ANNUM, AND A MESSENGER AT A SALARY OF EIGHT HUNDRED AND FORTY DOLLARS PER ANNUM, ALL PAYABLE IN EQUAL MONTHLY INSTALLMENTS, AND ALL OF WHOM, INCLUDING THE CLERK, SHALL HOLD OFFICE DURING THE PLEASURE OF AND PERFORM SUCH DUTIES AS ARE ASSIGNED THEM BY THE COURT. * * *

SEE, ALSO, ACT OF AUGUST 5, 1909, 36 STAT. 107, AND FEBRUARY 25, 1910,36 STAT. 214. THE NAME OF THE COURT WAS CHANGED TO "UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS" BY THE ACT OF MARCH 2, 1929, 45 STAT. 1475. THERE DO NOT APPEAR IN ANY OF THE STATUTES ON WHICH SECTION 305, TITLE 28, U.S.C. WAS BASED, THE WORDS QUOTED IN YOUR SUBMISSION" AND SUCH OTHER EMPLOYEES AS MAY BE APPROPRIATED FOR BY CONGRESS.' HOWEVER, IN THE ANNUAL APPROPRIATION ACTS UNDER THE HEADING "COURT OF CUSTOMS AND PATENT APPEALS" APPEARS AN ITEM "SALARIES: PRESIDING JUDGE AND FOUR ASSOCIATE JUDGES * * * AND ALL OTHER OFFICERS AND EMPLOYEES OF THE COURT.' FOR THE CURRENT FISCAL YEAR, SEE THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1324.

IN THE APPLICATION OF STATUTES PROHIBITING APPOINTMENT OF RELATIVES OF UNITED STATES JUDGES, THE ACCOUNTING OFFICERS HAVE RECOGNIZED A DISTINCTION BETWEEN STENOGRAPHERS, CLERKS, AND MESSENGERS OF THE COURT, AND STENOGRAPHERS, CLERKS, AND MESSENGERS OF INDIVIDUAL JUSTICES, HOLDING THAT THE PROHIBITION APPLIES TO THE FORMER BUT NOT TO THE LATTER. EARLY EXPRESSION OF THIS DISTINCTION APPEARS IN THE DECISION OF APRIL 19, 1902, 8 COMP. DEC. 736, APPLYING THE ACT OF AUGUST 13, 1888, 25 STAT. 437, WHEREIN IT WAS STATED:

I AM NOT ADVISED THAT A PRIVATE SECRETARY OR STENOGRAPHER TO A JUDGE IS AN OFFICE, OR THAT SUCH SECRETARY PERFORMS ANY DUTY IN A COURT. A COURT STENOGRAPHER WOULD COME WITHIN THE PROHIBITION OF THE STATUTE BUT NOT A PRIVATE SECRETARY TO A JUDGE.

IN THE LATER DECISIONS OF NOVEMBER 26, 1911, AND JUNE 21, 1918, WHEREIN THE SAME DISTINCTION WAS RECOGNIZED, IT WAS CAREFULLY NOTED THAT THE CONTROLLING STATUTE OR APPROPRIATION ACT IN EACH INSTANCE SPECIFICALLY AUTHORIZED PRIVATE STENOGRAPHERS FOR THE JUSTICES OF THE COURTS AND NOT FOR THE COURTS, AND THAT IN SUCH CASES THE PERSONS APPOINTED ARE EMPLOYEES OF THE JUSTICES AND DO NOT HOLD OFFICE OR EMPLOYMENT IN THE COURT, CITING 4 COMP. DEC. 359; 8 ID, 736; AND 18 ID. 132. SEE, ALSO, 1 COMP. GEN. 12, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AS THE STENOGRAPHERS AUTHORIZED FOR EACH JUSTICE OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA ARE APPOINTED BY THE COURT GENERALLY WITHOUT MENTION OF THE JUSTICE TO WHOM THEY MAY BE ASSIGNED, THE TERMINATION OF THE TENURE OF THE OFFICE OF A JUSTICE BY DEATH OR OTHERWISE DOES NOT ALSO TERMINATE THE TENURE OF THE POSITION OF THE STENOGRAPHER ASSIGNED TO THAT JUSTICE, BUT THE STENOGRAPHER MAY CONTINUE TO HOLD THE POSITION UNTIL THE APPOINTMENT OF AN OFFICIAL SUCCESSOR.

IN THE PRESENT INSTANCE THE CONTROLLING STATUTE SPECIFICALLY PROVIDES THAT THE FIVE STENOGRAPHIC CLERKS ARE REQUIRED TO BE APPOINTED BY AND TO HOLD OFFICE AT THE PLEASURE OF THE COURT, AND THEIR DUTIES ARE TO BE ASSIGNED BY THE COURT. THE INDIVIDUAL JUSTICE HAS NO AUTHORITY TO APPOINT, REMOVE, OR ASSIGN THE DUTIES OF THE INDIVIDUAL CLERKS WITHOUT THE PRIOR ACTION OF THE COURT. FURTHERMORE, THE ANNUAL APPROPRIATION ACTS PROVIDE ONLY FOR "OFFICERS AND EMPLOYEES OF THE COURT.' NO CONNECTION IS RECOGNIZED BETWEEN INDIVIDUAL STENOGRAPHERS OR MESSENGERS AND INDIVIDUAL JUSTICES. ALTHOUGH THE COURT MAY HAVE ASSIGNED INDIVIDUAL STENOGRAPHIC CLERKS AND MESSENGERS TO DUTY WITH INDIVIDUAL JUSTICES, EACH OF THE EMPLOYEES IS NEVERTHELESS IN THE PERFORMANCE OF DUTIES ASSIGNED BY THE COURT.

YOU ARE ADVISED, THEREFORE, I AM OF THE OPINION THAT NO PERSON WHO IS RELATED TO A JUDGE OF THE COURT WITHIN THE DEGREE MENTIONED IN THE STATUTE MAY BE EMPLOYED AS STENOGRAPHIC CLERK OR MESSENGER UNDER THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS.