A-71441, MARCH 6, 1936, 15 COMP. GEN. 765

A-71441: Mar 6, 1936

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WHOSE DUTIES ARE PERSONAL TO THE PARTICULAR JUSTICES FOR WHOM THEY WORK. ARE NOT EMPLOYED IN ANY OFFICE OR DUTY IN THE COURT WITHIN THE MEANING OF THE INHIBITION OF THE ACT OF MARCH 3. THE AUTHORITY FOR THE APPOINTMENT OF SUCH CLERKS BY THIS COURT IS TO BE FOUND IN THE ACT OF CONGRESS KNOWN AS "THE SUPPLEMENTAL APPROPRIATION ACT. " IT IS PROVIDED: "NO PERSON SHALL BE APPOINTED TO OR EMPLOYED IN ANY OFFICE OR DUTY IN ANY COURT WHO IS RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE DEGREE OF FIRST COUSIN TO THE JUDGE OF SUCH COURT: * * *" IN COMING TO MAKE THE APPOINTMENTS PROVIDED FOR BY THE FOREGOING ACT WE ARE IN DOUBT AS TO WHETHER IT WOULD BE LAWFUL FOR A JUSTICE OF THIS COURT TO APPOINT HIS GRANDNEPHEW TO SUCH AN OFFICE.

A-71441, MARCH 6, 1936, 15 COMP. GEN. 765

APPOINTMENTS - LAW CLERKS, UNITED STATES COURT OF APPEALS FOR DISTRICT OF COLUMBIA LAW CLERKS TO JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, WHOSE DUTIES ARE PERSONAL TO THE PARTICULAR JUSTICES FOR WHOM THEY WORK, ARE NOT EMPLOYED IN ANY OFFICE OR DUTY IN THE COURT WITHIN THE MEANING OF THE INHIBITION OF THE ACT OF MARCH 3, 1911, 36 STAT. 1105, AGAINST EMPLOYMENT OF CERTAIN RELATIVES OF THE JUDGES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHIEF JUSTICE, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, MARCH 6, 1936:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED IN YOUR LETTER OF FEBRUARY 21, 1936, AS FOLLOWS:

I RESPECTFULLY REQUEST YOUR FORMAL OFFICIAL OPINION UPON A QUESTION WHICH ARISES IN RELATION TO THE APPOINTMENT OF LAW CLERKS FOR THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. THE AUTHORITY FOR THE APPOINTMENT OF SUCH CLERKS BY THIS COURT IS TO BE FOUND IN THE ACT OF CONGRESS KNOWN AS "THE SUPPLEMENTAL APPROPRIATION ACT, FISCAL YEAR 1936" (PUBLIC, NO. 440, 74TH CONGRESS), APPROVED FEBRUARY 11, 1936. THE APPROPRIATION FOR THE DISTRICT OF COLUMBIA PROVIDED BY THAT ACT INCLUDES THE FOLLOWING:

"SALARIES AND EXPENSES, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA: FOR FIVE LAW CLERKS (ONE FOR EACH JUSTICE OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA), AT $2,500 PER ANNUM EACH, FROM FEBRUARY 1, 1936, TO JUNE 30, 1936, BOTH DATES INCLUSIVE, $5,908.'

IN U.S.C. SEC. 126, ENTITLED "OFFICERS OF COURTS," IT IS PROVIDED:

"NO PERSON SHALL BE APPOINTED TO OR EMPLOYED IN ANY OFFICE OR DUTY IN ANY COURT WHO IS RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE DEGREE OF FIRST COUSIN TO THE JUDGE OF SUCH COURT: * * *"

IN COMING TO MAKE THE APPOINTMENTS PROVIDED FOR BY THE FOREGOING ACT WE ARE IN DOUBT AS TO WHETHER IT WOULD BE LAWFUL FOR A JUSTICE OF THIS COURT TO APPOINT HIS GRANDNEPHEW TO SUCH AN OFFICE. IT SEEMS TO HAVE BEEN DECIDED THAT THE STATUTORY INHIBITION DOES NOT APPLY TO THE POSITION OF SECRETARY OF A JUDGE, UPON THE GROUND THAT HE IS NOT EMPLOYED TO SERVE THE COURT BUT TO ACT SOLELY AS ASSISTANT TO THE JUDGE APPOINTING HIM, BUT NO SUCH RULING, SO FAR AS WE KNOW, HAS BEEN MADE RESPECTING LAW CLERKS, ALTHOUGH UNDER THE ACT ONE LAW CLERK IS TO BE APPOINTED FOR EACH JUDGE AND IT WOULD SEEM THAT SUCH AN APPOINTEE WOULD SUSTAIN A SIMILAR RELATION AS THAT OF SECRETARY TO THE JUDGE APPOINTING HIM.

IT HAS BEEN HELD CONSISTENTLY BY THE ACCOUNTING OFFICERS OF THE UNITED STATES IN CONSIDERING THE TERMS OF APPROPRIATION ITEMS AUTHORIZING THE APPOINTMENT OF SECRETARIES TO JUDGES OF UNITED STATES COURTS--- IN MUCH THE SAME FORM AS THE INSTANT APPROPRIATION ITEM FOR LAW CLERKS TO JUDGES-- - THAT THE STATUTORY RESTRICTION AGAINST THE APPOINTMENT OF CERTAIN RELATIVES OF THE JUDGES OF SAID COURTS DOES NOT APPLY FOR THE REASON THAT THE SECRETARY TO A JUDGE IS NOT AN OFFICER OF THE COURT AND PERFORMS NO DUTY IN THE COURT. 4 COMP. DEC. 359; 8 ID. 736.

WHILE THE DUTIES TO BE ASSIGNED TO THE LAW CLERKS AUTHORIZED TO BE EMPLOYED UNDER THE APPROPRIATION ITEM QUOTED IN YOUR LETTER HAVE NOT BEEN SET FORTH BY YOU, FROM THE STATEMENT OF JUSTICE GRONER ON AUGUST 12, 1935, BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS IN CHARGE OF DEFICIENCY APPROPRIATIONS, IT IS UNDERSTOOD THE DUTIES TO BE PERFORMED BY A LAW CLERK WILL CONSIST OF LEGAL RESEARCH, BRIEFING OF CASES, ETC., FOR THE INDIVIDUAL JUDGE, AND THAT SAID LAW CLERKS ARE NOT, AND WILL NOT BE, AUTHORIZED OR REQUIRED TO PERFORM ANY COURT DUTIES WHATEVER. IN OTHER WORDS, IT IS UNDERSTOOD THE DUTIES TO BE PERFORMED BY THESE LAW CLERKS ARE AS PERSONAL TO THE PARTICULAR JUSTICES FOR WHOM THEY WORK, RESPECTIVELY, AS ARE THE DUTIES OF SECRETARIES. IF SUCH ARE THE FACTS, I HAVE TO ADVISE THAT A LAW CLERK TO A JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IS NOT EMPLOYED IN ANY OFFICE OR DUTY IN THE COURT, WITHIN THE MEANING OF THE INHIBITION OF SECTION 67 OF THE JUDICIAL CODE, ACT OF MARCH 3, 1911, 36 STAT. 1105, AGAINST EMPLOYMENT OF CERTAIN RELATIVES OF THE JUDGES.