B-141584, FEB. 8, 1960

B-141584, FEB. 8, 1960

TO HONORABLE WARREN OLNEY, III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

YOUR ACTING DIRECTOR'S LETTER OF DECEMBER 23, 1959, REQUESTS OUR DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN CONCERNING SOME POSITIONS ON THE SUPPORTING STAFFS OF JUDGES OF THE UNITED STATES COURTS OF APPEALS AND OF UNITED STATES DISTRICT COURTS.

THE POSITIONS REFERRED TO HAVE BEEN ADMINISTRATIVELY DESIGNATED AS "CRIER --- LAW CLERK" OR "LAW CLERK--- CRIER" AND "SECRETARY--- LAW CLERK.' THE ACTING DIRECTOR ASKS WHETHER THE INCUMBENT OF ANY SUCH POSITIONS WOULD HOLD THE POSITION AND DRAW SALARY THEREOF IN VIOLATION OF ANY OF THE DUAL EMPLOYMENT OR DUAL COMPENSATION STATUTES OR ANY OTHER STATUTE.

EACH OF THE POSITIONS NAMED WOULD EMBRACE DUTIES, RESPONSIBILITIES, AND QUALIFICATIONS PECULIAR TO IT AND OUR VIEW IS THAT THEY MUST BE REGARDED AS SEPARATE AND DISTINCT POSITIONS. THEREFORE, THE INCUMBENT OF EACH OF THEM--- IN THE ABSENCE OF OTHER OBJECTIONS--- LAWFULLY COULD HOLD AND DRAW THE COMPENSATION ATTACHED TO THE POSITION WITHOUT CONTRAVENING THE DUAL EMPLOYMENT OR DUAL COMPENSATION STATUTES.

WE NOTE THAT THE POSITION OF "CRIER--- LAW CLERK" WAS THE SUBJECT OF COMMENT AT THE HEARINGS BEFORE THE SUBCOMMITTEES OF THE COMMITTEES ON APPROPRIATIONS OF BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE IN THE CONSIDERATION OF THE APPROPRIATION FOR THE JUDICIARY, FISCAL YEAR 1960 (SEE THE PERTINENT HEARINGS OF THE HOUSE OF REPRESENTATIVES, PAGES 102, ET SEQ. AND OF THE SENATE, PAGES 502, ET SEQ.). IN THOSE HEARINGS THE RESPECTIVE COMMITTEES WERE INFORMED BY REPRESENTATIVES OF THE JUDICIARY AND OF YOUR OFFICE THAT THERE WAS NO SPECIFIC LEGISLATIVE AUTHORITY FOR THE POSITION IN THE SUPPORTING STAFFS OF JUDGES ENTITLED "CRIER--- LAW CLERK.' WE AGREE THAT THERE EXISTS NO EXPRESS STATUTORY AUTHORITY FOR A POSITION SO DENOMINATED. HOWEVER, WE NOTE THAT IN 1956 THE JUDICIAL CONFERENCE RECOGNIZED THE FACT THAT SOME JUDGES WERE APPOINTING AS CRIERS EMPLOYEES POSSESSED OF THE QUALIFICATIONS OF LAW CLERKS AND WERE USING THEIR SERVICES NOT ONLY IN THE PERFORMANCE OF NOMINAL DUTIES OF CRIER BUT ALSO IN THE PERFORMANCE OF SUBSTANTIAL AMOUNTS OF LAW CLERK WORK. RECOGNITION OF THE QUALIFICATIONS AND HIGHER GRADE OF WORK PERFORMED BY THESE CRIERS THE JUDICIAL CONFERENCE AUTHORIZED A GRADE FOR THEM CORRESPONDING TO GRADE GS-7 WHICH IS THE ENTERING RATE FOR LAW CLERK.

28 U.S.C. 604 (5) AUTHORIZES THE DIRECTOR, ADMINISTRATIVE OFFICE OF UNITED STATES COURTS TO FIX THE COMPENSATION OF CRIERS. WE DO NOT REGARD THAT AUTHORITY AS PRECLUDING THE FIXING OF THE COMPENSATION OF A CRIER AT A RATE COMMENSURATE WITH HIS PARTICULAR DUTIES. THE STATUTORY POSITION OF CRIER EMBRACES THE DUTIES OF BAILIFF AND MESSENGERS. A BAILIFF SHALL, IN ADDITION TO NORMAL DUTIES, PERFORM SUCH OTHER NECESSARY DUTIES AS THE JUDGE SHALL DIRECT. 28 U.S.C. 755. THUS, A JUDGE MAY CALL UPON A PROPERLY QUALIFIED CRIER WHEN HE OTHERWISE IS NOT OCCUPIED TO PERFORM THE DUTIES OF LAW CLERK. WE UNDERSTAND THAT A CRIER PERFORMING THE NOMINAL DUTIES OF THAT JOB RECEIVES COMPENSATION CORRESPONDING TO A GRADE GS-4 POSITION AND THAT IN THE CASE OF A CRIER COMPENSATED AT GS-7, THE DIFFERENCE IN COMPENSATION IS CHARGED TO THE APPROPRIATION LIMITATION FOR SECRETARIES AND LAW CLERKS.

THAT PRACTICE, WHICH IF OTHERWISE MIGHT BE VIEWED AS AN EVASION OF THE APPROPRIATION LIMITATION, CONFORMS, IN OUR VIEW, WITH THE BROAD INTENT OF THE CONGRESS. WE UNDERSTAND THAT NO OTHER EMPLOYEE SHALL BE APPOINTED IN LIEU OF THE GRADE GS-7 CRIER BY THE JUDGE TO PERFORM THE DUTIES OF CRIER, AND THEREFORE, WE FIND NO LEGAL OBJECTION TO THE CONTINUATION OF THAT PRACTICE. ON THE CONTRARY, IT IS EVIDENT THAT THE GREATER FLEXIBILITY ACHIEVED BY THE ESTABLISHMENT OF THE GRADE GS 7 CRIER POSITION FOR LEGALLY QUALIFIED INCUMBENTS ENABLES JUDGES TO BETTER USE THE TIME AND ABILITIES OF THEIR SUPPORTING STAFFS WITHOUT INCREASING THE COST TO THE GOVERNMENT.

CONCERNING THE POSITION OF SECRETARY--- LAW CLERK CORRESPONDING TO GRADE GS-11 CREATED TO MEET THOSE SITUATIONS IN WHICH A SECRETARY HAS THE REQUIRED QUALIFICATIONS OF A LAW CLERK AND WHOSE PREPONDERANT DUTY IS LAW CLERK WORK, WE SUGGEST THAT CONFUSION WOULD BE AVOIDED BY THE ASSIGNMENT OF SUCH EMPLOYEES TO THE GRADE GS-11 POSITION OF LAW CLERK.

WHILE A LEGAL BASIS FOR THE ESTABLISHMENT OF THE POSITIONS REFERRED TO ABOVE IS FOUND, WE ASSUME THAT THEY WILL BE AUTHORIZED ONLY IN THOSE INSTANCES WHEN THE CIRCUMSTANCES JUSTIFY SUCH POSITIONS.