Petition for Writ of Certiorari — Farley v. United States

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Appendix—Opinion below ..................0 eee ees 8

CITATIONS

CASES:

Cammer v. United States, 350 U.S. 399 ............ 3, 4

er W, Gene, Me Ge OR hts csc anaceucnsweees ans 7

Humphrey's Executor v. United States, 295 U. S.

DE he kahit eaeuk Hue k OREAGA PENTA ONG TERE S 5

Trailmobile Co. v. Whirls, 331 U.S. 40 ............. 7

White v. United States, 305 U.S. 281 .............. 6

STATUTES:

Act of June 30, 1926, 44 Stat. 916, 28 U. S. C. $491

SOE SD Ande ska ce Leen eane ee tenabecunes seek 6

INDEX

PAGE

Act of June 25, 1948, 62 Stat. 911, 28 U. S. C. $541

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RULEs:

Rules of the Courts of Appeals (1st Cir., Rule 6; 3d

Cir., Rule 7; 4th Cir., Rule 5; 5th Cir., Rule 6;

7th Cir., Rule 5; 8th Cir., Rule 3(d); 10th Cir.,

EN Satu acs wuaks s ReveasesecaesQabaunss t

IN THE

_ SUPREME COURT OF THE UNITED STATES.

October Term, 1955.

No.

WALTER S. FARLEY,

Petitioner,

VS.

THE UNITED STATES.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS.

Walter S. Farley prays that a writ of certiorari issue to

review the judgment of the United States Court of Claims

entered in the above-entitled case on April 3, 1956.

OPINION BELOW.

The opinion of the United States Court of Claims (App.

p. 8) is reported in 139 F. S. 757.

*

JURISDICTION.

The judgment of the United States Court of Claims was

entered April 3, 1956 (Tr. p. 53). A timely motion for

rehearing was denied June 5, 1956 (Tr. p. 54). The

jurisdiction of the Court is invoked under 28 U. S. C.

$1255 (1).

QUESTIONS PRESENTED.

Whether a United States Marshal is an executive officer

whose duties are ministerial and purely executive.

Whether Congress by 28 U. S. C. §541(c) has declared

that the President may only remove a Marshal after the

expiration of his term and before his successor is appointed

and qualifies.

STATUTE INVOLVED.

Act of June 25, 1948, 62 Stat. 911, 28 U. S. C. §541(c):

“Each Marshal shall be appointed for a term of four

years, except in the District of Hawaii where the term

shall be six years. Upon the expiration of his term a

Marshal shall continue to perform the duties of his

office until his successor is appointed and qualifies,

unless sooner removed by the President.”

STATEMENT.

Plaintiff was appointed Marshal of the United States in

and for the Eastern District of Pennsylvania by the Presi-

dent of the United States by and with the advice and con-

sent of the Senate on April 8, 1952 for a term of four years.

His salary was $8,360 per annum.

On June 29, 1954 the President in writing notified plain-

tiff of his removal effective upon the appointment and quali-

fication of his successor. One William O’Brien upon nomi-

nation by the President and confirmation by the Senate took

office on August 1, 1954. On August 2, 1954 plaintiff filed

this action challenging the legality of his removal and claim-

ing salary for the balance of his term viz. from August 1,

1954 to April 7, 1956, or the sum of $14,102.80.

On April 3, 1956 the United States Court of Claims dis-

missed the petition upon the grounds that the Act of June

25, 1948, 62 Stat. 911, 28 U. S. C. §541(c) does not state

that a marshal cannot be removed by the President before

the expiration of his four-year term; that the President

can remove an executive officer before the expiration of

the statutory term of office; that a United States marshal

is an executive officer whose duties are ministerial and

purely executive, and therefore he can be removed at the

pleasure of the President prior to the expiration of the

statutory term of office (Tr. p. 51).

Petitioner filed timely motion for rehearing upon the

ground that the Court has declared in Cammer v. United

States, 350 U. S. 399, 405, that marshals are in the same

category as bailiffs, court clerks and judges and to be con-

ventional court officers; that in its interpretation of the

statute involved, the United States Court of Claims had

ignored and violated principles of construction established

by the Court’s decisions (Tr. p. 54). Such motion for

rehearing was overruled June 5, 1956 (Tr. p. 54).

REASONS FOR GRANTING WRIT.

Whether a United States Marshal is a purely executive

officer whose duties are ministerial and purely execu-

tive and who may be removed by the President before

his term expires, is an important question of Federal

law which should be decided by the Court.

1. The Court below decided that a United States Marshal

is an executive officer whose duties are ministerial and

purely executive.

In Cammer v. United States, supra, p. 405, the Court de-

clared there to be a single category composed of

“marshals, bailiffs, court clerks or judges.”

and within

“the group of persons who serve as conventional court

officers and are regularly treated as such in the laws.

See 28 U. S. C. §§601-963.”

Within 28 U. S. C. §§601-963, United States Marshals are

referred to in §604(8) relating to the disbursement by the

Director of the Administrative office of the United States

Courts of moneys appropriated for the maintenance and

operation of the courts; in §713(d) relating to the preser-

vation of order and the performance of such other neces-

sary duties as the court or judge may direct; and in §755

relating to attending the court, maintaining order, waiting

upon the grand and petit juries and performing such other

necessary duties as the judge may direct.

The Rules of the Courts of Appeals refer to the United

States Marshal as a court officer (1st Cir., Rule 6; 3d Cir.,

Rule 7; 4th Cir., Rule 5; 5th Cir., Rule 6; 6th Cir., Rule 6;

7th Cir., Rule 5; 8th Cir., Rule 3(d); 10th Cir., Rule 6).

Under 28 U. S. C. §1866(a) “the court may require the

5

United States marshal to summon a sufficient number of

talesmen from the by-standers” and this occurred on June

1, 1955 in Foley Square, New York City, under the order

of Judge Edward J. Dimock of the United States District

Court for the Southern District of New York. Under 28

U. S. C. §1866(b) it is the United States marshal who re-

turns a special jury ordered by a district court. The mar-

shal serves summonses for jury service under 28 U. S. C.

§1867.

In the event of a vacancy the District Court under 28

U.S. C. §545 may appoint a United States marshal to serve

until the vacancy is filled. Under $547 the United States

marshal is the marshal of the District Court and of the

Court of Appeals and of the Customs Court, as set forth,

and is required to execute all lawful writs, processes and

orders issued under authority of the United States; under

{548 the marshal administers oaths to persons presenting

claims and accounts for payment; and under {549 exercises

the same powers which a sheriff of the state may exercise

in executing the state laws. He is forbidden by §556 from

practicing law in any United States court.

In view of his functions and duties, whether a marshal is

a purely executive officer is an important question of Fed-

eral law which should be decided by the Court.

2. In Humphrey’s Executor v. United States, 295 U. S.

602, the Court said, p. 631:

“The result of what we now have said is this:

Whether the power of the President to remove an offi-

cer shall prevail over the authority of Congress to

condition the power by fixing a definite term and pre-

cluding a removal except for cause will depend upon

the character of the office; the Myers decision, affirm-

ing the power of the President alone to make the re-

moval, is confined to purely executive officers; * * *

“To the extent that, between the decision in the

Myers case, which sustains the unrestrictable power

6

of the President to remove purely executive officers,

and our present decision that such power does not ex-

tend to an office such as that here involved there shall

remain a field of doubt, we leave such cases as may

fall within it for future consideration and determina-

tion as they may arise.”

By the Act of June 30, 1926, 44 Stat., 916, 28 U.S. C.

§491 (1940 ed.), it was provided, in pertinent part:

“Marshals * * * shall be appointed and commissioned

for a term of four years and shall continue to dis-

charge the duties of their * * * offices unless sooner

removed by the President, until their successors shall

be appointed and qualify in their stead.”

That was the former statute. The present statute, under

which petitioner was appointed, is the Act of June 25, 1948,

62 Stat. 911, 28 U. S. C. §541(c) which provides, in per-

tinent part:

“Each Marshal shall be appointed for a term of four

years * * * Upon the expiration of his term a Marshal

shall continue to perform the duties of his office until

his successor is appointed and qualified unless sooner

removed by the President.”

By this statute, Congress has provided that the power

of the President to remove does not arise until the marshal’s

term has expired. This is as effective a limitation as if

causes for removal were specified. It makes the four year

term definite and certain subject only to the impeachment

power of the Congress. With such purpose so clearly ex-

pressed there should be no judicial disagreement.

This interpretation arises from comparison of the 1926

and 1948 statutes (White v. United States, 305 U. S. 281,

287, 288), and is confirmed in that the 1948 statute by

enumerating the condition upon which the power of re-

~)

moval may be exercised, prohibits the removal otherwise

(Gegiow v. Uhl, 239 U.S. 3, 9). Lack of “legislative his-

tory” matters not (Trailmobile Co. v. Whirls, 331 U. S. 40,

61).

Whether Congress has limited the power of the Presi-

dent to remove a United States Marshal is an important

question of Federal law which should be decided by the

Court.

CONCLUSION.

The issue raised by petitioner is an important question

of Federal law which should be decided by the Court.

Respectfully submitted,

EDWIN J. McDERMOTT,

Counsel for Petitioner.

APPENDIX.

OPINION BELOW.

IN THE

UNITED STATES COURT OF CLAIMS.

No. 314-54.

(Decided April 3, 1956.)

WALTER S. FARLEY

Vs.

Tue UNITED STATES.

MR. EDWIN J. McDERMOTT for plaintiff;

MR. PHILIP W. LOWRY, with whom was MR. AS-

SISTANT ATTORNEY GENERAL WARREN E.

BURGER, for defendant.

ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR

SUMMARY JUDGMENT.

LITTLETON, Judge, delivered the opinion of the court:

The plaintiff sues for $14,102.80, representing salary for

the period August 1, 1954, to April 7, 1956. The President,

9

by and with the advice and consent of the Senate, appointed

plaintiff to the office of United States marshal, Eastern

District of Pennsylvania, on April 8, 1952, for a term of

four years, commencing on the same day. The President

notified plaintiff by letter of June 29, 1954, that he was

thereby removed from the office of United States marshal,

effective upon the appointment and qualification of his suc-

cessor. A successor was appointed by the President and

took office on August 1, 1954. Both parties have moved for

summary judgment.

The plaintiff contends that the office of United States

marshal is a part of the judicial svstem and not a part of

the executive department, and that Congress could and did

limit the power of the President to remove a United States

marshal to the period commencing after the term of four

years had expired and before a successor had been ap-

pointed. The defendant contends that a United States

marshal performs no judicial function and that his duties

are wholly of an executive nature, and that the Congress

could not and did not restrict the President's power of re-

moval of a marshal.

The statute upon which plaintiff relies, Act of June 25,

1948, 62 Stat. 911, 28 U. S. C. $541 (c), provides:

Each marshal shall be appointed for a term of four

vears, except in the district of Hawaii where the term

shall be six vears. Upon expiration of his term a

marshal shall continue to perform the duties of his

office until his successor is appointed and qualifies,

unless sooner removed by the President.

The plaintiff interprets this provision to mean that the

President cannot remove a marshal until after the four-year

term has expired. Such an interpretation is neither sup-

ported by the words of the statute nor its legislative history.

There is nothing in section 541 (c) that states that a marshal

cannot be removed by the President before the expiration

of his four-year term. There is nothing in the legislative

10

history that indicates that Congress intended to impose any

restriction or limitation on the power of the President to

remove a marshal.

It is settled that the President can remove an executive

officer before the expiration of the statutory term of office.

See Parsons v. United States, 167 U. S. 324, where the Court

held that a district attorney of the United States could be

removed by the President before the expiration of his four-

year term.

To adopt plaintiff's interpretation would mean that a

marshal could only be removed during the four-year term

by the process of impeachment by the House of Represent-

atives and a conviction thereon and removal by the Senate

as punishment. This could not have been the intention of

Congress.

We believe that it is clear that a United States marshal

is an executive officer whose duties are ministerial and

purely executive, and therefore he can be removed at the

pleasure of the President prior to the expiration of the

statutory term of office. Myers v. United States, 272 U.S.

52; Humphrey’s Executor v. United States, 295 U. S. 602;

Morgan v. Tennessee Valley Authority, et al., 115 F. 2d 990,

cert. den. 312 U. S. 701.

Defendant's motion for summary judgment is granted,

the plaintiff's motion for summary judgment is denied and

his petition is dismissed.

It is so ordered.

LARAMORE, Judge; MADDEN, Judge; WHITAKER,

Judge; and JONES, Chief Judge, concur.

Pave

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CLPATIONS

Cases:

C crannies : Un ted Nlate Ss, 350 U oS , 6

Collett, Ex parte, 387 US. 55...... 5

Hlun pl ‘¢ i's Eve cutor . l> ite d State s, 25 U Na Or . . 4, 6

Vyers v. United State & gen US. - ih 4.9

wemete, dm 06. 105. 218. 0 ek oxccccnasn 6

Parsons v. United States, 167 U.S. 324 .--. 3, 4,8,9

Niebold. } te. 100 U.S. 371 o

ited Uhitan <. Nabisaiad Cite tens at C8. s

Statite ‘.

Act of September 24, 1789, 1 Stat. 73:

DIRE A eet ges ok hg anid Ck ae ich “~ ‘

Section 35 S

\ct of June 24, 1898, 30 Stat. 487. Section 1 ri

Act of June 30 1926. 44 Stat. 1. Section 2 : .

Revised Statutes, Section 769....... Ss

Revised Stututes of IS73. Section 70 ‘

Revised Statutes of IS7S8, Section 779 s

3 Stat. S82 S

IS U.S.C. 40112) 6

28 USC. 491 +1940 ed.) (Act of June 30. 1926, 44 Stat

STR tee” | re 2.8

28 US.C. 541 (a) 2

28 U.S.C. 541 (¢) 2,3, 4. 4,10

28 U.S.C. 542 6

eo

MS.C. 547 eeseee ic eee eR ws Ses ices S

ho ht

mw

—— —

Il

Miscellaneous:

A oa OM Aw hay cu se a an's bau a's

H. Rep. No. 1317, 55th Cong., 2d Sess., p. 1... 20.0.2...

39 Op. A.G. 115

Suthe Supreme Court of the Gnited States

OcroBer ‘TERM, 1996

No. 308

WaLtTer S. FARLEY

Uv.

THe UNIrep Srares

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the United States Court of Claims

dismissing the petition (Pet. 8-10) is reported at

1389 F. Supp. 797.

JURISDICTION

The judgment of the Court of Claims was entered

on April 3, 1956 (CR. 50). A motion for rehearing,

seasonably filed, was denied on June 5, 1956 (R. 54).

The petition for a writ of certiorari was filed

August 31, 1956.) The jurisdiction of this Court is

invoked under 28 U.S.C. 1259(1).

(1)

2

QUESTION PRESENTED

Whether the President may remove a United States

Marshal prior to the expiration of his appointive term

of office.

STATUTE INVOLVED

vs USS. ©. 541, in pertinent part, provides:

(a) ‘The President shall appoint, by and with

the advice and consent of the Senate, a United

States marshal for each judicial district.

(e©) Rach marshal shall be appointed for a term

= + &

of four vears Upon the expiration of his

term atiarshal shall continue to perform the duties

of his offiee until his successor is appointed and

qualifies, unless sooner removed by the President,

STATEMENT

After nomination by the President and confirmation

by the Senate, the President issued a commission ap

pointing petitioner, Walter S. Farley, United States

Marshal for the Eastern District of Pennsylvania for

a ternvof four vears subject to the conditions prescribed

by law (R.1, 2,5). On April 16, 1952, petitioner took

his oath and otherwise qualified as United States Mar-

shal including the execution of a certificate that as an

‘officer or emiplovee in the ececalive branch of the

federal Government?” he ‘shall not take any part in

political management or * * campaigns’* (emplistsis

added) (R.1,2,5, 14,15). On April 25, 1952, petitioner

entered into and continued the duties of his office until

Fane 29, W954, when the President notified him in writ

ing that he was ‘removed from the office of United

9

»

Statés Marshal, Eastern District of Pennsylvania. ef-

fective upon the appointment and qualification of vour

suecessor”’ (R. 2,15). On the same day, William A.

O’Brien was nominated to the office of United States

Marshal for the Eastern District of Pennsvivania and

after Senatorial confirmation (100 Cong. Ree. Taz)

entered into that office on August 1, 1954 (R.2.5). On

August 2, 1954, Farley fled a petition in the Court

of Claims challenging the legality of his removal and

seeking $14,102.80, the amount of his salary for the

unexpired portion of his term (R.1).

After answer by the Government (R. 9-6), both par-

ties moved for summary judgment (R.11, 29). In deny-

ing petitioner’s motion and granting that ef the Gov.

ernment, the Court of Claims held that Us U.S. ©,

M41Ce) Csupra, p. 2), *neither * * * by * ** [its | words

* * * nor its legislative history’ indicates ‘that a

marshal cannot be removed by the President before the

expiration of his four-vear term” (Pet. App. 9).

Relving on Parsons \. United States, WG UL Sood, the

court ruled that ‘It is settled that the Pre adent can

remove an executive officer before the exprvation otf the

statutory term of office” (Pet. Npp. 1). and concluded

(Pet. App. 10) that ‘it is clear that a United States

marshal is an executive officer whose duties are minis-

terial and purely executive’? and consequently reme

able from office “tat the pleasure of the President prior

to the expiration of the statutory term of office.

Muers v. United States, 272 U.S. 92: Meumphrey’s

Evrceutor \. United States, 295 U.S. 602; Morgan vv.

Tennessee Valley Authority, cf al. WA FL 2d 990,

cert. den. 312 U.S. 701."

4

ARGUMENT

Petitioner, apparently recognizing that the President

has unlimited power to remove purely executive officials

without regard to a Congressional prescription of a

term of office (see Wyers v. United States, 272 U.S. 52;

Parsons v. United States, 167 U.S. 324), claims that

as United States Marshal for the Eastern District of

Pennsylvania he was a judicial rather than an executive

official within the limited exeeptien from the Presi-

dent’s removal power set out in Humphrey's Eaxrceu

tor Vv, United States, 299 UL S. 602. Based on this and

his further contention that 28 U.S.C. 541(¢) (supra,

p. 2), was intended to limit the President's removal

power, petitioner coneludes that his removal was

invalid.

Both of these contentions were presented to and re

jected by the Court of Claims. That court held

first that as a United States Marshal petitioner

exercised purely exeentive ov ministerial funetions, se

that Myers, rather than Miinphrey, controlled, Se

ond, the court ruled that 28 U.S.C. 541(¢¢), partieularly

when read in the light of the history since 1789, did not

limit the President’s removal power. Since each

ground is cerrect and either one alone is suffeient to

support the judgment below, further review by this

Court is unwarranted.

1. The duties and functions of United States Mar

shals are completely different from those of the Fed-

eral Trade Commissioner involved in /iwnphrey, who,

as this Court pointed out, was intended to he ‘tindepend-

ent of executive authority, * * * and free to exercise

[his] judgment without the leave or hindrance of any

other official or any department of the government”

(295 U.S. at 625-626). A United States Marshal is

nota ‘judicial’ officer, nor does he participate in the

judicial function im so far as interpreting the law,

or deciding disputes, cases, or controversies between

adversaries is concerned, With respect to the trial of

a case he is simply a police officer charged with the

duty of maintaining order in the courtroom, of protect-

Ing the jury from interference, and of handling prisen-

ers. He has nothing whatsoever to do with considering,

weighing, and making the decision or judemont. After

the judgment by the court is made, it is the Clerk's

duty to enter and record. With respect to writs, sub-

poenas, and other court papers, the Marshal's duties

and functions are purely ministerial, ie., to serve them

and make returns, 28 U.S.C. 547.

The United States Marshal is not a creature of the

court, such as the Clerk may be said to be. THe is not

even a court emplovee, The federal ageney employing

him is the Department of Justice, through which his

salary and fees are paid, and by which his duties and

funetions are detined.’ The descriptive list of his duties

contained in petitioner's own affidavit (R. 20-23) makes

clear that the Marshal's function is strictly non-judicial

and wholly of an executive nature, i.¢., to attend, when

required, the District Court and the Court of Appeals

in session in his district, and to execute writs, process,

and orders. By statute, the Attorney General is

charged with the duty of supervising and directing the

Marshal's performance of his duties and the accounting

for his public monies, 28 U.S.C. 547. Similarly, the

Marshal is required to report his official proceedings,

'The Department issues a “United States Marshals Manual”

which sets out in detail the Marshal's duties and powers.

6

receipts and disbursements, and the condition of his of-

fice to the Attorney General. See also 28 ULS.0. 541,

42 O14, DDO, Since he is thus accountable to, and under

the supervision and direction of, the Department «o:

Justice, it is clear that the Marshal’s duties are so ex-

ecutive in nature as to preclude him from falling within

the Humphrey exception.

This Court long ago pronounced United States Moy

shals to be executive officers of the Government. Jy

Neagle, 185 U.S.1, the Court stated (135 ULUS. at 63):

The ministerial officers through whom its) com.

mands must be executed are marshals of the United

States, and belong cnphatically to the erecative

department of the government. They are ay

pointed by the President, with the advice and con

sent of the Senate. They are removable from of

fico at his pleasure, They are subjected hy aet ot

Congress to the supervision and control of the De-

partment of Justice, in the hands of one of the

cabinet officers of the President, and their com

pensation is provided by acts of Congress. The

same may be said of the distriet attorneys ot the

United States, who prosecute and defend the claims

of the government in the courts. | | Emphasis

added. |

See also kur Parte Stehold, WOU. S. 3871. 30 Op. ALG.

114. *

2Cammer v. United States. 350 US 899, 405. relied on by peti

tioner (Pet. 4). 1s irrelevant. Tt invelved an attorney, not s Unit

States Marshal. Moreover, the issue there coneerned the scope of 3

court’s power summarily te punish fer contempt under IS USC

401(2)--4 wholly different problem,

2. Equally sound is the Court of Claims” reading of

YS LISLE. oddce). dn this commection, petitioner com

trasts JS ULS LG, 541 ce) with its predecessar contained

in the Act of Jiume 30, 1926, 44 Stat. 916, 2s US. 491

(1940ed.) °° whieh differs slightly in grammatical cou-

truction and the position of the pliuase ‘Unless sooner

removed hy the President” and he conelides (Pet.

6):

By this statute [28 UlS.0. 541 Ce) |. Congress has

provided that the power of the President to remove

does not arise until the marshal’s term has expired,

This is as effective a limitation as if cattses tor

removal were specitied. It omakes the forur vear

term definite and certain subject only to the din

peachimient power of the Congress,

Since the early days of this Nation, the President has

heen free to remove an United States Meawshal and the Re

viser’s Note to BS ULS.C. 54106) does net disclose ans

Intention by the sHght reeasting of the language to de-

part trom the prevailing law, let alone to attect the dras-

tie change usserted hy petitioner, fn addition to hoting

changes in phraseology, the Reviser’s Note merely come

ments on the omission as ‘necessary af a provision

The Act of June 380, 1926. 44 Stat 1. was the 1926 compilation

ol the United States Code. Seetion 2 oof which provided that the

Code was “prima tame the laws of the United States" 28 US.

491 was derived from Section Toot the Aet ot June 24. TSS. 50 Stat

487. which liad provided

* * » , \

the attormes atid Masi t the United States

. » »* ro

stuan!! continue to discharge the clttes al thelr Tespec-

tive offices inless sooner renioved by the President. until their

sueeessors <bodl be spyponited nea Gualitvo im t r stead But

. ne

they shall be appomted and commits iad Tor the term of tour

Venurs as now provided by

S

relating to the removal of a Marshal in certain cireun-

stances, *

Section 27 of the Act of September 24, 1789 (1 Stat,

a a

S7), expressly provided that * a marshal shall

be appointed in and for each district for the term of

four vears, but shall be removable from office at pleas-

ure.’ Subsequently, in the Revised Statutes of 1873

and i878, this provision was revised in Section 779 to

provide simply that ** Marshals shall be appointed for

a term of four vears.”’

The statutes as to United States Attorneys had fol-

lowed a similar course. See 1 Stat. 92,5 Stat. 582, Rev.

Stat. 7o9. Ata time when the operative statute was

Rev. Stat. 769 which, like Rev, Stat. 779, provided only

“for a term of four years,’ the President removed a

United States Attorney, one Parsons, prior to the ex-

piration of his term, Claiming, as petitioner does here,

that the statute gave him a legal right to hold office

for four vears and that the inclusion of a specific right

to remove, in a predecessor statute, indicated that the

President had no right to remove in the absence of a

specific grant, Parsons sought to recover his salary for

the unexpired portion of his term. On appeal, this Court

rejected these arguments (Parsons vo United States,

167 UL S. 324, 339):

The provision for a removal from office at pleas-

ure Was not necessary for the exercise of that power

by the President, because of the fact that he was

then regarded as being clothed with such power in

*The Reviser’s Notes are authoritative as to the meaning ot the

1948 codification of 28 USC. Western P. R. Corp. vo Western

P. R. Co., 345 US. 247; United States v. National City Lines, 337

Us. 78; see also Ey parte Collett, 337 Us. 55, 71.

9

any event. Considering the construction of the

Constitution in this regard as given by the Con-

eress of I7S89. and having in mind the censtant

and uniferm practice of the Government in har-

mony with such construction, we must construe this

aet as providing absolutely tor the expiration of

the term of office at the end of four vears, and net

as giving a term that shall last. at all events, for

that time, and we think the provision that the of-

ficials were removable from: office at pleasure was

hut a recognition of the construction thus almost

universally adhered to and acquiesced in as to the

power of the President to remove. °

In TS9S8. a vear after the Parsous decision, Congress

again reformulated the provisions relating to Marshals

as well as to United States Attorneys. See supra, p.

tn. The purpose of the new provisions, that those

officials were to remain in office until their successors

have been appointed and qualitied. is explained in the

Report of the House Committee (HL. Rep. Ne. 1317, 55th

Cong., 2d Sess., p. 1):

In practice it frequently cecurs that the term of

a district attorney or marshal expires during the

active progress of a term of court, when the serv-

ices of a district attorney and marshal are required

every day: and as neither the district attorney nor

marshal is authorized to act as such after the ex-

piration of the four-vear term for which he is com-

missioned, the happening of such a vacaney causes

an interruption of the business of the court and

The Wyers case expressly reaffirmed Parsons. after a further

elaborate review of the extensive materials

10

often works great harm and expense to the Govern-

ment as well as to litigants. * * *

The purpose of this bill is not to change the four-

vear term for which these officers are appointed,

but to permit them to discharge their respective

duties until their successors shall be appointed and

qualified, unless sooner removed by the President,

thus preventing the necessity for an interruption

of the business of courts on the expiration of the

four-vear terms of these officers,

This long-established practice as well as the history of

the statute, coupled with the absence of any indication

of a material change in 1948, clearly justifies the hold-

ing of the Court of Claims that under 28 U.S.C. 541(¢)

the President continued, as in the past, to have author-

ity to remove petitioner prier to the expiration of his

four-year term.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

J. Ler RANKIN,

Solieittor General.

GEORGE COCHRAN Dove,

Assistant Attorney General.

MELVIN RICHTER,

JOSEPH LANGBART,

Aftorneys.

SEPTEMBER, 1996,

SOVERN MENT PRINTING reoce ose ‘ ea sse