# Petition for Writ of Certiorari — Farley v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0829%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 - **Citation:** 352 U.S. 891 ## Text ECOL EL LIE AE RE TIED ee hake poy Les ES INDEX PAGE EE MI vc 55a een x ketene Cedban Kixihawaudes 1 | PE eee TTT ee Te eee TTT CT eee eee rT 2 NE OUD. 54d (544440890 ke ees cansee cents 2 ee rr ere ere rere rer 2 PE tc ks+ccvinwgkeed ba dncchos ees ka ceva see tens 3 en Se ID MOUUR is wn coun bok eu ks bdaveunees 4 PE CS ARSh inka hhh seek CKeekAa We KAes ee om 7 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 ER SITIOS ob SES AER 2, 3,6 eo, odes cys da peancseas 5 NN I LEO CEPT EPS TTT 5 oil vy uakencacannces 5 TS PRATER POT OTT RAPE 5 NY LET PORC A EE TREO ORTOP 5 Ne io. ice sccassaceccvs caves 4 ee iadadaaa cans yas 4 cs ia ocsovesa gad snunkven 4 ee enc cand vb yeuss 4 EISLER TEE 2 isi nue vs tvneeacsadensaes 4 oy ase sa vaebescancankaces 5 re No on 5 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 NE inane ncaa eta ian cau es Sans ] et we Nese chek ee Ee rr ] puestion presented ..5...6..0.655 eee WG TREE 2 Meeebe MAVGIVOR cok ca cccecidccascn I PTO ee eas a 2 I a na oa Sas te Avda brite ee me ce se wih eet eee 2 ee Spree e a eee Se ie et Aaah: SaeRie aor ake Wie mie ic eae 4 NREL Ae ENE LOL Ee eet A Rt 10 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