§ 751. — Clerks.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC751]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART III--COURT OFFICERS AND EMPLOYEES
CHAPTER 49--DISTRICT COURTS
Sec. 751. Clerks
(a) Each district court may appoint a clerk who shall be subject to
removal by the court.
(b) The clerk may appoint, with the approval of the court, necessary
deputies, clerical assistants and employees in such number as may be
approved by the Director of the Administrative Office of the United
States Courts. Such deputies, clerical assistants and employees shall be
subject to removal by the clerk with the approval of the court.
(c) The clerk of each district court shall reside in the district
for which he is appointed, except that the clerk of the district court
for the District of Columbia and the Southern District of New York may
reside within twenty miles thereof. The district court may designate
places within the district for the offices of the clerk and his
deputies, and their official stations.
(d) A clerk of a district court or his deputy or assistant shall not
receive any compensation or emoluments through any office or position to
which he is appointed by the court, other than that received as such
clerk, deputy or assistant, whether from the United States or from
private litigants.
This subsection shall not apply to clerks or deputy clerks appointed
as United States magistrate judges pursuant to section 631 of this
title.
(e) The clerk of each district court shall pay into the Treasury all
fees, costs and other moneys collected by him, except naturalization
fees listed in section 742 of Title 8 and uncollected fees not required
by Act of Congress to be prepaid.
He shall make returns thereof to the Director of the Administrative
Office of the United States Courts under regulations prescribed by him.
(f) When the Court of International Trade is sitting in a judicial
district, other than the Southern District or Eastern District of New
York, the clerk of the district court of such judicial district or an
authorized deputy clerk, upon the request of the chief judge of the
Court of International Trade and with the approval of such district
court, shall act in the district as clerk of the Court of International
Trade, as prescribed by the rules and orders of the Court of
International Trade for all purposes relating to the civil action then
pending before such court.
(June 25, 1948, ch. 646, 62 Stat. 920; Pub. L. 90-578, title IV,
Sec. 402(b)(2), Oct. 17, 1968, 82 Stat. 1118; Pub. L. 96-417, title V,
Sec. 504, Oct. 10, 1980, 94 Stat. 1743; Pub. L. 101-650, title III,
Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Secs. 6, 7, 8, 524, 557, 567,
568, and 569, sections 644 and 863 of title 48, U.S.C., 1940 ed.,
Territories and Insular Possessions, and section 11-401 of the District
of Columbia Code, 1940 ed. (R.S. Sec. 833; June 20, 1874, ch. 328,
Sec. 2, 18 Stat. 109; May 28, 1896, ch. 252, Sec. 8, 29 Stat. 181; Apr.
12, 1900, ch. 191, Sec. 34, 31 Stat. 84; Apr. 30, 1900, ch. 339,
Sec. 86, 31 Stat. 158; Mar. 3, 1901, ch. 854, Sec. 174, 31 Stat. 1218;
June 28, 1902, ch. 1301, Sec. 1, 32 Stat. 475; June 30, 1902, ch. 1329,
32 Stat. 527; June 30, 1906, ch. 3914, Sec. 1, 34 Stat. 754; Mar. 3,
1909, ch. 269, Sec. 1, 35 Stat. 838; Mar. 3, 1911, ch. 231, Secs. 3, 4,
291, 36 Stat. 1087, 1167; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 2,
1917, ch. 145, Sec. 41, 39 Stat. 965; Feb. 26, 1919, ch. 49, Secs. 1, 4,
9, 40 Stat. 1182, 1183; Feb. 11, 1921, ch. 46, 41 Stat. 1099; Mar. 4,
1921, ch. 161, Sec. 1, 41 Stat. 1412, 1413; June 10, 1921, ch. 18,
Secs. 301, 310, 42 Stat. 23, 25; June 16, 1921, ch. 23, Sec. 1, 42 Stat.
41; July 9, 1921, ch. 42, Sec. 313, 42 Stat. 119; June 1, 1922, ch. 204,
Title II, 42 Stat. 614, 616; Jan. 3, 1923, ch. 21 title II, 42 Stat.
1084; Feb. 12, 1925, ch. 220, 43 Stat. 890; Dec. 13, 1926, ch. 6,
Sec. 1, 44 Stat. 919; May 17, 1932, ch. 190, 47 Stat. 158; June 25,
1936, ch. 804, 49 Stat. 1921; Mar. 26, 1938, ch. 51, Sec. 2, 52 Stat.
118; June 16, 1938, ch. 465, 52 Stat. 752; June 14, 1941, ch. 203,
Secs. 1, 2, 55 Stat. 251).
This section consolidates provisions of section 11-401 of the
District of Columbia Code, 1940 ed., sections 644 and 863 of title 48,
U.S.C., 1940 ed., Territories and Insular Possessions, and title 28,
U.S.C., 1940 ed., sections 6, 7, 8, 524, 557, 567, 568, and 569 relating
to district court clerks. Other provisions of such sections 8 and 524
are incorporated in sections 505 [now 545], 541 [see 561], and 954 of
this title and other provisions of such section 11-401 of the District
of Columbia Code have been retained in such Code.
Words ``with the approval of the court'' were substituted for
``Attorney General.'' The power to approve appointment of court officers
is more properly a judicial one. (See section 711 of this title.)
The provision in section 6 of title 28, U.S.C., 1940 ed., that the
clerk be appointed by the district judge or senior judge where there was
more than one member of the court was changed and the power vested in
the court.
The provisions of section 644 of title 48, U.S.C., 1940 ed.,
Territories and Insular Possessions, relating to compensation of clerks
and deputy clerks were omitted as covered by section 604 of this title.
Other provisions of said section 644 are incorporated in section 753 of
this title.
Provision for similar officers in Alaska, Canal Zone, and the Virgin
Islands is made by sections 106, 1349, and 1405y, respectively, of title
48, U.S.C., 1940 ed. A part of section 863 of said title 48, was
retained in title 48. For remainder of such section, see Distribution
Table.
Words in sections 6 and 7 of title 28, U.S.C., 1940 ed., ``Except as
otherwise provided for by law,'' were omitted as obsolete and
superfluous.
References in section 7 of title 28, U.S.C., 1940 ed., that the
clerk recommend appointment of deputies and clerical assistants were
omitted as unnecessary.
The provision that each clerk shall be subject to removal by the
court is new. No tenure was provided for by title 28, U.S.C., 1940 ed.,
but said title contained provisions that other clerks should hold office
during the pleasure of the courts which appointed them, and that
deputies should hold office during the pleasure of the clerks. The
Supreme Court held, in 1839, that a judge of a district court could
remove the clerk thereof at pleasure in absence of any law fixing the
clerk's tenure. In re Hennen, 38 U.S. 230, 13 Pet. 230, 10 L.Ed. 138.
(See also, Meyers v. U.S., 47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160.)
Words ``circuit or'' after ``Every clerk of the'' in section 524 of
title 28, U.S.C., 1940 ed., were omitted because of the abolition of the
circuit courts by act Mar. 3, 1911, ch. 231, Sec. 289, 36 Stat. 1167,
title 28, U.S.C., 1940 ed., Sec. 430.
The provisions in section 524 of title 28, U.S.C., 1940 ed., that
the clerk shall give his personal attention to his official duties, and
declaring his office vacant upon removal from his district or neglect of
duty, were omitted as covered by the removal provision of this section.
The provision permitting the clerk of the district court for the
District of Columbia to reside within twenty miles of the District of
Columbia was added because of the relatively small and congested area of
the District, as a result of which few federal officers are appointed
from the District or reside therein.
The provision in subsection (b) of this section authorizing judges
to designate the places for maintaining offices by the clerks was added
because of many special provisions, in sections 141-196 of title 28,
U.S.C., 1940 ed., for the maintenance of offices by the clerks of the
district courts at various particular places. These provisions have been
omitted, on revision, as covered by the more general provisions of this
section. For residence requirements of United States attorneys and
marshals, see sections 505 [now 545] and 541 [see 561] of this title.
A provision that a breach of section 569 of title 28, U.S.C., 1940
ed., should be deemed a vacation of the offender's appointment, was
omitted as covered by the removal provision of this section.
The provision of section 569 of title 28, U.S.C., 1940 ed., limiting
the compensation of a clerk who is appointed United States commissioner,
to $3,000 a year for both offices was omitted as obsolete. The proper
adjustment of the compensation of such clerks is an administrative
matter more appropriately regulated by the Director of the
Administrative Office under the Supervision of the Judicial Conference
of the United States. (See section 604 of this title.)
Reference in sections 557, 567 and 568 of title 28, U.S.C., 1940
ed., to accounting by district court clerks in Alaska, were omitted as
covered by sections 106 and 107 of title 48, U.S.C., 1940 ed.,
Territories and Insular Possessions, relating to duties of those clerks.
References in sections 557 and 567 of title 28, U.S.C., 1940 ed., to
the clerk of the district court of the United States for the District of
Columbia, were omitted as covered by words ``The clerk of each district
court of the United States.''
As revised, this section is in harmony with the provisions in
chapters 45 and 47 of this title relating to accounting by the clerk of
the Supreme Court and clerks of the courts of appeals.
Provisions as to time and method of accounting and settlement of
accounts were omitted as covered by chapter 41 of this title giving the
Director of the Administrative Office of the United States Courts
supervision over such accounts, and of chapter 2, Audit and Settlement
of Accounts, of title 31, U.S.C., 1940 ed., Money and Finance.
Provisions as to particular fees and moneys to be accounted for were
omitted as covered by words ``all fees, costs and other moneys.''
Included in such provisions was a provision as to naturalization fees,
but a later act, now appearing in section 742 of title 8, U.S.C., 1940
ed., Aliens and Nationality, provided a different method of accounting
and an exception expressly referring to such section was inserted in
this section.
Changes were made in phraseology.
References in Text
Section 742 of Title 8, referred to in subsec. (e), was repealed by
act June 27, 1952, ch. 477, title IV, Sec. 403(a)(42), 66 Stat. 280. See
section 1455 of Title 8, Aliens and Nationality.
Amendments
1980--Subsec. (f). Pub. L. 96-417 added subsec. (f).
Change of Name
``United States magistrate judges'' substituted for ``United States
magistrates'' in subsec. (d) pursuant to section 321 of Pub. L. 101-650,
set out as a note under section 631 of this title. Previously, ``United
States magistrates'' substituted for ``United States commissioners''
pursuant to Pub. L. 90-578. See chapter 43 (Sec. 631 et seq.) of this
title.
Effective Date of 1980 Amendment
Amendment by Pub. L. 96-417 effective Nov. 1, 1980, and applicable
with respect to civil actions pending on or commenced on or after such
date, see section 701(a) of Pub. L. 96-417, set out as a note under
section 251 of this title.
Section Referred to in Other Sections
This section is referred to in section 775 of this title.
