28 U.S.C. § 956 — Powers and duties of clerks and deputies

Page 337 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 956 10, 1939, ch. 2, § 1114(a), 53 Stat. 160; Oct. 21, 1942, ch. 619, title V, § 504(a)(c), 56 Stat. 957; Feb. 25, 1944, ch. 63, title V, § 503, 58 Stat. 72). This section consolidates a part of section 525, sec- tions 264 and 523 of title 28, U.S.C., 1940 ed., part of sec- tion 1114(a) of title 26, U.S.C., 1940 ed., section 11–402 of the District of Columbia Code, 1940 ed., As respects acknowledgments, sections 264, 523 and 525 of title 28, U.S.C., 1940 ed., and section 11–402 of Dis- trict of Columbia Code, 1940 ed., referred only to the Court of Claims and the District Court for the District of Columbia. However, section 555 of said title 28, before amendment in 1944, provided for the collection of a fee by district court clerks for taking acknowledgments. The 1944 amendment provided for the fixing of fees by the Judicial Conference of the United States. If nota- ries and other minor officials may take acknowledg- ments there seems to be no reason why clerks of Fed- eral courts and their deputies should not have such power. Words ‘‘Except as provided in section 591 of this title,’’ in section 525 of title 28, U.S.C., 1940 ed., were omitted. Under such section 591, the provisions of such section 525 were inapplicable to the Territory of Alas- ka, but a later act of June 6, 1900, ch. 786, § 7, 31 Stat. 324, section 106 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, provided that clerks of the District Court for Alaska should perform the duties re- quired or authorized to be performed by clerks of United States courts in other districts. Provisions of section 525 of title 28, U.S.C., 1940 ed., relating to United States commissioners are incor- porated in section 637 of this title. Provisions of section 264 of title 28, U.S.C., 1940 ed., and section 1114(a) of title 26, U.S.C., 1940 ed., relating to administration of oaths and acknowledgments by judges, are incorporated in section 459 of this title. For distribution of other provisions of such section 1114(a) of title 26, see Distribution Table. Changes in phraseology were made. SENATE REVISION AMENDMENT Those provisions of this section which related to the Tax Court were eliminated by Senate amendment, therefore section 1114(a) of Title 26, U.S.C., Internal Revenue Code, was not a part of the source of this sec- tion upon final enactment. The Senate amendments also eliminated section 1114(a) of the Internal Revenue Code from the schedule of repeals. See 80th Congress Senate Report No. 1559. § 954. Vacancy in clerk position; absence of clerk When the office of clerk is vacant, the deputy clerks shall perform the duties of the clerk in the name of the last person who held that office. When the clerk is incapacitated, absent, or oth- erwise unavailable to perform official duties, the deputy clerks shall perform the duties of the clerk in the name of the clerk. The court may designate a deputy clerk to act temporarily as clerk of the court in his or her own name. (June 25, 1948, ch. 646, 62 Stat. 926; Pub. L. 92–310, title II, § 206(f), June 6, 1972, 86 Stat. 203; Pub. L. 104–317, title II, § 204(a), Oct. 19, 1996, 110 Stat. 3850.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 8, 222 and 327 (Mar. 3, 1911, ch. 231, §§ 4, 125, 221, 36 Stat. 1087, 1132, 1153). Section consolidates parts of sections 8, 222 and 327 of title 28, U.S.C., 1940 ed. Sections 8, 222 and 327 of title 28, U.S.C., 1940 ed., re- lated only to district courts, courts of appeals and the Supreme Court, respectively. This section applies to all Federal courts and is in conformity with section 548 [546] of this title relating to death of a United States marshal. The provision for continuance of the salary of the clerk of the Supreme Court until his successor is ap- pointed and qualifies was inserted to preserve existing law as declared in the unpublished opinion of Chief Jus- tice Taft, March 23, 1932 (filed in the Department of Justice), with respect to a deceased clerk of the Su- preme Court. Other provisions of sections 8, 222 and 327 of title 28, U.S.C., 1940 ed., are incorporated in sections 671, 711, and 751 of this title. Editorial Notes AMENDMENTS 1996—Pub. L. 104–317 substituted ‘‘Vacancy in clerk position; absence of clerk’’ for ‘‘Death of clerk; duties of deputies’’ in section catchline and amended text gen- erally. Prior to amendment, text read as follows: ‘‘Upon the death of any clerk of court, his deputy or deputies shall execute the duties of the deceased clerk in his name until his successor is appointed and quali- fies. ‘‘The compensation of a deceased clerk of the Su- preme Court may be paid to his personal representa- tives until his successor is appointed and qualifies.’’ 1972—Pub. L. 92–310 struck out ‘‘and remedies against’’ before ‘‘deputies’’ in section catchline and re- pealed provisions which related to the default or mis- feasance of a deputy in connection with the bond of a deceased clerk of a Federal court. § 955. Practice of law restricted The clerk of each court and his deputies and assistants shall not practice law in any court of the United States. (June 25, 1948, ch. 646, 62 Stat. 926.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 395 and 396 (Mar. 3, 1911, ch. 231, §§ 273, 274, 36 Stat. 1164). Section consolidates parts of sections 395 and 396 of title 28, U.S.C., 1940 ed. The remainder, relating to United States marshals and their deputies, is incor- porated in section 556 of this title. Sections 395 and 396 of title 28, U.S.C., 1940 ed., have been extended to include all clerks, deputies, and as- sistants. The revised section substitutes as simpler and more appropriate, the prohibition against practice of law ‘‘in any court of the United States.’’ (See reviser’s note under section 556 of this title.) For explanation of provisions omitted from sections 395 and 396 of title 28, U.S.C., 1940 ed., also see reviser’s note under section 556 of this title. Changes in phraseology were made. § 956. Powers and duties of clerks and deputies The clerk of each court and his deputies and assistants shall exercise the powers and perform the duties assigned to them by the court. (June 25, 1948, ch. 646, 62 Stat. 926.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 221, 244, 304 and 305 (Mar. 3, 1911, ch. 231, §§ 124, 139, 191, 192, 36 Stat. 1132, 1136, 1144; June 16, 1930, ch. 494, 46 Stat. 589). This section contains only a part of sections 221, 244, 304 and 305 of title 28, U.S.C., 1940 ed. The other provi- sions of such sections are incorporated in sections 604, 711, 831, 833, 834, 957 and 1926 of this title. Sections 221, 244, 304 and 305 of title 28, U.S.C., 1940 ed., related to the clerks of the circuit courts of ap- peals, the Court of Claims and the Court of Customs and Patent Appeals. The phrase ‘‘assigned to them by the court’’ was sub- stituted for the indefinite provision of section 221 of Page 338 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 957 title 28, U.S.C., 1940 ed., that the clerk of each circuit court of appeals ‘‘shall exercise the same powers and perform the same duties * * * as are exercised and per- formed by the clerk of the Supreme Court, so far as the same may be applicable.’’ This section is new insofar as it affects the Clerk of the Supreme Court and clerks of the district courts and the Customs Court. Existing law does not prescribe the powers and duties of those clerks. The duties of the clerk of the Customs Court have been prescribed by the rules of such court adopted May 29, 1936. Changes were made in phraseology. § 957. Clerks ineligible for certain offices A clerk of a court or any of his deputies shall not be appointed a commissioner, master, ref- eree or receiver in any case, unless there are special reasons requiring such appointment which are recited in the order of appointment. (June 25, 1948, ch. 646, 62 Stat. 926; Pub. L. 95–598, title II, § 234, Nov. 6, 1978, 92 Stat. 2667; Pub. L. 97–164, title I, § 122(b), Apr. 2, 1982, 96 Stat. 36; Pub. L. 98–353, title I, § 109, July 10, 1984, 98 Stat. 342.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 127, 304 (Mar. 3, 1911, ch. 231, §§ 68, 191, 36 Stat. 1105, 1144). Section consolidates section 127 with part of 304 of title 28, U.S.C., 1940 ed. Provisions of section 304 of title 28, U.S.C., 1940 ed., relating to appointment, powers, duties, and compensa- tion of the clerk of the Court of Customs and Patent Appeals, and table of fees are incorporated in sections 604, 831, 956 and 1926 of this title. Appointment and compensation of masters for dis- trict courts, see Rule 53(a) of the Federal Rules of Civil Procedure. The words ‘‘commissioner’’ and ‘‘referee’’ did not ap- pear in section 127 of title 28, U.S.C., 1940 ed. They were added to subsection (a) to remove possible ambiguity. Words ‘‘by the court or any judge thereof’’ in section 304 of title 28, U.S.C., 1940 ed., were omitted as surplus- age. Words ‘‘or assistant clerks’’ and ‘‘in any case’’ were added in subsection (b) to make the section applicable to that officer and consistent with the prohibition in this section against deputies of district court clerks. Minor changes were made in phraseology. Editorial Notes AMENDMENTS 1984—Pub. L. 98–353 struck out ‘‘district’’ before ‘‘court’’. 1982—Pub. L. 97–164 struck out designation ‘‘(a)’’ be- fore ‘‘A clerk of a district court’’ and struck out sub- sec. (b) which had provided that the clerk or assistant clerk of the Court of Customs and Patent Appeals could not be appointed a commissioner, master, or referee in any case. 1978—Pub. L. 95–598 directed the amendment of sec- tion by inserting ‘‘or bankruptcy court’’ after ‘‘district court’’, which amendment did not become effective pur- suant to section 402(b) of Pub. L. 95–598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective July 10, 1984, see section 122(a) of Pub. L. 98–353, set out as an Effec- tive Date note under section 151 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title. § 958. Persons ineligible as receivers A person holding any civil or military office or employment under the United States or em- ployed by any justice or judge of the United States shall not at the same time be appointed a receiver in any case in any court of the United States. (June 25, 1948, ch. 646, 62 Stat. 926.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 527 (May 28, 1896, ch. 252, § 20, 29 Stat. 184; Dec. 28, 1945, ch. 592, 59 Stat. 659). Provisions of section 527 of title 28, U.S.C., 1940 ed., relating to ineligibility of various persons as United States commissioner appear as section 631 of this title. Words ‘‘janitor of any Government building’’ were omitted as covered by words ‘‘person holding any civil or military employment under the United States’’ used in the revised section. The general language of the revised section was sub- stituted for the provisions of section 527 of title 28, U.S.C., 1940 ed., enumerating certain officers and em- ployees. The exception of Alaska by reference to ‘‘section 591 of this title’’ in section 527 of title 28, U.S.C., 1940 ed., was omitted as surplusage. Alaska is excluded by rea- son of the words ‘‘any court of the United States’’ which are limited by definitive section 451 of this title. Changes in phraseology were made. § 959. Trustees and receivers suable; manage- ment; State laws (a) Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or trans- actions in carrying on business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of jus- tice, but this shall not deprive a litigant of his right to trial by jury. (b) Except as provided in section 1166 of title 11, a trustee, receiver or manager appointed in any cause pending in any court of the United States, including a debtor in possession, shall manage and operate the property in his posses- sion as such trustee, receiver or manager ac- cording to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. (June 25, 1948, ch. 646, 62 Stat. 926; Pub. L. 95–598, title II, § 235, Nov. 6, 1978, 92 Stat. 2667.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 124, 125 (Mar. 3, 1911, ch. 231, §§ 65, 66, 36 Stat. 1104). Section consolidates part of section 124 of title 28, U.S.C., 1940 ed., with section 125 of the same title. The criminal penalty for violation of said section 124 is in- corporated in section 1911 of Title 18, Crimes and Crimi- nal Procedure. Section was extended and made applicable to trustees and debtors in possession. The provision at the end of subsection (a) for preserving the right to a jury trial was added to clarify the intent of section 125 of title 28, U.S.C., 1940 ed., as construed in Vany v. Receiver of To- ledo, St. L. and K.C. R.R. Co., C.C. 1895, 67 F. 379. Changes in phraseology were made.