28 U.S. Code § 631 - Appointment and tenure

Based on title 28, U.S.C., 1940 ed., §§ 526 and 527, sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e, 256d, 395e, 403c–5, 403h–5, 404c–5, and 408m of title 16, U.S.C., 1940 ed., Conservation, and section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (May 27, 1894, ch. 72, § 5, 28 Stat. 74; May 28, 1896, ch. 252, §§ 19, 20, 29 Stat. 184; Apr. 12, 1900, ch. 191, § 34, 31 Stat. 84; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; Jan. 7, 1913, ch. 6, 37 Stat. 648; Aug. 22, 1914, ch. 264, § 6, 38 Stat. 700; June 30, 1916, ch. 197, § 6, 39 Stat. 245; Aug. 21, 1916, ch. 368, § 6, 39 Stat. 523; Mar. 2, 1917, ch. 145, § 41, 39 Stat. 965; June 2, 1920, ch. 218, §§ 7, 8, 41 Stat. 733; Mar. 4, 1921, ch. 161, § 1, 41 Stat. 1412; Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919; Apr. 25, 1928, ch. 434, § 6, 45 Stat. 460; Apr. 26, 1928, ch. 438, § 6, 45 Stat. 464; Mar. 2, 1929, ch. 583, § 6, 45 Stat. 1538; Apr. 19, 1930, ch. 200, § 6, 46 Stat. 228; June 25, 1935, ch. 309, § 1, 49 Stat. 422; Aug. 19, 1937, ch. 703, § 5, 50 Stat. 702; Mar. 26, 1938, ch. 51, § 2, 52 Stat. 118; June 25, 1938, ch. 684, § 1, 52 Stat. 1164; June 28, 1938, ch. 778, § 1, 52 Stat. 1213; Mar. 4, 1940, ch. 40, § 2, 54 Stat. 43; Mar. 6, 1942, ch. 150, § 5, 56 Stat. 134; Mar. 6, 1942, ch. 151, § 5, 56 Stat. 137; Apr. 29, 1942, ch. 264, § 5, 56 Stat. 260; June 5, 1942, ch. 341, § 5, 56 Stat. 318; Dec. 28, 1945, ch. 592, 59 Stat. 659, 660; Apr. 23, 1946, ch. 202, § 1, 60 Stat. 119, 120).

Section consolidates section 526 and a portion of 527, both of title 28, U.S.C., 1940 ed., with provisions of sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e, 256d, 395e, 403c–5, 403h–5, 404c–5 and 408m of title 16, U.S.C., 1940 ed., and provisions of section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions, relating to appointment of United States commissioners. For other provisions of said sections see Distribution Table.

Some of the provisions of section 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions were retained in that title.

The provision of sections 395e, 403c–5, 404c–5, and 408m of title 16, U.S.C., 1940 ed., for appointment of the Park Commissioner in the Hawaii National Park, Shenandoah National Park, Great Smoky Mountains National Park, Mammoth Cave National Park and Isle Royale National Park upon “the recommendation of the Secretary of the Interior” was omitted as inconsistent not only with other provisions of this title but with other statutes applicable to other national parks.

All such park commissioners are United States commissioners and the revision of these sections makes possible uniformity and consistency in administrative matters concerning such commissioners. (See, also, sections 604 and 634 of this title.)

Words “the Director of the Administrative Office of the United States Courts” were substituted for “Attorney General” in section 526 of title 28, U.S.C., 1940 ed., in view of the general supervision by the Director over clerks and commissioners under section 601 et seq. of this title.

See, also, section 751 of this title prohibiting clerks from receiving compensation in another capacity.

First sentence of subsection (b) was substituted for the provision in section 527 of title 28, U.S.C., 1940 ed., prohibiting specified persons from acting as commissioners.

Words “at such places in the district as may be designated by the district court,” in section 526 of title 28, U.S.C., 1940 ed., were omitted as unnecessary.

A provision in section 526 of title 28, U.S.C., 1940 ed., that commissioners should have the same powers and duties as are conferred and imposed by law, was omitted as superfluous.

The phrase in sections 526 and 527 of title 16, U.S.C., 1940 ed., “except as provided in section 591” and section 591, the effect of which was to except Alaska from this section, were omitted as unnecessary. This revised section by its terms limits the section and chapter 43 of this title to commissioners appointed by a “district court,” which includes the courts enumerated in chapter 5 of this title but not those of Alaska, Canal Zone, or Virgin Islands.

Sections from title 16, U.S.C., 1940 ed., contained no tenure provisions.

Changes in phraseology were made.

Prior residence requirement for national park commissioners in section 635.—Based on sections 1a and 403c–9 of title 16, U.S.C., 1940 ed., Conservation (Aug. 19, 1937, ch. 703, § 8, 50 Stat. 702; June 28, 1938, ch. 778, § 1, 52 Stat. 1213).

Section consolidates section 1a with part of section 403c–9 of title 16, U.S.C., 1940 ed., relating to residence of a national park commissioner.

The provisions of sections 1a and 403c–9 of title 16, U.S.C., 1940 ed., relating to designation by the Secretary of the Interior of some place of residence reasonably adjacent to the park was modified by making such designation subject to the approval of the appointing court.

By Senate amendment, “Big Bend” and “Crater Lake” were inserted in subsection (a) of this section, and section 158a of title 16, U.S.C., which was derived from act May 15, 1947, ch. 55, § 1, 61 Stat. 91, accordingly became an additional source of this section, such Act being included in the schedule of repeals. See 80th Congress Senate Report No. 1559.

As finally enacted, act May 15, 1947, ch. 57, 61 Stat. 92, which amended section 403c–5 of title 16, U.S.C., became an additional source of this section and was accordingly included in the schedule of repeals by Senate amendment. See 80th Congress Senate Report No. 1559.

This amendment conforms the language of section 631(b) to the provisions of section 35 of the Bankruptcy Act, as amended by the act of June 28, 1946 (§ 3, 60 Stat. 324), that full-time referees in bankruptcy may not be appointed United States Commissioners.

This amendment also removes an ambiguity from section 631(b) by making it clear that the Director of the Administrative Office of the United States Courts has power to establish maximum limits of compensation to be received for performing the combined offices of commissioner and clerk or deputy clerk. This was the intent of sections 631 and 751 of title 28. (See the fifteenth paragraph of the reviser’s note to the latter section, H. Rept. No. 308, April 25, 1947, p. A90, to accompany H.R. 3214, 80th Cong.)

Subsections (j) and (k) of this section, referred to in subsec. (e), probably mean subsecs. (j) and (k) prior to amendment by Pub. L. 103–353, § 2(c)(1), (2), Oct. 13, 1994, 108 Stat. 3169, which redesignated subsec. (k) as (j) and struck out former subsec. (j).

2023—Subsec. (c). Pub. L. 118–31 inserted “members of the Space Force” after “Coast Guard” second place appearing.

2010—Subsec. (a). Pub. L. 111–174 struck out “(including any judge in regular active service and any judge who has retired from regular active service under section 371(b) of this title, when designated and assigned to the court to which such judge was appointed)” after “Northern Mariana Islands” in the first sentence.

2008—Subsec. (a). Pub. L. 110–177 substituted “Northern Mariana Islands (including any judge in regular active service and any judge who has retired from regular active service under section 371(b) of this title, when designated and assigned to the court to which such judge was appointed) shall appoint” for “Northern Mariana Islands shall appoint”.

2000—Subsec. (a). Pub. L. 106–518, § 201(1), substituted “The judges of each United States district court and the district courts of the Virgin Islands, Guam, and the Northern Mariana Islands shall appoint United States magistrate judges in such numbers and to serve at such locations within the judicial districts as the Judicial Conference may determine under this chapter. In the case of a magistrate judge appointed by the district court of the Virgin Islands, Guam, or the Northern Mariana Islands, this chapter shall apply as though the court appointing such a magistrate judge were a United States district court.” for “The judges of each United States district court and the district court of the Virgin Islands shall appoint United States magistrate judges in such numbers and to serve at such locations within the judicial district as the conference may determine under this chapter. In the case of a magistrate appointed by the district court of the Virgin Islands, this chapter shall apply as though the court appointing such magistrate judge were a United States district court.”

Subsec. (b)(1). Pub. L. 106–518, § 201(2), inserted “the Territory of Guam, the Commonwealth of the Northern Mariana Islands,” after “Commonwealth of Puerto Rico,”.

1994—Subsec. (j). Pub. L. 103–353, § 2(c), redesignated subsec. (k) as (j), substituted “chapter 43 of title 38” for “the terms of subsection (i) of this section”, and struck out former subsec. (j) which related to uncompensated leave of absence for magistrate inducted into the Armed Forces and reinstatement as magistrate in regular service.

Subsecs. (k), (l). Pub. L. 103–353, § 2(c)(2), redesignated subsecs. (k) and (l) as (j) and (k), respectively.

1990—Subsec. (f). Pub. L. 101–650 substituted “180” for “60”.

1989—Subsec. (b)(1). Pub. L. 101–45 struck out “and he is a member in good standing of the bar of the highest court of the State in which he is to serve, or, in the case of an individual appointed to serve—

“(A) in the District of Columbia, a member in good standing of the bar of the United States district court for the District of Columbia; or

“(B) in the Commonwealth of Puerto Rico, a member in good standing of the bar of the Supreme Court of Puerto Rico, and in the Virgin Islands of the United States, a member in good standing of the bar of the district court of the Virgin Islands;” after “Virgin Islands of the United States,” and struck out “the first sentence of” before “this paragraph”.

1988—Subsec. (e). Pub. L. 100–659 substituted “(k)” for “(j)” in introductory text, “(j)” for “(i)” in par. (3), and “(i)” for “(h)” in par. (5).

Subsec. (l). Pub. L. 100–702 added subsec. (l).

1986—Subsec. (d). Pub. L. 99–651 substituted “Except as otherwise provided in sections 375 and 636(h) of this title, no” for “No”, and “a majority” for “the unanimous”, and inserted “which is taken upon the magistrate’s attaining age seventy and upon each subsequent anniversary thereof,” after “courts,”.

1982—Subsec. (b)(1). Pub. L. 97–230 substituted “He has been for at least five years a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and he is a member” for “He is, and has been for at least five years, a member”.

1979—Subsec. (a). Pub. L. 96–82, § 3(a), substituted “Where the conference deems it desirable, a magistrate may be designated to serve in one or more districts adjoining the district for which he is appointed” and “Such a designation shall be made by the concurrence of a majority of the judges of each of the district courts involved and shall specify the duties to be performed by the magistrate in the adjoining district or districts” for “Where an area under the administration of the National Park Service, or the United States Fish and Wildlife Service, or any other Federal agency, extends into two or more judicial districts and it is deemed desirable by the conference that the territorial jurisdiction of a magistrate’s appointment include the entirety of such area, the appointment or reappointment shall be made by the concurrence of a majority of all judges of the district courts of the judicial districts involved, and where there is no such concurrence by the concurrence of the chief judges of such district courts”.

Subsec. (b). Pub. L. 96–82, § 3(b), substituted “appointed or reappointed to serve” for “appointed or serve” in provisions preceding par. (1), inserted “, and has been for at least 5 years,” after “He is” in provisions of par. (1) preceding subpar. (A), struck out subpar. (C) relating to service by members an good standing of the bar of the highest court of one of the two or more States where the area involved is under the administration of the National Park Service, the United States Fish and Wildlife Service, or any other Federal agency that extends to two or more States.

Subsec. (b)(5). Pub. L. 96–82, § 3(c), added par. (5).

Subsec. (f). Pub. L. 96–82, § 3(d)(2), added subsec. (f). Former subsec. (f) redesignated (g).

Subsecs. (g) to (k). Pub. L. 96–82, § 3(d)(1), redesignated former subsecs. (f) to (j) as (g) to (k), respectively.

1978—Subsec. (c). Pub. L. 95–598 directed the amendment of subsec. (c) by substituting “of the conference,” for “of the conference, a part-time referee in bankruptcy or” and “magistrate and” for “magistrate and part-time referee in bankruptcy,”, which amendment did not become effective pursuant 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.

1976—Subsec. (a). Pub. L. 94–520, § 2(1), (2), inserted “and the district court of the Virgin Islands” after “United States district court”, and provided that in the case of a magistrate appointed by the district court of the Virgin Islands, this chapter was to apply as though the appointing court were a United States District Court.

Subsec. (b). Pub. L. 94–520, § 2(3), provided that a magistrate appointed under this chapter to serve in the Virgin Islands, must be a member in good standing of the bar of the district court of the Virgin Islands.

1968—Pub. L. 90–578 revised provisions of this section generally as described for subsecs. (a) to (j) hereunder, substituting provisions for appointment and tenure of magistrates for appointment and tenure of commissioners.

Subsec. (a). Pub. L. 90–578 provided for determination of number of appointees by the conference, rather than by the district court, authorized the determination of location of service, omitted as superseded by existing provisions prior provisions for appointments for certain specified national parks, required appointments in a district court with more than one judge to be concurred in by majority of all the judges, and by the chief judge in absence of such concurrence, required such concurrence of judges of district courts or concurrence of chief judges in absence of such concurrence by the judges where appointments are for an area under administration of the National Park Service, or the United States Fish and Wildlife Service, or any other Federal agency, which extends into more than one judicial district which should be served in its entirety by one magistrate, and omitted last par. prescribing appointment record and notice. See subsec. (g) of this section.

Subsec. (b). Pub. L. 90–578 added subsec. (b). Prior provisions which were eliminated prohibited holding dual offices when the person held a civil or military office or employment under the United States or was employed by a Federal justice or judge, but such restriction was made inapplicable to a part-time referee in bankruptcy, or to a clerk or deputy clerk of a Federal court when approved by the Director and compensated in an aggregate amount fixed by the Director for performance of dual duties. See subsec. (c) of this section.

Subsec. (c). Pub. L. 90–578 incorporated provisions of former subsec. (b) of this section in provisions designated as subsec. (c), omitted express restriction against holding dual offices when employed by a Federal justice or judge, provided for approval of the conference with respect to part-time service as a magistrate of part-time referee in bankruptcy or clerk or deputy clerk of a Federal court, formerly requiring approval of the Director as to service of clerk or deputy clerk of court as a commissioner, made former provisions as to aggregate amount of compensation for service as clerk or deputy clerk of court and commissioner applicable to part-time service as magistrate of part-time referee in bankruptcy, clerk and deputy clerk of court, and authorized appointment of retired military personnel, except National Guard disbursing officers who are on a full-time salary basis, as United States magistrates. Former subsec. (c) which provided for a four year term of office of commissioner unless sooner removed by the district court. See subsecs. (e) and (h) of this section.

Subsec. (d). Pub. L. 90–578 added subsec. (d).

Subsec. (e). Pub. L. 90–578 substituted provisions designated as subsec. (e) for term of office of eight and four years for full-time and part-time officers and for expiration of term of office for provisions of former subsec. (c) of this section for term of four years unless sooner removed by the district court.

Subsec. (f). Pub. L. 90–578 added subsec. (f).

Subsec. (g). Pub. L. 90–578 incorporated provisions of last par. of former subsec. (a) of this section in provisions designated as subsec. (g) and provided expressly for appointment by a judge or judges of a district court.

Subsecs. (h) to (j). Pub. L. 90–578 added subsecs. (h) to (j).

1956—Subsec. (a). Act July 25, 1956, provided for two United States Commissioners for the Cumberland Gap National Historical Park.

1952—Subsec. (a). Act July 9, 1952, provided for two United States Commissioners for the Great Smoky Mountains National Park, in place of one.

1949—Subsec. (b). Act May 24, 1949, amended second sentence generally. Prior to amendment, second sentence read as follows: “This subsection shall not apply to a referee in bankruptcy nor shall it apply to a clerk or deputy clerk of a court of the United States whose appointment as commissioner is approved by the Director of the Administrative Office of the United States Courts.”

“United States magistrate judges”, “magistrate judge”, and “magistrate judge’s” substituted for “United States magistrates”, “magistrate”, and “magistrate’s”, respectively, wherever appearing in text pursuant to section 321 of Pub. L. 101–650, set out as a note below.

Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117, provided that:

Amendment by Pub. L. 103–353 effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103–353, set out as an Effective Date note under section 4301 of Title 38, Veterans’ Benefits.

Amendment by Pub. L. 100–659 effective Nov. 15, 1988, and applicable to bankruptcy judges and magistrate judges who retire on or after Nov. 15, 1988, with exception for judges and magistrate judges retiring on or after July 31, 1987, see section 9 of Pub. L. 100–659, as amended, set out as an Effective Date note under section 377 of this title.

Amendment by Pub. L. 99–651 effective Jan. 1, 1987, see section 203 of Pub. L. 99–651, set out as a note under section 155 of this title.

Pub. L. 96–82, § 3(g), Oct. 10, 1979, 93 Stat. 645, provided that:

Pub. L. 90–578, title IV, § 403, Oct. 17, 1968, 82 Stat. 1119, provided that:

Pub. L. 96–82, § 1, Oct. 10, 1979, 93 Stat. 643, provided:

Pub. L. 90–578, § 1, Oct. 17, 1968, 82 Stat. 1107, provided:

This chapter is popularly known as the “Federal Magistrates Act”.

Pub. L. 90–578, title V, § 501, Oct. 17, 1968, 82 Stat. 1119, provided that:

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Pub. L. 96–82, § 3(e), Oct. 10, 1979, 93 Stat. 645, provided that:

Pub. L. 96–82, § 3(f), Oct. 10, 1979, 93 Stat. 645, provided that magistrates serving prior to the promulgation of magistrate selection standards and procedures by the Judicial Conference of the United States could only exercise the jurisdiction conferred under section 636(c) of this title after having been reappointed under such standards and procedures or after having been certified as qualified to exercise such jurisdiction by the judicial council of the circuit in which the magistrate served.

Pub. L. 96–82, § 9, Oct. 10, 1979, 93 Stat. 647, provided for a study by the Judicial Conference of the United States to begin within 90 days after the effective date of Pub. L. 96–82, which was approved Oct. 10, 1979, and to be completed and made available to Congress within 24 months thereafter respecting the future of the magistrate system.

Pub. L. 96–82, § 10, Oct. 10, 1979, 93 Stat. 647, provided that:

Pub. L. 90–578, title IV, § 401, Oct. 17, 1968, 82 Stat. 1118, provided that:

Pub. L. 90–578, title IV, § 402, Oct. 17, 1968, 82 Stat. 1118, provided that:

Pub. L. 86–258, Sept. 14, 1959, 73 Stat. 546, required the United States District Court for the District of Arizona to appoint a special commissioner for the Grand Canyon National Park, Arizona, and provided for the term, jurisdiction, and salary of the commissioner.

Act July 9, 1952, ch. 609, § 2, 66 Stat. 509, provided that the jurisdiction of the United States commissioner for the Great Smoky Mountains National Park on July 9, 1952, would be limited to the portion of the park situated in North Carolina.