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know. So that's the law. When a retired military goes into civil service, there is an offset. That's the law.

I might mention-in defense of Congress since the military was mentioned that there's not a member on this committee who was in the Congress, as far as I know, when the change was made on recomputation. That was done during the Eisenhower administration. That's changing the rules in the middle of the stream.

I have spent many, many days as a result, working ever since I came to the Congress in trying to change that recomputation law so the military will get what they thought they were getting when they came into the service.

Now, gentlemen, none of you expected to receive your annuity when you took the bench. Judge Harris, you were entitled to receive your retirement when you ascended to the bench because you had ample service

Judge Thornberry, I don't recall how many years you had in Congress at that time, but probably you would have been entitled to receive retirement up to this time; but you never expected it when you got on the bench.

Judge Bennett, you were entitled to an annuity when you took the bench, I'm sure, because you met the age-service requirements.

What I'm saying is that the rules have been changed as far as the attitudes of the retirement program and as far as the courts have been concerned, because the rule was changed to provide, by judicial edict, that a judge can receive his annuity while he's on active duty. Now this is different from any other Government employee that I know of that goes into any other Government service. Am I correct on that? Judge BENNETT. Only in part.

Mr. WHITE. How is it different?

Judge BENNETT. First, with reference to your comments about retired military, a retired reserve officer can work for the U.S. Government and draw his full military retired pay, no offset.

Mr. WHITE. He's not considered as a Government employee except in certain special categories. If he were full military active, then he would not be able to draw his full retirement.

Judge BENNETT. Correct; if he were a regular officer, you are correct. Mr. WHITE. Yes.

Judge BENNETT. You referred to my situation. My expectation of whether or not I would get an annuity when I retired, I fully expected to do so, and I did. And I am drawing such an annuity today.

Mr. WHITE. For how long, sir?

Judge BENNETT. For the period since I became a U.S. judge on July 7, 1972. Now, there is no requirement in the law whatsoever to prohibit that or I would not be receiving it. The statute is explicit. It says that if you are 55 years old and have 30 years of service, you are entitled to an immediate annuity, or if you have 20 years of service and are 60, or if you have as little as 5 years of service at 62. That's the only provision in the law on that. And in title 5, section 8332, subparagraph (e) states, "This subchapter on retirement does not affect the right of an employee or member to retired pay, pension, or compensation in addition to an annuity payable under this subchapter.'

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Now where the problem arose was that the Civil Service Commission simply misinterpreted the law.

Mr. WHITE. Judge Thornberry, were you receiving an annuity a year ago?

Judge THORNBERRY. No, Mr. Chairman.

Mr. WHITE. Judge Harris?

Judge HARRIS. No.

Mr. WHITE. The point I am making is, we now have situations that fostered this bill. As you have already mentioned, a change in the procedures have been followed by the Civil Service Commission and the Civil Service Commission has come to this committee and said, "We do not think this is right and active judges should receive their full annuity retirement while they are actively serving on the bench."

So we have this question, if we're talking about theories and looking at the whole aspect of retirement and the fairness to all persons. Well, we have the option, as the judge has mentioned, to do nothing to the law, which may not be fair; to change the law entirely, which I don't think would be fair; or to find some middle ground that would be fair. That's why we asked you gentlemen to help us on this. I see no reason why a man, when he retires, having paid for it, should not be able to receive his annuity and at the same time, of course, his wife is protected in the event that he dies, but I see nothing wrong with him receiving it just as he would an insurance policy. You have paid for it. Now your retirement as judges is not paid for by you. It's paid for in service, obviously, but as far as contributions, there are no contributions by Federal judges into a retirement system. You draw full pay upon retirement on the theory that you're always active and available, of course. We understand that. We're not derogating at all the role that you perform in this country. But if, at the minimum, you could not draw your retirement from your congressional or other duties, then certainly some moneys ought to be drawing interest. You should get your money back with interest, not just flat principal, because otherwise you're contributing more than you should. Do you see what I mean? I think there is something that you should get back for what you have invested. I think personally it should be the annuity after you retire.

I do have some problem with receiving the annuity while you are on the active bench. Now it may be that we cannot get around that. It may be that we just go ahead and make it prospective. These are just the alternatives this committee has.

Judget BENNETT. May I point out one thought you expressed there is interesting, and that is that maybe a judge should be given his contributions back. Now I would hope that

Mr. WHITE. Plus interest.

Judge BENNETT. Yes.

If you consider that seriously, I would like to suggest that you consider that he be given an option to do that, for this reason, Mr. Chairman: There would be some of us who would not want to receive it back, even with interest, because our survivor would lose her benefits.

None of us could serve as a judge as long as we have served in other capacities where we have earned survivor benefits, you see, and in my case, 3212 years. At 62 years of age, how can I serve another 3212 years? You see, it's not possible. So that would be a tremendous

loss. But, on the other hand, there might be some judge who had say only 5 years of service in the Justice Department or as a Member; maybe he should have the choice.

Mr. WHITE. What is the annuity to a survivor under the judge's retirement program?

Judge HARRIS. Mr. Chairman, I volunteer to speak on that subject,

now.

Mr. WHITE. Yes, sir.

Judge HARRIS. I hope to not get started on it because for 211⁄2 years, almost 3 years, the Judicial Conference has given me the responsibility to try to bring about the updating of the judicial survivors annuity program. And I'm sorry to say that that program is virtually defunct. We have learned that by 1984 it will be out of funds under the present situation. That has been extended by one or two things that have happened. We are working, we have now for over 2 years, in the Senate, trying to bring about a clear-cut decision as to which way to go.

The judicial survivorship program is very modest in comparison to the civil service program. There are many restrictions and limitations to it. And so Mr. Celler, Senator McKarrin, Senator Wiley in 1950 tried their best to undertake a program in this regard, and Senator Douglas, after bringing about the defeat of the proposal in the U. S. Senate, suggested contribution by judges. And in 1956, it was adopted. It has not been touched since then. And it is the kind of program that has no comparability to any other in the United States with reference to survivorship, and it's in danger at this time. Mr. WHITE. If a judge, who served 10 years, retired at the age of 70 and then should die, what would his widow draw?

Judge HARRIS. She'd draw 114 percent of the average of the last 3 years times the number of years served, which in this case would be 10. So if the average salary of the judge, as an example, would be $40,000-it's a little more than that right now-it would be 114 percent of that times 10, which would bring it to something less than $5,040. But around $5,000, I would say.

Mr. WHITE. $5,000 per year, and over 10 years, that would be $50,000? Judge HARRIS. Oh, no.

Mr. WHITE. Well, I'm trying to figure out what it is.

Judge HARRIS. $525 per year is what it would be.

Mr. WHITE. So the 10-year provision would be $5,000?

Judge HARRIS. Yes, sir.

Judge BENNETT. And, Mr. Chairman, there's no cost of living provision in the judicial survivors fund as there is in the civil service retirement fund.

One other significant distinction that might help the committee is that the maximum annuity a judge's survivor can get is 37 percent of the judge's average annual salary, whereas under your civil service survivor's plan, it's 55 percent.

Mr. WHITE. But, of course, in civil service, employees make contributions, whereas the judges don't.

Judge BENNETT. Oh, yes, we do.

Mr. WHITE. You make contributions?

Judge BENNETT. Yes, sir, we certainly do.

Mr. WHITE. Well, I'd like to know about that because I didn't understand that. What is your contribution?

Judge BENNETT. 3 percent for the judicial survivors program.
Mr. WHITE. For the survivors?

Judge BENNETT. Yes, sir.

Mr. WHITE. But, for your own retirement, there's no contribution? Judge BENNETT. Oh, no, sir.

Mr. WHITE. I will yield to Mr. Daniels.

Mr. DANIELS. Thank you, Mr. Chairman.

I am indeed delighted to see these three distinguished judges of the Federal courts here this morning. I am not personally acquainted with Judge Bennett, but I do remember Judge Thornberry and Judge Harris very, very well. I had the pleasure and honor to serve in the Congress with them and I do want to say to my younger colleagues on this committee that these gentlemen were highly respected and served with great distinction in the Congress of the United States.

However, I cannot help but make one observation. I think your service on the Federal bench has agreed with both of you very, very well. You look very, very young.

Judge THORNBERRY. Thank you.

Mr. DANIELS. I am surprised, Judge Harris, that you acknowledged this morning that you are 72 years of age. You are a real young 72. Judge HARRIS. I can't believe that 10 years have passed since I left this distinguished body.

Mr. DANIELS. All of you gentlemen have made impressive arguments this morning and I am indeed impressed by the weight of your arguments; they are very, very sound and thoughtful. And I want to assure you that we will give careful consideration to the testimony that you have presented here.

I feel like the chairman that you have earned your annuity, you paid for it, you entered into a contract with the Government, you worked for your annuity and you should receive it. And if the Civil Service Commission made a mistake, as the testimony indicates, that is not your fault and you should not be penalized for it.

I want to assure you that, as one member of this committee, I will carefully weigh your testimony. I am very much impressed by it. Judge THORNBERRY. Thank you, sir.

Mr. WHITE. Thank you, Mr. Daniels.

Mr. Taylor.

Mr. TAYLOR. Thank you, Mr. Chairman.

I do want to express my appreciation to the three distinguished judges who are here this morning, for their testimony, and for presenting the judicial side of this matter.

I am concerned that a person who has, in good faith, contributed into a retirement system, might be deprived of that retirement, regardless of what his future activities might be. I do realize that we have some problems in other sectors of the Federal Government, but I can't help but believe that people who were employed with the understanding, as a Federal judge-thinking that their retirement was vested, and would not be penalized, should now be penalized. I think that if we do do anything on this piece of legislation, we should give serious consideration to making it prospective rather than retroactive.

Mr. Chairman, at this time I would like to obtain permission to submit for the record a statement by Congressman Derwinski.

Mr. WHITE. Without objection, Mr. Derwinski's statement will be placed in the record at the end of these proceedings.

Judge BENNETT. Mr. Chairman, I wish to address Mr. Taylor on a question which he asked me in private conversation, and I was not able to answer at that time. And that was how big a problem is this between 600 and 700 Federal judges and is this, you know, a multimillion-dollar problem we have here?

Well, I didn't know. But-the Civil Service Commission on Thursday may be able to give you some more definite information on that. But on February 24, the Commission advised that there are four judges, myself included, who are drawing annuities. These are judges who are not drawing member annuities, but for our service in other Departments of the Government. In addition, there are six judges drawing member annuities.

There are six others that the Commission, as of that date, had identified as potentially eligible, but who had not filed any claim with the Commission.

And, finally, there are approximately 70 judges with at least 5 years of employee civilian service who, if and when they get to be 62, would presumably be eligible, except that they withdrew their contributions from the retirement fund.

Now, that is all it amounts to.

Mr. TAYLOR. In the computation of your retirement, Judge Bennett, you only draw a retirement based upon your years of public service, not including your judicial service, is this true?

Judge BENNETT. That is correct, sir.

Mr. TAYLOR. In other words, your retirement is based upon your tenure in the Congress and whatever Federal service you might have? Judge BENNETT. Yes; none of us are given any credit for our judicial service under the civil service retirement system.

Mr. TAYLOR. Now, Judge Thornberry, as I understand it, you are not drawing your retirement?

Judge THORNBERRY. No, sir, as I tried to make clear, I had on the assurance that I had received from the Civil Service Commissionbeen told that I could apply on my 60th birthday for retirement benefits and they would be suspended until I retired or took senior status as a U.S. Federal judge.

Mr. TAYLOR. What's the difference between a retired judge and a judge on senior status?

Judge THORNBERRY. Well, the simplest explanation is that a judge who says he is retired does not expect to work, but a judge who takes senior status continues to carry a load, just as Judge Harris did. JudgeHarris took senior status and he expects to continue to work and let another judge be appointed in his place who can also perform the work. That is the simplest explanation.

Mr. TAYLOR. Judge Harris, do you sit with any degree of regularity, as a judge of senior status?

Judge HARRIS. Mr. Taylor, I have been busier since I took senior status than I think I have in all of the 10 years I have been there. Except the fact I'm subject to the same experience of every other

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