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RECOMMENDATIONS FOR AMENDING H.R. 11738
Hon. Marion T. Bennett, Associate Judge, U.S. Court of Claims, Washington, D.C.:
I. Legislation should not be enacted; (a) it is not supported by the Judicial Conference, and (b) it is not equitable to Judges already on the bench.
II. Legislation, if enacted, should be amended to be prospective only; to do otherwise would possibly raise constitutional doubts. Hon. Homer Thornberry, U.S. Circuit Judge, Austin, Tex.:
I. If legislation is enacted, it should be amended to be prospective only. Hon. Oren Harris, U.S. Senior District Judge, El Dorado, Ark.:
I. If legislation is enacted, should be amended so as to be prospective only, to prevent the possibility of court action against the
I. The Commission supports the enactment of legislation with amendments to include that the Commission be given the authority to accept redeposit of refunds paid to active or retired justices and judges who obtained those refunds based on the Commission's erroneous advice that payment of annuity to them would be barred by the retirement law; and that any legislative bar to payment of annuity to justices and judges be made applicable only to justices and judges appointed after enactment.
II. The Commission opposes enactment of section 2 of the bill since it would set an undesirable precedent. Paul G. Dembling, General Counsel, General Accounting Office:
I. Favors the enactment of H.R. 11738, so far as it covers withholding of the annuity for the period of active service as judge.
II. The report issued on July 30, 1974, “Federal Retirement Systems: Key Issues, Financial Data, and Benefit Provisions," points out that the need for establishment of a centralized mechanisin for monitoring the development, interrelationship, and cost of Government retirement systems.
CIVIL SERVICE ANNUITY PAYMENTS TO JUSTICES
TUESDAY, MARCH 2, 1976
U.S. HOUSE OF REPRESENTATIVES,
Washington, D.C. The subcommittee met at 9:15 a.m., in room 311, Cannon House Office Building, Hon. Richard C. White (chairman of the subcommittee) presiding.
Mr. WHITE. The subcommittee will come to order.
The subcommittee has convened today to begin hearings and deliberations on H.R. 11738, a bill introduced by Congressman David N. Henderson. A further hearing is scheduled on this subject matter for Thursday in room 304 at 9 a.m.
As I understand the situation, this bill presently affects only those Federal retirees who have had their civil service annuities suspended upon being reemployed by the Federal Government, by reason of their acceptance of an appointment to the Federal bench.
Under the present law, Federal annuitants who accept reemployment with the Federal Government must have their salaries reduced by the amount of their annuity. However, the civil service retirement law only provides for reduction of salaries, and not for suspension of annuities, and there is no specific provision for the alternative action taken by the Commission of suspending annuities.
Although Congress provided that judges of the United States were not subject to the provisions of the Retirement Act, according to the amendments of 1956, it did not speak directly to whether Congress expected that an annuitant who became a judge would continue to have his annuity suspended or would become subject to reduction of his judicial salary by the amount of his annuity; neither did the amendments provide that such annuitant should get both annuity and judicial salary.
A preliminary question, if we accept the assumption that it is proper to reduce a reemployed annuitant's salary by the amount of his annuity, is whether or not it is equitable not to include under the law any class of reemployed annuitants, who are able to draw full salary as active employees, appointed or not, of the Federal Government.
Our first witness today will be a panel of three judges: Judge Homer Thornberry, U.S. Circuit Judge, Austin, Tex., who has previously served in Congress; Judge Marion Bennett, Court of Claims, Washington, D.C.; and Judge Oren Harris, U.S. District Judge, El Dorado,
-Ark., who also served in Congress. Both of the gentlemen who previously served in Congress had very distinguished careers and were very highly regarded and had a great impact on the Congress prior to ascending to the bench. The first of the panel will be introduced by Congressman J.J. Pickle of Texas.
Mr. Pickle, would you come forward with Judge Thornberry.
STATEMENT OF HON. J. J. PICKLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. PICKLE. Mr. Chairman, I thank you for giving me the chance to present Judge Thornberry to this subcommittee.
May I first, though, deviate just for a moment to acknowledge the presence of one of the panelists, the Honorable Oren Harris.
When I first came to Congress in 1963, I was assigned to Mr. Harris' committee. I want to say to this subcommittee, as I have said to many in the House, I don't think we have ever had a more capable and outstanding policy man who was chairman of a committee than Oren Harris. It was my great privilege to serve under this able man and I'm just glad he's here, and even though I haven't been asked to present him, I'll just throw that one in because I think so highly of the gentleman.
Now, Mr. Chairman, the man I'm going to present to this subcommittee is known to many of you. He's a graduate of the University of Texas, a former member of the Texas Legislature, district attorney of Austin, city councilman of Austin, and then, of course, elected to Congress, where he served for 14 years.
The judge left Congress after having been appointed by President John F. Kennedy to the Federal judgeship for the Western District of Texas.
Later he was appointed by President Lyndon B. Johnson to be on the Fifth Federal Circuit.
At one time, he was nominated to be a member of the Supreme Court of the United States, but there never was a vacancy because of an unusual set of circumstances that developed around Judge Fortas, most unfortunate for Judge Fortas and for Judge Thornberry. And there, but for the grace of God, he might be right across the street today.
This man served with great distinction in the House of Representatives, serving in a key position on the Rules Committee for several years.
Now Judge Thornberry and I had the distinction of having represented the 10th District of Texas. He succeeded President Lyndon Johnson. I, in turn, succeeded Judge Thornberry.
Both of us have been termed over the years as "being President Johnson's Congressmen." Now we always said that it was the other way around, that he was our constituent. The President never did see the humor in that, but we were always very proud of the fact that we were from the 10th District.
Judge Thornberry is one of the kindest, most considerate, and compassionate men that we have on the bench today. And I think one of the outstanding jurists in America and I'm proud to present him to this subcommittee this morning.
Mr. WHITE. Thank you, Mr. Pickle.
I think the hearing would best be served if all three judges were to come to the table. Each of you can read your statement as we continue.
STATEMENTS OF HON. MARION T. BENNETT, ASSOCIATE JUDGE,
U.S. COURT OF CLAIMS, WASHINGTON, D.C.; HON. HOMER THORNBERRY, U.S. CIRCUIT JUDGE, AUSTIN, TEX.; AND HON. OREN HARRIS, U.S. SENIOR DISTRICT JUDGE, EL DORADO, ARK. Judge THORNBERRY. This is Judge Marion T. Bennett of the Court of Claims, Mr. Chairman, and he has been designated by the Chief Justice to speak for the Judicial Conference and I believe it would be best to let him speak first.
Mr. WHITE. All right.
Judge THORNBERRY. Before Congressman Pickle leaves, I want to thank him for his generous introduction, and I can assure him that he will still have my interest in him.
Mr. WHITE. Do you think that Mr. Pickle needs your active support there in the 10th District? [Laughter.]
Judge HARRIS. May I also interject, Mr. Chairman, that I am grateful for the very warm comments that Congressman Pickle made for you and I cherish the association I had with him and the other members of that great committee.
Mr. WHITE. Thank you, Judge Harris.
Mr. TAYLOR. I would like to take this opportunity to welcome Judge Bennett. Judge Bennett served the Congress in the district that I now represent.
Mr. WHITE. I didn't realize that.
as a Congressman of distinction, and prior to his service, his father, Phil A. Bennett, also served in Congress from that congressional district. He's now Judge of the Court of Claims. I want to take this opportunity of welcoming Judge Bennett before our committee this morning.
Mr. WHITE. Thank you, Mr. Taylor. I didn't realize that Judge Bennett had also served in the Congress. Now, any way you gentlemen wish to proceed is fine.
Judge THORNBERRY, I suggested that since he has been designated to speak for the Judicial Conference, I think it would be best to let him proceed first, Mr. Chairman.
Mr. WHITE. Judge Bennett.
STATEMENT OF HON. MARION T. BENNETT, ASSOCIATE JUDGE,
U.S. COURT OF CLAIMS, WASHINGTON, D.C. Judge BENNETT. Thank you, Mr. Chairman.
I do, as Judge Thornberry has stated, have the honor to have been designated to testify here on behalf of all the Federal judges. And to prove that he's telling you the truth, I have a letter here from Rowland F. Kirks, the Director of the Administrative Office of the U.S. Courts under date of February 26 addressed to me, Judge Marion T. Bennett, stating:
I am writing to advise you that the Chief Justice and the Executive Committee of the Judicial Conference approve of your appearing and testifying in opposition to the enactment of H.R. 11738. They unanimously support the position of the Committee on Court Administration in opposing enactment of the Bill.
We appreciate the opportunity extended by the committee to present our views this morning, since this legislation affects only Federal judges.
Judge Thornberry and Judge Harris are principally interested in this legislation as it affects senior or retired judges and judges who have member annuities. While I served as a Member of Congress, my service was prior to 1955 when this member annuity legislation (5 U.S.C. 8338 (b)) went into effect, so I'm not eligible for a member annuity, but I have been awarded an annuity by the Civil Service Commission based upon 3212 years Government service, including my 8 years on the Hill.
Now we all support the position of the Judicial Conference of the United States that this legislation should not be enacted, and the principal thrust of my remarks will be addressed to the position of the Judicial Conference, and the other two judges will address you simply upon their own individual situations.
However, before getting into the position of the Conference, I should like to say a thing or two about this bill which pertains to all of us.
It is the product of a recent realization by the Civil Service Commission that it has long acted without authority of law in suspending payment of civil service retirement annuities earned by Federal judges before they became judges and in paying such annuities only when active judges became senior judges. The Commission has now accepted the legal advice of the General Accounting Office, the Attorney General, and its own general counsel that it cannot do this without new statutory authority; hence these bills.
As we understand it, this last bill would in no way affect the rights of survivors of judges whose rights vest when the judge's right to an annuity vests by reason of his age and length of prior service, and accumulate from that date. However, the bill would bar payment of any annuity to the judge himself while he lives and draws the salary of his office. His annuity would be impounded or confiscated.
The first bill, H.R. 11299, would appear to confiscate not only the judge's annuity, but that of his survivor as well.
Now there are several general approaches to this legislation which can be taken by the committee. I set forth on my prepared statement, which is before you, on page 3, four of these positions. I will not take your time to reiterate them this morning.
But I would like to say something about the retroactive nature of these bills in their present form. It is my impression, Mr. Chairman, from conversations with officials of the Civil Service Commission and from conversations other judges have had with them, including Judge Thornberry, that they do not desire that this legislation be made retroactive. Now they will have to speak for themselves to you about this when they appear here on Thursday, but upon this assumption, I would trust that you would agree with them and would agree with us and that little more need be said about it.