case that individual will receive the benefit of every cost-of-living increase through those years.

Mr. WHITE. There are a lot of judges that have been retired already. I think I may have asked you this before; would they then be able to go back and get all the backpay that they were entitled to when they were on the active bench?

Mr. TINSLEY. Yes; they would.

Mr. WHITE. Plus any cost-of-living increases at that time?

Mr. TINSLEY. Yes.

Mr. WHITE. You have to recompute their existing annuities, too, because they would be based on the revised cost-of-living index. Mr. TINSLEY. That is correct.

Mr. HENDERSON. Thank you, Mr. Chairman.

I have had a chance to read the statement that you have presented. I do not want to be repetitious. Just let me say that I am glad that we have come to grips with the problem, and I am inclined at this time to support the position the Commission has proposed this morning as an answer to the argument that the judges made with regard to the ex post facto effect of the bill as introduced by Mr. Derwinski and I. We did not make it apply only to those judges that come on the bench subsequent to the enactment of the legislation.

It seems to me that, at least on that point, we are changing the law prospectively, and everyone will have an opportunity to know what the law is.

With regard to the survivors of the judges whose pay will be suspended in the future-and it will also apply to those Members of Congress, such as Judge Thornberry, who under the present law have their annuities suspended-that would be the effect of the death of the judge before he went into senior judge status, and became eligible for drawing the annuity himself?

Let us take the example of Judge Thornberry.

I do not like to talk about his demise, or suppose that he might die, but if that were the case, would his surviving spouse immediately become entitled to the civil service or Member's annuity?

Mr. TINSLEY. During the period of suspension, yes, Mr. Chairman. She would, if he had provided such.

Mr. HENDERSON. And our legislation would not change that?

Mr. TINSLEY. It would not change that. I think the only area where survivor's protection would be required, and where some technical change in the law might be necessary, is in the case of those individuals who withdrew their money from the retirement fund who we are now recommending put that back in. We may need a technical amendment there, or some amendment, to change, if you would accept such a recommendation, to enable a survivor of someone who may have died in the interim to now be able to come in.

Mr. HENDERSON. Then with that basic protection, which I think we certainly would want to insure, upon the death of a judge whose annuity would be suspended, would the surviving spouse receive the annuity based upon the service of the former member or the former civil service employee, based upon the salary earned during that

period of service or would that annuity then be based upon the salary received as a judge?

Mr. TINSLEY. The law as written-and this would not affect itwould work this way. The salary at the time of separation, either as a Member or from the executive branch, would be controlling. In fact, the retirement law in existence at the time of the separation would be what would control it. So, the survivor in this case would be receiving an annuity, 55 percent of whatever the annuity was of the former Member or the member of the executive branch who is serving. Now, that survivor, too, could conceivably be entitled to survivor benefits under the judicial retirement system.

Mr. HENDERSON. Mr. Chairman, I would like to have the views of the Commission, because it seems to me that if you take the case of a former Member of Congress who retires and then is appointed in the executive branch, not the judiciary, his retirement annuity is suspended during that time that he is serving in the executive. Am I correct on that?

Mr. TINSLEY. If he is serving in an appointive or an elective position, his annuity is suspended.

Mr. HENDERSON. Right. But during that time, on his-let us say a high salary that he had as a Member-he is earning additional annuity, additional retirement benefits based on that high salary. But he is also paying into the retirement fund, is he not?

Mr. TINSLEY. If he stays one year, though, he can get a recomputation of the entire service.

Mr. HENDERSON. But a former Member who goes to the bench does not pay into the retirement fund, and it does not seem to me we are talking about equity to then recompute his retirement based upon his higher judicial salary.

Mr. TINSLEY. That comes about by virtue of the amendments made to the Retirement Act at the recommendation of the Judicial Conference. I mentioned a little earlier, Mr. Chairman, the problem, the controversy that has existed. At one time, the Commission had held that judges under these circumstances were not covered under the Retirement Act. The Commission, for a period of time, attempted to have the deductions made from the salary.

In order to resolve that controversy, Congress amended the Retirement Act. I believe it was in 1956. And it specifically the provides that the members of the judiciary are not covered under the Retirement Act. That is actually what precludes us from doing what you suggested.

Mr. HENDERSON. Well, I do not feel strongly on this. But perhaps we should point out as clearly as we can in the report of the bill-assuming that we do report a bill, Mr. Chairman-and the Commission could be very helpful here in making our reports as full as it can be on all of these points as legislative history, to show what we do intend. On this point, let me make an observation that we may want to include in the report.

I think the testimony of Judge Harris before us Tuesday was very clear that, as a senior judge-having retired as an active judge and gone to senior status-about the only advantages he gets is the same salary and that he can work in any districts where he may be assigned by the chief justice in the several States. He can sort of pick and

choose where he might go. And we can anticipate in the immediate future, as he did suggest that he is going to have to slow down before too long.

So, I think our report could show that if we provide for resumption of civil service annuity payments upon retirement as a judge then this is one form of compensation that he would get. Perhaps it is not quite correct to call it compensation, because the argument might be made with some validity that he is getting only what he earns. Or, to put it another way, if he chose to leave the bench and to seek other income and employment, he certainly could do that.

So, I think those retired judges under similar circumstances are making quite a contribution to the judiciary and to our Government. Mr. WHITE. Did I understand by your questions, Mr. Chairman, that a senior judge cannot draw his annuity?

Mr. TINSLEY. A senior judge can draw his annuity.

Mr. WHITE. Even though he is technically active, but not

Mr. TINSLEY. He is not technically an active judge. He has retired. Judge Harris has submitted to us his retirement, or submitted to the President his papers. The papers have been accepted. We are now in the process of putting Judge Harris on the retirement rolls, even though he will continue his status as a senior judge and draw the equivalent of his full salary while he was a member of the judiciary. He will also get the benefit of any increase in salaries that the judiciary might receive while he is in the senior status.

To that extent, the situation has improved financially for all of that, as opposed to while he was sitting as an active judge.

Mr. WHITE. Thank you, Mr. Chairman.

Mr. HENDERSON. I think that the final comment I would like to make is to suggest that if the Commission, in this total review, has any recommendations to make in connection with this broader subject, it might be an opportune time for us to correct any problems you do see. I think that there has been some negligence on the part of the Commission and the Congress in not discovering this problem before it was brought to our attention through the publicity of a lawsuit. But be that as it may, if there are any further problems that you can anticipate, I would invite you to bring them to the attention of this committee.

Thank you very much, Mr. Chairman.

Mr. WHITE. Thank you very much. Are there any further questions? Mr. TAYLOR. Yes; Mr. Chairman.

Mr. Tinsley, do you think that it would be wise to look at the broader issue of this reemployment of Government employees? As I undersand it, the military is examining this, and we have a Member of Congress who accepts the position, but it does not require Senate confirmation and it is not covered by this.

I know that within the Federal Government, we have a world of retired colonels and generals on the civil list, and I assume that they are drawing military retirement. Now, what is your thought on that?

Mr. HAMPTON. Congressman Taylor, there are a lot of anomalies in the system.

Mr. TAYLOR. The point I am making is, we are singling out judges here, and there are a lot of others who are reemployed.

Mr. HAMPTON. You do have the dual compensation, which related specifically to retired regular officers. A Retired Military Compensation Act that said a retired enlisted man, if he takes a position in a classified service, draws his retirement pay plus the pay of his position. The military compensation-or, I mean, retirement-was looked at as a third compensation. You have the situation, a retired reserve who receives his retirement pay plus the pay of classified position. Then you have a retired regular who is covered under the Dual Compensation Act, which amended the act of 1894, in which a retired regular receives a certain base retirement, plus 50 percent over that base. But he receives the pay of his position.

So, there is a difference right there in the treatment of retired military between regular and reservists; although regular has retired on the basis of combat disability, he receives his full retirement pay plus compensation.

Then you have the situation involving Foreign Service personnel, people from the CIA, Foreign Service system, other retirement systems. The same way, somebody could retire under the TVA. There are different treatments and different entitlements under different retirement systems.

Mr. HENDERSON. Would the gentleman yield a moment?

Mr. TAYLOR. Surely.

Mr. HENDERSON. We also provided, in the Postal Reorganization Act, that an individual could be appointed to the Board of Governors of the Postal Service and draw his full civil service retirement.

Mr. TAYLOR. Well, a rural mail carrier is not doing too badly right now.

Mr. HAMPTON. The situation, it seems to me, in terms of recomputation of annuity, is one in which the Commission is thinking about sending up a legislative proposal. Because we have seen examples of individuals who are receiving a civil service annuity based upon service at a much lower rate of pay, being reemployed for a year, or five years depending on his status, and going the full 3 years to a new, higher salary, which gives them a much higher annuity than he would have been entitled to on the basis of his other service.

Our thinking on this is that if a person who is retired optionally— at his discretion-he comes back into classified service with the executive branch; that any new entitlements that he receives, that he would get a computation based-I mean, be given his previous, and maybe given an entirely new computation supplement, based on his new service, to prevent what we feel-and I hate to use the word-is abuse. Because, under some cases, it may not be abuse, if the man's service is needed.

We are concerned about the Postal Service in terms of many positions in the Postal Service exceed the executive salary rates, the congressional salary rates, and everything, to the point that a recomputation of annuity there on one of these $59,000-a-year positions is something that creates a liability that was never contemplated in our retirement system.

So, there are a number of anomalies and a number of loopholes. And there are retirement systems within the Federal structure, taking into consideration the legislative and the judicial and the executive. And

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even within the executive, we have separate retirement systems, and people have legally and properly earned entitlement, and then they move over to the other system, and they might earn entitlement. It is an extremely difficult issue to deal with from an equity standpoint, and also involves a multiplicity of jurisdictional questions for the Congress, because you will have the Armed Services Committee involved; you would have the Judiciary Committee involved, you would have the Foreign Affairs Committee involved, and it is extremely difficult.

But we are going to look after some of these situations, and find where equity really lies.

Mr. TAYLOR. Mr. Chairman, I would certainly hope that before you leave office, that you would submit to this committee a list of the inequities that now exist in our retirement system as you see them. I think Chairman Henderson certainly expressed the same hope. These things just do not jump out at you all of a sudden. I am sure they were there, and I think that our committee would certainly like to have the benefit of research by the Commission on these inequities as you view them.

Mr. HENDERSON. Will the gentleman yield another moment? Several years ago, I had a case arise involving a constituent of mine, and how you view this story depends on how you look at retirement, generally. This constituent retired with 30 years in the Postal Service. He had been the postmaster of the largest post office in my district. He had also been a general in the North Carolina National Guard, and had two retirements; and after his retirement, was employed as a director of one of the poverty programs in North Carolina.

Now, he was performing service there. But if you looked at the income he received from the two retirements and from that position he was then serving in, he was drawing more money than he had ever drawn in active service.

Now, I can see his argument that he earned his postal retirement. He earned his National Guard retirement, because he had served well in both instances. And then, in the instance of his employment at that time, he certainly was earning a salary less than he probably could have gotten in other areas. But it seems to me that as you look at the various retirement opportunities, it is not at all unusual if a man plans it, or takes advantage of these various retirement benefits through his lifespan.

Mr. TAYLOR. This brings on quite a bit of criticism from people that look out there and see people who want to go into Government service, and cannot get into it; and yet, you have these retired people who have obviously earned their retirement, but they are already in. so to speak. This is not to say that they have not earned it. They certainly have. But I think it something that is a little hard to explain down at the forks and creeks sometimes.

Mr. HENDERSON. One of the things we have to keep in mind with respect to this legislation or any other changes in retirement benefits that we may consider is the Commission's recommendation to make such changes prospectively. If we do make them prospectively, then we can say to the military man that comes in, "Yes, you will earn

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