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military retirement. But if you then go into civil service, you may have a portion of the miltiary retirement suspended, or all of it suspended. And finally, you will collect only one retirement that takes into account all of your service."

So, the point I am making is that I think that Congress can be wise in handling this legislation, and perhaps as we attempt to correct these various retirement overlappings in the future, to do so prospectively. Then we would be in a position to say that the rules are known at the time the man enters into the employment, or military service, or various programs that do have retirement benefits.

Does counsel have any questions?

Mr. MCCLUSKEY. Mr. Chairman, I would like to ask one question to clarify something for the record.

Mr. Hampton, none of these judges, up until this recent ruling, have been receiving any annuities, have they?

Mr. HAMPTON. That is correct.

Mr. MCCLUSKEY. And so none of these judges, who have taken the bench have really been receiving anything, or really expecting anything?

Mr. HAMPTON. I think there has been an expectation. I think it has been a matter of context. I think that the judges who raised this issue most recently, and who did not take out their retirement because they did not accept the interpretations of the law

Mr. MCCLUSKEY. Since 1922?

Mr. HAMPTON. I do not know about since 1922. But the point is that it has been understood for quite some time. In fact, the Justice Department, as I understand it, advised individuals who were out of the Justice Department and going to the bench to withdraw their retirement funds. We certainly have provided that advice to the individuals.

Mr. MCCLUSKEY. So nobody has really drawn any annuity until this ruling; and therefore, nobody has drawn any annuity until what, last January?

Mr. HAMPTON. January 1976.

Mr. TINSLEY. That is right. If I might comment on that?


Mr. TINSLEY. I think what you have to keep in mind here is what was occurring over a period of years, the past 30 years, even back to 1922. You had the Commission taking a position, an interpretation. You then had a series of amendments to this law occurring with the same period of time. The critical point in time is 1956, when the Congress settled one controversy between the interpretation by the Commission and an opposing view by the judiciary at that point in time. There is a provision in that law that was overlooked. That was the provision about the fact that you could not reduce a judge's salary. And the suspension question was left open.

Mr. MCCLUSKEY. My whole point, Mr. Tinsley, was that nobody received any money up until 1976.

Mr. TINSLEY. They felt they were entitled to it, and they think that they have been entitled to it. Now, everyone is agreed as to what the law was and is, and as a result, I do not know if anybody-even though you may have been telling them that they were not going to get it or

were entitled to it; they held a different view-I do not know if anybody under our system can now turn around and tell those people, "Well, fine. You have won your legal battle, but you are still not going to get your annuity.”

Mr. McCluskey. Well, they have not won a legal battle in court. It has just been an interpretation of the law by an agency.

Mr. Tinsley. I think the three general counsels opinions concluded pretty well on that point of law. Shortly after, this decision was made, before we notified the judges, Judge Bennett filed suit. The advice of the General Counsel of the Civil Service Commission, the General Counsel of the General Accounting Office and the Justice Department—their views are in agreement with the judges. There is no doubt in my mind that if that case ever got to court, that is if you could find someone to defend our position, that the courts would have decided that way, so I do not think there is any question here—you know, the issue of whether they did not expect

Mr. McCluskey. I just wanted to clarify the point. No judge, up until January of 1976, has received any annuity?

Mr. TIXSLEY. That is correct.
Mr. MoCluskey. Thank you, Mr. Chairman.

Mr. HENDERSOX. Well, one point of further clarification. If we do not provide an opportunity for those who were advised by Justice, or the Commission, of the old interpretation of the law, to come back in, we would also have an inequity, would we not? We have got to make some provision for them to pay back in and to be made whole, have we not, as a matter of justice and equity?

Mr. TINSLEY. Yes, Mr. Chairman.

I would also suggest it, for this reason. The possibility would be very strong that what would happen here is, if Congress does not speak to the issue, we will wind up again in some kind of a litigation situation where someone will want to file suit. So I would strongly suggest that the Congress resolve the issue. And to resolve it equitably, I believe that they should permit these individuals to pay back in.

Mr. HENDERSON. Thank you, gentlemen. If there are no further questions, the subcommittee will now adjourn.

[Whereupon, at 10:30 a.m., the hearing was adjourned, to reconvene at 9:15 a.m. on Thursday, March 11, 1976.]






Washington, D.C. The subcommittee met at 9:20 a.m., in room 304, Cannon House Office Building, Hon. Herbert E. Harris (acting chairman of the subcommittee) presiding.

Mr. HARRIS. The subcommittee will come to order.

The subcommittee has reconvened today to continue hearings and deliberations on H.R. 11738, a bill introduced by Congressman David N. Henderson. 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 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.

On January 5, 1966, the Comptroller General made the statement that:

Dual payment of retirement annuity and salary is inconsistent with the basic policies regarding such dual payment expressed in civilian retirement legislation and is without authority of aw.

Thereafter, as a result of continuing discussions by the judges with the General Counsel of GAO, the General Counsel wrote the Commission's General Counsel in late 1974 and advised him that the Comptroller General's decision of 1966 exceeded the Comptroller General's authority in advising the payment of an annuity to Federal retirees appointed to the Federal bench is barred.

Our witnesses this morning are Mr. Paul G. Dembling, General Counsel of GAO; accompanied by Mr. F. Henry Barclay, Associate General Counsel. Mr. John S. Emery, Assistant Director, Federal Personnel and Compensation Division; and Mr. Bob Shelton, Supervisor-Auditor, Federal Personnel and Compensation Division. I look forward to your testimony. You may begin.




Mr. DEMBLING. Thank you very much, Mr. Chairman. I have a short statement which I'd be happy to read to the committee.

Mr. Harris. You may proceed, Mr. Dembling:

Mr. DEMBLING. We appreciate the opportunity to express our views on H.R. 11738. The bill would bar civil service annuity payments to a former Federal employee or Member of Congress for any period for which he is entitled to receive compensation on the basis of service as a justice or judge of the United States.

H.R. 11738 would appear to bar payments of the annuity for any period of such service as a justice or judge, either active or retired. Federal justices and judges are covered by the Federal judiciary retirement system under sections 371 to 376 of title 28 of the United States Code.

Justices or judges may either resign or retire from active service under this system. Retired justices and judges may be assigned to perform such judicial duties as they are willing and able to perform.

Judges who retire continue to receive the salary of the office while judges who resign are limited to their salary at the time of resignation.

Annuitants under the civil service retirement system who are reemployed by the Federal Government may not receive both their annuity and full salary during the period of reemployment. Employing agencies are required to deduct annuity payments from reemployed annuitants' salaries.

That requirement does not apply to justices and judges since article III of the Constitution provides that a judge's salary shall not be diminished during his continuance in office.

Retired members of the uniformed services who are reemployed in the Federal service are not prohibited either from receiving both retired military pay and the pay of the position in which reemployed, or from receiving both retired military pay and a civil service annuity, although retired regular officers, with certain exceptions have their retired military pay reduced during such reemployment. In contrast, most civilian employees and officials do not enjoy similar benefits.

The Comptroller General, for example, is prohibited by section 43, title 31, United States Code, from receiving both a civil service annuity and the annuity provided for a retired Comptroller General. In 1966 our office rendered a decision concerning retirement benefits in the case of a U.S. district judge for the District of Columbia.

The judge had established entitlement to a civil service annuity as a U.S. attorney prior to his appointment as a judge. The administrative office of the U.S. courts requested our decision as to whether he was entitled to receive the salary of his judicial office without reduction on account of the civil service annuity he was receiving.

The Comptroller General held that, while the judge was entitled to full salary because of the constitutional prohibition against dimin

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