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Mr. TAYLOR. Mr. Chairman, will you yield for a minute?

Mr. HARRIS. Surely.

Mr. TAYLOR. I believe we had testimony from Judge Bennett that he is receiving both civil service retirement pay and

Mr. HARRIS. January 1976 is the first instance of it, as I understand. Mr. DEMBLING. We understand that some of the judges-as a result of the reconsidertion of this matter, both by the general counsel of the Civil Service Commission, and the Office of Legal Counsel, the Department of Justice--are being paid their salaries and civil service annunity. So there are a few judges that would fall in that category.

Mr. HARRIS. The only payment received was the first payment in 1976, isn't that correct?

Mr. DEMBLING. I don't know. I know they're paying some judges that retired pay.

Mr. HARRIS. My information is that between 1920 and 1976, there was no one who received both full active duty pay and CSC annuity. That's what the Civil Service has testified to.

Mr. BARCLAY. Are you referring to just the civil service law as compared to other laws when you make that statement?

Mr. HARRIS. Yes.

Mr. BARCLAY. For instance, the Foreign Service Act for years had no reduction provision

Mr. HARRIS. Speaking specifically as to CSC.

Mr. BARCLAY. I think your statement is correct.

Mr. HARRIS. If there is no difference between the salary of a judge before and after retirement, which you state in your statement, why should the judge's civil service annunity be suspended only while in active service? Should our bill require withholding of annuity payments in both situations?

Mr. DEMBLING. Well, that goes to the question, I think, Mr. Taylor asked. I can understand the equities regarding the matter. I know that the Civil Service Commission has studied this and made some recommendations to you with regard to this matter, and we would defer to them on that.

Mr. HARRIS. Very good.

Mr. Taylor, do you have any additional questions?

Mr. TAYLOR. Only one thing, Mr. Chairman.

What I'm wondering, we're interested in maintaining the integrity and faith in the retirement system; and if these people as they have testified and argued, the judges that were here, that they did not know they were not going to be eligible to receive both retirement while an active judge, and their annuity. The thing I'm really wondering is whether or not they did expect and were led to expect they would receive both.

If they really expected to do this when they took the bench, have they been misinformed, have they been misled or something?

Mr. DEMBLING. I think you're correct, Mr. Taylor. They did think they were going to get annuity when they retired or resigned.

Mr. TAYLOR. Even though they were an active judge. We're dealing with two retirement systems: The judicial retirement and civil service. Now, we can understand, of course, the law is pretty precise as far as other civil service systems are concerned; you can't go back to the

regular Government service and become reemployed and receive annunities.

Since we are dealing with two different retirement systems both Federal systems, judicial and regular civil service, and their arguments is that they were led to believe they could receive annuity under the civil service even though they were reemployed as Federal judges, and I assumed that if that is true, we should take a hard look at making prospective in the future, if we are going to legislate on this matter, at least so we won't be misinformed, they'll know when they assume the bench that their retirement will be held in abeyance until they retire from the bench, and then, of course, receive both retirement systems.

Mr. BARCLAY. Mr. Taylor, on concerning your statement as to the judges that testified, I think they had different problems.

Mr. TAYLOR. They did.

Mr. BARCLAY. Two of them, as I recall, were concerned with retirement after they retired from the bench, whereas in Judge Bennett's case, he is interested in retired pay while on active duty at this point. I believe in the other judges' cases, they were informed by the Commission at the very beginning before they took their judgeships that, in fact, their annuity would be suspended while on active duty.

This is not the concern of all of the judges, but they are concerned by the provision in the bill which would go further and not only stop it during active duty, but during retirement.

So you have different situations. Some have been advised in advance by the Commission over the years. What numbers, I do not know, but the Commission has told them the retired pay would be suspended during active duty.

But I think there have been cases where they have not asked and, therefore, fell into the trap-since there is nothing in law specifically covering it. Therefore, I think they legitimately could have assumed that they would receive both. But if they had asked the Commission, I think generally they have been told that it would have been suspended during active duty.

Mr. DEMBLING. To pick up your other point, you asked was this a unique situation because it is dealing with two reirement systems. There are others affected the same way. There's a reduction in the salary where you have two retirement systems, such as the legislative retirement system. Even though it is under the Civil Service Commission and one moves from it into the executive branch; or the executive branch retired employee who moves into the legislative branch. Of course, they're under the same overall system.

Mr. TAYLOR. Thank you, Mr. Chairman.

Mr. HARRIS. The subcommittee has looked at the tentative system and has indicated a desire to look at the possibility of consolidating them.

Does counsel have any questions?

Mr. MCCLUSKEY. I'd like to just establish some things, Mr. Chair


Mr. Dembling, I notice GAO under various authority reviews, different agencies and everything else; but I'm a little bit disturbed that

it took 8 years for GAO to find its own mistake. Does GAO have a procedure to review itself or who is responsible for reviewing GAO? Mr. DEMBLING. We try to review ourselves. There's several ways that it's done :

One is the special office of internal review that reports to the Comptroller General, that takes a look at internal processes, practices, procedures, activities of the GAO; that's an internal audit arrangement. Then, periodically we'll review prior cases; situations sometimes change, even the environment under which decisions were made has changed and we'll review the cases as they come up.

Usually it isn't in connection with a review of a series of cases until some problem comes up. Now when Judge Bennett's case came before us, it made us take a look at what we had done in the retirement area.

We found we usually don't review retirement cases. We usually refer them to the Civil Service Commission; but we came across this one case in 1966 where there had been a ruling. Taking a look at it, we said, well, there's not authority to say what we did say, and there's no authority to go the other way.

Maybe what we ought to do is just send it over to the Civil Service Commission and let them dispose of this particular case that's before us, now, and tell them that the prior decision was incorrect.

If I had to rewrite that letter, I would have said the decision should have indicated that there was not adequate authority either way; either for suspension or continuing payment of the annuity.

I wanted to leave the Civil Service Commission a free hand to deal with this problem and similar problems that they had. We were not totally aware of this matter.

I notice in some of the testimony that you received or in some of the material that we had, there are several hundred judges that had some amount of civil service tenure.

Mr. MCCLUSKEY. Well, just going back to this Bennett case that apparently started this thing, in your own testimony, you state that Mr. Bennett appealed his decision of the Civil Service Commission, and that the Board of Appeals reviewed and sustained the Bureau's decision.

So it seems like CSC made its final decision and then you reviewed the final decision, and now you're saying in your letter back to the CSC, GAO just told them they could make up their own mind?

It seems like they made it up twice, and what they came before the committee saying is they reversed on the basis of your letter to them.

Mr. DEMBLING. Normally an appeal would be taken from the decision of the Board of Appeals and Review to the Commissioners. What Judge Bennett did, after he received this decision from the Board of Appeals and Review, was to come to us on the basis of a claim. In other words, since we handle claims for and against the Government, he came in that route.

It was in that connection that we reviewed the matter and then sent it back to the Commission for the Commissioners to handle it the way it would normally have handled the case if it had been on appeal directly from the Board of Appeals and Review's decision to the Commissioners.

Mr. MCCLUSKEY. That clarifies a lot. Thank you, Mr. Chairman. Mr. HARRIS. Thank you, Mr. Dembling, Mr. Barclay, Mr. Emery, and Mr. Shelton. Thank you very much for coming before us. We appreciate your testimony.

The subcomittee is adjourned subject to the call of the Chair.

[Whereupon, at 9:55 a.m., the hearing was adjourned, subject to the call of the Chair.]

[The following items were ordered placed in the record: a copy of H.R. 11738, administration reports, and letters from Judge Jack R. Miller and Judge James Harvey.]


H. R. 11738


FEBRUARY 5, 1976

Mr. HENDERSON (for himself, Mr. DERWINSKI, and Mr. WHITE) introduced the following bill; which was referred to the Committee on Post Office and Civil Service


To amend chapter 83 of title 5, United States Code, to bar civil service annuity payments for periods with respect to which an annuitant is entitled to receive salary as a justice or judge of the United States, and for other purposes.

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That (a) section 8344 of title 5, United States Code, relating

4 to annuities and pay on reemployment, is amended by adding 5 at the end thereof the following new subsection:


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(d) (1) In the case of any former employee who is 7 appointed to serve as a justice or judge of the United States 8 and with respect to whom the provisions of subsection (a) 9 of this section do not apply by reason of section 1 of article

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