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 Commission— been 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. Judge Harris 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

individual: There comes a time when you start downhill. When you reach that point, you have to go downstream. That's all there is to it. You can't help it. And I know that when that time comes I will be unable to carry the same load. As a matter of fact, I'm not going to continue to carry the same heavy load that I have had because I can't do it physically.

Mr. TAYLOR. Is it not true that if you did retire, you would receive just as much compensation as you do on senior status? So actually, in fact, what you're doing is making some services available to the Government that you would not have to do if you retired?

Judge HARRIS. I'm not subjected to the restrictions of a regular, active judge. I can choose my own base. I can go to Hawaii, if I want to, New York, or California, or any other place, and make that my base. I am not restricted to my own circuit. if I am called upon to help out in some other place, like Minneapolis or Chicago, New York, or any other place. So you do have a lot of liberties that you are not subjected to, as a senior judge. But I feel very strongly that as long as I can contribute that I ought to do something, and that's exactly the position I have taken, even though I can retire.

Judge THORNBERRY. Mr. Chairman, I didn't quite finish my statement as to why I was not drawing my retirement.

I did not file for my retirement because, as I stated, I decided I would wait until I took senior status or retired, to consider what options I might want regarding my surviving wife. But, after the legislation was introduced, in order to protect whatever rights I might have, I did file an application, for fear the Civil Service Commission might say, "Well, he hasn't filed an application for his retirement benefits." But I am not, according to the position of the Civil Service Commission entitled to benefits, I am not eligible to retire or take senior status until December 21, 1978.

Judge HARRIS. May I make this other comment, Mr. Chairman-I think it's important along that line, talking about the survivors. In 1966, February 3. I made a selection. I took reduced annuity so my wife would be eligible to receive, in case of my death. Now, unless some provision, if there is a bill enacted-it's in this latest bill that's been introduced-provided, I can't, regardless of that, I can't withdraw that amount of money, I'm committed to it, and there's no way under the law that I could be entitled to withdraw it because I have retired. I made my selection. I made a contract with the Government and the Government has my money.

Mr. TAYLOR. Well, I think that you gentlemen make a very valid point. I would like to reiterate the concern that was presented by the chairman that this committee is faced with the difficult task of legislating on a basis that will treat all people equal, and recognizing that there are those in the Federal service who are penalized, as far as their annuity is concerned, if they go back in the service, we must look at it from the standpoint of is the judicial different or is it not different? And, of course, there are many people who don't think that it should be. But I think that the thing that I am concerned with, and I'm sure most members of the committee are concerned with, is the integrity of our Civil Service Retirement System and the assurance that those who have contributed and have vested will receive that compensation.

There are, I think, as was pointed out by one of you gentlemen, there are those that have vested their retirement in civil service, with the problem of going to a State court. Judge Poff, as I understand, is a judge in Virginia, and I assume that he isn't penalized on his retirement, if he had to retire. I assume that he did because of his service on a State court. And I would hesitate to draw a distinction between a State court and a Federal court. There, again, this leads to some complexities.

Mr. Chairman, I believe that's all I have. Thank you.

Mr. WHITE. Thank you, Mr. Taylor.

Mr. Henderson.

Mr. HENDERSON. Thank you very much, Mr. Chairman.

I don't think I could speak as eloquently as my colleague, Dominick Daniels did, with regard to the pleasure of serving with Judge Harris and Judge Thornberry. They both were a real inspiration to me as a young member here, and I, too, am amazed that Judge Harris, at age 72, is as active and is performing as well as he is.

Perhaps I should say first that I didn't know about your particular case at the time we introduced the legislation. It was not your case or that of any other former Member of the Congress that inspired this bill.

I, too, would like to assure you that it was not the intent of Congressman Derwinski and me to affect the annuities for surviving spouses. The second bill was introduced to make that point clear.

I think the dialog this morning has shown that it is the intent of the members of the subcommittee, and I believe the full committee and the Congress, that we receive testimony from the Members affected and work out what the law should be; what is right and proper.

I am often reminded and don't mind admitting that I don't know all the law. I had not idea that the rights of surviving widows of a Federal judge are what you have described this morning.

Judge HARRIS. Mr. Chairman, I think you made the decision that under the new rules it belongs to the Judiciary Committee.

Mr. HENDERSON. That's right.

Of course, the action that we take here on retirement vitally affects the judiciary and this is one of the problems of the various jurisdictions of the committees.

But I doubt that a majority of the Members understands the survivor annuity situation of the Federal judges. I would hope that we can do a better job on that score.

Now I'd like to start from this point. I guess the responses of Judge Harris and Judge Thornberry are appropriate here.

The question is why doesn't the law that provides that former Members shall have their annuity suspended or discontinued during their employment as judges apply to other judges? I think that was the one point that most disturbed us.

Judge Bennett, I may be wrong, but that's where we started from. I understand your testimony this morning is that you and three others are actually drawing annuities?

Judge BENNETT. Yes. And you make a very interesting point about the distinction drawn by the committee as to former Members and their annuities.

Now, the Commission originally took the position that a former Member, like any other person who had served his time and put in his contributions, could get his annuity. And then they seem to have found a section 8344, and it's a very long and very confusing section, but the last.

Mr. HENDERSON. Don't you think it's very clear?

Judge BENNETT, No: that's the worst section I have ever seen. The last sentence in it says that. "This subsection does not apply to a Member appointed by a President to a position not requiring confirmation by the Senate," so they read into that if you are confirmed by the Senate, you can't have it. And they told the Justice Department that, and they stopped payment of these annuities to Members, and then when I pounded them about it they reversed their position.

Mr. HENDERSON. While we're on that point, let me also mention the new subsection (c) of section 8344 which provides that this section does not apply to any individual appointed to serve on the Board of Governors of the U.S. Postal Service.

The point I am making is that at the time we organized the Postal Service, this committee was aware of this provision of the law and how it was being interpreted by the Commission and, therefore, specifically provided for an exception to it.

Now, why in the world should Congress say to those appointed to the Postal Service, if they happened to be former Members and had former service, that they may draw their annuities, but that judges such as Judge Thornberry and Judge Harris can't get theirs? That is the problem that we are really trying to get at.

Judge HARRIS. Mr. Chairman, may I give you a little background and history?

Mr. HENDERSON. Yes.

Judge HARRIS. As far as the first such incident that I can recall in my long years of service was when Senator George of Georgia was serving, and after he had been defeated, the President called upon him to perform certain special duties for the Government and in order for him to accomplish that service, it was necessary, from Senator George's standpoint, that he be given special dispensation, and, therefore, the Congress provided that special dispensation.

And there were others, including Jim Dolliver, if I can remember, although I wasn't serving on the committee, and they were permitted, deliberately and intentionally, by Congress to draw their annuities and at the same time draw pay for their reemployment service. I think that was the first start of this problem, as far as I know.

Mr. HENDERSON. That's very helpful.

And let me finally say, without trespassing on anyone's time, that I am impressed by your argument about changing the rules of the game in the middle of the stream. Having mentioned the inequities, there is little we can do except to look prospectively at what is right for the future. This is what Mr. Derwinski and I tried to accomplish by the introduction of this legislation, and I feel, that this is as much as the subcommittee will attempt to do if it reports the legislation. I say this because I have felt that there is a great deal of inequity with regards to some of the benefits for our military vis-a-vis civilians, and I only note in passing that it's a tremendous burden on our taxpayers. We

are all becoming so concerned and we're hearing more and more about it.

It has been my basic position with regards to whatever or however those benefits and rights came about, whether based on law or longtime custom and practice, that if the Congress doesn't like them, it ought to legislate and change them prospectively for the new men coming into the service. Once these men are recruited and enlisted, they do have a vested right to such benefits or, at least there's a quasicontractual obligation to provide such benefit. I'm sure this is the point you gentlemen are making. You were appointed to the bench under certain conditions, and I'm sure no Member will want to change the rules as they affect you.

We must concentrate, and we certainly invite your help, on what we should do to make the retirement benefits of our Federal judges, be they former Members or former civil service employees, fair and equitable in the future.

Again, let me reiterate, if we take nothing away from you that you now have, you or your surviving widows, and yet can improve the law, this is our objective, and I believe we can do that. I think our obligation simply is to do equity, and I assure you that that's the only intent that I have with regards to the introduction or the consideration of the legislation.

Thank you very much, Mr. Chairman.
Mr. WHITE. Thank you, Mr. Henderson,
Mr. Jenrette.

Mr. JENRETTE. Thank you, Mr. Chairman.

Being the youngest member of the committee and a trial lawyer by profession, I have to take some time because it will probably be the only time in my life that I'll have three judges sitting down there and I'm sitting up here.

I, too, have been impressed with the testimony and I would like to follow up on what our chairman, Mr. Henderson, was saying about the surviving spouse. I do think it warrants looking into, and I'll spend some time with the chairman and see what can be done in this regard.

Judge Bennett, with regard to the figures that you read offthe press calls it double-dipping-were they the number of judges that you found that were taking their annuity and drawing a salary? Did I understand that?

Judge BENNETT. That was the entire list as of that day in February. Mr. JENRETTE. In your testimony, Judge Bennett, you talked about the number of judges that had left the Court of Claims. I understand this to be true in the Federal judiciary realm, because the money is low. You said it does not make for inferior judges on the bench, does it?

Judge BENNETT. It doesn't help the situation. Many good men are turning down judgeships today, Congressmen, because of the salary, and we've lost these three because they could do better in retirement.

Mr. JENRETTE. I much think that's an inequity. This testimony today does not go to that, but I think that's an inequity. In all the civil service, I think probably we should look at that at some point in time. But I wonder, in the Federal judiciary—and I'd like to ask any the three of you to comment-what value do you place on the secu

of