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plexities of Government. Some of these judges have gained that experience as Members of Congress. Others have gained it as district attorneys or elsewhere in the Government. In my own case, if I may illustrate the point by personal reference, I have 3212 years of service subject to the CSC retirement system. I would never have taken a judgeship had I thought this commitment to public service on my part would be vitiated after the service was rendered by repeal of the law which was an important inducement for my service. The Nation has an investment, a resource in individuals with such service, and it should not lightly be discounted. There are many lawyers who want to be judges. But, is it wise to restrict such appointments to the independently wealthy or to those with private pension plans and to deny them to experienced government servants by levying a financial penalty upon them if they accept appointment? We find this proposal incredibly discriminatory.

(2) The bill is also unfairly discriminatory and punitive in nature in that it pertains only to civil service annuities of judges. There are thousands of people working full time for the Government who are permitted to draw the social security that they have earned or military retired pay they have earned. Why single out civil service annuities of judges for different treatment? Perhaps no one should be permitted an annuity if he also works. But, such a reform, if that is what it is, should not be accomplished piecemeal. Such dual payments are explicitly permitted by statute. Judges who have contributed to the civil service retirement fund no longer do so when they become judges because they are no longer subject to the civil service retirement law, having moved over into an entirely different department of the Government. Whatever rights they have earned for their contribution and prior service are spelled out in existing law. They only ask that the Government keep its promises, without discrimination. Some decided cases have likened a civil service annuity to an insurance endowment policy. It is bought and paid for and when it matures, payment is due. It makes no difference what other activities the insured may engage in. He has a contract. He has bought the rights under that contract by sweat and tears, if not blood, and certainly with many dollars subtracted from his income, taxed, and turned over to the retirement fund.

(3) The inducement of a civil service annuity is a major factor for a career of government service. The salaries of top government positions are inadequate to the responsibilities, always have been, and probably always will be. But, the retirement system is generous and may really be considered as a part of the compensation. It keeps people in the service because Title 5 of the United States Code (88 8336, 8338) promises that if they remain and make their contributions of time and money they will be paid these annuities. Any breach of that solemn commitment of the Government, written into the law, a breach after the fact, and after the consideration has passed, would be unworthy of a great National. We do not believe you will countenance it and urge you not to do so. The possible consequences of such temptation must be very carefully considered for the longrun effects.

(4) This bill if enacted will not only dissuade experienced government officials from becoming judges, it will encourage resignations which already are at the highest rate in history because of inadequate compensation, now far behind what it was in 1969 in purchasing power. The U.S. Court of Claims has lost three trial judges on this account. There are some judges who, if this bill becomes law, will have to consider carefully whether or not they want to remain on the bench. By resigning and going into the private sector they can draw their annuities. Then other judges will have to be appointed to the vacancies—so where will any public money have been saved ? If government servants pass up judgeships because such appointments will cause them to lose their earned annuities, the Government will save nothing. It is an illusion that this bill will save money. All that will have been accomplished is the loss of judges experienced in government affairs either by resignation or refusal to serve. I will add that the judge most certainly will not be able to keep all of his earned annuity, even if paid. There is the income tax, State and Federal, which will get most of it.

(5) Finally, the relations between Congress and the Judiciary have historically been good. The courts have never been singled out for punitive treatment. We do not wish to see any standing statute which will prove to be a continuing irritant between us. The Constitution does not require a financial forfeiture of any kind as the price of becoming or remaining a judge. We think that now that you have heard our side of this question, Congress will keep its word and pay the annuities that the law it wrote said would be paid to those who, in good faith and by their labors and contributions, earned them. I thank you.

69-540 0-76-3

PREPARED STATEMENT OF JUDGE HOMER THORNBERRY, U.S. COURT OF APPEALS,

FIFTH CIRCUIT

Mr. Chairman and members of the committee, my name is Homer Thornberry. I am presently serving as Judge of the United States Court of Appeals, Fifth Cii uit, and I reside in Austin, Texas.

I thank you for the privilege of appearing before this distinguished Subcommittee of the Committee, one which I once had the honor to serve as a member.

I must say in all deference that I had never contemplated I would appear before the Committee to testify on a proposal which if enacted into law would have such a drastic effect on me and on what I had considered to be my entitlement to retirement benefits as a result of my contributions to the Civil Service Retirement Fund during my fifteen years' service as a Member of the United States House of Representatives.

The letter dated January 28, 1976, to Mr. Kirks, Director of the Administrative Office for the United States Courts, from the Chairman of this Subcommittee advised that these hearings would be held on “H.R. 11299 (also known as H.R. 11738).”

H.R. 11299 was introduced on December 19, 1975. In my opinion, this proposal is much more drastic than the one contained in H.R. 11738, which was not introduced until February 5, 1976. H.R. 11299, the earlier bill, not only would bar the payment of an annuity to any judge or justice of the United States on active service and after retirement or resignation, but by its provision that "No annuity . . . shall accure for any period during which an annuitant is entitled to receive the salary for service” as a judge has been interpreted as barring an annuity to a surviving wife of a judge.

I cannot believe that this Committee would want to enact such a drastic proposal insofar as a surviving wife is concerned.

I now turn to a discussion of H.R. 11738 which I unedrstand is the latest proposal on the subject pending before this Committee.

As I read H.R. 11738, it will bar as of October 1, 1976, or the date of enactment, whichever date is later, any payments of an annuity during any period for which a federal judge is entitled to receive compensation for service as a judge, either active or retired. I am unable to find any provision in H.R. 11738 which contains the prohibition against accrual of survivor benefits as is contained in H.R. 11299. I fervently hope that such a cruel prohibition will not be enacted into law.

H.R. 11738 as now drawn, if enacted, will, of course, prohibit me from drawing an annuity which I have believed I was entitled to receive since the day I began to make contributions to the Civil Service Retirement Fund as a Member of Congress.

And certainly that belief has been unequivocally reinforced by the assurances I have received from those persons responsible for the administration of the Civil Service Retirement Fund.

Mr. Chairman, when I first knew there was a possibility of my being appointed a United States District Judge, I made every effort to ascertain what effect service as a federal judge would have on my entitlement to a Civil Service annuity and that of my wife to a survivor's annuity. I discussed this question with Mr. Zeke W. Johnson, then Sergeant-at-Arms of the House of Representatives, whose office was responsible for handling the contributions by Members to the Civil Service Retirement Fund and their problems concerning it. I felt I should make a determination as to wbether I should leave my contributions to the retirement fund or withdraw them if I should be appointed a judge, in order to invest the funds or purchase insurance or annuity.

After consultation with the Bureau of Retirement and Insurance, United States Civil Service Commission, Mr. Johnson strongly advised me that it would be to my interest to leave my contributions into the Civil Service Retirement Fund intact since I would be eligible for an annuity when I reached the age of 60, reduced of course by an annuity for my surviving wife. Emphasis was placed on the fact that my wife would be protected should I die before reaching age 60 or after retirement. Unfortunately, this was an oral discussion and I do not have a written document to support this advice.

Later, after having been appointed a judge and before my leaving the Congress, I was still concerned about this matter. Therefore, I consulted Mr. Charles Johnson, then counsel to this Committee. On November 21, 1963, Mr. Charles Johnson received a memorandum from Mr. Andrew Ruddock, Director of the Bureau of Retirement and Insurance, confirming the above assurance.

In the interest of time, I will not read the entire memorandum to the Committee, but I furnish a copy as Exhibit A for your information.

In accordance with Mr. Ruddock's November 21, 1963 memorandum, on January 9, 1969, my 60th birthday, at my request the Administrative Office of the United States Courts made inquiry of the Civil Service Commission as to whether I should make application for an annuity as suggested in Mr. Ruddock's memorandum just referred to. By memorandum dated March 10, 1969, Mr. Ruddock, Director of the Bureau of Retirement and Insurance, made the following statement about my right to benefits:

"As pointed out in prior correspondence, the only annuity benefit payable is one effective from January 9, 1969, the Judge's 60th birthday."

Both memoranda from Mr. Ruddock refer to the fact that I could apply for an annuity after my 60th birthday and the Commission would "suspend payment for the benefit until he ‘retires' under the judicial retirement provisions or otherwise separates from his office as judge. If his death should occur prior to filing his annuity application and he is survived by his present wife, she will be entitled to survivor annuity.” I am furnishing the Committee a copy of that memorandum as Exhibit B.

As a result of this last device from the Civil Service Commission, after con. sultation with the Chief of Business Administration, Mr. Darwin H. Anderson, of the Administrative Office of the United States Courts, I decided it would not be advantageous to apply for Civil Service annuity at that time in order to afford my widow maximum benefits. I file with you a copy of the letter from Mr. Anderson, dated May 14, 1969, as Exhibit C. As can be seen from his letter, the Administrative Office of the United States Courts also relied on the assurance from the Civil Service Commission that I would in time be entitled to benefits from the Civil Service Retirement Fund.

Again, on March 8, 1971, the Civil Service Commission responded to further inquiries made by me through the Administrative Office which again substan.. tiated my right and the right of my surviving widow to benefits from the Civil Service Benefit Fund.

After I learned of the introduction of this proposed legislation, I came to the conclusion that for the protection of my rights and those of my wife to benefits from the Civil Service Retirement Fund, I should file my application for annuity based on the second sentence of 5 U.S. Code $ 8338 (b). I did this after discussing the matter on February 6, 1976, with Honorable Robert E. Hampton, Chairman of the United States Civil Service Commission. This discussion concerned this proposed legislation. During the discussion, I asked Chairman Hampton if I should not file the application. His response was that I should file the application and that the application would be approved.

I will not burden the Committee by listing all of the other documents in my file, including one entitled Certificate of Congressional Membership in the United States Civil Service Retirement System—whatever significance it may haveshowing that throughout the last thirteen years I have received continued assurances that I am entitled to an annuity from the Civil Service Retirement Fund and that my wife would be protected. Nowhere is there the slightest hint that accepting appointment as a federal judge would in any way take away that I consider to be vested, contractual rights.

Mr. Chairman and Members of the Committee, I realize that comparisons are not always fair. However, I do believe that I am entitled to suggest to you that it is not fair to aim this discrimination at those who are serving as federal judges alone.

In and out of this City, there are not only former Members of Congress but Civil Service annuitants who are privately employed and drawing private compensation equal to or much greater than you and I receive and who are also receiving an annuity from the Civil Service Retirement Fund. And I would not have it otherwise, since they likewise made contributions to the Fund and were assured they would receive an annuity as provided by law.

Throughout this Government there are retired military personnel who in civilian capacities are receiving government civilian compensation in addition to certain military retirement pay for which they were not required to make monetary contribution.

There are judges who because of prior service as state judges are entitled to receive state retirement benefits in addition to compensation as federal judges.

And, of course, there are federal judges who in the past and at present, as former Members of Congress and Civil Service employees, are drawing annuities. There are survivors who are also drawing benefits from the Fund. As I read both bills, those judges now drawing annuities will be prohibited from receiving them if the bills are enacted as presently drawn. I would certainly hope that there is no thought to bar the continuation of annuities now being paid to surviving widows.

One further personal reference: I have spent almost all of my adult life in public service. I did not practice law while I was a Member of Congress. During the short time I did engage in the private practice of the law, the law did not provide for my participation in the Social Security Program.

Federal Judges who did have the opportunity before they were appointed to the bench to participate in the Social Security Program are eligible as senior or retired judges to receive Social Security payments and are eligible for Medicare. I am not.

Except for a small savings account, government savings bonds, and an equity in our home, Mrs. Thornberry and I have relied on our contributions made during my Congressional Service to the Civil Service Retirement Fund as our major investment.

As you can well understand—I hope I do not regard the proposed legislation as fair or equitable. I firmly believe that it proposes to deprive me of contractual rights vested in me by the laws of this nation as a result of the contributions I have made to the Civil Service Retirement Fund.

May I strongly urge this Committee if it feels that some legislation is necessary, that it provide that such legislation be made prospective so that any Member of Congress or Civil Service employee of the government will be put on notice that by accepting an appointment as federal judge he will be deprived by his government of any benefits from a Retirement Fund in which over the years he has made payments. As a Member of Congress I have never had such a notice. On the contrary, as I have tried to point out, I have received every assurance that I would be entitled to an annuity at the appropriate time as provided by law. Thank you. [The attachments to the prepared statement follow:]

Post OFFICE AND CIVIL SERVICE COMMITTEE,

HOUSE OF REPRESENTATIVES,

November 22, 1963. Memorandum.

DEAR JUDGE THORNBERRY: As mentioned the other day, I took the liberty of checking with the Civil Service Commission and the attached memo is forwarded for your records in case you do not already have the data.

CHARLIE JOHNSON.

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Assuming Congressman Thornberry terminates his service as a Member of
Congress at the close of this session (January 2, 1964) or term,
(January 2, 1965) we find that his Federal service will be as follows:

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Decause he will not meet the age and service requirements of the Retirement Act for an imediate annuity on either January 2, 1964 or January 2, 1965, the only benefit to which he will be entitled will be a deferred annuity commencing on his 60th birthday.

Assuming his appointment as a "Judge of the United States" is as defined
in 28 USC 451, Mr. Thornberry can apply for civil service annuity at age
60 and we will suspend the benefit until he "retires" under the judicial
retirement provisions or otherwise separates from his office as judge.
Ev filing for the civil service benefit at age 60 he would protect the
survivor annuity election for his wife to whom he was married at time of
retirement. Otherwise, should his death occur after separation as a
Beinber of Congress but before application for annuity is filed, a sur-
vivor anmuity benefit would be payable to his widow only if she were
married to him on the date of his separation as a Member.
We have made a tentative computation of the benefit payable when Mr.
Thornberry reaches age 60. The rates are:

I. 'Separation as of Jamary 2, 1964 .

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If I can furnish further information, do not hesitate to contact me.

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