B-147858, JAN. 25, 1962

B-147858: Jan 25, 1962

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YOUR LETTER STATES THE HISTORY OF JUDGE MCLAUGHLIN AS FOLLOWS: "JUDGE MCLAUGHLIN WAS BORN ON JUNE 7. FAILURE OF REAPPOINTMENT UPON EXPIRATION OF THE TERM OF OFFICE OF AN INCUMBENT" WAS MODIFIED TO READ: "WHO * * * FAILS OF REAPPOINTMENT.'. IN THE ABOVE STATUTES THE JUDGES MUST HAVE ATTAINED THE AGE OF 70 YEARS BEFORE FAILURE OF REAPPOINTMENT IN ORDER TO DERIVE THE BENEFITS PROVIDED. JUDGE MCLAUGHLIN'S TERM OF OFFICE WAS TERMINATED BY THE OPERATION OF SECTION 9 (A) AND HE FAILED OF REAPPOINTMENT AFTER 16 YEARS OF SERVICE. YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.

B-147858, JAN. 25, 1962

TO DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

YOUR LETTER OF DECEMBER 28, 1961, REQUESTS OUR DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES RELATED BELOW, THE HONORABLE J. FRANK MCLAUGHLIN, FORMER CHIEF JUDGE OF THE UNITED STATES DISTRICT COURT, HONOLULU, HAWAII, QUALIFIES FOR RETIREMENT BENEFITS UNDER 28 U.S.C. 373.

YOUR LETTER STATES THE HISTORY OF JUDGE MCLAUGHLIN AS FOLLOWS:

"JUDGE MCLAUGHLIN WAS BORN ON JUNE 7, 1908. HE SERVED CONTINUOUSLY FOR A PERIOD OF MORE THAN 16 YEARS AS A CIRCUIT JUDGE AND AS A UNITED STATES DISTRICT JUDGE FOR THE TERRITORY OF HAWAII UNDER THE FOLLOWING APPOINTMENTS:

CHART

DATE APPOINTED DATE OF OATH AND

AND AUTHORITY ENTRY ON DUTY TERM COMPENSATION

8-5-39 (48 U.S.C. 633) 8-26-39 4 YEARS $ 7,000 P.A.

2-22-43 (28 U.S.C. 133 AND 134)

3-8-43 6 DO. 10,000 P.A.

3-21-49 DO. 4-1-49 6 DO. 15,000 P.A. (*)

*SALARY INCREASED 3-1-55 TO $ 22,500 P.A. (*)

THE LANGUAGE CONCERNING THE FAILURE OF REAPPOINTMENT FIRST APPEARED IN SECTION 2 OF THE ACT OF MAY 31, 1938, 52 STAT. 591, PERTAINING TO THE RETIREMENT OF CERTAIN JUDGES IN THE TERRITORY OF HAWAII. THE SAME LANGUAGE APPEARED IN SECTION 2 OF THE ACT OF APRIL 16, 1946, 60 STAT. 91, WHICH ACT EXTENDED RETIREMENT BENEFITS TO JUDGES OF OTHER TERRITORIAL COURTS.

IN THE ACT OF JUNE 25, 1948, 62 STAT. 869, 904, 28 U.S.C. 373, 1952 EDITION, THE LANGUAGE ,FAILURE OF REAPPOINTMENT UPON EXPIRATION OF THE TERM OF OFFICE OF AN INCUMBENT" WAS MODIFIED TO READ: "WHO * * * FAILS OF REAPPOINTMENT.'

IN THE ABOVE STATUTES THE JUDGES MUST HAVE ATTAINED THE AGE OF 70 YEARS BEFORE FAILURE OF REAPPOINTMENT IN ORDER TO DERIVE THE BENEFITS PROVIDED.

HOWEVER, 28 U.S.C. 373, AS AMENDED BY THE ACT OF FEBRUARY 10, 1954, 68 STAT. 13, READS, IN PERTINENT PART, AS FOLLOWS:

"ANY JUDGE OF THE UNITED STATES DISTRICT COURTS FOR THE SUPREME COURT OF THE TERRITORY OF HAWAII WHO RESIGNS AFTER ATTAINING THE AGE OF SEVENTY YEARS AND AFTER SERVING AT LEAST TEN YEARS, CONTINUOUSLY OR OTHERWISE, SHALL CONTINUE DURING THE REMAINDER OF HIS LIFE TO RECEIVE THE SALARY HE RECEIVED WHEN HE RELINQUISHED OFFICE.

"ANY JUDGE OF ANY SUCH COURTS WHO * * * FAILS OF REAPPOINTMENT, SHALL BE ENTITLED, UPON ATTAINING THE AGE OF SIXTY-FIVE YEARS * * * (A) IF HIS JUDICIAL SERVICE AGGREGATED SIXTEEN YEARS OR MORE, TO RECEIVE DURING THE REMAINDER OF HIS LIFE THE SALARY HE RECEIVED WHEN HE RELINQUISHED OFFICE *

THUS 28 U.S.C. 373, AS AMENDED, PROVIDES THAT A JUDGE HAVING THE REQUIRED SERVICE AND WHO FAILS OF REAPPOINTMENT, SHALL, AFTER ATTAINING THE AGE OF 65, AGAIN BE ENTITLED TO RECEIVE THE SALARY HE RECEIVED WHEN HE RELINQUISHED OFFICE.

SECTION 9 (A) OF THE ACT OF MARCH 18, 1959, 73 STAT. 8, AN ACT TO PROVIDE FOR THE ADMISSION OF THE STATE OF HAWAII INTO THE UNION READS, IN PERTINENT PART, AS FOLLOWS:

"* * * THE TERMS OF OFFICE OF THE DISTRICT JUDGES FOR THE DISTRICT OF HAWAII THEN IN OFFICE SHALL TERMINATE UPON THE EFFECTIVE DATE OF THIS SECTION AND THE PRESIDENT, PURSUANT TO SECTIONS 133 AND 134 OF TITLE 28, U.S.C. AS AMENDED BY THIS ACT, SHALL APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TWO DISTRICT JUDGES FOR THE SAID DISTRICT * * *.'

ON AUGUST 21, 1959, JUDGE MCLAUGHLIN'S TERM OF OFFICE WAS TERMINATED BY THE OPERATION OF SECTION 9 (A) AND HE FAILED OF REAPPOINTMENT AFTER 16 YEARS OF SERVICE. THEREFORE, WE CONCLUDE IN LINE WITH YOUR EXPRESSED VIEW, THAT THE SEPARATION OF JUDGE MCLAUGHLIN ON AUGUST 21, 1959, BY OPERATION OF LAW RATHER THAN BY PASSAGE OF TIME, AND HIS FAILURE OF REAPPOINTMENT, BRINGS HIS CASE WITHIN THE PROVISIONS OF 28 U.S.C. 373. HENCE, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.