B-156234, MAR. 10, 1965, 44 COMP. GEN. 544

B-156234: Mar 10, 1965

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MAY CONTINUE TO RECEIVE FULL PAY IF THE PRESIDENT FINDS IT IS NECESSARY TO APPOINT AN ADDITIONAL JUDGE FOR EFFICIENT DISPATCH OF BUSINESS. IF THE JUDGE IS A DISTRICT OR CIRCUIT JUDGE. IF THE PRESIDENT FINDS THAT THE JUDGE IS UNABLE TO DISCHARGE EFFICIENTLY ALL THE DUTIES OF HIS OFFICE BY REASON OF PERMANENT MENTAL OR PHYSICAL DISABILITY. THAT THE APPOINTMENT OF AN ADDITIONAL JUDGE IS NECESSARY FOR THE EFFICIENT DISPATCH OF BUSINESS. WHERE AN ADDITIONAL JUDGE IS APPOINTED. THE QUESTION OF HALF-PAY IS NOT INVOLVED. THEREFORE YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.

B-156234, MAR. 10, 1965, 44 COMP. GEN. 544

COURTS - JUDGES - COMPENSATION - FAILURE TO RETIRE FOR DISABILITY THE ACCEPTANCE BY THE PRESIDENT OF A CERTIFICATE CONCERNING THE DISABILITY OF A DISTRICT COURT JUDGE PRESENTED BY THE JUDICIAL COUNCIL OF THE PARTICULAR CIRCUIT PURSUANT TO 28 U.S.C. 372 (A), DOES NOT ACCOMPLISH THE RETIREMENT OF A JUDGE UNDER ARTICLE III, SECTION 1 OF THE CONSTITUTION, WHICH PROVIDES FOR REMOVAL OF JUDGES ONLY BY IMPEACHMENT, AND, THEREFORE, WHEN THE PRESIDENT FINDS IT NECESSARY TO APPOINT AN ADDITIONAL JUDGE FOR THE EFFICIENT DISPATCH OF BUSINESS, IN THE CASE OF A DISABLED JUDGE WHO DOES NOT RETIRE BECAUSE HE HAS NOT HAD THE REQUIRED SERVICE FOR RETIREMENT AT FULL PAY HE MAY CONTINUE TO RECEIVE FULL PAY.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MARCH 10, 1965:

YOUR LETTER OF MARCH 1, 1965, WITH ENCLOSURE, ASKS OUR OPINION WHETHER A DISTRICT JUDGE, FOUND TO BE DISABLED WITHIN THE PURVIEW OF THE ACT OF JUNE 24, 1948, 62 STAT. 903, AS AMENDED, 28 U.S.C. 372 (B), MAY CONTINUE TO RECEIVE FULL PAY IF THE PRESIDENT FINDS IT IS NECESSARY TO APPOINT AN ADDITIONAL JUDGE FOR EFFICIENT DISPATCH OF BUSINESS.

YOUR LETTER ENCLOSES A COPY OF A MEMORANDUM OPINION, DATED FEBRUARY 5, 1965, FROM THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, TO THE ACTING DEPUTY ATTORNEY GENERAL WHICH, IN PART, READS AS FOLLOWS:

2. FAILURE OF DISABLED JUDGE TO RETIRE. 28 U.S.C. 372 (B) CONTROLS THE SITUATION OF A JUDGE WHO COULD RETIRE UNDER 28 U.S.C. 372 (A) BUT FAILS TO DO SO. IF THE JUDGE IS A DISTRICT OR CIRCUIT JUDGE, A MAJORITY OF THE JUDICIAL COUNCIL OF HIS CIRCUIT (I.E., THE CHIEF JUDGE AND THE CIRCUIT JUDGES FOR THE CIRCUIT IN REGULAR ACTIVIE SERVICE, 28 U.S.C. 332) MAY PRESENT TO THE PRESIDENT A CERTIFICATE OF THE JUDGE'S DISABILITY. IF THE PRESIDENT FINDS THAT THE JUDGE IS UNABLE TO DISCHARGE EFFICIENTLY ALL THE DUTIES OF HIS OFFICE BY REASON OF PERMANENT MENTAL OR PHYSICAL DISABILITY, AND THAT THE APPOINTMENT OF AN ADDITIONAL JUDGE IS NECESSARY FOR THE EFFICIENT DISPATCH OF BUSINESS, THE PRESIDENT MAY MAKE SUCH APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. WHERE AN ADDITIONAL JUDGE IS APPOINTED, THE VACANCY SUBSEQUENTLY CREATED BY THE DEATH, RESIGNATION, OR RETIREMENT OF THE DISABLED JUDGE SHALL NOT BE FILLED. THE JUDGE, WHOSE DISABILITY CAUSES THE APPOINTMENT OF AN ADDITIONAL JUDGE, REMAINS A JUDGE, ENTITLED TO FULL PAY, SINCE UNDER THE CONSTITUTION HE CAN BE REMOVED ONLY BY IMPEACHMENT.

SINCE A CERTIFICATE OF DISABILITY, EVEN IF ACCEPTED BY THE PRESIDENT, DOES NOT ACCOMPLISH THE RETIREMENT OF A JUDGE, HE WOULD, AS MENTIONED ABOVE, BE ENTITLED TO FULL PAY. THUS THERE CAN BE NO VIOLATION OF ARTICLE III, SEC. 1, OF THE CONSTITUTION, AND THE QUESTION OF HALF-PAY IS NOT INVOLVED.

WE CONCUR IN THE ABOVE-QUOTED VIEW OF THE ASSISTANT ATTORNEY GENERAL. THEREFORE YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.