B-131119, MAR. 28, 1957

B-131119, MAR. 28, 1957

TO HONORABLE ELMORE WHITEHURST, ACTING DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

YOUR LETTER OF MARCH 20, 1957, REQUESTS OUR DECISION WHETHER WIDOWS OF FORMER JUDGES WH DIED PRIOR TO AUGUST 3, 1956, AND WHO, PREVIOUS TO THEIR DEATHS, HAD RESIGNED ON SALARY UNDER THE PROVISIONS OF SECTION 371 (A) OF TITLE 28, U.S.C. INSTEAD OF RETIRING UNDER SECTION 371 (B), ARE ELIGIBLE TO RECEIVE AN ANNUITY UNDER SECTION 7 OF THE ACT OF AUGUST 3, 1956, PUBLIC LAW 973.

SECTION 7 OF PUBLIC LAW 973, 70 STAT. 1026, 28 U.S.C. 376 PROVIDES AS FOLLOWS:

"SEC. 7. IN THE CASE OF A LIVING WIDOW OF A JUDGE OF THE UNITED STATES AS DEFINED IN SECTION 451 OF TITLE 28, U.S.C. WHO DIED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, AN ANNUITY SHALL BE PAID AS PROVIDED IN SECTION 376 OF TITLE 28, U.S.C. AS ADDED BY SECTION 2 OF THIS ACT, AS IF SUCH JUDGE HAD DIED ON SUCH DATE AND HAD ELECTED TO BRING HIMSELF WITHIN THE PURVIEW OF SUCH SECTION 376, BUT HAD NOT MADE THE DEPOSIT PROVIDED FOR BY SUBSECTION (C) OF THE SAID SECTION: * * *"

THE TERM "JUDGE OF THE UNITED STATES," AS DEFINED IN 28 U.S.C. 451, INCLUDES JUDGES OF THE COURTS OF APPEALS, DISTRICT COURTS, COURT OF CLAIMS, COURT OF CUSTOMS AND PATENT APPEALS, CUSTOMS COURT AND ANY COURT CREATED BY ACT OF CONGRESS, THE JUDGES OF WHICH ARE ENTITLED TO HOLD OFFICE DURING GOOD BEHAVIOR.

IN EXPLANATION OF SECTION 7 OF PUBLIC LAW 973, THE MANAGERS IN THE CONFERENCE REPORT ON THE BILL, HOUSE REPORT 2934, 84TH CONGRESS, MADE THE FOLLOWING STATEMENT:

"THE HOUSE VERSION ALSO PROVIDED FOR ANNUITIES FOR LIVING WIDOWS OF A JUDGE WHO HAD DIED PRIOR TO THE ENACTMENT OF THIS ACT. THE PROVISION FURTHER PROVIDED THAT SUCH WIDOW WOULD BE ELIGIBLE REGARDLESS OF THE LENGTH OF SERVICE RENDERED BY THE DECEASED JUDGE. THE SENATE VERSION CONTAINED NO SUCH A PROVISION TO COVER THE CASE OF LIVING WIDOWS OF DECEASED FEDERAL JUDGES. THE CONFERENCE ADOPTED THE LANGUAGE OF THE HOUSE BILL AND ALSO PROVIDED THAT ANNUITY SHOULD BE PAYABLE REGARDLESS OF THE REQUIREMENTS THAT A JUDGE EITHER HAVE RENDERED 5 YEARS OF ALLOWABLE CIVILIAN SERVICE OR TO HAVE SERVED LESS THAN THE 5 YEARS AS A JUDGE BUT TO HAVE PAID BACK INTO THE FUND THE REQUIRED DEPOSITS FOR PREVIOUSLY RENDERED SERVICE. THUS, THE LANGUAGE ADOPTED BY THE CONFERENCE WOULD COVER ALL CASES OF LIVING WIDOWS OF FEDERAL JUDGES WHO DIED PRIOR TO THE ENACTMENT OF THE ACT.'

IT WOULD APPEAR FROM THE FOREGOING THAT THE WIDOWS OF ALL JUDGES FALLING WITHIN THE PURVIEW OF 28 U.S.C. 451, WHO DIED PRIOR TO THE DATE OF ENACTMENT OF PUBLIC LAW 973, ARE ENTITLED TO A SURVIVOR'S ANNUITY REGARDLESS OF WHETHER THEIR HUSBANDS, ON DATE OF DEATH, HAD RESIGNED ON A SALARY UNDER 28 U.S.C. 371 (A) OR HAD RETIRED UNDER OTHER PROVISIONS OF LAW.

THIS VIEW IS STRENGTHENED BY REFERENCE TO SECTION 6 OF PUBLIC LAW 973, WHICH STATES EXPRESSLY THAT A JUDGE WHO RESIGNED ON SALARY UNDER SECTION 371 (A) OT TITLE 28, U.S.C. SHALL BE CONSIDERED A JUDGE WITHIN THE MEANING OF SECTION 376, AS ADDED BY PUBLIC LAW 973, SUBSECTION (G) OF WHICH SPECIFICALLY PROVIDES ANNUITIES TO WIDOWS OF JUDGES WHO RESIGNED ON SALARY AFTER THE PASSAGE OF THE ACT.

ACCORDINGLY, WE CONCLUDE THAT SECTION 7 OF THE STATUTE INCLUDES WIDOWS OF JUDGES WHO RESIGNED ON SALARY AND WHO DIED PRIOR TO THE ACT OF AUGUST 3, 1956, PUBLIC LAW 973.

IN CONSONANCE WITH THE ABOVE, PAYMENT TO THOSE WIDOWS WHICH HAVE BEEN WITHHELD MAY BE RESUMED.