Reappointment of a Retired Judge to the Court of Federal Claims ( 1997 )

Reappointment of a Retired Judge to the Court of Federal
Claims
The President may nom inate and, subject to the advice and consent o f the S enate, appoint to the
U.S. C ourt o f Federal Claim s an individual w ho has previously retired from th at Court and w ho
is receiving a retirem ent annuity as a senior judge. U pon assum ption o f active judicial service,
the ju d g e m ust forfeit the retirem ent annuity for the duration o f the service
December 3, 1997
M e m o r a n d u m O p in io n f o r t h e D e p u t y A s s is t a n t A t t o r n e y G e n e r a l
O f f ic e o f P o l ic y D e v e l o p m e n t
This memorandum responds to your request for our opinion concerning whether
the President may reappoint to the United States Court of Federal Claims a
nominee who has completed a fifteen-year term on that court and is a retired
“ senior judge” as of the time of her nomination and subsequent reappointment.
For the reasons set forth below, we conclude that the President may nominate
and, with the advice and consent of the Senate, appoint a retired judge to the
Court of Federal Claims.
I.
We turn first to the statutory framework concerning the appointment and retire­
ment of judges serving on the Court of Federal Claims. The issue raised here
is whether under these provisions, a judge who has elected to take senior status
and receive the corresponding retirement annuity becomes ineligible for reappoint­
ment.
Section 171(a) of title 28 of the United States Code states that the “ President
shall appoint, by and with the advice and consent of the Senate,” sixteen judges
constituting the Court of Federal Claims. 28 U.S.C. § 171(a) (1994). Section 172
provides that each judge “ shall be appointed for a term of fifteen years.” 28
U.S.C. § 172 (1994).
Section 178 of title 28 prescribes certain criteria under which a judge on the
Court of Federal Claims is eligible to retire as a “ senior judge” and receive an
annuity.1 28 U.S.C. § 178(a)-(b) (1994). We understand that the judge in question
is eligible to take senior status and receive a retirement annuity under § 178(b),
which provides for the retirement of judges who have not been reappointed fol­
lowing the expiration of their terms of office.2
•The statute states that a “ senior ju d g e” shall perform certain judicial duties requested by the Chief Judge of
the court 28 U S C § 178(d)-(e) (1994)
2 In addition to those judges who are not reappointed (under specified circumstances), the statute also provides
that judges may take senior status and receive a retirement annuity based upon certain criteria relating to age and
Continued
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Opinions o f the Office o f Legal Counsel in Volume 21
The retirement provisions under § 178(b) appear to have been intended to sup­
port greater judicial independence by providing an annuity (equal to an active
judge’s salary) to those judges w ho would have accepted, but did not receive,
reappointment and who are not otherwise eligible to receive the retirement annuity
based upon age. See H.R. Rep. No. 101-734, at 24—25 (1990). Accordingly, to
be eligible for senior status and to receive the retirement annuity under § 178(b),
a judge must have served at least one full term on the court and have expressed
in writing to the President her willingness to be reappointed.3 28 U.S.C. § 178(b).
A judge meeting these eligibility requirements may then elect to take senior status
and to receive the retirement annuity pursuant to § 178 by notifying the Adminis­
trative Office of the United States Courts “ any time before the day after the day
on which his or her successor takes office.” Id. § 178(f)(1)(A) (1994).
The statute also sets out certain circumstances under which a retired judge will
forfeit, permanently or temporarily, the annuity otherwise due under § 178. See
generally 28 U.S.C. § 178(j) (1994). Specifically relevant here, a judge on the
Court o f Federal Claims who retires under the senior status annuity provisions
shall forfeit all rights to her annuity if she ‘ ‘accepts compensation for civil office
or employment under the Government of the United States” other than for her
judicial duties as a senior judge on the Court of Federal Claims. Id. § 178(j)(3).
The forfeiture, however, is limited to the period during which such compensation
is received. Id.
II.
Upon review of the statutory scheme regarding the appointment and retirement
of judges on the Court of Federal Claims, we find no relevant limitation on whom
the President may nominate and appoint. First, § 171 provides for presidential
appointment, subject only to the advice and consent of the Senate. The provision
is straightforward and includes no restriction on presidential appointment or other
requirement for eligibility.
Second, we find nothing in the retirement scheme in § 178 or elsewhere in the
statute that limits, by implication or otherwise, the ability of the President to
reappoint a retired judge to the Court of Federal Claims. The time frame pre­
scribed in the statute during which a Federal Claims judge must express interest
in reappointment limits only the eligibility of the judge to take senior status retire­
length of service 28 U S C § 178(a). A judge who retires or who is removed from office solely on the basis of
disability is also eligible to receive the retirement annuity, but cannot retire as a “ senior judge ” Id. § 178(c), (e)(1).
3The statute further prescribes that the ju d g e ’s willingness to serve another term must be expressed within a
specific time period: not earlier than nine months prior to the expiration of her term and not later than six months
pnor to the date o f expiration 28 U S C § 178(b)(2) We understand that the judge in question has expressed her
willingness to accept reappointment within the prescribed time frame
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Reappointment o f a Retired Judge to the Court o f Federal Claims
ment and receive the annuity under § 178; it does not limit or even relate to the
judge’s eligibility for reappointment.4
Furthermore, the annuity scheme contemplates that a senior judge receiving an
annuity may accept subsequent government employment. In such a case, the
statute provides that during the period she accepts other federal compensation,
the senior judge forfeits the annuity that she would receive as a senior judge.
28 U.S.C. § 178(j)(3). Thus, it appears that a judge who has retired under § 178
may be reappointed to the court and, upon resumption of active service, would
forfeit her retirement annuity during the period of her term of office.
Third, we find nothing in the legislative history of the statute that suggests any
intention to limit the President’s ability to reappoint a retired judge. As we have
observed, the retirement provisions under § 178(b) appear to have been designed
to foster judicial independence by providing an annuity to those judges who,
although willing to serve, are not reappointed to another term. Thus, the legislative
purpose of the retirement provisions appears to have been to protect judges from
the failure of reappointment, not to prevent such reappointment.
III.
On the basis of the plain language of the statute and its purpose, we conclude
that pursuant to 28 U.S.C. § 171, the President may nominate and, subject to the
advice and consent of the Senate, appoint to the Court of Federal Claims an indi­
vidual who has previously retired from the Court and who is receiving, under
28 U.S.C. § 178, a retirement annuity as a senior judge. Upon assumption of active
judicial service as a Federal Claims judge, the judge would be required to forfeit
her retirement annuity for the duration of her compensated service as an active
judge.
BETH NOLAN
Deputy Assistant Attorney General
Office o f Legal Counsel
4 Thus, for the purposes o f the appointment issue considered here, whether the judge in question has expressed
formally her willingness to accept reappointment within the statutory penod is relevant only as condition precedent
to her taking senior status A judge who failed to so notify the President would be ineligible to receive a retirement
annuity under § 178, but nothing would prevent the President from reappointing the judge notwithstanding her failure
to notify him
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