II 109th CONGRESS 1st Session S. 2076 IN THE SENATE OF THE UNITED STATES November 18, 2005 Mr. Leahy (for himself, Mr. Hatch, Ms. Mikulski, Mr. Durbin, Mr. DeWine, Mr. Biden, Mrs. Feinstein, Mr. Feingold, Mr. Smith, Mr. Dodd, Mr. Chambliss, Mr. Rockefeller, Mr. Lieberman, Mrs. Boxer, Mr. Wyden, Mr. Nelson of Florida, and Mr. Corzine) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend title 5, United States Code, to provide to assistant United States attorneys the same retirement benefits as are afforded to Federal law enforcement officers.

1.

Short title

This Act may be cited as the Assistant United States Attorney Retirement Benefit Equity Act of 2005.

2.

Retirement treatment of assistant United States attorneys

(a)

Civil service retirement system

(1)

Assistant United States attorney defined

Section 8331 of title 5, United States Code, is amended— (A)in paragraph (28), by striking and at the end; (B)in the first paragraph (29), by striking the period and inserting a semicolon; (C)in the second paragraph (29)— (i)by striking (29) and inserting (30); and (ii)by striking the period and inserting ; and; and (D)by adding at the end the following: (31)assistant United States attorney means— (A)an assistant United States attorney under section 542 of title 28; and (B)any other attorney employed by the Department of Justice occupying a position designated by the Attorney General upon finding that the position— (i)involves routine employee responsibilities that are substantially similar to those of assistant United States attorneys; and (ii)is critical to the Department’s successful accomplishment of an important mission. . (2)

Retirement treatment

Chapter 83 of title 5, United States Code, is amended by adding after section 8351 the following:

8352.

Assistant United States attorneys

Except as provided under the Assistant United States Attorneys Retirement Benefit Equity Act of 2005 (including the provisions relating to the non-applicability of mandatory separation requirements under section 8335(b) and 8425(b) of this title), an assistant United States attorney shall be treated in the same manner and to the same extent as a law enforcement officer for purposes of this chapter.

. (3)

Technical and conforming amendments

(A)The table of sections for chapter 83 of title 5, United States Code, is amended by inserting after the item relating to section 8351 the following: 8352. Assistant United States attorneys. (B)Section 8335(a) of such title is amended by striking 8331(29)(A) and inserting 8331(30)(A). (b)

Federal employees’ retirement system

(1)

Assistant United States attorney defined

Section 8401 of title 5, United States Code, is amended— (A)in paragraph (34), by striking and at the end; (B)in paragraph (35), by striking the period and inserting ; and; and (C)by adding at the end the following: (36)assistant United States attorney means— (A)an assistant United States attorney under section 542 of title 28; and (B)any other attorney employed by the Department of Justice occupying a position designated by the Attorney General upon finding that the position— (i)involves routine employee responsibilities that are substantially similar to those of assistant United States attorneys; and (ii)is critical to the Department’s successful accomplishment of an important mission. . (2)

Retirement treatment

Section 8402 of title 5, United States Code, is amended by adding at the end the following: (h)Except as provided under the Assistant United States Attorneys Retirement Benefit Equity Act of 2005 (including the provisions relating to the non-applicability of mandatory separation requirements under section 8335(b) and 8425(b) of this title), an assistant United States attorney shall be treated in the same manner and to the same extent as a law enforcement officer for purposes of this chapter. . (c)

Mandatory separation

Sections 8335(b) and 8425(b) of title 5, United States Code, are amended by adding at the end the following: The preceding provisions of this subsection shall not apply in the case of an assistant United States attorney as defined under section 8331(31) or 8401(36).. (d)

Effective date

The amendments made by this section shall take effect on the first day of the first applicable pay period beginning on or after 120 days after the date of enactment of this Act.

3.

Provisions relating to incumbents

(a)

Definitions

In this section— (1)the term assistant United States attorney means— (A)an assistant United States attorney under section 542 of title 28, United States Code; and (B)any other attorney employed by the Department of Justice occupying a position designated by the Attorney General upon finding that the position— (i)involves routine employee responsibilities that are substantially similar to those of assistant United States attorneys; and (ii)is critical to the Department’s successful accomplishment of an important mission; and (2)the term incumbent means an individual who is serving as an assistant United States attorney on the effective date of this section. (b)

Designated attorneys

If the Attorney General makes any designation of an attorney to meet the definition under subsection (a)(1)(B) for purposes of being an incumbent under this section— (1)such designation shall be made before the effective date of this section; and (2)the Attorney General shall submit to the Office of Personnel Management before that effective date— (A)the name of the individual designated; and (B)the period of service performed by that individual as an assistant United States attorney before that effective date. (c)

Notice requirement

Not later than 9 months after the date of enactment of this Act, the Department of Justice shall take measures reasonably designed to provide notice to incumbents on— (1)their election rights under this Act; and (2)the effects of making or not making a timely election under this Act. (d)

Election available to incumbents

(1)

In general

An incumbent may elect, for all purposes, to be treated— (A)in accordance with the amendments made by this Act; or (B)as if this Act had never been enacted. (2)

Failure to elect

Failure to make a timely election under this subsection shall be treated in the same way as an election under paragraph (1)(A), made on the last day allowable under paragraph (3). (3)

Time limitation

An election under this subsection shall not be effective unless the election is made not later than the earlier of— (A)120 days after the date on which the notice under subsection (c) is provided; or (B)the date on which the incumbent involved separates from service. (e)

Limited retroactive effect

(1)

Effect on retirement

In the case of an incumbent who elects (or is deemed to have elected) the option under subsection (d)(1)(A), all service performed by that individual as an assistant United States attorney and, with respect to (B) below, including any service performed by such individual pursuant to an appointment under sections 515, 541, 543, and 546 of title 28, United States Code, shall— (A)to the extent performed on or after the effective date of that election, be treated in accordance with applicable provisions of subchapter III of chapter 83 or chapter 84 of title 5, United States Code, as amended by this Act; and (B)to the extent performed before the effective date of that election, be treated in accordance with applicable provisions of subchapter III of chapter 83 or chapter 84 of such title, as if the amendments made by this Act had then been in effect. (2)

No other retroactive effect

Nothing in this Act (including the amendments made by this Act) shall affect any of the terms or conditions of an individual’s employment (apart from those governed by subchapter III of chapter 83 or chapter 84 of title 5, United States Code) with respect to any period of service preceding the date on which such individual’s election under subsection (d) is made (or is deemed to have been made). (f)

Individual contributions for prior service

(1)

In general

An individual who makes an election under subsection (d)(1)(A) shall, with respect to prior service performed by such individual, deposit, with interest, to the Civil Service Retirement and Disability Fund the difference between the individual contributions that were actually made for such service and the individual contributions that would have been made for such service if the amendments made by section 2 of this Act had then been in effect. (2)

Effect of not contributing

If the deposit required under paragraph (1) is not paid, all prior service of the incumbent shall remain fully creditable as law enforcement officer service, but the resulting annuity shall be reduced in a manner similar to that described in section 8334(d)(2)(B) of title 5, United States Code. This paragraph shall not apply in the case of a disability annuity. (3)

Prior service defined

For purposes of this section, the term prior service means, with respect to any individual who makes an election (or is deemed to have made an election) under subsection (d)(1)(A), all service performed as an assistant United States attorney, but not exceeding 20 years, performed by such individual before the date as of which applicable retirement deductions begin to be made in accordance with such election. (g)

Regulations

Except as provided under section 4, the Office of Personnel Management shall prescribe regulations necessary to carry out this Act, including provisions under which any interest due on the amount described under subsection (e) shall be determined. (h)

Effective date

This section shall take effect 120 days after the date of enactment of this Act.

4.

Department of Justice administrative actions

(a)

Regulations

(1)

In general

Not later than 120 days after the date of enactment of this Act, the Attorney General, in consultation with the Office of Personnel Management, shall promulgate regulations for designating attorneys described under section 3(a)(1)(B). (2)

Contents

Any regulation promulgated under paragraph (1) shall ensure that attorneys designated as assistant United States attorneys described under section 3(a)(1)(B) have routine employee responsibilities that are substantially similar to those of assistant United States attorneys. (b)

Designations

The designation of any attorney as an assistant United States attorney described under section 3(a)(1)(B) shall be at the discretion of the Attorney General.