[Congressional Record Volume 147, Number 173 (Thursday, December 13, 2001)]
[Senate]
[Pages S13153-S13155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Hatch):
  S. 1828. A bill to amend subchapter III of chapter 83 and chapter 84 
of title 5, United States Code, to include Federal prosecutors within 
the definition of a law enforcement officer, and for other purposes; to 
the Committee on Governmental Affairs.
  Mr. LEAHY. Mr. President, I rise to introduce, with my good friend 
Senator Hatch, the Federal Prosecutors' Retirement Benefit Equity Act 
of 2001. This bill would correct an inequity that exists under current 
law, whereby Federal prosecutors receive substantially less favorable 
retirement benefits than other nearly all other people involved in the 
Federal criminal justice system. The bill would increase the retirement 
benefits given to Assistant United States Attorneys by including them 
as ``law enforcement officers'' ``LEOs'', under the Federal Employees' 
Retirement System and the Civil Service Retirement System. The bill 
would also allow the Attorney General to designate other attorneys 
employed by the Department of Justice who act primarily as criminal 
prosecutors as LEO's for purposes of receiving these retirement 
benefits.
  The primary reason for granting enhanced retirement benefits to LEOs 
is the often dangerous work of law enforcement. Currently, Assistant 
United States Attorneys, ``AUSAs'', and other Federal prosecutors are 
not eligible for these enhanced benefits, which are enjoyed by the vast 
majority of other employees in the criminal justice system. This 
exclusion is unjustified. The relevant provisions of the United States 
Code dealing with retirement benefits define an LEO as an employee 
whose duties are, ``primarily the investigation, apprehension, or 
detention'' of individuals suspected or convicted of violating Federal 
law. See 5 U.S.C. Sec. Sec. 8331(20) and 8401(17). AUSAs and other 
Federal prosecutors participate in planning investigations, 
interviewing witnesses both inside and outside of the office setting, 
debriefing defendants, obtaining warrants, negotiating plea agreements 
and representing the government at trials and sentencings, all of which 
fall within the definition of the duties performed by law enforcement 
officers. Indeed, once a defendant is brought into the criminal justice 
system, the person with whom they have the most fact-to-face contact, 
and often in an extremely confrontational environment, is the Federal 
prosecutor.
  Although prosecutors do not personally execute arrests, searches and 
other physically dangerous activities, LEO status is accorded to many 
criminal justice employees who do not perform such tasks, such as 
pretrial services officers and probation officers and accountants, 
cooks and secretaries of the Bureau of Prisons. Moreover, because they 
are often the most conspicuous representatives of the government in the 
criminal justice system, Federal prosecutors are natural targets for 
threats of reprisals by vengeful criminals. Indeed, there are numerous 
incidents in which assaults and serious death threats have been made 
against Federal prosecutors, sometimes resulting in significant 
disruption of their personal and family lives.
  Only recently a veteran Federal prosecutor in the Western District of 
Washington was murdered in his home, and, although the crime remains 
unsolved, based upon the facts of the case the authorities have 
referred to the crime as a hit. In addition, I have received many other 
accounts from Federal prosecutors regarding specific threats to which 
they and their families have been subjected because of the performance 
of their duties. Federal prosecutors have written to me that they have 
been forced to relocate themselves and their families due to death 
threats; that they have been assaulted; that they and their families 
have been followed by members of criminal organizations; that have been 
forced to install security systems at their homes and to change 
their routes to and from the office to protect their safety and the 
safety of their families.

  As our war against terrorism continues, Federal prosecutors will be 
on the front lines once again as the symbols of our criminal justice 
system, and

[[Page S13154]]

unfortunately therefore the targets of those who seek its downfall. 
Among other tasks, the Attorney General has designated AUSA's to play a 
major role working with police and Federal agents in forming each 
judicial district's Anti-Terrorism Task Force. One Federal prosecutors 
wrote to me stating that shortly after his name was in the local news 
as heading his district's Anti-Terrorism Task Force and he had spoken 
to his family about taking suitable precautions, that his young son 
came into his bedroom one night holding a hockey stick for protection 
asking about their safety. Thus, Federal prosecutors and their families 
will deal more than ever with a level of stress and danger that 
justifies their being treated as LEOs.
  Enhanced retirement benefits are also justified by the Federal 
Government's need for experienced prosecutors to bring ever more 
sophisticated cases under increasingly complex Federal criminal laws. 
In recent years, we have seen the growth of complex Federal prosecutors 
to combat the threats posed by organized crime, drug cartels, terrorist 
groups and other sophisticated criminals. The prosecution of such 
difficult cases is best handled by experienced prosecutors. It is 
therefore in the public interest to provide reasonable financial 
incentives for talented, experienced prosecutors to remain in 
government service.
  This bill would make Assistant United States Attorneys and other 
Federal prosecutors designated by the Attorney General eligible for 
immediate, unreduced retirement benefits at age 50 with 20 years of 
service. For example, prosecutors who are covered by the Civil Service 
Retirement System would receive 50 percent of the average of their 
three highest years' salary. At the same time, it would exempt 
prosecutors from the mandatory retirement provisions that require other 
law enforcement officers to retire at age 57. Because the loss of 
physical strength and agility does not adversely affect a person's 
ability to function as a prosecutor, there is no reason to mandate 
early retirement.
  Two important features of this bill will contain its costs. First, 
the bill provides that incumbent Federal prosecutors are themselves 
responsible for making up the difference in individual contributions 
owed to the Civil Service Retirement and Disability Fund for their 
prior service. An incumbent has the choice of making up this difference 
either by making a payment up front or by accepting a reduction in 
retirement benefits. Second, government contributions for the prior 
service of incumbents are made ratably over a ten-year period under 
this bill. Thus, payments for prior government contributions are spread 
out to lessen the financial impact. These two provisions will insure 
that the cost of the bill is kept well within reasons.
  This bill enjoys broad, grass root support. In the last month alone, 
I have received literally hundreds of letters supporting this bill, 
sent from over 40 States, District of Columbia and Puerto Rico. The 
bill also enjoys support in the law enforcement community. The National 
Association of Assistant United States Attorneys, the Federal Criminal 
Investigators Association, and the Southern States Police Benevolent 
Association have all written me to voice support for the inclusion of 
AUSAs in the definition of an LEO.
  In addition, I know that other Senators, including Senator Mikulski, 
are considering additional measures to expand these same retirement 
benefits to other Federal employees who perform law enforcement 
functions, including IRS employees whose primary duty is to collect 
delinquent taxes. I support and commend their leadership in bringing 
these matters to the forefront.
  For all of these reasons, I am pleased to introduce this legislation 
with Senator Hatch, and I urge its swift enactment into law.
  I ask unanimous consent that the text of the bill be printed in the 
Record along with a sectional analysis.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1828

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Prosecutors 
     Retirement Benefit Equity Act of 2001''.

     SEC. 2. INCLUSION OF FEDERAL PROSECUTORS IN THE DEFINITION OF 
                   A LAW ENFORCEMENT OFFICER.

       (a) Civil Service Retirement System.--
       (1) In general.--Paragraph (20) of section 8331 of title 5, 
     United States Code, is amended by striking ``position.'' and 
     inserting ``position and a Federal prosecutor.''.
       (2) Federal prosecutor defined.--Section 8331 of title 5, 
     United States Code, is amended--
       (A) in paragraph (27), by striking ``and'' at the end;
       (B) in paragraph (28), by striking the period and inserting 
     ``; and''; and
       (C) by adding at the end the following:
       ``(29) `Federal prosecutor' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; or
       ``(B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States.''.
       (b) Federal Employees' Retirement System.--
       (1) In general.--Paragraph (17) of section 8401 of title 5, 
     United States Code, is amended--
       (A) in subparagraph (C), by striking ``and'' at the end;
       (B) in subparagraph (D), by adding ``and'' after the 
     semicolon; and
       (C) by adding at the end the following:
       ``(E) a Federal prosecutor;''.
       (2) Federal prosecutor defined.--Section 8401 of title 5, 
     United States Code, is amended--
       (A) in paragraph (33), by striking ``and'' at the end;
       (B) in paragraph (34), by striking the period and inserting 
     ``; and''; and
       (C) by adding at the end the following:
       ``(35) `Federal prosecutor' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; or
       ``(B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States.''.
       (c) Treatment Under Certain Provisions of Law (Unrelated to 
     Retirement) To Remain Unchanged.--
       (1) Original appointments.--Subsections (d) and (e) of 
     section 3307 of title 5, United States Code, are amended by 
     adding at the end of each the following: ``The preceding 
     sentence shall not apply in the case of an original 
     appointment of a Federal prosecutor as defined under section 
     8331(29) or 8401(35).''.
       (2) Mandatory separation.--Sections 8335(b) and 8425(b) of 
     title 5, United States Code, are amended by adding at the end 
     of each the following: ``The preceding provisions of this 
     subsection shall not apply in the case of a Federal 
     prosecutor as defined under section 8331(29) or 8401(35).''.
       (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.

     SEC. 3. PROVISIONS RELATING TO INCUMBENTS.

       (a) Definitions.--In this section, the term--
       (1) ``Federal prosecutor'' means--
       (A) an assistant United States attorney under section 542 
     of title 28, United States Code; or
       (B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States; and
       (2) ``incumbent'' means an individual who is serving as a 
     Federal prosecutor on the effective date of this section.
       (b) Designated Attorneys.--If the Attorney General of the 
     United States 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 a 
     Federal prosecutor 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 a Federal prosecutor shall--

[[Page S13155]]

       (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) may, with respect to prior service 
     performed by such individual, contribute 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 should have 
     been made for such service if the amendments made by section 
     2 had then been in effect.
       (2) Effect of not contributing.--If no part of or less than 
     the full amount required under paragraph (1) is 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) of title 5, United States Code, to the 
     extent necessary to make up the amount unpaid.
       (3) Prior service defined.--For purposes of this section, 
     the term ``prior service'' means, with respect to any 
     individual who makes an election under subsection (d)(1)(A), 
     service performed by such individual before the date as of 
     which appropriate retirement deductions begin to be made in 
     accordance with such election.
       (g) Government Contributions for Prior Service.--
       (1) In general.--If an incumbent makes an election under 
     subsection (d)(1)(A), the Department of Justice shall remit 
     to the Office of Personnel Management, for deposit in the 
     Treasury of the United States to the credit of the Civil 
     Service Retirement and Disability Fund, the amount required 
     under paragraph (2) with respect to such service.
       (2) Amount required.--The amount the Department of Justice 
     is required to remit is, with respect to any prior service, 
     the total amount of additional Government contributions to 
     the Civil Service Retirement and Disability Fund (over and 
     above those actually paid) that would have been required if 
     the amendments made by section 2 had then been in effect.
       (3) Contributions to be made ratably.--Government 
     contributions under this subsection on behalf of an incumbent 
     shall be made by the Department of Justice ratably (on at 
     least an annual basis) over the 10-year period beginning on 
     the date referred to in subsection (f)(3).
       (h) 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 (f) shall be determined.
       (i) Effective Date.--This section shall take effect 120 
     days after the date of enactment of this Act.

     SEC. 4. DEPARTMENT OF JUSTICE ADMINISTRATIVE ACTIONS.

       (a) Definition.--In this section the term ``Federal 
     prosecutor'' has the meaning given under section 3(a)(1).
       (b) Regulations.--
       (1) In general.--Not later than 120 days after the date of 
     enactment of this Act, the Attorney General of the United 
     States shall--
       (A) consult with the Office of Personnel Management on this 
     Act (including the amendments made by this Act); and
       (B) promulgate regulations for making designations of 
     Federal prosecutors who are not assistant United States 
     attorneys.
       (2) Contents.--Any regulations promulgated under paragraph 
     (1) shall ensure that attorneys designated as Federal 
     prosecutors who are not assistant United States attorneys 
     have routine employee responsibilities that are substantially 
     similar to those of assistant United States attorneys 
     assigned to the litigation of criminal cases, such as the 
     representation of the United States before grand juries and 
     in trials, appeals, and related court proceedings.
       (c) Designations.--The designation of any Federal 
     prosecutor who is not an assistant United States attorney for 
     purposes of this Act (including the amendments made by this 
     Act) shall be at the discretion of the Attorney General of 
     the United States.
                                  ____


 Federal Prosecutors Retirement Benefit Equity Act of 2001--Section-by-
                            Section Analysis

       Sec. 1. Short title. Contains the short title, the 
     ``Federal Prosecutors Retirement Benefit Equity Act of 
     2001.''
       Sec. 2. Inclusion of Federal prosecutors in the definition 
     of a law enforcement officer. Amends 5 U.S.C. Sec. Sec. 8331 
     and 8401 to extend the enhanced law enforcement officer 
     (``LEO'') retirement benefits to Federal prosecutors, defined 
     to include assistant United States attorneys (``AUSAs'') and 
     such other attorneys in the Department of Justice as are 
     designated by the Attorney General of the United States. This 
     section also exempts Federal prosecutors from mandatory 
     retirement provisions for LEO's under the civil service laws.
       Sec. 3. Provisions relating to incumbents. Governs the 
     treatment of incumbent federal prosecutors who would be 
     eligible for LEO retirement benefits under this Act. This 
     section requires the Office of Personnel Management to 
     provide notice to incumbents of their rights under this 
     subtitle; allows incumbents to opt out of the LEO retirement 
     program; governs the crediting of prior service by 
     incumbents; and provides for make-up contributions for prior 
     service of incumbents to the Civil Service Retirement and 
     Disability Fund. The section gives incumbents the option of 
     either contributing their own share of any make-up 
     contributions or receiving a proportionally lesser retirement 
     benefit. The section allows the government to contribute its 
     share of any make-up contribution ratably over a ten year 
     period.
       Sec. 4. Department of Justice administrative actions. 
     Allows the Attorney General to designate additional 
     Department of Justice attorneys with substantially similar 
     responsibilities, in addition to assistant United States 
     attorneys, as Federal prosecutors for purposes of this Act 
     and thus be eligible for the LEO retirement benefits.

                          ____________________