[Congressional Record Volume 155, Number 22 (Wednesday, February 4, 2009)]
[Extensions of Remarks]
[Pages E215-E216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  RETIREMENT EQUITY FOR U.S. DISTRICT COURT JUDGE JOHN S. UNPINGCO OF 
                               PITI, GUAM

                                 ______
                                 

                       HON. MADELEINE Z. BORDALLO

                                of guam

                    in the house of representatives

                      Wednesday, February 4, 2009

  Ms. BORDALLO. Madam Speaker, today I have introduced a private relief 
bill to grant full annuity set forth in 28 U.S.C. 373 to the Honorable 
John S. Unpingco of Piti, Guam, former Judge of the United States 
District Court of Guam.
  Prior to his confirmation on October 8, 1992, by the United States 
Senate as Judge of the District Court of Guam, Judge Unpingco served a 
combined total of 27 years as an officer in the United States Air 
Force, the United States Air Force Reserve, and as a federal civilian 
employee in the Department of the Air Force. However, despite his long 
and distinguished career as a public servant, upon attaining the age of 
65 Judge Unpingco will not qualify for a full .annuity from the 
Administrative Office of the United States Courts (AO), from the United 
States Air Force, or from the Federal Government for his civilian 
service. Under current law, upon attaining the age of 65, Judge 
Unpingco can only receive an annuity prorated to his service on the 
federal bench and valued at approximately 12/15th of the salary he 
earned at the time he stepped down from the bench.
  The issue of retirement inequity is one unique to Judges appointed to 
serve on the bench for the District Courts of Guam, the Northern 
Mariana Islands, and the Virgin Islands. Each of these Courts was 
established pursuant to an Act of Congress enacted in under the 
authority of Congress to govern territories granted by Section 3 in 
Article IV of the Constitution. Article IV judges are appointed for 
fixed-length terms pursuant to statute. Article III judges, however, 
their counterparts serving on the bench in District Courts in the 50 
States and in the District of Columbia, are appointed for life in 
accordance with the Constitution.
  In the 109th Congress, I wrote with my colleague from the Virgin 
Islands, Mrs. Christensen, to the Judicial Conference of the United 
States, to request their review of draft legislation to amend 28 U.S.C. 
373 to allow for the retirement of Article IV judges under terms more 
equal to those provided under current law for judges of Article III 
Courts and the United States Tax Court. The Committee on the Judicial 
Branch of the Judicial Conference of the United States carefully 
examined our legislative proposals on this issue and responded in 
writing on January 5, 2006, indicating that this is a matter more 
appropriately addressed at this time through a private relief bill. To 
date, Congress has confirmed the appointments of 16 Judges to the 
Article IV Courts for the Districts of Guam, the Northern Mariana 
Islands, and the Virgin Islands. Length of terms has varied over time 
and across the three courts. There are unique circumstances surrounding 
Judge Unpingco's executive and judicial service. He separated from the 
civil service to fulfill a judicial responsibility on behalf of his 
country, and served on the federal bench in good faith.
  It is at the suggestion of the Committee on the Judicial Branch of 
the Judicial Conference of the United States and in accordance with 
precedent that I have introduced this private relief bill. I do so in 
the hopes that a distinguished public servant will collect the full and 
fair annuity that he selflessly worked toward over the course of his 27 
year career in public service. While I intend to introduce legislation 
at a later time to establish the District Court of Guam as an Article 
III Court, I remain concerned about current inequity in the law 
affecting Article IV Judges. Thirty-seven private bills have been 
enacted into law by the previous five Congresses. Congress has 
previously considered private relief bills pertaining to annuities 
payable to federal Judges, including for example for a Judge in a 
territory of the United States. The most recent example being S. 115 
for the relief of Judge Louis LeBaron, who was a Justice of the 
Territorial Supreme Court of Hawaii and which was introduced in the 1st 
Session of the 99th Congress on January 3, 1985.
  I look forward to working with the Chairman and Ranking Member of the 
Committee on the Judiciary to address the underlying inequity in 
retirement benefits for Article IV Judges and in this particular case 
to bring relief to Judge Unpingco through the enactment of the bill I 
have introduced today. I hereby enter for print in the Congressional 
Record to accompany the introduction of this bill and to supplement 
these remarks, the correspondence I exchanged with the Administrative 
Office of the United States Courts (AO) and the Judicial Conference of 
the United States and its enclosures on this matter.

                                    Congress of the United States,


                                     House of Representatives,

                                 Washington, DC, February 4, 2005.
     Mr. Leonidas Ralph Mecham,
     Director, The Administrative Office of the U.S. Courts, One 
         Columbus Circle, NE, One Columbus Circle, NE, Washington, 
         DC.
       Dear Director Mecham: We write to you in your capacity as 
     Secretary to the Judicial Conference of the United States, to 
     request the Judicial Conference's support for amending 
     Section 373, of Chapter 17, in Part I, of Title 28 of the 
     United States Code, to allow for the retirement of Article IV 
     judges of the District Court of Guam, the District Court of 
     the Northern Mariana Islands, and the District Court of the 
     Virgin Islands, under terms more equal to those provided 
     under current law for judges of Article III courts and judges 
     of the United States Tax Court. Specifically, we request the 
     Judicial Conference's support for the repeal of the age 
     restriction and the revision of the service requirement in 
     Section 373 to allow for retirement should a judge of an 
     Article IV Court not be reappointed.
       As you know, the U.S. District Courts in the 50 States and 
     Puerto Rico were created under Article III of the United 
     States Constitution. The District Courts of Guam, the 
     Northern Mariana Islands, and the Virgin Islands were created 
     by Congress under authority to govern territories granted by 
     Section 3 in Article IV of the United States Constitution. 
     Article III judges are appointed for life in accordance with 
     the United States Constitution whereas Article IV judges are 
     appointed for a term of ten years pursuant to statute. The 
     difference in terms of appointment is significant as it 
     pertains to retirement eligibility.
       Since Article III judges serving life-time terms may only 
     be removed for cause, there are few circumstances by which 
     fulfillment of resignation and retirement requirements is not 
     realized. However, Article IV judges do not enjoy the same 
     advantage. Under current law, an Article IV judge is first 
     eligible for retirement at age 65 provided he has accrued 15 
     years of judicial service. If upon expiration of his term, an 
     Article IV judge is not reappointed, he is eligible to 
     receive a proportional annuity upon reaching age 65 provided 
     he has at least ten years of judicial service.
       It is understood that Article III judges are appointed for 
     life-time terms because the framers of the Constitution 
     recognized that an effective and independent judiciary could 
     only be realized if judges were free from political 
     interference in their decision-making. We are seeking changes 
     to the retirement provisions for Article IV judges to provide 
     consistency with the principles espoused by the framers. 
     Article IV judges should not have to face the possibility of 
     having to seek employment at the expiration of their term. 
     Having to do so raises possible conflict of interest and 
     judicial independence concerns our founding fathers sought to 
     prevent from occurring.
       We are proposing that Article IV judges be afforded a 
     similar option to retire as judges in the U.S. Tax Court, who 
     also do not receive life-time appointments, but are eligible 
     to retire at the expiration of their term regardless of age. 
     Under Section 7447(b)(3) of Title 26 of the United States 
     Code, judges of the United States Tax Court who are not 
     reappointed can retire upon completion of their term provided 
     they have notified the President of their willingness to 
     accept reappointment within a specified period of time. We 
     are proposing similar consideration for Article IV judges. 
     Specifically, that an Article IV judge, who is not 
     reappointed, would be allowed to retire after the expiration 
     of their term. An Article IV judge retiring under this 
     provision would receive an annuity equal to 50% of the 
     judge's salary at the time of retirement. Then, upon reaching 
     the age of 65, the retired judge would be eligible to receive 
     the annuity amount authorized under current law (28 U.S.C. 
     373(e)).
       Alternatively, we propose that an Article IV judge, who has 
     at least ten years of judicial service, but is not 
     reappointed, and who has not reached the age of 65, be 
     eligible to retire at the expiration of his term provided he 
     has a combined total of 15 years of Federal service, 
     including a minimum of 10 years of judicial service, which 
     may include military and civil service.
       Enclosed, for your review, is draft legislative language 
     for each of these proposals. Amending the retirement 
     provisions would ensure the judicial independence of Article 
     IV judges and provide for their freedom from political 
     interference. In addition, it would place the Article IV 
     judges of the U.S. District Courts of Guam, the Mariana 
     Islands and the Virgin Islands on more equal terms with their 
     colleagues serving in other U.S. Courts. Thank you for your 
     consideration of this request. We look forward to working 
     with you to address this matter in the 109th Congress and 
     would appreciate your review of and comment on the enclosed 
     legislative proposals.
           Sincerely,
                                            Madeleine Z. Bordallo,
                                               Member of Congress.
                                             Donna M. Christensen,
                                               Member of Congress.
                                 ______
                                 

      Amendment No. 1 to 28 U.S.C. 373(e) Offered by Ms. Bordallo

       Section 373(e) of title 28, United States Code, is 
     amended--
       (1) by inserting ``(1)'' after ``(e)'';
       (2) by striking: ``, or who is not reappointed (as judge of 
     such court),''; and
       (3) by adding at the end the following:
       ``(2) Any judge of the District Court of Guam, the District 
     Court of the Northern

[[Page E216]]

     Mariana Islands, or the District Court of the Virgin Islands 
     who is not reappointed (as judge of such court) following the 
     expiration of his or her term of office shall, upon the 
     completion of such term, be entitled to receive, during the 
     remainder of his or her life, an annuity as follows:
       ``(A) If the judge has not yet attained the age of 65 
     years, the annuity of the judge shall be equal to 50 percent 
     of the salary the judge received when leaving office, subject 
     to subparagraph (B).
       ``(B) If the judge has attained the age of 65 years, or in 
     the case of a judge described in subparagraph (A), upon 
     attaining the age of 65 years--
       ``(i) if his or her judicial service, continuous or 
     otherwise, aggregates 15 years or more, the annuity of the 
     judge shall be equal to the salary received when leaving 
     office; or
       ``(ii) if his or her judicial service, continuous or 
     otherwise, aggregated less than 15 years but not less than 10 
     years, the annuity of the judge shall be equal to that 
     proportion of the salary received when leaving office which 
     the aggregate number of such years of judicial service bears 
     to 15.''.

      Amendment No. 2 to 28 U.S.C. 373(e) Offered by Ms. Bordallo

       Section 373(e) of title 28, United States Code, is 
     amended--
       (1) by inserting ``(1)'' after ``(e)'';
       (2) by striking ``, or who is not reappointed (as judge of 
     such court),''; and
       (3) by adding at the end the following:
       ``(2) Any judge of the District Court of Guam, the District 
     Court of the Northern Mariana Islands, or the District Court 
     of the Virgin Islands who is not reappointed (as judge of 
     such court) following the expiration of his or her term of 
     office shall, upon the completion of such term, be entitled 
     to receive, during the remainder of his or her life, an 
     annuity equal to the salary received when leaving office, if 
     the judicial service of the judge, continuous or otherwise, 
     aggregates 10 years or more, and the service of such judge as 
     an officer or employee of the United States, continuous or 
     otherwise, including military service, aggregates 15 years or 
     more.''.
                                 ______
                                 
                                            Jucicial Conference of


                                            the United States,

                                Washington, DC, February 23, 2005.
     Hon. Madeleine Z. Bordallo,
     House of Representatives, Cannon House Office Building, 
         Washington, DC.
     Hon. Donna M. Christensen,
     House of Representatives, Longworth House Office Building, 
         Washington, DC.
       Dear Delegates Bordallo and Christensen: Thank you for your 
     letter of February 4, 2005, requesting the judiciary's review 
     of draft legislation to amend the retirement provisions for 
     territorial district court judges contained in section 373, 
     of title 28, United States Code.
       By copy of this letter, I am requesting that the Judicial 
     Conference Committee on the Judicial Branch, which is chaired 
     by Chief Judge Deanell Reece Tacha (United States Court of 
     Appeals, Tenth Circuit), review and make any appropriate 
     recommendations to the Judicial Conference on this matter. 
     The Judicial Branch Committee has jurisdiction over judicial 
     compensation and benefits matters, including judges' 
     retirement.
       In the interim, should you have any questions or concerns, 
     please do not hesitate to contact Michael W. Blommer, 
     Assistant Director, Office of Legislative Affairs, at (202) 
     502-1700.
           Sincerely,
                                            Leonidas Ralph Mecham,
                                                        Secretary.
                                 ______
                                 
         Committee on the Judicial Branch, Judicial Conference of 
           the United States,
                                    Portland, ME, January 5, 2006.
     Hon. Madeleine Z. Bordallo,
     House of Representatives, Cannon House Office Building, 
         Washington, DC.
     Hon. Donna M. Christensen,
     House of Representatives, Longworth House Office Building, 
         Washington, DC.
       Dear Delegates Bordallo and Christensen: I am writing in 
     furtherance of Administrative Office Director Leonidas Ralph 
     Mecham's letter dated February 23, 2005, concerning your 
     request for Judicial Conference review of proposed 
     legislation to amend the retirement provisions for 
     territorial district court judges, contained in section 373 
     of title 28, United States Code.
       The Judicial Conference Committee on the Judicial Branch 
     discussed your legislation at length during its December 1-2, 
     2005, meeting. As discussed below, the Committee recommended 
     no action on this issue by the full Judicial Conference.
       The Committee considered both proposals at length. It was 
     the unanimous view of the Committee that the proposed 
     legislation involved matters that are essentially private 
     relief bills (intended to benefit a single territorial 
     district court judge) and that this objective should not be 
     achieved by amending title 28, United States Code. The 
     Committee's determination is consistent with Judicial 
     Conference precedent. During the 1970s, the Conference 
     declined to endorse legislation that was intended to benefit 
     a single territorial district court judge on at least three 
     occasions. At the time, the Conference declined to endorse 
     legislation that would have increased the retirement benefits 
     accruing to certain territorial judges for their services as 
     territorial judges in prior years (when the salary of that 
     position was less than $20,000 per year). The Conference was 
     of the view that the bill as framed would apply to only one 
     territorial judge and, therefore, if the Congress desired to 
     enact such legislation, it would better be accomplished by a 
     private bill (and not by amendment of title 28).
       I should note that the Committee also considered whether to 
     recommend to the Conference a more general resolution (e.g., 
     that the Conference resolve to recommend that Congress amend 
     the age and service provisions governing territorial district 
     judges' retirement (28 U.S.C. 373(a)) to make them more 
     congruent with those available to other fixed-term judges). 
     After considerable discussion, that proposal was also 
     considered to be unsatisfactory. The Committee believes that 
     territorial district judges accept their judgeships knowing 
     that non-reappointment is a possibility. There was also 
     concern about maintaining parity with other fixed-term 
     judges, such as bankruptcy and magistrate judges, whose 
     retirement system is contributory.
       I regret that my reply could not be more favorable. Should 
     you have any questions or concerns, please do not hesitate to 
     contact Cordia Strom, Assistant Director for Legislative 
     Affairs at the Administrative Office of the U.S. Courts, at 
     202/502-1100.
           Sincerely,
                                                  D. Brock Hornby,
     District Judge.

                          ____________________