§ 371. — Retirement on salary; retirement in senior status.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC371]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART I--ORGANIZATION OF COURTS
CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES
Sec. 371. Retirement on salary; retirement in senior status
(a) Any justice or judge of the United States appointed to hold
office during good behavior may retire from the office after attaining
the age and meeting the service requirements, whether continuous or
otherwise, of subsection (c) and shall, during the remainder of his
lifetime, receive an annuity equal to the salary he was receiving at the
time he retired.
(b)(1) Any justice or judge of the United States appointed to hold
office during good behavior may retain the office but retire from
regular active service after attaining the age and meeting the service
requirements, whether continuous or otherwise, of subsection (c) of this
section and shall, during the remainder of his or her lifetime, continue
to receive the salary of the office if he or she meets the requirements
of subsection (e).
(2) In a case in which a justice or judge who retires under
paragraph (1) does not meet the requirements of subsection (e), the
justice or judge shall continue to receive the salary that he or she was
receiving when he or she was last in active service or, if a
certification under subsection (e) was made for such justice or judge,
when such a certification was last in effect. The salary of such justice
or judge shall be adjusted under section 461 of this title.
(c) The age and service requirements for retirement under this
section are as follows:
Attained age: Years of service:
65.................................. 15
66.................................. 14
67.................................. 13
68.................................. 12
69.................................. 11
70.................................. 10
(d) The President shall appoint, by and with the advice and consent
of the Senate, a successor to a justice or judge who retires under this
section.
(e)(1) In order to continue receiving the salary of the office under
subsection (b), a justice must be certified in each calendar year by the
Chief Justice, and a judge must be certified by the chief judge of the
circuit in which the judge sits, as having met the requirements set
forth in at least one of the following subparagraphs:
(A) The justice or judge must have carried in the preceding
calendar year a caseload involving courtroom participation which is
equal to or greater than the amount of work involving courtroom
participation which an average judge in active service would perform
in three months. In the instance of a justice or judge who has sat
on both district courts and courts of appeals, the caseload of
appellate work and trial work shall be determined separately and the
results of those determinations added together for purposes of this
paragraph.
(B) The justice or judge performed in the preceding calendar
year substantial judicial duties not involving courtroom
participation under subparagraph (A), including settlement efforts,
motion decisions, writing opinions in cases that have not been
orally argued, and administrative duties for the court to which the
justice or judge is assigned. Any certification under this
subparagraph shall include a statement describing in detail the
nature and amount of work and certifying that the work done is equal
to or greater than the work described in this subparagraph which an
average judge in active service would perform in three months.
(C) The justice or judge has, in the preceding calendar year,
performed work described in subparagraphs (A) and (B) in an amount
which, when calculated in accordance with such subparagraphs, in the
aggregate equals at least 3 months work.
(D) The justice or judge has, in the preceding calendar year,
performed substantial administrative duties directly related to the
operation of the courts, or has performed substantial duties for a
Federal or State governmental entity. A certification under this
subparagraph shall specify that the work done is equal to the full-
time work of an employee of the judicial branch. In any year in
which a justice or judge performs work described under this
subparagraph for less than the full year, one-half of such work may
be aggregated with work described under subparagraph (A), (B), or
(C) of this paragraph for the purpose of the justice or judge
satisfying the requirements of such subparagraph.
(E) The justice or judge was unable in the preceding calendar
year to perform judicial or administrative work to the extent
required by any of subparagraphs (A) through (D) because of a
temporary or permanent disability. A certification under this
subparagraph shall be made to a justice who certifies in writing his
or her disability to the Chief Justice, and to a judge who certifies
in writing his or her disability to the chief judge of the circuit
in which the judge sits. A justice or judge who is certified under
this subparagraph as having a permanent disability shall be deemed
to have met the requirements of this subsection for each calendar
year thereafter.
(2) Determinations of work performed under subparagraphs (A), (B),
(C), and (D) of paragraph (1) shall be made pursuant to rules
promulgated by the Judicial Conference of the United States. In
promulgating such criteria, the Judicial Conference shall take into
account existing standards promulgated by the Conference for allocation
of space and staff for senior judges.
(3) If in any year a justice or judge who retires under subsection
(b) does not receive a certification under this subsection (except as
provided in paragraph (1)(E)), he or she may thereafter receive a
certification for that year by satisfying the requirements of
subparagraph (A), (B), (C), or (D) of paragraph (1) of this subsection
in a subsequent year and attributing a sufficient part of the work
performed in such subsequent year to the earlier year so that the work
so attributed, when added to the work performed during such earlier
year, satisfies the requirements for certification for that year.
However, a justice or judge may not receive credit for the same work for
purposes of certification for more than 1 year.
(4) In the case of any justice or judge who retires under subsection
(b) during a calendar year, there shall be included in the determination
under this subsection of work performed during that calendar year all
work performed by that justice or judge (as described in subparagraphs
(A), (B), (C), and (D) of paragraph (1)) during that calendar year
before such retirement.
(June 25, 1948, ch. 646, 62 Stat. 903; Oct. 31, 1951, ch. 655, Sec. 39,
65 Stat. 724; Feb. 10, 1954, ch. 6, Sec. 4(a), 68 Stat. 12; Pub. L. 98-
353, title II, Sec. 204(a), July 10, 1984, 98 Stat. 350; Pub. L. 100-
702, title X, Sec. 1005(a), Nov. 19, 1988, 102 Stat. 4666; Pub. L. 101-
194, title VII, Sec. 705(a), Nov. 30, 1989, 103 Stat. 1770; Pub. L. 104-
317, title III, Sec. 301, Oct. 19, 1996, 110 Stat. 3851; Pub. L. 106-
398, Sec. 1 [[div. A], title VI, Sec. 654(a)], Oct. 30, 2000, 114 Stat.
1654, 1654A-165; Pub. L. 106-518, title III, Sec. 303, Nov. 13, 2000,
114 Stat. 2417.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Secs. 375 and 375a (Mar. 3,
1911, ch. 231, Sec. 260, 36 Stat. 1161; Feb. 25, 1919, ch. 29, Sec. 6,
40 Stat. 1157; Mar. 1, 1929, ch. 419, 45 Stat. 1422; Mar. 1, 1937, ch.
21, Secs. 1, 2, 50 Stat. 24; Feb. 11, 1938, ch. 25, Sec. 1, 52 Stat. 28;
May 11, 1944, ch. 192, Sec. 1, 58 Stat. 218).
This section consolidates provisions of sections 375 and 375a of
title 28, U.S.C., 1940 ed., relating to resignation and retirement.
Remaining provisions of said section 375 now appear in sections 136,
294, and 756 of this title, and remaining provisions of said section
375a now appear in section 294 of this title.
Words ``may resign, or may retain his office but retire from regular
active service'' were used to clarify the difference between resignation
and retirement. Resignation results in loss of the judge's office, while
retirement does not. (Booth v. U.S., 1933, 54 S. Ct. 379, 291 U.S. 339,
78 L. Ed. 836; U.S. v. Moore, 1939, 101 F. 2d 56, certiorari denied 59
S. Ct. 788, 306 U.S. 664, 83 L. Ed. 1060.)
Terms ``judge of the United States'' and ``justice of the United
States'' are defined in section 451 of this title.
The revised section continues the provision respecting the salary of
a resigned judge but changes such provision for retired judges and makes
them eligible to receive any increases provided by Congress for the
office from which they retired. This change is in harmony with the clear
line of distinction drawn by Congress between retirement and
resignation.
Amendments
2000--Subsec. (b). Pub. L. 106-398, Sec. 1 [[div. A], title VI,
Sec. 654(a)(2)], substituted ``subsection (e)'' for ``subsection (f)''
wherever appearing.
Subsec. (e). Pub. L. 106-518, which directed amendment of subsec.
(e) by inserting ``, except such pay as is deductible from the retired
or retainer pay as a result of participation in any survivor's benefits
plan in connection with the retired pay,'' after ``such retired or
retainer pay'', could not be executed because of amendment by Pub. L.
106-398. See below.
Pub. L. 106-398, Sec. 1 [[div. A], title VI, Sec. 654(a)(1)],
redesignated subsec. (f) as (e) and struck out former subsec. (e) which
read as follows: ``Notwithstanding subsection (c) of section 5532 of
title 5, if a regular or reserve member or former member of a uniformed
service who is receiving retired or retainer pay becomes employed as a
justice or judge of the United States, as defined by section 451, or
becomes eligible therefor while so employed, such retired or retainer
pay shall not be paid during regular active service as a justice or
judge, but shall be resumed or commenced without reduction upon
retirement from the judicial office or from regular active service (into
senior status) as such justice or judge.''
Subsec. (f). Pub. L. 106-398, Sec. 1 [[div. A], title VI,
Sec. 654(a)(1)(B)], redesignated subsec. (f) as (e).
1996--Subsec. (f)(1)(D). Pub. L. 104-317, Sec. 301(b), inserted at
end ``In any year in which a justice or judge performs work described
under this subparagraph for less than the full year, one-half of such
work may be aggregated with work described under subparagraph (A), (B),
or (C) of this paragraph for the purpose of the justice or judge
satisfying the requirements of such subparagraph.''
Subsec. (f)(3). Pub. L. 104-317, Sec. 301(a), substituted ``may
thereafter receive a certification for that year by satisfying the
requirements of subparagraph (A), (B), (C), or (D) of paragraph (1) of
this subsection in a subsequent year and attributing a sufficient part
of the work performed in such subsequent year to the earlier year so
that the work so attributed, when added to the work performed during
such earlier year, satisfies the requirements for certification for that
year. However, a justice or judge may not receive credit for the same
work for purposes of certification for more than 1 year.'' for ``is
thereafter ineligible to receive such a certification.''
1989--Subsec. (b). Pub. L. 101-194, Sec. 705(a)(1), designated
existing provisions as par. (1), inserted ``or her'' after ``his'',
substituted ``of the office if he or she meets the requirements of
subsection (f)'' for ``of the office'', and added par. (2).
Subsec. (f). Pub. L. 101-194, Sec. 705(a)(2), added subsec. (f).
1988--Subsec. (e). Pub. L. 100-702 added subsec. (e).
1984--Pub. L. 98-353 substituted ``Retirement on salary; retirement
in senior status'' for ``Resignation or retirement for age'' in section
catchline.
Subsec. (a). Pub. L. 98-353 amended subsec. (a) generally,
substituting ``may retire from the office after attaining the age and
meeting the service requirements, whether continuous or otherwise, of
subsection (c) and shall, during the remainder of his lifetime, receive
an annuity equal to the salary he was receiving at the time he retired''
for ``who resigns after attaining the age of seventy years and after
serving at least ten years continuously or otherwise shall, during the
remainder of his lifetime, continue to receive the salary which he was
receiving when he resigned''.
Subsec. (b). Pub. L. 98-353 amended subsec. (b) generally,
substituting ``may retain the office but retire from regular active
service after attaining the age and meeting the service requirements,
whether continuous or otherwise, of subsection (c) of this section and
shall, during the remainder of his lifetime, continue to receive the
salary of the office'' for ``may retain his office but retire from
regular active service after attaining the age of seventy years and
after serving at least ten years continuously or otherwise, or after
attaining the age of sixty-five years and after serving at least fifteen
years continuously or otherwise. He shall, during the remainder of his
lifetime, continue to receive the salary of the office. The President
shall appoint, by and with the advice and consent of the Senate, a
successor to a justice or judge who retires''.
Subsecs. (c), (d). Pub. L. 98-353 added subsecs. (c) and (d).
1954--Act Feb. 10, 1954, struck out ``; substitute judge on failure
to retire'' in section catchline.
Subsec. (a). Act Feb. 10, 1954, reenacted subsec. (a) without
change.
Subsec. (b). Act Feb. 10, 1954, in first sentence, inserted
provision for retirement after attaining the age of 65 years and after
serving 15 years continuously or otherwise.
Subsec. (c). Act Feb. 10, 1954, in general amendment of section,
omitted subsec. (c) which related to appointment of substitute judges
for disabled judges eligible to resign or retire where the latter fail
to resign or retire, and to precedence of such disabled judges who
remain on the active list after the appointment of substitutes.
1951--Act Oct. 31, 1951, subdivided section into subsections, and
limited second par. of subsec. (c) (as so designated) to judges who
remain on the active list but whose disabilities cause the appointment
of additional judges as authorized by first par. of such subsec.
Effective Date of 2000 Amendment
Pub. L. 106-398, Sec. 1 [[div. A], title VI, Sec. 654(c)], Oct. 30,
2000, 114 Stat. 1654, 1654A-165, provided that: ``The amendments made by
this section [amending this section and repealing section 180 of this
title] shall take effect as of October 1, 1999.''
Effective Date of 1989 Amendment
Section 705(b) of Pub. L. 101-194 provided that:
``(1) In general.--The amendments made by subsection (a) [amending
this section] shall first apply with respect to work performed on or
after January 1, 1990, by a justice or judge of the United States who
has retired under section 371(b) of title 28, United States Code.
``(2) Calendar year 1990.--In the case of certifications required by
section 371(f) of title 28, United States Code, for calendar year 1990--
``(A) such certifications shall be based on the 10-month period
beginning on January 1, 1990, and ending on October 31, 1990, and
shall be completed not later than December 15, 1990;
``(B) determinations of work performed under section 371(f) of
title 28, United States Code, shall be made pro rata on the basis of
such 10-month period; and
``(C) such certifications shall be deemed to be certifications
made in calendar year 1991.''
Effective Date of 1988 Amendment
Section 1005(b) of Pub. L. 100-702 provided that: ``The amendment
made by this section [amending this section] shall apply to a justice or
judge who retires, or has retired, from the judicial office or from
regular active service (into senior status) as such justice or judge of
the United States on or after the effective date of section 5532(c) of
title 5 [effective 90 days after Oct. 13, 1978, see Effective Date of
1978 Amendment note under section 1101 of Title 5, Government
Organization and Employees], and to whom section 5532(c) would otherwise
be applicable.''
Effective Date of 1984 Amendment
Section 204(c) of Pub. L. 98-353 provided that: ``The amendments
made by this section [amending this section] shall apply with respect to
any justice or judge of the United States appointed to hold office
during good behavior who retires on or after the date of enactment of
this Act [July 10, 1984].''
Computation of Judicial Service, District of Alaska
Pub. L. 89-70, July 8, 1965, 79 Stat. 213, provided: ``That,
notwithstanding any other provision of law, any service as a judge of
the District Court for the Territory of Alaska shall be included in
computing under sections 371 and 372 of Title 28, United States Code,
the aggregate years of judicial service of a United States district
judge for the district of Alaska.''
Judicial Service in Hawaii Included Within Computation of Aggregate
Years of Judicial Service
Pub. L. 86-3, Sec. 14(d), Mar. 18, 1959, 73 Stat. 10, provided in
part: ``That service as a judge of the District Court for the Territory
of Hawaii or as a judge of the United States District Court for the
District of Hawaii or as a justice of the Supreme Court of the Territory
of Hawaii or as a judge of the circuit courts of the Territory of Hawaii
shall be included in computing under section 371, 372, or 373 of title
28, United States Code, the aggregate years of judicial service of any
person who is in office as a district judge for the District of Hawaii
on the date of enactment of this Act [Mar. 18, 1959].''
Section Referred to in Other Sections
This section is referred to in sections 178, 294, 331, 332, 353,
354, 364, 372, 375, 376, 377, 458, 621 of this title; title 5 sections
8440a, 8701, 8714a, 8714b; title 26 section 3121; title 42 section 409.
