< Back to H.R. 4091 (111th Congress, 2009–2010)

Text of the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009

This bill was introduced on November 17, 2009, in a previous session of Congress, but was not enacted. The text of the bill below is as of Nov 17, 2009 (Introduced).

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I

111th CONGRESS

1st Session

H. R. 4091

IN THE HOUSE OF REPRESENTATIVES

November 17, 2009

(for himself, Mr. Gohmert, Mr. Johnson of Georgia, Mr. Franks of Arizona, Mr. Moran of Virginia, Mr. Cao, Mr. Hastings of Florida, Mr. McCaul, Mrs. Davis of California, Mr. Schiff, Mr. Daniel E. Lungren of California, Mr. Pierluisi, Ms. Baldwin, Mr. Davis of Alabama, and Mr. Frank of Massachusetts) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend titles 18 and 28 of the United States Code to provide incentives for the prompt payments of debts owed to the United States and the victims of crime by imposing late fees on unpaid judgments owed to the United States and to the victims of crime, to provide for offsets on amounts collected by the Department of Justice for Federal agencies, to increase the amount of special assessments imposed upon convicted persons, to establish an Enhanced Financial Recovery Fund to enhance, supplement, and improve the debt collection activities of the Department of Justice, 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, and for other purposes.

1.

Short title

This Act may be cited as the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009.

2.

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—Enhanced financial recovery

Sec. 101. Unpaid fines and restitution.

Sec. 102. Remission of criminal monetary penalties.

Sec. 103. Prioritization of restitution efforts.

Sec. 104. Imposition of civil late fee.

Sec. 105. Increase in the amount of special assessments.

Sec. 106. Enhanced financial recovery fund.

Sec. 107. Effective dates.

TITLE II—Equitable retirement treatment of assistant United States attorneys

Sec. 201. Retirement treatment of assistant United States attorneys.

Sec. 202. Provisions relating to incumbents.

Sec. 203. Agency share contributions.

Sec. 204. Effective date.

I

Enhanced financial recovery

101.

Unpaid fines and restitution

(a)

In general

Section 3612 of title 18, United States Code, is amended—

(1)

by striking subsections (d), (e), (g), (h), and (i); and

(2)

by inserting after subsection (c) the following:

(d)

Imposition of late fee

(1)

In general

A late fee shall be imposed upon a defendant if fines or restitution obligations of the defendant totaling not less than $2,500 unpaid as of the date specified in subsection (f)(1). The late fee imposed under this paragraph shall be 5 percent of the unpaid principal balance for an individual and 10 percent for any other person.

(2)

Allocation of payments

(A)

Fine

Subject to subparagraph (C), if a late fee is imposed under paragraph (1) for a fine—

(i)

an amount equal to 95 percent of each payment made by a defendant shall be credited to the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) or as otherwise provided in that section; and

(ii)

an amount equal to 5 percent of each payment shall be credited to the Department of Justice Enhanced Financial Recovery Fund established under section 106 of the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009.

(B)

Restitution

Subject to subparagraph (C), if a late fee is imposed under paragraph (1) for a restitution obligation—

(i)

an amount equal to 95 percent of each payment shall be paid to any victim identified by the court; and

(ii)

an amount equal to 5 percent of each payment shall be credited to the Department of Justice Enhanced Financial Recovery Fund established under section 106 of the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009.

(C)

Order of payments

Payments for fines or restitution shall be applied first to the principal and, if any, the late fee under paragraph (1). If the amount due on either the principal or the late fee has been paid in full and the other amount due remains unpaid, all payments for fines or restitution shall then be applied to the other unpaid obligation. If the principal and the late fee have been paid in full, all payments for fines or restitution shall then be applied to interest.

(3)

Definitions

In this subsection—

(A)

the term fines or restitution obligations does not include any amount that is imposed as interest, costs, or a late fee;

(B)

the term principal does not include any amount that is imposed as interest, penalty, or a late fee; and

(C)

the term restitution includes any unpaid balance due to a person identified in any judgment, or order of restitution, entered in any criminal case.

(e)

Waiver of Interest, Penalty, or Late Fees

(1)

In general

The Attorney General may waive all or part of any interest or late fee under this section or any interest or penalty imposed under any other provision of law if the Attorney General determines that reasonable efforts to collect the interest, late fee, or penalty are not likely to be effective.

(2)

Waiver by court

The court may waive the uncollected portion of a late fee, upon the motion of the defendant, and a showing, by a preponderance of the evidence, that—

(A)

the defendant has made a good faith effort to satisfy all unpaid fines or restitution obligations;

(B)

despite the good faith efforts of the defendant, the defendant is not likely to satisfy the obligations within the time provided for under section 3613 of this title; and

(C)

the continued collection of a late fee would constitute an undue burden upon the defendant.

.

(b)

Repeal of delinquency and default provisions

Section 3572 of title 18, United States Code, is amended by striking subsections (h) and (i).

102.

Remission of criminal monetary penalties

Section 3573 of title 18, United States Code, is amended to read as follows:

3573.

Petition of the Government for modification or remission

(a)

In general

Upon petition of the Government showing that reasonable efforts to collect a fine, restitution obligation, or special assessment are not likely to be effective, the court may, in the interest of justice, remit all or any part of the fine, restitution obligation, or special assessment, including interest, penalty, and late fees.

(b)

Victims other than the United States

In the case of a restitution obligation owed to a victim other than the United States, the express and clearly voluntary consent of the victim is required before the court may grant such petition. No defendant shall initiate contact with a victim for the purpose of securing consent to a possible remission except through counsel, the United States attorney, or in such a manner as first approved by the court as safe and noncoercive.

.

103.

Prioritization of restitution efforts

Section 3771 of title 18, United States Code, is amended by adding the following subsection:

(g)

Guidelines

(1)

In general

The Attorney General shall promulgate guidelines to ensure the effective and efficient enforcement of all criminal and civil obligations which are owed to the United States and enforced by the Department of Justice.

(2)

Contents

The guidelines promulgated under paragraph (1) shall require consideration, in making decisions relating to enforcement of criminal and civil obligations which are owed to the United States, of the amount due, the amount collectible, and whether the amount is due to individuals who are not likely to be able to enforce the obligation without assistance from the Department of Justice.

.

104.

Imposition of civil late fee

(a)

In general

Section 3011 of title 28, United States Code, is amended to read as follows:

3011.

Imposition of late fee

(a)

In general

A late fee shall be imposed on a defendant if there is an unpaid balance due to the United States on any money judgment in a civil matter recovered in a district court as of—

(1)

the fifteenth day after the date of the judgment; or

(2)

if the day described in paragraph (1) is a Saturday, Sunday, or legal public holiday, the next day that is not a Saturday, Sunday, or legal holiday.

(b)

Amount of late fee

A late fee imposed under subsection (a) shall be 5 percent of the unpaid principal balance for an individual and 10 percent for any other person.

(c)

Allocation of payments

Subject to subsection (d), if a late fee is imposed under subsection (a)—

(1)

an amount equal to 95 percent of each principal payment made by a defendant shall be credited as otherwise provided by law; and

(2)

an amount equal to 5 percent of each principal payment shall be credited to the Department of Justice Enhanced Financial Recovery Fund established under section 106 of the Enhanced Financial Recovery and Equitable Retirement Treatment Act of 2007.

(d)

Order of payments

Payments for a money judgment in a civil matter shall be applied first to the principal and, if any, the late fee under subsection (a). If the amount due on either the principal or the late fee has been paid in full and the other amount due remains unpaid, all payments for a money judgment in a civil matter shall be applied to the other unpaid obligation. If the principal and the late fee have been paid in full, all payments for a money judgment in a civil matter shall then be applied to interest.

(e)

Definitions

In this section—

(1)

the term principal does not include any amount that is imposed as interest, penalty, or a late fee; and

(2)

the term unpaid balance due to the United States

(A)

includes any unpaid balance due to a person that was represented by the Department of Justice in the civil matter in which the money judgment was entered; and

(B)

does not include interest, costs, penalties, or late fees.

.

(b)

Technical and conforming amendment

The table of sections for subchapter A of chapter 176 of title 28, United States Code, is amended by striking the item relating to section 3011 and inserting the following:

3011. Imposition of late fee.

.

105.

Increase in the amount of special assessments

Section 3013 of title 18, United States Code, is amended by striking subsection (a) and inserting the following:

(a)

The court shall assess on any person convicted of an offense against the United States—

(1)

in the case of an infraction or a misdemeanor—

(A)

if the defendant is an individual—

(i)

the amount of $10 in the case of an infraction or a class C misdemeanor;

(ii)

the amount of $25 in the case of a class B misdemeanor; and

(iii)

the amount of $100 in the case of a class A misdemeanor; and

(B)

if the defendant is a person other than an individual—

(i)

the amount of $100 in the case of an infraction or a class C misdemeanor;

(ii)

the amount of $200 in the case of a class B misdemeanor; and

(iii)

the amount of $500 in the case of a class A misdemeanor; and

(2)

in the case of a felony—

(A)

the amount of $100 if the defendant is an individual; and

(B)

the amount of $1,000 if the defendant is not an individual.

.

106.

Enhanced financial recovery fund

(a)

Establishment

There is established in the Treasury a separate account known as the Department of Justice Enhanced Financial Recovery Fund (in this section referred to as the Fund).

(b)

Deposits

Notwithstanding section 3302 of title 31, United States Code, or any other law regarding the crediting of collections, there shall be credited as an offsetting collection to the Fund an amount equal to—

(1)

2 percent of any amount collected pursuant to civil debt collection litigation activities of the Department of Justice (in addition to any amount credited under section 11013 of the 21st Century Department of Justice Appropriations Authorization Act (28 U.S.C. 527 note));

(2)

5 percent of all amounts collected as restitution due to the United States pursuant to the criminal debt collection litigation activities of the Department of Justice; and

(3)

any late fee collected under section 3612 of title 18, United States Code, as amended by this Act, or section 3011 of title 28, United States Code, as amended by this Act.

(c)

Availability

The amounts credited to the Fund shall remain available until expended.

(d)

Payments from the fund To support enhanced enforcement of judgments

(1)

Use for collection

(A)

In general

Except as provided in paragraph (2), the Attorney General shall use not less than $20,000,000 of the Fund in each fiscal year, to the extent that funds are available, for the collection of civil and criminal judgments by the Department of Justice, including restitution judgments where the beneficiaries are the victims of crime.

(B)

Allocation

The funds described in subparagraph (A) shall be used to enhance, supplement, and improve the civil and criminal judgment enforcement efforts of the Department of Justice first, and primarily for such activities by United States attorneys’ offices. A portion of the funds described in subparagraph (A) may be used by the Attorney General to provide legal, investigative, accounting, and training support to the United States attorneys’ offices in carrying out civil and criminal debt collection activities.

(C)

Limitation

The funds described in subparagraph (A) may not be used to determine whether a defendant is guilty of an offense or liable to the United States, except incidentally for the provision of assistance necessary or desirable in a case to ensure the preservation of assets or the imposition of a judgment, which assists in the enforcement of a judgment, or in a proceeding directly related to the failure of a defendant to satisfy the monetary portion of a judgment.

(2)

Adjustment of amount

In each fiscal year following the first fiscal year in which deposits into the Fund are greater than $20,000,000, the amount to be used under paragraph (1)(A) shall be increased by a percentage equal to the change in the Consumer Price Index published by the Bureau of Labor Statistics of the Department of Labor for the calendar year preceding that fiscal year.

(3)

Limitation

In any fiscal year, amounts in the Fund shall be available to the extent that the amount appropriated in that fiscal year for the purposes described in paragraph (1) is not less than an amount equal to the amount appropriated for such activities in fiscal year 2006, adjusted annually in the same proportion as increases reflected in the amount of aggregate level of appropriations for the Executive Office of United States Attorneys and United States Attorneys.

(e)

Current agency share contributions

After expending amounts in the Fund as provided under subsection (d), the Attorney General may use amounts remaining in the Fund to offset additional agency share contributions made by the Department of Justice for personnel benefit expenses incurred as a result of this Act or the amendments made by this Act relating to service as an assistant United States attorney on or after the date of enactment of this Act. The availability of amounts from the Fund shall have no effect on the implementation of title II or the amendments made by title II.

(f)

Retroactive agency share contributions

After expending amounts in the Fund as provided under subsection (e), the Attorney General may use amounts remaining in the Fund to offset agency share contributions made by the Department of Justice for personnel benefit expenses incurred as a result of this Act or the amendments made by this Act relating to service as an assistant United States attorney before the date of enactment of this Act.

(g)

Rebate of agency offsets

After expending amounts in the Fund as provided under subsection (f), all amounts remaining in the Fund shall be credited, proportionally, to the Federal agencies on behalf of which debt collection litigation activities were conducted that resulted in deposits under paragraph (1) or (2) of subsection (b) during that fiscal year.

(h)

Payments to the general fund

After expending amounts in the Fund as provided under subsection (g), all amounts remaining in the Fund shall be deposited with the General Fund of the United States Treasury.

(i)

Definition

In this section, the term United States

(1)

includes—

(A)

the executive departments, the judicial and legislative branches, the military departments, and independent establishments of the United States; and

(B)

corporations primarily acting as instrumentalities or agencies of the United States; and

(2)

except as provided in paragraph (1), does not include any contractor of the United States.

107.

Effective dates

(a)

In general

Except as provided in this section, this title and the amendments made by this title shall take effect 30 days after the date of enactment of this Act.

(b)

Criminal cases

The amendments made by section 105 and subsection (d) of section 3612 of title 18, United States Code, as added by section 101 of this Act, shall apply to any offense committed on or after the date of enactment of this Act, including any offense which includes conduct that continued on or after the date of enactment of this Act.

(c)

Civil cases

The amendments made by section 104 shall apply to any case pending on or after the date of enactment of this Act.

II

Equitable retirement treatment of assistant United States attorneys

201.

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 paragraph (29) relating to dynamic assumptions, by striking the period and inserting a semicolon;

(C)

by redesignating paragraph (29) relating to air traffic controllers as paragraph (30);

(D)

in paragraph (30), as so redesignated, by striking the period and inserting ; and; and

(E)

by adding at the end the following:

(31)

assistant United States attorney

(A)

means an assistant United States attorney appointed under section 542 of title 28; and

(B)

includes an individual—

(i)

appointed United States attorney under section 541 or 546 of title 28;

(ii)

who has previously served as an assistant United States attorney; and

(iii)

who elects under section 202 of the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009 to be treated as an assistant United States attorney and solely for the purposes of this title.

.

(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

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, except as follows:

(1)

Section 8335(b)(1) of this title (relating to mandatory separation) shall not apply.

(2)

Section 8336(c)(1) of this title (relating to immediate retirement at age 50 with 20 years of service as a law enforcement officer) shall apply to assistant United States attorneys except the age for immediate retirement eligibility shall be 57 instead of 50.

.

(3)

Technical and conforming amendments

(A)

Table of sections

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:

Sec. 8352. Assistant United States attorneys.

.

(B)

Mandatory separation

Section 8335(a) of title 5, United States Code, 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

(A)

means an assistant United States attorney appointed under section 542 of title 28; and

(B)

includes an individual—

(i)

appointed United States attorney under section 541 or 546 of title 28;

(ii)

who has previously served as an assistant United States attorney; and

(iii)

who elects under section 202 of the Enhanced Restitution Enforcement and Equitable Retirement Treatment Act of 2009 to be treated as an assistant United States attorney and solely for the purposes of this title.

.

(2)

Retirement treatment

Section 8402 of title 5, United States Code, is amended by adding at the end the following:

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, except as follows:

(1)

Section 8425(b)(1) of this title (relating to mandatory separation) shall not apply.

(2)

Section 8412(d) of this title (relating to immediate retirement at age 50 with 20 years of service as a law enforcement officer) shall apply to assistant United States attorneys except the age for immediate retirement eligibility shall be 57 instead of 50.

.

(c)

Mandatory separation

Sections 8335(b)(1) and 8425(b)(1) of title 5, United States Code, are each amended by adding at the end the following: This subsection shall not apply in the case of an assistant United States attorney..

202.

Provisions relating to incumbents

(a)

Definitions

In this section—

(1)

the term assistant United States attorney means an assistant United States attorney appointed under section 542 of title 28, United States Code; and

(2)

the term incumbent means an individual who, on the date of enactment of this Act—

(A)

is serving as an assistant United States attorney;

(B)

is serving as a United States Attorney appointed under section 541 or 546 of title 28, United States Code; or

(C)

is employed by the Department of Justice and has served at least 10 years as an assistant United States attorney.

(b)

Notice requirement

Not later than 180 days 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 title; and

(2)

the effects of making or not making a timely election under this title.

(c)

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 title; or

(B)

as if this title had never been enacted.

(2)

Time limitation

An election under this subsection shall not be effective unless the election is made not later than the earlier of—

(A)

180 days after the date on which the notice under subsection (b) is provided; or

(B)

the date on which the incumbent involved separates from service.

(3)

Failure to elect

Failure to make a timely election under this subsection shall be deemed—

(A)

for an assistant United States attorney, as an election under paragraph (1)(A); and

(B)

for any other incumbent, as an election under paragraph (1)(B).

(d)

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 (c)(1)(A), all service performed by that individual as an assistant United States attorney 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 title; 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 title 5, United States Code, as if the amendments made by this title had then been in effect.

(2)

Creditable service

All service performed by an incumbent under an appointment under section 515, 541, 543, or 546 of title 28, United States Code, and while concurrently employed by the Department of Justice shall be credited in the same manner as if performed as an assistant United States attorney.

(3)

No other retroactive effect

Nothing in this title (including the amendments made by this title) 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 (c) is made (or is deemed to have been made).

(e)

Individual contributions for prior service

(1)

In general

An individual who makes an election under subsection (c)(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 this title 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.

(3)

Prior service defined

In this subsection, the term prior service means, with respect to any individual who makes an election (or is deemed to have made an election) under subsection (c)(1)(A), all service credited 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.

(f)

Regulations

The Office of Personnel Management shall prescribe regulations necessary to carry out this title, including provisions under which any interest due on the amount described under subsection (e) shall be determined.

203.

Agency share contributions

(a)

In general

The cost for current agency share contributions for personnel benefits incurred as a result of this Act or the amendments made by this Act may be paid from the Enhanced Financial Recovery Fund. If in any fiscal year the Fund does not have a sufficient amount on deposit to satisfy the cost for current agency share contributions for personnel benefits incurred as a result of this Act or the amendments made by this Act, the amount of the insufficiency shall be due the next fiscal year.

(b)

Retroactive agency share

The cost for retroactive agency share contributions for personnel benefits incurred as a result of this Act or the amendments made by this Act may be paid from the Enhanced Financial Recovery Fund. Notwithstanding section 8348(f) or section 8423(b) of title 5, United States Code, an amount equal to the amount remaining in the Enhanced Financial Recovery Fund in any fiscal year, after the amounts credited to the Fund have been expended to satisfy the requirements of subsections (d) and (e) of section 106 of this Act, shall be credited toward the cost for retroactive agency share contributions for personnel benefits incurred as a result of this Act or the amendments made by this Act until such cost, along with accumulated interest, has been satisfied in full.

(c)

Use of funds

Funds appropriated for the Department of Justice shall not be used to pay for the additional cost for current or retroactive agency share contributions for personnel benefits incurred as a result of this Act or the amendments made by this Act except as directed by the Attorney General.

204.

Effective date

(a)

In general

This title shall take effect on the date of enactment of this Act.

(b)

Incumbents

In the case of an incumbent who elects (or is deemed to have elected) the option under section 202(c)(1)(A) of this title, the election shall not take effect until 24 months after the date of enactment of this Act, except as follows:

(1)

An incumbent with at least 30 years of service as an assistant United States attorney may choose to have the election take effect at any time between 6 and 24 months after the date of enactment of this Act.

(2)

An incumbent with at least 25 years of service credited as an assistant United States attorney may choose to have the election take effect at any time between 12 and 24 months after the enactment of this Act.

(3)

An incumbent with at least 20 years of service credited as an assistant United States attorney may, with the approval of the Attorney General, choose to have the election take effect at any time between 6 and 24 months after the date of enactment of this Act.

(4)

An incumbent with at least 20 years service credited as an assistant United States attorney and who is currently serving under an appointment under section 541 or 546 of title 28, United States Code, may choose to have the election take effect at any time between the enactment of this Act and 24 months after the date of enactment of this Act.