38 U.S.C. § 7261 — Scope of review

Page 1139 TITLE 38—VETERANS’ BENEFITS § 7261 (3) If a recall-eligible retired judge is recalled by the chief judge in accordance with this sec- tion and (other than in the case of a judge who has previously during that calendar year served at least 90 days (or the equivalent) of recalled service on the court) declines (other than by reason of disability) to perform the service to which recalled, the chief judge shall remove that retired judge from the status of a recall-eligible judge. This paragraph shall not apply to a judge to whom section 7296(c)(1)(A) or 7296(c)(1)(B) of this title applies and who has, in the aggregate, served at least five years of recalled service on the Court under this section. (4) A recall-eligible retired judge who becomes permanently disabled and as a result of that dis- ability is unable to perform further service on the Court shall be removed from the status of a recall-eligible judge. Determination of such a disability shall be made pursuant to section 7253(g) or 7296(g) of this title. (c) A retired judge who is recalled under this section may exercise all of the judicial powers and duties of the office of a judge in active serv- ice. (d)(1) The pay of a recall-eligible retired judge to whom section 7296(c)(1)(B) of this title applies is the pay specified in that section. (2) A judge who is recalled under this section who retired under chapter 83 or 84 of title 5 or to whom section 7296(c)(1)(A) of this title applies shall be paid, during the period for which the judge serves in recall status, pay at the rate of pay in effect under section 7253(e) of this title for a judge performing active service, less the amount of the judge’s annuity under the appli- cable provisions of chapter 83 or 84 of title 5 or the judge’s annuity under section 7296(c)(1)(A) of this title, whichever is applicable. (e)(1) Except as provided in subsection (d), a judge who is recalled under this section who re- tired under chapter 83 or 84 of title 5 shall be considered to be a reemployed annuitant under that chapter. (2) Nothing in this section affects the right of a judge who retired under chapter 83 or 84 of title 5 to serve as a reemployed annuitant in ac- cordance with the provisions of title 5. (Added Pub. L. 106–117, title X, § 1021(a), Nov. 30, 1999, 113 Stat. 1590; amended Pub. L. 110–389, title VI, § 603(a), (b)(3)–(c), Oct. 10, 2008, 122 Stat. 4177, 4178.) Editorial Notes AMENDMENTS 2008—Subsec. (a)(1). Pub. L. 110–389, § 603(b)(4), amend- ed last sentence generally. Prior to amendment, last sentence read as follows: ‘‘Such a notice provided by a retired judge is irrevocable.’’ Subsec. (b)(2). Pub. L. 110–389, § 603(a), struck out ‘‘or for more than a total of 180 days (or the equivalent) during any calendar year’’ before period at end. Subsec. (b)(3). Pub. L. 110–389, § 603(c), inserted at end ‘‘This paragraph shall not apply to a judge to whom section 7296(c)(1)(A) or 7296(c)(1)(B) of this title applies and who has, in the aggregate, served at least five years of recalled service on the Court under this sec- tion.’’ Subsec. (d). Pub. L. 110–389, § 603(b)(3), amended sub- sec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘(d)(1) The pay of a recall-eligible retired judge who retired under section 7296 of this title is specified in subsection (c) of that section. ‘‘(2) A judge who is recalled under this section who retired under chapter 83 or 84 of title 5 shall be paid, during the period for which the judge serves in recall status, pay at the rate of pay in effect under section 7253(e) of this title for a judge performing active serv- ice, less the amount of the judge’s annuity under the applicable provisions of chapter 83 or 84 of title 5.’’ SUBCHAPTER II—PROCEDURE § 7261. Scope of review (a) In any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when pre- sented, shall— (1) decide all relevant questions of law, in- terpret constitutional, statutory, and regu- latory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; (2) compel action of the Secretary unlaw- fully withheld or unreasonably delayed; (3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), conclusions, rules, and regulations issued or adopted by the Sec- retary, the Board of Veterans’ Appeals, or the Chairman of the Board found to be— (A) arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, au- thority, or limitations, or in violation of a statutory right; or (D) without observance of procedure re- quired by law; and (4) in the case of a finding of material fact adverse to the claimant made in reaching a de- cision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding is clearly erroneous. (b) In making the determinations under sub- section (a), the Court shall review the record of proceedings before the Secretary and the Board of Veterans’ Appeals pursuant to section 7252(b) of this title and shall— (1) take due account of the Secretary’s appli- cation of section 5107(b) of this title; and (2) take due account of the rule of preju- dicial error. (c) In no event shall findings of fact made by the Secretary or the Board of Veterans’ Appeals be subject to trial de novo by the Court. (d) When a final decision of the Board of Vet- erans’ Appeals is adverse to a party and the sole stated basis for such decision is the failure of the party to comply with any applicable regula- tion prescribed by the Secretary, the Court shall review only questions raised as to compliance with and the validity of the regulation. (Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4115, § 4061; amended Pub. L. 101–237, title VI, § 602(c), Dec. 18, 1989, 103 Stat. Page 1140 TITLE 38—VETERANS’ BENEFITS § 7262 2095; renumbered § 7261, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, § 14(e)(3), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 105–368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–330, title IV, § 401(a), (b), Dec. 6, 2002, 116 Stat. 2832.) Editorial Notes AMENDMENTS 2002—Subsec. (a)(4). Pub. L. 107–330, § 401(a), inserted ‘‘adverse to the claimant’’ after ‘‘material fact’’ and ‘‘or reverse’’ after ‘‘and set aside’’. Subsec. (b). Pub. L. 107–330, § 401(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘In making the determinations under sub- section (a) of this section, the Court shall take due ac- count of the rule of prejudicial error.’’ 1998—Subsec. (a). Pub. L. 105–368 substituted ‘‘Court of Appeals for Veterans Claims’’ for ‘‘Court of Veterans Appeals’’ in introductory provisions. 1991—Pub. L. 102–40 renumbered section 4061 of this title as this section. Subsec. (a)(1) to (3). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’ wherever appearing. Subsec. (a)(4). Pub. L. 102–83, § 4(a)(3), (4), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’. Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’. Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’. Pub. L. 102–54 amended subsec. (c) as in effect imme- diately before the enactment of Pub. L. 102–40 by sub- stituting ‘‘Court’’ for ‘‘court’’. Subsec. (d). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’. 1989—Subsec. (a)(2). Pub. L. 101–237 inserted ‘‘or un- reasonably delayed’’ after ‘‘withheld’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–330, title IV, § 401(c), Dec. 6, 2002, 116 Stat. 2832, provided that: ‘‘(1) Except as provided in paragraph (2), the amend- ments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 6, 2002]. ‘‘(2) The amendments made by this section shall apply with respect to any case pending for decision be- fore the United States Court of Appeals for Veterans Claims other than a case in which a decision has been entered before the date of the enactment of this Act.’’ EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title. § 7262. Fee for filing appeals (a) The Court of Appeals for Veterans Claims may impose a fee of not more than $50 for the filing of any appeal with the Court. The Court shall establish procedures under which such a fee may be waived in the case of an appeal filed by or on behalf of a person who demonstrates that the requirement that such fee be paid will impose a hardship on that person. A decision as to such a waiver is final and may not be re- viewed in any other court. (b) The Court may from time to time adjust the maximum amount permitted for a fee im- posed under subsection (a) of this section based upon inflation and similar fees charged by other courts established under Article I of the Con- stitution. (Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4115, § 4062; renumbered § 7262, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–368 substituted ‘‘Court of Appeals for Veterans Claims’’ for ‘‘Court of Veterans Appeals’’. 1991—Pub. L. 102–40 renumbered section 4062 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title. § 7263. Representation of parties; fee agreements (a) The Secretary shall be represented before the Court of Appeals for Veterans Claims by the General Counsel of the Department. (b) Representation of appellants shall be in ac- cordance with the rules of practice prescribed by the Court under section 7264 of this title. In ad- dition to members of the bar admitted to prac- tice before the Court in accordance with such rules of practice, the Court may allow other per- sons to practice before the Court who meet standards of proficiency prescribed in such rules of practice. (c) A person who represents an appellant be- fore the Court shall file a copy of any fee agree- ment between the appellant and that person with the Court at the time the appeal is filed. The Court, on its own motion or the motion of any party, may review such a fee agreement. (d) In reviewing a fee agreement under sub- section (c) of this section or under section 5904(c)(2) of this title, the Court may affirm the finding or order of the Board and may order a re- duction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable. An order of the Court under this subsection is final and may not be reviewed in any other court. (Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4116, § 4063; renumbered § 7263 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 105–368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–368 substituted ‘‘Court of Appeals for Veterans Claims’’ for ‘‘Court of Veterans Appeals’’. 1991—Pub. L. 102–40, § 402(b)(1), renumbered section 4063 of this title as this section.