38 U.S.C. § 7292 — Review by United States Court of Appeals

Page 1147 TITLE 38—VETERANS’ BENEFITS § 7292 SUBCHAPTER IV—DECISIONS AND REVIEW § 7291. Date when Court decision becomes final (a) A decision of the United States Court of Appeals for Veterans Claims shall become final upon the expiration of the time allowed for fil- ing, under section 7292 of this title, a notice of appeal from such decision, if no such notice is duly filed within such time. If such a notice is filed within such time, such a decision shall be- come final— (1) upon the expiration of the time allowed for filing a petition for certiorari with the Su- preme Court of the United States, if the deci- sion of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Appeals for the Federal Circuit and no petition for certiorari is duly filed; (2) upon the denial of a petition for certio- rari, if the decision of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Ap- peals for the Federal Circuit; or (3) upon the expiration of 30 days from the date of issuance of the mandate of the Su- preme Court, if that Court directs that the de- cision of the Court of Appeals for Veterans Claims be affirmed or the appeal dismissed. (b)(1) If the Supreme Court directs that the de- cision of the Court of Appeals for Veterans Claims be modified or reversed, the decision of the Court of Appeals for Veterans Claims ren- dered in accordance with the mandate of the Su- preme Court shall become final upon the expira- tion of 30 days from the time it was rendered, unless within such 30 days either the Secretary or the petitioner has instituted proceedings to have such decision corrected to accord with the mandate, in which event the decision of the Court of Appeals for Veterans Claims shall be- come final when so corrected. (2) If the decision of the Court of Appeals for Veterans Claims is modified or reversed by the United States Court of Appeals for the Federal Circuit and if— (A) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (B) the petition for certiorari has been de- nied, or (C) the decision of the United States Court of Appeals for the Federal Circuit has been af- firmed by the Supreme Court, then the decision of the Court of Appeals for Veterans Claims rendered in accordance with the mandate of the United States Court of Ap- peals for the Federal Circuit shall become final upon the expiration of 30 days from the time such decision of the Court of Appeals for Vet- erans Claims was rendered, unless within such 30 days either the Secretary or the petitioner has instituted proceedings to have such decision cor- rected so that it will accord with the mandate, in which event the decision of the Court of Ap- peals for Veterans Claims shall become final when so corrected. (c) If the Supreme Court orders a rehearing, or if the case is remanded by the United States Court of Appeals for the Federal Circuit to the Court of Appeals for Veterans Claims for a re- hearing, and if— (1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has been de- nied, or (3) the decision of the United States Court of Appeals for the Federal Circuit has been af- firmed by the Supreme Court, then the decision of the Court of Appeals for Veterans Claims rendered upon such rehearing shall become final in the same manner as though no prior decision of the Court of Appeals for Veterans Claims had been rendered. (d) As used in this section, the term ‘‘man- date’’, in case a mandate has been recalled be- fore the expiration of 30 days from the date of issuance thereof, means the final mandate. (Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4119, § 4091; renumbered § 7291 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(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 105–368, title V, § 512(a)(1), (2)(B), Nov. 11, 1998, 112 Stat. 3341.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–368, § 512(a)(2)(B), substituted ‘‘Court decision’’ for ‘‘United States Court of Veterans Appeals decision’’ in section catchline. Subsecs. (a) to (c). Pub. L. 105–368, § 512(a)(1), sub- stituted ‘‘Court of Appeals for Veterans Claims’’ for ‘‘Court of Veterans Appeals’’ wherever appearing. 1991—Pub. L. 102–40, § 402(b)(1), renumbered section 4091 of this title as this section. Subsec. (a). Pub. L. 102–40, § 402(d)(1), substituted ‘‘7292’’ for ‘‘4092’’ in introductory provisions. Subsec. (b). Pub. L. 102–83 substituted ‘‘Secretary’’ for ‘‘Administrator’’ in pars. (1) and (2). 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. § 7292. Review by United States Court of Appeals for the Federal Circuit (a) After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation (other than a refusal to re- view the schedule of ratings for disabilities adopted under section 1155 of this title) or any interpretation thereof (other than a determina- tion as to a factual matter) that was relied on by the Court in making the decision. Such a re- view shall be obtained by filing a notice of ap- peal with the Court of Appeals for Veterans Claims within the time and in the manner pre- scribed for appeal to United States courts of ap- peals from United States district courts. (b)(1) When a judge or panel of the Court of Appeals for Veterans Claims, in making an order not otherwise appealable under this section, de- Page 1148 TITLE 38—VETERANS’ BENEFITS § 7296 termines that a controlling question of law is involved with respect to which there is a sub- stantial ground for difference of opinion and that there is in fact a disagreement between the appellant and the Secretary with respect to that question of law and that the ultimate termi- nation of the case may be materially advanced by the immediate consideration of that ques- tion, the judge or panel shall notify the chief judge of that determination. Upon receiving such a notification, the chief judge shall certify that such a question is presented, and any party to the case may then petition the Court of Ap- peals for the Federal Circuit to decide the ques- tion. That court may permit an interlocutory appeal to be taken on that question if such a pe- tition is filed with it within 10 days after the certification by the chief judge of the Court of Appeals for Veterans Claims. Neither the appli- cation for, nor the granting of, an appeal under this paragraph shall stay proceedings in the Court of Appeals for Veterans Claims, unless a stay is ordered by a judge of the Court of Ap- peals for Veterans Claims or by the Court of Ap- peals for the Federal Circuit. (2) For purposes of subsections (d) and (e) of this section, an order described in this para- graph shall be treated as a decision of the Court of Appeals for Veterans Claims. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any challenge to the valid- ity of any statute or regulation or any interpre- tation thereof brought under this section, and to interpret constitutional and statutory provi- sions, to the extent presented and necessary to a decision. The judgment of such court shall be final subject to review by the Supreme Court upon certiorari, in the manner provided in sec- tion 1254 of title 28. (d)(1) The Court of Appeals for the Federal Cir- cuit shall decide all relevant questions of law, including interpreting constitutional and statu- tory provisions. The court shall hold unlawful and set aside any regulation or any interpreta- tion thereof (other than a determination as to a factual matter) that was relied upon in the deci- sion of the Court of Appeals for Veterans Claims that the Court of Appeals for the Federal Circuit finds to be— (A) arbitrary, capricious, an abuse of discre- tion, 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. (2) Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case. (e)(1) Upon such review, the Court of Appeals for the Federal Circuit shall have power to af- firm or, if the decision of the Court of Appeals for Veterans Claims is not in accordance with law, to modify or reverse the decision of the Court of Appeals for Veterans Claims or to re- mand the matter, as appropriate. (2) Rules for review of decisions of the Court of Appeals for Veterans Claims shall be those pre- scribed by the Supreme Court under section 2072 of title 28. (Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4120, § 4092; amended Pub. L. 101–94, title III, § 302(b), Aug. 16, 1989, 103 Stat. 628; renumbered § 7292, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, § 14(e)(5), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §§ 4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 105–368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–330, title IV, § 402(a), Dec. 6, 2002, 116 Stat. 2832.) Editorial Notes AMENDMENTS 2002—Subsec. (a). Pub. L. 107–330 inserted ‘‘a decision of the Court on a rule of law or of’’ after ‘‘the validity of’’ in first sentence. 1998—Subsecs. (a), (b), (d)(1), (e). Pub. L. 105–368 sub- stituted ‘‘Court of Appeals for Veterans Claims’’ for ‘‘Court of Veterans Appeals’’ wherever appearing. 1991—Pub. L. 102–40 renumbered section 4092 of this title as this section. Subsec. (a). Pub. L. 102–83, § 5(c)(1), substituted ‘‘1155’’ for ‘‘355’’. Subsec. (b)(1). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’. Subsec. (c). Pub. L. 102–54 amended subsec. (c) as in effect immediately before the enactment of Pub. L. 102–40 by substituting ‘‘United States Court’’ for ‘‘United States Courts’’. 1989—Subsec. (d)(1). Pub. L. 101–94 struck out ‘‘statute or’’ before ‘‘regulation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–330, title IV, § 402(b), Dec. 6, 2002, 116 Stat. 2832, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to any appeal— ‘‘(1) filed with the United States Court of Appeals for the Federal Circuit on or after the date of the en- actment of this Act [Dec. 6, 2002]; or ‘‘(2) pending with the United States Court of Ap- peals for the Federal Circuit as of the date of the en- actment of this Act in which a decision has not been rendered as of that date.’’ 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. EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–94 effective as if included in Pub. L. 100–687, div. A, see section 302(c) of Pub. L. 101–94, set out as a note under section 5701 of this title. SUBCHAPTER V—RETIREMENT AND SURVIVORS ANNUITIES § 7296. Retirement of judges (a) For purposes of this section: (1) The term ‘‘Court’’ means the United States Court of Appeals for Veterans Claims. (2) The term ‘‘judge’’ means a judge of the Court. (b)(1) A judge who meets the age and service requirements set forth in the following table may retire: