
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 107-103 Section 602]
[CITE: 38USC7296]

 
                      TITLE 38--VETERANS' BENEFITS
 
              PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
 
     CHAPTER 72--UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
 
            SUBCHAPTER V--RETIREMENT AND SURVIVORS ANNUITIES
 
Sec. 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:
                                                           And the years
                                                              of service
The judge has                                                 as a judge
attained age:                                               are at least
65......................................                        15      
66......................................                        14      
67......................................                        13      
68......................................                        12      
69......................................                        11      
70......................................                        10      

    (2) A judge who is not reappointed following the expiration of the 
term for which appointed may retire upon the completion of that term if 
the judge has served as a judge of the Court for 15 years or more. In 
order to retire under this paragraph, a judge must, not earlier than 9 
months preceding the date of the expiration of the judge's term of 
office and not later than 6 months preceding such date, advise the 
President in writing that the judge is willing to accept reappointment 
to the Court.
    (3) A judge who becomes permanently disabled and as a result of that 
disability is unable to perform the duties of the office shall retire.
    (c)(1) An individual who retires under subsection (b) of this 
section and elects under subsection (d) of this section to receive 
retired pay under this subsection shall (except as provided in paragraph 
(2) of this subsection) receive retired pay as follows:
        (A) In the case of a judge who is a recall-eligible retired 
    judge under section 7257 of this title or who was a recall-eligible 
    retired judge under that section and was removed from recall status 
    under subsection (b)(4) of that section by reason of disability, the 
    retired pay of the judge shall be the pay of a judge of the court.
        (B) In the case of a judge who at the time of retirement did not 
    provide notice under section 7257 of this title of availability for 
    service in a recalled status, the retired pay of the judge shall be 
    the rate of pay applicable to that judge at the time of retirement.
        (C) In the case of a judge who was a recall-eligible retired 
    judge under section 7257 of this title and was removed from recall 
    status under subsection (b)(3) of that section, the retired pay of 
    the judge shall be the pay of the judge at the time of the removal 
    from recall status.

    (2) An individual who serves as a judge for less than 10 years and 
who retires under subsection (b)(3) of this section and elects under 
subsection (d) of this section to receive retired pay under this 
subsection shall receive retired pay at a rate equal to one-half of the 
rate of pay in effect at the time of retirement.
    (3) Retired pay under this subsection shall begin to accrue on the 
day following the day on which the individual's salary as judge ceases 
to accrue and shall continue to accrue during the remainder of the 
individual's life. Retired pay under this subsection shall be paid in 
the same manner as the salary of a judge.
    (d)(1) A judge may elect to receive retired pay under subsection (c) 
of this section. Such an election--
        (A) may be made only while an individual is a judge (except 
    that, in the case of an individual who fails to be reappointed as 
    judge at the expiration of a term of office, the election may be 
    made at any time before the date after the day on which the 
    individual's successor takes office); and
        (B) may not be revoked after the retired pay begins to accrue.

    (2) In the case of a judge other than the chief judge, such an 
election shall be made by filing notice of the election in writing with 
the chief judge. In the case of the chief judge, such an election shall 
be made by filing notice of the election in writing with the Director of 
the Office of Personnel Management.
    (3) The chief judge shall transmit to the Director of the Office of 
Personnel Management a copy of each notice filed with the chief judge 
under this subsection.
    (e) If an individual for whom an election to receive retired pay 
under subsection (c) is in effect accepts compensation for employment 
with the United States, the individual shall, to the extent of the 
amount of that compensation, forfeit all rights to retired pay under 
subsection (c) of this section for the period for which the compensation 
is received.
    (f)(1) Except as otherwise provided in this subsection, the 
provisions of the civil service retirement laws (including the 
provisions relating to the deduction and withholding of amounts from 
basic pay, salary, and compensation) shall apply with respect to service 
as a judge as if this section had not been enacted.
    (2) In the case of any individual who has filed an election to 
receive retired pay under subsection (c) of this section--
        (A) no annuity or other payment shall be payable to any person 
    under the civil service retirement laws with respect to any service 
    performed by such individual (whether performed before or after such 
    election is filed and whether performed as judge or otherwise) 
    except as authorized by section 8440d of title 5;
        (B) no deduction for purposes of the Civil Service Retirement 
    and Disability Fund shall be made from retired pay payable to that 
    individual under subsection (c) of this section or from any other 
    salary, pay, or compensation payable to that individual, for any 
    period beginning after the day on which such election is filed; and
        (C) such individual shall be paid the lump-sum credit computed 
    under section 8331(8) or 8401(a) of title 5, whichever applies, upon 
    making application therefor with the Office of Personnel Management.

    (3)(A) A cost-of-living adjustment provided by law in annuities 
payable under civil service retirement laws shall apply to retired pay 
under this section only in the case of retired pay computed under 
paragraph (2) of subsection (c).
    (B) If such a cost-of-living adjustment would (but for this 
subparagraph) result in the retired pay of a retired judge being in 
excess of the annual rate of pay in effect for judges of the Court as 
provided in section 7253(e) of this title, such adjustment may be made 
only in such amount as results in the retired pay of the retired judge 
being equal to that annual rate of pay (as in effect on the effective 
date of such adjustment).
    (g)(1) A judge who becomes permanently disabled and as a result of 
that disability is unable to perform the duties of the office shall 
certify to the President in writing that such permanent disability 
exists. If the chief judge retires for such a disability, the retirement 
of the chief judge shall not take effect until concurred in by the 
President. If any other judge retires for such a disability, the chief 
judge shall furnish to the President a certificate of disability signed 
by the chief judge.
    (2) Whenever the President finds that a judge has become permanently 
disabled and as a result of that disability is unable to perform the 
duties of the office, the President shall declare that judge to be 
retired. Before a judge may be retired under this paragraph, the judge 
shall be provided with a full specification of the reasons for the 
retirement and an opportunity to be heard.
    (h)(1) An individual who has filed an election to receive retired 
pay under subsection (c) of this section may revoke such election at any 
time before the first day on which retired pay would (but for such 
revocation) begin to accrue with respect to such individual.
    (2) Any revocation under this subsection shall be made by filing a 
notice of the election in writing with the Director of the Office of 
Personnel Management. The Office of Personnel Management shall transmit 
to the chief judge a copy of each notice filed under this subsection.
    (3) In the case of a revocation under this subsection--
        (A) for purposes of this section, the individual shall be 
    treated as not having filed an election to receive retired pay under 
    subsection (c) of this section;
        (B) for purposes of section 7297 of this title--
            (i) the individual shall be treated as not having filed an 
        election under section 7297(b) of this title, and
            (ii) section 7297(e) of this title shall not apply and the 
        amount credited to such individual's account (together with 
        interest at 3 percent per year, compounded on December 31 of 
        each year to the date on which the revocation is filed) shall be 
        returned to the individual;

        (C) no credit shall be allowed for any service as a judge of the 
    Court unless with respect to such service either there has been 
    deducted and withheld the amount required by the civil service 
    retirement laws or there has been deposited in the Civil Service 
    Retirement and Disability Fund an amount equal to the amount so 
    required, with interest;
        (D) the Court shall deposit in the Civil Service Retirement and 
    Disability Fund an amount equal to the additional amount it would 
    have contributed to such Fund but for the election under subsection 
    (d); and
        (E) if subparagraphs (C) and (D) of this paragraph are complied 
    with, service on the Court shall be treated as service with respect 
    to which deductions and contributions had been made during the 
    period of service.

    (i)(1) Beginning with the next pay period after the Director of the 
Office of Personnel Management receives a notice under subsection (d) of 
this section that a judge has elected to receive retired pay under this 
section, the Director shall deduct and withhold 1 percent of the salary 
of such judge. Amounts shall be so deducted and withheld in a manner 
determined by the Director. Amounts deducted and withheld under this 
subsection shall be deposited in the Treasury of the United States to 
the credit of the Court of Appeals for Veterans Claims Judges Retirement 
Fund. Deductions under this subsection from the salary of a judge shall 
terminate upon the retirement of the judge or upon the completion of 15 
years of service for which either deductions under this subsection or a 
deposit under subsection (j) of this section has been made, whichever 
occurs first.
    (2) Each judge who makes an election under subsection (d) of this 
section shall be considered to agree to the deductions from salary which 
are made under paragraph (1) of this subsection.
    (j) A judge who makes an election under subsection (d) of this 
section shall deposit, for service on the Court performed before the 
election for which contributions may be made under this section, an 
amount equal to 1 percent of the salary received for the first years, 
not exceeding 15 years, of that service. Retired pay may not be allowed 
until a deposit required by this subsection has been made.
    (k) The amounts deducted and withheld under subsection (i) of this 
section, and the amounts deposited under subsection (j) of this section, 
shall be deposited in the Court of Appeals for Veterans Claims 
Retirement Fund for credit to individual accounts in the name of each 
judge from whom such amounts are received.

(Added Pub. L. 101-94, title I, Sec. 101(a), Aug. 16, 1989, 103 Stat. 
617, Sec. 4096; renumbered Sec. 7296 and amended Pub. L. 102-40, title 
IV, Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 
102-82, Sec. 5(c)(1), Aug. 6, 1991, 105 Stat. 376; Pub. L. 102-198, 
Sec. 7(c)(4)(D), Dec. 9, 1991, 105 Stat. 1625; Pub. L. 105-368, title V, 
Sec. 512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 106-117, title X, 
Secs. 1022, 1035(2), Nov. 30, 1999, 113 Stat. 1592, 1595.)

                       References in Text

    The civil service retirement laws, referred to in subsecs. (f) and 
(h)(3)(C), are classified generally to subchapter III (Sec. 8331 et 
seq.) of chapter 83 of Title 5, Government Organization and Employees.
    The Civil Service Retirement and Disability Fund, referred to in 
subsecs. (f)(2)(B) and (h)(3)(C), (D), is provided for in section 8348 
of Title 5.


                               Amendments

    1999--Subsec. (a)(2). Pub. L. 106-117, Sec. 1035(2), substituted ``a 
judge'' for ``the chief judge or an associate judge''.
    Subsec. (c)(1). Pub. L. 106-117, Sec. 1022(a), substituted ``as 
follows:'' for ``at the rate of pay in effect at the time of 
retirement.'' and added subpars. (A) to (C).
    Subsec. (f)(3). Pub. L. 106-117, Sec. 1022(b), added par. (3).
    1998--Subsecs. (a)(1), (i)(1), (k). Pub. L. 105-368 substituted 
``Court of Appeals for Veterans Claims'' for ``Court of Veterans 
Appeals''.
    1991--Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4096 of 
this title as this section.
    Subsec. (f)(2)(A). Pub. L. 102-198 substituted ``8440d'' for 
``8440c''.
    Pub. L. 102-82 inserted before semicolon at end ``except as 
authorized by section 8440c of title 5''.
    Subsec. (h)(3)(B). Pub. L. 102-40, Sec. 402(d)(1), substituted 
``7297'' for ``4097'' in introductory provisions, ``7297(b)'' for 
``4097(b)'' in cl. (i), and ``7297(e)'' for ``4097(e)'' in cl. (ii).


                    Effective Date of 1999 Amendment

    Amendment by section 1035(2) of Pub. L. 106-117 effective Nov. 30, 
1999, with savings provision for incumbent chief judge, see section 1036 
of Pub. L. 106-117, set out as a note under section 7253 of this title.


                    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.


           Transitional Provisions To Stagger Terms of Judges

    Pub. L. 106-117, title X, Sec. 1002, Nov. 30, 1999, 113 Stat. 1588, 
provided that: ``In this title [see Short Title of 1999 Amendments note 
set out under section 101 of this title], the term `Court' means the 
United States Court of Appeals for Veterans Claims.''
    Pub. L. 106-117, title X, Secs. 1011, 1012, Nov. 30, 1999, 113 Stat. 
1588, 1590, provided that:
``SEC. 1011. EARLY RETIREMENT AUTHORITY FOR CURRENT JUDGES.
    ``(a) Retirement Authorized.--One eligible judge may retire in 
accordance with this section in 2000 or 2001, and one additional 
eligible judge may retire in accordance with this section in 2001.
    ``(b) Eligible Judges.--For purposes of this section, an eligible 
judge is a judge of the Court (other than the chief judge) who--
        ``(1) has at least 10 years of service creditable under section 
    7296 of title 38, United States Code;
        ``(2) has made an election to receive retired pay under section 
    7296 of such title;
        ``(3) has at least 20 years of service described in section 
    7297(l) of such title; and
        ``(4) is at least 55 years of age.
    ``(c) Multiple Eligible Judges.--If for any year specified in 
subsection (a) more than one eligible judge provides notice in 
accordance with subsection (d), the judge who has the greatest seniority 
as a judge of the Court shall be the judge who is eligible to retire in 
accordance with this section in that year.
    ``(d) Notice.--An eligible judge who desires to retire in accordance 
with this section with respect to any year covered by subsection (a) 
shall provide to the President and the chief judge of the Court written 
notice to that effect and stating that the judge agrees to the temporary 
service requirements of subsection (j). Such notice shall be provided 
not later than April 1 of that year and shall specify the retirement 
date in accordance with subsection (e). Notice provided under this 
subsection shall be irrevocable.
    ``(e) Date of Retirement.--A judge who is eligible to retire in 
accordance with this section shall be retired during the calendar year 
as to which notice is provided pursuant to subsection (d), but not 
earlier than 30 days after the date on which that notice is provided 
pursuant to subsection (d).
    ``(f) Applicable Provisions.--Except as provided in subsections (g) 
and (j), a judge retired in accordance with this section shall be 
considered for all purposes to be retired under section 7296(b)(1) of 
title 38, United States Code.
    ``(g) Applicability of Recall Status Authority.--The provisions of 
section 7257 of this title shall apply to a judge retired in accordance 
with this section as if the judge is a judge specified in subsection 
(a)(2)(A) of that section.
    ``(h) Rate of Retired Pay.--The rate of retired pay for a judge 
retiring in accordance with this section is--
        ``(1) the rate applicable to that judge under section 7296(c)(1) 
    of title 38, United States Code, multiplied by
        ``(2) the fraction (not in excess of 1) in which--
            ``(A) the numerator is the number of years of service of the 
        judge as a judge of the Court creditable under section 7296 of 
        such title; and
            ``(B) the denominator is 15.
    ``(i) Adjustments in Retired Pay for Judges Available for Recall.--
Subject to section 7296(f)(3)(B) of title 38, United States Code, an 
adjustment provided by law in annuities payable under civil service 
retirement laws shall apply to retired pay under this section in the 
case of a judge who is a recall-eligible retired judge under section 
7257 of such title or who was a recall-eligible retired judge under that 
section and was removed from recall status under subsection (b)(4) of 
that section by reason of disability.
    ``(j) Duty of Actuary.--[Amended section 7298 of this title.]
    ``(k) Transitional Service of Judge Retired Under This Section.--(1) 
A judge who retires under this section shall continue to serve on the 
Court during the period beginning on the effective date of the judge's 
retirement under subsection (e) and ending on the earlier of--
        ``(A) the date on which a person is appointed to the position on 
    the Court vacated by the judge's retirement; and
        ``(B) the date on which the judge's original appointment to the 
    court would have expired.
    ``(2) Subsections (f) and (g) of section 7253 of title 38, United 
States Code, shall apply with respect to the service of a judge on the 
Court under this section.
    ``(3) Notwithstanding any other provision of law, a person whose 
service as a judge of the Court continues under this section shall be 
paid for the period of service under this subsection at the rate that is 
the difference between the current rate of pay for a judge of the Court 
and the rate of the judge's retired pay under subsection (g).
    ``(4) Amounts paid under paragraph (3)--
        ``(A) shall not be treated as--
            ``(i) compensation for employment with the United States for 
        purposes of section 7296(e) of title 38, United States Code, or 
        any provision of title 5, United States Code, relating to the 
        receipt or forfeiture of retired pay or retirement annuities by 
        a person accepting compensation for employment with the United 
        States; or
            ``(ii) pay for purposes of deductions or contributions for 
        or on behalf of the person to retired pay under subchapter V of 
        chapter 72 of title 38, United States Code, or under chapter 83 
        or 84 of title 5, United States Code, as applicable; but
        ``(B) may, at the election of the person, be treated as pay for 
    purposes of deductions or contributions for or on behalf of the 
    person to a retirement or other annuity, or both, under subchapter V 
    of chapter 72 of title 38, United States Code, or under chapter 83 
    or 84 of title 5, United States Code, as applicable.
    ``(5) Amounts paid under paragraph (3) shall be derived from amounts 
available for payment of salaries and benefits of judges of the Court.
    ``(6) The service as a judge of the Court under this subsection of a 
person who makes an election provided for under paragraph (4)(B) shall 
constitute creditable service toward the judge's years of judicial 
service for purposes of section 7297 of title 38, United States Code, 
with such service creditable at a rate equal to the rate at which such 
service would be creditable for such purposes if served by a judge of 
the Court under chapter 72 of that title. For purposes of subsection 
(k)(3) of that section, the average annual pay for such service shall be 
the sum of the judge's retired pay and the amount paid under paragraph 
(3) of this subsection.
    ``(7) In the case of such a person who makes an election provided 
for under paragraph (4)(B), upon the termination of the service of that 
person as a judge of the Court under this subsection, the retired pay of 
that person under subsection (g) shall be recomputed to reflect the 
additional period of service served under this subsection.
    ``(l) Treatment of Political Party Membership.--For purposes of 
determining compliance with the last sentence of section 7253(b) of 
title 38, United States Code, the political party membership of a judge 
serving on the Court under subsection (j) shall not be taken into 
account.
``SEC. 1012. MODIFIED TERMS FOR NEXT TWO JUDGES APPOINTED TO THE COURT.
    ``(a) Modified Terms.--The term of office of the first two judges 
appointed to the Court after the date of the enactment of this Act [Nov. 
30, 1999] shall be 13 years (rather than the period specified in section 
7253(c) of title 38, United States Code).
    ``(b) Eligibility for Retirement.--(1) For purposes of determining 
the eligibility to retire under section 7296 of title 38, United States 
Code, of the two judges of the Court whose term of office is determined 
under subsection (a)--
        ``(A) the age and service requirements in the table in paragraph 
    (2) shall apply to those judges rather than the otherwise applicable 
    age and service requirements specified in the table in subsection 
    (b)(1) of that section; and
        ``(B) the minimum years of service applicable to those judges 
    for eligibility to retire under the first sentence of subsection 
    (b)(2) of that section shall be 13 years instead of 15 years.
    ``(2) The age and service requirements in this paragraph are as 
follows:

``The judge has attained                        And the years of service
  age:                                           as a judge are at least
    65..................................                        13      
    66..................................                        13      
    67..................................                        13      
    68..................................                        12      
    69..................................                        11      
    70..................................                       10.''    

    Pub. L. 106-117, title X, Sec. 1032(b), Nov. 30, 1999, 113 Stat. 
1595, provided that: ``A person serving as a judge of the Court under 
section 1011 may not serve as chief judge of the Court.''

                  Section Referred to in Other Sections

    This section is referred to in sections 7257, 7297, 7298, 7299 of 
this title; title 5 sections 8334, 8402, 8440d; title 28 sections 178, 
377.
