
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC7297]

 
                      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. 7297. Survivor annuities

    (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 who is in 
    active service or who has retired under section 7296 of this title.
        (3) The term ``pay'' means salary received under section 7253(e) 
    of this title and retired pay received under section 7296 of this 
    title.
        (4) The term ``retirement fund'' means the Court of Appeals for 
    Veterans Claims Retirement Fund established under section 7298 of 
    this title.
        (5) The term ``surviving spouse'' means a surviving spouse of an 
    individual who (A) was married to such individual for at least one 
    year immediately preceding the individual's death, or (B) is a 
    parent of issue by the marriage.
        (6) The term ``dependent child'' has the meaning given the term 
    ``child'' in section 376(a)(5) of title 28.
        (7) The term ``Member of Congress'' means a Representative, a 
    Senator, a Delegate to Congress, or the Resident Commissioner of 
    Puerto Rico.
        (8) The term ``assassination'' as applied to a judge shall have 
    the meaning provided that term in section 376(a)(7) of title 28 as 
    applied to a judicial official.

    (b) A judge may become a participant in the annuity program under 
this section by filing a written election under this subsection while in 
office or within six months after the date on which the judge marries if 
the judge has retired under section 7296 of this title. Any such 
election shall be made in such manner as may be prescribed by the Court.
    (c) There shall be deducted and withheld each pay period from the 
pay of a judge who has made an election under subsection (b) of this 
section a sum equal to that percentage of the judge's pay that is the 
same as provided for the deduction from the salary or retirement salary 
of a judge of the United States Court of Federal Claims for the purpose 
of a survivor annuity under section 376(b)(1)(B) of title 28. Amounts so 
deducted and withheld shall be deposited in the retirement fund. A judge 
who makes an election under subsection (b) of this section shall be 
considered by that election to agree to the deductions from the judge's 
pay required by this subsection.
    (d)(1) A judge who makes an election under subsection (b) of this 
section shall deposit, with interest at 3 percent per year compounded on 
December 31 of each year, to the credit of the retirement fund, an 
amount equal to 3.5 percent of the judge's pay and of the judge's basic 
salary, pay, or compensation for service as a Member of Congress, and 
for any other civilian service within the purview of section 8332 of 
title 5. Each such judge may elect to make such deposits in installments 
during the judge's period of service in such amount and under such 
conditions as may be determined in each instance by the chief judge. 
Notwithstanding the failure of a judge to make such deposit, credit 
shall be allowed for the service rendered, but the annual annuity of the 
surviving spouse of such judge shall be reduced by an amount equal to 10 
percent of the amount of such deposit, computed as of the date of the 
death of such judge, unless the surviving spouse elects to eliminate 
such service entirely from credit under subsection (k) of this section. 
However, a deposit shall not be required from a judge for any year with 
respect to which deductions from the judge's pay, or a deposit, were 
actually made (and not withdrawn) under the civil service retirement 
laws.
    (2) The interest required under the first sentence of paragraph (1) 
shall not be required for any period--
        (A) during which a judge was separated from any service 
    described in section 376(d)(2) of title 28; and
        (B) during which the judge was not receiving retired pay based 
    on service as a judge or receiving any retirement salary as 
    described in section 376(d)(1) of title 28.

    (e) If the service of a judge who makes an election under subsection 
(b) of this section terminates other than pursuant to the provisions of 
section 7296 of this title, or if any judge ceases to be married after 
making the election under subsection (b) of this section and revokes (in 
a writing filed as provided in subsection (b) of this section) such 
election, the amount credited to the judge's individual account 
(together with interest at 3 percent per year compounded on December 31 
of each year to the date of the judge's relinquishment of office) shall 
be returned to the judge. For the purpose of this section, the service 
of a judge making an election under subsection (b) of this section shall 
be considered to have terminated pursuant to section 7296 of this title 
if--
        (1) the judge is not reappointed following expiration of the 
    term for which appointed; and
        (2) at or before the time of the expiration of that term, the 
    judge is eligible for and elects to receive retired pay under 
    section 7296 of this title.

    (f)(1) If a judge who makes an election under subsection (b) of this 
section dies after having rendered at least 18 months of civilian 
service (computed as prescribed in subsection (l) of this section), for 
the last 18 months of which the salary deductions provided for by 
subsection (c) of this section or the deposits required by subsection 
(d) of this section have actually been made (and not withdrawn) or the 
salary deductions required by the civil service retirement laws have 
actually been made (and not withdrawn)--
        (A) if the judge is survived by a surviving spouse but not by a 
    dependent child, there shall be paid to the surviving spouse an 
    annuity beginning with the day of the death of the judge, in an 
    amount computed as provided in subsection (k) of this section; or
        (B) if the judge is survived by a surviving spouse and a 
    dependent child or children, there shall be paid to the surviving 
    spouse an immediate annuity in an amount computed as provided in 
    subsection (k) of this section and there shall also be paid to or on 
    behalf of each such child an immediate annuity equal to the lesser 
    of--
            (i) 10 percent of the average annual pay of such judge 
        (determined in accordance with subsection (k) of this section), 
        or
            (ii) 20 percent of such average annual pay, divided by the 
        number of such children; or

        (C) if the judge is not survived by a surviving spouse but is 
    survived by a dependent child or children, there shall be paid to or 
    on behalf of each such child an immediate annuity equal to the 
    lesser of--
            (i) 20 percent of the average annual pay of such judge 
        (determined in accordance with subsection (k) of this section), 
        or
            (ii) 40 percent of such average annual pay, divided by the 
        number of such children.

    (2) The annuity payable to a surviving spouse under this subsection 
shall be terminated--
        (A) upon the surviving spouse's death; or
        (B) upon the remarriage of the surviving spouse before age 55.

    (3) The annuity payable to a child under this subsection shall be 
terminated upon the child's death.
    (4) In case of the death of a surviving spouse of a judge leaving a 
dependent child or children of the judge surviving the spouse, the 
annuity of such child or children under paragraph (1)(B) of this 
subsection shall be recomputed and paid as provided in paragraph (1)(C) 
of this subsection. In any case in which the annuity of a dependent 
child is terminated, the annuities of any remaining dependent child or 
children, based upon the service of the same judge, shall be recomputed 
and paid as though the child whose annuity was so terminated had not 
survived the judge.
    (5) If a judge dies as a result of an assassination and leaves a 
survivor or survivors who are otherwise entitled to receive annuity 
payments under this section, the 18-month requirement in the matter in 
paragraph (1) preceding subparagraph (A) shall not apply.
    (g) Questions of family relationships, dependency, and disability 
arising under this section shall be determined in the same manner as 
such questions arising under chapter 84 of title 5 are determined.
    (h)(1) If--
        (A) a judge making an election under subsection (b) of this 
    section dies while in office (i) before having rendered 5 years of 
    civilian service computed as prescribed in subsection (l) of this 
    section, or (ii) after having rendered 5 years of such civilian 
    service but without a survivor entitled to annuity benefits provided 
    by subsection (f) of this section; or
        (B) the right of all persons entitled to an annuity under 
    subsection (f) of this section based on the service of such judge 
    terminates before a claim for such benefits has been established,

the total amount credited to the individual account of such judge (with 
interest at 3 percent per year, compounded on December 31 of each year, 
to the date of the death of such judge) shall be paid in the manner 
specified in paragraph (2) of this subsection.
    (2) An amount payable under paragraph (1) of this subsection shall 
be paid, upon the establishment of a valid claim therefor, to the person 
or persons surviving at the date title to the payment arises, in the 
following order of precedence:
        (A) To the beneficiary or beneficiaries whom the judge 
    designated in writing filed before death with the chief judge 
    (except that in the case of the chief judge such designation shall 
    be filed before death as prescribed by the Court).
        (B) To the surviving spouse of the judge.
        (C) To the child or children of the judge (and the descendants 
    of any deceased children by representation).
        (D) To the parents of the judge or the survivor of them.
        (E) To the executor or administrator of the estate of the judge.
        (F) To such other next of kin of the judge as may be determined 
    by the chief judge to be entitled under the laws of the domicile of 
    the judge at the time of the judge's death.

    (3) Determination as to the surviving spouse, child, or parent of a 
judge for the purposes of paragraph (2) of this subsection shall be made 
without regard to the definitions in subsection (a) of this section.
    (4) Payment under this subsection in the manner provided in this 
subsection shall be a bar to recovery by any other person.
    (5) In a case in which the annuities of all persons entitled to 
annuity based upon the service of a judge terminate before the aggregate 
amount of annuity paid equals the total amount credited to the 
individual account of such judge (with interest at 3 percent per year, 
compounded on December 31 of each year to the date of the death of the 
judge), the difference shall be paid, upon establishment of a valid 
claim therefor, in the order of precedence prescribed in paragraph (2) 
of this subsection.
    (6) Any accrued annuity remaining unpaid upon the termination (other 
than by death) of the annuity of any individual based upon the service 
of a judge shall be paid to that individual. Any accrued annuity 
remaining unpaid upon the death of an individual receiving an annuity 
based upon the service of a judge shall be paid, upon the establishment 
of a valid claim therefor, in the following order of precedence:
        (A) To the executor or administrator of the estate of that 
    person.
        (B) After 30 days after the date of the death of such 
    individual, to such individual or individuals as may appear in the 
    judgment of the chief judge to be legally entitled thereto.

Such payment shall be a bar to recovery by any other individual.
    (i) When a payment under this section is to be made to a minor, or 
to a person mentally incompetent or under other legal disability 
adjudged by a court of competent jurisdiction, the payment may be made 
to the person who is constituted guardian or other fiduciary by the law 
of the State of residence of such claimant or is otherwise legally 
vested with the care of the claimant or the claimant's estate. If no 
guardian or other fiduciary of the person under legal disability has 
been appointed under the laws of the State of residence of the claimant, 
the chief judge shall determine the person who is otherwise legally 
vested with the care of the claimant or the claimant's estate.
    (j) Annuities under this section shall accrue monthly and shall be 
due and payable in monthly installments on the first business day of the 
month following the month or other period for which the annuity has 
accrued. An annuity under this section is not assignable, either in law 
or in equity, or subject to execution, levy, attachment, garnishment, or 
other legal process.
    (k)(1) The annuity of the surviving spouse of a judge making an 
election under subsection (b) of this section shall be an amount equal 
to the sum of the following:
        (A) The product of--
            (i) 1.5 percent of the judge's average annual pay; and
            (ii) the sum of the judge's years of judicial service, the 
        judge's years of prior allowable service as a Member of 
        Congress, the judge's years of prior allowable service performed 
        as a member of the Armed Forces, and the judge's years, not 
        exceeding 15, of prior allowable service performed as a 
        congressional employee (as defined in section 2107 of title 5).

        (B) Three-fourths of 1 percent of the judge's average annual pay 
    multiplied by the judge's years of allowable service not counted 
    under subparagraph (A) of this paragraph.

    (2) An annuity computed under this subsection may not exceed 50 
percent of the judge's average annual pay and may not be less than 25 
percent of such average annual pay. Such annuity shall be further 
reduced in accordance with subsection (d) of this section (if 
applicable).
    (3) For purposes of this subsection, the term ``average annual 
pay'', with respect to a judge, means the average annual pay received by 
the judge for judicial service (including periods in which the judge 
received retired pay under section 7296(d) of this title) or for any 
other prior allowable service during the period of three consecutive 
years in which the judge received the largest such average annual pay.
    (l) Subject to subsection (d) of this section, the years of service 
of a judge which are allowable as the basis for calculating the amount 
of the annuity of the judge's surviving spouse shall include the judge's 
years of service as a judge of the Court, the judge's years of service 
as a Member of Congress, the judge's years of active service as a member 
of the Armed Forces not exceeding 5 years in the aggregate and not 
including any such service for which credit is allowed for the purposes 
of retirement or retired pay under any other provision of law, and the 
judge's years of any other civilian service within the purview of 
section 8332 of title 5.
    (m) Nothing contained in this section shall be construed to prevent 
a surviving spouse eligible therefor from simultaneously receiving an 
annuity under this section and any annuity to which such spouse would 
otherwise be entitled under any other law without regard to this 
section, but in computing such other annuity service used in the 
computation of such spouse's annuity under this section shall not be 
credited.
    (n) A judge making an election under subsection (b) of this section 
shall, at the time of such election, waive all benefits under the civil 
service retirement laws except section 8440d of title 5. Such a waiver 
shall be made in the same manner and shall have the same force and 
effect as an election filed under section 7296(d) of this title.
    (o) Each survivor annuity payable from the retirement fund shall be 
increased at the same time as, and by the same percentage by which, 
annuities payable from the Judicial Survivors' Annuities Fund are 
increased pursuant to section 376(m) of title 28.

(Added Pub. L. 101-94, title I, Sec. 101(a), Aug. 16, 1989, 103 Stat. 
620, Sec. 4097; renumbered Sec. 7297 and amended Pub. L. 102-40, title 
IV, Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 
102-54, Sec. 14(e)(6), June 13, 1991, 105 Stat. 287; Pub. L. 102-82, 
Sec. 5(c)(2), Aug. 6, 1991, 105 Stat. 376; Pub. L. 102-198, 
Sec. 7(c)(4)(E), Dec. 9, 1991, 105 Stat. 1625; Pub. L. 105-368, title V, 
Secs. 503, 512(a)(1), Nov. 11, 1998, 112 Stat. 3340, 3341; Pub. L. 106-
117, title X, Secs. 1023, 1035(2), Nov. 30, 1999, 113 Stat. 1592, 1595.)

                       References in Text

    The civil service retirement laws, referred to in subsecs. (d)(1), 
(f)(1), and (n), are classified generally to subchapter III (Sec. 8331 
et seq.) of chapter 83 of Title 5, Government Organization and 
Employees.


                               Amendments

    1999--Subsec. (a)(2). Pub. L. 106-117, Sec. 1035(2), substituted ``a 
judge'' for ``the chief judge or an associate judge''.
    Pub. L. 106-117, Sec. 1023(e)(2)(A), inserted ``who is in active 
service or who has retired under section 7296 of this title'' after 
``Court''.
    Subsec. (a)(3). Pub. L. 106-117, Sec. 1023(e)(2)(B), substituted 
``7296'' for ``7296(c)''.
    Subsec. (a)(5). Pub. L. 106-117, Sec. 1023(a), substituted ``one 
year'' for ``two years''.
    Subsec. (a)(8). Pub. L. 106-117, Sec. 1023(e)(2)(C), added par. (8).
    Subsec. (b). Pub. L. 106-117, Sec. 1023(b), inserted ``or within six 
months after the date on which the judge marries if the judge has 
retired under section 7296 of this title'' before the period at end of 
first sentence.
    Subsec. (c). Pub. L. 106-117, Sec. 1023(c), substituted ``that 
percentage of the judge's pay that is the same as provided for the 
deduction from the salary or retirement salary of a judge of the United 
States Court of Federal Claims for the purpose of a survivor annuity 
under section 376(b)(1)(B) of title 28'' for ``3.5 percent of the 
judge's pay''.
    Subsec. (d). Pub. L. 106-117, Sec. 1023(d), designated existing 
provisions as par. (1) and added par. (2).
    Subsec. (f)(1). Pub. L. 106-117, Sec. 1023(e)(1)(A), in introductory 
provisions, substituted ``at least 18 months'' for ``at least 5 years'' 
and ``last 18 months'' for ``last 5 years''.
    Subsec. (f)(1)(A). Pub. L. 106-117, Sec. 1023(f), struck out ``or 
following the surviving spouse's attainment of the age of 50 years, 
whichever is the later'' after ``death of the judge''.
    Subsec. (f)(5). Pub. L. 106-117, Sec. 1023(e)(1)(B), added par. (5).
    1998--Subsec. (a)(1), (4). Pub. L. 105-368, Sec. 512(a)(1), 
substituted ``Court of Appeals for Veterans Claims'' for ``Court of 
Veterans Appeals''.
    Subsec. (o). Pub. L. 105-368, Sec. 503, amended subsec. (o) 
generally. Prior to amendment, subsec. (o) read as follows: ``Whenever 
the salaries of judges paid under section 7253(e) of this title are 
increased, each annuity payable from the retirement fund which is based, 
in whole or in part, upon a deceased judge having rendered some portion 
of that judge's final 18 months of service as a judge of the Court, 
shall also be increased. The amount of the increase in the annuity shall 
be determined by multiplying the amount of the annuity on the date on 
which the increase in salaries becomes effective by 3 percent for each 
full 5 percent by which those salaries were increased.''
    1991--Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4097 of 
this title as this section.
    Subsec. (a)(3). Pub. L. 102-40, Sec. 402(d)(1), substituted 
``7253(e)'' for ``4053(e)'' and ``7296(c)'' for ``4096(c)''.
    Subsec. (a)(4). Pub. L. 102-40, Sec. 402(d)(1), substituted ``7298'' 
for ``4098''.
    Subsec. (e). Pub. L. 102-40, Sec. 402(d)(1), substituted ``7296'' 
for ``4096'' wherever appearing.
    Subsec. (h)(1)(A)(i). Pub. L. 102-54 amended subsec. (h)(1)(A)(i) as 
in effect immediately before the enactment of Pub. L. 102-40 by 
substituting ``subsection (l)'' for ``subsection (1)''.
    Subsec. (k)(3). Pub. L. 102-40, Sec. 402(d)(1), substituted 
``7296(d)'' for ``4096(d)''.
    Subsec. (n). Pub. L. 102-198 substituted ``8440d'' for ``8440c''.
    Pub. L. 102-82 inserted ``except section 8440c of title 5'' before 
period at end of first sentence.
    Pub. L. 102-40, Sec. 402(d)(1), substituted ``7296(d)'' for 
``4096(d)''.
    Subsec. (o). Pub. L. 102-40, Sec. 402(d)(1), substituted ``7253(e)'' 
for ``4053(e)''.


                    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 section 512(a)(1) of 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.

                  Section Referred to in Other Sections

    This section is referred to in sections 7296, 7298 of this title.
