[Congressional Record Volume 140, Number 36 (Friday, March 25, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           COURT OF VETERANS APPEALS IMPROVEMENT ACT OF 1993

  Mr. FORD. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of calendar 376, S. 1546, the 
Court of Veterans Appeals Improvement Act of 1993; that the committee 
substitute amendment be agreed to, the motion to reconsider be laid 
upon the table, that the bill be read a third time, passed, the motion 
to reconsider laid upon the table, and that any statement appear at the 
appropriate place in the Record.
  The PRESIDENT pro tempore. Without objection the several requests 
will be granted.
  Mr. ROCKEFELLER. Mr. President, as chairman of the Committee on 
Veterans' Affairs, I urge the Senate to pass S. 1546, the proposed 
Court of Veterans Appeals Improvement Act of 1993, a bill to revise 
certain provisions relating to the U.S. Court of Veterans Appeals, as 
reported by the committee on March 2, 1994. This bill would make 
improvements in the Veterans' Judicial Review Act, the legislation that 
created the Court of Veterans Appeals in 1988.
  Mr. President, the measure as it comes before us today, which I will 
refer to as the ``committee bill,'' is derived from a measure which 
passed the full Senate during the 102d Congress--S. 2974--which was 
reported by the Committee on Veterans' Affairs on September 15, 1992, 
and passed by the full Senate on October 1, 1992.


                         summary of provisions

  Mr. President, section 2 of the committee bill would require that the 
appointment of an associate judge of the U.S. Court of Veterans Appeals 
to be chief judge be by and with the advice and consent of the Senate.
  Section 3 would require that the court accept as timely filed a 
notice of appeal that is mailed within the 120-day statutory filing 
period if it bears a legible U.S. Postal Service postmark, and would 
provide that the court's determination as to the legibility of a 
postmark is final and not subject to review by any other court.
  Finally, section 4 would clarify that attorneys may receive payment 
for representation before the court directly from VA out of a 
retroactive benefit award only if the total amount of the fee is 
contingent upon the claim being resolved in favor of the appellant.
  Mr. President, because the various provisions contained in the 
committee bill are described in detail in the committee report (S. 
Rept. 103-232), at this time I will only highlight the provisions of 
the committee bill. I refer my colleagues and all others with interest 
in this bill to the committee report.


                confirmation of chief judge of the court

  Mr. President, section 2 of the bill would clarify the process for 
filling the position of chief judge of the court. Currently, under 
section 7254(d) of title 38, United States Code, when the position of 
chief judge is vacant, the associate judge senior in service assumes 
the role of acting chief judge, unless the President designates another 
associate judge to serve in that position. This provision was enacted 
in Public Law 101-94 for the purpose of avoiding any unnecessary 
disruption when the chief judge position becomes vacant.

  Section 2 of the bill acknowledges the importance of the position of 
chief judge by clarifying that the appointment of any individual by the 
President to serve in the position of chief judge, including any 
sitting associate judge, must only be with the advice and consent of 
the Senate. Therefore, section 2 would require Senate confirmation of 
any individual selected by the President to serve as chief judge of the 
Court of Veterans Appeals.


             filing date for notice of appeal to the court

  Mr. President, section 3 of the bill would provide that an appeal to 
the Court of Veterans Appeals is timely filed if it is postmarked--
rather than actually received by the court--by the statutory deadline. 
Currently, section 7266(a) of title 38 requires that an appeal to the 
court must be filed within 120 days after the date on which the Board 
of Veterans' Appeals mails its decision. Under rule 4 of the court's 
Rules of Practice and Procedure, the court must receive the notice of 
appeal by the 120th day of that filing period.
  Mr. President, although the Court of Veterans Appeals acted 
appropriately and within the scope of its authority when it adopted 
rule 4, I believe that the court's interpretation of the statutory 
requirement is unduly restrictive and complicated. I believe that in 
order to be fair to all appellants, the postmark date on the notice of 
appeal must be considered the filing date for purposes of determining 
whether or not an appeal was filed in a timely manner. Therefore, 
section 3 of the bill would amend section 7266(a) of title 38 to 
require that a notice of appeal be deemed received by the court on the 
date of receipt by the court if it is delivered, or on the date it is 
postmarked if it is mailed.


        payment of attorney fees under contingent fee agreements

  Mr. President, section 4 of the committee bill would overrule the 
Court of Veterans Appeals as to one element of its decision in Matter 
of Fee Agreement of Smith, 4 Vet. App. 487 (1993). Specifically, this 
provision relates to the issue of attorney fees paid directly to the 
attorney by VA from past-due benefits awarded to the appellant. Under 
current law, section 5904(d) of title 38, an attorney may receive 
payment for representation before the court directly from VA out of a 
retroactive benefit award.
  Section 4 would amend section 5904(d) to clarify that if a fee 
agreement requires direct payment from VA to the attorney, the total 
amount of the fee must be contingent upon whether or not the 
appellant's claim is successfully resolved.


                               conclusion

  Mr. President, this legislation would allow the Court of Veterans 
Appeals to fulfill more effectively its responsibility under the 
Veterans' Judicial Review Act and ease certain unnecessary restrictions 
on potential appellants before the court. I urge all of my Senate 
colleagues to support this bill.
  Mr. President, I express my appreciation to the distinguished ranking 
Republican member of the Senate committee, Mr. Murkowski, and all other 
members of the committee. I look forward to working with my colleagues 
in the Senate, as well as members of the House Committee on Veterans' 
Affairs, on this measure.
  Mr. President, I urge the Senate to give its unanimous approval to 
this measure.
  So the bill (S. 1546), as amended, was passed, as follows:

                                S. 1546

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1, SHORT TITLE.

       This Act may be cited as the ``Court of Veterans Appeals 
     Improvement Act of 1994''.

     SEC. 2. CONFIRMATION OF CHIEF JUDGE.

       Section 7253(b) of title 38, United States Code, is amended 
     by striking out ``The Judges'' and inserting in lieu thereof 
     ``The chief judge and the associate judges''.

     SEC. 3. MAILING OF NOTICES OF APPEAL TO THE COURT OF VETERANS 
                   APPEALS.

       (A) In General.--Section 7266(a) of title 38, United States 
     Code, is amended to read as follows:
       ``(a)(1) In order to obtain review by the Court of Veterans 
     Appeals of a final decision of the Board of Veterans' 
     Appeals, a person adversely affected by such decision shall 
     file a notice of appeal with the Court within 120 days after 
     the date on which notice of the decision is mailed pursuant 
     to section 7104(e) of this title.
       ``(2) An appellant shall file a notice of appeal under this 
     section by delivering or mailing the notice to the Court.
       ``(3) A notice of appeal shall be deemed to be received by 
     the Court as follows:
       ``(A) On the date of receipt by the Court, if the notice is 
     delivered.
       ``(B) On the date of the United States Post Service 
     postmark stamped on the cover in which the notice is posted, 
     if the notice is mailed.
       ``(4) For a notice of appeal mailed to the Court to be 
     deemed to be received under paragraph (3)(B) on a particular 
     date, the United States Postal Service postmark on the cover 
     in which the notice is posted must be legible. The Court 
     shall determine the legibility of any such postmark and the 
     Court's determination as to legibility shall be final and not 
     subject to review by any other Court.''.
       (b) Application.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act 
     and shall apply to notices of appeal that are delivered or 
     mailed to the United States Court of Veterans Appeals on or 
     after the date.

     SEC. 4. CLARIFICATION OF PAYMENT OF ATTORNEY FEES UNDER 
                   CONTINGENT FEE AGREEMENTS.

       Section 5904(d)(2)(A) of title 38, United States Code, is 
     amended to read as follows:
       ``(A) A fee agreement referred to in paragraph (1) of this 
     subsection is one under which the total amount of the fee 
     payable to the attorney (i) is to be paid to the attorney by 
     the Secretary directly from any past-due benefits awarded on 
     the basis of the claim, and (ii) is contingent on whether or 
     not the matter is resolved in a manner favorable to the 
     claimant.''.

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